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    Nazi Conspiracy and Aggression, Volume 2, Chapter 15
The plan which was adopted in the Charter essentially is a
severance of the general issues which would be common to all
individual trials from the particular issues which would
differ in each trial. The plan is comparable to that
employed in certain wartime legislation of the United States
(Yakus v. United States, 321 US, 414, 64 Sup. Ct. 660). The
general issues are to be determined with finality in one
trial before the International

                                                    [Page 6]
Tribunal. In this trial, every accused organization must be
defended by counsel and must be represented by at least one
leading member, and other individual members may apply to be
heard. Their applications may be granted if the Tribunal
thinks justice requires it. The only issue in this trial
concerns the collective criminality of the organization or
group. It is to be adjudicated by what amounts to be a
declaratory judgment. It does not decree any punishment,
either against the organization or against the individual

The only specification as to the effect of this Tribunal's
declaration that an organization is criminal, is contained
in Article 10 of the Charter, which provides:

     "In cases where a group or organization is declared
     criminal by the Tribunal, the competent national
     authority of any Signatory shall have the right to
     bring individuals to trial for membership therein
     before national, military or occupation courts. In any
     such case the criminal nature of the group or
     organization is considered proved and shall not be

Unquestionably, it would be competent for the Charter to
have declared flatly that membership in any of these named
organizations is criminal and should be punished
accordingly. If there had been such an enactment, it would
not have been open to an individual who was being tried for
membership in the organization to contend that the
organization was not in fact criminal. The framers of the
Charter, at a time before the evidence adduced here was
available, did not care to find organizations criminal by
fiat. They left that issue to determination after relevant
facts were developed by adversary proceedings. Plainly, the
individual member is better off because of the procedure of
the Charter, which leaves that finding of criminality to
this body after hearings at which the organization must, and
the individual may, be represented.

The groups and organizations named in the Indictment are not
"on trial" in the conventional sense of that term. They are
more nearly under investigation as they might be before a
grand jury in Anglo-American practice. Article 9 recognizes
a distinction between the declaration of a group or
organization as criminal and "the trial of any individual
member thereof." The power of the Tribunal to try is
confined to "persons," and the Charter does not expand that
term by definition, as statutes sometimes do, to include
other than natural persons. The groups or organizations
named in the Indictment were not as entities served with
process. The Tribunal is not empowered to impose

                                                    [Page 7]
any sentence upon them as entities, nor to convict any
person because of membership.

It is to be observed that the Charter does not require
subsequent proceedings against anyone. It provides only that
the competent national authorities "shall have the right to
bring individuals to trial for membership therein."

The Charter is silent as to the form these trials should
take. It was not deemed wise, on the information available
when the Charter was drawn up, that the Charter should
regulate subsequent proceedings. Nor was it necessary to do
so. There is a continuing legislative authority,
representing all four signatory nations, competent to take
over where the Charter leaves off. Legislative
supplementation of the Charter is necessary to confer
jurisdiction on local courts, to define procedures, and to
prescribe different penalties for different forms of activity.

Fear has been expressed, however, that the Charter's silence
as to future proceedings means that great numbers of member
will be rounded up and automatically punished as a result of
a declaration of an organization to be criminal. It also has
been suggested that this is, or may be, the consequence of
Article II, (d) of Control Council Act No. 10, which defines
as a crime "membership in categories of a criminal group or
organization declared criminal by the International Military
Tribunal." A purpose to inflict punishments without a right
of hearing cannot be spelled out of the Charter, and would
be offensive to both its letter and its spirit. And I do not
find in Control Council Act No 10 any inconsistency with the
Charter. Of course, to reach all individual members will
require numerous hearings. But they will involve only narrow
issues; many accused will have no answers to charges if they
are clearly stated, and the proceedings should be
expeditious and nontechnical.

But I think it is clear that before any person is punishable
for membership in a criminal organization, he is entitled to
a hearing on the facts of his case. The Charter does not
authorize the national authorities to punish membership
without a hearing it gives them only the right to "bring
individuals to trial." That means what it says. A trial
means there is something to try.

As to trials of the individual members, the Charter denies
only one of the possible defenses of an accused: he may not
re-litigate the question whether the organization itself was
a criminal one. Nothing precludes him from denying that his
participation was voluntary and proving he acted under
duress; he may prove that he was deceived or tricked into
membership; he may show that

                                                    [Page 8]
he had withdrawn; or he may prove that his name on the rolls
is a case of mistaken identity.

