dtufail/nuremberg-trials-corpus huggingface dataset:
M. CHAMPETIER DE RIBES: 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 10 January also mentions any association, or any de facto group. Thus the law of 10 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 criminal organizations by law 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 26 August 1944, promulgated in the Official Gazette of 28 August. This decree, after having given a very general definition of the offense, defined its extent by enumerating the essential facts which it comprises. Thus, Article I of the decree of 26 August 1944 states that the crime of national unworthiness is constituted by the fact of having participated in a collaborationist 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 Africaine (African Phalanx), and so on. The decree of 26 August 1944 is much less concerned with defining the punishable offense than with enumerating the criminal organizations to which the fact of having adhered voluntarily constitutes the crime of national unworthiness; 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.
M. CHAMPETIER DE RIBES: That is what we are asking you to do with respect to the German organizations mentioned in the Indictment. We are not asking you to condemn without having heard these men who, on the contrary, will be able to put forward their personal means of defense before a competent tribunal. We are asking you only to declare criminal, as was allowed by the French laws of 1936 and 1944, de facto 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 law.
GEN. RUDENKO: Your Honors, let me tell you first of all that I accept the principle which has been expressed by my respected colleagues 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: First, the problem of the material law, just what organizations and what individual members or groups of individual members can be considered criminal; and also the problem of 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 organization. First of all, as to the question of material law, it is necessary to emphasize 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.
GEN. RUDENKO: (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 or 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, 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 U.S.S.R. penal code, Articles 58-11 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.
GEN. RUDENKO: 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 other members. 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 powers 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.
GEN. RUDENKO: 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. According to the Charter, on the question of declaring an organization criminal the Tribunal will decide in connection with individual defendants. Article 9 states that in examining the materials with regard to each defendant the Tribunal can have the right to declare -- and so on. Therefore, the conclusion is that the facts which decide the solution of the question as to whether an organization is or is not criminal, consist of whether there is before us today among the defendants a representative of this or that organization. It is well known in the present Trial that all the organizations which the Prosecution want to be declared criminal are represented on the bench of the defendants. For that reason alone there has passed through the hands of the Tribunal a great deal of material and evidence relating to the criminal nature of the organizations which these defendants have represented that can be used by the Tribunal to draw a conclusion as to the criminal character of various organizations. Under such conditions the necessity of calling special witnesses to testify about this or that organization can take place only as a source of supplementary and even eventual evidence. And even then the Tribunal has stated in Article 9 that it is up to the Tribunal to acquiesce in or to refuse the calling of witnesses or the introduction of supplementary evidence. It is impossible to deny the possibility or the necessity of supplementary evidence with regard to any criminal organization. The Charter of the Tribunal states very definitely that after the indictment has been made, the Tribunal will do that which it considers necessary with regard to the Prosecution's request for declaring this or that organization criminal.
GEN. RUDENKO: Any member of an organization has a right to request that the Tribunal permit him to be heard on whether the organization was criminal. However, this was introduced into the Charter of the Tribunal for the sake of justice. It now appears that this article is used for other purposes. If what has been provided for in Article 9 extends widely enough and if it already provides for calling witnesses with regard to the criminality of this or that organization, in substance the evidence submitted by the prosecutors of the four countries has already given enough exhaustive reasons for the Tribunal to recognize the organizations indicated in the Indictment as criminal. At the same time it seems expedient that the Tribunal should publish Article 10 of the Charter explaining that to declare an organization criminal does not necessarily lead to an automatic bringing to trial of all members of that organization without exception. It means that all questions about bringing any member to trial and about the responsibility of individual members will be decided by the national tribunals. This is all I wanted to state, in addition to what has been stated by my colleagues.
THE PRESIDENT: Have the defendants' counsel arranged among themselves in what order they wish to be heard?
