Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08

by Various

Morning Session

DR. HORN: Mr. President, on Monday, when I wished to give my reasons for the application to call Winston Churchill as witness, the Tribunal asked me to submit this in writing so that the Tribunal could make a decision.

The decision that Winston Churchill should not be called as witness was, however, made already on the 26th of February, before the Tribunal received my written application. I assume a mistake has been made, and I ask the Tribunal to reconsider the question in the light of the reasons set out in my written application.

THE PRESIDENT: The Tribunal will reconsider the matter.

Mr. Justice Jackson. Did you propose, Mr. Justice Jackson, to argue first on the question of the organizations?

JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): If that is agreeable to the Tribunal, that’s definitely our . . .

We are taking up, as I understand it, the deferred subject of the rules which should guide in determining the criminality of organizations, partly upon our initiative and partly an response to the questions propounded by the Tribunal.

The unconditional surrender of Germany created for the victors novel and difficult problems of law and administration. Being the first such surrender of an entire and modernly organized society, precedents and past experiences are of little help in guiding our policy toward the vanquished. The responsibility implicit in demanding and accepting capitulation of a whole people certainly must include a duty to discriminate justly and intelligently between the opposing elements of that population, which bore dissimilar relations to the policies and conduct which led to the catastrophe. This differentiation is the objective of those provisions of the Charter which authorize this Tribunal to declare organizations or groups to be criminal. Understanding of the problem with which the instrument attempts to deal is essential to its interpretation and application.

One of the sinister peculiarities of German society at the time of the surrender was that the state itself played only a subordinate role in the exercise of political power, while the really drastic controls over German society were organized outside of the nominal government. This was accomplished through an elaborate network of closely knit and exclusive organizations of selected volunteers, both bound to execute without delay and without question the commands of the Nazi leaders.

These organizations penetrated the whole German life. The country was subdivided into little Nazi principalities of about 50 households each, and every such community had its recognized Party leaders, Party police, and its undercover, planted spies. These were combined into larger units with higher ranking leaders, executioners, and spies, the whole forming a pyramid of power outside of the law, with the Führer at its apex, the local Party officials constituting its broad base, which rested heavily on the German population.

The Nazi despotism, therefore, did not consist of these individual defendants alone. A thousand little Führers dictated; a thousand imitation Görings strutted; a thousand Schirachs incited the youth; a thousand Sauckels worked slaves; a thousand Streichers and Rosenbergs stirred up hate; a thousand Kaltenbrunners and Franks tortured and killed; a thousand Schachts and Speers and Funks administered and supported and financed this movement.

The Nazi movement was an integrated force in every city and county and hamlet. The party power resulting from this system of organizations first rivaled and then dominated the power of the state itself. The primary vice of this web of organizations was that they were used to transfer the power of coercing men from the government and the law to the Nazi leaders. Liberty, self-government, and security of person and property do not exist except where the power of coercion is possessed only by the state and is exercised only in obedience to law. The Nazis, however, set up this private system of coercion outside of and immune from the law, with Party-controlled concentration camps and firing squads to administer privately decreed sanctions.

Without responsibility to law and without warrant from any court, they were enabled to seize property and take away liberty and even take life itself. These organizations had a calculated part—and a decisive part—in the barbaric extremes of the Nazi movement. They served primarily to exploit mob psychology and to manipulate the mob. Multiplying the number of persons in a common enterprise always tends to diminish the individual’s sense of moral responsibility and to increase his sense of security. The Nazi leaders were masters of that technique. They manipulated these organizations to make before the German populace impressive exhibitions of numbers and of power, which have already been shown on the screen. They were used to incite a mob spirit and then riotously to gratify the popular hates they had inflamed and the Germanic ambition they had inflated.

These organizations indoctrinated and practiced violence and terrorism. They provided the systematized, aggressive, and disciplined execution throughout Germany and the occupied countries of the plan for crimes which we have proven. The flowering of this system is represented in the fanatical SS General Ohlendorf, who told this Tribunal without shame or trace of pity how he personally directed the putting to death of 90,000 men, women, and children. No tribunal ever listened to a recital of such wholesale murder as this Tribunal heard from him and from Wisliceny, a fellow officer of the SS. Their own testimony shows the SS responsibility for the extermination program which took the lives of 5 million Jews—a responsibility that that organization welcomed and discharged methodically, remorselessly, and thoroughly. These crimes with which we deal are unprecedented, first because of the shocking number of victims. They are even more shocking and unprecedented because of the large number of people who united their efforts to perpetrate them. All scruple or conscience of a very large segment of the German people was committed to the keeping of these organizations, and their devotees felt no personal sense of guilt as they went from one extreme to another. On the other hand, they developed a contest in cruelty and a competition in crime. Ohlendorf, from the witness stand, accused other SS commanders whose killings exceeded his of “exaggerating” their figures.

There could be no justice and no wisdom in an occupation policy of Germany which imposed upon passive, unorganized, and inarticulate Germans the same burdens as upon those who voluntarily banded themselves together in these powerful and notorious gangs. One of the basic requirements both of justice and of successful administration of the occupation responsibility of our four countries is a segregation of the organized elements from the masses of Germans for separate treatment. That is the fundamental task with which we must deal here. It seems beyond controversy that to punish a few top leaders but to leave this web of organized bodies in the midst of postwar society would be to foster the nucleus of a new Nazidom. These members are accustomed to an established chain of centralized command. They have formed a habit and developed a technique of both secret and open co-operation. They still nourish a blind devotion to the suspended, but not abandoned, Nazi program. They will keep alive the hates and ambitions which generated the orgy of crime we have proven. These organizations are the carriers from this generation to the next of the infection of aggressive and ruthless war. The Tribunal has seen on the screen how easily an assemblage that ostensibly is only a common labor force can in fact be a military outfit training with shovels. The next war and the next pogroms will be hatched in the nests of these organizations as surely as we leave their membership with its prestige and influence undiminished by condemnation and punishment.

The menace of these organizations is the more impressive when we consider the demoralized state of German society. It will be years before there can be established in the German State any political authority that is not inexperienced and provisional. It cannot quickly acquire the stability of a government aided by long habit of obedience and traditional respect. The intrigue, obstruction, and possible overthrow which older and established governments always fear from conspiratorial groups is a real and present danger to any stable social order in the Germany of today and of tomorrow.

Insofar as the Charter of this Tribunal contemplates a justice of retribution, it is obvious that it could not overlook these organized instruments and instigators of past crimes. In opening this case I said that the United States does not seek to convict the whole German people of crime. But it is equally important that this Trial shall not serve to absolve the whole German people except 21 men in the dock. The wrongs that have been done to the world by these defendants and their top confederates were not done by their will and their strength alone. The success of their designs was made possible because great numbers of Germans organized themselves to become the fulcrum and the lever by which the power of these leaders was extended and magnified. If this Trial fails to condemn these organized confederates for their share of the responsibility for this catastrophe, it will be construed as their exoneration.

