dtufail/nuremberg-trials-corpus huggingface dataset:
obvious that it could not overlook these organized instruments and instigators of past crimes. In opening this case, I said that the United States does not seek to convict the whole German people of crime. But it is equally important that this trial shall not serve to absolve the whole German people except 22 men in the dock. The wrongs that have been done to the world by these defendants and their top confederates was not done by their will or by their strength alone. The success of their designs was made possible because great numbers of Germans organized themselves to become the fulcrum and the lever by which the power of these leaders was extended and magnified. If this trial fails to condemn these organized confederates for share of responsibility for this catastrophe, it will be construed as their exoneration. But the Charter was not concerned with retributive justice alone. It manifests a constructive policy influenced by exemplary and preventive considerations. The primary objective of requiring that the surrender be unconditional was to clear the way for reconstruction of German society on such a basis that it will not again threaten the peace of Europe and of the world. Temporary measures of the occupation authorities may, by necessity, have been more arbitrary and applied with less discrimination than befits a permanent policy. Under existing denazification policy, no member of the Nazi party or its formations may be employed in any position, other than ordinary labor, or in any business enterprise unless he is found to have been only a nominal Nazi. Persons in certain categories, whose standing in the community is one of prominence or influence, are required to meet this standard, and those who do not may be denied further participation in their businesses or professions. It is mandatory to remove or exclude from public office, and from positions of importance in quasi public and private enterprises, persons falling within approximately 90 specified categories deemed to consist of either active Nazis, Nazi supporters, or militarists. The property of such persons is blocked. It is recognized by the Control Council, as it was by the framers of the Charter, that a permanent, long-term program should be based
persons falling within approximately 90 specified categories deemed to consist of either active Nazis, Nazi supporters, or militarists. The property of such persons is blocked. It is recognized by the Control Council, as it was by the framers of the Charter, that a permanent, long-term program should be based on a more careful and more individual discrimination than was possible with sweeping temporary measures. There is a movement now within the Control Council for reconsideration of its whole denazification policy and procedure. The action of this Tribunal in declaring, or in failing to declare, the accused organizations criminal has a vital bearing on future occupation policy. It was the intent of the Charter to utilize the hearing processes of this Tribunal to identify and condemn those Nazi and militaristic forces that were so organized as to constitute a continuing menace to the long-term objectives for which our respective countries have spent the lives of their young men. It is in the light of this great purpose that we must examine the provisions of the Charter. 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
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 U.S., 414, 64 Sup. Ct. 660). The general issues are to be determined with finality in one trial before the International 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
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 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 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 activity. 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 of an organization to be 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." 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 relitigate 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
the Charter denies only one of the possible defenses of an accused: he may not relitigate 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 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
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. C. Criteria, Principles, and Precedents for Declaring Collective Criminality. 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 with a procedure easy to abuse and one 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 dragnet of the law, 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 the accumulation of power in private 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. It was the very complacency and tolerance as well as the impotence of the Weimar Republic towards the growing organization of Nazi power, which 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
towards the growing organization of Nazi power, which 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 Ku Klux Klan in the United States flourished at about the same time as the Nazi movement in Germany. It appealed to the same hates, practiced the same extra-legal coercions, and likewise terrorized by weird nighttime ceremonials. Like the Nazi Party it was composed of a core of fanatics, but enlisted support of some respectable persons who knew it was wrong, but thought it was winning. It eventually provoked a variety of legislative acts directed against such organizations. The Congress of the United States also has enacted legislation outlawing certain organizations. A recent example is the Act of June 28, 1940 (c. 439, Title I, Section 2, 54 Stat. 671, 18 USCA 10) which provides in part as follows: "(a) It shall be unlawful for any person ... "(3) to organize or help to organize any society, group, or assembly of persons who 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 offenses. An example is to be found in the Act of California (Statutes 1919, Chapter 188, p. 281) which, after defining "criminal syndicalism," provides: "Section 2. Any person who ... (4) organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to teach or aid and abet criminal syndicalism ... "Is guilty of a felony and punishable by imprisonment." 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
aid and abet criminal syndicalism ... "Is guilty of a felony and punishable by imprisonment." 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 265-268, French Penal Code, "Association de Malfaiteurs"; Garaud, Precis de Droit Criminel, 1934 Edition Sirey, p. 1518 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: 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 March 22, 1921 against paramilitary organizations. 3. The law of July 21, 1922 against organizations aimed at overthrowing the constitution of the Reich. Section 128 of the Criminal Code of 1871 is especially
and Section 129 was directed against organizations inimical to the State. 2. The law of March 22, 1921 against paramilitary organizations. 3. The law of July 21, 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