DR. KUBUSCHOK: As counsel for the Reichsregierung, which has first place in the Indictment as a "criminal organization," I have, according to the decision of the Court, the duty of presenting my opinion in regard to the presentation of evidence. Since, in so doing, I have to discuss general points of view which affect in the same way all the six organizations under Indictment, it is probable that my statements will in the main constitute the opinion of other defendants' counsel. However, they reserve for themselves the right to express particular and supplementary opinion. The Defense understand the decision of the Court of 14 January 1946 to mean that at this stage of the procedure the Defense should not produce detailed arguments against the Indictment as it has been lodged by the Prosecution and as it has been explained today, also against the concept of criminal organizations in the sense of the Charter or against other hypotheses of a declaration of criminality, but should only express their opinion on the question of what evidence is relevant and how the evidence shall be presented. Therefore, I shall speak about the basic questions only insofar as this seems necessary today in this particular connection. First of all, I shall speak about the contents and the effect of the requested verdict. The six organizations under Indictment are, according to the request of the Prosecution, to be declared criminal organizations in their entirety. A request of that kind and the proceedings pertaining to it would represent something unprecedented in the jurisprudence of all states. As we know, this request is not uninfluenced by the fact that, contrary to other nations, in England and even more so in the United States, even companies and corporations as such can be prosecuted in some cases for reasons of expediency. This is a legal development called for by the dominant position which companies and corporations have acquired, above all, in economic life. This position made their punishment seem desirable in certain cases.
DR. KUBUSCHOK: They were affected by this punishment, however, only to the extent to which they could be affected in their economic sphere, that is to say, by the imposition of fines. This also concerns only definite offenses, mostly in the field of administrative law. The American Chief Prosecutor and the other chief prosecutors have cited a large number of precedents, even from German jurisprudence, in which organizations are said to have been declared criminal. In these precedents -- and that is the decisive factor -- the defendants convicted as criminals were always individual persons, never organizations as such. But a criminal procedure such as this one would have to deal most seriously with the organizations as such, as well as with all the members who are not indicted personally, that is -- I now refer to Law Number 10 of the Allied Control Council -- would have to pronounce the most severe sentence, the sentence of death; such a procedure has never before in the history of jurisprudence been either discussed or applied. The organizations under Indictment are organizations which differ greatly in their structure. I do not have to discuss further today whether they always represented an organically constructed unit. For this Trial the essential thing is that the organizations under Indictment have been dissolved by a law of the Military Government, and therefore, no longer exist. What still exists are only the individual former members who, therefore, in reality are the actual defendants and have simply been brought together under the name of the former organization as a collective designation. But independent of this question of the nonexistence of the organizations, it can be seen from the outcome of the procedure that this is indeed a collective procedure against the individual members of the organization, and this for the following reasons: First, to declare an organization criminal means the outlawing and branding as criminal, not only of the organization as such, but, above all, of each individual member.
DR. KUBUSCHOK: Such a declaration, therefore, means a final sentencing of each individual member to a general loss of honor. This effect of the outlawing and branding is unavoidable and ineradicable, especially if that verdict is spoken by so important a court as the International Military Tribunal before the forum of the world public. The effect of the outlawing would apply to each member of the organization and would cling to him, regardless of whether the subsequent proceedings, as provided for in Article 10 of the Charter, were carried out against the individual members or not. Second, in respect to legal procedure, the verdict that has been asked for provides the possibility of a criminal penalty for each individual member of the organization. In the subsequent proceedings, according to Article 10 of the Charter, the criminal character of the organization will be considered conclusively determined. In execution of this, Law Number 10 of the Allied Control Council, of 20 December 1945, has in the meantime been issued. According to this law the mere fact of having been a member of an organization which has been declared criminal by the International Military Tribunal renders liable to punishment as a criminal each individual member. Penalties ranging the highest fines to compulsory labor for life and the death penalty are provided. The proceedings according to Law Number 10 are concerned only with determining membership and bases the punishment on this. In these proceedings only grounds for personal exoneration, such as irresponsibility, error, or coercion can be discussed. But these concern only the membership as such and will apply only in a very few cases. Whatever concerns the character of the organization, the criminal aims and actions of members of the organization, especially the individual member's knowledge of these -- all these are matters which will not be discussed in the proceedings any more according to Law Number 10. In the proceedings against the organizations a binding declaration has been made.