But the Charter was not concerned with retributive justice alone. It manifests a constructive policy influenced by exemplary and preventive considerations.

The primary objective of requiring that the surrender of Germany be unconditional was to clear the way for a reconstruction of German society on such a basis that it will not again threaten the peace of Europe and of the world. Temporary measures of the occupation authorities may by necessity, and I mean no criticism of them, have been more arbitrary and applied with less discrimination than befits a permanent policy. For example, under existing denazification policy, no member of the Nazi Party or its formations may be employed, in any position—other than ordinary labor—in any business enterprise, unless he is found to have been only a nominal Nazi. Persons in certain categories whose standing in the community is one of prominence or influence are required to be, and others may be, denied further participation in their businesses or professions. It is mandatory to remove or exclude from public office and from positions of importance in quasi-public and private enterprises persons falling within about 90 specified categories, deemed to consist of either active Nazis, Nazi supporters, or militarists. Property of such persons is blocked.

Now, it is recognized by the Control Council, as it was by the framers of this Charter, that a permanent long-term program should be based on a more careful and more individual discrimination than was possible with sweeping temporary measures. There is a movement now within the Control Council for reconsideration of its whole denazification policy and procedure. The action of this Tribunal in declaring, or in failing to declare, an accused organization criminal has a vital bearing on this future occupation policy.

It was the intent of the Charter to utilize the hearing processes of this Tribunal and its judgment to identify and condemn those Nazi and militaristic forces that were so strongly organized as to constitute a continuing menace to the long-term objectives for which our respective countries have spent their young lives. It is in the light of this great purpose that we must examine the provisions of this Charter.

It was obvious that the conventional litigation procedures could not, without some modification, be adapted to this task. No system of jurisprudence has yet evolved any satisfactory technique for handling a great number of common charges against a great multitude of accused persons. The number of individual defendants that fairly can be tried in a single proceeding probably does not greatly exceed the number now in your dock. Also, the number of separate trials in which the same voluminous evidence as to a common plan must be repeated is very limited in actual practice. Yet, adversary proceedings of the type in which we are engaged are the best assurance the law has ever evolved that decisions will be well-considered and just. The task of the framers of the Charter was to find some way to overcome the obstacles to practicable and early decision without sacrificing the fairness implicit in hearings. The solution prescribed by the Charter is certainly not faultless, but not one of its critics has ever proposed an alternative that would not either deprive the individual of all hearing or contemplate such a multitude of long trials that it would break down and be impracticable. In any case, this Charter is the plan adopted by our respective governments and our duty here is to make it work.

The plan which was adopted in the Charter essentially is a severance of the general issues which would be common to all individual trials from the particular issues which would differ in each trial. The plan is comparable to that employed in certain wartime legislation of the United States, dealt with in the case of Yakus versus United States, in which questions as to the due process quality of the order must be determined in a separate tribunal and cannot be raised by a defendant when he is defending on indictment. Those countries which do not have written constitutions and constitutional issues may find it difficult to follow the logic of that decision, but essentially the plan was to separate general issues relative to the order as a whole from specific issues which would arise when an individual was confronted with a charge of guilt.

The general issues under this Charter are to be determined with finality in one trial before the International Tribunal, and in that trial every accused organization must be defended by counsel and must be represented by at least one leading member, and other individuals may apply to be heard. Their applications may be granted if the Tribunal thinks justice requires it. The only issue in this trial concerns the collective criminality of the organization or group. It is to be adjudicated by what amounts to a declaratory judgment. It does not decree any punishment either against the organization or against individual members.

The only specification as to the effect of this Tribunal’s declaration that an organization is criminal is contained in Article 10, which, if you will bear with me, I will read:

“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.”

Unquestionably, it would have been competent for the Charter to have declared flatly that membership in any of these named organizations is criminal and should be punished accordingly. If there had been such an enactment, it would not have been open to an individual, who was being tried for membership, to contend that the organization was not in fact, criminal. But the framers of the Charter, acting last summer at a time before the evidence which has been adduced here was even available to us, did not care to find organizations criminal by fiat. They left that issue to determination after relevant facts were developed by adversary proceedings. Plainly, the individual is better off because of the procedure of the Charter, which leaves that finding of criminality to this body after hearings at which the organization must, and the individual may, be represented. It is at least the best assurance that we could devise, that no mistake would be made in dealing with these organizations.

Under the Charter, the groups and organizations named in the Indictment are not on trial in the conventional sense of that term. They are more nearly under investigation as they might be before a grand jury in Anglo-American practice. Article 9 recognizes a distinction between the declaration of a group or organization as criminal and “the trial of any individual member thereof.” The power of the Tribunal to try is confined to “persons,” and the Charter does not expand that term by definition, as statutes sometimes do, to include other than natural persons. The groups or organizations named in the Indictment were not as entities served with process. The Tribunal is not empowered to impose any sentence upon them as entities. For example, it may not levy a fine upon them even though they have property of the organization, nor convict any person because of membership.

It is also to be observed that the Charter does not require subsequent proceedings against anyone. It provides only that the competent national authorities shall have the right to bring individuals to trial for membership therein.

The Charter is silent as to the form that these subsequent trials should take. It was not deemed wise, on the information then available, that the Charter should regulate subsequent proceedings. Nor was it necessary to do so. There is a continuing legislative authority, representing all four signatory nations, competent to take over where the Charter leaves off. Legislative supplementation of the Charter, of course, would be necessary in any event to confer jurisdiction on local courts, to define their procedures, and to prescribe different penalties for different forms of activity.

Fear has been expressed, however, that the Charter’s silence as to future proceedings means that great numbers of members will be rounded up and automatically punished as a result of a declaration that an organization is criminal. It also has been suggested that this is, or may be, the consequence of Article II, 1(d) of Control Council Act Number 10, which defines as a crime “membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.” A purpose to inflict punishment without a right of hearing cannot be spelled out of this Charter and would be offensive to both its letter and its spirit. And I do not find in Control Council Act Number 10 any inconsistency with the Charter. Of course, to reach all individual members would require numerous hearings, but they will involve only narrow issues. Many persons will have no answers to charges if they are carefully prepared; and the proceedings should be expeditious, nontechnical, and held in the locality where the person accused resides, and, incidentally, may be conducted in two languages at most.

And I think it is clear that before any person is punishable for membership in a criminal organization, he is entitled to a hearing on the facts of his case. The Charter does not authorize the national authorities to punish membership without hearing—it gives them only the right to “bring individuals to trial.” That means what it says. A trial means there is something to try.

