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side the law, with the Fuehrer at its apex, and with the local party officials as its broad base resting heavily on the German population. The Nazi despotism, therefore, did not consist of these individual defendants alone. A thousand little fuehrers dictated, a thousand imitation Goerings strutted, a thousand Schirachs incited the youth, a thousand Sauckels worked slaves, a thousand Streichers and Rosenbergs stirred hate, a thousand Kaltenbrunners and Franks tortured and killed, a thousand Schachts and Speers and Funks administered, financed, and supported the movement. The Nazi movement was an integrated force in city and county and hamlet. The party power resulting from this system of organizations first rivaled, and then dominated, the power of the State itself.
The primary vice of this web of organizations was that they were used to transfer the power of coercing men from the government and the law to the Nazi leaders. Liberty, self-govern
ment, and security of persons and property do not exist except where the power of coercion is possessed only by the State and is exercised only in obedience to law. The Nazis, however, set up a private system of coercion, outside of and immune from law, with party-controlled concentration camps and firing squads to administer privately decreed sanctions. Without responsibility to law and without warrant from any court, they were enabled to seize property, take away liberty, and even take life itself.
These organizations had a calculated and decisive part in the barbaric extremes of the Nazi movement. They served cleverly to exploit mob psychology and to manipulate the mob. Multiplying the numbers of persons in a common enterprise tends to diminish each individual's sense of moral responsibility and to increase his sense of security. The Nazi leaders were masters of this technique. They manipulated these organizations to make before the German populace impressive exhibitions of numbers and of power. These were used to incite a mob spirit and then riotously to gratify the popular hates they had inflamed and the Germanic ambition they had inflated.
These organizations indoctrinated and practiced violence and terrorism. They provided the systematized, aggressive, and disciplined execution throughout Germany and the occupied countries of the whole catalogue of crimes we have proven. The flowering of the system is represented in the fanatical SS General Ohlendorf, who told this Tribunal without shame or trace of pity how he personally directed the putting to death of 90,000 men, women, and children. No tribunal ever listened to a recital of such wholesale murder as this Tribunal heard from him and from Wisliceny, a fellow officer of the SS. Their own testimony shows the responsibility of the SS for the extermination program which took the lives of five million Jews, a responsibility the organization welcomed and discharged methodically, remorselessly, and thoroughly. These crimes are unprecedented ones because of the shocking numbers of victims. They are even more shocking and unprecedented because of the large number of persons who united to perpetrate them. All scruple or conscience of a very large segment of the German people was committed to Nazi keeping, and its devotees felt no personal sense of guilt as they went from one extreme measure to another. On the other hand, they developed a contest in cruelty and a competition in crime. Ohlendorf from the witness stand accused other SS commanders, whose killings exceeded his, of "exaggerating” their figures.
There could be no justice and no wisdom in an occupation policy which imposed upon passive and unorganized and inarticulate Germans the same burdens as it placed upon those who voluntarily banded themselves together in these powerful and notorious gangs. One of the basic requirements, both of justice and of successful administration of the occupation responsibility of the victors, is a segregation of these organized elements from the masses of Germans for separate treatment.
It seems beyond controversy that to punish a few top leaders but to leave this web of organized bodies unscotched in the midst of German postwar society, would be to foster the nucleus of a new Nazidom. The members are accustomed to an established chain of centralized command; they have formed a habit and developed a technique of both secret and open cooperation. They still nourish a blind devotion to the suspended, but not abandoned, Nazi program. They will keep alive the hates and ambitions which generated the orgy of crime we have proved. They are carriers, from this generation to the next, of the infection of aggressive and ruthless war. The Tribunal has seen on the screen how easily an assemblage that ostensibly is only a common labor force can be in fact a military training unit drilling with shovels. The next war and the next pogroms will be hatched in the nests of these organizations as surely as we leave their membership with its prestige and influence undiminished by condemnation and punishment.
The menace of these organizations is the more impressive when we consider the demoralized state of German society. It will be years before there can be established in the German State any political authority that is not inexperienced and provisional. It cannot quickly acquire the stability of a government aided by long habit of obedience and traditional respect. The intrigue, obstruction, and possible overthrow, which older and established governments fear from conspiratorial groups, is a real and present danger to any stable social order in the Germany of today and of tomorrow.
Insofar as the Charter of this Tribunal contemplates a justice of retribution, it is obvious that it could not overlook these organized instruments and instigators of past crimes. In opening this case, I said that the United States does not seek to convict the whole German people of crime. But it is equally important that this trial shall not serve to absolve the whole German people except 22 men in the dock. The wrongs that have been done to the world by these defendants and their top confederates was not done by their will or by their strength alone. The success of their designs was made possible because great numbers of Germans organized themselves to become the fulcrum and the lever by which the power of these leaders was extended and magnified. If this trial fails to condemn these organized confederates for share of responsibility for this catastrophe, it will be construed as their exoneration.
