The Nizkor Project: Remembering the Holocaust (Shoah)

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Archive/File: imt/nca/nca-02/nca-02-15-criminality-01-04
Last-Modified: 1996/12/28

Of course; members of criminal organizations or conspiracies
who personally commit crimes are individually punishable for
those crimes exactly as are those who commit the same
offenses without organizational backing. But the very gist
of the crime of conspiracy or membership in a criminal
association is liability for acts one did not personally
commit but which his acts facilitated or abetted. The crime
is to combine with others and to participate in the unlawful
common effort, however innocent the personal acts of the
participant when considered by themselves.

The very innocent act of mailing a letter is enough to
implicate one in a conspiracy if the purpose of the letter
is to advance a criminal plan. There are countless examples
of this doctrine in Anglo-American jurisprudence.

The sweep of the law of conspiracy is an important
consideration in determining the criteria of guilt for
organizations. Certainly the vicarious liability imposed in
consequence of voluntary membership, formalized by oath,
dedicated to a common organizational purpose and submission
to a discipline and chain of command, can not be less than
that which follows from informal cooperation with a nebulous
group to a common end as is sufficient in conspiracy. This
meets the suggestion that the prosecution is required to
prove every member, or every part, fraction, or division of
the membership to be guilty of criminal acts. The suggestion
ignores the conspiratorial nature of the charge. Such an
interpretation also would reduce the Charter to an
unworkable absurdity. To concentrate in one International
Tribunal inquiries requiring such detailed evidence as to
each member would set a task not possible of completion
within the lives of living men.

It is easy to toss about such a plausible but superficial
cliche as, "One should be convicted for his activities, not
for his membership." But this ignores the fact that
membership in Nazi bodies was itself an activity. It was not
something passed out to a passive citizen like a handbill.
Even a nominal membership may aid and abet a movement
greatly. Does anyone believe that Hjalmar Schacht sitting in
the front row of the Nazi Party Congress of 1935, wearing
the insignia of the Party, was included in the Nazi
propaganda films merely for artistic effect? This great
banker's mere loan of his name to this shady enterprise gave
it a lift and a respectability in the eyes of every
hesitating German. There may be instances in which
membership did not aid and abet the

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organizational ends and means, but individual situations of
that kind are for appraisal in the later hearings and not by
this Tribunal. By and large, the use of organization
affiliation is a quick and simple, but at the same time
fairly accurate outline of the contours of a conspiracy to
do what the organization actually did. It is the only one
workable at this stage of the trial. It can work no
injustice because before any individual can be punished, he
can submit the facts of his own case to further and more
detailed judicial scrutiny.

While the Charter does not so provide, we think that on
ordinary legal principles the burden of proof to justify a
declaration of criminality is upon the prosecution. It is
discharged, we think, when we establish the following:

1. The organization or group in question must be some
aggregation of persons associated in some identifiable
relationship with a collective general purpose.

2. While the Charter does not so declare, we think it
implied that membership in such an organization must be
generally voluntary. That does not require proof that every
member was a volunteer. Nor does it mean that an
organization is not to be considered voluntary if the
defense proves that some minor fraction or small percentage
of its membership was compelled to join. The test is a
common-sense one: Was the organization on the whole one
which persons were free to join or to stay out of?
Membership is not made involuntary by the fact that it was
good business or good politics to identify one's self with
the movement. Any compulsion must be of the kind which the
law normally recognizes, and threats of political or
economic retaliation would be of no consequence.

3. The aims of the organization must be criminal in that it
was designing to perform acts denounced as crimes in Article
6 of the Charter. No other act would authorize conviction of
an individual and therefore no other act would authorize
conviction of n organization in connection with the
conviction of the individual.

4. The criminal aims or methods of the organization must
have been of such character that its membership in general
may properly be charged with knowledge of them. This again
is not specifically required by the Charter. Of course, it
is not incumbent on the prosecution to establish the
individual knowledge of every member of the organization or
to rebut the possibility that some lay have joined in
ignorance of its true character.

5. Some individual defendant must have been a member of the

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organization and must be convicted of some act on the basis
of which the organization is declared to be criminal.

D. Definition of Issues for Trial.

The progress of this trial will be expedited by clear
definition of the issues to be tried. I have indicated what
we consider to be the proper criteria of guilt. There are
also subjects which we think are not relevant before this
Tribunal, some of which are mentioned in the specific
questions asked by the Tribunal.

Only a single ultimate issue is before this Tribunal for
decision. That is whether accused organizations properly may
be characterized as criminal ones or as innocent ones.
Nothing is relevant here that does not bear on a question
that would be common to the case of every member. Any matter
which would be exculpating for some members but not for all
is irrelevant here.

