The Accused Organizations
Article 9 of the Charter provides:
"At the trial of any individual member of any group organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.
"After receipt of the Indictment the Tribunal shall give such notices as it thinks fit that the Prosecution intends to ask the Tribunal to make such declaration, and any member of the organization 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 organization. The Tribunal shall
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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 organization is final, and cannot be challenged in any subsequent criminal proceedings against a member of that organization. Article 10 is as follows:
"In cases where a group or organization 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 organization 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 20 December, 1945, which provides:
"Each of the following acts is recognized as a crime: "(d) Membership in categories of a criminal group or organization 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 following:
(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.
(d) Forfeiture of property.
(e) Restitution of property wrongfully acquired.
(f) Deprivation of some or all civil rights."
In effect, therefore, a member of an organization 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 injustice. 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 organization criminal. This discretion
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is a judicial one and does not permit arbitrary action, but should be exercised in accordance with well-settled legal 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 organization 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 organization is analogous to a criminal conspiracy in that the essence of both is co-operation 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 organizations 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 organization 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 organization. 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 organizations 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 Number 10, to which reference has already been made, leaves punishment entirely at the discretion of the trial court, even to the extent of inflicting the death penalty.
The Denazification Law of 5 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 to be imposed under Law Number 10 upon any members of an organization or group declared by the Tribunal to be criminal exceed the punishment fixed by the Denazification Law. No person should be punished under both laws.
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3. The Tribunal recommends to the Control Council that Law Number 10 be amended to prescribe limitations on the punishment which may be imposed for membership in a criminal group or organization so that such punishment shall not exceed the punishment prescribed by the Denazification Law.
The Indictment asks that the Tribunal declare to be criminal the following organizations: The Leadership Corps of the Nazi Party; the Gestapo; the SD; the SS; the SA; the Reich Cabinet; and the General Staff and High Command of the German Armed Forces.
The Leadership Corps of the Nazi Party
Structure and Component Parts: The Indictment has named the Leadership Corps of the Nazi Party as a group or organization which should be declared criminal. The Leadership Corps of the Nazi Party consisted, in effect, of the official organization. of the Nazi Party, with Hitler as Fuhrer at its head. The actual work of running the Leadership Corps was carried out by the Chief of the Party Chancellery (Hess, succeeded by Bormann) assisted by the Party Reich Directorate, or Reichsleitung, which was composed of the Reichsleiter, the heads of the functional organizations of the Party, as well as of the) heads of the various main departments and offices which were attached to the Party Reich Directorate. Under the Chief of the Party Chancellery were the Gauleiter, with territorial jurisdiction over the major administrative regions of the Party, the Gaue. The Gauleiter were assisted by a Party Gau Directorate or Gauleitung, similar in composition and in function to the Party Reich Directorate. Under the Gauleiter in the Party hierarchy were the Kreisleiter with territorial jurisdiction over a Kreis, usually consisting of a single county, and assisted by a Party Kreis Directorate, or Kreisleitung. The Kreisleiter were the lowest members of the Party hierarchy who were full-time paid employees. Directly under the Kreisleiter were the Ortsgruppenleiter, then' the Zellenleiter and then the Blockleiter. Directives and instructions were received from the Party Reich Directorate. The Gauleiter had the function of interpreting such orders and issuing them to lower formations. The Kreisleiter had a certain discretion in interpreting orders, but the Ortsgruppenleiter had not, but acted under definite instructions. Instructions were only issued in writing down as far as the Ortsgruppenleiter. The Block- and Zellenleiter usually received instructions orally. Membership in the Leadership Corps at all levels was voluntary.
On 28 February 1946, the Prosecution excluded from the declaration asked for, all members of the staffs of the Ortsgruppenleiter and all assistants of the Zellenleiter and Blockleiter. The declaration sought against the Leadership Corps of the Nazi Party thus includes
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the Fuehrer, the Reichsleitung, the Gauleiter and their staff officers, the Kreisleiter and their staff officers, the Ortsgruppenleiter, the Zellenleiter, and the Blockleiter, a group estimated to contain at least 600,000 people.
Aims and Activities: The primary purpose of the Leadership Corps from its beginning was to assist the Nazis in obtaining and, after 30 January 1933, in retaining, control of the German State. The machinery of the Leadership Corps was used for the widespread dissemination of Nazi propaganda and to keep a detailed check on the political attitudes of the German people. In this activity the lower Political Leaders played a particularly important role. The Blockleiter were instructed by the Party Manual to report to the Ortsgruppenleiter , all persons circulating damaging rumors or criticism of the regime. The Ortsgruppenleiter, on the basis of information supplied them by the Blockleiter and Zellenleiter, kept a card index of the people within their Ortsgruppe which recorded the factors which would be used in forming a judgment as to their political reliability. The Leadership Corps was particularly active during plebiscites. All members of the Leadership Corps were active in getting out the vote and insuring the highest possible proportion of "yes" votes. Ortsgruppenleiter and Political Leaders of higher ranks often collaborated with the Gestapo and SD in taking steps to determine those who refused to vote or who voted "no," and in taking steps against them which went as far as arrest and detention in a concentration camp.
Criminal Activity: These steps, which relate merely to the consolidation of control of the Nazi Party, are not criminal under the view of the conspiracy to wage aggressive war which has previously been set forth. But the Leadership Corps was also used for similar steps in Austria and those parts of Czechoslovakia, Lithuania, Poland, France, Belgium, Luxembourg, and Yugoslavia which were incorporated into the Reich and within the Gaue of the Nazi Party. In those territories the machinery of the Leadership Corps was used for their Germanization through the elimination of local customs and the detection and arrest of persons who opposed German occupation. This was criminal under Article 6 (b) of the Charter in those areas governed by the Hague Rules of Land Warfare, and criminal under Article 6 (c) of the Charter as to the remainder.
The Leadership Corps played its part in the persecution of the Jews. It was involved in the economic and political discrimination against the Jews, which was put into effect shortly after the Nazis came into power. The Gestapo and SD were instructed to coordinate with the Gauleiter and Kreisleiter the measures taken in the pogroms of November 9 and 10 in the year 1938. The Leadership Corps was also used to prevent German public opinion from reacting against the
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measures taken against the Jews in the East. On 9 October 1942, a confidential information bulletin was sent to all Gauleiter and Kreisleiter entitled "Preparatory Measures for the Final Solution of the Jewish Question in Europe. Rumors Concerning the Conditions of the Jews in the East." This bulletin stated that rumors were being started by returning soldiers concerning the conditions of Jews in the East which some Germans might not understand, and outlined in detail the official explanation to be given. This bulletin contained no explicit statement that the Jews were being exterminated, but it did indicate they were going to labor camps, and spoke of their complete segregation and elimination and the necessity of ruthless severity. Thus, even at its face value, it indicated the utilization of the machinery of the Leadership Corps to keep German public opinion from rebelling at a program which was stated to involve condemning the Jews of Europe to a lifetime of slavery. This information continued to be available to the Leadership Corps. The August 1944 edition of Die Luge, a publication which was circulated among the Political Leaders, described the deportation of 430,000 Jews from Hungary.
The Leadership Corps played an important part in the administration of the Slave Labor Program. A Sauckel decree, dated 6 April 1942, appointed the Gauleiter as Plenipotentiaries for Labor Mobilization for their Gaue with authority to co-ordinate all agencies dealing with labor questions in their Gaue, with specific authority over the employment of foreign workers, including their conditions of work, feeding, and housing. Under this authority the Gauleiter assumed control over the allocation of labor in their Gaue, including the forced laborers from foreign countries. In carrying out this task the Gauleiter used many Party offices within their Gaue, including subordinate Political Leaders. For example, Sauckel's decree of 8 September 1942, relating to the allocation for household labor of 400,000 women laborers brought in from the East, established a procedure under which applications filed for such workers should be passed on by the Kreisleiter, whose judgment was final.
Under Sauckel's directive the Leadership Corps was directly concerned with the treatment given foreign workers, and the Gauleiter were specifically instructed to prevent "politically inept factory heads" from giving "too much consideration to the care of Eastern Workers." The type of question which was considered in their treatment included reports by the Kreisleiter on pregnancies among the female slave laborers, which would result in an abortion if the child's parentage would not meet the racial standards laid down by the SS, and usually detention in a concentration camp for the female slave laborer. The evidence has established that under the supervision of the Leadership Corps, the industrial workers were housed in camps under atrocious sanitary conditions, worked long hours,
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and were inadequately fed. Under similar supervision, the agricultural workers, who were somewhat better treated, were prohibited transportation, entertainment, and religious worship, and were worked without any time limit on their working hours and under regulations which gave the employer the right to inflict corporal punishment. The Political Leaders, at least down to the Ortsgruppenleiter, were responsible for this supervision. On 5 May 1943, a memorandum of Bormann, instructing that mistreatment of slave laborers cease, was distributed down to the Ortsgruppenleiter. Similarly on 10 November 1944, a Speer circular transmitted a Himmler directive which provided that all members of the Nazi Party, in accordance with instructions from the Kreisleiter, would be warned by the Ortsgruppenleiter of their duty to keep foreign workers under careful observation.
The Leadership Corps was directly concerned with the treatment of prisoners of war. On 5 November 1941, Bormann transmitted a directive down to the level of Kreisleiter instructing them to insure compliance by the Army with the recent directives of the Department of the Interior ordering that dead Russian prisoners of war should be buried wrapped in tar paper in a remote place without any ceremony or any decorations of their graves. On 25 November 1943, Bormann sent a circular instructing the Gauleiter to report any lenient treatment of prisoners of war. On 13 September 1944, Bormann sent a directive down to the level of Kreisleiter ordering that liaison be established between the Kreisleiter and the guards of the prisoners of war in order "better to assimilate the commitment of the prisoners of war to the political and economic demands." On 17 October 1944, an OKW directive instructed the officer in charge of the prisoners of war to confer with the Kreisleiter on questions of the productivity of labor. The use of prisoners of war, particularly those from the East, was accompanied by a widespread violation of the rules of land warfare. This evidence establishes that the Leadership Corps down to the level of Kreisleiter was a participant in this illegal treatment.
The machinery of the Leadership Corps was also utilized in attempts made to deprive Allied airmen of the protection to which they were entitled under the Geneva Convention. On 13 March 1940, a directive of Hess transmitted instructions through the Leadership Corps down to the Blockleiter for the guidance of the civilian population in case of the landing of enemy planes or parachutists, which stated that enemy parachutists were to be immediately arrested or "made harmless." On 30 May 1944, Bormann sent a circular letter to all Gau-and Kreisleiter reporting instances of lynchings of Allied low-level fliers in which no police action was taken. It was requested that Ortsgruppenleiter be informed orally of the contents of this letter. This letter accompanied a propaganda
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drive which had been instituted by Goebbels to induce such lynchings, and clearly amounted to instructions to induce such lynchings or at least to violate the Geneva Convention by withdrawing any police protection. Some lynchings were carried out pursuant to this program, but it does not appear that they were carried out throughout all of Germany. Nevertheless, the existence of this circular letter shows that the heads of the Leadership Corps were utilizing it for a purpose which was patently illegal and which involved the use of the machinery of the Leadership Corps at least through the Ortsgruppenleiter.
The Leadership Corps was used for purposes which were criminal under the Charter and involved the Germanization of incorporated territory, the persecution of the Jews, the administration of the slave labor program, and the mistreatment of prisoners of war. The Defendants Bormann and Sauckel, who were members of this organization, were among those who used it for these purposes. The Gauleiter, the Kreisleiter, and the Ortsgruppenleiter participated, to one degree or another, in these criminal programs. The Reichsleitung as the staff organization of the Party is also responsible for these criminal programs as well as the heads of the various staff organizations of the Gauleiter and Kreisleiter. The decision of the Tribunal on these staff organizations includes only the Amtsleiter who were heads of offices on the staffs of the Reichsleitung, Gauleitung, and Kreisleitung. With respect to other staff officers and party organizations attached to the Leadership Corps other than the Amtsleiter referred to above, the Tribunal will follow the suggestion of the Prosecution in excluding them from the declaration. The Tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Leadership Corps holding the positions enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes. The basis of this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; the group declared criminal cannot include, therefore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1September 1939.
Gestapo and SD
Structure and Component Parts: The Prosecution has named Die Geheime Staatspolizei (Gestapo) and Der Sicherheitsdienst des Reichsfiihrer SS (SD) as groups or organizations which should be
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declared criminal. The Prosecution presented the cases against the Gestapo and SD together, stating that this was necessary because of the close working relationship between them. The Tribunal permitted the SD to present its defense separately because of a claim of conflicting interests, but after examining the evidence has decided to consider the case of the Gestapo and SD together.
The Gestapo and the SD were first linked together on 26 June 1936, by the appointment of Heydrich, who was the Chief of the SD, to the position of Chief of the Security Police, which was defined to include both the Gestapo and the Criminal Police. Prior to that time the SD had been the intelligence agency, first of the SS, and, after 4 June 1934, of the entire Nazi Party. The Gestapo had been composed of the various political police forces of the several German federal states, which had been unified under the personal leadership of Himmler, with the assistance of Goring. Himmler had been appointed Chief of the German Police in the Ministry of the Interior on 17 June 1936, and in his capacity as Reichsfuehrer SS and Chief of the German Police issued his decree of 26 June 1936, which placed both the Criminal Police, or Kripo, and the Gestapo in the Security Police, and placed both the Security Police and the SD under the command of Heydrich.
This consolidation under the leadership of Heydrich of the Security Police, a State organization, and the SD, a Party organization, was formalized by the decree of 27 September 1939, which united the various State and Party offices which were under Heydrich as Chief of the Security Police and SD into one administrative unit, the Reich Security Main Office (RSHA), which was at the same time both one of the principal offices (Hauptamter) of the SS under Himmler as Reichsfuehrer SS, and an office in the Ministry of the Interior under Himmler as Chief of the German Police. The internal structure of the RSHA shows the manner in which it consolidated the offices of the Security Police with those of the SD. The RSHA was divided into seven offices (Amter), two of which (Amt I and Amt II) dealt with administrative matters. The Security Police were represented by Amt IV, the head office of the Gestapo, and by Amt V, the head office of the Criminal Police. The SD were represented by Amt III, the head office for SD activities inside Germany, by Amt VI, the head office for SD activities outside of Germany, and by Amt VII, the office for ideological research. Shortly after the creation of the RSHA, in November 1939, the Security Police was "co-ordinated" with the SS by taking all officials of the Gestapo and Criminal Police into the SS at ranks equivalent to their positions.