The Charter denies only one of the possible defenses of an accused; he may not relitigate the question in a subsequent trial whether the organization itself was a criminal one. Nothing precludes him from denying that his participation was voluntary 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.

The membership which the Charter and the Control Council Act make criminal, of course, implies a genuine membership involving the volition of the member. The act of affiliation with the organization must have been intentional and voluntary. Legal compulsion or illegal duress, actual fraud or trick of which one is a victim has never been thought to be the victim’s crime, and such an unjust result is not to be implied now. The extent of the member’s knowledge of the criminal character of the organization is, however, another matter. 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 of which he was reasonably put on notice.

There are safeguards to assure that this program will be carried out in good faith. Prosecution under this declaration is discretionary. If there were purpose on the part of the Allied Powers to punish these persons without trial, it would have been already done before this Tribunal was set up, and without waiting for its declaration. We think that the Tribunal will presume that the signatory powers which have voluntarily submitted to this process will carry it out faithfully.

The Control Council Act applies only to categories of membership declared criminal. This language on the part of the Control Council recognizes a power in this Tribunal to limit the effect of its declaration. I do not think, for reasons which I will later state, that this should be construed or availed of to try any issue here as to subgroups or sections or individuals which can be tried in later proceedings. It should, I think, be construed to mean, not the sort of limitation which must be defined by evidence of details, but limitations of principle such as those I have already outlined, such as duress, involuntary membership, or matters of that kind, which the Tribunal can recognize and deal with without taking detailed evidence. It does not require this Tribunal to delve into evidence to condition its judgment to apply only to intentional and voluntary membership. This does not supplant later trials by the declaration of this Tribunal but guides them.

It certainly cannot be said that such a plan—such as we have here for severance of the general issues common to many cases from the particular issues applicable only to individual defendants for litigation in separate tribunals specially adapted for the different kinds of issues—is lacking in reasonableness or fair play. And while it presents unusual procedural difficulties, I do not think it presents any insurmountable ones. I will discuss the question of the criteria and the principles and the precedents for declaring collective criminality before coming to the procedural questions involved. The substantive law which governs the inquiry into criminality of organizations is, in its large outline, old and well settled and fairly uniform in all systems of law. It is true that we are dealing here with a procedure which would be easy to abuse and one that is often feared as an interference with liberty of assembly or as an imposition of guilt by association. It also is true that proceedings against organizations are closely akin to the conspiracy charge, which is the great dragnet of the law and rightly watched by courts lest it be abused.

The fact is, however, that every form of government has considered it necessary to treat some organizations as criminal. Not even the most tolerant of governments can permit an accumulation of private power in organizations to a point where it rivals, obstructs, or dominates the government itself. To do so would be to grant designing men a liberty to destroy liberty. The very complacency and tolerance, as well as the impotence, of the Weimar Republic towards the growing organization of Nazi power spelled the death of German freedom.

Protection of the citizen’s liberty has required even free governments to enact laws making criminal those aggregations of power which threaten to impose their will on unwilling citizens. Every one of the nations signatory to this Charter has laws making certain types of organizations criminal. The Ku Klux Klan in the United States flourished at about the same time as the Nazi movement in Germany. It appealed to the same hates, practiced the same extra-legal coercions, and likewise terrorized by the same sort of weird nighttime ceremonials. Like the Nazi Party it was composed of a core of fanatics, but it enlisted the support of respectabilities who knew it was wrong but thought it was winning. It eventually provoked a variety of legislative acts directed against such organizations as organizations.

The Congress of the United States also has enacted legislation outlawing certain organizations. A recent example was on the 28th of June 1940, when the Congress provided that it shall be unlawful for any person, among other things, to organize or help to organize 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 a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.

There is much legislation by states of the American Union creating analogous offenses. An example is to be found in the act of California dealing with criminal syndicalism, which, after defining it, makes criminal any person who organizes, assists in organizing, or is, or knowingly becomes, a member of such organization.

Precedents in English law for outlawing organizations and punishing membership therein are old and consistent with the Charter.

One of the first is the British India Act Number 30, enacted in 1836, which, among other things, provides:

“It is hereby enacted that whoever shall be proved to have belonged, either before or after the passing of this Act, to any gang of thugs, either within or without the territories of the East India Company, shall be punished with imprisonment for life with hard labor.”

And the history is that this was a successful act in suppressing violence.

Other precedents in English legislation are the Unlawful Societies Act of 1799, the Seditious Meetings Act of 1817, the Seditious Meetings Act of 1846, the Public Order Act of 1936, and Defense Regulations 18(b). The latter, not without opposition, was intended to protect the integrity of the British Government against the fifth-column activities of this same Nazi conspiracy.

Soviet Russia punishes as a crime the formation of and membership in a criminal gang. Criminologists of the Soviet Union call this crime the “crime of banditry,” a term altogether appropriate to these German organizations. General Rudenko will advise this Tribunal more in detail as to the Soviet law.

French criminal law makes membership in subversive organizations a crime. Membership of the criminal gang is a crime in itself. My distinguished French colleague will present you more detail on that.

Of course, I would not contend that the law of a single country, even one of the signatory powers, was governing here, but it is clear that this is not an act or a concept of a single system of law, that all systems of law agree that there are points at which organizations become intolerable in a free society.

For German precedents, it is neither seemly nor necessary to go to the Nazi regime, which, of course, suppressed all their adversaries ruthlessly. However, under the Empire and the Weimar Republic German jurisprudence deserved respect, and it presents both statutory and juridical examples of declaring organizations to be criminal. Statutory examples are: The German Criminal Code enacted in 1871. Section 128 was aimed against secret associations, and 129 against organizations inimical to the State. A law of March 22, 1921, against paramilitary organizations. A law of July 1922 against organizations aimed at overthrowing the constitution of the Reich.

Section 128 of the Criminal Code of 1871 is especially pertinent. It reads:

“The participation in an organization, the existence, constitution, or purposes of which are to be kept secret from the government, or in which obedience to unknown superiors or unconditional obedience to known superiors is pledged, is punishable by imprisonment.”

It would be difficult to draw an act that would more definitely condemn the organizations with which we are dealing here than this German Criminal Code of 1871. I recall to your attention that it condemns organizations in which obedience to unknown superiors or unconditional obedience to known superiors is pledged. It is exactly the sort of danger and menace with which we are dealing.

Under the Empire various Polish national unions were the subject of criminal prosecutions. Under the Republic, in 1927 and 1928, judgments held criminal the entire Communist Party of Germany. In 1922 and 1928, judgments of the courts ran against the political leadership corps of the Communist Party, which included all of its so-called body of functionaries. This body of functionaries in that organization corresponded somewhat in their powers to the Leadership Corps of the Nazi Party, which we have accused here. The judgment against the Communist Party rendered by the German courts included every cashier, every employee, every delivery boy and messenger, and every district leader. In 1930 a judgment of criminality against what was called “The Union of Red Front Fighters” of the Communist Party made no distinction between leaders and ordinary members.

