In my opinion, negligence cannot be sufficient when passing judgment subjectively because of the general principle that in cases of serious crimes—and in this case the penalty may be death—there must always be full proof, and that negligence cannot be sufficient. Therefore, as a matter of principle, it has to be required in these present proceedings that an organization under Indictment can be declared criminal only if it has been ascertained that: Firstly, the aims of the organization were criminal in the sense of Article 6 of the Charter, and, furthermore, that all members at least knew of these criminal aims. This is also necessary for the reason that, as has just been said, this Trial before the International Military Tribunal represents the essential main part of the criminal proceedings which will ascertain the guilt of each individual member of the organizations.
Justice does not permit that those members who did not possess the aforementioned knowledge and who are therefore innocent be included in a verdict. And this will not lead to that consequence mentioned by Justice Jackson, namely, that a rejection of the verdict would mean a triumph for those who are guilty. I am of the opinion that the guilty ones, regardless of their number, should be brought to punishment. Despite all considerations of expediency, the issue should not be that along with the guilty ones an enormous number of innocent persons also be punished.
Therefore, to come to the core of the question, this is to be regarded as relevant. The relevancy and admissibility of evidence depends on a definition of the criminal organization and of its criminal character. On the basis of my definition I contend that the following points are relevant:
(a) That the organizations, according to their constitution or statutes, did not have a criminal composition and did not pursue any criminal aims in the sense of Article 6 of the Charter.
(b) That within the organization, or in connection with it, crimes in the sense of Article 6 were not, or at least not continuously, committed during a certain period of time.
(c) That a certain number of members had no knowledge of any possible criminal constitution or criminal purpose, or the continuous commission of crimes according to Article 6, and that they also did not approve of these facts.
(d) That a certain number of members or certain closed independent groups joined these organizations under compulsion, or pressure, or as the result of deception, or by order from higher authorities.
(e) That a certain number of members without any action on their part became members of these organizations through the bestowal of honorary membership.
Since I know that the questions to be decided represent a terra nova in the field of criminal law, I believe that in the course of the presentation of evidence we shall receive many other suggestions. Therefore it will be expedient if the Tribunal at the present stage of the Trial do not bind and limit themselves by a final definition. I ask rather that evidence be admitted to the greatest extent. In conclusion I come to the question of how the presentation of evidence can be carried out in practice and how the legal hearing of the member can be made possible according to Article 9, Paragraph 2, of the Charter.
The principles valid in criminal procedure in all countries allow every defendant before the court certain rights. The most important principles are the principle of direct oral proceedings and the right to defense and to a legal hearing. Since, according to my statements, the real defendants are the members of the organizations, these rights must be accorded to every member of the organization. In spite of this basic point of view, which will be discussed in still greater detail in our final pleadings, and with all legal reservations, the Defense do not overlook the fact that for all practical purposes that is impossible within the framework of this Trial. A solution must be found, since the Prosecution have lodged the Indictment of the organizations on the basis of the Charter in its present form.