The creation of the RSHA represented the formalization, at the top level, of the relationship under which the SD served as the intelligence agency for the Security Police. A similar co-ordination existed in the local offices. Within Germany and areas which were
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incorporated within the Reich for the purpose of civil administration, local offices of the Gestapo, Criminal Police, and SD were formally separate. They were subject to co-ordination by inspectors of the Security Police and SD on the staffs of the local Higher SS and Police Leaders, however, and one of the principal functions of the local SD units was to serve as the intelligence agency for the local Gestapo units. In the occupied territories the formal relationship between local units of the Gestapo, Criminal Police, and SD was slightly closer. They were organized into local units of the Security Police and SD and were under the control of both the RSHA and of the Higher SS and Police Leader who was appointed by Himmler to serve on the staff of the occupying authority. The offices of the Security Police and SD in occupied territory were composed of departments corresponding to the various offices of the RSHA. In occupied territories which were still considered to be operational military areas or where German control had not been formally established, the organization of the Security Police and SD was only slightly changed. Members of the Gestapo, Kripo, and SD were joined together into military-type organizations known as Einsatzkommandos and Einsatzgruppen in which the key positions were held by members of the Gestapo, Kripo, and SD and in which members of the Order Police, the Waffen-SS, and even the Wehrmacht were used as auxiliaries. These organizations were under the overall control of the RSHA, but in front-line areas were under the operational control of the appropriate army commander.
It can thus be seen that from a functional point of view both the Gestapo and the SD were important and closely related groups within the organization of the Security Police and the SD. The Security Police and SD was under a single command, that of Heydrich and. later Kaltenbrunner, as Chief of the Security Police and SD; it had a single headquarters, the RSHA; it had its own command channels and worked as one organization both in Germany, in occupied territories, and in the areas immediately behind the front lines. During the period with which the Tribunal is primarily concerned, applicants for positions in the Security Police and SD received training in all its components, the Gestapo, Criminal Police, and SD. Some confusion has been caused by the fact that part of the organization was technically a formation of the Nazi Party while another part of the organization was an office in the Government, but this is of no particular significance in view of the law of 1 December 1933, declaring the unity of the Nazi Party and the German State.
The Security Police and SD was a voluntary organization. It is true that many civil servants and administrative officials were transferred into the Security Police. The claim that this transfer was compulsory amounts to nothing more than the claim that they
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had to accept the transfer or resign their positions, with a possibility of having incurred official disfavor. During the war a member of the Security Police and SD did not have a free choice of assignments within that organization and the refusal to accept a particular position, especially when serving in occupied territory, might have led to serious punishment. The fact remains, however, that all members of the Security Police and SD joined the organization voluntarily under no other sanction than the desire to retain their positions as officials.
The organization of the Security Police and SD also included three special units which must be dealt with separately. The first of these was the Frontier Police, or Grenzpolizei, which came under the control of the Gestapo in 1937. Their duties consisted in the control of passage over the borders of Germany. They arrested persons who crossed the borders illegally. It is also clear from the evidence presented that they received directives from the Gestapo to transfer foreign workers whom they apprehended to concentration camps, They could also request the local office of the Gestapo for permission to commit persons arrested to concentration camps. The Tribunal is of the opinion that the Frontier Police must be included in the charge of criminality against the Gestapo.
The Border and Customs Protection or Zollgrenzschutz became part of the Gestapo in the summer of 1944. The functions of this organization were similar to the Frontier Police in enforcing border regulations with particular respect to the prevention of smuggling. It does not appear, however, that their transfer was complete, but that about half of their personnel of 54,000 remained under the Reich Finance Administration or the Order Police. A few days before the end of the war the whole organization was transferred back to the Reich Finance Administration. The transfer of the organization to the Gestapo was so late and it participated so little in the overall activities of the organization that the Tribunal does not feel that it should be dealt with in considering the criminality of the Gestapo.
The third organization was the so-called Secret Field Police which was originally under the Anny but which in 1942 was transferred by military order to the Security Police. The Secret Field Police was concerned with security matters within the Army in occupied territory, and also with the prevention of attacks by civilians on military installations or units, and committed war crimes and crimes against humanity on a wide scale. It has not been proved, however, that it was a part of the Gestapo and the Tribunal does not consider it as coming within the charge of criminality contained in the Indictment, except such members as may have been transferred to Amt IV of the RSHA or were members of organizations declared criminal by this Judgment.
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Criminal Activity: Originally, one of the primary functions of the Gestapo was the prevention of any political opposition to the Nazi regime, a function which it performed with the assistance of the SD. The principal weapon used in performing this function was the concentration camp. The Gestapo did not have administrative control over 'the concentration camps, but, acting through the RSHA, was responsible for the detention of political prisoners in those camps. Gestapo officials were usually responsible for the interrogation of political prisoners at the camps.
The Gestapo and the SD also dealt with charges of treason and with questions relating to the press, the Churches, and the Jews. As the Nazi program of anti-Semitic persecution increased in intensity the role played by these groups became increasingly important. In the early morning of 10 November 1938, Heydrich sent a telegram to all offices of the Gestapo and SD, giving instructions for the organization of the pogroms of that date and instructing them to arrest as many Jews as the prisons could hold, "especially rich ones," but to be careful that those arrested were healthy and not too old. By 11 November 1938, 20,000 Jews had been arrested and many were sent to concentration camps. On 24 January 1939, Heydrich, the Chief of the Security Police and SD, was charged with furthering the emigration and evacuation of Jews from Germany, and on 31 July 1941, with bringing about a complete solution of the Jewish problem in German-dominated Europe. A special section of the Gestapo office of the RSHA under Standartenfuhrer Eichmann was set up with responsibility for Jewish matters, which employed its own agents to investigate the Jewish problem in occupied territory. Local offices of the Gestapo were used first to supervise the emigration of Jews and later to deport them to the East both from Germany and from the territories occupied during the war. Einsatzgruppen of the Security Police and SD operating behind the lines of the Eastern Front engaged in the wholesale massacre of Jews. A special detachment from Gestapo headquarters in the RSHA was used to arrange for the deportation of Jews from Axis satellites to Germany for the "final solution."
Local offices of the Security Police and SD played an important role in the German administration of occupied territories. The nature of their participation is shown by measures taken in the summer of 1938 in preparation for the attack on Czechoslovakia which was then in contemplation. Einsatzgruppen of the Gestapo and SD were organized to follow the Army into Czechoslovakia to provide for the security of political life in the occupied territories. Plans were made for the infiltration of SD men into the area in advance, and for the building up of a system of files to indicate what inhabitants should be placed under surveillance, deprived of passports or liquidated. These plans were considerably altered due to
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the cancellation of the attack on Czechoslovakia, but in the military operations which actually occurred, particularly in the war against the U.S.S.R., Einsatzgruppen of the Security Police and SD went into operation and combined brutal measures for the pacification of the civilian population with the wholesale slaughter of Jews. Heydrich gave orders to fabricate incidents on the Polish-German frontier in 1939, which would give Hitler sufficient provocation to attack Poland. Both Gestapo and SD personnel were involved in these operations.
The local units of the Security Police and SD continued their work in the occupied territories after they had ceased to be an area of operations. The Security Police and SD engaged in widespread arrests of the civilian population of these occupied countries, imprisoned many of them under inhumane conditions, subjected them to brutal third-degree methods, and sent many of them to concentration camps. Local units of the Security Police and SD were also involved in the shooting of hostages, the imprisonment of relatives, the execution of persons charged as terrorists and saboteurs without a trial, and the enforcement of the "Nacht und Nebel" decree under which persons charged with a type of offense believed to endanger the security of the occupying forces were either executed within a week or secretly removed to Germany without being permitted to communicate with their family and friends.
Offices of the Security Police and SD were involved in the administration of the slave labor program. In some occupied territories they helped local labor authorities to meet the quotas imposed by Sauckel. Gestapo offices inside of Germany were given surveillance over slave laborers and responsibility for apprehending those who were absent from their place of work. The Gestapo also had charge of the so-called work training camps. Although both German and foreign workers could be committed to these camps, they played a significant role in forcing foreign laborers to work for the German war effort. In the latter stages of the war, as the SS embarked on a slave labor program of its own, the Gestapo was used to arrest workers for the purpose of insuring an adequate supply in the concentration camps.
The local offices of the Security Police and SD were also involved in the commission of war crimes involving the mistreatment and murder of prisoners of war. Soviet prisoners of war in prisoner- of-war camps in Germany were screened by Einsatzkommandos acting under the directions of the local Gestapo offices. Commissars, Jews, members of the intelligentsia, "fanatical Communists," and even those who were considered incurably sick, were classified as "intolerable," and exterminated. The local offices of the Security Police and SD were involved in the enforcement of the "Bullet" decree, put into effect on 4 March 1944, under which certain
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categories of prisoners of war who were recaptured were not treated as prisoners of war, but taken to Mauthausen in secret and shot. Members of the Security Police and the SD were charged with the enforcement of the decree for the shooting of parachutists and Commandos.
The Gestapo and SD were used for purposes which were criminal under the Charter, involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labor program and the mistreatment and murder of prisoners of war. The Defendant Kaltenbrunner, who was a member of this organization, was among those who used it for these purposes. In dealing with the Gestapo the Tribunal includes all executive and administrative officials of Amt IV of the RSHA, or concerned with Gestapo administration in other departments of the RSHA, and all local Gestapo officials serving both inside and outside of Germany, including the members of the Frontier Police, but not including the members of the Border and Customs Protection or the Secret Field Police, except such members as have been specified above. At the suggestion of the Prosecution the Tribunal does not include persons employed by the Gestapo for purely clerical, stenographic, janitorial, or similar unofficial routine tasks. In dealing with the SD the Tribunal includes Amter III, VI, and VII of the RSHA and all other members of the SD, including all local representatives and agents, honorary or otherwise, whether they were technically members of the SS or not. The Tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Gestapo and SD holding the positions enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes. The basis for this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; this group declared criminal cannot include, there- fore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1 September 1939.
THE PRESIDENT: The Tribunal will adjourn for 10 minutes.
[A recess was taken.]
THE PRESIDENT: Owing to a mistake in the text, there are two corrections which I desire to make on behalf of the Tribunal.
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The first occurs on Page 149 in the sentence which reads as follows: "The Tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Leadership Corps holding the positions enumerated in the preceding paragraph and then the word "or" should be omitted and the sentence should continue "who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter." That was the first mistake.
The second mistake was on Page 158, in the sentence at the bottom of the page, which reads as follows: "In dealing with the SD the Tribunal includes Amter III, VI and VII of the RSHA." The translation came through "Amter III, IV and V." It should have been Amter III, VI and VII.
Now I will continue the reading of the Judgment.
Structure and Component Parts: The Prosecution has named Die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (commonly known as the SS) as an organization which should be declared criminal. The portion of the Indictment dealing with the SS also includes the Sicherheitsdienst des Reichsfuhrer SS (commonly known as the SD). This latter organization, which was originally an intelligence branch of the SS, later became an important part of the organization of the Security Police and SD and is dealt with in the Tribunal's judgment on the Gestapo.
The SS was originally established by Hitler in 1925 as an elite section of the SA for political purposes under the pretext of protecting speakers at public meetings of the Nazi Party. After the Nazis had obtained power the SS was used to maintain order and control audiences at mass demonstrations and was given the additional duty of "internal security" by a decree of the Fuhrer. The SS played an important role at the time of the Rohm purge of 30 June 1934, and, as a reward for its services, was made an independent unit of the Nazi Party shortly thereafter.
In 1929, when Himmler was first appointed as Reichsfuehrer, the SS consisted of 280 men who were regarded as especially trustworthy. In 1933 it was composed of 52,000 men drawn from all walks of life. The original formation of the SS was the Allgemeine SS, which by 1939 had grown to a corps of 240,000 men, organized on military lines into divisions and regiments. During the war its strength declined to well under 40,000.
The SS originally contained two other formations, the SS Verfugungstruppe, a force consisting of SS members who volunteered for four years' armed service in lieu of compulsory service with
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the Army, and the SS Totenkopfverbande, special troops employed to guard concentration camps, which came under the control of the SS in 1934. The SS Verfugungstruppe was organized as an armed unit to be employed with the Army in the event of mobilization. In the summer of 1939, the Verfugungstruppe was equipped as a motorized division to form the nucleus of the folrces which came to (be known in 1940 as the Waffen-SS. In that year the Waffen-SS comprised 100,000 men, 56,000 coming from the Verfugungstruppe and the rest from the Allgemeine SS and the Totenkopfverbande. At the end of the war it is estimated to have consisted of about 580,000 men and 40 divisions. The Waffen-SS was under the tactical command of the Army, but was equipped and supplied through the administrative branches of the SS and under SS disciplinary control.
The SS central organization had 12 main offices. The most important of these were the RSHA, which has already been discussed, the WVHA or Economic Administration Main Office, which administered concentration camps along with its other duties, a Race and Settlement Office together with auxiliary offices for repatriation of racial Germans (Volksdeutsche Mittelstelle). The SS central organization also had a legal office and the SS possessed its own legal system; and its personnel were under the jurisdiction of special courts. Also attached to the SS main offices was a research foundation known as the Experiments Ahnenerbe. The scientists attached to this organization are stated to have been mainly honorary members of the SS. During the war an institute for military scientific research became attached to the Ahnenerbel which conducted extensive experiments involving the use of living human beings. An employee of this institute was a certain Dr. Rascher, who conducted these experiments with the full knowledge of the Ahnenerbe, which were subsidized and under the patronage of the Reichsfuhrer SS who was a trustee of the foundation.
Beginning in 1933 there was a gradual but thorough amalgamation of the Police and SS. In 1936 Himmler, the Reichsfuehrer SS, became Chief of the German Police with authority over the regular uniformed Police as well as the Security Police. Himmler established a system under which Higher SS and Police Leaders, appointed for each Wehrkreis, served as his personal representatives in co-ordinating the activities of the Order Police, Security Police and SD, and Allgemeine SS within their jurisdictions. In 1939 the SS and police systems were co-ordinated by taking into the SS all officials of the Security and Order Police, at SS ranks equivalent to their rank in the Police.