Most significant of all is the fact that on the 30th of May 1924 judgment of the German courts was rendered that the whole Nazi Party was a criminal organization. Evidently there was a lack of courage to enforce that judgment, or we might not have been here. This decision referred not only to the Leadership Corps, which we are indicting here, but to all other members as well. The whole rise of the Nazi Party to power was in the shadow of this judgment of illegality by the German courts themselves.

The German courts, in dealing with criminal organizations, proceeded on the theory that all members were held together by a common plan in which each one participated, even though at different levels. Moreover, fundamental principles of responsibility of members as stated by the German Supreme Court are strikingly like the principles that govern our Anglo-American law of conspiracy. Among the statements by the German courts are these:

That it is a matter of indifference whether all the members pursued the forbidden aims. It is enough if a part exercised the forbidden activity.

And again, that it is a matter of indifference whether the members of the group or association agree with the aims, tasks, means of working, and means of fighting.

And again, that the real attitude of mind of the participants is a matter of indifference. Even if they had the intention of not participating in criminal efforts, or hindering them, this cannot eliminate their responsibility from real membership.

Organizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies, and their criminality is judged by application of conspiracy principles. The reason why they are offensive to law-governed people has been succinctly stated by an American legal authority as follows, and I quote from Miller on Criminal Law:

“The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of the people.”

The Charter in Article 6 provides that:

“Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”

That, of course, is a statement of the ordinary law of conspiracy. The individual defendants are arraigned at your bar on this charge of conspiracy which, if proved, makes them responsible for the acts of others in execution of the common plan.

The Charter did not define responsibility for the acts of others in terms of “conspiracy” alone. The crimes were defined in nontechnical but inclusive terms, and embraced formulating and executing a common plan, as well as participating in a conspiracy. It was feared that to do otherwise might import into the proceedings technical requirements and limitations which have grown up around the term “conspiracy.” There are some divergencies between the Anglo-American concept of a conspiracy and that of either French, Soviet, or German jurisprudence. It was desired that concrete cases be guided by the broader considerations inherent in the nature of the problem I have outlined, rather than to be controlled by refinements of any local law.

Now, except for procedural difficulties arising from their multitude, there is no reason why every member of any Nazi organization accused here could not have been indicted and convicted as a part of the conspiracy under Article 6, even if the Charter had never mentioned organizations at all. To become voluntarily affiliated was an act of adherence to some common plan or purpose.

These organizations did not pretend to be merely social or cultural groups; admittedly, the members were united for action. In the case of several of the Nazi organizations, the fact of confederation was evidenced by formal induction into membership, the taking of an oath, the wearing of a distinctive uniform, the submission to a discipline. That all members of each Nazi organization did combine under a common plan to achieve some end by combined efforts is abundantly established.

The criteria for determining whether these ends were guilty ends are obviously those which would test the legality of any combination or conspiracy. Did it contemplate illegal methods or purpose illegal ends? If so, the liability of each member of one of these Nazi organizations for the acts of every other member is not essentially different from the liability for conspiracy enforced in the courts of the United States against businessmen who combine in violation of the anti-trust laws, or other defendants accused under narcotic-drugs acts, sedition acts, or other Federal penal enactments.

Among the principles every day enforced in courts of Great Britain and the United States in dealing with conspiracy are these sweeping principles:

No formal meeting or agreement is necessary. It is sufficient, although one performs one part and other persons other parts, if there be concert of action and working together understandingly with a common design to accomplish a common purpose.

Secondly, one may be liable even though he may not have known who his fellow conspirators were or just what part they were to take or what acts they committed, and though he did not take personal part in them or was absent when the criminal acts occurred.

Third, there may be liability for acts of fellow conspirators although the particular acts were not intended or anticipated, if they were done in execution of the common plan. One in effect makes a fellow conspirator his agent with blanket authority to accomplish the ends of the conspiracy.

Fourth, it is not necessary to liability that one be a member of a conspiracy at the same time as other actors, or at the time of the criminal acts. When one becomes a party to a conspiracy, he adopts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow conspirators.

Now, those are sweeping principles, but no society has been able to do without these defenses against the accumulation of power through aggregations of individuals.

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

The very innocent act of mailing a letter is enough to tie one into a conspiracy if the purpose of the letter is to advance a criminal plan. And we have multitudinous examples in the jurisprudence of the United States where the mailing of a letter brought one not only within the orbit of the definition of crime, but within Federal jurisdiction.

There are countless examples of this doctrine that innocent acts in the performance of a common purpose render one liable for the criminal acts of others performed to that same end.

This sweep of the law of conspiracy is an important consideration in determining the criteria of guilt for organizations. Certainly the vicarious liability imposed in consequence of voluntary membership, formalized by oath, dedicated to a common organizational purpose and submission to discipline and chain of command, cannot be less than that vicarious liability which follows from informal co-operation with a nebulous group, as is sufficient in case of a conspiracy.

This meets the suggestions that the Prosecution is required to prove every member, or every part, fraction, or division of the membership to be guilty of criminal acts. That suggestion ignores the conspiratorial nature of the charge against organizations. Such an interpretation also would reduce the Charter to an unworkable absurdity. To concentrate in one International Tribunal inquiries requiring such detailed evidence as to each member or as to each subsection would set a task not possible of completion within the lives of living men.

It is easy to toss about such a plausible but superficial cliché as that “one should be convicted for his activities and not for his membership.” But this ignores the fact that membership in Nazi bodies was an activity. It was not something passed out to a passive citizen like a handbill. Even a nominal membership may aid and abet a movement greatly.

Does anyone believe that the picture of Hjalmar Schacht sitting in the front row of the Nazi Party Congress, which you have seen, wearing the insignia of the Nazi Party, was included in the propaganda film of the Nazi Party merely for artistic effect? The great banker’s mere loan of his name to this shady enterprise gave it a lift and a respectability in the eyes of every hesitating German. There may be instances in which membership did not aid and abet organizational ends and means, but individual situations of that kind are for appraisal in the later hearings and not by this Tribunal.

By and large, the use of organizational affiliation is a quick and simple, but at the same time fairly accurate, outline of the contours of a conspiracy to do what the organization actually did. It is the only workable one at this stage of the Trial. It can work no injustice because before any individual can be punished, he can submit the facts of his own case to further and more detailed judicial scrutiny.

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

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

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

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

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

5. Some individual defendant must have been a member of the organization and must be convicted of some act on the basis of which the organization was declared to be criminal.