But the Charter was not concerned with retributive justice alone. It manifests a constructive policy influenced by exemplary and preventive considerations. The primary objective of requiring that the surrender be unconditional was to clear the way for reconstruction of German society on such a basis that it will not again threaten the peace of Europe and of the world. Temporary measures of the occupation authorities may, by necessity, have been more arbitrary and applied with less discrimination than befits a permanent policy. Under existing denazification policy, no member of the Nazi party or its formations may be employed in any position, other than ordinary labor, or in any business enterprise unless he is found to have been only a nominal Nazi. Persons in certain categories, whose standing in the community is one of prominence or influence, are required to meet this standard, and those who do not may be denied further participation in their businesses or professions. It is mandatory to remove or exclude from public office, and from positions of importance in quasi public and private enterprises, persons falling within approximately 90 specified categories deemed to consist of either active Nazis, Nazi supporters, or militarists. The property of such persons is blocked.
It is recognized by the Control Council, as it was by the framers of the Charter, that a permanent, long-term program should be
based on a more careful and more individual discrimination than was possible with sweeping temporary measures. There is a movement now within the Control Council for reconsideration of its whole denazification policy and procedure. The action of this Tribunal in declaring, or in failing to declare, the accused organizations criminal has a vital bearing on future occupation policy.
It was the intent of the Charter to utilize the hearing processes of this Tribunal to identify and condemn those Nazi and militaristic forces that were so organized as to constitute a' continuing menace to the long-term objectives for which our respective countries have spent the lives of their young men. It is in the light of this great purpose that we must examine the provisions of the Charter.
B. The Procedure for Condemning Organizations.
It was obvious that the conventional litigation procedures could not, without some modification, be adapted to this task. No system of jurisprudence has yet evolved any satisfactory technique for handling a great multiplicity of common charges against a multitude of accused persons. The number of individual defendants that fairly can be tried in a single proceeding probably does not greatly exceed the number now in your dock. Moreover, the number of separate trials in which the same voluminous evidence as to common plan must be repeated is very limited as a practical matter. Yet adversary hearing procedures are the best assurance the law has evolved that decisions will be well considered and just. The task of the framers of the Charter was to find a way to overcome these obstacles to practicable and early decision without sacrificing the fairness implicit in hearings. The solution prescribed by the Charter is certainly not faultless, but not one of its critics has ever proposed an alternative that would not either deprive the individual of any hearing or contemplate such a multitude of long trials as to be impracticable. In any case, it is the plan adopted by our respective governments and our duty here is to make it work.
The plan which was adopted in the Charter essentially is a severance of the general issues which would be common to all individual trials from the particular issues which would differ in each trial. The plan is comparable to that employed in certain wartime legislation of the United States (Yakus v. United States, 321 U. S., 414, 64 Sup. Ct. 660). The general issues are to be determined with finality in one trial before the International
Tribunal. In this trial, every accused organization must be defended by counsel and must be represented by at least one leading member, and other individual members may apply to be heard. Their applications may be granted if the Tribunal thinks justice requires it. The only issue in this trial concerns the collective criminality of the organization or group. It is to be adjudicated by what amounts to be a declaratory judgment. It does not decree any punishment, either against the organization or against the individual members.
The only specification as to the effect of this Tribunal's declaration that an organization is criminal, is contained in Article 10 of the Charter, which provides :
“In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be
questioned." Unquestionably, it would be competent for the Charter to have declared flatly that membership in any of these named organizations is criminal and should be punished accordingly. If there had been such an enactment, it would not have been open to an individual who was being tried for membership in the organization to contend that the organization was not in fact criminal. The framers of the Charter, at a time before the evidence adduced here was available, did not care to find organizations criminal by fiat. They left that issue to determination after relevant
. facts were developed by adversary proceedings. Plainly, the individual member is better off because of the procedure of the Charter, which leaves that finding of criminality to this body after hearings at which the organization must, and the individual may, be represented.
The groups and organizations named in the Indictment are not "on trial” in the conventional sense of that term. They are more nearly under investigation as they might be before a grand jury in Anglo-American practice. Article 9 recognizes a distinction between the declaration of a group or organization as criminal and "the trial of any individual member thereof." The power of the Tribunal to try is confined to "persons," and the Charter does not expand that term by definition, as statutes sometimes do, to include other than natural persons. The groups or organizations named in the Indictment were not as entities served with process. The Tribunal is not empowered to impose