The Nizkor Project: Remembering the Holocaust (Shoah)

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The Charter is silent as to the form that these subsequent
trials should take. It was not deemed wise, on the
information then available, that the Charter should regulate
subsequent proceedings. Nor was it necessary to do so. There
is a continuing legislative authority, representing all four
signatory nations, competent to take over where the Charter
leaves off. Legislative supplementation of the Charter, of
course, would be necessary in any event, to confer
jurisdiction on local courts, to define their procedures and
to prescribe different penalties for different forms of

Fear has been expressed, however, that the Charter's silence
as to future proceedings means that great numbers of members
will be rounded up and automatically punished as a result of
a declaration that an organization is criminal. It also has
been suggested that this is, or may be, the consequence of
Article II, 1 (d) of Control Council Act, No. 10, which
defines as a crime, "membership in categories of a criminal
group or organization declared criminal by the International
Military Tribunal." The intention to inflict punishment
without a right of hearing cannot be read into of this
Charter, and would be offensive to both its letter and its
spirit. And I do not find in Control Council Act No. 10 any
inconsistency with the Charter. Of course, to reach all
individual members would require numerous hearings. But they
will involve only narrow issues; many persons will have no
answers to charges if they are carefully prepared, and the
proceedings should be expeditious, non-technical and held in
the locality where the person accused resides, and,
incidentally, may be conducted in two languages at most.

And I think it is clear that before any person is punishable
for membership in a criminal organization, he is entitled to
a hearing on the facts of his case. The Charter does not
authorize the national authorities to punish membership
without hearing - it gives them only the right to "bring
individuals to trial." That means what it says. A trial
means there is something to try.

The Charter denies only one of the possible defences of an
accused; he may not raise the question in a subsequent
trial, whether the organization itself was a criminal one.
Nothing precludes him from denying that his participation
was voluntary and proving that he acted under duress; he may
prove that he was deceived or tricked into membership; he
may show that he had withdrawn, or he may prove that his
name on the rolls is a case of mistaken identity.

The membership which the Charter and the Control Council Act
make criminal, of course, implies a genuine membership
involving the volition of the member. The act of affiliation
with the organization must have been intentional and
voluntary. Legal compulsion or illegal duress, actual fraud
or trick of which one is a victim, has never been thought to
be the victim's crime, and such an unjust result

                                                   [Page 41]

is not to be implied now. The extent of the member's
knowledge of the criminal character of the organization is,
however, another matter. He may not have known on the day he
joined, but may have remained a member after learning the
facts. And he is chargeable not only with what he knew, but
with all of which he was reasonably indicted.

There are safeguards to assure that this programme will be
carried out in good faith. Prosecution under this
declaration is discretionary. If it had been the intention
of the Allied Powers to punish these persons without trial,
it would have been already done before this Tribunal was set
up, and without waiting for its declaration. We think that
the Tribunal will presume that the signatory powers which
have voluntarily submitted to this process will carry it out

The Control Council Act applies only to categories of
membership declared criminal. This working on the part of
the Control Council recognizes a power in this Tribunal to
limit the effect of its declaration. I do not think, for
reasons which I will later state, that this should be
construed or made use of to try any issue here as to sub-
groups or sections or individuals which can be tried in
later proceedings. It should, I think, be construed to mean,
not the sort of limitation which must be defined by evidence
of details, but limitations of principle such as those I
have already outlined, such as duress, involuntary
membership, or matters of that kind, which the Tribunal can
recognize and deal with without taking detailed evidence. It
does not require this Tribunal to delve into evidence to
temper its judgement, to apply only to intentional and
voluntary membership. This does not supplant later trials by
the declaration of this Tribunal, but guides them.

It certainly cannot be said that such a plan as we have here
for severance of the general issues common to many cases,
from the particular issues applicable only to individual
defendants for litigation in separate Tribunals specially
adapted to the different kinds of issues, is lacking in
reasonableness or fair play. And while it presents unusual
procedural difficulties, I do not think it presents any
insurmountable ones. I will discuss the question of the
criteria and the principles and the precedents for declaring
collective criminality before coming to the procedural
questions involved. The substantive law which governs the
inquiry into criminality of organizations is, in its large
outline, old and well settled and fairly uniform in all
systems of law. It is true that we are dealing here with a
procedure which would be easy to abuse and one that is often
feared as an interference with liberty of assembly or as an
imposition of guilt by association. It also is true that
proceedings against organizations are closely akin to the
conspiracy charge which is the great drag-net of the law,
and rightly watched by courts lest it be abused.

The fact is, however, that every form of government has
considered it necessary to treat some organizations as
criminal. Not even the most tolerant of governments can
permit an accumulation of private power in organizations to
a point where it rivals, obstructs or dominates the
government itself. To do so would be to grant designing men
a liberty to destroy liberty. The very complacency and
tolerance as well as the impotence of the Weimar Republic
towards the growing organization of Nazi power spelled the
death of German freedom.