Until 1940 the SS was an entirely voluntary organization. After the formation of the Waffen-SS in 1940 there was a gradually increasing number of conscripts into the Waffen-SS. It appears that
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about a third of the total number of people joining the Waffen-SS were conscripts, that the proportion of conscripts was higher at the end of the war than at the beginning, but that there continued to be a high proportion of volunteers until the end of the war.
Criminal Activities: SS units were active participants in the steps leading up to aggressive war. The Verfugungstruppe was used in the occupation of the Sudetenland, of Bohemia and Moravia, and of Memel. The Henlein Free Corps was under the jurisdiction of the Reichsfuehrer SS for operations in the Sudetenland in 1938, and the Volksdeutsche Mittelstelle financed fifth-column activities there.
The SS was even a more general participant in the commission of war crimes and crimes against humanity. Through its control over the organization of the Police, particularly the Security Police and SD, the SS was involved in all the crimes which have been outlined in the section of this Judgment dealing with the Gestapo and SD. Other branches of the SS were equally involved in these criminal programs. There is evidence that the shooting of unarmed prisoners of war was the general practice in some Waffen-SS divisions. On 1 October 1944, the custody of prisoners of war and interned persons was transferred to Himmler, who in turn transferred prisoner-of-war affairs to SS Obergruppenfuehrer Berger and to SS Obergruppenfuehrer Pohl. The Race and Settlement Office of the SS, together with the Volksdeutsche Mittelstelle, were active in carrying out schemes for Germanization of occupied territories according to the racial principles of the Nazi Party and were involved in the deportation of Jews and other foreign nationals. Units of the Waffen-SS and Einsatzgruppen operating directly under the SS Main Office were used to carry out these plans. These units were also involved in the widespread murder and ill-treatment of the civilian population of occupied territories. Under the guise of combating partisan units, units of the SS exterminated Jews and people deemed politically undesirable by the SS, and their reports record the execution of enormous numbers of persons. Waffen-SS divisions were responsible for many massacres and atrocities in occupied territories such as the massacres at Oradour and Lidice.
From 1934 onwards the SS was responsible for the guarding and administration of concentration camps. The evidence leaves no doubt that the consistently brutal treatment of the inmates of concentration camps was carried out as a result of the general policy of the SS, which was that the inmates were racial inferiors to be treated only with contempt. There is evidence that where manpower considerations permitted, Himmler wanted to rotate guard battalions so that all members of the SS would be instructed as to the proper attitude to take to inferior races, After 1942, when the
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concentration camps were placed under the control of the WVHA, they were used as a source of slave labor. An agreement made with the Ministry of Justice on 18 September 1942 provided that anti-social elements who had finished prison sentences were to be delivered to the SS to be worked to death. Steps were continually taken, involving the use of the Security Police and SD and even the Waffen-SS, to insure that the SS had an adequate supply of concentration camp labor for its projects. In connection with the administration of the concentration camps, the SS embarked on a series of experiments on human beings which were performed on prisoners of war or concentration camp inmates. These experiments included freezing to death and killing by poison bullets. The SS was able to obtain an allocation of Government funds for this kind of research on the grounds that they had access to human material not available to other agencies.
The SS played a particularly significant role in the persecution of the Jews. The SS was directly involved in the demonstrations of 10 November, 1938. The evacuation of the Jews from occupied territories was carried out under the directions of the SS with the assistance of SS Police units. The extermination of the Jews was carried out under the direction of the SS central organizations. It was actually put into effect by SS formations. The Einsatzgruppen engaged in wholesale massacres of the Jews. SS Police units were also involved. For example, the massacre of Jews in the Warsaw ghetto was carried out under the directions of SS Brigadefuehrer and Major General of the Police Stroop. A special group from the SS central organization arranged for the deportation of Jews from various Axis satellites, and their extermination was carried out in the concentration camps run by the WVHA.
It is impossible to single out any one portion of the SS which was not involved in these criminal activities. The Allgemeine SS was an active participant in the persecution of the Jews and was used as a source of concentration camp guards. Units of the Waffen-SS were directly involved in the killing of prisoners of war and the atrocities in occupied countries. It supplied personnel for the Einsatzgruppen, and had command over the concentration camp guards after its absorption of the Totenkopf SS, which originally controlled the system. Various SS Police units were also widely used in the atrocities in occupied countries and the extermination of the Jews there. The SS central organization supervised the activities of these various formations and was responsible for such special projects as the human experiments and "final solution" of the Jewish question.
The Tribunal finds that knowledge of these criminal activities was sufficiently general to justify declaring that the SS was a
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criminal organization to the extent hereinafter described. It does appear that an attempt was made to keep secret some phases of its activities, but its criminal programs were so widespread, and involved slaughter on such a gigantic scale, that its criminal activities must have been widely known. It must be recognized, moreover, that the criminal activities of the SS followed quite logically from the principles on which it was organized. Every effort had been made to make the SS a highly disciplined organization composed of the elite of National Socialism. Himmler had stated that there were people in Germany "who become sick when they see these black coats" and that he did not expect that "they should be loved by too many." Himmler also indicated his view that the SS was concerned with perpetuating the elite racial stock with the object of making Europe a Germanic continent, and the SS was instructed that it was designed to assist the Nazi Government in the ultimate domination of Europe and the elimination of all inferior races. This mystic and fanatical belief in the superiority of the Nordic German developed into the studied contempt and even hatred of other races which led to criminal activities of the type outlined above being considered as a matter of course if not a matter of pride. The actions of a soldier in the Waffen-SS who in September 1939, acting entirely on his own initiative, killed 50 Jewish laborers whom he had been guarding, were described by the statement that as an SS man, he was "particularly sensitive to the sight of Jews," and had acted "quite thoughtlessly in a youthful spirit of adventure," and a sentence of 3 years imprisonment imposed on him was dropped under an amnesty. Hess wrote with truth that the Waffen-SS were more suitable for the specific tasks to be solved in occupied territory owing to their extensive training in questions of race and nationality. Himmler, in a series of speeches made in 1943, indicated his pride in the ability of the SS to carry out these criminal acts. He encouraged his men to be "tough and ruthless," he spoke of shooting "thousands of leading Poles," and thanked them for their co-operation and lack of squeamishness at the sight of hundreds and thousands of corpses of their victims. He extolled ruthlessness in exterminating the Jewish race and later described this process as "delousing." These speeches show that the general attitude prevailing in the SS was consistent with these criminal acts.
The SS was utilized for purposes which were criminal under the Charter involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labor program, and the mistreatment and murder of prisoners
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of war. The Defendant Kaltenbrunner was a member of the SS implicated in these activities. In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS, including the members of the Allgemeine SS, members of the Waffen-SS, members of the SS Totenkopfverbande, and the members of any of the different police forces who1 were members of the SS. The Tribunal does not include the so-called SS riding units. The Sicherheitsdienst des Reichsfuhrer SS (commonly known as the SD) is dealt with in the Tribunal's judgment on the Gestapo and SD.
The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph, who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes. The basis of this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; this group declared criminal cannot include, therefore, persons who had ceased to belong to the organizations enumerated in the preceding paragraph prior to 1 September 1939.
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Structure and Component Parts: The Prosecution has named die Sturmabteilungen der Nationalsozialistischen Deutschen Arbeiterspartei (commonly known as the SA) as an organization which should be declared criminal. The SA was founded in 1921 for political purposes. It was organized on military lines. Its members wore their own uniforms and had their own discipline and regulations. After the Nazis had obtained power the SA greatly increased in membership due to the incorporation within it of certain veterans' organizations. In April 1933, the Stahlhelm, an organization of one and a half million members, was transferred into the SA, with the exception of its members over 45 years of age and some others, pursuant to an agreement between their leader Seldte and Hitler. Another veterans' organization, the so-called Kyffhauserbund, was transferred in the same manner, together with a number of rural riding organizations.
Until 1933, there is no question but that membership in the SA was voluntary. After 1933 civil servants were under certain political and economic pressure to join the SA. Members of the Stahlhelm,
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the Kyffhauserbund and the rural riding associations were transferred into the SA without their knowledge, but the Tribunal is not satisfied that the members in general endeavored to protest against this transfer or that there was any evidence, except in isolated cases, of the consequences of refusal. The Tribunal therefore finds that membership in the SA was generally voluntary.
By the end of 1933 the SA was composed of 4 ½ million men. As a result of changes made after 1934, in 1939 the SA numbered l ½ million men.
Activities: In the early days of the Nazi movement the storm troopers of the SA acted as the "strong arm of the Party." They took part in the beer hall feuds and were used for street fighting in battles against political opponents. The SA was also used to disseminate Nazi ideology and propaganda and placed particular emphasis on anti-Semitic propaganda, the doctrine of "Lebensraum," the revision of the Versailles Treaty, and the return of Germany's colonies.
After the Nazi advent to power, and particularly after the elections of 5 March 1933, the SA played an important role in establishing a Nazi reign of terror over Germany. The SA was involved in outbreaks of violence against the Jews and was used to arrest political opponents and to guard concentration camps, where they subjected their prisoners to brutal mistreatment.
On 30 June and 1 and 2 July 1934, a purge of SA leaders occurred. The pretext which was given for this purge, which involved the killing of Röhm, the Chief of Staff of the SA, and many other SA leaders, was the existence of a plot against Hitler. This purge resulted in a great reduction in the influence and power of the SA. After 1934, it rapidly declined in political significance.
After 1934 the SA engaged in certain forms of military or paramilitary training. The SA continued to engage in the dissemination of Nazi propaganda. Isolated units of the SA were even involved in the steps leading up to aggressive war and in the commission of war crimes and crimes against humanity. SA units were among the first in the occupation of Austria in March 1938. The SA supplied many of the men and a large part of the equipment which composed the Sudeten Free Corps of Henlein, although it appears that the corps was under the jurisdiction of SS during its operation in Czechoslovakia.
After the occupation of Poland, the SA group Sudeten was used for transporting prisoners of war. Units of the .SA were employed in the guarding of prisoners in Danzig, Posen, Silesia and the Baltic states.
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Some SA units were used to blow up synagogues in the Jewish pogrom of 10 and 11 November 1938. Groups of the SA were concerned in the ill-treatment of Jews in the ghettos of Vilna and Kaunas.
Until the purge beginning on 30 June 1934, the SA was a group composed in large part of ruffians and bullies who participated in the Nazi outrages of that period. It has not been shown, however, that these atrocities were part of a specific plan to wage aggressive war, and the Tribunal therefore cannot hold that these activities were criminal under the Charter. After the purge, the SA was reduced to the status of a group of unimportant Nazi hangers-on. Although in specific instances some units of the SA were used for the commission of war crimes and crimes against humanity, it cannot be said that its members generally participated in or even knew of the criminal acts. For these reasons the Tribunal does not declare the SA to be a criminal organization within the meaning of Article 9 of the Charter.
The Reich Cabinet
The Prosecution has named as a criminal organization the Reich Cabinet (Die Reichsregierung) consisting of members of the ordinary Cabinet after 30 January 1933, members of the Council of Ministers for the Defense of the Reich and members of the Secret Cabinet Council. The Tribunal is of opinion that no declaration of criminality should be made with respect to the Reich Cabinet for two reasons:
(1) because it is not shown that after 1937 it ever really acted as a group or organization;
(2) because the group of persons here charged is so small that members could be conveniently tried in proper cases without resort to a declaration that the Cabinet of which they were members was criminal.
As to the first reason for our decision, it is to be observed that from the time that it can be said that a conspiracy to make aggressive war existed, the Reich Cabinet did not constitute a governing body, but was merely an aggregation of administrative, officers subject to the absolute control of Hitler. Not a single meeting of the Reich Cabinet was held after 1937, but laws were promulgated in the name of one or more of the cabinet members. The Secret Cabinet Council never met at all. A number of the cabinet members were undoubtedly involved in the conspiracy to make aggressive war; but they were involved as individuals, and there is no evidence that the Cabinet as a group or organization took any part in these
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crimes. It will be remembered that when Hitler disclosed his aims of criminal aggression at the Hossbach conference, the disclosure .was not made before the Cabinet and that the Cabinet was not consulted with regard to it but, on the contrary, that it was made secretly to a small group upon whom Hitler would necessarily rely in carrying on the war. Likewise no cabinet order authorized the invasion of Poland. On the contrary, the Defendant Schacht testifies that he sought to stop the invasion by a plea to the Commander-in-Chief of the Army that Hitler's order was in violation of the Constitution because not authorized by the Cabinet.
It does appear, however, that various laws authorizing acts which were criminal under the Charter were circulated among the members of the Reich Cabinet and issued under its authority, signed by the members whose departments were concerned. This does not, however, prove that the Reich Cabinet, after 1937, ever really acted as an organization.
As to the second reason, it is clear that those members of the Reich Cabinet who have been guilty of crimes should be brought to trial; and a number of them are now on trial before the Tribunal. It is estimated that there are 48 members of the group, that eight of these are dead and 17 are now on trial, leaving only 23 at the most, as to whom the declaration could have any importance. Any others who are guilty should also be brought to trial; but nothing would be accomplished to expedite or facilitate their trials by declaring the Reich Cabinet to be a criminal organization. Where an organization with a large membership is used for such purposes, a declaration obviates the necessity of inquiring as to its criminal character in the later trial of members who are accused of participating through membership in its criminal purposes and thus saves much time and trouble. There is no such advantage in the case of a small group like the Reich Cabinet.
General Staff and High Command
The Prosecution has also asked that the General Staff and High Command of the German Armed Forces be declared a criminal organization. The Tribunal believes that no declaration of criminality should be made with respect to the General Staff and High Command. The number of persons charged, while larger than that of the Reich Cabinet, is still so small that individual trials of these officers would accomplish the purpose here sought better than a declaration such as is requested. But a more compelling reason is that in the opinion of the Tribunal the General Staff and High Command is neither an "organization" nor a "group" within the meaning of those terms as used in Article 9 of the Charter.
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Some comment on the nature of this alleged group is requisite. According to the Indictment and evidence before the Tribunal, it consists of approximately 130 officers, living and dead, who at any time during the period from February 1938, when Hitler reorganized the Armed Forces, and May 1945, when Germany surrendered, held certain positions in the military hierarchy. These men were high- ranking officers in the three armed services: OKH, Army; OKM, Navy; and OKL, Air Force. Above them was the overall Armed Forces authority, OKW, High Command of the German Armed Forces, with Hitler as the Supreme Commander. The officers in the OKW, including Defendant Keitel as Chief of the High Command, were in a sense Hitler's personal staff. In the larger sense they co-ordinated and directed the three services, with particular emphasis on the functions of planning and operations.
