The French Prosecutor quoted, first of all, Articles 265 and 266 of the Penal Code. The first provision forbids the forming of associations with a punishable pursuit; the second subjects only the participants to penalty. Likewise, the French law concerning armed groups and private militia, of 10 January 1936, provides only for the punishment of the participants. The same is true of the other law quoted, that of 26 August 1944, which provides only for individual responsibility. None of the above-mentioned laws allows the punishment of organizations. Consequently, they can support only the legal view of the Defense.
If in England and America—as exceptions—associations as such can be punished, that can be done only on account of certain groups of offenses and only to the effect that either the dissolution of the corporation may be pronounced or fines imposed. Naturally in such proceedings it is a necessary condition for the Prosecution and the Defense that the corporation as such be represented during the proceedings by its functionaries and representatives and be able to defend itself; whereas in this Trial the groups and organizations as such are summoned before the Court, although they do not exist any longer and although their functionaries are absent.
It has never been the case in any country that groups and organizations are declared guilty or criminal and that on the basis of this declaration of the Court all members of the groups or organizations can be or must be indicted and punished because of their mere membership. This is the completely novel and odd feature which stands in contrast to the existing law of any country.
I believe it is permissible to say that neither England nor America would ever be willing to pass such a law for their own population. If all this proves that the declaration of criminality demanded must automatically result in grave and completely untenable consequences as demonstrated, then the demand of the Prosecution should be denied in the name of justice. The Charter, which in no way obliges the Tribunal to make such a declaration, would also not be violated thereby. In this way an injustice which could only injure the integrity of the judgment of the Tribunal in the eyes of our contemporaries and of posterity would be avoided.
My arguments lead to the following conclusion:
1. The Tribunal should, because of the legal arguments presented, as a matter of principle, refuse to declare any group or organization criminal; it is within the Tribunal’s power to do so.
2. If this is not done, the concept of the criminal organization must be so defined that the innocent members are protected from serious consequences. This can be done only by means of a definition, as suggested yesterday by my colleague, Kubuschok. Accordingly, those subjects of evidence proposed by him should also be admitted if they are not a priori irrelevant because of the fact that, for legal reasons, the Prosecution’s demand of a verdict against the groups and organizations cannot be granted. It is necessary that the following additional evidence be admitted for the group of the General Staff and the OKW, which I represent:
(1) The group included under the designation “General Staff and OKW” is not such a group and is not an organization. My explanation of this subject of proof is as follows:
(a) Justice Jackson is of the opinion that the concept of “group” is more comprehensive than that of “organization,” that it does not have to be defined but can be understood by common sense. To this I must object that those who occupied the highest and the higher command posts represent the heads of a military hierarchy as it is to be found in every army in the world. There was no relationship whatsoever evident among the members of this group. Nor can such relations be assumed merely because of the official connections between the various offices or because of the channels which actually existed. Moreover, since the circle of people whom the Prosecution wish to include in this group is admittedly composed in a completely arbitrary way, simply on the basis of official positions occupied within a period of 8 years, there is no evident tie which could justify the assumption of the existence of a group. But to form a group it is absolutely necessary to have some connecting element in addition to the purely official contact between offices.
(b) Aside from the Chiefs of the General Staffs of the Army and the Air Force, none of the individual persons in the group belonged to the General Staff. The German General Staff of the Army and the Air Force—the Navy had no admiral staff—was headed by the Chief of the General Staff and consisted of the General Staff officers who acted as operational assistants to the higher military leaders. For these reasons the designation or name given by the Prosecution to this fictitious group under indictment is false and misleading as well.