General Rudenko, you remember that Mr. Justice Jackson suggested certain tests that we should use before we found an organization criminal, whether the tasks and the purpose of the organization were open and notorious, in order to show that the members knew what they were doing.
Now, if we find that any organization is criminal we would necessarily find, I presume, on that test, that its actions were open and notorious. Now, if a member of that organization found to be criminal was then tried by one of the national courts, I suppose under that finding he would not have any right to show that he did not know about it, because we would have found that the knowledge was so open and notorious that he must have known, so he could not raise as a defense that he had no knowledge of the criminal acts, could he?
GEN. RUDENKO: That is quite true. But we are bearing in mind the fact that the national courts investigating the problem of the individual responsibility of individual members of the organizations will, of course, proceed from the principle of individual guilt, since, naturally, we cannot exclude the possibility that in the organization of the SA, which fundamentally and in an overwhelming majority was aware of its criminal purpose, there might yet be individual members who might have been lured into the organization, either by deception or by some other reasons, and have been unaware of its criminal purpose.
THE TRIBUNAL (Mr. Biddle): But that would not be any defense to him, would it? He could not say he had no knowledge, because we would have already found that the knowledge was so open and notorious that he must have known.
GEN. RUDENKO: Why? I personally proceed from the standpoint that if the national court investigates the case of members who plead ignorance of the criminal purpose of the organization to which they belonged, the national court must examine these arguments submitted in their defense and estimate them accordingly.
THE TRIBUNAL (Mr. Biddle): How could they consider that, if we make a rule that the activities of the organization are so notorious that he must have known? How can he then say he did not know?
GEN. RUDENKO: I still maintain the point of view, and I still interpret and understand the Charter to mean that the judgment of the International Military Tribunal should determine and decide the question of the criminal character of the organizations, but where the question of individual responsibility and guilt of every member of this organization is concerned, the decision falls exclusively within the competence of the national courts. It is therefore extremely difficult to foresee all the possible individual cases and the eventualities which might arise when investigating a category of individual defendants.
You yesterday submitted a question to Sir David Maxwell-Fyfe concerning a member of the SA who had joined the organization in 1921 and left a year later. These, of course, are special cases and I cannot state how numerous they are; they are unavoidable, and when we come to the question of the extent of his information, the reasons for his entering and the reasons for his leaving this organization, when we come to estimate the value of his actions, it seems to me that it should be done by a national court which will examine the findings of the defense and appreciate them accordingly.
THE TRIBUNAL (Mr. Biddle): Can you say now what defense he would have before the national court, except the defense that he was never a member? Does he have any other defenses so far as we know? Does the Law Number 10 permit him any other defenses?
GEN. RUDENKO: It is difficult for me, at the present moment, to say what arguments the members of these organizations may put forward, for were I to speak, it would be on assumption. But I, for instance, consider, that the argument produced—if produced—which might be considered sufficient to exonerate this member of the organization would be that he had been coerced into joining.