Protection of the citizen's liberty has required even free
governments to enact laws making criminal those aggregations
of power which threaten to impose their will on unwilling
citizens. Every one of the nations signatory to this Charter
has laws making certain types of organizations criminal. The
Klu Klux Klan in the United States flourished at about the
same time as the Nazi movement in Germany. It appealed to
the same hates, practised the same extra-legal coercions,
and likewise terrorized by the same sort of weird
ceremonials. Like the Nazi Party, it was composed of a core
of fanatics, but it enlisted the support of respectable
persons who knew it was wrong, but thought it was
advantageous. It eventually provoked a variety of
legislative acts directed against such organizations, as

                                                   [Page 42]

The Congress of the United States also has enacted
legislation outlawing certain organizations. A recent
example was on 28th June, 1940, in which the Congress
provided that it shall be unlawful for any person, among
other things, to organize or help to organize any society,
group, or assembly of persons to teach, advocate, or
encourage the overthrow or destruction of any government in
the United States by force or violence, or to be or become a
member of, or affiliate with, any such society, group or
assembly of persons, knowing the purposes thereof.

There is much legislation by States of the American Union
creating analogous offences. An example is to be found in
the act of California dealing with criminal syndicalism,
which, after defining it, makes criminal any person who
organizes, assists in organizing, or is or knowingly becomes
a member of such organization.

Precedents in English law for outlawing organizations and
punishing membership therein are old and consistent with the

One of the first is the British India Act, No. 30, enacted
in 1836, which, among other things, 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."

And the history is that this was a successful act in
suppressing violence.

Other precedents in English legislation are the Unlawful
Societies Act of 1799, the Seditious Meetings Act of 1817,
the Seditious Meetings Act of 1846, the Public Order Act of
1936, and Defence Regulations 18(b). The latter, 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 Soviet
Union call this crime the "crime of banditry," a term
altogether appropriate to these German organizations.
General Rudenko will advise this Tribunal  in detail as to
the Soviet Law.

French criminal law makes membership in subversive
organizations a crime. Membership of the criminal gang is a
crime in itself. My distinguished French colleague will
present you more detail on that.

Of course, I would not contend that the law of a single
country, even one of the signatory powers, was governing
here, but it is clear that this is not an act or a concept
of a single system of law, that all systems of law agree
that there are points at which organizations become
intolerable in a free society.

For German precedents, it is neither seemly nor necessary to
go to the Nazi regime, which, of course, suppressed all
their adversaries ruthlessly. However, under the Empire and
the Weimar Republic, German jurisprudence deserved respect,
and it presents both statutory and juridical examples of
declaring organizations to be criminal. Statutory examples

The German Criminal Code enacted in 1871, Section 128, was
aimed against secret associations, and 129 against
organizations inimical to the State.

A law of 22nd March, 1921, against para-military

A law of 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."

It would be difficult to draft an act that would more
definitely condemn the organizations with which we are
dealing here than this German Criminal Code

                                                   [Page 43]

of 1871. I recall to your attention that it condemns
organizations in which obedience to unknown superiors or
unconditional obedience to known superiors is pledged. It is
exactly the sort of danger and menace with which we are

Under the Empire, various Polish national unions were the
subject of criminal prosecutions. Under the Republic, in
1927 and 1928, judgements held criminal the entire Communist
Party of Germany. In 1922 and 1928, judgements of the courts
ran against the political Leadership Corps of the Communist
Party, which included all of its so-called body of
functionaries. This body of functionaries in that
organization corresponded somewhat in their powers to. the
Leadership Corps of the Nazi Party which we have accused
here. The judgement against the Communist Party rendered by
the German Courts included every cashier, every employee,
every delivery boy and messenger, and every district leader.
In 1930 a judgement of criminality against what was called
"The Union of Red Front Fighters" of the Communist Party,
made no distinction between leaders and ordinary members.

Most significant of all is the fact that on 30th May, 1924,
the German Courts adjudicated that the whole Nazi Party was
a criminal organization. Evidently there was a lack of
courage to enforce that judgement, or we might not have been
here. This decision referred not only to the Leadership
Corps, which we are indicting here, but to all other members
as well. The whole rise of the Nazi Party to power was in
the shadow of this judgement of illegality by the German
courts themselves.

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 different levels. Moreover, 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 the statements by
the German courts are these:-

  "It is a matter of indifference whether all the members
  pursued the forbidden aims. It is enough if a part
  exercised the forbidden activity."

And again:

  "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."

And again:

  "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 cannot eliminate their responsibility from real

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 by an American
legal authority as follows, and I quote from Miller on
Criminal Law:-

  "The reason for finding criminal liability in the 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 the

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."

                                                   [Page 44]

That, of course, is a statement of the ordinary law of

The individual defendants are arraigned at your bar on this
charge of conspiracy, 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. The crimes. were
defined in non-technical 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 divergencies between the
Anglo-American concept of a conspiracy and that of either
French, Soviet, or German jurisprudence. It was desired that
concrete cases be guided by the broader considerations
inherent in the nature of the problem I have outlined,
rather than controlled by refinements of any local law.

Now, except for procedural difficulties arising from their
number, 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. To
become voluntarily affiliated was an act of adherence to
some common plan or purpose.

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