In the United States the judge's right of examination is generally recognized. been issued with the constitution, and to discover the true intentions of both laws. to the federal conditions of the United States, and that therefore the International Military Tribunal isjustified in examining the relationship of Article 9 of the statute to the generally recognized rules of International Law and also the law of the national states, which, according to the statements of Justice Jackson ape likewise to from the legal foundation of the decision. unknown to the previous laws. It can obviously be presumed and undoubtedly needs no further explanation, that the nations which promulgated the Charter wanted to develop further the basic concepts the prevailing of Interna tional law and bring it into a legal form, and that in doing so they completely lacked any intention of placing themselves in opposition to the rules of international law.
carefully and in a scholarly way, so that a reasonable application in practice will be possible. Only in tills way ere the Courts placed in a position to reach verdicts which aye really in accordance with the facts. judges right of examination to which it is entitled, will have to examine the relationship of Article 9 of the Charter with the general basic legal principles of international law and the national laws of civilized nations. of the assertion, permissible according to Article 9 of the Charter, that an organization can be criminal. Organizations. As, for example, it has been introduced into English law by Section 2 of the Interpretation Act of 1889; (Verl andsstrafrecht) is directed at the organization. According to Article 9, the sentence can no longer affect the organizations because the latter have been dissolved in the meantime, and no longer exist. The sentence is rather directed against the individual members, because the verdict of the Court is the basis for the subsequent proceedings on the basis of Law No. 10.
The further important differences must be added:
1) According to the Criminal Code for Organizations, and also according to the Organizational Criminal Code or Organizations of English law, in particular no imprisonment (Freiheitsstrafe) is permitted.
The sentence according to Art.9 ought to show nevertheless the basis for the inflicting of prison sentences and even of death sentence which are contained in Law No. 10.
2) According to the corporate criminal law of theEnglish law, no crimes and offences can be prosecuted. have been condemned only on account of excesses, especially on account of neglect of public obligations, e.g. failure to repair streets or bridges, although a similar obligation existed, blocking a street by a railway company, or on account of publishing a libel.
The subject matter of the proceedings of Art. 9 are on the other hand major crimes. of the corporate criminal law into the international criminal law. to which it should be permissible to declare an organization criminal: from the American Law, the law of 23 June 40 and the "California Act": from the English law the "British India Act No.30" of 14 November from the French law, the law of 18 December 1893, Section 263 of the French Penal Law Code, Section 1 of the Law of 26 August 44 and 2 legal decisions from the Russian law.
The following German laws were also cited:
1) The decisions of Art. 128, 129 of the German Legal Code Book of 1871,
2) The law of 22 Mar 21, RGB1. 1921, p.235.
3) The law of 21 July 22, RGB1. 1922, p. 585. these laws only individual persons may be prosecuted and that in the proceedings against the prosecuted individual persons it is without legal jurisdiction for the members not prosecuted and it thus cannot establish that the organization has a criminal character. It can be thereby established in proceedings against some members of the organization that the organization pursues aims contrary to law and in a subsequent proceedings against other members this question can be denied. members not prosecuted is nevertheless the decisive factor which differentiates these laws from Point 9 of the Charter. The decision according to point 9 of the Charter is, in contrast to the laws cited by the Prosecution, binding in the proceedings against the individual members before the military Tribunal, and indeed the sentencing of the organizations through the International Military Tribunal contains not only the effective confirmation of the objective facts in the case, but furthermore an effective confirmation of guilt for all the members, as well as consciousness of the violation of the law, i.e a legal efficacy of a hitherto completely new significance in penal law.
development of the corporate law, nor with the sentencing of individual persons because of the membership in a criminal community of persons, but with a judgment of collective members of the organizations, because the essential facts havebeen determined juridically for the collective members, which form, the basis for the later judgments in the proceedings according to Law No. 10, In the subsequent proceedings, the question of the membership can now be tested also. In other words: We are here concerned with the collective judgment of all members of the organization.