The individual officers in this alleged group were, at one time or another, in one of four categories: 1) commanders-in-chief of one of the three services; 2) chief of staff of one of the three services; 3) "Oberbefehlshaber," the field commanders-in-chief of one of the three services, which of course comprised by far the largest number of these persons; or 4) an OKW officer, of which there were three, Defendants Keitel and Jodl, and the latter's deputy chief, Warlimont. This is the meaning of the Indictment in its use of the term "General Staff and High Command."
The Prosecution has here drawn the line. The Prosecution does not indict the next level of the military hierarchy, consisting of commanders of army corps, and equivalent ranks in the Navy and Air Force, nor the level below, the division commanders or their equivalent in the other branches. And the staff officers of the four staff commands of OKW, OKH, OKM, and OKL are not included, nor are the trained specialists who were customarily called General Staff officers.
In effect, then, those indicted as members are military leaders of the Reich of the highest rank. No serious effort was made to assert that they composed an "organization" in the sense of Article 9. The assertion is rather that they were a "group," which is a wider and more embracing term than "organization."
The Tribunal does not so find. According to the evidence, their planning at staff level, the constant conferences' between staff officers and field commanders, their operational technique in the field and at headquarters, was much the same as that of the armies, navies, and air forces of all other countries. The overall effort of the OKW at co-ordination and direction could be matched by a similar, though not identical, form of organization in other military forces, such as the Anglo-American Combined Chiefs of Staff.
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To derive from this pattern of their activities the existence of an association or group does not, in the opinion of the Tribunal, logically follow. On such a theory the top commanders of every other nation are just such an association rather than what they actually are, an aggregation of military men, a number of individuals who happen at a given period of time to hold the high-ranking military positions.
Much of the evidence and the argument has centered around the question of whether membership in these organizations was or was not voluntary; in this case, it seems to the Tribunal to be quite beside the point. For this alleged criminal organization has one characteristic, a controlling one, which sharply distinguishes it from the other five indicted. When an individual became a member of the SS, for instance, he did so voluntarily or otherwise, but certainly with the knowledge that he was joining something. In the case of the General Staff and High Command, however, he could not know he was joining a group or association, for such an association did not exist except in the charge of the Indictment. He knew only that he had achieved a certain high rank in one of the three services, and could not be conscious of the fact that he was becoming a member of anything so tangible as a "group," as that word is commonly used. His relations with his brother officers in his own branch of the service and his association with those of the other two branches were, in general, like those of other services all over the world.
The Tribunal therefore does not declare the General Staff and High Command to be a criminal organization.
Although the Tribunal is of the opinion that the term "group" in Article 9 must mean something more than this collection of military officers, it has heard much evidence as to the participation of these officers in planning and waging aggressive war, and in committing war crimes and crimes against humanity. This evidence is, as to many of them, clear and convincing.
They have been responsible in large measure for the miseries and suffering that have fallen on millions of men, women, and children. They have been a disgrace to the honorable profession of arms. Without their military guidance the aggressive ambitions of Hitler and his fellow-Nazis would have been academic and sterile. Although they were not a group falling within the words of the Charter, they were certainly a ruthless military caste. The contemporary German militarism flourished briefly with its recent ally, National Socialism, as well as or better than it had in the generations of the past.
Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defense they say
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they had to obey; when confronted with Hitler's brutal crimes, which are shown to have been within their general knowledge, they say they disobeyed. The truth is that they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said.
Where the facts warrant it, these men should be brought to trial so that those among them who are guilty of these crimes should not escape punishment.
The Tribunal will sit tomorrow at 9:30 A.M., and the Tribunal will now adjourn.
[The Tribunal adjourned until 1 October 1946 at 0930 hours.]
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http://www.ess.uwe.ac.uk/WCC/greifelt4.htm2. MEMBERSHIP OF CRIMINAL ORGANISATIONS
Convictions of the accused for membership in criminal organisations were made in consequence and on the basis of an important and elaborate development in international law regarding this subject.
The concept of the crime of membership originated in the United Nations War Crimes Commission and later evolved in rules laid down by Governments as part of contemporary international law and implemented by the International Military Tribunal at Nuremberg and other courts, and still further developed in the municipal law of various nations (Footnote 1: For the Polish approach to this question see Vol. VII, pp.5-7, 18-24 and 86-7.). The following is a survey of this evolution.
(i) Emergence of the Concept in the United Nations War Crimes Commission
In the earliest stages of the Commission’s activities the opinion was expressed that in certain cases no other prima facie evidence of guilt of alleged war criminals was required than the fact that such individuals belonged to groups or organisations known to have been actively engaged in the systematic perpetration of criminal acts. The organisations and groups envisaged were those of the Nazis, such as the ill-famed Gestapo, the S.S. and the S.A. The argument was brought forward that the groups involved were so deeply engaged in mass criminality that to require evidence of individual guilt in each specific case would be an unnecessary and even impossible task. Cases were recalled where all the witnesses of an established crime, such as massacres, had disappeared as victims of the crime, and where the group
which had committed the crime was identified as a whole. In such cases, it was argued, the mere fact of identifying at a later stage the individuals who were members of such a group created a serious presumption that they had all taken part in the commission of the crime. Therefore membership of the group introduced in itself a presumption of guilt, and “ the real crime consisted in the mere fact of being a member operating in an oppressed country.”
At the same time evidence was at hand in the Commission that groups or organisations such as the Gestapo, SS and SA had not pursued their criminal activities on their own initiative. This evidence led to the top of the Nazi State and Party machinery and disclosed a series of explicit instructions coming from the Nazi Government. Proposals were consequently made to treat the Nazi Government itself as a criminal group, as it was the originator and instigator of all the crimes perpetrated by groups subordinated to its authority.
At this stage the Commission did not feel authorised to take a stand which could in fact amount to the introduction of precise legal rules in this matter whilst such rules had hitherto been non-existent. It took the wiser course of expressing only recommendations as to what should be done by the Governments, who were in a position to make the law required by the novelty of mass criminality as practised by the Nazis. A thorough study of the facts concerning the groups and organisations at stake was made and on 16th May, 1945, the following recommendation was adopted :
The recommendation under (a) met the proposals made in regard to the Nazi Government, to the extent to which it included it under the general denomination of “ leading criminals responsible for the organisation of criminal enterprises.” The recommendations under (b) met the proposals regarding the necessity of imposing punishment for membership of groups for which it has been proved that they had committed crimes. All details were left aside, and in particular the questions as to whether or not membership in itself should warrant punishment, in which cases and under what rules of evidence. Such details were to be laid down during the trial of the Nazi major war criminals before the International Military Tribunal at Nuremberg.“ (a) To seek out the leading criminals responsible for the organisation of criminal enterprises including systematic terrorism, planned looting and the general policy of atrocities against the peoples of the occupied States, in order to punish all the organisers of such crimes ;
“ (b) To commit for trial, either jointly or individually all those who, as members of these criminal gangs, have taken part in any way in the carrying out of crimes committed collectively by groups, formations or units.”
(ii) Development at the Nuremberg Trial of Nazi Major War Criminals
The first, and for the time being, the only authoritative pronouncement on criminal groups or organisations on the basis of international law, was made during the trial of the German Major War Criminals by the International Military Tribunal at Nuremberg. The pronouncement was made by the Tribunal on the basis of specific provisions of the Charter, which
defined its jurisdiction and procedure, and after considering specific charges brought by the Prosecutors. The latter played a very prominent part in defining the boundaries of the concept of collective penal responsibility and contributed largely to the final decision of the Tribunal. Both the law of the Charter and the Judgment of the Tribunal introduce a novel method of dealing with organised mass criminality of a type which is itself new in many respects. The Judgment can be regarded as a judicial precedent with far reaching effect. One of its legal effects was that the decision of an international court had, to a certain extent, become binding upon other national or local courts, and that it had introduced an effective judicial means of combating mass criminality organised by States against other States and nations.
(a) The Law of the Charter
The defendants at the Nuremberg Trial were all members of one or more Nazi groups or organisations, and in addition to bodies such as the Gestapo, S.S. or S.A., the prosecutors included in their Indictment bodies such as the General Staff and the High Command. The relevant provisions in the Nuremberg Charter are the following :
The criminal acts for which a group or organisation may be declared criminal are those covered by the Charter in its Art. 6, i.e., crimes against peace, war crimes and crimes against humanity.“ Article 9
“ 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
“ 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.
“ Article 11
“ Any person convicted by the Tribunal may be charged before a national military or occupation court, referred to in Article 10 of this Charter, with a crime other than of membership in a criminal group or organisation and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organisation.”
It will be noted that the Charter does not define a “ group ” or “ organisation.” The matter is left to the appreciation of the Tribunal as a question of fact. The above provisions lay down the following rules or principles :
(a) A declaration of criminality in respect of a group or organisation can be made by the Tribunal on condition that any of the defendants before it is a member of such group or organisation.
(b) The declaration is an act within the discretionary power of the Tribunal, which is not bound to adjudicate on the issue if it does not deem it appropriate to do so.
(c) The declaration is confined to establishing the criminal nature of the group or organisation, and no punishment is pronounced against the individuals involved. This is left to the subsequent courts.
(d) Once a group or organisation is declared criminal by the Tribunal, the bringing of its members to trial is within the discretionary power of the Signatories to the Charter. The declaration does not bind them to prosecute such members.
(e) An individual brought to trial as a consequence of the declaration is prosecuted for the crime of “ membership ” in the group or organisation. This is particularly emphasised in the wording of Art. 11.
(f) The legal effect of the declaration is that in the subsequent proceedings of the court before which a member is brought to trial, the criminal nature of the group or organisation is considered proved and cannot be questioned.
The most important provision is undoubtedly the last, quoted under (f). A narrow, literal interpretation of its terms could lead to the conclusion that the mere fact of having belonged to an organisation declared criminal is in itself a crime without further qualifications, and that the subsequent court has no choice but to condemn the accused once he is brought before it. Such far-reaching conclusion was, however, not arrived at by the Tribunal, neither was it meant in the Charter or advocated by the majority of the prosecutors. Both the latter, and the Tribunal in its Judgment, laid down certain conditions in which a member should be regarded as personally guilty.
(b) The Theory of Collective Criminality
Judicial declarations of the criminal nature of given groups or organisations, as were envisaged by the Nuremberg Charter, are based upon the concept of collective criminality and liability as distinct from individual criminality and liability. The Charter left only partially answered the question of just what this concept meant in the sphere of penal law, and what consequences were implied as a result of the rule that a declaration made by the Nuremberg Tribunal could not be overruled by other courts.
The prosecutors undertook to provide the answers, and in doing so they constructed a precise and complete theory. The theory was evolved by the United States Chief Prosecutor, Justice Robert H. Jackson, one of the promoters and principal authors of the Nuremberg Charter and the leading figure at the Trial. It was endorsed by the other prosecutors, with certain not unimportant reservations expressed by the Russian prosecutor, and was accepted and confirmed by the Tribunal in its Judgment. This develop-
ment took place in response to a decision of the Tribunal requesting the prosecution and the defence to clarify in particular the tests of criminality which were to be applied, in view of the fact that the Charter did not define a criminal group or organisation. The theory can conveniently be described under three main items : the concept of collective criminality ; the legal nature of a declaration of criminality ; and the effects of such declaration.
The Concept of Collective Criminality. When presenting the case against criminal groups or organisations to the Tribunal, Justice Jackson made reference in the first place to the fact that the Charter did not introduce an entirely new legal concept. He referred to the legislation of different countries in which membership in certain collective bodies, as well as the bodies themselves, were considered criminal and their members prosecuted as such and quoted the following examples :
A United States Law of 28th June, 1940, provides that it is unlawful for any person to organise or help to organise any society, group or assembly of persons to teach, advocate or encourage the overthrow or destruction of any government in the United States by force or violence, or to be or become the member of, or affiliate with, any such society, group or assembly of persons knowing its purposes.
In Great Britain there were in the past laws of a similar nature, such as the British India Act No. 30 of 1836. It provided that “ whoever was proved to have belonged to a gang of thugs ” was to be punished with “ imprisonment for life with hard labour.”
The French Penal Code provides that any organised “ association or understanding ” made with the object of preparing or committing crimes against persons or property, constitute a crime against public peace.
The Soviet Penal Code contains provisions similar to those of the French Code, around the concept of the “ crime of banditry.”
The most striking references were those made to the German laws themselves. The German Penal Code of 1871 punished by imprisonment the “ participation in an organisation, 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.” In 1927 and 1928 German Courts treated the entire German Communist Party as criminal, and pronounced sentences against its Leadership Corps. Judgment against members of the Communist Party included every cashier, employee, delivery boy and messenger, and every district leader. In 1924 German courts declared the entire Nazi Party to be a criminal organisation. The German Supreme Court laid down general principles for any organisation liable to a declaration of criminality and stated that it was “ a matter of indifference whether all the members pursued the forbidden aims.” It was “ enough if a part exercised the forbidden activity.” It also considered irrelevant whether “ members of the group or association agreed with the aim, tasks, means of working and means of fighting ” and what their “ real attitude of mind ” was. In all such cases they were held guilty.
While referring to these precedents, Justice Jackson introduced the essence of the concept of collective criminality, through the notion of “ conspiracy ” as it evolved more particularly in English and American law.
The criterion provided by the latter, for determining whether the ends of the indicted organisations were guilty ends, was whether the organisations contemplated “ illegal methods ” or intended “ illegal ends.” If so, the responsibility of each member for the acts of every other member was not essentially different from the liability for conspiracy. The principles of the latter were that no formal meeting or agreement was necessary ; that no member was bound to know who the other members were and what part they were to take or what acts they had committed ; that members were liable for acts of other members, although particular acts were not intended or anticipated, if they were committed in execution of the common plan ; and, finally, that it was not essential to be a member of the conspiracy at the same time as the others or at the time of the criminal acts.
It was in connection with these firmly established precedents that the United States Chief Prosecutor submitted to the Tribunal the principles which, in his opinion and in that of his colleagues, should govern the concept of collective criminality. “We think,” said Justice Jackson, “that on ordinary legal principles the burden of proof to justify a declaration of criminality is, of course, upon the prosecution.” He then declared that this burden was discharged by answering the following four essential tests of criminality, which represent at the same time the fundamental elements of the concept of collective criminality :
(1) The group or organisation must be “ some aggregation of persons associated in identifiable relationship with a collective, general purpose,” or, as this was put by another United States prosecuting officer, with “ a common plan of action.” The notions of “ group ” or “ organisation ” are non-technical. They “ mean in the context of the Charter what they mean in the ordinary speech of the people.” The term “ group ” is used “ as a broader term, implying a looser or less formal structure or relationship than is implied in the term organisation.”
