The Nizkor Project: Remembering the Holocaust (Shoah)

Nazi Conspiracy & Aggression
Volume II Chapter XV
Criminality of Groups and Organizations
The Law Under Which the Nazi Organizations
Are Accused of Being Criminal
(Part 2 of 7)

B. The Procedure for Condemning Organizations.

It was obvious that the conventional litigation procedures could not, without some modification, be adapted to this task. No system of jurisprudence has yet evolved any satisfactory technique for handling a great multiplicity of common charges against a multitude of accused persons. The number of individual defendants that fairly can be tried in a single proceeding probably does not greatly exceed the number now in your dock. Moreover, the number of separate trials in which the same voluminous evidence as to common plan must be repeated is very limited as a practical matter. Yet adversary hearing procedures are the best assurance the law has evolved that decisions will be well considered and just. The task of the framers of the Charter was to find a way to overcome these obstacles to practicable and early decision without sacrificing the fairness implicit in hearings. The solution prescribed by the Charter is certainly not faultless, but not one of its critics has ever proposed an alternative that would not either deprive the individual of any hearing or contemplate such a multitude of long trials as to be impracticable. In any case, it is the plan adopted by our respective governments and our duty here is to make it work.

The plan which was adopted in the Charter essentially is a severance of the general issues which would be common to all individual trials from the particular issues which would differ in each trial. The plan is comparable to that employed in certain wartime legislation of the United States (Yakus v. United States, 321 US, 414, 64 Sup. Ct. 660). The general issues are to be determined with finality in one trial before the International

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Tribunal. In this trial, every accused organization must be defended by counsel and must be represented by at least one leading member, and other individual members may apply to be heard. Their applications may be granted if the Tribunal thinks justice requires it. The only issue in this trial concerns the collective criminality of the organization or group. It is to be adjudicated by what amounts to be a declaratory judgment. It does not decree any punishment, either against the organization or against the individual members.

The only specification as to the effect of this Tribunal's declaration that an organization is criminal, is contained in Article 10 of the Charter, which provides:

"In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned."

Unquestionably, it would be competent for the Charter to have declared flatly that membership in any of these named organizations is criminal and should be punished accordingly. If there had been such an enactment, it would not have been open to an individual who was being tried for membership in the organization to contend that the organization was not in fact criminal. The framers of the Charter, at a time before the evidence adduced here was available, did not care to find organizations criminal by fiat. They left that issue to determination after relevant facts were developed by adversary proceedings. Plainly, the individual member is better off because of the procedure of the Charter, which leaves that finding of criminality to this body after hearings at which the organization must, and the individual may, be represented.

The groups and organizations named in the Indictment are not "on trial" in the conventional sense of that term. They are more nearly under investigation as they might be before a grand jury in Anglo-American practice. Article 9 recognizes a distinction between the declaration of a group or organization as criminal and "the trial of any individual member thereof." The power of the Tribunal to try is confined to "persons," and the Charter does not expand that term by definition, as statutes sometimes do, to include other than natural persons. The groups or organizations named in the Indictment were not as entities served with process. The Tribunal is not empowered to impose

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any sentence upon them as entities, nor to convict any person because of membership.

It is to be observed that the Charter does not require subsequent proceedings against anyone. It provides only that the competent national authorities "shall have the right to bring individuals to trial for membership therein."

The Charter is silent as to the form these trials should take. It was not deemed wise, on the information available when the Charter was drawn up, 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 is necessary to confer jurisdiction on local courts, to define 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 member will be rounded up and automatically punished as a result of a declaration of an organization to be criminal. It also has been suggested that this is, or may be, the consequence of Article II, (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." A purpose to inflict punishments without a right of hearing cannot be spelled out of the 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 will require numerous hearings. But they will involve only narrow issues; many accused will have no answers to charges if they are clearly stated, and the proceedings should be expeditious and nontechnical.

But 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 a 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.

As to trials of the individual members, the Charter denies only one of the possible defenses of an accused: he may not re-litigate the question whether the organization itself was a criminal one. Nothing precludes him from denying that his participation was voluntary and proving he acted under duress; he may prove that he was deceived or tricked into membership; he may show that

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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 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 fact. And he is chargeable not only with what he knew but with all of which he reasonably was put on notice.

There are safeguards to assure that this program will be carried out in good faith. Prosecution under the declaration is discretionary, and if there were purpose to punish without trial, it would have been already done without waiting for the declaration. We think the Tribunal will presume that signatory powers which have voluntarily submitted to this process will carry it out faithfully.

The Control Council Act applies only to "categories of membership declared criminal." This language recognizes a power in this Tribunal to limit the effect of its declaration. I do not think, for reasons I will later state, that this should be construed or availed of so as to try here any issues as to sub-groups or sections or individuals, which can be tried later. It should, I think, be construed to mean, not those limitations which must be defined by detailed evidence, but limitations of principle such as those I have outlined as already implied. It does not require this Tribunal to delve into evidence to condition its judgment, if it sees fit, to apply only to intentional, voluntary, and knowing membership. It does not supplant later trials but guides them.

It cannot be said that a plan, such as we have here, for the severance of general issues common to many cases from particular issues applicable only to individual defendants and for the litigation of each type of issue in separate Tribunals specially adapted to their different tasks, is lacking in reasonableness or fair play. And while it presents unusual procedural difficulties, I do not think it presents any insurmountable ones.

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