Archive/File: imt/nca/nca-02/nca-02-15-criminality-01-04 Last-Modified: 1996/12/28 Of course; members of criminal organizations or conspiracies who personally commit crimes are individually punishable for those crimes exactly as are those who commit the same offenses without organizational backing. But the very gist of the crime of conspiracy or membership in a criminal association is liability for acts one did not personally commit but which his acts facilitated or abetted. The crime is to combine with others and to participate in the unlawful common effort, however innocent the personal acts of the participant when considered by themselves. The very innocent act of mailing a letter is enough to implicate one in a conspiracy if the purpose of the letter is to advance a criminal plan. There are countless examples of this doctrine in Anglo-American jurisprudence. The sweep of the law of conspiracy is an important consideration in determining the criteria of guilt for organizations. Certainly the vicarious liability imposed in consequence of voluntary membership, formalized by oath, dedicated to a common organizational purpose and submission to a discipline and chain of command, can not be less than that which follows from informal cooperation with a nebulous group to a common end as is sufficient in conspiracy. This meets the suggestion that the prosecution is required to prove every member, or every part, fraction, or division of the membership to be guilty of criminal acts. The suggestion ignores the conspiratorial nature of the charge. Such an interpretation also would reduce the Charter to an unworkable absurdity. To concentrate in one International Tribunal inquiries requiring such detailed evidence as to each member would set a task not possible of completion within the lives of living men. It is easy to toss about such a plausible but superficial cliche as, "One should be convicted for his activities, not for his membership." But this ignores the fact that membership in Nazi bodies was itself an activity. It was not something passed out to a passive citizen like a handbill. Even a nominal membership may aid and abet a movement greatly. Does anyone believe that Hjalmar Schacht sitting in the front row of the Nazi Party Congress of 1935, wearing the insignia of the Party, was included in the Nazi propaganda films merely for artistic effect? This great banker's mere loan of his name to this shady enterprise gave it a lift and a respectability in the eyes of every hesitating German. There may be instances in which membership did not aid and abet the [Page 15] organizational ends and means, but individual situations of that kind are for appraisal in the later hearings and not by this Tribunal. By and large, the use of organization affiliation is a quick and simple, but at the same time fairly accurate outline of the contours of a conspiracy to do what the organization actually did. It is the only one workable at this stage of the trial. It can work no injustice because before any individual can be punished, he can submit the facts of his own case to further and more detailed judicial scrutiny. While the Charter does not so provide, we think that on ordinary legal principles the burden of proof to justify a declaration of criminality is upon the prosecution. It is discharged, we think, when we establish the following: 1. The organization or group in question must be some aggregation of persons associated in some identifiable relationship with a collective general purpose. 2. While the Charter does not so declare, we think it implied that membership in such an organization must be generally voluntary. That does not require proof that every member was a volunteer. Nor does it mean that an organization is not to be considered voluntary if the defense proves that some minor fraction or small percentage of its membership was compelled to join. The test is a common-sense one: Was the organization on the whole one which persons were free to join or to stay out of? Membership is not made involuntary by the fact that it was good business or good politics to identify one's self with the movement. Any compulsion must be of the kind which the law normally recognizes, and threats of political or economic retaliation would be of no consequence. 3. The aims of the organization must be criminal in that it was designing to perform acts denounced as crimes in Article 6 of the Charter. No other act would authorize conviction of an individual and therefore no other act would authorize conviction of n organization in connection with the conviction of the individual. 4. The criminal aims or methods of the organization must have been of such character that its membership in general may properly be charged with knowledge of them. This again is not specifically required by the Charter. Of course, it is not incumbent on the prosecution to establish the individual knowledge of every member of the organization or to rebut the possibility that some lay have joined in ignorance of its true character. 5. Some individual defendant must have been a member of the [Page 16] organization and must be convicted of some act on the basis of which the organization is declared to be criminal. D. Definition of Issues for Trial. The progress of this trial will be expedited by clear definition of the issues to be tried. I have indicated what we consider to be the proper criteria of guilt. There are also subjects which we think are not relevant before this Tribunal, some of which are mentioned in the specific questions asked by the Tribunal. Only a single ultimate issue is before this Tribunal for decision. That is whether accused organizations properly may be characterized as criminal ones or as innocent ones. Nothing is relevant here that does not bear on a question that would be common to the case of every member. Any matter which would be exculpating for some members but not for all is irrelevant here. We think it is not relevant to this proceeding at this stage that one or many members were