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that he acted under duress; he may prove that he was deceived or tricked into membership; he may show that he had withdrawn or he may prove that his name on the rolls is a case of mistaken identity.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.