Archive/File: imt/nca/nca-02/nca-02-15-criminality-01-03 Last-Modified: 1997/08/21 Precedents in English law for outlawing organizations and punishing membership therein are old and consistent with the Charter. One of the first is the British India Act No. 30, enacted November 14, 1836. Section 1 provides: "It is hereby enacted that whoever shall be proved to have belonged either before or after the passing of this Act to any gang of thugs either within or without the territories of the East India Company shall be punished with imprisonment for life with hard labour." Other precedents in English legislation are the Unlawful Societies Act of 1799 (3 George III, Chapter 79); the Seditious Meetings Act of 1817 (57 George III, Chapter 19); the Seditious Meetings Act of 1846 (9 and 10 Victoria, Chapter 33); the Public Order Act of 1936 and Defense Regulation 18(b). The last, not without opposition, was intended to protect the integrity of the British Government against the fifth-column activities of this same Nazi conspiracy. Soviet Russia punishes as a crime the formation of and membership in a criminal gang. Criminologists of the U.S.S.R. call this crime the "crime of banditry," a term appropriate to the German organizations. French criminal- law makes membership in subversive organizations a crime. Membership of the criminal gang is a crime in itself. (Articles 26268, French Penal Code, "Association de Malfaiteurs"; Garaud, Precis de Droit Criminel, 1934 Edition Sirey, p. 118 and seq. See also Act of December 18, 1893.) For German precedents, it is neither seemly nor necessary to go to the Nazi regime. Under the Empire and the Weimar Republic, however, German jurisprudence deserved respect and it presents both statutory and juridical examples of declarations of the criminality of organizations. Among statutory examples are: [Page 11] 1. The German Criminal Code enacted in 1871. Section 128 was aimed against secret associations and Section 129 was directed against organizations inimical to the State. 2. The law of 22 March 1921 against paramilitary organizations. 3. The law of 21 July 1922 against organizations aimed at overthrowing the constitution of the Reich. Section 128 of the Criminal Code of 1871 is especially pertinent. It reads: "The participation in an organization the existence, constitution, or purposes of which are to be kept secret from the Government, or in which obedience to unknown superiors or unconditional obedience to known superiors is pledged, is punishable by imprisonment up to six months for the members and from one month to one year for the founders and officers. Public officials may be deprived of the right to hold public office for a period of from one to five years." Under the Empire, various Polish national unions were the subject of criminal prosecution. Under the Republic, judicial judgments in 1927-28 held criminal the entire Communist Party of Germany. In 1922 and 1928 judgments ran against the political Leadership Corps of the Communist Party, which included all its so-called "body of functionaries," corresponding to the Leadership Corps of the Nazi Party which we have accused. The judgment included every cashier, every employee, every delivery boy and messenger, and every district leader. In 1930 a judgment of criminality against the "Union of Red Front Fighters" of the Communist Party made no discrimination between leaders and ordinary members. Most significant of all is the fact that on 30 May 1924 the German courts rendered judgment that the whole Nazi Party was a criminal organization. This decision referred not only to the Leadership Corps, which we are indicting here, but to all other members as well. The whole subsequent rise to power of the Nazi Party was in the shadow of this judgment of illegality. The German courts in dealing with criminal organizations proceeded on the theory that all members were held together by a common plan in which each one participated even though at various levels. Moreover, the fundamental principles of responsibility of members as stated by the German Supreme Court are strikingly like the principles that govern our Anglo-American law of conspiracy. Among them were these: 1. "It is a matter of indifference whether all the members [Page 12] pursued the forbidden aims. It is enough if a part exercised the forbidden activity." (R.G. VIa 97/22 of the 8.5.22.) 2. "It is a matter of indifference whether the members of the group or association agree with the aims, tasks, means of working and means of fighting." (R.G. 8, 401 of the 24.10.24.) 3. "The real attitude of mind of the participants is a matter of indifference. Even if they had the intention of not participating in criminal efforts, or hindering them, this can not eliminate their responsibility." (R.G. 58, 401 of the 24.10.24.) Organizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies, and their criminality is judged by the application of conspiracy principles. The reason why they are offensive to law- governed people has been succinctly stated as follows: "The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of people." (Miller on Criminal Law, 1932. p. 110.) The Charter, in Article 6, provides that "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan." The individual defendants are arraigned at your bar on this charge which, if proved, makes them responsible for the acts of others in execution of the common plan. The Charter did not define responsibility for the acts of others in terms of "conspiracy" alone. he crimes were defined in nontechnical but inclusive terms, and embraced formulating and executing a "common plan" as well as participating in a conspiracy." It was feared that to do otherwise might import into the proceedings technical requirements and limitations which have grown up around the term "conspiracy." There are some divergences between the Anglo-American concept of conspiracy and that of either Soviet, French, or German jurisprudence It [Page 13] was desired that concrete cases be guided by the broader considerations inherent in the nature of the social problem, rather than controlled by refinements of any local law. Now, except for procedural difficulties arising from their multitude, there is no reason why every member of any Nazi organization accused here could not have been indicted and convicted as a part of the conspiracy under Article 6 even if the Charter had never mentioned organizations at all. Voluntary affiliation constituted a definite act of adherence to some common plan and purpose. These did not pretend to be merely social or cultural groups; admittedly they were united for action. In the case of several of the Nazi organizations, the fact of confederation was evidenced by formal induction into membership, the taking of an oath, the wearing of a distinctive uniform, the submission to a discipline. That all members of each Nazi organization did combine under a common plan to achieve some en by combined efforts is abundantly established. The criteria for determining the collective guilt of those who thus adhered to a common plan obviously are those which would test the legality of any combination or conspiracy. Did it contemplate illegal methods or aim at illegal ends? If so, the liability of each member of one of these Nazi organizations for the acts of every other member is not essentially different from the liability for conspiracy enforced in Courts of the United States against business men who combine in violation of the antitrust laws, or of other defendants accused under narcotic drugs laws, sedition acts, or other federal penal enactments. Among the principles every day enforced in Courts of Great Britain and the United States in dealing with conspiracy are these: 1. No meeting or formal agreement is necessary. It is sufficient, although one performs one part and other persons other parts, if there be concert of action, and working together understandingly with a common design to accomplish a common purpose. 2. One may be liable even though he may not have known who his fellow-conspirators were, or just what part they were to take, or what acts they committed, and though he did not take personal part in them or was absent when criminal acts occurred. 3. There may be liability for acts of fellow-conspirators although the particular acts were not intended or anticipated, if they were done in execution of the common plan. 4. It is not necessary to liability that one be a member of a conspiracy at the same time as other actors, or at the time of [Page 14] criminal acts. When one becomes a party to it, he adopts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow- conspirators.
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