(2) Membership in such group or organisation “ must be generally voluntary,” that is “ the membership as a whole, irrespective of particular cases of compulsion against individuals or groups of individuals within the organisation must not have been due to legal compulsion.”
(3) The aims of the organisation “ must have been criminal in that it was designed to perform acts denounced as crimes in Art. 6 of the Charter,” that is crimes against peace, war crimes or crimes against humanity. The organisation “ must have participated directly and effectively in the accomplishment ” of these criminal aims and “ must have committed ” crimes from Art 6.
(4) The criminal “ aims or methods of the organisation must have been of such character that its membership in general may properly be charged with knowledge of them.”
As a fifth and last condition, required only for the purpose of enabling the Nuremberg Tribunal to make a declaration of criminality under the Charter, the United States Chief Prosecutor referred to the necessity of establishing that some individual defendant tried by the Tribunal had been a member of the organisation, and was guilty of some act on the basis of which the organisation was to be declared criminal.
Such were the elements of the concept of collective criminality as defined by the Prosecution and as lying at the root of the concept of “ criminal organisation ” and of a declaration under the Nuremberg Charter. It will be noted that with qualifications, such as voluntary membership and knowledge of the criminal purposes or acts, they are far from operating on the basis of automatic and indiscriminate collective guilt. What they do is to circumscribe a sphere of undisputed criminal activity conducted by a multitude of individuals who have, as a whole, willingly and knowingly taken part in it. On the other hand, as defined, they relate to a specific judicial act which, although denouncing the whole group as criminal, does not prejudice the issue of guilt and punishment of the individual members. This, as we will see, is only partly and in principle solved in a declaration of criminality, whereas the actual decision is left to the competent courts and fully allows for acquittals, as the case may be.
Legal Nature of the Declaration of Criminality. The declaration of criminality as provided in the Nuremberg Charter, is a specific judicial act. The indicted organisations, said the United States Chief Prosecutor, were “ not on trial in the conventional sense of that term.” They were “ more nearly under investigation as they might have been before a Grand Jury in Anglo-American practice.” The competence of the Tribunal was limited to trying “ persons,” which meant only “ natural persons ” and not entities or bodies. As a consequence the Tribunal was not “ empowered to impose any sentence ” upon the indicted groups and organisations. “ The only issue,” he added, concerned “ the collective criminality of the organisation or group, and it was to be adjudicated by what amounts to a declaratory judgment.” The declaration, said the British Prosecutor Sir David Maxwell-Fyfe, was in the nature of a “ res adjudicata ” or of a “ judgment in rem ” as distinct from a “judgment in personam.”
The adjudication is, thus, entirely of a “ declaratory ” nature, and leaves open all questions of individual guilt and punishment. These, as has been mentioned on several occasions, are left to the national or local courts competent to try individual members on the basis of the “ declaratory judgment ” of the Nuremberg Tribunal.
Effects of the Declaration of Criminality. The chief effect of a declaration of collective criminality is that the criminal nature of the group or organisation in question “ is considered proved ” and cannot be “ questioned ” (Art. 10 of the Charter). But, as will now be seen, this does not prejudice the question as to whether all the individual members are to be regarded as guilty and punished, and consequently does not result in automatic and obligatory convictions.
The prosecution made this point clear when advocating that, from the view point of the individual members, the consequence of the declaration was that it created a rebuttable presumption of guilt, and thus reversed the burden of proof. Members, when tried, were not allowed to disprove that their organisation or group was criminal at the time of their membership, but they were entitled to disprove the tests made against them individually as members of the body declared criminal. “ Nothing precludes him (a member) from denying that his participation was voluntary,” said Justice Jackson, “ and proving that he acted under duress ; he may prove that he
was deceived or tricked into membership ; he may show that he had withdrawn, or he may prove that his name on the rolls is a case of mistaken identity. Actual fraud or trick ” of which a member is a victim, “ has never thought to be the victim’s crime.” As regards the member’s knowledge of the criminal nature of the organisation, “ he may not have known on the day he joined, but may have remained a member after learning the facts. And he is chargeable not only with what he knew, but with all which he was reasonably indicted.”
It will be seen later that the Tribunal did not wish to answer the thesis of presumption of guilt either way, but that it decided that, apart from cases where a member was proved guilty of specific crimes, the tests of voluntary membership, and of actual or reasonably presumed knowledge represented the main issues upon which the subsequent courts were to decide each individual case of guilt (Footnote 1: It is interesting to note that, during the proceedings one of the judges expressed opinions to the effect that a declaration of criminality could or even should be understood to result in obligatory and automatic convictions. Thus, the French judge, M. Donnedieu de Vabres, questioned the legal basis for introducing the tests submitted by Justice Jackson. According to these tests, emphasised the French judge, a member could be acquitted by proving that his membership was not voluntary or that he never knew of the criminal purpose of the organisation. However, he said, “ I suppose that this Tribunal has a different conception. I suppose that it considers the condemnation of the individual who was a member of the criminal organisation, obligatory and automatic. Strictly speaking, the interpretation which has been advocated by Mr. Jackson is not written in any text. It does not appear in the Charter. Consequently, by virtue of what texts would the Tribunal in question (meaning the subsequent court) be obliged to conform to this interpretation ? ” To this Justice Jackson replied that “ there could be no such thing as automatic condemnations, because the authority given in the Chapter [should be Charter-Ed.] is to bring persons to trial for membership.” “ But,” added Justice Jackson, “ the points could be raised by the defendant that he had defences, such as duress, force against his person, or threats of force, and would have to be tried.” See Proceedings, Part 8, H.M. Stationery Office, London, 1947, p. 103-104. Doubts such as those expressed by the French judge are an illustration of how the terms of the Charter could have, however unwittingly, been misinterpreted, had there not been a theory to explain their real purpose and meaning. It is also worth noting that, before making final decisions in its Judgment, all judges debated at length the theory of the United States Chief Prosecutor in the course of the proceedings and manifested their anxiety to clarify in every detail the issues involved. For full data, see op. cit., p. 97-113. )
It thus appears that a declaration has a binding effect in the subsequent proceedings insofar as it finally decides upon the question of criminality of a given group or organisation. This is a novelty in international law in that the judgment of a Tribunal which has not tried individual members has effect in the proceedings of courts trying them.
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(c) General Ruling of the International Military Tribunal
A general ruling was made with particular regard to the effects of a declaration of criminality upon the punishment of individual members by the competent courts. Referring to the provisions of the Charter, as well as to provisions’ of other laws enacted in anticipation of declarations by the Tribunal in this field, the Tribunal established in the first place that, under these rules, there was a “ crime of membership ” for individuals who belonged to organisations declared criminal. It said :
(Footnote 2: Italics are introduced.)" 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. "
However, added the Tribunal :
The Tribunal, thus, agreed with the basic thesis of the prosecution that the rules of the Charter and the concept of collective criminality involved in a declaration within the Tribunal’s jurisdiction, should not be construed so as to result in an unqualified, indiscriminate and automatic collective penal responsibility of all members. The Tribunal emphasised this point with reference to its discretionary power in making declarations of criminality :“ 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 injustice.”
In this manner the Tribunal severed categorically the link of cause and effect which could have been made between the notion of a group held collectively criminal and that of the guilt of its individual members : even though the declaration is founded on the premise that the group was criminal as a whole, the guilt of all or any of its members remains on the traditional ground of “ personal ” guilt.“ This discretion is a judicial one and does not permit arbitrary action, but should be exercised in accordance with well settled legal principles, one of the most important of which is that criminal guilt is personal, and that mass punishment 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.”
In order to determine the field of “ personal criminal guilt ” within the scope of an organisation declared criminal as a whole, the Tribunal delivered a definition of the “ criminal organisation ” and while doing so, it fully accepted the tests submitted by the prosecution :
Two distinct consequences appear from this statement-first the concept of and the tests regarding the criminality of a group or organisation, and secondly, the tests for establishing the guilt of individual members of the group. With regard to the first, the concept is reached when there is a “ group bound and organised for a common purpose ” and when such a“ A criminal organisation is analogous to a criminal conspiracy in that the essence of both is co-operation for criminal purposes. There must be a group bound together and organised 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.”
group “ is formed or used in connection with the commission of crimes.” When these two elements are fulfilled, a declaration that an organisation is criminal as a whole is justified. Since the Tribunal stressed that the organisation had to “ be formed or used ” in connection with the commission of criminal acts, this meant that it is not essential for the group to have actually committed crimes ; it is sufficient if it was set up for this purpose. With regard to the second, the tests are those of elimination, and two classes of members are excluded. First, those “ who had no knowledge of the criminal purpose or acts of the organisation ” and secondly, those “ who were drafted by the State unless they were personally implicated in the commission ” of criminal acts. The second proviso means that persons who were compulsorily drafted, even if they had knowledge of the criminal purpose of the organisation, are not guilty unless they personally were implicated in the commission of crimes.
The tests used to make the above elimination furnish at the same time those regarded by the Tribunal as representing the basis for convicting individual members on the part of the competent courts. As already stressed, under Article 10 of the Charter, a declaration delivered by the Tribunal makes possible the bringing to trial of individuals for the “ crime of membership,” in which case the criminal nature of the organisation cannot be challenged. The Tribunal did not specify who was to bear the onus of proof regarding tests of personal guilt, when a member is brought to trial, but the wording used by the Tribunal in respect of each of the organisations it declared criminal, tends to indicate that it wished the burden to lie on the prosecution. It would, therefore, appear that two alternative courses were made open to the competent courts. The first would be to hold the view, and this course was advocated by the United States Chief prosecutor and was eventually prescribed for the Denazification Courts in the United States zone of Germany, that the declaration made by the Nuremberg Tribunal creates a presumption of guilt against every member, and that consequently all the prosecution is required to do is to establish that the accused was a member of the organisation. In this case it was to be presumed, until proof to the contrary was established by the defendant, that he knew of the criminal purposes or acts of the organisation or that he was personally implicated in the commission of crimes, although he did not join the organisation on a voluntary basis. The second course is to hold the view that no presumption of individual guilt derives from the declaration of the Nuremberg Tribunal, and that consequently, the prosecution is called to prove not only that the accused was a member of the organisation declared criminal, but also that he knew the relevant facts and was personally implicated in the commission of crimes.
The Nuremberg Tribunal left untouched the question of how such evidence could be made good by either the prosecution or the defence. Competent courts were left full latitude in admitting circumstantial evidence, and the question of whether it is reasonable to believe that the accused had or had not knowledge of the criminal purpose or acts of his organisation can, and was in most cases, solved on the basis of the accused’s rank and position, his duties and assignments while serving in the organisation and the like. With regard to the second test, that of the implication of persons who joined the organisation on a non-voluntary basis, the Tribunal’s word “ unless ”
following the description of a member compulsorily enlisted, indicates that, whenever the accused has established his compulsory enlistment, the burden of proof that he has actually committed crimes lies on the prosecution.
It would thus appear that, by omitting to give an explicit answer to the issue of the burden of proof, the Nuremberg Tribunal in fact delegated this task to the competent courts and shunned interfering with their jurisdiction beyond the points mentioned in the Judgment. It also appears that a great responsibility has thus been put on the subsequent courts, and that differing jurisprudence may take place, as it in fact has.
(d) Recommendations regarding Punishment
The International Military Tribunal ended its general ruling by making a recommendation to the subsequent courts as to the punishment they were to impose for the crime of membership. It referred to Law No. 10 of the Allied Control Council for Germany and to a De-Nazification Law of 5th March, 1946, the relevant provisions of which will be found later. The recommendations read as follows :
" 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 standardised. 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 Wurttemberg-Baden, provides definite sentences for punishment in each type of offence. 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 De-Nazification Law of 5th March, 1946, referred to by the Tribunal, is in force in the United States Zone and its heaviest penalty does not exceed 10 years’ imprisonment. The Nuremberg Tribunal, thus, made a strong point of the necessity of reducing the punishments provided by Law No. 10 in order to fit “ the nature of the crime.” The Tribunal found that the
“ crime of membership ” in itself (Footnote 1: This distinction is important, for a defendent prosecuted for membership can at the same time be found guilty of either of the other specific crimes covered by Law No. 10, i.e. crimes against peace, war crimes or crimes against humanity. In such cases the punishments applicable are those from Art. II of Law No. 10 without restriction. ) did in no case deserve a more severe punishment than that prescribed in the De-Nazification Law of March, 1946.
It will be noted that, in order to achieve such a result, the Tribunal found it necessary to recommend the amendment of Law No. 10. No such amendment took place apparently for the reason that it was not indispensable to achieve the effect sought. Art. II, para. 3, of Law No. 10 gives the competent courts full latitude to impose various punishments, including imprisonment for a term of years, at their discretion in each case and in respect of each class of crime. Room was, thus, left for implementing the recommendation of the International Military Tribunal without amending the law.
(iii) The Law applied in the case of the Accused
The law under which Greifelt and the other accused were tried for membership of criminal organisations, as well as for crimes against humanity and war crimes, was Law No. 10 of the Allied Control Council for Germany, of 20th December, 1945. The crime of membership is provided against in Art. II para. 1 of the Law together with crimes against peace, crimes against humanity and war crimes. The relevant passages read as follows :
“ Each of the following acts is recognised as a crime : . . . . “
(d) Membership in categories of a criminal group or organisation declared criminal by the International Military Tribunal.”
The penalties generally prescribed for any crime under the Law include imprisonment with or without hard labour, which may be imposed for life, as well as death penalty. In the case of membership, however, the rules concerning punishment were supplemented by the above-cited recommendations of the International Military Tribunal. A study of the sentences passed by the United States Military Tribunal in Nuremberg for the crime of membership shows that these Tribunals have in fact followed the recommendation of the International Military Tribunal.
