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pursued the forbidden aims. It is enough if a part exer-
24.10.24.) Organizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies, and their criminality is judged by the application of conspiracy principles. The reason why they are offensive to law-governed people has been succinctly stated as follows:
"The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the
minds of people.” (Miller on Criminal Law, 1932. p. 110.) The Charter, in Article 6, provides that "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan." The individual defendants are arraigned at your bar on this charge which, if proved, makes them responsible for the acts of others in execution of the common plan.
The Charter did not define responsibility for the acts of others in terms of "conspiracy" alone. The crimes were defined in nontechnical but inclusive terms, and embraced formulating and executing a "common plan" as well as participating in a "conspiracy.” It was feared that to do otherwise might import into the proceedings technical requirements and limitations which have grown up around the term "conspiracy." There are some divergences between the Anglo-American concept of conspiracy and that of either Soviet, French, or German jurisprudence. It
was desired that concrete cases be guided by the broader con-
The criteria for determining the collective guilt of those who thus adhered to a common plan obviously are those which would test the legality of any combination or conspiracy. Did it contemplate illegal methods or aim at illegal ends? If so, the liability of each member of one of these Nazi organizations for the acts of every other member is not essentially different from the liability for conspiracy enforced in Courts of the United States against business men who combine in violation of the antitrust laws, or of other defendants accused under narcotic drugs laws, sedition acts, or other federal penal enactments.
Among the principles every day enforced in Courts of Great Britain and the United States in dealing with conspiracy are these:
1. No meeting or formal agreement is necessary. It is sufficient, although one performs one part and other persons other parts, if there be concert of action, and working together understandingly with a common design to accomplish a common purpose.
2. One may be liable even though he may not have known who his fellow-conspirators were, or just what part they were to take, or what acts they committed, and though he did not take personal part in them or was absent when criminal acts occurred.
3. There may be liability for acts of fellow-conspirators although the particular acts were not intended or anticipated, if they were done in execution of the common plan.
4. It is not necessary to liability that one be a member of a conspiracy at the same time as other actors, or at the time of
criminal acts. When one becomes a party to it, he adopts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow-conspirators.
Of course, members of criminal organizations or conspiracies who personally commit crimes are individually punishable for those crimes exactly as are those who commit the same offenses without organizational backing. But the very gist of the crime of conspiracy or membership in a criminal association is liability for acts one did not personally commit but which his acts facilitated or abetted. The crime is to combine with others and to participate in the unlawful common effort, however innocent the personal acts of the participant when considered by themselves.
The very innocent act of mailing a letter is enough to implicate one in a conspiracy if the purpose of the letter is to advance a criminal plan. There are countless examples of this doctrine in Anglo-American jurisprudence.
The sweep of the law of conspiracy is an important consideration in determining the criteria of guilt for organizations. Certainly the vicarious liability imposed in consequence of voluntary membership, formalized by oath, dedicated to a common organizational purpose and submission to a discipline and chain of command, can not be less than that which follows from informal cooperation with a nebulous group to a common end as is sufficient in conspiracy. This meets the suggestion that the prosecution is required to prove every member, or every part, fraction, or division of the membership to be guilty of criminal acts. The suggestion ignores the conspiratorial nature of the charge. Such an interpretation also would reduce the Charter to an unworkable absurdity. To concentrate in one International Tribunal inquiries requiring such detailed evidence as to each member would set a task not possible of completion within the lives of living men.
It is easy to toss about such a plausible but superficial cliché as, "One should be convicted for his activities, not for his membership." But this ignores the fact that membership in Nazi bodies was itself an activity. It was not something passed out to a passive citizen like a handbill. Even a nominal membership may aid and abet a movement greatly. Does anyone believe that Hjalmar Schacht sitting in the front row of the Nazi Party Congress of 1935, wearing the insignia of the Party, was included in the Nazi propaganda films merely for artistic effect? This great banker's mere loan of his name to this shady enterprise gave it a lift and a respectability in the eyes of every hesitating German. There may be instances in which membership did not aid and abet the organizational ends and means, but individual situations of that kind are for appraisal in the later hearings and not by this Tribunal. By and large, the use of organization affiliation is a quick and simple, but at the same time fairly accurate outline of the contours of a conspiracy to do what the organization actually did. It is the only one workable at this stage of the trial. It can work no injustice because before any individual can be punished, he can submit the facts of his own case to further and more detailed judicial scrutiny.
While the Charter does not so provide, we think that on ordinary legal principles the burden of proof to justify a declaration of criminality is upon the prosecution. It is discharged, we think, when we establish the following:
1. The organization or group in question must be some aggregation of persons associated in some identifiable relationship with a collective general purpose.
2. While the Charter does not so declare, we think it implied that membership in such an organization must be generally voluntary. That does not require proof that every member was a volunteer. Nor does it mean that an organization is not to be considered voluntary if the defense proves that some minor fraction or small percentage of its membership was compelled to join. The test is a common-sense one: Was the organization on the whole one which persons were free to join or to stay out of? Membership is not made involuntary by the fact that it was good business or good politics to identify one's self with the movement. Any compulsion must be of the kind which the law normally recognizes, and threats of political or economic retaliation would be of no consequence.
3. The aims of the organization must be criminal in that it was designing to perform acts denounced as crimes in Article 6 of the Charter. No other act would authorize conviction of an individual and therefore no other act would authorize conviction of an organization in connection with the conviction of the individual.
4. The criminal aims or methods of the organization must have been of such character that its membership in general may properly be charged with knowledge of them. This again is not specifically required by the Charter. Of course, it is not incumbent on the prosecution to establish the individual knowledge of every member of the organization or to rebut the possibility that some may have joined in ignorance of its true character.
5. Some individual defendant must have been a member of the
organization and must be convicted of some act on the basis of which the organization is declared to be criminal.
D. Definition of Issues for Trial.
The progress of this trial will be expedited by clear definition of the issues to be tried. I have indicated what we consider to be the proper criteria of guilt. There are also subjects which we think are not relevant before this Tribunal, some of which are mentioned in the specific questions asked by the Tribunal.
Only a single ultimate issue is before this Tribunal for decision. That is whether accused organizations properly may be characterized as criminal ones or as innocent ones. Nothing is relevant here that does not bear on a question that would be common to the case of every member. Any matter which would be exculpating for some members but not for all is irrelevant here.
We think it is not relevant to this proceeding at this stage that one or many members were conscripted if in general the membership was voluntary. It may be conceded that conscription is a good defense for an individual charged with membership in a criminal organization, but an organization can have criminal purposes and commit criminal acts even if a portion of its membership consists of persons who were compelled to join it. The issue of conscription is not pertinent to this proceeding but it is pertinent to the trials of individuals for membership in organizations declared criminal by this Tribunal.
We also think it is not relevant to this proceeding that one or more members of the named organizations were ignorant of its criminal purposes or methods if its purposes or methods were open and notorious. An organization may have criminal purposes and commit criminal acts although one or many of its members were without personal knowledge thereof. If a person joined what he thought was a social club but what in fact was a gang of cutthroats and murderers, his lack of knowledge would not exonerate the gang considered as a group, although it might possibly be a factor in extenuation of a charge of criminality brought against him for mere membership in the organization. Even then the test would be not what the man knew, but what, as a person of common understanding, he should have known.
It is not relevant to this proceeding that one or more members of the named organizations were themselves innocent of unlawful acts. This proposition is basic to the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge,