I now pass to the SS, including the SD. The Prosecution respectfully reminds the Tribunal of the statements regarding the composition of the SS and its history, set out shortly in Appendix B of the Indictment, on page 36 of the English text.
The Prosecution stands by these statements, which it submits are clear. I do not intend to read them at the present moment.
The Tribunal has heard in the case regarding the SS (the transcript pages 1786 to 1889 and the case regarding concentration camps pages 1399 to 1432), and also the evidence as to the defendant Kaltenbrunner, of which the reference is given in the addendum. They have also heard in the cases of the French and Soviet delegations additional mountains of evidence with regard to the SS. It is submitted that there is no difficulty on the first three of Mr. Justice Jackson's points, and that the criminality of the SS has been proved several times over.
On the fourth point I venture to submit the submission in paragraph 4 of Section C of my Appendix A, that the crimes of the SS were commited, first, on such a vast scale, and secondly, ever such a vast area that the criminal aims and methods of the SS, which have staggered humanity since this trial opened, must have been known to its members. It was difficult to drive from, one city of Germany to another without passing near to a concentration camp, and every concentration camp contained its SS crimes. In my Appendix B the Tribunal will find the members of the SS who are defendants set out, and in the second part, a summary of the crimes of the defendant Kaltenbrunner. The Prosecution gives to him a sinister particularity, While relying also on the crimes of the other defendants who were members,
DR.PANNENBECKER (counsel for defendant Frick): I should like to point out that the listing of Frick in this position is apparently fallacious since in the list of offices that Frick occupied this is not mentioned as one of them.
THE PRESIDENT:Do you mean not a member of the SS?
DR. FANNENBECKER:In this list it says that Frick was a member of the SS. That is not so. And in the affidavit that he himself delivered he denies that fact.
DR. SEIDL (counsel for defendant Frank): Speaking for Frank: In the statements just made by the Prosecutor the defendant Frank is listed as a member of the SS.
Already earlier in the trial the American Prosecutor submitted Document 2979 PS, U.S.A. Exhibit No. 7. This document shows that Frank was at no time a member of the SS or, as it is asserted in the Indictment, was an SS General.
I should like to point out to the Tribunal further that several monthe ago, at the time when the Indictment was being read against the SSccriminal organization, the name of the defendant Doctor Frank was not mentioned. I can consequently assume that in this case a mistake has been made in the crawing up of this list.
DR.THOMA (counsel for defendant Rosenberg): I should like to make the same statement made by my colleague Doctor Seidl in reference to Rosenberg. Rosenberg is listed as a member of the SA. He was never a member of the SA, and I should like, in my turn, to bring this to the attention of the Tribunal.
SIR DAVIDMAXWELL - FYFE: The defendants, of course, will have every chance of disproving these matters, My Lord, but they are all contained in the Indictment.
(There was a noise in the courtroom)
I will begin again.
The defendants will have the opportunity of disproving these allegations, which are all contained in the Indictment; but in view of what has been said, I shall personally check the matter myself.
THE PRESIDENT:Yes.
SIR DAVIDMAXWELL-FIFE: Then I proceed to deal with the Gestapo. Again the Tribunal will find the construction and history of the Gestapo set out in Appendix B of the Indictment, and the criminality alleged is set out in paragraph 1, 2, and 3 of Section D of my appendix. The second addendum, the Tribunal may care to note, gives the most detailed references to each of these alleged acts of criminality. The Prosecution submit that from these points which are mentioned it is clear that the first four of dr. Justice Jackson's points are complied with. The provisions of Articles 7 and 8 of the Charter, in the submission of the Prosecution, make it impossible for the defense to rely on the official background of the Gestapo, and therefore, as I say, we submit that this clearly comes within the first four of Dr. Justice Jackson's points. If the Tribunal will refer to my Appendix B they will see that the defendants Goering, Frick, and Kaltenbrunner are alleged to be members, and in the latter part of that appendix we allege, as is the fact, that the crimes of these defendants were committed in their capacities as responsible chiefs of this organization.
Then we come to the SA. I again refer to paragraphs 1 and 2 of Section E of my Appendix A, and I ask the Tribunal to note that apart from the correct statement of its phases and periods of activity, each of the elements of criminality contained references to the transcript where these matters are proved. I remind the Tribunal of Mr. Justice Jackson's statement, which shows that the Prosecution have omitted all connected bodies, even including those who had only been members of the reserve, about which there can be any argument, even a sentimental argument, as to their full connection.
It might be convenient of I reminded the Tribunal of these sections.
THE PRESIDENT:We will adjourn now.
(A recess was taken until 1400 hours.)
Official transcript of the International Military Tribunal, in the matter of The United States of America, the French Republic.
The United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics, against Hermann Wilhelm Goering et al.
Defendants, sitting at Nurnberg, Germany on 28 February 1946, 1400-1700, Lord Justice Lawrence presiding.
SIR DAVIDMAXWELL-FYFE: If the Tribunal please, before the Tribunal adjourned I was about to mention again the bodies on the fringe of the SA, which the Prosecution did not seek to be included in the organizations.