I shall now take up the subject of the issues, as we see it, which are for trial before this Tribunal, and some discussion of those which seem to us not to be for trial before this Tribunal.

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

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

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

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

It is not relevant to this proceeding that one or more members of the named organizations were themselves innocent of unlawful acts. This proposition is basic in the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge, is punishment for aiding crimes, although the precise perpetrators can never be found or identified.

We know that the Gestapo and the SS, as organizations, were given principal responsibility for the extermination of the Jewish people in Europe, but beyond a few isolated instances, we can never establish which members of the Gestapo or SS actually carried out the murders. Most of them were concealed by the anonymity of the uniform, committed their crimes, and passed on. Witnesses know that it was an SS man or a Gestapo man, but to identify him is impossible. Any member guilty of direct participation in such crimes, if we can find and identify him, can be tried on the charge of having committed the specific crimes in addition to the general charge of membership in a criminal organization.

Therefore, it is wholly immaterial that one or more members of the organizations were themselves allegedly innocent of specific wrongdoing. The purpose of this proceeding is not to reach instances of individual criminal conduct, even in subsequent trials, and therefore such considerations are irrelevant here.

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

Another question raised by the Tribunal is whether any classes of persons included within the accused groups or organizations should be excluded from the declaration of criminality. It is, of course, necessary that the Tribunal relate its declaration to some identifiable group or organization. The Tribunal, however, is not expected or required to be bound by formalities of organization. In framing the Charter, the use was deliberately avoided of terms or concepts which would involve this Trial in legal technicalities about juristic persons or entities.

Systems of jurisprudence are not uniform in the refinements of these fictions. The concept of the Charter, therefore, is a nontechnical one. “Group” or “organization” should be given no artificial or sophistical meaning. The word “group” was used in the Charter as a broader term, implying a looser and less formal structure or relationship than is implied in the term “organization.” The terms mean in the context of the Charter what they mean in the ordinary speech of people. The test to identify a group or organization is a natural and commonsense one.

It is important to bear in mind that while the Tribunal has, no doubt, power to make its own definition of the groups it will declare criminal, the precise composition and membership of groups and organizations is not an issue for trial here. There is no Charter requirement and no practical need for the Tribunal to define a group or organization with such particularity that its precise composition or membership is thereby determined.

The creation of a mechanism for later trial of such issues was a recognition that the declaration of this Tribunal is not decisive of such questions and is likely to be so general as to comprehend persons who, on more detailed inquiry, will prove to be outside of it.

Any effort by this Tribunal to try questions of exculpation of individuals, be they few or many, would unduly protract the Trial, transgress the limitations of the Charter, and quite likely do some mischief by attempting to adjudicate precise boundaries on evidence which is not directed to that purpose.

THE PRESIDENT: Would this be a convenient time for you to break off for a few moments?

MR. JUSTICE JACKSON: Yes, Sir.

[A recess was taken.]

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

With respect to the Gestapo, the United States and, I believe all of my colleagues consent to exclude persons employed in purely clerical, stenographic, janitorial, or similar unofficial routine tasks. As to the Nazi Leadership Corps we abide by the position taken at the time of submission of the evidence, that the following should be included: The Führer, the Reichsleiter, main departments and office holders, the Gauleiter and their staff officers, the Kreisleiter and their staff officers, the Ortsgruppenleiter, the Zellenleiter, and the Blockleiter, but not members of the staff of the last three officials.

As regards the SA, it is considered advisable that the declaration expressly exclude: (1) Wearers of the SA Sports Badge; (2) the SA-controlled home-guard units, which were not, as we view it on the evidence, strictly a part of the SA, and there also be excluded the National Socialist League for Disabled Veterans and the SA Reserve, so as to include only the active parts of that organization.

The Prosecution does not feel that there is evidence of the severability of any class or classes of persons within the organizations accused which would justify any further concessions, and that no other part of the named groups should be excluded. In this connection, we would again stress the principles of conspiracy. The fact that a section of an organization itself committed no criminal act, or may have been occupied in technical or administrative functions, does not relieve that section of criminal responsibility if its activities contributed to the over-all accomplishment of the criminal enterprise. I should like to discuss the question of the further steps to be taken procedurally before this Tribunal.

Over 45,000 persons have joined in communications to the Tribunal asking to be heard in connection with the accusations against organizations. The volume of these applications has caused apprehension as to further proceedings. No doubt there are difficulties yet to be overcome, but my study indicates that the difficulties are greatly exaggerated.

The Tribunal is vested with wide discretion as to whether it will entertain an application to be heard. The Prosecution would be anxious, of course, to have every application granted that is necessary, not only to do justice, but to avoid appearance of doing anything less than justice. And we do not consider that expediting this Trial is so important as affording a fair opportunity to present all really pertinent facts.

Analysis of the conditions which have brought about this flood of applications indicated that their significance is not proportionate to their numbers. The Tribunal sent out 200,000 printed notices of the right to appear before it and defend. They were sent to Allied prisoner-of-war and internment camps. The notice was published in all German language papers and was repeatedly broadcast over the radio. Investigation shows that the notice was posted in all barracks of the camps, and it also shows that in many camps it was read to the prisoners, in addition. The 45,000 persons who responded with applications to be heard came principally from about 15 prisoner-of-war and internment camps in British or United States control. Those received included an approximate 12,000 from Dachau, 10,000 from Langwasser, 7,500 from Auerbach, 4,000 from Staumühle, 2,500 from Garmisch and several hundred from each of the others.

We have made some investigation of these applications, as well as of the sending out of the notices, and we would be glad to place any information that we have at the disposal of the Tribunal.

An investigation was made of the Auerbach Camp in the United States zone, principally to determine the reason for these applications and the method by which they came. That investigation was conducted by Lieutenant Colonel Smith Brookhart, Captain Drexel Sprecher, and Captain Krieger, all of whom are known to this Tribunal.

The Auerbach camp is for prisoners of war, predominantly SS members. Its prisoners number 16,964 enlisted men and 923 officers. The notice of the International Military Tribunal was posted in each of the barracks and was read to all inmates. All applications to the Tribunal were forwarded without censorship of any kind. Applications to defend were made by 7,500 SS members.

Investigation indicates that these were filed in direct response to the notice, and that no action was directed or inspired from any other source within or without the camp. All who were interrogated professed that they had no knowledge of any SS crimes or of SS criminal purpose, but they expressed interest only in their individual fate, rather than any concern to defend the organization.

Our investigators report no indication that they had any additional evidence or information to submit on the general question of the criminality of the SS as an organization. They seemed to think it was necessary to protect themselves to make the application here.

