Under American law, There are two legal decrees on the subject.
These laws provide for the guilt of members of criminal Organizations.
They are considered an Organization which is considered criminal.
The very fact of to prosecution.
If a person is proved to be a member of a criminal not cover the guilt of the person.
Naturally, the Court must know just what was the nature of the Organization; what were the objectives of the Organization.
It is immaterial whether an individual member May I now move on 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 correspondaence, much material, that has been submitted to the Tribunal on the subject of these organizations. Such abundance of discussion, it appears to me, comes from an incorrect interpretation attached to the term "criminal organization". 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 of the Tribunal, the general question of whether the organization is declared criminal or not is much easier to follow. 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 - - and so follows the rest. 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 whom 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. testify about this or that organization can take place only if supplementary evidence is necessary. 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 or the introduction of supplementary evidence. It is impossible to deny the the necessity or the desirability of supplementary evidence with regard to any organization. The Charter of the Tribuanl 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. Any member of an organization has a right to request that the Tribuanl 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 the 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, any of the evidence presented by the Prosecutors of the four countries has already given enough evidence for the Tribunal to decide whether an organization is criminal, and supplementary evidence does not appear necessary.
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. by my colleagues.
THE PRESIDENT: Have the defendants' counsel arranged among themselves in what order they wish to be heard?
DR. KUBUSCHOK (Counsel for the Reichsregierung): first place as a "criminal organization", I have, according to the decision of the Court, the duty of giving my opinion regarding the procedure of presenting evidence. Since, in so doing, I have to mention general points of view which affect in the same way all the six organizations under indictment, it is probable that my statements will be very similar to the opinions of other defendants' counsel. However, they also would like to utter their personal opinions. January 1946, to mean that at this stage of the procedure the Defense should not in all detail take a position as to the Prosecutions' statements, such as they have been made in the form of accusations today and mentioned in detail; neither to the term of criminal organizations in the sense of the Charter, or other prerogatives of a decision as a criminal organization; but only to the question, which matters of proof are relevant and how evidence shall be presented. Therefore, I shall only speak about principal questions inasmuch as this seems necessary today.
First, I would like to speak about the content and the consequence of a verdict as demanded.
The six organizations under indictment are supposed to be, according to the Prosecution, declared in their entirety as criminal organizations. A procedure of thatkind would present, in the jurisprudence of all states, an absolute novum. to other nations, in England, and even more so in the United States, for prosecutive reasons in some cases also companies and corporations as such can be a case before a court. This is a new development of the law on the basis of the dominant position which companies and corporations have acquired in economic life.
This position made their punishment fitting in certain cases. By such punishment they would, however, only be affected to the extent in which they could be affected in their economic sphere, that is to say, by imposition of fines. Of course that was concerned only with very definite crimes, mostly of an administrative nature. have mentioned a number of judgments, also from German penal law, in which organizations have been considered or declared criminal. In these verdicts, however -- and that is the decisive factor -- there were always individuals only fudged as defendants, never organizations as such. Never were organizations under their name considered criminal; declared criminal. the organizations as such, as well as all the members who are personally not indicted -- and, I now refer to Law Number 10 of the allied Control Council -- and which can give them the highest sentence, the sentence of death, has never yet in the history of jurisprudence been discussed, debated or used. heterogenous forms and structure. I do not have to point out today whether they were always a unit, a constructed unit. For this trial it is only essential that the organizations under indictment have been dissolved by law of the Military Government. Therefore, at present they are non-existent. What still exists are only the individual former members, who, therefore, in reality are the defendants of this trial, and only under the name of the former organization as a collective designation can he included.
existence of the organizations, it can be seen from the consequences of the procedure that this is indeed a procedure in toto against the individual members of the organization, and this for the following reasons: branding as criminal, not only of the organization as such, but, first of all, of each individual member. Such a declaration, therefore, means a final condemnation of each individual member to the punishment of less of honor. This consequence of banishment and branding is unavoidable and ineradicable, especially if that verdict has been made by a court with the rank of importance of the International Military Tribunal and before the forum of the entire world. The consequence of such an ostracism would exist for each member of the organization and would adhere to them, regardless of whether the subsequent proceedings as provided for in Article 10 of the Charter would be carried out against this individual member or not. for provides the possibility of a criminal penalty for each individual member of the Organization. In the subsequent procedure, according to Article 10 of the Charter, it is taken for granted that the criminal character of the organization has been definitely defined. the Allied Control Council has been issued on the 20th of December 1945. This makes punishable the mere membership in an organization which has been declared by The International Military Tribunal a criminal one. That alone is declared a punishable crime. The highest penalties are provided, up to life sentence or death penalty. the fact of membership upon which the punishment depends. In this procedure only grounds for personal exoneration are important, such as legal irresponsibility, error or coercion. These only concern the membership as such and will came up only in a very few cases.