First, wearers of the SA Party Badge. The Tribunal may remember that Colonel Storey explained that they were not strictly members. He wanted to have that point quite clear.
Secondly, SA Wehmannschaften, who were internal defense or homo guard units controlled by the SA, but not members of the SA.
Thirdly, SA members who were never in any part of the SA other than the reserve.
Fourthly, the NSKOV, the National Socialist League for Disabled Veterans, who were apparently incorporated in the SA, but from the names that have been given, and the membership, we do not ask for their inclusion.
In appendix B, the Tribunal will find the eight defendants allowed to be connected with the SA, and it is alleged by the Prosecution that the connection of the SA with the conspiracy was so intimate that all the acts of the defendant Goering would justify the declaration prayed for.
I now pass to the sixth and last group or organization, the General Staff and High Command of the German Armed Forces. As in this case the Prosecution have drawn an arbitrary line, I may perhaps be allowed to recall briefly its constitution.
If the Tribunal will be good enough to look at Appendix B of the Indictment under this heading, page 37 of the English text, they will see that the first nine positions enumerated are special command or chief of staff positions. There were 22 holders of these positions between February 1938 and May 1945, of whom 18 are living. The tenth position, of Oberbefehlshaber, includes 110 individual officers who held it.
The whole group varied from a membership of 20 at the beginning of the war to about 50 in 1944 or 1945, that is, at any one time.
I remind the Tribunal, however, that the conjoining of these positions is not artificual in reality, because on pages 2115 and the following pages of Colonel Telford Taylor's presentation on it -- and I refer especially to pages 2125 and 2126 -- it will be seen how the holders of the positions enumerated met in fact and in the flesh. This, in our submission, clearly comes within the interpretation of "group" in the Charter, which, as Mr. Justice Jackson pointed out, has a wider connotation that "organization", and we submit that you cannot hold men in the top command against their will. It would be impossible for them to carry on such work on such a condition.
Under Section F of my Appendix A, road with the first addendum, there will be found not only the references in the transcript, but the references to the captured documents which prove, out of the mouths of the members of this group, the criminality alleged against them under each part of Article 6 of the Charter. These documents also show their actual knowledge and therefore a priori, their constructive knowledge of the nature of the act.
In my Appendix B., the five defendants involved are set out, and in the latter part of that appendix, the connection of the group, and especially of the defendants Keitel and Jodl, is emphasized. It is submitted that these facts prevent any difficulty being encountered with regard to this group on any of the five criteria which we say should guide the Tribunal, Finally, may I repeat that in our respectful submission the facts contained in Appendices A and B which are before the Tribunal in writing clearly indicate the findings of fact for which the Prosecution ask.
My friend, M. Champetier de Ribes presents the journal.
M. CHAMPETIER DE RIBES:Mr. President and gentlemen, I should be careful not to add anything to the very complete statement of Sir DavidMaxwell-Fyfe were it not that I desire, in full agreement with my fellow prosecutors, respectfully to draw the Tribunal's attention to two clauses of French municipal law which deal with questions comparable to those which we are considering today, and in connection with which I believe the French Legislature has had to solve some of the problems with which the Tribunal is concerned, and especially the question which the Tribunal has laid down, namely that of criminal organizations.
I shall merely mention Article 265 of the French Criminal Code which lays down the general principle of the association of criminals by enacting that:" any association, whatever its duration or the number of its members, any understanding made with the object of preparing or committing crimes against the person or against the property, will constitute a crime against public peace."
That is why I should like to draw the attention of the Tribunal to this fact, that in the course of the last few years France has had to apply this general principle to organizations or associations which resembled greatly those which we are asking you to declare criminal.
It is known, gentlemen, that Nazism is a contagious disease, the ravages of which menace beyond the borders of the countries which it has contaminated. Thus, during the years 1934 to 1936, diverse groups had been formed in France, which following the example of their German and Italian models, were organized with the intention of substituting themselves for legal government in order to impose in the country that which they called order, and to create, in fact, disorder.
The French Republic in 1936 did what the Weimar Republic ought to have done. The law of the 10th of January 1936, promulgated on the 12th of January in the Official Gazette which I submit to the Tribunal, decreed dissolution of the groups and enacted severe penalties against their members. With the Tribunal's permission, I shall read the first two clauses of this law:
"Article I. Shall be dissolved, by decree of the President of the Republic in session with the Cabinet, all associations or de facto groups which:
"1. Would cause armed demonstrations in public thoroughfares.
"2. Or which, with the exception of military preparation societies sacntioned by the Government and societies for physical education or sport, which by their structure and their military organization would have the characteristics of a fighting group or a private militia.
"3. Or which would aim at jeopardizing the integrity of the national territory, or at attempting to alter by force the republican form of government.
"Article II. Any person who will have taken part in the maintenance or the reconstitution, direct or indirect, or the association or group as defined in Article I, will be punished by a term of six months to two years imprisonment, and a five of 16 to 5,000 francs."