What is the attitude of international law scholars toward the question of collective condemnation. scholars reject collective condemnation as "arbitrary and contrary to the elementary principles of justice". The well-known teacher of international law Garner states rightly that collective condemnation, even if it is applied in the mildest form, necessarily includes the punishment of innocent persons. Garner further goes on to explain that for this reason collective condemnation should never be used, if ether just measures would serve the same purpose. The French legal scholars Bonfils and de Martens have condemned the basic principle of collective punishment in detailed discussions, and expressed the hope that collective condemnation would disappear altogether. stoned for. In order to achieve this aim, however, the indirect way of condemning the organizations is not necessary. This aim can be achieved by instituting proceedings against individual persons who participated in these crimes, as as also dore in a large number of cases. LAW AN THE NATIONAL LAW'S OF CIVILIZED STATES, therefore, use should be made of the optional rule of Article 9, and one should refrain from declaring the accused organizations as criminal. The persons responsible for the crimes can be punished in individual proceedings. establish in this trial the required factual characteristics.
To do so would appear impossible and not feasible. Even the proof that all members of SD were informed of some of the criminal goals would appear impracticable. The guilt can always be established for one person only. All guilt is bound to a person. If many persons participate in an offense or a crime the judge must examine the entire group of persons involved singly, in order to determine guilt, innocence, complicity in a concrete and well defined manner.
It seems entirely impossible, however, to determine that all members were cognizant of the illegality and unrighteousness of the goals and tasks.
for members of the SD to determine whether the goals or means were illegitimate or unrighteous. According to the German law in force while the organization wasin existence these goals and means were permitted, as I shall show in the section dealing with facts. It may be conceded that the German legal measures conflicted in part with the provisions of International Law and that therefore goal and methods - while not illegal according to the law of the German State and not wrong - can nevertheless be considered illegitimate and unrighteous according to the concepts of International Law. But this is not the decisive point. What counts is whether the members, that is all the members, have recognized the illegality and unrighteousness of goals and methods which were legitimate according to German Laws. the Law cannot demand that an individual can be punished for a deed which he was forced to commit in virtue of the law. right and wrong, can one demand from ordinary members of the Organizations that they recognize it? the annihilation of the Jews, and the unhuman treatment in the concentration camps, requires no discussion as to right or wrong. The organizations, however, are charged with a great number of punishable offenses, and the questions arises whether 1. the perpetrators generally and 2. furthermore all members, know of the injustice and the illegality, and can be answered in the affirmative without rare ado.
during the war were recognized as illegal and unjust. In peace time every body knows that he must not kill and that foreign property is inviolable.
These acts are however partly justifiable in wartime. The soldier can kill the enemy. The confiscation of foreign property is permitted under certain hypotheses. The individual who commits the deed and beyond him the members, have therefore, only the consciousness of illegal acts, which have been committed during the war, when they are aware of the limitations which are set by law.
A strict examination of these organizations is particularly neces-
26 Aug A LJG 23-1 Saslaw sary, because their members were for the most part men who had no juridical knowledge, and to whom the limitations of International Law are unknown. I believe that this is also the opinion of the Chief United States Prosecutor as described in his opening speech of 20 November 1945, how a soldier assigned to an execution squad could not hold an investigation as to whether the execution was
1) legally admissible. The transcript of page 42. of the mentens regarding the illegality and injustice the mistake should not be made, of assuming that the simle members of the organization had the knowledge, which we have gained in this process on the basis of documents coning from secret archives. of secret papers, documents and regulations were produced, which were only intended for the internal administration of individual offices. The content of those papers therefore testifies that they had not been brought to the knowledge of all members but only to a small determined circle. In this connection I wish to refer for example to the well-known document L 180, the Stahlecker. Report dealing with the activity of Task Group A. the evidence produced by the Prosecution does not suffice for the collective condemnation of the members of the SD. The documents do not even prove that the offenders themselves were conscio of illegality, because in order to establish this one must know the particular circumstances of the act. And it must still be proved that the members of the SD. a) know of those acts b) recognized that the acts were illegal or at least wrong. I do not consider it necessary to discuss this question in the second part of my statement regarding each act with which the SD was charged but in my opinion it is sufficient if I describe the problem in general and leave the examination in individual cases to the Tribunal.
In each individual case, however, with 26 Aug A LJG 23-2 Saslaw which the SD is charged and with each document submitted against the SD, the Tribunal will not be able to avoid this examination.
THE PRESIDENT: Would that be a convenient point to break off?
(The Tribunal adjourned until 27 august 1946, at 1000 hours.)
