The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Two Hundred and Eleventh Day: Monday, 26th August, 1946
(Part 12 of 12)

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An organization could only be declared criminal, if:

1. its purposes or expedients correspond with the facts of the case as stated in Article 6 of the Charter.

2. all members knew these purposes and expedients and

3. all members were conscious of the fact that these purposes were illegal or unjust.

This result gives rise to two further questions:
1. A legal one, whether the condemnation of an organization can be brought into harmony with the general rules of International Law and national law;

2. a factual one, whether the necessary elements of such condemnation can be established at all for all members of the SD and whether a trial of this kind can be held at all.

Before I begin to discuss the legal question I take the liberty of drawing the attention of the Tribunal to the fact that the stipulation in Article 9 was not a compulsory rule, but only an optional one. Even if the conditions are present for declaring an organization as criminal, the Court can refrain from doing this. It may be assumed that the legislators pursued a purpose in having prescribed the condemnation of the organizations as not compulsory even if all the conditions for this were fulfilled. It may be presumed that the legislators who promulgated the Charter wanted to submit Article 9 to examination under the rules of International Law.

By this the authors of the Charter apparently wished to transfer the judge's right of examination to the International Military Tribunal with regard to Article 9 - and I expressly emphasize, in order to avoid any misunderstandings - only with regard to Article 9, because in other respects the Charter is a mandatory rule. The International Military Tribunal should examine Article 9 to determine whether this rule is a further development of the legal concepts of International Law and national laws, or whether it is in contradiction to these. The fact that Article 9 is a rule previously unknown in law should especially favour such an intention. The question as to whether a formal law is in contradiction to other laws, cannot be immediately investigated when the law is issued. This can only be determined in the course of the practical application of the law and after research by scholars.

English constitutional law with its special concept of the constitution does not recognize the judge's right of examination. The Union of the Soviet Socialist

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Republics does not recognize the judge's right of examination either. In France the judges right of examination is rejected by the courts but is almost unanimously accepted by legal scholars. In the United States the judge's right of examination is generally recognized.

The courts of the United States have to compare the laws which have been issued with the constitution, and to discover the true intentions of both.

I believe that the international community of nations approaches the federal system of the United States, and that therefore the International Military Tribunal is justified in examining the relationship of Article 9 of the Statute to the generally recognized rules of International Law and also the laws of individual nations which, according to the statements of Justice Jackson, are likewise to form the legal foundation for the decision.

Concerning Article 9 of the Charter, it must be added that it is a precept unknown to the previous laws. It can obviously be presumed, and undoubtedly needs no further explanation, that the nations which promulgated the Charter wanted to develop further the basic concepts of the prevailing International Law and bring it into a legal form, and that in doing so they completely lacked any intention of placing themselves in opposition to the rules of International Law.

All written law, however, requires careful and scholarly examination and revision so that a reasonable application in practice will be possible. Only in this way will the courts be placed in a position to reach verdicts Which are really in accordance with the facts.

The International Military Tribunal, therefore, on the basis of the judge's right of examination to which it is entitled, will have to examine the relationship of Article 9 of the Charter with the general basic legal principles of International Law and the national laws of civilized nations.

In this connection we have to start from the legal significance of the assertion, permissible according to Article 9 of the Charter, that an organization can be criminal.

Article 9 varies basically from the Corporate Penal Law (Verbandsstrafrecht), as it has been introduced, for example, into English law by Section 2 of the Interpretation Act of 1889.

Punishment according to the Corporate Penal Law (Verbandsstrafrecht) is directed at the organization. According to Article 9, the sentence can no longer affect the organizations because the latter have been dissolved and no longer exist. The sentence is rather directed against the individual members, because the verdict of the Court is the basis for the subsequent proceedings according to Law No. 10.

Furthermore two important differences must be mentioned:

1. According to the Criminal Code for Organizations, and especially English Corporate Penal Law, no imprisonment (Freiheitsstrafe) is permitted.
Article 9 should be, nevertheless, the basis for the inflicting of prison sentences and even of death sentences provided for in Law No. 10.
2. According to English Corporate Penal Law, no crimes and offences can be prosecuted.
If we examine English jurisdiction, we find that corporations have been condemned only on account of transgressions, especially on account of neglect of public obligations, e .g., failure to repair streets or bridges, although a similar obligation existed blocking a street by a railway company, or on account of publishing a libel.

Article 9 on the other hand deals with major crimes.

Article 9 of the Charter does not mean, accordingly, the introduction of the Corporate Penal Law into International Criminal Law.

A number of foreign laws have been quoted by the prosecution, according to which it should be permissible to declare an organization criminal: from American law, the law of 28th June, 1940, and the "California Act"; from English law the "British India Act, No. 30" of 14th November, 1936; from French law, the law

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of 18th December, 1893, Section 263 of the French Penal Law Code, Section 1 the law of 26th August, 1944, and two legal decisions from Russian law.

THE PRESIDENT: Dr. Gawlik, I believe you are reading too rapidly.

DR. GAWLIK: The following German laws were also cited:

1. The decisions of Articles 128, 129 of the German Legal Code Book of 1871.

2. The law of 22nd March, 1921, RGB1. 1921, p. 235.

3. The law of 21st July, 1922, RGB1. 1922, p. 585.

In this connection it should be noted that according to all these laws, only individual persons may be prosecuted and that in the proceedings against such prosecuted individuals it can be established that the organization has a criminal character without this having a legal effect upon the non- prosecuted members. It can thereby be established in proceedings against some members of the organization that the organization pursues aims contrary to law, while in further proceeding against other members this can be denied.