The Tribunal will observe that by imposing severe penalties against members of these associations for the mere fact of "having taken part in the maintenance or the reconstitution, direct or indirect, of the association", the law of the 10th of January 1935 has recognized and proclaimed the criminal character of the association.
In the second place, neither the criminal code nor the law of 10 January 1936 are concerned with the question as to whether the association tion involved constitutes an association which has legal personality.
Article 265 of the Criminal Code includes in its condemnation, not only any association which has legal personality, but also condemns any understanding made with the object of preparing or committing crimes against person or property.
It also condemns any de facto Groups.
In that way, the law of the 10th of January, 1936, speaking of de facto Groups or Associations, does not seek legally to define criminal organizations, 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 criminal statute, will have made themselves guilty of any definitely anti-national activity."
The decree of 26 August, 1944, promulgated in the Official Gazette of the 28th of August, created the penalty of national indignity, and after having given "a general definition of the offense" has "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 indignity is constituted" by the fact of "having participated in the body of collaboration, whichever it might have been, 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 ordinance of the 26th of August, 1944, is much less concerned with defining the punishable offense than with enumerating the criminal Organizations to which the fact of having adhered constitutes the crime of national indignity.
And whether these Organizations were legally constituted Organizations, as defined by Article 265 of the Penal Code, or merely de facto Groups, as qualified by the law of 1936, the ordinance does not define further the Organizations which are described as criminal.
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 them men who, on the contrary, will be able to put forward their 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 Organizations without which it would have been impossible for a single man to attain the result that a great nation should fall so low in a few years, to the ranks of barbarism.
It is the shame of our period that the conquest of science should be placed at the disposal of ancient barbarity.
It is very true 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 itself, that before human liberty there existed a moral law which is imposed upon nations just as well as on individuals, and that it is criminal to violate that law.
GENERAL RUDENKO:Your Honors, let me teoll you, first of all, that I accept the principle which has been expressed by my respected French and American colleagues, 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 witnesses, and in what order those can be presented to agree to declare or to deny the criminality of this or that Organization.
First of all, as to the first question, it is necessary to amplify that the question of the criminal responsibility of an Organization does not stand before the Tribunal; neither does the question of the individual responsibility of the various members of an Organization, except those who are among the Defendants today.
stand before the Tribunal. The Charter of the Tribunal provides, according to Article 9, that the examination or the trial of any individual 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 locally members of Organizations.
The nature of the Organizations is thereby considered clear.
Article 10 recognizes the situation. 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 of Organizations which the Tribunal declared criminal;and second, the obligation, but not the right, 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, Article 10 of the Charter limits the jurisdiction of the national tribunal in just one way.
The national tribunal cannot bring to trial or cannot argue the criminality of any Organizations which have already been declared criminal by the International Military Tribunal.
My colleagues have already tendered valuable information about the legal codes of the respective countries.
Under 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. These laws provide for the guilt 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.
If a person is proved to be a member of a criminal Organization, even though the person is not formally a member of the Organization, but if he is known as such and he is demonstrated to have participated in or aided in the activities of such an Organization, and if any participation in the activities or objectives of criminal Organizations is shown, then the person can be brought to trial.
However, belonging to a criminal Organization formally only, does 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 knew or understood all the actions and all the doctrines of the Organization, whether he was acquainted with all the other members of the Organization.
On the basis of the legal code, especially in Fascist Germany, where there existed a whole series of Organizations established by the Government, 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 Organizations.
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.
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 - - 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.
Under such conditions, the necessity of calling special witnesses to 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.
We should also note that Article 10 of the Charter explains 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 (Counsel for the Reichsregierung):
As counsel for the Reichsregierun, which in the Indictment has a 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.
The Defense understands the decision of the Court of the 14th of 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.
As we know, this motion is not uninfluenced by the fact that, contrary 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.
The American Chief Prosecutor and the other members of the Prosecution 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.
A trial procedure, however, which, asthis one here, concerns severely 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.
The organizations under indictment are organizations of a very 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.
Independently of this question, however, of the question of the nonexistence 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:
First, to declare an organization as criminal means banishment and 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.
Second, in procedural consideration, the verdict that has been asked 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.
As an interpretation for that, in the meantime Law Number 10 of 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 procedure, according to Law Number 10, is only concerned with 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.
As far as the character of the organization is concerned, however, 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.
On the question of consequence of a verdict, its numerical aspect 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.
The Leadership Corps had, after 1933, always a fixed membership of about 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.
If we ask according to which legal code the omission in the Charter could 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.
In any case, we are of the opinion that within the framework of the Charte 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.
According to this interpretation, we identify the term of a criminal 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.
All these penal codes have in common that a verdict can only be made on 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:
First, the aims of the organization were criminal in the sense of 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.
Justice does not permit that members should all be comprised in a verdict 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.
Considerations about procedure, about the opportunity of procedure, should 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.
Since I know fairly well that in the questions which have to be decided 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..
Finally, I come to the question, how evidence can be practically presented and how hearings of the membership, according to Article 9, Paragraph 2, of the Charter, can be made possible.
The principles which are in all countries for penal law provide for every 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.