Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08

by Various

[The Tribunal adjourned until 2 March 1946 at 1000 hours.]

SEVENTY-SECOND DAY
Saturday, 2 March 1946

Morning Session

THE PRESIDENT: General Rudenko.

GEN. RUDENKO: Your Honors, permit me to make a few supplementary remarks concerning the criminal organizations, a problem to which the Tribunal has devoted much attention in the last few days.

I consider it essential, in the first instance, to clarify completely the legal aspect of this problem. There is in the Charter of the Tribunal a marked absence of any statement to the effect that the recognition of an organization as being of a criminal nature would automatically entail the bringing to trial and, further, the condemning of all the members of these organizations. On the contrary, the Charter contains a definite indication of an opposite nature. Article 10 of the Charter, repeatedly quoted at this Trial, states that the national courts have the right, though not the obligation, to bring to trial members of organizations declared as criminal. Consequently, the question of the problem of the trial and the punishment of individual members of criminal organizations lies exclusively within the scope of the national tribunals.

The legal sovereignty of every country that has adopted the Charter of the Tribunal is thus limited in one respect only: The national courts cannot deny the criminal character of an organization, once it has been declared to be criminal. The Tribunal can impose no further limitation on the legal sovereignty of the contracting parties.

Therefore, Justice Jackson has stated here—and with reason—that the recognition of an organization as being of a criminal nature and therefore automatically entailing the mass condemnation of all its members, is a mere figment of the imagination; I would add, that has not sprung from legal grounds but from some entirely different source.

It appears to me that this legal problem is also based on a definite misunderstanding. One of the Counsel for the Defense, Dr. Servatius, was speaking here of the legislative authority of the Tribunal. The authority of the International Military Tribunal, organized by four states in the interests of all freedom-loving peoples, is enormous; but, of course, this Tribunal, as a legal organization, does not and cannot possess any legislative authority. When solving the problem of the criminal character of an organization, the Tribunal is only exercising the right entrusted to it by the Charter, that is, to solve independently the question of the criminality of the organizations. Of course, the verdict of this Tribunal, when coming into force, acquires the value of a law, but that is the value attached to any of the verdicts of the courts once it has been delivered.

Counsel for the Defense Kubuschok has stated here that the decision of the Charter with regard to the criminal organizations is a legal innovation. This, to a certain extent, is true. The innovation consists in the Charter of the International Military Tribunal and all its articles, whose creation, per se, is an innovation in the first instance. But should the Defense consider it possible to deplore this fact, I would consider it opportune to remind them of the causes of these legal innovations.