Non-application of legal procedure against members who are not accused is nevertheless the decisive factor which differentiates these laws from Article 9 of the Charter. The decision according to Article 9 of the Charter is, in contrast to the laws cited by the prosecution, binding in the proceedings against the individual members before the Military Tribunal, and indeed the sentencing of organizations through the International Military Tribunal contains not only effective confirmation of the objective facts in the case, but furthermore an effective confirmation of guilt for all the members, as well as consciousness of the violation of the law, i.e., a legal efficacy of a hitherto completely new significance in penal law.

Therewith Article 9 deals neither with the further development of corporate law, nor with the sentencing of individual persons because of their membership in a criminal community of persons, but with a judgment of the collective members the organizations, because the essential facts which form the basis for the later judgments in the proceedings, according to Law No. 10, have been determined juridically for the collective members. In the subsequent proceedings, solely the question of membership is still to be examined. In other words: We are here concerned with the collective judgment of all members of the organization.

What is the attitude of International Law scholars toward the question of collective condemnation?

The majority of the American, English and French International Law scholars reject collective condemnation as "arbitrary and contrary to the elementary principles of justice." (Garner in International Law and World Law, Vol. I, page 154). The well-known authority on International Law, Garner, states rightly that collective condemnation, even if it is applied in the mildest form, necessarily includes tile punishment of innocent persons. Garner further goes on to explain that for this reason other just measures would not have the same effect. The French legal scholars, Bonfils and de Martens, have condemned the basic principle of collective punishment in detailed dissertations and expressed the hope that collective condemnation would disappear altogether.

These statements should be agreed to in their full extent.

In the proceedings against the organizations past crimes are to be atoned for. In order to achieve this aim, however, the indirect way of condemning the organizations is not necessary. This aim can be achieved by instituting proceedings against individual persons who participated in these crimes, as was also done in a large number of cases.

On the basis of the general legal principles of International Law and the national laws of civilized States, therefore, use should be made of the optional rule of Article 9, while refraining from declaring the accused organizations as criminal. The persons responsible for the crimes can be punished in individual proceedings.

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There now arises the other questions; whether it is possible in this trial to establish all the required facts.

To do so would appear impossible and not feasible. Even furnishing proof that all members of the SD were informed of certain criminal goals would appear impossible. Guilt can always be established for a person only. All guilt is bound to a person. If many persons participate in an offence or a crime the judge must examine the entire group of persons involved singly, in order to determine guilt, innocence or complicity in a concrete and well-defined manner.

It seems entirely impossible, however, to determine that all members were cognizant of the illegality and unrighteousness of the goals and tasks.

In this connection we must also examine what was to be the standard for members of the SD to determine whether the goals or means were illegitimate or unrighteous. According to the German law in force while the organization was in existence, these goals and means were permitted, as I shall show in the section dealing with facts. It may be conceded that the German legal measures conflicted in part with the provisions of International Law and that therefore goals and methods-while not illegal nor wrong according to the law of the German State-can nevertheless be considered illegitimate and unrighteous according to the concepts of International Law. But this is not the decisive point. What counts is whether the members, that is all the members, recognized the illegality and unrighteousness of goals and methods which were legitimate according to German law.

The well-known teacher of International Law, Oppenheim, has stated that the law cannot demand that an individual be punished for a deed which he was forced to commit in virtue of the law.

If the best-known authorities on International Law cannot agree as to what is right and wrong, can one demand from ordinary members of the organization that they recognize it?

The capital crimes which were discussed during the trial, for instance, the annihilation of the Jews, and the inhuman treatment in the concentration camps, require no discussion as to right or wrong. The organizations, however, are charged with a great number of punishable offences, and the question as to whether

1. the perpetrators generally and

2. furthermore all members knew of the injustice and the illegality cannot be answered lightly in the affirmative.

Particularly where acts and deeds were committed during the war it is very difficult to decide whether they were recognized as illegal and unjust. In peace time everybody knows that he must not kill and that foreign property is inviolable. These acts are, however, partly justifiable in war time. The soldier can kill the enemy. The confiscation of foreign property is permitted under certain circumstances. The individual who commits the deed and beyond him the members, have, therefore, only the consciousness of illegal acts which have been committed during the war, when they are aware of the limitations which are set by law.

A strict examination of these organizations is particularly necessary because their members were for the most part men who had no juridical knowledge, and to whom the limitations of International Law were unknown. I believe that this is also the opinion of the United States Chief Prosecutor, who described in his opening speech of 20th November, 1945, how a soldier assigned to an execution squad could not hold an investigation as to whether the execution was legally admissible.

While examining the question concerning the knowledge of the members as to illegality and injustice, the mistake should not be made of assuming that the simple members of the organization had the same knowledge which we now have gained in this process, on the basis of documents coming from secret archives.

Particularly in the proceedings against the SD a great number of secret papers, documents and regulations were produced, which were only intended for the internal administration of individual offices. The content of these papers, therefore, testifies that they had not been brought to the knowledge of all members but only

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to a small definite circle. In this connection I wish to refer for example to the well-known document L-180, the Stahlecker Report, dealing with the activity of Task Group A.

It can, therefore, now be ascertained that a great part of the evidence produced by the prosecution does not suffice for the collective condemnation of the members of the SD. The documents do not even prove that the offenders themselves were conscious of illegality, because in order to establish this, one must know the particular circumstances of the act. And it must still be proved that the members of the SD:

(a) knew of these acts and

(b) recognized that the acts were illegal or at least wrong.

I do not consider it necessary to discuss this question in the second part of my statement regarding each act with which the SD was charged, but in my opinion it is sufficient if I describe the problem in general and leave the examination in individual cases to the Tribunal. In each individual case, however, with which the SD is charged and with each document submitted against the SD, the Tribunal -

THE PRESIDENT: Would that be a convenient point to break off?

(The Tribunal adjourned until 27th August, 1946, at 1000 hours.)

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