the criminal aims and actions of members of the organization, especially the individual member's knowledge of these, all these are matters that are no more debatable, according to Law Number 10. The decision has already been reached in the trial against the organizations. Therefore, the procedure against the organizations represents the biggest and most important part of the trial against every individual member thereof, while the subsequent trial, according to Law Number 10, only draws the conclusion. should be touched upon.
The SA, at the beginning of the war in 1939, had about 2 1/2 million active members, to which should be added approximately one to two million who during the previous 18 years, eitherleft the SA or had to leave on account of their military service, all together up to 4 1/2 million, As regarding the SS, it has not yet been possible for my colleagues to give a close estimate.
It will have to be considered that the Waffen SS alone had an active membership of several hundred thousand men. If we consider the war losses, which were very considerable among the fighting units but which also to a certain extent are included, we also find with regard to the SS that the figure goes into the millions. 600,000 to 700,000 members. The changes in the official personnel were very strong. On the average, we have to take into account two complete turn-overs during the entire time so that here, also, the complete figure will be about 2 million.
The entire figure included in this procedure is a very large one. The limitation which has been put before the Tribunal today would of course reduce that number, but not to a large extent. As a matter of principle, it will certainly make no difference whether of this very large number which I have just mentioned, one-half, a third or a quarter of the adult male population of Germany is included. If we consider the losses during the war of this generation, we can say with great certainty that the Prosecution would include a very considerable part of the male adult German population.
I shall speak now about the term of criminal organization. Before we declare an organization as criminal we have to consider the criminal character as seen from Article 9, Paragraph 2, of the Charter. The Charter does not interpret either the term of criminal character nor the term of a criminal organization. be corrected, we have to go by the general principle of the local law, which, first of all, of course would be German law. But that doesn't bring us any further, because here also in both terms, and according to every legal code of the world, we are confronted with a terra nova in a legal sense. The Defense also here reserves the right for a detailed opinion later on for the final presentation. on account of the grave and far-reaching consequences which I have mentioned before, the statement declaring these organizations criminal can only be made if, first, either the original purpose--that is, the constitution, the charter of the organization--was designed for the commission of crimes in the sense of Article 6 of the Charter, and if this original purpose was known to all members.
Or, (b), if the original purpose of the organization was not criminal, if all members during a certain time have participated in the planning and application of crimes in the sense of Article 6 of the Charter, and knowingly participated. Here, also, it is essential that this development has led to the fact that these crimes were typical actions of the organization, because then only can we speak of an organization or of an individual human being of a criminal character. organization, following the sense of Articles 9 to 11 of the Charter, primarily as the term of a criminal conspiracy, Komplott, which in the former German and Italian legal code plays an important role; furthermore, with the term of conspiracy, and that is with or without execution, in English or American common law. Further, the term of Mordkomplott, conspiracy for the purpose of committing murder, in the sense of Paragraph 49-b of the present Reich Penal Code. And, finally, with the term of a common plan or conspiracy in the sense of Article 6 of the Charter, here also with or without action of executing it. these persons who have taken part in the criminal organization knowing its purposes.
In my opinion, no negligence can be sufficient in judging the crime; following the general principle that in cases of severe punishment, here threatened as for as capital punishment, that there must always be full criminal evidence, negligence would not be sufficient. Therefore, as a matter of principle, it has to be demanded for this Tribunal that an organization under indictment can only be declared a criminal one if it has been ascertained that: Article 6 of the Charter. And, furthermore, that all members at least knew about these criminal aims. This is also essential because, as it has been said before, this trial before the International Military Tribunal presents already the main part of the procedure which will ascertain the guilt of each individual member of the organizations. who did not have the knowledge of which I spoke, and are therefore subjectively free of guilt.
Also, the consequences of which Justice Jackson has spoken will be excluded, that in case they would not be convicted it would be a triumph for these who are guilty.
With him, I am of the opinion that the guilty ones, regardless of their number, should be brought to punishment. not lead to a solution where, aside from the guilty ones, also a large number of innocent ones would be punished.