Turning then to examination of the applications, these, on their face, indicate that most of the members do not profess to have evidence on the general issue triable here. They assert almost without exception that the writer has neither committed nor witnessed nor known of the crimes charged against the organization. On a proper definition of the issues such an application is insufficient, on its face, to warrant a personal intervention.

A careful examination of the notice to which these applications respond will indicate, I believe, that the notice contains no word which would inform a member, particularly if he were a layman, of the narrowness of the issues which are to be considered here, or that he will have a later opportunity, if and when prosecuted, to present personal defenses. On the other hand the notice, it seems to me, creates the impression, particularly to a layman, that every member may be convicted and punished by this Tribunal and that his only chance to be heard is here. I think a careful examination of these notices will bear out that impression and a careful examination of the applications will show that they are in response to that impression.

Now, among lawyers there is usually a difference of opinion as to how best to proceed and this case presents no exception to that; there are different ideas. But I shall advance certain views as to how we should proceed from here to obtain a fair and proper adjudication of these questions. In view of these facts we suggest a consideration of the following program for completion of this Trial as to organizations:

1. That the Tribunal formulate and express in an order the scope of the issues and the limitations on the issues to be heard by it.

2. That a notice adequately informing members as to the limitation of the issues and the opportunity later to be individually tried be sent to all applicants and published in the same manner as the original notice.

3. That a panel of masters be appointed, as authorized in Article 17(e) of the Charter, to examine applications and to report those that are insufficient on their own statements and to go to the camps and supervise the taking of any relevant evidence. Defense Counsel and Prosecution representatives should, of course, attend and be heard before the masters. The masters should reduce any evidence to deposition form and report the whole to this Tribunal, to be introduced as a part of its record.

4. The representative principle may also be employed to simplify the task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence.

It may not be untimely to remind the Tribunal and the Defense Counsel that the Prosecution has omitted from evidence many relevant documents which show repetition of crimes by these organizations in order to save time by avoiding cumulative evidence. It is not too much to expect that cumulative evidence of a negative character will likewise be limited.

Some concern has been expressed as to the number of persons who might be affected by the declarations of criminality which we have asked.

Some people seem more susceptible to the shock of a million punishments than to shock from 5 million murders. At most the number of punishments will never catch up with the number of crimes. However, it is impossible to state, even with approximate accuracy, the number of persons who might be affected by the declaration of criminality which we have asked.

Figures from the German sources seriously exaggerate the number, because they do not take account of heavy casualties in the latter part of the war, and make no allowance for duplication of membership which was large. For example, the evidence is to the effect that 75 percent of the Gestapo men also were members of the SS. We know that the United States forces have a roughly estimated 130,000 detained persons who appear to be members of accused organizations. I have no figure from other Allied forces. But how many of these actually would be prosecuted, instead of being dealt with under the denazification program, no one can foretell. Whatever the number, of one thing we may be sure: It is so large that a thorough inquiry by this Tribunal into each case would prolong its session beyond endurance. All questions as to whether individuals or subgroups of accused organizations should be excepted from the declaration of criminality should be left for local courts, located near the home of the accused and near the source of evidence. The courts can work in one or at most in two languages, instead of four, and can hear evidence which both parties direct to the specific issues.

This is not the time to review the evidence against each particular organization which, we take it, should be reserved for summation after the evidence is all presented. But it is timely to say that the selection of the six organizations named in the Indictment was not a matter of chance. The chief reasons they were chosen are these: Collectively they were the ultimate repositories of all power in the Nazi regime; they were not only the most powerful, but the most vicious organizations in the regime; and they were organizations in which membership was generally voluntary.

The Nazi Leadership Corps consisted of the directors and principal executors of the Nazi Party, and the Nazi Party was the force lying behind and dominating the whole German State. The Reich Cabinet was the facade through which the Nazi Party translated its will into legislative, administrative, and executive acts. The two pillars on which the security of the regime rested were the Armed Forces, directed and controlled by the General Staff and High Command, and the police forces—the Gestapo, the SA, the SD, and the SS. These organizations exemplify all the evil forces of the Nazi regime.

These organizations were also selected because, while representative, they were not so large or extensive as to make it probable that innocent, passive, or indifferent Germans might be caught up in the same net with the guilty. State officialdom is represented, but not all the administrative officials or department heads or civil servants; only the Reich Cabinet, the very heart of Nazidom within the government, is named. The Armed Forces are accused, but not the average soldier or officer, no matter how high-ranking. Only the top policy makers—the General Staff and the High Command—are named. The police forces are accused—but not every policeman, not the ordinary police which performed only the normal police functions. Only the most terroristic and repressive police elements—the Gestapo and SD—are named. The Nazi Party is accused—but not every Nazi voter, not even every member, only the leaders. And not even every Party official or worker is included; only “the bearers of sovereignty,” in the metaphysical jargon of the Party, who were the actual commanding officers and their staff officers on the highest levels.

I think it is important that we observe, in reference to the Nazi Party, just what it is that we are doing here and compare it with the denazification program in effect without any declaration of criminality, in order to see in its true perspective the indictment which we bring against the Nazi Party.

Some charts have been prepared. This is a mere graphic representation of the proportions of persons that we have accused, and which we ask this Tribunal to declare as constituting criminal organizations.

In the first column are the 79 million German citizens. We make no accusation against the citizenry of Germany. The next is the 48 million voters, who at one time voted to keep the Nazi Party in power. They voted in response to the referendum. We make no charge against those who supported the Nazi Party, although in some aspects of the denazification program the supporters are included. Then come the 5 million Nazi members, persons who definitely joined the Nazi Party by an act of affiliation, by an oath of fealty. But we do not attempt to reach that entire 5 million persons, although I have no hesitation in saying that there would be good grounds for doing so; but as a mere matter of practicality of this situation it is not possible to reach all of those who are technically and perhaps morally well within the confines of this conspiracy. So the voters are disregarded, the 48 million, the 5 million members are disregarded, and the first that we propose to reach are the Nazi leaders, starting with Blockleiter, which are shown in the last small block, and piled together, amounting to the fourth block on the diagram.

It is true that we start with the local block leader, but he had responsibilities—responsibilities for herding into the fold his 50 households, responsibilities for spying upon them and reporting their activities; responsibilities, as this evidence shows, for disciplining them and for leading them. No political movement can function in the drawing rooms and offices. It has to reach the masses of the people and these block leaders were the essential elements in making this program effective among the masses of the people and in terrorizing them into submission.

I submit that on this diagram the accusation which we bring here is a moderate one reaching only persons of admitted leadership responsibilities and not trying to reach people who may have been beguiled into following in an unorganized fashion.

We have also accused the formations, Party formations, such as the SA and the SS. These were the strong arms of the Party. These were the formations that the Blockleiter was authorized to call in to help him if he needed to discipline somebody in his block of 50 houses.

