The Nizkor Project: Remembering the Holocaust (Shoah)

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I remind the Tribunal, however, that the grouping of these
positions is not artificial in reality, because on Page 309
(Part 3) and the following pages of Colonel Telford Taylor's
presentation - and I refer especially to Pages 314 and 315 -
it will be seen how the holders of the positions enumerated
met in fact and in the flesh. This, in our submission,
clearly comes within the interpretation of "group" in the
Charter, which, as Mr. Justice Jackson pointed out, has a
wider connotation than "organization," and we submit that
you cannot hold men in the top command against their will.

It would be impossible for them to carry on such work on
such a condition.

Under Section F of my Appendix A, read with the first
addendum, there will be found not only the references in the
transcript, but the references to the captured documents
which prove, out of the mouths of the members of this group,
the criminality alleged against them under each part of
Article 6 of the Charter. These documents also show their
actual knowledge and therefore, a priori, their constructive
knowledge of the nature of the act.

In my Appendix B, the five defendants involved are set out,
and in the latter part of that appendix the connection of
the group, and especially of the defendants

                                                   [Page 57]

Keitel and Jodl, is emphasized. It is submitted that these
facts prevent any difficulty being encountered with regard
to this group on any of the five criteria which we say
should guide the Tribunal.

Finally, may I repeat that in our respectful submission the
facts contained in Appendices A and B which are before the
Tribunal in writing, clearly indicate the findings of fact
for which the prosecution asks.

My friend, M. Champetier de Ribes will address the Tribunal.

M. CHAMPETIER DE RIBES: May it please the Tribunal, Mr.
President and gentlemen, I shall be careful not to add
anything to the very complete statements of Mr. Justice
Jackson and Sir David Maxwell Fyfe.

In agreement with my fellow prosecutors, I should like
respectfully to draw the Tribunal's attention only to two
clauses of French internal law which deal with questions
comparable to those which we are considering to-day, and in
connection with which I believe the French Legislature has
had to solve some of the problems with which the Tribunal is
concerned, and especially to reply to the question put by
the Tribunal, namely, the definition of the criminal

I shall merely mention Article 265 of the French Penal Code
which lays down the general principle of the association of
criminals by enacting that:-

  "Any organised association, whatever its structure or the
  number of its members, any understanding made with the
  object of preparing or committing crimes against persons
  or against property, constitutes a crime against public

But I should like to draw the attention of the Tribunal to
this fact, that in the course of the last few years France
has had occasion to apply this general principle to
organizations which greatly resemble those which we are
asking you to declare criminal.

It is known indeed, gentlemen, that Nazism is a contagious
disease, the ravages of which threaten to go beyond the
borders of the countries which it has definitely
contaminated. Thus, during the years 1934 to 1936, diverse
groups had been formed in France, which, following the
example of their German and Italian models, were organized
with the intention of substituting themselves for the legal
government in order to impose on the country what they
called "order," but which was in reality only disorder.

The French Republic in 1936 did what the Weimar Republic
ought to have done. The law of 10th January, 1936,
promulgated on 12th January in the Official Gazette, which I
submit to the Tribunal, and a translation of which was given
to the defence, decreed the dissolution of these groups and
enacted severe penalties against their members. With the
Tribunal's permission, I shall read the first two clauses of
this law:-

  "Article 1. By decree of the President of the Republic in
  session with the Cabinet, all associations or de facto
  groups shall be dissolved which
  (1) might provoke armed demonstrations in public
  (2) or which, with the exception of societies for
  military preparation sanctioned by the Government and
  societies for physical education and sport, might by
  their structure and their military organization have the
  character of a fighting group or a private militia;
  (3) or which might aim at jeopardizing the integrity of
  the national territory or at attempting to alter by force
  the republican form of government.
  Article II. Any person who has taken part in the
  maintenance or the reconstitution, direct or indirect, of
  the association or group as defined in Article I, will be
  punished by a term of six months to two years
  imprisonment and a fine not exceeding 5,000 francs."