conscripted if in general the membership was voluntary. It may be conceded that conscription is a good defense for an individual charged with membership in a criminal organization, but an organization can have criminal purposes and commit criminal acts even if a portion of its membership consists of persons who were compelled to Join it. The issue of conscription is not pertinent to this proceeding but it is pertinent to the trials of individuals for membership in organizations declared criminal by this Tribunal. We also think it is not relevant to this proceeding that one or more members of the named organizations were ignorant of its criminal purposes or methods if its purposes or methods were open and notorious. An organization may have criminal purposes and commit criminal acts although one or many of its members were without personal knowledge thereof. If a person joined what he thought was a social club but what in fact was a gang of cutthroats and murderers, his lack of knowledge would not exonerate the gang considered as a group, although it might possibly be a factor in extenuation of a charge of criminality brought against him for mere membership in the organization. Even then the test would be not what the man knew, but what, as a person of common understanding, he should have known. It is not relevant to this proceeding that one or more members of the named organizations were themselves innocent of unlawful acts. This proposition is basic to the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge, [Page 17] is punishment for aiding crimes, although the precise perpetrators may never be found or identified. We know that the Gestapo and SS, as organizations, were given principal responsibility for the extermination of the Jewish people in Europe but beyond a few isolated instances, we can never establish which members of the Gestapo or SS actually carried out the murders Any member guilty of direct participation in such crimes can be tried on the charge of having committed specific crimes in addition to the general charge of membership in a criminal organization. Therefore, it is wholly immaterial that one or more members of the organizations were themselves allegedly innocent of specific wrongdoing. The purpose of this proceeding is not to reach instances of individual criminal conduct, even in subsequent trials and, therefore, such considerations are irrelevant here. Another question raised by the Tribunal is the period of time during which the groups or organizations named in the Indictment are claimed by the Prosecution to have been criminal. The Prosecution believes that each organization should be declared criminal during the period referred to in the Indictment. We do not contend that the Tribunal is without power to condition its declaration so as to cover a lesser period of time than that set forth in the Indictment. The Prosecution feels, however, that there is in the record at this time adequate evidence to support the charge of criminality with respect to each of the named organizations during the full period of time set forth in the Indictment. Another question raised by the Tribunal is whether any classes of persons included within the accused groups or organizations should be excluded from the declaration of criminality. It is, of course necessary that the Tribunal relate its declaration to some identifiable group or organization. The Tribunal, however, is not expected or required to be bound by formalities of organization In framing the Charter, the use was deliberately avoided of terms or concepts which would involve this trial in legal technicalities about juristic persons" or "entities." Systems of jurisprudence e not uniform in the refinements of these fictions. The concept of the Charter, therefore, is a nontechnical one. "Group" or "organization should be given no artificial or sophistical meaning. or group was used in the Charter as a broader term, implying a looser and less formal structure or relationship than is in he organization." The terms mean in the context of e Charter what they mean in the ordinary speech of people. The [Page 18] test to identify a group or organization is, we submit, a natural and common-sense one. It is important to bear in mind that while the Tribunal no doubt has power to make its own definition of the groups it will declare criminal, the precise composition and membership of groups and organizations is not an issue for trial here. There is no Charter requirement and no practical need for the Tribunal to define a group or organization with such particularity that its precise composition or membership is thereby determined. The creation of a mechanism for later trial of such issues was a recognition that the declaration of this Tribunal is not decisive of such questions and is likely to be so general as to comprehend persons who on more detailed inquiry will prove to be outside of it. An effort by this Tribunal to try questions of exculpation of individuals, few or many, would unduly protract the trial, transgress the limitation of the Charter, and quite likely do some mischief by attempting to adjudicate precise boundaries on evidence which is not directed to that purpose. The prosecution stands upon the language of the Indictment and contends that each group or organization should be declared criminal as an entity and that ho inquiry should be entered upon and no evidence entertained as to the exculpation of any class or classes of persons within such descriptions. Practical reasons of conserving the Tribunal' time combine with practical considerations for the defendants. A single trial held in one city to deal with questions of excluding thousands of defendants living all over Germany could not be expected to do justice to each member unless it was expected to endure indefinitely. Provision for later, local trial of individual relationships protects the rights of members better than can possibly be done in proceedings before this Tribunal.
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