DR. LATERNSER: Mr. President, I should like to take two minutes of the High Tribunal's time. Yesterday after the conclusion of the interrogation Of the witness Schreiber I received a written report to the effect that, first of all, reserach work as far as bacteriology was concerned, that these research materials works were limited to defense, and that at the request of the military medical department beginning with autumn of 1943, all means were to be exhausted to the OKW and particularly through Field Marshal Keitel, that there was a rejection on their part, that this had be prohibited, and that this work was to be considered in no way. yesterday, a letter which I read last evening for the first time. These two points which I have just stressed can be proved by Col. Buerker of the General Staff who at present is interned in the camp at Dachau. Schreiber. I assume that this officer was that Colonel who was the presid of the secret session mentioned by the witness Schreiber. The witness is at Dachau, He could appear before this court tomorrow. The interrogation which I world like to carry on world take, at the most, twenty minutes, and I consider the bringing of this proof absolutely essential in the interested of-truth. I am now submitting my application in writing.
THE PRESIDENT: The Tribunal will consider your application. Perhaps the Tribunal ought to hear if the Prosecution have anything to say in answer to the application made by Dr. Laternser. The Tribunal would an like to see the report and the letter to which Dr. Laternser referred.
SIR MAXWELL FYFE: If My Lord will just allow no a moment until I see Col. Smirnov -
THE PRESIDENT: Certainly,
DR. LATERNSER: The author is Gen. Warlimont, who at present is at Nurnberg. He wrote this letter on the 23rd of August. He wrote it here in Nurnberg. and I received it yesterday. I found it on my table after I came down from the session. I put it in my brief case without reading it. I noted the contents the first time when I arrived home yesterday. that in this letter we hear that after the publication of the intentions along bacteriological lines over the radio, this Col. Buerker whom I asked as a witness came to Warliment, who was at Dachau at the time, and told him those factswhich took place and I have presented now. But a few days and General Warliment was brought back to Nurnberg. These are the matters connected with this point.
THE PRESIDENT: What is it ?
DR. LATERNSER: I was referring, Mr. President, to this letter written by Gen.
Warliment in which the General tells me the statements which Col.
Buerkermade to him a few days and in the camp at Dachau. There statement I set forth directly and I shall be very happy to submit this letter to the High Tribunal.
SIR DAVID MAXWELL FYFE: There are two points that occur to me. First, if Dr. Laternser would let us see the letter, it might be possible shorten the matter in that way, to make some admission as to the statement in the letter. Otherwise it might be convenient to see an affidavit from the officer and know what he was going to say before we occupy the time by having him examined. If Dr. Laternser would agree to the Prosecution having the letter translated and examined, we should be able to make a communicate to him and if necessary, to the Tribunal in the course of the day.
THE PRESIDENT: That seems a convenient course, and particularly in view of the fact that the Tribunal expect to finish the entire hearing of the case this week, certainly by Saturday evening, and it will be, there fore, very difficult to get an affidavit by this Col. Buerker before that time. Therefore, if the Prosecution are able to agree that the Colonel would give that evidence, that probably would be the best way of dealing the matter.
SIR DAVID MAXWELL FYFE: If your Lordship please, then if Dr. Laterns would allow us to have the letter, we will have it translated and looked into in the course of the day
THE PRESIDENT: Yes.
DR. LATERNSER: Mr. President, if the witness can be called here through a request by telephone, then 2 can take his affidavit here or inter gate him here. That would be the quickest way. If I have to write to the camp first in order to get the affidavit that way, that would take more time Mr. President. I assume that the telephonic connection is such that we can call Dachau today to have the witness brought here and then we can see further.
THE PRESIDENT. We will hear first what the Prosecution say after the have seen the letter.
COL. PROKROWSKY: My Lord, I would like to report that I tried to satisfy the possibility of confronting the witness of Dr. Laternser with Schreiber, but this possibility, unfortunately, has been excluded because Schreiber has been sent back into the camp of prisoners of war. In this case it is impossible to confront the two witnesses because Dr. Laternser presented his request too late. The Soviet Prosecution doesn't think, therefore, that it would be advisable to call the witness requested by Counsel Laternser, so much so that the witness requested by Laternser does not refute the fact itself that there was a secret session of the OKW. That is way I thought it necessary to report to the Tribunal on the part the Soviet Prosecution.
THE PRESIDENT: The Tribunal will await the communication from the Prosecution and they will consider the matter. Dr. Gawlik.