The Tribunal will observe in the first place that by
imposing severe penalties on members of these associations
for the mere fact of "having taken part in the maintenance
or the reconstitution, direct or indirect, of the
association", the law

                                                   [Page 58]

of the 10th of January, 1936 has recognized and proclaimed
the criminal character of the association.

The Tribunal will observe in the second place, that neither
the Penal Code, nor the Law of 10th January, 1936 are
concerned with giving an exact definition of the
association, nor with the question as to whether the
incriminated association constitutes a moral entity, or a
legal entity having a legal existence.

Article 265 of the Penal Code includes in its condemnation
not only any association which means a legal entity, but
also condemns any agreement entered into with the object of
preparing or committing crimes. And the Law of 10th January
also mentions any association, or any de facto group. Thus
the law of l0th January, in the same way as Article 265 of
the Penal Code, speaking of agreements entered into or de
facto groups, does not seek to define legally criminal
organizations, and refers to the commonly accepted meaning
and implication of the words "Group" or "Organization" as we
today ask you to define them.

In the same way, after the liberation of our country, the
French Government concerned itself with pursuing and
punishing bad citizens who, even without offending against
an existing penal statute, had been guilty of definite
antinational activity; and issued the decree of 26th August,
1944, promulgated in the Official Gazette of 28th August.
This decree, after having given a very general definition of
the offence, defined its extent by enumerating the essential
facts which it comprises.

Thus, Article 1 of the decree of 26th August, 1944, states
that the crime of national indignity is constituted by the
fact of

  "having participated in a collaboration or organization
  of any kind, and more especially one of the following: Le
  Service d' Ordre Legionnaire (Legion of Order), La Milice
  (Militia), the Group called 'Collaboration,' La Phalange
  Afticaine (Aftican Phalanx), and so on."

The decree of 26th August, 1944, is much less concerned with
defining the punishable offence than with enumerating the
criminal organizations to which the fact of having adhered
voluntarily constitutes the crime of national indignity; and
whether these organizations or these groups are legally
constituted organizations or simply agreements entered into
as mentioned in Article 265 of the Penal Code, or merely de
facto groups, as stated in the Law of 1936, the decree does
not define; it enumerates the organizations which are
considered to be criminal. That is what we are asking you to
do with respect to the German Organizations mentioned in the

We are not asking you to condemn without having heard these
men who, on the contrary, will be able to put forward their
personal defences before a competent tribunal. We are asking
you only to declare criminal, as was allowed by the French
Laws of 1936 and 1944, defacto groups, without which it
would have been impossible for one man in a few years to
cause a great civilized nation to sink to the lowest depths
of barbarity; the more hateful, because it was scientific.
It is the shame of our time that the mastery of technique
should have placed new methods at the disposal of ancient
barbarity, so true is it that technical progress is of no
avail unless accompanied by moral progress.

Your sentence will signify for all nations in the world, and
for the good of Germany herself, that above human liberties
there exists a moral law which imposes itself upon nations
just as well as upon individuals, whether they be: isolated
or in groups, and that it is criminal to violate that moral

GENERAL RUDENKO: Your Honours, let me tell you, first of
all, that I accept the principle which has been expressed by
my respected colleagues Mr. justice Jackson and Sir David
Maxwell Fyfe; the principle with regard to the criminality
of the Organizations. It seems to me that to clarify this
question it is necessary to distinguish clearly two
interwoven problems: firstly, the problem of the material
law; just what organizations and what individual members or
groups of individual members can be considered criminal; and
secondly the problem of

                                                   [Page 59]

objective law; what evidence, what documents, what
witnesses, and in what order these can be presented to agree
to declare or to deny the criminality of this or that

First of all, as to the question of material law, it is
necessary to amplify that the question of the criminal
responsibility of an organization does not stand before the
Tribunal and never did: neither does the question of the
individual responsibility of the various members of an
organization, except those who are among the defendants
today, or the various groups of these organizations, stand
before the Tribunal. The Charter of the Tribunal provides as
follows: according to Article 9, the examination or the
trial of any individual member of this or that group or of
any organization is within the jurisdiction of the Tribunal.
It is within the jurisdiction of the Tribunal to declare
this or that organization criminal if one of the defendants
belongs to the organization.

