Nazi Conspiracy & Aggression
[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
abused.
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
organizations.
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
follows:
"(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
affiliate
[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:
"Is guilty of a felony and punishable by imprisonment."
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:
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:
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:
[Page 12]
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 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
[Page 14]
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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Volume
II Chapter XV
Criminality of Groups and Organizations
The Law
Under Which the Nazi Organizations
Are Accused of Being Criminal
(Part 3 of 7)
"(a) It shall be unlawful for any person . . .
"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 . . .
"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."
"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."
1. "It is a matter of indifference whether all the
members
"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.)