DR. GAWLIK: May it please the High Tribunal: Yesterday I paused with the question whether it would be possible at all to determine these prerequisites which are necessary in order to declare an organization criminal. I shall continue. guilt cannot be summarily determined by drawing conclusions from the member or crimes and tye type of crime committed, from the knowledge of all the men of these deeds and from their consciousness of illegality. It is rather necessary, that the proof of the knowledge and consciousness of illegality should be considered in special proceedings in each individual case of a member of the organizations, so that on account of the circumstances the individual members would be given the opportunity to reply to them. Should the members ever have had knowledge of real facts of individual criminal acts no proof is given that the know that their organizations were involved therein the principle of penal law nulla poena sine lege. This principle has already been treated in detail by the defendants of the principal accused. I shall not repeat these statements but only point out briefly the following points:
In his speech of indictment on 29.11.1945 the American Chief prosecutor has said that the defendant could not invoke this principle because they had themselves transgressed it. This argument in no way concerns the members of the Organizations because the members had no influence on the legislation but were themselves objects of the legislation. in his final speech on July 29, 1946 in the discussion of this principle, the the Charter of the International military Tribunal is an unviolable law and absolutely had to be carried out. if the Tribunal considers the principle nulla poena sine lege and does not condemn the organization, because paragraph 9 of the Charter is merely a can prescription. The Chief Prosecutor of the Union of Socialist Soviet Republic has said further that the Charter represents principles which are contained in a succession of international agreements and in the legislation of all civilized peoples.
peoples that punishable offences must be judged by individual proceedings. to now unknown in international law. On the contrary it is denied, as said before, by the science of international law. amnesty clauses for war crimes committed. After the First World War the general principle developed that individual members of fighting forces might personally be made responsible after the war for violations of war laws. I refer to Fenwick in International Law, 1924, para 578. Great Britain and the Union of Socialist Soviet Republics of 2 November 1943 mentioned by the Prosecutor of the Socialist Soviet Republics orders expressly that individuals shall be made responsible. The declaration contains no statement to the effect that the collective condemnations of communities of persons is permissible. internationally admitted legal maxim. This clause on the contrary creates a new law and cannot be made applicable with retroactive force, for instance for the time since 1921 as purposed by the Chief Prosecutor of the United States or even for the time from 1935 on as purposed by the Prosecutor of the Union of the Socialist Soviet Republics in his final speech on 29.7.46. principle nulla poena sine lege. procedure resulting from Para 9 of the Charter. In level procedure, according to paragraph 9 of the Charter, an organization of group may be said to be criminal (a) in a trial against a member of such organization or group and (b) in connection with any action by reason of which the accused is Both these hypotheses must be realized.
Of the principal defendants, only the defendant Kaltenbrunner, Chief of the Security Police and SD is involved, as member of the SD.
It can be gathered from the words "in connection with any action by reason of which the accused is sentenced" that every action of the member of the organization or group is sufficient to declare the organization or group as criminal. like to illustrate by the law of the United States of 28 June 1940 already quoted. 20 June 1940 are arraigned before a tribunal in several different proceedings an admittedly extensive examination of evidence, but doubtful in its results, must be effected in each proceeding as to whether the association to which the person belongs fulfils the primary conditions contained in the above legal stipulations. organization had pursued the purpose, named in the law of 20 June 1940, while in other trials the result of the testimony is not considered as sufficient. of the law that the trial be held against one or several members of the organization, the other members who have not yet been accused are given the possibility of a legal hearing and -- if a member is condemned on account of his membership in an organization within the meaning of the decree of 28 June 1940 -- the Tribunal makes the declaration, to take effect for all members of the organization, that the organization fulfils the purpose mentioned in the decree of 28 June 1940.
Such provisions would achieve the following:
(1) the testimony on the aims, tasks and activities of the organization (2) contradictory decisions on the objective tasks, aims and activities Charter.
The situation is to be avoided whereby the Military Tribunal in the individual occupation zones in the proceedings against the members of the accused organizations would have to examine the question of the character of the organization each time and perhaps once to contradictory decisions.
THE PRESIDENT: Dr. Gawlik, are you arguing that if any 27 Aug M LJG 3-1 Perrin individual were tried under this Act of June, 1940, that the declara tion of this Court under Article 9 would have any effect in the trial under that Act of June, 1940?
Is that your argument?
DR. GAWLIK: No, Your Lordship. The stipulation put down in Article 9, I wanted to explain that in line with the Decree of June of 1940. The Law of June, 1940, is something quite different and has no connection with Paragraph 9. I wanted to explain the Law of June, 1940, which was mentioned by the Chief American Prosecutor, and I wanted to explain what importance a stipulation would have such as is set down in Paragraph 9, Article 9.
