criminal guilt is personal, and mass punishments should be avoided. If satisfied of the criminal guilt of any organization or group, this Tribunal should not hesitate to declare it to be criminal because the theory of "group criminality" is new, or because it might be unjustly applied by some subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible in a manner to insure that innocent persons will not be punished.42

The nub of the court's decision on this thorny issue was that no one should be convicted on the ground of membership unless he either had "knowledge of the criminal purposes or acts of the organization" or was "personally implicated in the commission" of criminal acts. "Membership alone is not enough to come within the scope of these declarations."43 The IMT went on to recommend that, in subsequent trials of individuals on the charge of membership, the classifications and penalties should, so far as possible, be uniform in the four occupation zones; that no punishment for membership pursuant to Law No. 10 should exceed the punishment prescribed under the new German "De-Nazification Laws";44 and that no one should be punished for membership both under Law No. 10 and the DeNazification Law.

As for the organizations themselves, the IMT found little difficulty in declaring the “Leadership Corps" of the Nazi Party and the SS and Gestapo to be criminal organizations as to those who became or remained members after 1 September 1939. The Storm Troopers (SA) had ceased to be of great importance after the Roehm purge (1934), and the Tribunal declined to declare the SA criminal. The Reich Cabinet also escaped because it had ceased to function "as a group or organization" after 1937, and in any event was "so small that members could be conveniently

42 lbid., p. 256.

43 Ibid.

44 The De-Nazification Law of 5 March 1946, adopted in Bavaria, Wuerttemberg-Baden, and Greater Hesse, provided a maximum term of ten years imprisonment. In fundamental theory. this law was a "security" or "political cleansing" measure rather than a penal statute in the strict sense.

tried in proper cases without resort to a declaration."45 The "General Staff and High Command" was not subjected to a declaration for the same reason, and also because the court felt that the military leaders did not constitute an "organization" or a "group" within the meaning of the Charter.46 However, the Tribunal commented that:

Although the Tribunal is of the opinion that the term "group" in Article 9 must mean something more than this collection of military officers, it has heard much evidence as to the participation of the officers in planning and waging aggressive war, and in committing War Crimes and Crimes against Humanity. This evidence is, as to many of them, clear and convincing.

They have been responsible in large measure for the miseries and suffering that have fallen on millions of men, women, and children. They have been a disgrace to the honorable profession of arms. . .

Many of these men have made a mockery of the soldier's oath of obedience to military orders. When it suits their defense they say they had to obey; when confronted with Hitler's brutal crimes, which are shown to have been within their general knowledge, they say they disobeyed. The truth is they actively participated in all these crimes, or sat silent and acquiescent, witnessing the commission of crimes on a scale larger and more shocking than the world has ever had the misfortune to know. This must be said.

Where the facts warrant it, these men should be brought to trial so that those among them who are guilty of these crimes should not escape punishment.47

The concluding portion of the judgment, dealing with the guilt or innocence of the individual defendants, is perhaps the least satisfying part of the opinion. The decision in each case required that the general principles laid down earlier in the judgment be interpreted and applied to a particular set of facts established by the proof. With twenty-two such sets, some of which presented very delicate problems, the IMT was unable to avoid a number of pitfalls, and troublesome inconsistencies are readily apparent.

45 Ibid., pp. 257-76. 46 Ibid., pp. 276-78. 47 lbid., pp. 278-79.

With respect to Counts One (considered by the IMT as a charge of conspiracy to plan or wage aggressive war) and Two (the substantive crime of planning or waging aggressive war) an interesting reversal took place. The prosecution (in this instance the British and Americans) obviously considered conspiracy the broader and more inclusive charge, and had accordingly indicted all of the defendants under Count One,48 but had only charged eighteen of the defendants under Count Two.49 The IMT, however, took just the opposite view, and treated conspiracy as the more restricted charge. Eight defendants only were convicted under Count One, and these eight were also convicted under Count Two. All eight were either close personal or Party confidants of Hitler (Goering, Hess, Ribbentrop, and Rosenberg) or were top military or diplomatic figures who were privy to the most secret plans and attended conferences where Hitler personally revealed his intentions (Goering, Ribbentrop, Keitel, Raeder, Jodl, and von Neurath). But four others -Frick, Funk, Doenitz, and Seyss-Inquart-acquitted of the conspiracy charge were nevertheless convicted under Count Two. Frick as an administrator and bureaucrat, Funk as an economic planner, Doenitz as commander of all German submarines, and Seyss-Inquart as a Nazi pro-consul in occupied Poland and the Netherlands, had planned or waged aggressive war, although they had not conspired.50