Therefore, to come to the main question, what is relevant. The relevancy and admissibility of proof depends on a definition of the criminal organization and of its criminal character, and from my definition I contend that the following points are relevant:
(a) That the organizations in question, according to their charter or statute, did not have any criminal aims or purposes, and no criminal aims in the sense of Article 6 of the Charter.
(b) That within the organization, or in connection with it, crimes in the sense of Article 6 had not, or at least had not continuously been committed during a certain length of time.
(c) That a certain number of members had no knowledge of any possible criminal constitution or criminal purpose or the continuous commission of crimes, according to Article 6, and that they did not agree with these facts.
(d) That a certain number of members or certain groups, independent groups, joined those organizations under compulsion or illusion or by orders from higher authorities.
(e) That a certain number of members; without their own fault, by honorary degree of honorary member, became members of these organizations. we are confronted with a terra nova, and since I believe that in the further taking up of matters of proof we will receive much inspiration, it therefore fallows that the Tribunal cannot at this stage of the procedure make a final definition; and I ask to admit the evidence to the furthest extent.. presented and how hearings of the membership, according to Article 9, Paragraph 2, of the Charter, can be made possible. defendant certain rights before the court; but the most important principles are the principle of a direct, oral testimony, and the right for counsel and legal hearing.
Since, according to my statements, the real defendants are the members of the organizations, these rights should be accorded to each individual member of the organizations. In spite of this point of view, which will still be discussed in detail in our final presentation, and in reserving all possible rights, the Defense does not overlook the fact that this is practically impossible within the framework of this procedure.
Its solution must be found, since the Prosecution has raised the accusation against the organizations, on the basis of the Charter and in the present form. This leads to the necessity to conduct the procedure wherein the aim of all people concerned can only be to find a best possible sulution on a declaration to come as close as possible in general and in considering the point of view of all individuals. the Prosecution, to help for a fair decision by the Tribunal. precludes by tremendous difficulties coming to a sensible, reasonable solution of this problem, there must still be sufficient grounds for judgment as well as for the aims of the organizations, the actions and the subjective point of view of individual members of the organization. to come to some decision for all of them. We do not ignore the great difficulties in coming to a just decision, given the use of a typical phenomenon as basis for judgment. It would be quite impossible to try to bring a lot of individual witnesses before the Court in order to provide a clear picture about the typical case. The only way, in our opinion, in which it is possible to bring individual testimony, is to separate it locally and in matter of time from this Tribunal. One means to achieve this can be found in the investigation of individual members We believe that the investigation of individual cases could be taken care of in a sure form in such a way that in each camp one or more speakers should to this work, that is to say, of course, under the supervision and with the assistance of the defendant's counsel. That then these speakers as witnesses could present to the Tribunal a picture of the actions with the subjective point of view of Individual members. picture, and that would be that these speakers should make affidavits about the main points which have been specified by the prosecution; that they should get affidavits from inmates of the camps.
of these affidavits, individual inmates of the camps had taken part in the criminal actions mentioned in the Prosecution's case, or had known anything about it. get a true picture. In order to get a true picture, one will have to take the suspicion away from the individual inmates, but that they could present material in their own favor, that they could present material which would serve to prosecute them. presented to the Court as evidence; that the Prosecution should make a statement that this material will not be used for personal indictment. With this statement no immunity would be expressed for individual members, but the individual inmates of the camp would be assured that the statement he has made under oath would not be an accusation against himself in a future proceeding. possibility, without using these affidavits, to get information based on the testimony of these speakers, who could make statements about the percentage of the people who took part in the criminal activities and those who didn't,
THE PRESIDENT: Since you haven't finished, I think we had better adjourn for ten minutes.
( a recess was taken.)
DR. KUBUSCHOK: Before the recess I pointed out a suggestion that would make it easier to recognize the action of those who would come into consideration in this trial. The hearing of this evidence would have to be extended to a sufficient number of camps in all the zones of occupation. From the results of the hearing of this evidence, there could be drawn from, the typical phenomena the conclusion regarding the criminal activity and attitude of the individual member of the organization, or the opposite, and at the same time, finally, a conclusion regarding the presence or absence of the criminal character of the organization. that we have found a way of proving the relevant questions, including all positive and negative elements.
which is particularly true of the SA, there will come into question the hearing of all members of the organization who are not in custody. Here, too, a way would probably be found which would then both make possible and make more easy the execution of the tasks of the Tribunal.