THE PRESIDENT: What importance are you suggesting that it would have?
DR. GAWLIK: Paragraph 9, as I shall set forth, has the following significance: One member has to do accused because of the membership in an organization, an organization which porsues crimes according to Article 6 of this Charter. Then, in this trial against one member the entire fact has to be cited against this member because of his membership in the organization, and then the facts that have been ascertained, the findings that ha ve been set up because of the aims and activities and purposes of the organization; if a sentence is reached, it can be used in the trials against the other members. The objective facts, not guilty or guilty is associated with an individual.
Your Lordship, may I cite an example: Here one member of the SD would have to be selected and this member would have to be accused, as I shall set forth, because of his membership in the SD, that he was a member of an organization which permitted crimes against the peace, the laws of war, and against humanity. If this member now is punished because of his membership in an organization of that nature, then you are objectively determining that the SD is an organization of that kind, then the findings can be used to deal with the activities of the SD and use the findings against the other members.
THE PRESIDENT: Well then, I think I follow that argument 27 Aug M LJG 3-2 Perrin based upon the first para graph of Article 9, is that right?
It is based upon your construction or your interpretation of the first paragraph of Article 9?
DR. GAWLIK: Yes.
THE PRESIDENT: Are you saving that a decision of this Tribunal upon that would have any importance or effect upon a trial under the act of 1940?
DR. GAWLIK: No, that is only an example.
THE TRIBUNAL (Judge Biddle): The Act of 1940 is a sedition law, is it not? That is the Sedition Law of 1940?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): You say the Prosecution, as they did in the argument, depended on tha t Act to show that this type of group condemnation was used in the other countries, they made that analogy?
DR. GAWLIK: Yes, I know -
THE TRIBUNAL (Judge Biddle): A nd the reason you say that is that if one individual were tried under the Act of 1940 -follow?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): First it would be necessary to show that he belonged to an organization of which the purpose was to overthrow the government by force or violence, right?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): Now, the Court then would have to decide first the purposes of the organization, right?
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): Now, you say also that is a second individual were, at a later time, tried under that Act that the government would again have to prove -
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): --that the purposes of the organization was to overthrow the government by force or violence, right?
DR. GAWLIK: Yes.
27 Aug M LJG 3-3 Perrin
THE TRIBUNAL (Judge Biddle): Therefore, that the analogy is not true because the finding as to the organization in the first trial against the first individual would have no effect -
DR. GAWLIK: Yes.
THE TRIBUNAL (Judge Biddle): -- on the second trial against the second individual, and that that principle is inherent in all Anglo-Saxon Laws because the finding of a fact against one individual cannot affect the trial against the second individual, is that your thought?
DR. GAWLIK: Yes. this purpose, if the legal effect went only as far as the objective determination of the tasks, aims, and activities of the organization and the determination of guilt were left to the subsequent proceedings.
With regard to Law No. 10, as it was pointed out already, the condemnation of the organizations according to Par. 9 of the Charter, contains not only the objective statement of the aims, tasks, an activities of the organizations, but beyond this purpose the confirmation of the guilt of the members.
Par. 9 of the Charter has consequently besides the materially legal confirmation of objective and subjective factual evidence also a legal criminal meaning.
This juridical aim,which is evidently pursued by par. 9 of the Charter can, however, only then be reached if this decision is thus interpreted that the member is sentenced on account of this membership of an organization, whose aims or expedients are punishable according to point 6 of the Charter and not on account of any action.
Another interpretation would have no meaning and no purpose. Only a condemnation of the defendant Kaltenbrunner on account of his membership of such an organization could, therefore, according to par. 9 of the Charter, justify the condemnation of the SD. In regard to this statement the formal hypotheses for the application of par. 9 of the Charter do not seen suitable to me. to be charged on account of his membership of the SD as a criminal organization within the meaning of the Charter, and that in this proceeding against the defendant Kaltenbrunner the character of the SD willbe examined. In this case only would there be a case at hand - as the Chief Prosecutor of the United States has stated - in virtue of which the criminality of the SD might be examined. Such a charge has, however, not been made against the defendant Kaltenbrunner. the SD as a criminal organisation, but is to be sentenced for other punishable offences. basis, it must be considered as inadmissible that for the proof of the criminality of the SD evidence has been produced, which has no connection with the criminal actions for which the defendant Kaltenbrunner has been charged. between the period during which the accused member belonged to the organization and the period for which the organisation is to be declared criminal.