But we do not accuse every one of the formations of the Party, nor do we accuse any of the 20 or more supervised or affiliated Party groups, Nazi organizations in which membership was compulsory, either legally or in practice, such as the Hitler Youth and the Student League. We do not accuse the Nazi professional organizations, although they were Nazi dominated, like the civil servants’ organization, the teachers’ organization, and the National Socialist lawyers’ organization, although I should show them as little charity as any group. We do not accuse any Nazi organizations which have some legitimate purpose, like welfare organizations. Only two of these Party formations are named, the SA and the SS, the oldest of the Nazi organizations, groups which had no purpose other than carrying out the Nazi schemes, and which actively participated in every crime denounced by the Charter and furnished the manpower for most of the crimes which we have proved.

In administering preventive justice with a view to forestalling repetition of the Crimes against Peace, Crimes against Humanity, and War Crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire 22 individual defendants in the box. These defendants’ power for harm is past. They are discredited men. That of these organizations goes on. If these organizations are exonerated here, the German people will infer that they did no wrong, and they will easily be regimented in reconstituted organizations under new names, behind the same program.

In administering retributive justice it would be possible to exonerate these organizations only by concluding that no crimes have been committed by the Nazi regime. For these organizations’ sponsorship of every Nazi purpose and their confederation to execute every measure to attain these ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal declaring them so is a nullity.

I think my colleagues, who have somewhat different aspects of the case to deal with, would like to be heard on this subject.

THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell-Fyfe, the Tribunal thinks the most convenient course would be to hear argument on behalf of all the chief prosecutors and then to hear argument on behalf of such of the defendants’ counsel as wish to be heard, and after that the Tribunal will probably wish to ask some questions of the chief prosecutors.

MR. JUSTICE JACKSON: That will be very agreeable to us.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Mr. Justice Jackson has dealt with the general principles under which the organizations named in the Charter should, in the view of the Prosecution, be dealt with. It is not my purpose to repeat or even to underline his arguments. My endeavor is to comply with Paragraph 4 of the statement of the Tribunal made on the 14th of January of this year. This involves:

(a) Summarizing, in respect of each named organization, the elements which, in our opinion, justify the charge of their being criminal organizations. For convenience I shall refer to these as the elements of criminality.

(b) Indicating what acts on the part of individual defendants in the sense used in Article 9 of the Charter justified declaring the groups or organizations of which they are members to be criminal organizations. Again for convenience, I shall refer to such defendants in the wording of the Charter, as connected defendants.

(c) I shall submit that what I have put forward in writing under (a) and (b) will form the necessary summary of proposed findings of fact under the Tribunal’s third point.

May I say one word about the mechanics of the position? I thought that it would be convenient if the Tribunal and the Defense Counsel had copies of these suggestions before I address the Tribunal. In pursuance of this, copies have been given to the members of the Tribunal, of course to the court interpreters, and copies in German have been provided for counsel for the organizations and also for counsel for each of the individual defendants.

For the convenience of the Tribunal and of counsel, I have circulated two addenda, which contain further references to the transcript and documents on a number of points in the original appendices. These addenda are compiled under the numbers of paragraphs and, although they are in English, should be readily usable by Counsel for the Defense. The result is that there is the summary in Appendices (A) and (B), which I put in, and full reference in all the points in the summary to the transcript and in some cases to documents.

It is my intention not to read in full all the matters contained in my Appendix (A) and Appendix (B) but to indicate how they fit in with the conception of the Prosecution on this aspect of the case. I shall, of course, be only too ready to read any portions which may be convenient to the Tribunal.

I think it would be best to start from the essential probanda which Mr. Justice Jackson has indicated, and perhaps the Tribunal will bear with me while I repeat his five points:

1. The organization or group in question must be some aggregation of persons, (a) in some identifiable relationship, (b) with a collective general purpose. That was Mr. Justice Jackson’s first test.

2. Membership in such organization must be generally voluntary, although a minor proportion of involuntary members will not affect the position.

3. The aims of the organizations must be criminal in the sense that its objects included the performance of acts denounced as crimes by Article 6 of the Charter.

4. The criminal aims or methods of the organization must have been of such a character that a reasonable man would have constructive knowledge of the organization which he was joining; that is, that he ought to have known what type of organization he was joining.

5. Some individual defendants, at least one, must have been a member of the organization and must be convicted of some act on the basis of which a declaration of the criminality of the organization can be made.

I do not think that I can avoid applying these tests to each of the organizations, but I conceive that this can be done with brevity, and I therefore propose to deal with the organizations seriatim.

I take first the Reichsregierung. Under Appendix B of the Indictment this group is defined as consisting of three classes:

1. Members of the ordinary cabinet after the 30th of January 1933. The term “ordinary cabinet” is in turn used as meaning: (a) Reich ministers that is, heads of departments; (b) Reich ministers without portfolio; (c) State ministers acting as Reich ministers, (d) other officials entitled to take part in meetings of the cabinet.

The second division is members of the Council of Ministers for the Defense of the Reich.

The third division, members of the Secret Cabinet Council.

It is submitted that, on the evidence placed before the Tribunal, there is no doubt that the first of Mr. Justice Jackson’s points, Point 1, is complied with in that there is an identifiable relationship with a collective general purpose, and that this organization is generally voluntary, within Point 2.

The aims of the organization are set out in Paragraph 4 of Section A of my Appendix A and the broad submission of the Prosecution is shown in Paragraph 2. Perhaps, as that is short, I might be allowed to read it:

“Owing to their legislative powers and functions the members of the Reichsregierung gave statutory effect to the policy of the Nazi conspirators and collectively formed a combination of persons carrying out the executive and administrative decisions of the Nazi conspirators.”

The Prosecution apply that general submission to the crimes constituted by Article 6 of the Charter in Paragraphs 5, 6, 7, and 8 of that appendix. If the Tribunal would like me to deal further with these paragraphs I should be pleased to read and comment on any that are desired.

When it is remembered that the Reichsregierung possessed policymaking, legislative, administrative, and executive powers and functions, and that many of its members held at the same time important positions in the Party and in governmental activities outside the cabinet, enormous political power was concentrated in this group. As I said, the Reichsregierung implemented and gave statutory effect to the program of the conspirators.

If the Tribunal will be good enough to turn to my Appendix B they will see that 17 of the 21 defendants before the Court were members of the Reichsregierung. The Prosecution have submitted an enormous body of evidence against these 17 defendants, and they now submit that it is sufficient to say that these 17 defendants should be convicted under each count of the Indictment, and therefore under each portion of Article 6 of the Charter, and that they form the connected defendants with the Reichsregierung, under Mr. Justice Jackson’s Point Number 5.