The six defendants not charged under Count Two were acquitted under Count One." Also acquitted were four defendants who were charged on both counts-Schacht, Sauckel, von Papen, and Speer. Despite Papen's international notoriety, he was not close to Hitler and his activities as Ambassador to

48 Including Ley and Krupp, who were not tried.

49 The six not charged under Count Two were Kaltenbrunner, Frank, Streicher, Schirach, Fritzsche, and Bormann.

50 The opinion is clear that Funk planned and Doenitz waged, but is not clear as to which element was relied on in the cases of Frick and Seyss-Inquart.

51 Had Frank, for example, been charged under Count Two, it is difficult to see how he could have escaped conviction, as he was Seyss-Inquart's immediate superior in occupied Poland.

Austria and later to Turkey were too slender a basis for conviction. The acquittals of Schacht, Sauckel, and Speer are more difficult to analyze. The Tribunal's unspoken premise seems to have been that Schacht deserted the Nazis too soon (he lost his struggle with Goering in 1936 and 1937, and was dismissed by Hitler from the Presidency of the Reichsbank in January 1939), and that Sauckel and Speer attained high positions too late (1942), to support their conviction. But on the face of the judgment it is hard (at least for the writer) to see why Sauckel and Speer were less guilty of "waging" aggressive war than Doenitz or Frick or Seyss-Inquart; as to Sauckel, the court said only that he was not "sufficiently involved," and as to Speer that

His activities in charge of German armament production were in aid of the war effort in the same way that other productive enterprises aid in the waging of war; but the Tribunal is not prepared to find that such activities involve engaging in the common plan to wage aggressive war as charged under Count One or waging aggressive war as charged under Count Two.53

Schacht escaped because the evidence failed to establish "beyond a reasonable doubt" that "Schacht did in fact know of the Nazi aggressive plans."

The guilt or innocence of the defendants under Counts Three and Four ("war crimes" and "crimes against humanity") was, in general, much easier to determine. Schacht and Papen had not been charged under these counts. Of the remaining twenty defendants, all were found guilty as charged" except Hess and Fritzsche. Hess flew to England in June 1941, after the war-time atrocities had begun but before they had reached their peak, and his connection with them could not be satisfactorily established.

52 Trial of the Major War Criminals, Vol. I, pp. 330-331.

53 Ibid., pp. 330-331.

54 Ibid., p. 310.

55 Raeder and Doenitz were charged and convicted only on Count Three, and Streicher and Schirach only on Count Four. The other sixteen were charged and found guilty on both of these Counts.

Fritzsche was a well-known Nazi radio commentator and propagandist but a man of altogether minor stature in the Nazi hierarchy, and his acquittal would not be of much significance but for the glaring contrast between it and the conviction and sentencing to death of Julius Streicher, also a Nazi propagandist. In appearance and other personal qualities Fritzsche certainly compared more than favorably with Streicher, and the IMT concluded that Fritzsche's broadcasts were not "intended to incite the German People to commit atrocities on conquered peoples," whereas Streicher's publications constituted “incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions."57 The reading of the judgment was concluded on 1 October 1946, and the same day the IMT sentenced Goering, Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Sauckel, Jodl, Seyss-Inquart, and Bormann to death by hanging. Hess, Funk, and Raeder were sentenced to life imprisonment, and Doenitz, Schirach, Speer, and von Neurath to terms ranging from ten to twenty years. Schacht, Papen, and Fritzsche were acquitted and freed.58 The Soviet member (General Nikitchenko) dissented from the acquittals of Schacht, Papen, and Fritzsche, and from the refusal to declare the "Reich Cabinet" and the "General Staff" criminal organizations, and declared that Hess should have been sentenced to death. All the sentences were confirmed by the Allied Control Council for Germany;" the death sentences (except for the Goering suicide) were carried out and the other convicted defendants were incarcerated in Berlin at the Spandau jail, which is almost if not quite the only enterprise in Berlin still functioning on a quadripartite basis.

56 Ibid., p. 338.

57 Ibid., p. 304.

58 All three were subsequently given prison sentences by denazification tribunals, which are still being appealed.

59 Under Article 29 of the London Charter.