His second point was that crimes under Article 6 were not committed within or in connection with the organization or were not committed continuously over a period. The first part of that would seem fairly clear, that, if the crimes were not committed within or in connection with the organization, the organization is obviously in a very favorable position. But I first answer the second part by saying that it does not come into the picture of this case that there is any instance of isolated crimes with regard to every organization. The crimes alleged are, in fact, spread over the period alleged in the Indictment, but I suggest that the adoption of such a criterion does not really help. One comes back to the first point of Dr. Kubuschok, that aims or purposes, as disclosed by declarations, methods, or activities, are the primary and most important tests.
Then, the third point that Dr. Kubuschok made was that an appreciable number of members had no knowledge of the criminal aims or of the continuous commission of crimes. I endeavored to stress, as did Mr. Justice Jackson, that the Prosecution’s test is constructive knowledge. That is, ought a reasonable person in the position of a member to have known of these crimes? And that really is the answer, in my respectful submission, to the relevancy of individual knowledge of one particular member.
It is only too true that during the period under discussion a very large number of people made a habit of sticking their heads in the sand and endeavoring to abstain from acquiring knowledge of things that were unpleasant. In my respectful submission, that sort of conduct on the part of a member would not help him at all, and the only answer to that is to adopt the test which we have suggested: Ought a person in that position reasonably to have known of the commission of the crimes?
Dr. Kubuschok’s fourth point is that an appreciable number of members or certain independent groups joined the organization under compulsion or illusion or superior orders. Shortly we answer that by saying that that is only relevant to the defense of an individual member in the subsequent proceedings, and, of course, it is only a defense where he can show that he has taken no personal part in the criminal acts.
Then, the last point which Dr. Kubuschok made was that an appreciable number of members were honorary members. Again we say that that is only relevant to the defense of the individual member, and it does not really alter or increase the defenses open to him.
The only other point of Dr. Kubuschok’s which I do think requires mention is that in considering how evidence could be presented, he said that certain rights of defense are universal. The first of these which he claimed was direct oral testimony, and he said that each individual defendant should have this right. He then admitted that that was practically impossible and suggested as a solution that we must typify, that is, that representatives of groups in the various camps should make affidavits showing what percentage took part in criminal actions or knew about them.
I want to point out to the Tribunal that it is expressly laid down in the Charter that members of the organization are entitled to apply to the Tribunal for leave to be heard, but the Tribunal shall have power to allow or reject the application. As a point of construction no less than of sense, there would have been no point in giving the Tribunal the power to reject the application, if it were implicit that everyone should have the right to be heard.
The answer is that the Tribunal has complete discretion to decide what line and what course shall be taken to procure the evidence. The Prosecution, through Mr. Justice Jackson, has indicated that it makes no objection to any reasonable form of collecting relevant evidence. What the Prosecution objects to is evidence being tendered on the issue before the Tribunal which is only relevant to the question of individual innocence or guilt of the member.
My Lord, I could have dealt, and indeed was prepared to deal, with a number of points raised by the other Counsel for the Defense. I hope they would not think that it is any disrespect to their arguments that I have not dealt with them, but I know that the Tribunal wishes to ask certain questions, and I do not want to trespass on that time. I only want to deal with one point, because it kills with one stone two birds that have flown against our argument in this case.
It will be remembered that when I dealt with the SA yesterday, Dr. Seidl—and I am sorry he is not here—raised the question that the Defendant Frank was not a member of the SA; and Dr. Löffler, in dealing with the SA today, raised the question that its activities no doubt did not really extend after 1939, and not importantly after the purge in 1934.