The acts which I have mentioned and which are set out in Paragraph 4 of my Appendix A and the other paragraphs are of such a character that no one in a ministerial capacity could fail to have constructive knowledge of their nature and intent.

I now pass to the Leadership Corps of the Nazi Party. Mr. Justice Jackson has indicated that the conspirators required wide instruments of support. Hitler boasted of the complete domination of the Reich and of its institutions and of its organizations, internally and externally, by the National Socialist Party.

In the Nazi Party, based on the Führerprinzip, its policies and operations were determined not by the membership as a whole but by the corps of bearers of sovereignty and their staff. These leaders were all political deputies, obliged to support and carry out the doctrines of the Party. At every level regular and frequent conferences were held to discuss questions of policy and working measures. The leaders held the Party together, but they also kept the entire populace firmly in the grip of the conspirators through the control of the descending hierarchy of leaders.

The Prosecution submit that all these leaders are within the organization which they claim to be criminal, and as Mr. Justice Jackson pointed out the staffs of the Reichsleiter, Gauleiter, and Kreisleiter, which are set out in the volumes of the National Socialist Organization Yearbook as being in these positions.

The Tribunal will note that we have omitted the staffs of the more junior Hoheitsträger, as Mr. Justice Jackson has pointed out. On that the Prosecution again says that there is no doubt that Points 1 and 2 of Mr. Justice Jackson’s criteria are complied with, and they indicate in Paragraphs 1, 2, 3, and 4 of Section B of my Appendix A the elements of criminality; they indicate in my Appendix B the defendants who are involved; and in a latter portion of Appendix B they submit that from the position of these defendants as members of the Leadership Corps and in the Government and the Nazi Party, and further, from the close interconnection between the Government of the Reich and the Party, it is clear that the Leadership Corps is a criminal organization connected with all the crimes charged against all the defendants in the Indictment, including those who were in the Leadership Corps and elaborated before the Tribunal in the individual presentations.

The Nazi Party is the core of the conspiracy and criminality alleged, and the defendants are the core of the Nazi Party. Again the Prosecution say that no one living in Germany and taking part in the management, which in this case means literally the ordering of the Nazi Party, could fail to have constructive knowledge of the intentions of its leaders and the methods of carrying these out. This inner circle is in a different position from even the best-informed opinion outside Germany.

I now pass to the SS, including the SD. The Prosecution respectfully remind the Tribunal of the statements regarding the composition of the SS and its history, set out shortly in Appendix B of the Indictment, on Page 36 (Volume I, Page 81) of the English text. The Prosecution stands by these statements, which it submits are clear. I do not intend to read them at the present moment.

The Tribunal has heard in the case regarding the SS—the transcript Pages 1787 to 1889 (Volume IV, Pages 161-230)—and the case regarding concentration camps—Pages 1399 to 1432 (Volume III, Pages 496-518)—and also the evidence as to the Defendant Kaltenbrunner, of which the reference is given in the addendum. They have also heard in the cases of the French and Soviet delegations additional mountains of evidence with regard to the SS. It is submitted that there is no difficulty on the first three of Mr. Justice Jackson’s points, and that the criminality of the SS has been proved several times over.

On the fourth point I venture to submit the submission in Paragraph 4 of Section C of my Appendix A, that the crimes of the SS were committed, first, on such a vast scale, and, secondly, over such a vast area that the criminal aims and methods of the SS, which have staggered humanity since this Trial opened, must have been known to its members. It was difficult to drive from one city of Germany to another without passing near to a concentration camp, and every concentration camp contained its SS crimes. In my Appendix B the Tribunal will find the members of the SS who are defendants set out, and, in the second part, a summary of the crimes of the Defendant Kaltenbrunner. The Prosecution gives to him a sinister particularity, while relying also on the crimes of the other defendants who were members.

DR. OTTO PANNENBECKER (Counsel for Defendant Frick): May I point out that in the appendix the Defendant Frick has apparently been included by mistake; among the offices held by the Defendant Frick this is not listed as one of them.

THE PRESIDENT: What do you mean? Do you mean not a member of the SS?

DR. PANNENBECKER: The appendix says that Frick was a member of the SS. This is not the case, and he has also made a statement to this effect in his affidavit.

DR. SEIDL: In the appendix just read out by the prosecutor the Defendant Frank too is included as a member of the SS. Already earlier in the Trial the American prosecutor submitted Document 2979-PS as Exhibit Number USA-7. This document shows that at no time was Frank a member of the SS or, as is asserted in the Indictment, an SS general.

Furthermore I should like to point out to the Tribunal that several months ago, when the Indictment was lodged against the SS as a criminal organization, the name of the Defendant Frank was not mentioned. May I therefore take it that in the drawing up of this appendix a mistake has been made?

DR. THOMA: I should like to make the same statement as that made by my colleague Doctor Seidl on behalf of the Defendant Rosenberg. In Appendix A, which lists the indicted elements, Rosenberg is shown as a member of the SA. He was never a member of the SA, and he has already made a statement to this effect in the course of an interrogation.

SIR DAVID MAXWELL-FYFE: The defendants will have the opportunity of disproving these allegations, which are all contained in the Indictment; but in view of what has been said, I shall personally check the matter myself.

I proceed to deal with the Gestapo. Again, the Tribunal will find the construction and history of the Gestapo set out in Appendix B of the Indictment, and the criminality alleged is set out in Paragraphs 1, 2, and 3 of Section D of my appendix. The second addendum, the Tribunal may care to note, gives the most detailed references to each of these alleged acts of criminality. And the Prosecution submit that from these points which are mentioned it is clear that the first four of Mr. Justice Jackson’s points are complied with. The provisions of Articles 7 and 8 of the Charter, in the submission of the Prosecution, make it impossible for the Defense to rely on the official background of the Gestapo, and therefore, as I say, we submit that this clearly comes within the first four of Mr. Justice Jackson’s points. If the Tribunal will refer to my Appendix B they will see that the Defendants Göring, Frick, and Kaltenbrunner are alleged to be members, and in the latter part of that appendix we allege, as is the fact, that the crimes of these defendants were committed in their capacities as responsible chiefs of this organization.

Then we come to the SA. I again refer to Paragraphs 1 and 2 of Section E of my Appendix A, and I ask the Tribunal to note that, apart from the correct statement of its phases and periods of activity, each of the elements of criminality contained references to the transcript where these matters are proved. I remind the Tribunal of Mr. Justice Jackson’s statement, which shows that the Prosecution have omitted all connected bodies—even including those who had only been members of the reserve—about which there can be any argument, even a sentimental argument, as to their full connection.

It might be convenient if I reminded the Tribunal of these sections.

THE PRESIDENT: We will adjourn now.

[The Tribunal recessed until 1400 hours.]