The membership which the Charter and the Control Council Act
make criminal, of course, implies a genuine membership
involving the volition of the member. The act of affiliation
with the organization must have been intentional and
voluntary. Legal compulsion or illegal duress, actual fraud
or trick of which one is a victim, has never been thought to
be the victim's crime, and such an unjust result is not to
be implied now. The extent of the member's knowledge of the
criminal character of the organization is, however, another
matter. He may not have known on the day he joined but may
have remained a member after learning the fact. And he is
chargeable not only with what he knew but with all of which
he reasonably was put on notice.

There are safeguards to assure that this program will be
carried out in good faith. Prosecution under the declaration
is discretionary, and if there were purpose to punish
without trial, it would have been already done without
waiting for the declaration. We think the Tribunal will
presume that signatory powers which have voluntarily
submitted to this process will carry it out faithfully.

The Control Council Act applies only to "categories of
membership declared criminal." This language recognizes a
power in this Tribunal to limit the effect of its
declaration. I do not think, for reasons I will later state,
that this should be construed or availed of so as to try
here any issues as to sub-groups or sections or individuals,
which can be tried later. It should, I think, be construed
to mean, not those limitations which must be defined by
detailed evidence, but limitations of principle such as
those I have outlined as already implied. It does not
require this Tribunal to delve into evidence to condition
its judgment, if it sees fit, to apply only to intentional,
voluntary, and knowing membership. It does not supplant
later trials but guides them.

It cannot be said that a plan, such as we have here, for the
severance of general issues common to many cases from
particular issues applicable only to individual defendants
and for the litigation of each type of issue in separate
Tribunals specially adapted to their different tasks, is
lacking in reasonableness or fair play. And while it
presents unusual procedural difficulties, I do not think it
presents any insurmountable ones.

                                                    [Page 9]
C. Criteria, PrInciples, and Precedents for Declaring
Collective Criminality.

The substantive law which governs the inquiry into
criminality of organizations is, in its large outline, old
and well settled and fairly uniform in all systems of law.
It is true that we are dealing with a procedure easy to
abuse and one often feared as an interference with liberty
of assembly or as an imposition of "guilt by association."
It also is true that proceedings against organizations are
closely akin to the conspiracy charge, which is the great
dragnet of the law, rightly watched by courts lest it be

The fact is, however, that every form of government has
considered it necessary to treat some organizations as
criminal. Not even the most tolerant of governments can
permit the accumulation of power in private organizations to
a point where it rivals, obstructs, or dominates the
government itself. To do so would be to grant designing men
a liberty to destroy liberty. It was the very complacency
and tolerance as well as the impotence of the Weimar
Republic towards the growing organization of Nazi power,
which spelled the death of German freedom.

Protection of the citizen's liberty has required even free
governments to enact laws making criminal those aggregations
of power which threaten to impose their will on unwilling
citizens. Every one of the nations signatory to this Charter
has laws making certain types of organizations criminal. The
Ku Klux Klan in the United States flourished at about the
same time as the Nazi movement in Germany. It appealed to
the same hates, practiced the same extra-legal coercions,
and likewise terrorized by weird nighttime ceremonials. Like
the Nazi Party it was composed of a core of fanatics, but
enlisted support of some respectable persons who knew it was
wrong, but thought it was winning. It eventually provoked a
variety of legislative acts directed against such

The Congress of the United States also has enacted
legislation outlawing certain organizations. A recent
example is the Act of 28 June 1940 (c. 439, Title I, Section
2, 4 Stat. 671, 18 USCA 10) which provides in part as

     "(a) It shall be unlawful for any person . . .
          "(3) to organize or help to organize any society,
          group, or assembly of persons who teach, advocate,
          or encourage the overthrow or destruction of any
          government in the United States by force or
          violence; or to be or become a member of, or
                                                   [Page 10]
          with, any such society, group, or assembly of
          persons, knowing the purposes thereof."

There is much legislation by States of the American union
creating analogous offenses. An example is to be found in
the Act of California (Statutes 1919, Chapter 188, p. 281)
which, after defining "criminal syndicalism," provides:

     "Section 2. Any person who . . . (4) organizes or
     assists in organizing, or is or knowingly becomes a
     member of, any organization, society, group or
     assemblage of persons organized or assembled to teach
     or aid and abet criminal syndicalism . . .
     "Is guilty of a felony and punishable by imprisonment."

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