DR. SERVATIUS: I appear in behalf of the Leadership Corps. now before the Court. It is not possible for me to take an attitude toward the profound and well presented case that Justice Jackson has just finished. I should like to simply say a few words on behalf of a number of my colleagues and then we should like to take our definitive position toward the presentation of Justice Jackson. Perhaps the Tribunal will give us the opportunity to do this later. sense, in order to fulfill my duty of presenting the Defense's attitude toward these questions. of the proofs should be presented in the main trial here before this Tribunal? The answer is that those proofs are relevant at all times that assist in the demonstration of criminality. When we examine the concept, "criminality," it is seen that there is no factual situation in criminal law, nor can there be one, for it is not here a question of determining facts but of a world judgment, whether an act is criminal in the same way that it is an evaluation, whether the act is good or bad. Consequently, the Charter does not oblige the Tribunal to pass judgment and declare such-and-such to be criminal. It simply states that the Tribunal may pass such a verdict, but not that it must. which is basically different from the activity of a judge. A judge is obliged when certain facts are presented to his attention to pass judgment, but this Tribunal is to determine the culpability of a set of facts on the basis of which a court will later deliver judgment. Such a task is the job of a legislator and not of a judge.
The Tribunal here fulfills this task in the capacity of a legislature, determines what is criminal and sets a precedent. In this way the Tribunal creates a precedent for the judges in the individual trials that will follow. The same precedent which will be given to the judge is the basis for his judgnent. In this way the forms of evidence are reversed which Judge Jackson referred to and I am prevented from making the objection that the activity of the Tribunl is here that of a legislature. It can also be seen that without the intervention of the Tribunal the Signatory Powers could have determined without further ado that all members of the organization should be put on trial for their membership in the organization.
Law No. 10 of the Allied Control Aouncil that was often mentioned today corroborates this interpretation, for this is the basis for the law that is expected of this tribunal. The examples that have here been presented by Justice Jackson to substantiate the criminal nature of the organization show again and pain and again that it is a question of laws and not of judgements. considerations of practicality are most important. Justice Jackson asked in a previous presentation that he might proceed with out further ado with the members of the organizations. basis. It consequently follows that the members of the organizations are punishable, and "punishable" is equivalent to "criminal".
( A short interruption.)
THE PRESIDENT: Yes, you may continue.
DR. SERVATIUS: In order to determine the fact, the Tribunal as legislature must collect the material to be used. The judge can, on the basis of the indication given to him, easily determine what is relevant to the proof, of what must be proved, and therefore what he can admit as proof. for difficulty. The legislator behaves differently from the judge. He contemplates the phenomena and signs, all that are relevant, that are important, for the content of his law. In this matter he must have a picture of the entire problem and must take into consideration both the good and bad side of the matter.
If the legislator wishes to achieve this, he must examine whether only guilty people will be affected by his laws. He must consequently also investigate the objections that any person affected by his law could make. The innocent person is protected in this way, that is the individual case the guilt of the individual must be proved unless the legislator actually intends imprisoning the person without proof. who did the deed wished death or not. If the legislator does not went to permit such an objection, then he must himself examine the material that loads to such an extraordinary measure.
The material to be examined depends therein from the content of the law that is to be passed.
Sofar as the individual trials that are to come later, where all the objections remain open, the Tribunal does not have to concern itself with at. rights guaranteed in the individual trial later, and whether their right will be guaranteed. It is absolutely necessary to the Tribunal to present everything which the perpetrator later in an individual trial would not have an opportunity to concern itself. determined in law No. 10 that every member can be punished, and the punishment itself determined of that we have heard in previous presentations. It appears as if the Tribunal can simply pass a judgment on bloc without having any other right to modify it, and consequently without any influence on the legal effect of its verdict, but such an effect is in contradiction both to the basic principles of the Yalta conference, which was that of transferring to the Tribunal the legal powers, and, of the signatory powers. Necessarily, in order to do just the principle of justice, namely, that of punishing only the guilty, is on the basis of examination of the relationship of the facts through the hearing of the members in question. cases, or its disposition of their punishability, to determine the objections which will remain open to the individual; and the Tribunal must also be able to demonstrate the effect of its judgment by regulation of the capital punishment. I believe that according to what I have heard today, nothing has been said to contradict this. to the sense of the Charter the Tribunal is not allowed to transfer its responsibility to the individual trial, in which by simply drawing back, and leaving the decision in this matter up to the court where the introduction of which and the acceptance of which might be very different. before the International Military Tribunal, and in consideration of the significance of the situation, it will have the right in every case itself to a serious, moderate adjudication of all these concerned. To what extent then can the Tribunal concern itself with the material in the finishing of the evidence.