(iv) The Guilt of the Accused for the crime of Membership
The conviction of the accused for the crime of membership was made, according to Art. II para. 1 (d) of Law No. 10, on the grounds of the declaration made by the International Military Tribunal in regard to the criminal nature of the main organisation to which they belonged, that is the S.S. (Die. Schutzstaffeln der Nationalsocialistischen Deutschen Arbeiterpartie). The International Military Tribunal’s declaration concerning the S.S. read as follows :
p.54“ The S.S. was utilised for purposes which were criminal under the Charter involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labour programme and the mistreatment and murder of prisoners of war. The defendant Kaltenbrunner was a member of the S.S. implicated in
these activities. In dealing with the S.S. the Tribunal includes all persons who had been officially accepted as members of the S.S. including the members of the Allgemeine S.S. members of the Waffen S.S., members of the S.S. Totenkopf Verbaende and the members of any of the different police forces who were members of the S.S. The Tribunal does not include the so-called S.S. riding units. The Sicherheistdienst des Reichsfuhrers S.S. (commonly called the S.D.) is dealt with in the Tribunal’s Judgment on the Gestapo and S.D.
“ The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the S.S. as enumerated in the preceding paragraph who became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organisation in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes. The basis of this finding is the participation of the organisation in war crimes and crimes against humanity connected with the war ; this group declared criminal cannot include, therefore, persons who had ceased to belong to the organisation enumerated in the preceding paragraph prior to 1st September, 1939.”
In the above declaration the International Military Tribunal included all persons who had been officially accepted as members of any of the branches of the S.S., except the so-called Riding units. The main branches were the Allgemeine S.S., the Waffen S.S., and the S.S. Totenkopf Verbaende. On the other hand, it excluded from the classes of members liable to prosecution for the crime of membership, those members who were drafted by the State in such a way as to give them no choice in the matter and who had committed no crimes personally, as well as those who had ceased to be members before 1st September, 1939.
In the trial under review all the defendants, with the exception of the one acquitted of all charges, held prominent ranks in the categories of the S.S. covered by the above declaration of the International Military Tribunal. Greifelt, Lorenz, Hofmann and Hildebrandt were Obergruppenfuehrers (Lt.-Generals) in the S.S., Creutz, Mayer-Hetling, Schwarzenberger and Ebner were Oberfuehrers (Senior Colonels), Huebner and Sollmann were Standartenfuehrers (Colonels), and Schwalm an Obersturmfuehrer (Lt.-Colonel). Finally, Brueckner and Tesch were Sturmbannfuehrers (Majors).
In its judgment the Tribunal made no specilic reference to the branch of the S.S. to which the accused belonged, but it is likely that they all were members of the Allgemeine S.S.
As to the tests of individual guilt stressed by the International Military Tribunal with regard to members of the S.S., they consisted, as stressed in the Judgment, in ascertaining whether the accused “ became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter (i.e., crimes against peace, war crimes, and crimes against humanity), or whether they
were “ personally implicated as members of the organisation in the commission of the crimes.” On the face of the evidence concerning each of the accused, the Tribunal was satisfied that, being members of the S.S., they had the relevant knowledge and/or were personally implicated in the perpetration of crimes committed by the S.S.
(v) Jurisprudence of other trials
Many more trials of war criminals led to the conviction of accused persons for membership in criminal organisations. Several cases may be cited as typical of the jurisprudence which was created on these occasions. Five of these were tried by United States Military Tribunals at Nuremberg and three more by United States General Military Government Courts in Germany on the basis of declarations made by the International Military Tribunal and on the grounds of Law No. 10 of the Allied Control Council for Germany.
The cases are illustrative of how the general ruling and recommendations of the International Military Tribunal were implemented in connection with its declarations regarding the criminal nature of Nazi groups and organisations. Some of them show the way in which the issue of the burden of proof concerning the personal guilt of the defendants was solved, and how the tests of their guilt were applied.
(a) Trials by United States Military Tribunals at Nuremberg.
(1) Trial of Karl Brandt et al. (Medical Case)
In the first trial held by United States Military Tribunals at Nuremberg, 23 German doctors and scientists were prosecuted for carrying out criminal medical experiments. (Footnote 1: Case 1, tried by United States Military-Tribunal No. 1. See Vol. IV of these Reports, pp. 91-3, and Vol. VII, pp. 49-53. 62 ) The trial opened on 9th December, 1946, and was commonly known as the “ Medical Case.” The judgment was delivered on 19th and 20th August, 1947. The chief defendant, Karl Brandt, was personal physician to Hitler, Gruppenfuhrer in the S.S. and Major-General in the Waffen S.S., Reich Commissioner for Health and Sanitation, and member of the Reich Research Council. He was charged with the other defendants for medical experiments amounting to war crimes and crimes against humanity as defined in the Allied Control Council Law No. 10.
All experiments were conducted in concentration camps (Dachau, Sachsenhausen, Natzweiler, Ravensbruck, Buchenwald, etc.), and caused inhumane suffering, torture or death of many inmates. They consisted in high altitude experiments to investigate the limits of human endurance and existence at extremely high altitudes (up to 68,000 feet) ; freezing experiments to investigate means of treating persons severely chilled or frozen ; malaria experiments to investigate immunisation and treatment of malaria ; lost (mustard) gas experiments to investigate treatment caused by that gas ; sulfanilamide experiments to investigate the effectiveness of the drug ; bone, muscle and nerve regeneration and bone transplantation experiments ; seawater experiments to study methods of making seawater drinkable ; epidemic jaundice experiments to establish the cause of and discover inoculations against that disease ; sterilization experiments to develop a method best suited for sterilising. millions of people ; spotted fever experiments to investigate the
effectiveness of vaccines ; experiments with poison to investigate the effect of various poisons. In addition to this, several defendants were charged with activities involving murder, torture and ill-treatment not connected with medical experiments. In all cases inmates of concentration camps were used as “ guinea-pigs ” and were as a rule healthy subjects.
Karl Brandt and nine other accused were indicted for having committed such criminal acts as members of the S.S. and were, accordingly, also prosecuted as “ guilty of membership in an organisation declared to be criminal by the International Military Tribunal ” at Nuremberg.
When deciding upon this particular charge, the United States Military Tribunal referred to the general ruling of the International Military Tribunal and applied in each case the tests of individual guilt defined by the latter. On the face of the evidence submitted, Karl Brandt and eight other defendants were found guilty of membership on the ground that they had been in the S.S. until the end of the war and that, as such, they were actually and personally “ implicated in the commission of war crimes and crimes against humanity.” One defendant was found guilty of having “ remained in the S.S. voluntarily throughout the war, with actual knowledge of the fact that that organisation was being used for the commission of acts declared criminal by Control Council Law No. 10.”
(2) Trial of Joseph Altstoetter et al. (Justice Case)
In one of the most outstanding subsequent trials at Nuremberg, 16 German high officials of the Reich Ministry of Justice, judges and prosecutors of Nazi courts were prosecuted for the commission of criminal offences by means of legislative or judicial acts. (Footnote 1: Case No. 3, tried by United States Military Tribunal No. 3. See Vol. VI, pp. 1-110.) The trial opened on 17th February, 1947, and was commonly designated as the “ Justice Case.” The judgment was delivered on 3rd and 4th December, 1947.
The principal defendant Joseph Altstoetter, was Chief (Ministerialdirektor) of the Civil law and Procedure Division of the Reich Ministry of Justice, and Oberfuhrer in the S.S. Together with the other defendants he was charged with misusing legislative or judicial power in such a manner as actually to commit crimes against persons subjected to Nazi laws and/or courts of justice. The evidence submitted was to the effect that Nazi legal machinery was used as one of the means “ for the terroristic functions in support of the Nazi regime “. Death sentence and other severe penalties were prescribed for acts which either did not represent criminal offences under standards of modern justice or did in no case warrant such heavy punishments. Sentences were pronounced by Nazi courts in pursuance of such criminal laws in a very large number of cases. The accused were indicted for being implicated in such acts, which, under the terms of the Control Council Law No. 10, amounted to war crimes or crimes against humanity.
Seven defendants, including Altstoetter, were accused of having committed such crimes as members of organisations declared criminal by the Inter-national Military Tribunal. (Footnote 2: Ibid, pp. 4-5, 65-72 and 77.) The organisations involved were the S.S.,
S.D. and Leadership Corps of the Nazi Party. Some of the defendants were members of two organisations simultaneously. They were accordingly charged separately with the crime of membership in such organisations. As in the previous case the Tribunal applied the tests of criminality defined by the International Military Tribunal and found the accused individuals guilty of membership on different grounds. Alstoetter was found guilty as a member of the S.S. falling within the groups declared criminal by the International Military Tribunal, on the grounds that he had knowledge of the criminal purposes and acts of the S.S. and remained voluntarily in the organisation. The test of knowledge was likewise positively established against two other defendants. In one case the Tribunal was satisfied by the evidence that the accused actually knew of the execution of political prisoners and that he personally took part in the misdeeds. It also arrived at such conclusion on the basis of circumstantial evidence deriving from the accused’s official position and duties. “ No man who had his intimate contacts with the Reich Security Main Office, the S.S., the S.D., and the Gestapo could possibly have been in ignorance of the general character of those organisations.” In the second case the evidence regarding the mens rea of the accused was entirely of a circumstantial nature. The crimes, said, the Tribunal, “ were of such wide scope and so intimately connected with the activities of the Gauleitung (the accused’s organisation) that it would be impossible for a man of the defendant’s intelligence not to have known of the commission of these crimes, at least in part if not entirely.” It is interesting to note that the chief defendant, Altstoetter, was found guilty only on the count of membership and freed from other charges. He was sentenced to 5 years’ imprisonment.
Two defendants were acquitted. In one case the defendant was charged as a member of the Leadership Corps of the Nazi Party, and the Tribunal established that his group did not in fact belong to the Leadership Corps, nor to any other organisation declared criminal. In the second case the accused was charged as a member of the Leadership Corps Staff and a “ sponsoring ” member of the S.S. The Tribunal ruled that neither a Gaustellenleiter nor a “ sponsoring ” member of the S.S. could be regarded as a member of an organisation declared criminal by the International Military Tribunal.
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(3) Trial of Oswald Pohl et al
One of the most interesting trials in this field is the so-called “ Pohl Case,” which opened on 10th March and closed on 3rd November, 1947.(Footnote 1: Case 4, tried by United States Military Tribunal No. 2. See Vol. VII, pp. 49 and 63.) The Tribunal dealt with 18 defendants, all of whom but one were members of the S.S. They were top ranking officials in the “ S.S. Economic and Administrative Main Office,” known as “ W.V.H.A.” (Wirtschafts-und Verwaltungshauptampt), which was one of the twelve main departments of the S.S. and to which was added the main office of the Inspector of Concentration Camps. The principal accused, Pohl, was Chief of the W.V.H.A. and as such, the administrative head of the entire S.S. organisation. Himmler was his only superior. The other accused were heads of the various branches of the W.V.H.A.
The S.S. Economic and Administrative Main Office was in charge of running concentration camps and a large number of industrial, manufacturing and service enterprises in Germany and occupied countries. It was responsible for all financial matters of the S.S., for the supply of food, clothing, housing, sanitation and medical care of inmates and S.S. personnel of concentration camps ; for the construction and maintenance of houses, buildings and structures of the S.S., the German police and of the concentration and prisoners of war camps ; and for the order, discipline and regulation of the lives of the concentration camps inmates. In addition it was charged with the supply of slave labour of the concentration camp inmates to public and private employers throughout Germany and the occupied countries, as well as to enterprises under its own management.
On account of such relationship with concentration camps and slave labour, all the accused were charged with taking part in the commission of “ atrocities and offences against persons and property, including plunder of public and private property, murder, extermination, enslavement, deportation, unlawful imprisonment, torture, persecutions on political, racial and religious grounds, ill-treatment of, and other inhumane and unlawful acts against thousands of persons, including German civilians, nationals of other countries, and prisoners of war.” The accused were thus tried as chief instruments of the criminal policy conducted by the heads of the Nazi Party and State against the millions who were ill-treated or perished in concentration camps or as slave labour.
In addition to the above offences, all the accused except one were charged under a separate count for the crime of membership in an organisation declared criminal by the International Military Tribunal, and were all indicted as falling within the categories covered by the Tribunals’ declaration. When summing up the various counts of the indictment, including that of membership, the United States Military Tribunal made a general ruling regarding the evidence and discarded entirely the principle of the presumption of guilt in the following terms :
“ Under the American concept of liberty, and under the Anglo-Saxon system of jurisprudence, every defendant in a criminal case is presumed to be innocent until the prosecution by credible and competent proof has shown his guilt to the exclusion of every reasonable doubt. This presumption of innocence follows him throughout the trial until such degree of proof has been adduced. Beyond a reasonable doubt, does not mean beyond a vain, imaginary or fanciful doubt, but means that the defendant’s guilt must be fully proved to a moral certainty, before he is condemned.”
It will be seen that the Tribunal applied this ruling to all individual cases of membership and lay the burden of proof concerning tests of personal guilt on the prosecution. This illustrates the fact previously mentioned that the International Military Tribunal did not decide the question of the burden of proof, and thus made possible the elaboration of a differing jurisprudence in this respect. The striking feature in this trial is that the above ruling was applied by an American court, notwithstanding the fact that rules issued by the American authorities for other courts are founded on the principle that a declaration of criminality reverses the onus of proof and frees the
prosecution from submitting evidence in respect of the personal guilt of the members. (Footnote 1: See History of the United Nations War Crimes Commission and the Development of the Laws of War, pp. 322, and 331-332.) In view of the fact that no rules to this effect were issued with particular regard to the United States Military Tribunals at Nuremberg, and that the International Military Tribunal had left the field clear, the above ruling was within the powers of the United States Tribunal and the legal basis of its jurisprudence cannot be challenged.
The ruling was applied with particular clearness in respect of two defendants whom the Tribunal acquitted from all charges.
