Archive/File: imt/nca/nca-02/nca-02-15-criminality-01-03
Last-Modified: 1997/08/21

Precedents in English law for outlawing organizations and
punishing membership therein are old and consistent with the
Charter. One of the first is the British India Act No. 30,
enacted November 14, 1836. Section 1 provides:

     "It is hereby enacted that whoever shall be proved to
     have belonged either before or after the passing of
     this Act to any gang of thugs either within or without
     the territories of the East India Company shall be
     punished with imprisonment for life with hard labour."

Other precedents in English legislation are the Unlawful
Societies Act of 1799 (3 George III, Chapter 79); the
Seditious Meetings Act of 1817 (57 George III, Chapter 19);
the Seditious Meetings Act of 1846 (9 and 10 Victoria,
Chapter 33); the Public Order Act of 1936 and Defense
Regulation 18(b). The last, not without opposition, was
intended to protect the integrity of the British Government
against the fifth-column activities of this same Nazi
conspiracy.

Soviet Russia punishes as a crime the formation of and
membership in a criminal gang. Criminologists of the
U.S.S.R. call this crime the "crime of banditry," a term
appropriate to the German organizations.

French criminal- law makes membership in subversive
organizations a crime. Membership of the criminal gang is a
crime in itself. (Articles 26268, French Penal Code,
"Association de Malfaiteurs"; Garaud, Precis de Droit
Criminel, 1934 Edition Sirey, p. 118 and seq. See also Act
of December 18, 1893.)

For German precedents, it is neither seemly nor necessary to
go to the Nazi regime. Under the Empire and the Weimar
Republic, however, German jurisprudence deserved respect and
it presents both statutory and juridical examples of
declarations of the criminality of organizations. Among
statutory examples are:

                                                   [Page 11]

1. The German Criminal Code enacted in 1871. Section 128 was
aimed against secret associations and Section 129 was
directed against organizations inimical to the State.

2. The law of 22 March 1921 against paramilitary
organizations.

3. The law of 21 July 1922 against organizations aimed at
overthrowing the constitution of the Reich.

Section 128 of the Criminal Code of 1871 is especially
pertinent. It reads:

"The participation in an organization the existence,
constitution, or purposes of which are to be kept secret
from the Government, or in which obedience to unknown
superiors or unconditional obedience to known superiors is
pledged, is punishable by imprisonment up to six months for
the members and from one month to one year for the founders
and officers. Public officials may be deprived of the right
to hold public office for a period of from one to five
years."

Under the Empire, various Polish national unions were the
subject of criminal prosecution. Under the Republic,
judicial judgments in 1927-28 held criminal the entire
Communist Party of Germany. In 1922 and 1928 judgments ran
against the political Leadership Corps of the Communist
Party, which included all its so-called "body of
functionaries," corresponding to the Leadership Corps of the
Nazi Party which we have accused. The judgment included
every cashier, every employee, every delivery boy and
messenger, and every district leader. In 1930 a judgment of
criminality against the "Union of Red Front Fighters" of the
Communist Party made no discrimination between leaders and
ordinary members.

Most significant of all is the fact that on 30 May 1924 the
German courts rendered judgment that the whole Nazi Party
was a criminal organization. This decision referred not only
to the Leadership Corps, which we are indicting here, but to
all other members as well. The whole subsequent rise to
power of the Nazi Party was in the shadow of this judgment
of illegality.

The German courts in dealing with criminal organizations
proceeded on the theory that all members were held together
by a common plan in which each one participated even though
at various levels. Moreover, the fundamental principles of
responsibility of members as stated by the German Supreme
Court are strikingly like the principles that govern our
Anglo-American law of conspiracy. Among them were these:

     1. "It is a matter of indifference whether all the
     members
     
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     pursued the forbidden aims. It is enough if a part
     exercised the forbidden activity." (R.G. VIa 97/22 of
     the 8.5.22.)
     
     2. "It is a matter of indifference whether the members
     of the group or association agree with the aims, tasks,
     means of working and means of fighting." (R.G. 8, 401
     of the 24.10.24.)
     