I believe the Tribunal in order to determine the punishability must investigate the most typical relation of, and, whether each individual can be transferred to a later trial. This distinction between typical and individual, however, is not easy.
The presentation of the principle has a double meaning. On the one hand the mentioning of a member by saying that he did not know the criminal nature of the organization could mean, on the one hand, that such a purpose never existed, and, on the other hand, it might mean that a member simply did not know what actually the present criminal purposes of the organization were. The first obviously is of the effect on the organization, and the second is one of the effect on the individual. On the basis of this presentation, I should like to answer that question to the Tribunal as follows: determining of the criminality, or to the determination of the punishability as a legislating task of the Tribunal. Relative to this fact in a legal sense of the terms is in truth the examination of the legislative material to which the objections of the members of this group organization belong. To what extent the Tribunal itself must have to examine the material depends on the extent and the effect to which it can and will give to it its verdict. Only that it is typical -- that it is not typical, and as a legal consideration unimportant, can it be left to the individual trial. limiting of the circle of the membership and the length of time of the criminality. Both questions touch the same problem, namely, whether such a limitation is dependent on a motion on the part of the Prosecution or whether the Tribunal itself can limit the content of the verdict it passes. has the right, but as regards the political leaders, the Prosecution reserves to itself the right, in case a limitation is asked regarding the membership, to undertake now trials against these members who are excluded from this one, or to take other measures. It also stands in contravention of the natural rulings of the Tribunal and with its decisions and, possibly, to an acquital ruling, which could not be eliminated by an objection on the part of the Prosecution.
To such a limiting motion, the evidence to be examined can not be limited.
For the judgment on the indicted organizations can include this material in its whole. It is not permissable to take out sick elements of a group and to pass judgment on those sick elements and on then to consider the entire organization as criminal. Tribunal is not to be determined at the discretion of the Prosecution is also to be seen in Article 9, Paragraph 1 of the Charter, according to which the criminal character must stand in some relationship to the acts of one of the main defendants. membership, temporarily, must be influenced by the actions of one of the major defendants. However, this is not for the Prosecution to decide, but for the Tribunal. Question two: A limiting of the incriminating period can hot depend on a motion of the Prosecution. The Tribunal can and must itself limit the length of time if the organizations or groups were not throughout the whole period of their existence criminal. If the actions of the min defendant, as a member of the organization or group, were not incriminating during the whole, period of the existence of the organization, then such a limitation must follow.
Question three: For the limiting of the circle of membership, the same is true as is true for the limitation of the period of time. will carry in the case of all groups and organizations. It must undertake this limitation if the actions of the main defendant in his capacity as member of the organization are not to incriminate certain cir*es of people. A limitation of the indictment or the effect of the judgment does not limit the evidence material for the groups or organizations. Tribunal. I would also new like to take on attitude toward a question that was brought up today; namely, the right to a legal hearing, if the Tribunal permit me to enter into this question.
can be put on trial if the organization is hold to be criminal. The decision is left up to the Tribunal. The essential task of the Tribunal is to hear the case. Without the hearing of the individual, a judgment is impossible, and there could be no verdict. and in order that the Tribunal should not reach the false conclusion that most of the members consider themselves guilty, I must say that such guilt is disputed by all those who have submitted applications. I shall go into the reasons why so few applications have been submitted and I shall show that the omission of other applications did not rest on their tacitly accepting their guilt. There is no lack of interest or disregard for the Court which are the cause of this slight number of applications. heard took place at a time when in the destroyed cities there were few newspapers being published and raiios were a rarity. The announcement took place at a time of paper shortage, and for the most part were simply not understood. interned, the Tribunal ordered an announcement to be made. To what extent this announcement actually was made, I have not been able to determine. Justice Jackson showed various documents this morning and I shall from them be able to inform myself. but to the extent that the people affected have even known of their right, it was apparently so far not possible for them to make applications to the Court. At the time of the announcement, the postal service was not working between the various zones, and there are still no postal connections with Austria, where there are tens of thousands of men in custody. lack of postal facilities to make these announcements public. Both of them proved to be insufficient and are the main reason why we have so few application These members who are not in custody were to submit their applications at the nearest military station.