If we follow the Prosecutor’s line of thought that, according to sound common sense, it is obvious that all the members took part in the crimes mentioned in Article 6 of the Charter, then the provisions regarding the Common Plan or Conspiracy would suffice altogether as grounds for prosecuting and punishing these members who, without exception, are to be considered guilty. In this case the structure of the declaration of criminality and the stipulation of its consequences would in no way have been necessary.
From the following deliberation it is to be inferred that the declaration of the criminality of the organizations is not necessary and can be dispensed with altogether.
Justice Jackson declared that, of course, no one intended an indictment of the innumerable members of the groups and organizations, which would result in a flood of trials which could not possibly be dealt with in one generation. What will be done is to seek out and find only those who are actually guilty and have them brought to trial.
Thus it is not in any way necessary to create such a large circle of members through the declaration of criminality and to select the guilty from this circle. This selection can take place without creating this circle. That in a group or organization of many members there were obviously a number of innocent members is a fact of common experience which cannot be disputed, and this thought is taken into consideration not only by the Charter, but also by the Prosecution in that they want to exempt from one of the organizations the category of those with low-grade routine tasks, obviously because of the conviction that these had nothing to do with crimes, for otherwise they would have been members of or participants in the criminal conspiracy.
Besides this category, however, a number of other members come into consideration whom one cannot speak of as guilty in the legal sense of the term; for instance, those people who did not give any thought at all to the aims of the group. All these people would of necessity not only be dishonored by a declaration of the criminality of the group or organization but, if indicted, would also be punishable because of mere membership. Incidentally it might be mentioned that eventually their economic existence would be menaced or destroyed because of their membership in the group or organization and the defamation brought about by the declaration of criminality.
But again it must be asked whether all these consequences have been weighed and can be justified in view of the basic principle of all criminal law systems, according to which only the guilty are to be punished, and in view of the principle of substantive justice. That ought to be answered in the negative all the more if these members who would necessarily be affected by the verdict of the Tribunal were not granted any legal hearing in this Trial.
It has already been pointed out that granting a legal hearing to the vast majority of the members is unfeasible for technical reasons. Thus the unique situation arises that the Tribunal would pass verdict on all those members without knowing whether or not numerous innocent members would be affected thereby.
If Justice Jackson further pointed out that the issue under dispute is nothing new, but can be found in the penal codes of all other states and in particular also in Germany, this view likewise can in no wise be supported. The German laws and precedents quoted are of a character entirely different from the structure of the Charter.
In Germany, as in almost all other states, the punishment of groups and organizations is not known at all, only the punishment of individuals is known. No German judgment has yet been passed by which a group or organization as such was subjected to penalty or was declared criminal. It is very well possible, though, that in the trials against members of criminal organizations the criminal character of the organization was stated in the opinion. This statement, however, had effect only on the convicted members and not on other members who were neither indicted nor convicted.
The provisions quoted of Articles 128 and 129 of the German Penal Code are provisions which corroborate exactly the view of the Defense, because they threaten only the participants in an illegal association with penalties and not the association itself. Also, the French laws quoted deal merely with the threat of punishment for participation and membership in certain associations with punishable pursuits. A possibility for declaring the association itself criminal is not to be found in these legal sources either.