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                           of the
               International Military Tribunal
                           For The
             Trial of German Major War Criminals

               His Majesty's Stationery Office
                                                   [Page 66]

Article 9 of the Charter provides:

     "At the trial of any individual member of any
     group or organisation the Tribunal may declare (in
     connection with any act of which the individual
     may be convicted) that the group or organisation
     of which the individual was a member was a
     criminal organisation."
     "After receipt of the Indictment the Tribunal
     shall give such notice as it thinks fit that the
     prosecution intends to ask the Tribunal to make
     such declaration and any member of the
     organisation will be entitled to apply to the
     Tribunal for leave to be heard by the Tribunal
     upon the question of the criminal character of the
     organisation. The Tribunal shall have power to
     allow or reject the application. If the
     application is allowed, the Tribunal may direct in
     what manner the applicants shall be represented
     and heard."

Article 10 of the Charter makes clear that the declaration
of criminality against an accused organisation is final, and
cannot be challenged in any subsequent criminal proceeding
against a member of the organisation. Article 10 is as

     "In cases where a group or organisation 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 organisation is considered proved and
     shall not be questioned."

The effect of the declaration of criminality by the Tribunal
is well illustrated by Law Number 10 of the Control Council
of Germany passed on 20th day of December, 1945, which

     "Each of the following acts is recognized as a
     "(d) Membership in categories of a criminal group
     or organisation declared criminal by the
     International Military Tribunal.
     (3) Any person found guilty of any of the crimes
     above mentioned may upon conviction be punished as
     shall be determined by the Tribunal to be just.
     Such punishment may consist of one or more of the
     (a) Death.
     (b) Imprisonment for life or a term of years, with
     or without hard labor.
     (c) Fine, and imprisonment with or without hard
     labor, in lieu thereof."

In effect, therefore, a member of an organisation which the
Tribunal has declared to be criminal may be subsequently
convicted of the crime of membership and be punished for
that crime by death. This is not to assume that
international or military courts which will try these
individuals will not exercise appropriate standards of
justice. This is a far reaching and novel procedure. Its
application, unless properly safeguarded, may produce great

Article 9, it should be noted, uses the words "The Tribunal
may declare" so that the Tribunal is vested with discretion
as to whether it will declare any organisation criminal.
This discretion is a judicial one and does not permit
arbitrary action, but should be exercised in accordance with
well-settled legal

                                                   [Page 67]
principles, one of the most important of which is that
criminal guilt is personal, and that mass punishments should
be avoided. If satisfied of the criminal guilt of any
organisation or group, this Tribunal should not hesitate to
declare it to be criminal because the theory of "group
criminality" is new, or because it might be unjustly applied
by some subsequent tribunals. On the other hand, the
Tribunal should make such declaration of criminality so far
as possible in a manner to insure that innocent persons will
not be punished.

A criminal organisation is analogous to a criminal
conspiracy in that the essence of both is cooperation for
criminal purposes. There must be a group bound together and
organized for a common purpose. The group must be formed or
used in connection with the commission of crimes denounced
by the Charter. Since the declaration with respect to the
organisations and groups will, as has been pointed out, fix
the criminality of its members, that definition should
exclude persons who had no knowledge of the criminal
purposes or acts of the organisation and those who were
drafted by the State for membership, unless they were
personally implicated in the commission of acts declared
criminal by Article 6 of the Charter as members of the
organisation. Membership alone is not enough to come within
the scope of these declarations.

Since declarations of criminality which the Tribunal makes
will be used by other courts in the trial of persons on
account of their membership in the organisations found to be
criminal, the Tribunal feels it appropriate to make the
following recommendations:

1. That so far as possible throughout the four zones of
occupation in Germany the classifications, sanctions, and
penalties be standardized. Uniformity of treatment so far as
practical should be a basic principle. This does not, of
course, mean that discretion in sentencing should not be
vested in the court; but the discretion should be within
fixed limits appropriate to the nature of the crime.

2. Law No. 10, to which reference has already been made,
leaves punishment entirely in the discretion of the trial
court even to the extent of inflicting the death penalty.

The De-Nazification Law of 5th March, 1946, however, passed
for Bavaria, Greater-Hesse, and Wuerttemberg-Baden, provides
definite sentences for punishment in each type of offense.
The Tribunal recommends that in no case should punishment
imposed under Law No. 10 upon any members of an organisation
or group declared by the Tribunal to be criminal exceed the
punishment fixed by the De-Nazification Law. No person
should be punished under both laws.

3. The Tribunal recommends to the Control Council that Law
No. 10 be amended to prescribe limitations on the punishment
which may be imposed for membership in a criminal group or
organisation so that such punishment shall not exceed the
punishment prescribed by the De-Nazification Law.

The Indictment asks that the Tribunal declare to be criminal
the following organisations: The Leadership Corps of the
Nazi Party; the Gestapo; the S.D.; the S.S.; the S.A.; the
Reich Cabinet, and the General Staff and High Command of the
German Armed Forces.

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