However, such a right is not given to the Prosecution in the Charter. It also stands in contradiction to the natural powers of the Tribunal of including in its decision an acquittal—a power which cannot be eliminated by reservation made by the Prosecution. The evidence material to be examined also cannot be limited through such a limitation as proposed, for the judgment delivered on the indicted organizations must include these organizations as a whole. It is not permissible to seize upon merely the unhealthy elements of groups during a period which was not typical and still declare the organization criminal.
That which is to be considered a group or an organization does not depend on the discretion of the Prosecution, as is also seen in Article 9, Paragraph 1, of the Charter, according to which the criminal character must stand in some relationship to the acts of one of the main defendants. This can only be understood to mean that the membership of the organization must be influenced by the actions of one of the major defendants at a given time. However, this is not for the Prosecution but for the Tribunal to decide.
Accordingly, I should like to answer Questions 2 and 3 as follows:
Question 2: A limiting of the incriminating period does not depend on a motion of the Prosecution. The Tribunal itself can and must limit the length of time, if the organizations or groups were not deserving of punishment throughout the whole period of their existence. If the actions of the main defendant, as a member of the organization, were not incriminating during the whole period of the existence of the organization, then such a limitation must follow.
Question 3: For the limiting of the groups of members the same applies as for the limiting of the period of time.
The Tribunal can, on the basis of its own powers, limit the effect that its verdict will have in the case of all groups and organizations. It must undertake this limitation, if the actions of the main defendant in his capacity as a member of the organization are not to incriminate certain groups of members. A limitation of the Indictment or of the effect of the verdict does not limit the evidence material which is the basis of the judgment.
These were the remarks I wanted to make in answer to the questions of the Tribunal. I should like now merely to take a stand on a question that has also been brought up today, namely, the application for a legal hearing, if the Tribunal permit me to discuss this question. According to Article 10 of the Charter, every member of an organization can be brought to trial, if the organization has been declared criminal. The decision is left up to the Tribunal. The essential task of the Tribunal is the hearing of the members. Without this hearing a sentence is not possible. That is the basic condition without which the proceedings cannot be carried out. So far, the Defense has about 50,000 applications from the millions of members. In order that the Tribunal should not draw the false conclusion that the overwhelming majority of those affected admit their guilt by remaining silent, I must emphasize that such guilt will be most passionately denied by all those affected.
I shall therefore go into the reasons why so few applications have been submitted, and I shall show that this is not the fault of those affected or the result of negligence. Not a lack of interest or disrespect of the Court but rather certain clear facts are responsible for this lack of response.
The announcement in the press and over the radio at the beginning of the proceedings regarding the right to be heard was made at a time when there were practically no newspapers in the destroyed cities and radios were a rarity.
In addition, because of the paper shortage, it was made in small print and for the most part was simply not understood. The Tribunal ordered an announcement to be made in the internment camps, where a great number of the people affected are concentrated. To what extent this announcement actually was made, I have not yet been able to determine. Mr. Justice Jackson showed various documents this morning and from them I shall be able to inform myself. The fact that so few applications have been made gives cause for concern. But even those people who have obtained knowledge of their right have apparently not been able as yet to make applications to the Court. At the time of the announcement there was no postal service between the various zones, and there are still no postal connections with Austria, where there are probably tens of thousands of men in custody.