In one case the accused, Rudolf Scheide, was Chief of a department of the W.V.H.A. as technical expert in the field of motor transport, and was in charge of all the transport service of the W.V.H.A. The prosecution contended that, in connection with his office and the large field of tasks carried out by him with the various branches of the W.V.H.A., the accused “ gained knowledge of how the concentration camps were operated, how the prisoners were treated, who they were, and what happened to them.” It also contended that he “ knew that the concentration camps were engaged in the slave labour programme, and that he furnished transportation in this programme with knowledge of its use.” And finally, that he “ knew of the mass extermination programme carried out by the concentration camps ” and provided the department concerned in this programme “ with transportation, spare parts, tyres, gasoline, and other necessary commodities for carrying out this programme.” The accused denied knowledge of all these crimes and the Tribunal came to the following conclusion :
(Footnote 2: Italics introduced.)“ After weighing all the evidence in the case, and bearing in mind the presumption of innocence of the defendant, and the burden of proof on the part of the prosecution, the Tribunal must agree with the contentions of the defendant. “
The Tribunal then found the accused not guilty on the following grounds :
(Footnote 2: Italics introduced.)“ The defendant admits membership in the S.S., an organisation declared criminal by the Judgment of the International Military Tribunal, but the prosecution has offered no evidence that the defendant had knowledge of the criminal activities of the S.S., or that he remained in the said organisation after September, 1939, with such knowledge or that he engaged in criminal activities while a member of such organisation. “
According to the ruling of the International Military Tribunal, it will be remembered that proof in respect of the last test (personal commission of crimes) would appear always to lie on the prosecution, whereas nothing stands in the way of subjecting the test of knowledge to a reversal of the burden of proof as advocated by the United States Chief Prosecutor and as followed up in a number of United States rules.
In the same case the accused, Leo Volk, was head of a legal department of the W.V.H.A. As with Scheide, the prosecution contended that he had knowledge of the criminal purposes and acts of the W.V.H.A. on account of his office and duties. The accused’s defence was that he had no such knowledge, but merely prepared notarial documents, carried on law suits and generally gave legal advice. The Tribunal was satisfied that the accused
was a “ vital figure ” in his department and refuted the defence thesis that, in order to convict him, proof should be submitted that, if he knew of the criminal purposes or acts of his organisation, he must have had the power to prevent crimes from being committed. The Tribunal declared :
“ It is enough if the accused took a consenting part in the commission of a crime against humanity. If he was part of an organisation actively engaged in crimes against humanity, was aware of those crimes and yet voluntarily remained a part of the organisation, lending his own professional efforts to the continuance and furtherance of those crimes, he is responsible under the law.”
However, continued the Tribunal, the defence contends that the accused
“ was not aware of any crimes and it is this which the prosecution must establish before it can ask for a conviction,“ (Footnote 1: Italics in the last quotation introduced) meaning that the accused had knowledge of the crimes.
The Tribunal found that no such evidence had been submitted, and that the accused did not voluntarily join the organisation but was drafted from a private firm he personally did not want to leave for the W.V.H.A. It also established that, in the W.V.H.A. he had a special status in that he was employed under special contract. In view of these facts the Tribunal decided that the accused’s guilt for membership had not been established “ beyond reasonable doubt ” and while convicting him on other counts, it acquitted him from this particular charge.
Two more defendants were acquitted from the charge of membership. One of them was head of the Office of Audits in the W.V.H.A. from 1942 until the end of the war. Here again the Tribunal established lack of evidence on the part of the prosecution regarding the relevant tests and concluded in the following terms :
“ Perhaps in the case of a person who had power or authority to either ,start or stop a criminal act, knowledge of the fact coupled with silence could be interpreted as consent. But Vogt was not such a person. His office in W.V.H.A. carried no such authority, even by the most strained implication. He did not furnish men, money, materials or victims for the concentration camps. He had no part in determining what the inmates should eat or wear, or how hard they did work or how they were treated. The most that can be said is that he knew that there were concentration camps and that there were inmates. His work cannot be considered any more criminal than that of the bookkeeper who made up the reports which he audited, the typist who transcribed the audit report or the mail clerk who forwarded the audit to the Supreme Auditing Court.”
As a consequence the accused was acquitted on all counts. Leo Volk was acquitted for not belonging to any of the classes or categories of S.S. members included in the declaration of the International Military Tribunal.
In other instances the Tribunal applied extensively circumstantial evidence to admit proof of guilty knowledge as charged by the prosecution.
Defendant August Frank was Chief Supply Officer of the Waffen-S.S. and Death Head Units under the defendant Pohl, and became Pohl’s Chief
Deputy of the W.V.H.A. In view of his position and the field of his competence and duties the Tribunal came to the following conclusions :
“ . . . . anyone who worked, as Frank did, for eight years in the higher councils of that agency cannot successfully claim that he was separated from its political activities and purposes.”
From that the Tribunal further concluded that he “ could not have been ignorant ” or that he “ must have known ” of the purposes as well as of a series of criminal acts described by the Tribunal. He was found guilty of “ participating and taking a consenting part ” in the “ slave labour programme . . . and in the looting of property of Jewish civilians for the eastern occupied territories.” In this connection he was also convicted for the crime of membership.
Another defendant, Erwin Tschentscher, was chief of a department of W.V.H.A. dealing with supplies of food for the Waffen-S.S. and the police in Germany. He contended in defence that his only link with concentration camps was to furnish food for the guards, and declined any knowledge of concentration camp crimes and slave labour practices. On the face of his position and duties, as well as of the evidence that he paid visits to several concentration camps, the Tribunal expressed its findings in the following terms :
“ The Tribunal concludes that the defendant Tschentscher was not a mere employee of the W.V.H.A., but held a responsible and authoritative position in this organisation. He was Chief of Amt-B-I, and in this position had large tasks in the procurement and allocation of food. Conceding that he was not directly responsible for furnishing food to the inmates of concentration camps, he was responsible for furnishing the food to those charged with guarding these unfortunate people. . . . . .
“ The Tribunal is fully convinced that he knew of the desperate condition of the inmates, under what conditions they were forced to work, the insufficiency of their food and clothing, the malnutrition and exhaustion that ensued, and that thousands of deaths resulted from such treatment. His many visits to the various concentration camps gave him a full insight into these matters.
“ The Tribunal finds without hesitation that Tschentscher was thoroughly familiar with the slave labor program in the concentration camps, and took an important part in promoting and administering it.”
For these reasons the accused was found guilty both of actual participation in war crimes and crimes against humanity and of the crime of membership.
In all other cases the Tribunal had either clear evidence of the actual participation of the accused in specific criminal acts, such as in the case of Pohl himself, or else sufficient evidence to draw conclusions as to their guilty knowledge, and on this basis pronounced sentences of guilt for the crime of membership.
(4) Trial of Friedrich Flick et al
The trial of Friedrich Flick and five other defendants opened on 20th April and closed on 22nd December, 1947.(Footnote 1: Case 5, tried by United States Military Tribunal No. 4. See Vol. IX of these Reports, pp. I-59.) It was one of several trials
commonly designated as “ industrial cases,” for the defendants were not officials of the Nazi State, but private citizens engaged as business men in German heavy industry. Flick owned a steel corporation controlling or affiliated with iron and coal mining companies. The other defendants were his assistants or associates. They were charged inter alia with taking part in, and being members of, groups or organisations connected : Count I : with “ enslavement and deportation to slave labour ” of concentration camp inmates and other civilians, as well as with the “ use of prisoners of war ” in work prohibited by international law (armament production, etc.), Count II : with “ plunder of public and private property, spoliation, and other offences against property ” in occupied territories ; Count III : with “ persecutions on racial, religious and political grounds ” ; Count IV : with “ murders, brutalities, cruelties, tortures, atrocities and other inhumane acts committed principally by the S.S.”
Although in the majority of counts the defendants were described as members of organisations “ connected ” with criminal activities, only one accused, Steinbrinck, was member of an organisation declared criminal by the International Military Tribunal (the S.S.) ; he was consequently the only defendant specifically indicted for the crime of membership. In addition, under Count IV, both he and the chief defendant, Flick, were accused of offences closely connected with membership of the S.S. They were charged with having contributed, as members of a private group called the “ Keppler Circle ” or “ Friends of Himmler,” large sums to the financing of the S.S. “ with knowledge of its criminal activities,” and to have thereby been accomplices in war crimes and crimes against humanity perpetrated by the S.S. It is important to note that the charge was not, and could not be, that they were guilty of membership in the “ Keppler Circle,” for this circle was not included in the organisations declared criminal by the International Military Tribunal. Neither was “ knowledge ” of the S.S. criminal activities mentioned in this instance as a test for the crime of membership, but only as a basis for charging the two defendants as accomplices or accessories to the crimes committed by the S.S. This part of the indictment proved, however, to be relevant for deciding the case of Steinbrinck, as it contained facts furnishing evidence regarding his guilty knowledge as a member of the S.S.
As in the “ Pohl Case,” the United States Military Tribunal which tried Flick, Steinbrinck and others rejected the thesis of presumption of guilt and took the view that the burden of proof concerning the tests of criminality for membership lay on the prosecution. So, in the case of Steinbrinck it declared the following :
“ Relying upon the International Military Tribunal’s findings . . . the prosecution took the position that it devolved upon Steinbrinck to show that he remained a member without knowledge of such criminal activities. As we have stated in the beginning the burden was all the time upon the prosecution.”
The Tribunal decided the case on the basis of this rule. In assessing the tests relevant for determining Steinbrinck’s individual guilt, the Tribunal declared that there was no evidence showing that he was personally implicated in the commission of crimes perpetrated by the S.S.
and that no contention had been made to the effect that he was drafted on a compulsory basis. It therefore determined that his personal guilt was to be established solely on the basis of the test of knowledge of the criminal nature of the S.S.
As mentioned above, the Tribunal’s findings on this test were made on the basis of the accused’s activities as member of the “ Keppler Circle.” This circle was composed of about 30-40 bankers, industrialists and S.S. leaders, including the S.S. Reichsfuehrer Himmler himself. Steinbrinck was a member from the beginning, which dated as far back as 1932. The circle was originally formed by Hitler’s economic adviser Keppler, who gave it his name, with a view to inducing industrialists and other top business men to support the Nazi programme and regime. The circle had regular informal meetings and its members made regular donations upon Himmler’s request, amounting to a total of 1 million Reichsmarks annually. Himmler’s explanation for such requests was that he needed funds for “ his cultural hobbies and for emergencies for which he had no appropriations.” Steinbrinck contributed very large sums of money every year. The Tribunal was satisfied that the meetings of the group did not have “ the sinister purposes ascribed to them by the prosecution,” and found “ nothing criminal or immoral in the defendant’s attendance at these meetings.” It was also satisfied that, in the beginning and particularly before the war, “ the criminal character of the S.S. was not generally known.” It came, however, to the conclusion that “ later ” it “ must have been known ” ; “ that during the war and particularly after the beginning of the Russian campaign ” there was not “ much cultural activity in Germany ” ; and that consequently members of the group could not “ reasonably believe ” Himmler was spending their money for other purposes than to maintain the S.S. The Tribunal found “ no doubt ” that “ some of this money ” went to the S.S., and declared “ immaterial whether it was spent on salaries or for lethal gas.” From this it concluded that Steinbrinck was guilty of the crime of membership. The Tribunal’s findings in this respect were, thus, entirely based on circumstantial evidence and were, from a practical point of view, founded on premises equivalent to that of a presumption of guilt.
The trial ended in the conviction of Flick, Steinbrinck and one more defendant, whereas the other three were acquitted. In passing sentence upon Flick and Steinbrinck the Tribunal admitted circumstances in mitigation of the punishments, and pronounced sentences not exceeding 7 years’ imprisonment.
(5) I.G. Farben Trial
In the trial of the leading personnel of “ I.G. Farben Industrie “(Footnote 1: see Vol. x, pp. 1-68.) the world-wide German chemical concern, three of the twenty-three accused were charged with the crime of membership.
The trial opened on 14th August, 1947, and closed on 29th July, 1948. The three accused involved on the count of membership were Christian Schneider, Heinrich Buetefisch, and Erich von der Heyde.
Schneider, a chemist, held the post of member of the Board of Directors (Vorstand) and of the Central Committee of I.G. Farben. He also held
other important posts, including that of head of Farben’s Central Personnel Department. He was a member of the Nazi Party and a supporting or “ sponsoring ” member of the S.S. He was charged with membership on account of this latter link with the S.S.
Buetefisch, a Doctor of Engineering (Physical-Chemical), was also a member of Farben’s Vorstand, and in addition to other posts, was chairman or member of control groups of many Farben concerns in the fields of chemicals, explosives, mining, synthetics, etc. He was a member of the Nazi Party and of the “ Keppler Circle,” referred to above. He was also a Lieutenant-Colonel of the S.S., and was charged with membership of the S.S.
Von der Heyde, a Doctor in Agriculture, served Farben’s Economic Policy Department, and Counter-Intelligence Branch. He was a member of the Nazi Party and of the Reitersturm (Riding Unit), S.S. The prosecution contended that the accused was an active member of the Allgemeine (General) S.S.
None of the above three accused was found guilty of the charge and they were consequently all acquitted on the count of membership.
In the instance of Schneider the Tribunal found that the accused was only a “ sponsoring ” member of the S.S. and that as such his only contact with the S.S. “ arose out of the payment of dues.” The Tribunal referred to the judgment delivered in the trial of Altstoetter and agreed with the latter’s finding that a sponsoring membership was not included in the declaration of the International Military Tribunal concerning the S.S.
In the instance of Buetefisch the Tribunal dealt with the accused’s position as a member of the Himmler Circle of Friends, and established that at about the same time the accused had become an honorary member of the S.S. The findings were in part similar to those of the trial of Flick. The Himmler Circle of Friends, said the Tribunal, “ played no part in formulating any of the policies of the Third Reich.” It was also found that no evidence had been produced to the effect that the accused “had knowledge of the criminal purposes or acts of the S.S. at the time he became or during the period he remained a member.” Finally the Tribunal established that the accused could not be regarded as a member of the S.S. within the terms of the International Military Tribunal’s declaration. After stressing that the defendant had only been an honorary member of the S.S. the Tribunal, however, did not find this to be sufficient and decisive in itself :
“ We do not attach any special significance to the fact that the defendant was classified as an honorary member, but we are of the opinion that the defendant’s status in the organisation must be determined by a consideration of his actual relationship to it and its relationship to him.”
It was on the basis of such “ actual relationship ” that the Tribunal made its decision. It established that the accused had “ consistently refused to procure a uniform in the face of positive demands that he do so ” ; and that in addition he made “ other significant reservations ” which he “ imposed and consistently maintained when and after he accepted honorary membership.”
In the instance of von der Heyde the Tribunal’s findings included the following statement :
“ Taking into account that the only definitely established affiliation of the defendant was with the non-culpable Riding Unit of the S.S., and that the evidence tending to show that he subsequently became a member of the General S.S. arises wholly out of the innocuous incidents connected with his efforts to obtain a marriage license, we must conclude that the guilt of the defendant von der Heyde . . . has not been satisfactorily established.”
