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.