DR. KUBUSCHOK: Therefore, the proceedings against the organizations anticipate the biggest and most important part of the proceedings against every individual member, while the subsequent proceedings, according to Law Number 10, to all intents and purposes only draw conclusions. In connection with the question of the Effect of the verdict, the numerical aspect should also be touched upon. The SA at the beginning of the war in 1939 had about 2.5 million active members, to which should be added, let us say, 1 to 2 million, representing those who during the preceding 18 years, either quit the SA or had to leave because of their military service; therefore, in all, up to 4.5 million. As far as the SS is concerned, my colleagues have not yet been able to give a final estimate. It will have to be considered that the Waffen-SS alone had an active membership of several hundred thousand men at any given time. If we take into account the losses due to the war, which were very considerable but which to a certain extent were assessed in the proceedings, we find in the case of the SS as well that the figure runs into millions. The Leadership Corps always had, after 1933, a fixed membership of about 600,000 to 700,000 members. Changes in the official personnel were very frequent. We have to take into account that the membership changed at least twice during the entire period, so that here also the complete figure will be about 2 million. The entire figure covered by these proceedings is therefore very large. The reduction which the Tribunal has today thought fit to make would not reduce that number to any very large extent. Basically, it will certainly make no difference whether this very large number which I have just mentioned will include a half, a third, or a quarter of the adult male population of Germany. If we consider the war losses among these age groups, we can say with great certainty that the Indictment will actually include a very considerable part of the adult male German population.
DR. KUBUSCHOK: I shall speak now about the concept "criminal organization." The necessary condition for an organization's being declared criminal is the criminal character, as appears in Article 9, Paragraph 2, of the Charter. The Charter does not interpret either the concept "criminal character" or that of "criminal organization." If we ask by means of which legal system this gap in the Charter should be filled, then, according to the general principle of lea loci, German law first of all has to be considered. But that is of no avail, because these two concepts, according to every legal code in the world, also represent a terra nova in criminal law. Here, too, the Defense reserve for themselves the right to express their considered opinion at the time of the final pleadings. In any case, we are of the opinion that because of its already-mentioned, far-reaching consequences the declaration asked for can be made justly and fairly within the framework of the validity of the Charter only if: (1) the original purpose -- that is, the constitution or the Charter of the organization -- was directed to the commission of crimes in the sense of Article 6 of the Charter, and if this purpose was known to all members; or (2) in case the original purpose of the organization was not criminal, if all members during a certain period of time knowingly participated in the planning and perpetration of crimes in the sense of Article 6 of the Charter. Here, also, it is necessary that the development should have been such that these crimes represent typical actions of the organization, for only then can we speak of a criminal nature as applicable to an organization as well as to an individual human being.
DR. KUBUSCHOK: According to this interpretation, the concept "criminal organization" in the sense of Articles 9 to 11 of the Charter is in large part identical with the concept "criminal conspiracy" which plays an important role in the former German and Italian criminal law; also with the concept "conspiracy," with or without action for its execution, in English or American common law; also with the concept "Mordkomplott" (conspiracy for the purpose of committing murder) in the sense of Paragraph 49-b of the German Penal Code; and, finally, with the concept of a "Common Plan or Conspiracy" in the sense of Article 6 of the Charter, here also with or without action for its execution. All these penal codes have in common that judgment can be delivered only against those persons who have taken part in the criminal organization knowing its purpose. In my opinion, negligence cannot be sufficient when passing judgment subjectively because of the general principle that in cases of serious crimes -- and in this case the penalty may be death -- there must always be full proof, and that negligence cannot be sufficient. Therefore, as a matter of principle, it has to be required in these present proceedings that an organization under Indictment can be declared criminal only if it has been ascertained that: Firstly, the aims of the organization were criminal in the sense of Article 6 of the Charter, and, furthermore, that all members at least knew of these criminal aims. This is also necessary for the reason that, as has just been said, this Trial before the International Military Tribunal represents the essential main part of the criminal proceedings which will ascertain the guilt of each individual member of the organizations. Justice does not permit that those members who did not possess the aforementioned knowledge and who are therefore innocent be included in a verdict. And this will not lead to that consequence mentioned by Justice Jackson, namely, that a rejection of the verdict would mean a triumph for those who are guilty.