(b) Trials by United States General Military Government Courts
Several trials conducted by United States General Military Government Courts in Germany concern cases involving, in addition to the S.S., other Nazi organisations declared criminal by the International Military Tribunal. They are the Leadership Corps of the Nazi Party, and the Gestapo (State Secret Policy) and S.D. (Sicherheitsdienst-Security Police).
In the conclusion of the declaration concerning the Leadership Corps the International Military Tribunal stated the following :
The conclusion of the declaration made in respect of the Gestapo and S.D. read as follows :“ The Leadership Corps was used for purposes which were criminal under the Charter and involved the Germanization of incorporated territory, the persecution of the Jews, the administration of the slave labour programme, and the mistreatment of prisoners of war: The defendants Bormann and Sauckel who were members of this organisation, were among those who used it for these purposes. The Gauleiters, the Kreisleiters, and the Ortsgruppenleiters participated, to one degree or another, in these criminal programmes. The Reichsleitung as the staff organisation of the Party is also responsible for these criminal programmes as well as the heads of the various staff organisations of the Gauleiters and Kreisleiters. The decision of the Tribunal on these staff organisations includes only the Amtsleiters who were heads of offices on the staffs of the Reichsleitung, Gauleitung and Kreisleitung. With respect to other staff officers and party organisations attached to the Leadership Corps other than the Amtsleiters referred to above, the Tribunal will follow the suggestion of the Prosecution in excluding them from the declaration.
“ The Tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Leadership Corps holding the positions enumerated in the preceding paragraph who became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organisation in the commission of such crimes. The basis of this finding is the participation of the organisation in war crimes and crimes against humanity connected with the war ; the group declared criminal cannot include, therefore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1st September, 1939.”
(Footnote 1: The RSHA or Reichssicherheitshauptamt was the top co-ordinating body of the Gestapo. The “ Amts ” referred to were its various departments.)“ The Gestapo and S.D. were used for purposes which were criminal under the Charter involving the persecution and extermination of the
Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labour programme and the mistreatment and murder of prisoners of war. The defendant Kaltenbrunner, who was a member of this organisation, was among those who used it for these purposes. In dealing with the Gestapo the Tribunal includes all executive and administrative officials of Amt IV of the RSHA or concerned with Gestapo administration in other departments of the RSHA and all local Gestapo officials serving both inside and outside of Germany, including the members of the Frontier Police, but not including the members of the Border and Customs Protection or the Secret Field Police, except such members as have been specified above. At the suggestion of the Prosecution the Tribunal does not include persons employed by the Gestapo for purely clerical, stenographic, janitorial or similar unofficial routine tasks. In dealing with the S.D. the Tribunal includes Amts III, Vl and VII of, the RSHA and all other members of the S.D. including all local representatives and agents, honorary or otherwise, whether they were technically members of the S.S. or not.
In the following three trials accused persons were convicted for membership of one or more of the above organisations. All trials were held by the United States General Military Government Court at Dachau.“ The tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Gestapo and S.D. holding the positions enumerated in the preceding paragraph who became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organisation in the commission of such crimes. The basis for this finding is the participation of the organisation in war crimes and crimes against humanity connected with the war ; this group declared criminal cannot include, therefore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1st September 1939.”
In the trial of Hans Seibold and two others, held on 5th-7th March, 1947, the defendants were implicated in the killing of a member of the United States Army who, as was stated in the judgment, “ was a surrendered and unarmed prisoner of war in the custody of the then German Reich.” Two of the accused were members of the Leadership Corps of the Nazi Party, one being a Kreisleiter and the other an Ortsgruppenleiter. The third was a member of the Allgemeine S.S. Their position and ranks were within the classes of members liable to punishment under the declarations of the International Military Tribunal.
They were found guilty of a war crime and of the crime of membership in organisations declared criminal by the International Military Tribunal. One was sentenced to death and the other two to life imprisonment each.
In a similar trial held on 13th February, 1947, the accused, Erwin Schienkiewitz, was tried for killing two unknown members of the United States Army under circumstances identical with those of the previous case.
The accused was a member of the S.S., and was convicted to death for a war crime and the crime of membership in the S.S.
Finally, in a trial held from 10th January to 21st March, 1947, there were 23 accused with one Jurgen Stroop at their head. They were implicated in the ill-treatment, including death, beatings, and torture, of “ members of armed forces then at war with the then German Reich, who were surrendered and unarmed prisoners of war in the custody of the then Germany Reich.” Some were members of the S.S., and some others of the Leadership Corps, or of the Gestapo and the SD. Thirteen were found guilty of both war crimes and the crime of membership, and were sentenced to punishments ranging from the death penalty to various terms of imprisonment.
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E. MEMBERSHIP OF CRIMINAL ORGANIZATIONS
(i) The question of membership of criminal organizations has received treatment at several points in these Volumes(5). Three aspects of the problem are discussed elsewhere in this present volume: the relation of membership to the crime of conspiracy,(6) the fact that, in respect of the question whether any organization must be deemed to have been criminal, the findings of the Nuremberg International Military Tribunal are binding upon the United States Military Tribunals which function under Ordinance No 7, and have also been followed in trials before United States Military Government Courts,(7) and the question of the punishment to be meted out to those found guilty of membership.(8)
The Charter of the International Military Tribunal did not define a " group " or "organization." The matter is left to the appreciation of the Tribunal as a question of fact.
(iii) The criminal acts for which a group or organization may be declared criminal are apparently those covered by the Charter in its Article 6, i.e. crimes against peace, war crimes and crimes against humanity. The
(5) See Vol. VI, pp. 65-72 and 77 ; Vol. VII, pp. 5-7, 18-24 and 86-7, Vol. IX, pp. 28-9 ; Vol. X, pp. 57-61 ; and (especially) Vol. XIII, pp. 42-67.
(6) See pp. 3 and 98-99.
(7) See p. 17-18.
(8) See p. 201-202.
TYPES OF OFFENCES 151
International Military Tribunal would appear to have made this clear in the statement in which it stated that mere membership of criminal organizations was not per se criminal in nature :
" Since the declaration with respect to the organizations 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 organization 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 organization. Membership alone is not enough to come within the scope of these declarations. "(1)
(iv) Various of the judgments delivered by the United States Military Tribunals have included rulings as to whether the groups to which various accused belonged were to be regarded as being part of organizations declared criminal by the International Military Tribunal and' as to whether " sponsoring" membership was sufficient for criminality(2), but as stated in the Introduction to the present volume, it is felt that such findings as to individual groups and organizations are of less importance to the development of international law than the underlying basic legal principle.(3)
(v) The International Military Tribunal did not specify who was to bear the onus of proof regarding the test of personal guilt, when an alleged member is brought to trial, but the wording used by the Tribunal in respect of each of the organizations it declared criminal tends to indicate that it regarded the burden as resting on the prosecution. It would appear that two alternative courses were open to the competent courts. The first would be to hold the view that the declaration made by the Nuremberg Tribunal creates a presumption of guilt against every member, and that consequently all the prosecution is required to do is to establish that the accused was a member of the organization. In this case it was to be presumed, until proof to the contrary was established by the defendant, that he knew of the criminal purposes or acts of the organization or that, if he did not join the organization on a voluntary basis, he was personally implicated in the commission of crimes. The second course would be to hold the view that no presumption of individual guilt derives from the declaration of the Nuremberg Tribunal, and that consequently, the prosecution is called to prove not only that the accused was a member of the organization declared criminal, but also that he knew the relevant facts or (if an involuntary member) that he was personally implicated in the commission of crimes. It would appear that, by omitting to give an explicit answer on the issue of the burden of proof, the Nuremberg Tribunal in fact delegated this task to the competent courts and shunned interfering with their jurisdiction beyond the point mentioned in the Judgment.(4) In the event the courts have in many cases explicitly ruled that the burden of proof remains on the prosecution.(5) At times, however, they have on first sight appeared to take a
(1) British Command Paper, Cmd. 6964, p. 67. (Italics inserted).
(2) See Vol. VI; p. 77 and Vol. X, pp. 59-61.
(3) See pp. 3 and 98-99.
(4) See Vol. XIII, pp. 51-2.
(5) See Vol. X, p. 59 and Vol. XIII, pp. 58-60 and 62.
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different view, as when the Tribunal which conducted the Justice Trial held that no man with Joel's intimate contacts with the Reich Security Main Office, the S.S. and the S.D. and the Gestapo" could possibly have retained membership of the second and third mentioned organizations without knowledge of their criminal character. "(1) The crimes of the Leadership Corps of the Nazi Party, ruled the Tribunal at another point in its Judgment, were of such wide scope and were so intimately connected with the activities of the Gauleitung that "it would be impossible for a man of the defendant's [Oeschey's] intelligence not to have known of the commission of these crimes, at least in part if not entirely ".(2) Finally, of Altstotter's guilt under Count Four, the Tribunal said, inter alia: "that the activities of the S.S. and the crimes which it committed as pointed out by the Judgment of the International Military Tribunal above quoted are of so wide a scope that no person of the defendant's intelligence, and one who had achieved the rank of Oberfuehrer in the S.S., could have been unaware of its illegal activities, particularly a member of the organization from 1937 until the surrender. According to his own statement, he joined the S.S. with misgivings, not only on religious grounds but also because of practices of the police as to protective custody in concentration camps... He was a member of the S.S. at the time of the pogroms in November, 1938, 'Crystal Week', in which the International Military Tribunal found the S.S. to have had an important part. Surely whether or not he took a part in such activities or approved of them, he must have known of that part which was played by an organization of which he was an officer. "(3) These extracts from its Judgment are sufficient to show that the Tribunal was willing, in suitable instances, to assume knowledge on the part of defendants of the criminal purposes of the organizations referred to, though it should be added that Altstoetter for instance was not found guilty on the basis of presumed knowledge alone.(4)
Speaking in rather a similar vein, the Tribunal which conducted the Flick Trial said :
" Relying upon the LM.T. findings above quoted the Prosecution took the position that it devolved upon Steinbrinck to show that he remained a member without knowledge of such criminal activities. As we have stated in the beginning, the burden was all the time upon the Prosecution. But in the face of the declaration of I.M.T. that such knowledge was widespread we cannot believe that a man of Steinbrinck's intelligence and means of acquiring information could have remained wholly ignorant of the character of the S.S. under the administration of Himmler." (5)
It is clear however that the Tribunals are here not reversing the burden of proof in the sense described above, but are treating other facts than the mere fact of membership, such as the accused's rank and duties, as creating a
(1) See Vol. VI, p. 76 (Italics inserted).
(2) See Vol. VI, p. 68 (Italics inserted).
(3) See Vol. VI, pp. 71 and 72 (Italics inserted).
(4) See Vol. VI, pp. 71-72.
(5) Vol. IX, p. 29. (Italics inserted).
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presumption of knowledge. As was said by the Tribunal which conducted the I.G. Farben Trial, " Proof of the requisite knowledge need not, of course be direct, but may be inferred from circumstances duly established."(1)
(vi) In Volume VII of these Reports, it has been submitted(2) that since the ratification of the London Agreement by Poland, whenever a person is tried on a charge of membership in a group or organization the criminal character of which was under the examination of the Nuremberg Tribunal, the Polish Courts are in law bound by the findings of the Tribunal and cannot re-examine the question of the criminal character of the organization dealt with in the Judgment.
On the other hand, it is clear from the law as laid down in paragraph 2 of Article 4 of the Polish War Crimes Decree of 1944 that Polish Courts are not bound by the fact that certain other groups or organizations have not been indicted and adjudicated as criminal within the meaning of the Charter of the International Military Tribunal. In these cases the Polish Court may declare such groups or organizations to be criminal within the Polish jurisdiction. Accordingly, in practice the Polish courts have declared to be criminal some other Nazi groups or organizations which displayed particular zeal in occupied Poland, such as the leadership of the German civil administration in the so-called General Government, members of the concentration camp staff at Auschwitz, and officials of the administration of the Lodz ghetto.(3)
The fact that the Polish legislation on membership of criminal organizations is based upon the principle of joint responsibility for acts done in pursuance of a criminal common design (as, it has been submitted,(4) is the approach taken by the Judgment of the International Military Tribunal), seems to be proved by the wording of paragraph 2 of Article 4 of the above-mentioned Decree :
" Paragraph 2. A Criminal organization in the meaning of paragraph 1 is a group or organization :
(a) which has as its aims the commission of crimes against peace, war crimes or crimes against humanity ; or
(b) which while having a different aim, tries to attain it through the commission of crimes mentioned under (a). "(5)
It is also significant that in a Polish trial referred to in the notes to the Hoess Trial it was held that the inmates of Auschwitz concentration camp could only be held responsible for their personal deeds as they were not members of the criminal organization as it is understood by the Nuremberg Judgment, namely, they were not bound together by a common aim which was the commission of crimes against humanity.(6)
(1) Vol. X, p. 59.
(2) See Vol. VII, pp. 86-7 and pp. 20-1 of that Volume, paragraphs (1), (2), (5) and (7).
(3) See Vol. VII, pp. 20-4 and Vol. XIV, pp. 40-8. The requirement of knowledge of the criminal aims and methods of the organization question will be found to have been repeatedly stressed.
(4) See pp. 98~9.
(5) Vol. VII, pp. 86-7.
(6) Vol. VII, p. 21. Compare Vol. XIV, p. 45. Regarding the attitude of the Polish Supreme National Tribunal to membership of criminal organizations, see also Vol. XIII, pp. 107-8.
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(vii) Finally it should be remarked that Article 10 of the Netherlands East Indies Statute Book Decree No. 45 of 1946 contains a special rule regarding responsibility of a group of individuals involved in the commission of war crimes. It reads as follows:
" 1. If a war crime is committed within the framework of the activities of a group of persons in such a way that the crime can be ascribed to that group as a whole, the crime shall be considered to have been committed by that group, and criminal proceedings taken against and sentences passed on all members of that group.
"2. No penalty shall be imposed on the member for whom it is proved that he had taken no part in the commission of the war crime."
This provision may have been applied in the trial of Shigeki Motomura and others at Macassar; the court did not, however, discuss the legal implications thereof.(1) The Netherlands Metropolitan laws contain no provisions applicable to membership of criminal organisations.(2)
(1) See Vol. XIII, pp. 138-42. The provision is further discussed in Vol. XI, pp. 101-2.
(2) See Vol. XIV, pp. 141 and 142-3.