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.