Thus, we speak here about declaring an organization
criminal, and the Charter definitely provides the legal
consequences of declaring an organization criminal. As the
Tribunal declares this or that group, or organization
criminal, then the competent national authorities of the
signatory powers have a right to bring to trial before the
national military tribunals and occupational tribunals
members of organizations. In this case the criminal nature
of the organizations is considered clear, and cannot be
contradicted. (Article 10 of the Charter).

Consequently the Charter provides two legal results of
declaring an organization criminal: first, the right, but
not the obligation, of the various national tribunals to
bring to trial members of organizations which the Tribunal
declared criminal; and second, the obligation of the
national tribunals to consider an organization criminal if
such an organization was so declared by the International
Military Tribunal.

In such a manner, the result of declaring an organization
criminal by the International Military Tribunal does not
automatically mean that all members of the organization will
also be declared criminal by the national tribunals; neither
does it mean that without exception all members of such an
organization must be brought to trial. The question of
individual guilt and of individual responsibility of the
separate members of the criminal organizations is wholly,
and without exception, within the jurisdiction of the
national tribunal.

As has already been pointed out, in Article 10 of the
Charter the Tribunal limits the jurisdiction of the national
tribunal in just one way. The national tribunal cannot deny
or cannot argue the criminality of any organizations which
have already been declared criminal.

My colleague, Mr. Justice Jackson, has already tendered
valuable information about the legal codes of the respective
countries concerning the question of responsibility. Under
English-American law, French law and also the Soviet legal
Code, it is provided that membership in an organization
which has criminal aims makes an individual liable. There
are two legal decrees on the subject, in the U.S.S.R. Penal
Code, Articles 58 and 59 (3). These laws provide for the
responsibility of members of criminal organizations. They
are considered criminals, not only for committing crimes,
but also for belonging to an organization which is
considered criminal. The very fact of belonging to an
organization, the law states, makes a person liable to
prosecution. The law does not require formal proofs to
decide if a person is a member of a criminal organization. A
person can be a member of a criminal organization, even
though he does not formally belong to the organization. The
evidence is all the more exhaustive if a person is formally
put on the list of the membership of a criminal
organization. However, the formal membership of a criminal
organization is not the only basis of criminal
responsibility of a person. A member of the organization
should know what is the nature of the organization, what are
its objectives. It is immaterial whether an individual
member knew all directives, all acts of the organization or
whether he knew personally all the other members.

                                                   [Page 60]

One cannot help noting that on the basis of the general
principles of the law, especially in connection with the
practice of fascist Germany where a whole network of
criminal organizations functioned, established by the
usurpers of the supreme powers, the responsibility of
individual members of the organization does not necessarily
imply that they were aware of the penalties attaching to the
acts committed by the organization.

On the basis of the legal code, especially in fascist
Germany, where there existed a whole series of organizations
established by the usurpers of power, now considered
criminal, it is impossible to demand that every member be
acquainted with all the actions and all the members and all
the directives of the organization.

May I now pass on to the next problem. It appears to me that
there is a certain degree of complexity attached to the
problem of the criminal organizations. There is very
extensive correspondence by members of various
organizations, that has been submitted to the Tribunal on
the subject of these organizations. Such abundance of
discussion, comes from an incorrect interpretation of legal
proceedings if an organization is declared criminal. As long
as we know the fact that the question of the individual
responsibility of the individual members is fully within the
jurisdiction of the various national courts, the general
question of whether the organization is declared criminal or
not is much easier to follow.

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