dtufail/nuremberg-trials-corpus huggingface dataset:
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): It also has been suggested that this is, or may be, the consequence of Article II, l(d) of Control Council Act Number 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 punishment without a right of hearing cannot be spelled out of this Charter and would be offensive to both its letter and its spirit. And I do not find in Control Council Act Number 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, nontechnical, 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 defenses of an accused; he may not relitigate 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that he acted under duress; he may prove that he was deceived or tricked into membership; he may show that he had withdrawn or he may prove that his name on the rolls is a case of mistaken identity.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.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): 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 facts. And he is chargeable not only with what he knew but with all of which he was reasonably put on notice. There are safeguards to assure that this program will be carried out in good faith. Prosecution under this declaration is discretionary. If there were purpose on the part 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 faithfully. The Control Council Act applies only to categories of membership declared criminal. This language 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 availed of to try any issue here as to subgroups 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 condition its judgment to apply only to intentional and voluntary membership. This does not supplant later trials by the declaration of this Tribunal but guides them.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): It certainly cannot be said that such a plan -- such 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 for 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 dragnet 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.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): 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 extralegal coercions, and likewise terrorized by the same sort of weird nighttime ceremonials. Like the Nazi Party it was composed of a core of fanatics, but it enlisted the support of respectabilities who knew it was wrong but thought it was winning. It eventually provoked a variety of legislative acts directed against such organizations as organizations. The Congress of the United States also has enacted legislation outlawing certain organizations. A recent example was on the 28th of June 1940, when 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 offenses. 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 Charter. One of the first is the British India Act Number 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 labor." And the history is that this was a successful act in suppressing violence.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): 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 Defense 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 more 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 are: 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 March 22, 1921, against paramilitary organizations. 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.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): 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 draw an act that would more definitely condemn the organizations with which we are dealing here than this German Criminal Code 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 dealing. Under the Empire various Polish national unions were the subject of criminal prosecutions. Under the Republic, in 1927 and 1928, judgments held criminal the entire Communist Party of Germany. In 1922 and 1928, judgments 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 judgment 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 judgment 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 the 30th of May 1924 judgment of the German courts was rendered that the whole Nazi Party was a criminal organization. Evidently there was a lack of courage to enforce that judgment, 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 judgment of illegality by the German courts themselves.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): The German courts, in dealing with criminal organizations, proceeded on the theory that all members ware 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: That 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, that 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, that 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 membership. Organizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies, and their criminality is judged by application of conspiracy principles.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): 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 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 people." 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." That, of course, is a statement of the ordinary law of conspiracy. 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 nontechnical 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 to be controlled by refinements of any local law.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): Now, except for procedural difficulties arising from their multitude, 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. These organizations did not pretend to be merely social or cultural groups; admittedly, the members were united for action. In the case of several of the Nazi organizations, the fact of confederation was evidenced by formal induction into membership, the taking of an oath, the wearing of a distinctive uniform, the submission to a discipline. That all members of each Nazi organization did combine under a common plan to achieve some end by combined efforts is abundantly established. The criteria for determining whether these ends were guilty ends are obviously those which would test the legality of any combination or conspiracy. Did it contemplate illegal methods or purpose illegal ends? If so, the liability of each member of one of these Nazi organizations for the acts of every other member is not essentially different from the liability for conspiracy enforced in the courts of the United States against business men who combine in violation of the anti-trust laws, or other defendants accused under narcotic drugs acts, sedition acts, or other Federal penal enactments. Among the principles every day enforced in courts of Great Britain and the United States in dealing with conspiracy are these sweeping principles: No formal meeting or agreement is necessary. It is sufficient, although one performs one part and other persons other parts, if there be concert of action and working together understandingly with a common design to accomplish a common purpose.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): Secondly, one may be liable even though he may not have known who his fellow conspirators were or just what part they were to take or what acts they committed, and though he did not take personal part in them or was absent when the criminal acts occurred. Third, there may be liability for acts of fellow conspirators although the particular acts were not intended or anticipated, if they were done in execution of the common plan. One in effect makes a fellow conspirator his agent with blanket authority to accomplish the ends of the conspiracy. Fourth, it is not necessary to liability that one be a member of a conspiracy at the same time as other actors, or at the time of the criminal acts. When one becomes a party to a conspiracy, he adopts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow conspirators. Now, those are sweeping principles, but no society has been able to do without these defenses against the accumulation of power through aggregations of individuals. Members of criminal organizations or conspiracies who personally commit crimes, of course, are individually punishable for those crimes exactly as are those who commit the same offenses without organizational backing. The very essence 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 participants, considered by themselves. The very innocent act of mailing a letter is enough to tie one into a conspiracy if the purpose of the letter is to advance a criminal plan. And we have multitudinous examples in the jurisprudence of the United States where the mailing of a letter brought one not only within the orbit of the definition of crime, but within Federal jurisdiction.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): There are countless examples of this doctrine that innocent acts in the performance of a common purpose render one liable for the criminal acts of others performed to that same end. This 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 discipline and chain of command, cannot be less than that vicarious liability which follows from informal co-operation with a nebulous group, as is sufficient in case of a conspiracy. This meets the suggestions that the Prosecution is required to prove every member, or every part, fraction, or division of the membership to be guilty of criminal acts. That suggestion ignores the conspiratorial nature of the charge against organizations. 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 or as to each subsection 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 that "one should be convicted for his activities and not for his membership." But this ignores the fact that membership in Nazi bodies was 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 the picture of Hjalmar Schacht sitting in the front row of the Nazi Party Congress, which you have seen, wearing the insignia of the Nazi Party, was included in the propaganda film of the Nazi Party merely for artistic effect? The 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.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): There may be instances in which membership did not aid and abet 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 organizational 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 workable one 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, of course, 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 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. This 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 designed to perform acts denounced as crimes in Article 6 of the Charter. No other act would authorize conviction of an individual and no other act would authorize conviction of the organization in connection with the conviction of the individual. 4.