     3. "The real attitude of mind of the participants is a
     matter of indifference. Even if they had the intention
     of not participating in criminal efforts, or hindering
     them, this can not eliminate their responsibility."
     (R.G. 58, 401 of the 24.10.24.)
     
Organizations with criminal ends are everywhere regarded as
in the nature of criminal conspiracies, and their
criminality is judged by the application of conspiracy
principles. The reason why they are offensive to law-
governed people has been succinctly stated as follows:

     "The reason for finding criminal liability in case of a
     combination to effect an unlawful end or to use
     unlawful means, where none would exist, even though the
     act contemplated were actually committed by an
     individual, is that a combination of persons to commit
     a wrong, either as an end or as a means to an end, is
     so much more dangerous, because of its increased power
     to do wrong, because it is more difficult to guard
     against and prevent the evil designs of a group of
     persons than of a single person, and because of the
     terror which fear of such a combination tends to create
     in the minds of people." (Miller on Criminal Law, 1932.
     p. 110.)

The Charter, in Article 6, provides that "Leaders,
organizers, instigators and accomplices participating in the
formulation or execution of a common plan or conspiracy to
commit any of the foregoing crimes are responsible for all
acts performed by any persons in execution of such plan."
The individual defendants are arraigned at your bar on this
charge which, if proved, makes them responsible for the acts
of others in execution of the common plan.

The Charter did not define responsibility for the acts of
others in terms of "conspiracy" alone. he crimes were
defined in nontechnical but inclusive terms, and embraced
formulating and executing a "common plan" as well as
participating in a conspiracy." It was feared that to do
otherwise might import into the proceedings technical
requirements and limitations which have grown up around the
term "conspiracy." There are some divergences between the
Anglo-American concept of conspiracy and that of either
Soviet, French, or German jurisprudence It

                                                   [Page 13]
                                                            
was desired that concrete cases be guided by the broader
considerations inherent in the nature of the social problem,
rather than controlled by refinements of any local law.

Now, except for procedural difficulties arising from their
multitude, there is no reason why every member of any Nazi
organization accused here could not have been indicted and
convicted as a part of the conspiracy under Article 6 even
if the Charter had never mentioned organizations at all.
Voluntary affiliation constituted a definite act of
adherence to some common plan and purpose. These did not
pretend to be merely social or cultural groups; admittedly
they were united for action. In the case of several of the
Nazi organizations, the fact of confederation was evidenced
by formal induction into membership, the taking of an oath,
the wearing of a distinctive uniform, the submission to a
discipline. That all members of each Nazi organization did
combine under a common plan to achieve some en by combined
efforts is abundantly established.

The criteria for determining the collective guilt of those
who thus adhered to a common plan obviously are those which
would test the legality of any combination or conspiracy.
Did it contemplate illegal methods or aim at illegal ends?
If so, the liability of each member of one of these Nazi
organizations for the acts of every other member is not
essentially different from the liability for conspiracy
enforced in Courts of the United States against business men
who combine in violation of the antitrust laws, or of other
defendants accused under narcotic drugs laws, sedition acts,
or other federal penal enactments.

Among the principles every day enforced in Courts of Great
Britain and the United States in dealing with conspiracy are
these:

1. No meeting or formal agreement is necessary. It is
sufficient, although one performs one part and other persons
other parts, if there be concert of action, and working
together understandingly with a common design to accomplish
a common purpose.

2. One may be liable even though he may not have known who
his fellow-conspirators were, or just what part they were to
take, or what acts they committed, and though he did not
take personal part in them or was absent when criminal acts
occurred.

3. There may be liability for acts of fellow-conspirators
although the particular acts were not intended or
anticipated, if they were done in execution of the common
plan.

4. It is not necessary to liability that one be a member of
a conspiracy at the same time as other actors, or at the
time of

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criminal acts. When one becomes a party to it, he adopts and
ratifies what has gone before and remains responsible until
he abandons the conspiracy with notice to his fellow-
conspirators.

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