We think it is not relevant to this proceeding at this stage
that one or many members were conscripted if in general the
membership was voluntary. It may be conceded that
conscription is a good defense for an individual charged
with membership in a criminal organization, but an
organization can have criminal purposes and commit criminal
acts even if a portion of its membership consists of persons
who were compelled to Join it. The issue of conscription is
not pertinent to this proceeding but it is pertinent to the
trials of individuals for membership in organizations
declared criminal by this Tribunal.

We also think it is not relevant to this proceeding that one
or more members of the named organizations were ignorant of
its criminal purposes or methods if its purposes or methods
were open and notorious. An organization may have criminal
purposes and commit criminal acts although one or many of
its members were without personal knowledge thereof. If a
person joined what he thought was a social club but what in
fact was a gang of cutthroats and murderers, his lack of
knowledge would not exonerate the gang considered as a
group, although it might possibly be a factor in extenuation
of a charge of criminality brought against him for mere
membership in the organization. Even then the test would be
not what the man knew, but what, as a person of common
understanding, he should have known.

It is not relevant to this proceeding that one or more
members of the named organizations were themselves innocent
of unlawful acts. This proposition is basic to the entire
theory of the declaration of organizational criminality. The
purpose of declaring criminality of organizations, as in
every conspiracy charge,

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is punishment for aiding crimes, although the precise
perpetrators may never be found or identified. We know that
the Gestapo and SS, as organizations, were given principal
responsibility for the extermination of the Jewish people in
Europe but beyond a few isolated instances, we can never
establish which members of the Gestapo or SS actually
carried out the murders Any member guilty of direct
participation in such crimes can be tried on the charge of
having committed specific crimes in addition to the general
charge of membership in a criminal organization. Therefore,
it is wholly immaterial that one or more members of the
organizations were themselves allegedly innocent of specific
wrongdoing. The purpose of this proceeding is not to reach
instances of individual criminal conduct, even in subsequent
trials and, therefore, such considerations are irrelevant

Another question raised by the Tribunal is the period of
time during which the groups or organizations named in the
Indictment are claimed by the Prosecution to have been
criminal. The Prosecution believes that each organization
should be declared criminal during the period referred to in
the Indictment. We do not contend that the Tribunal is
without power to condition its declaration so as to cover a
lesser period of time than that set forth in the Indictment.
The Prosecution feels, however, that there is in the record
at this time adequate evidence to support the charge of
criminality with respect to each of the named organizations
during the full period of time set forth in the Indictment.

Another question raised by the Tribunal is whether any
classes of persons included within the accused groups or
organizations should be excluded from the declaration of
criminality. It is, of course necessary that the Tribunal
relate its declaration to some identifiable group or
organization. The Tribunal, however, is not expected or
required to be bound by formalities of organization In
framing the Charter, the use was deliberately avoided of
terms or concepts which would involve this trial in legal
technicalities about juristic persons" or "entities."
Systems of jurisprudence e not uniform in the refinements of
these fictions. The concept of the Charter, therefore, is a
nontechnical one. "Group" or "organization should be given
no artificial or sophistical meaning. or group was used in
the Charter as a broader term, implying a looser and less
formal structure or relationship than is in he
organization." The terms mean in the context of e Charter
what they mean in the ordinary speech of people. The

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test to identify a group or organization is, we submit, a
natural and common-sense one.

It is important to bear in mind that while the Tribunal no
doubt has power to make its own definition of the groups it
will declare criminal, the precise composition and
membership of groups and organizations is not an issue for
trial here. There is no Charter requirement and no practical
need for the Tribunal to define a group or organization with
such particularity that its precise composition or
membership is thereby determined. The creation of a
mechanism for later trial of such issues was a recognition
that the declaration of this Tribunal is not decisive of
such questions and is likely to be so general as to
comprehend persons who on more detailed inquiry will prove
to be outside of it. An effort by this Tribunal to try
questions of exculpation of individuals, few or many, would
unduly protract the trial, transgress the limitation of the
Charter, and quite likely do some mischief by attempting to
adjudicate precise boundaries on evidence which is not
directed to that purpose.

The prosecution stands upon the language of the Indictment
and contends that each group or organization should be
declared criminal as an entity and that ho inquiry should be
entered upon and no evidence entertained as to the
exculpation of any class or classes of persons within such
descriptions. Practical reasons of conserving the Tribunal'
time combine with practical considerations for the
defendants. A single trial held in one city to deal with
questions of excluding thousands of defendants living all
over Germany could not be expected to do justice to each
member unless it was expected to endure indefinitely.
Provision for later, local trial of individual relationships
protects the rights of members better than can possibly be
done in proceedings before this Tribunal.

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