|Source: Law Reports of the Trials of War
Criminals. United Nations War Crimes Commission. Vol. XIII. London: HMSO,
TRIAL OF ULRICH GREIFELT AND OTHERS
UNITED STATES MILITARY TRIBUNAL, NURBMBERG,
10TH OCTOBER, 1947-10TH MARCH, 1948
B. NOTES ON THE CASE
Of the crimes for which the accused were tried and convicted in this case two offences deserve special attention. One is the crime of genocide. It was taken by the prosecution and the Tribunal as a general concept defining the background of the total range of specific offences committed by the accused, which in themselves constitute crimes against humanity and/or war crimes.
The second offence is membership of criminal organisations. In previous reports it has been dealt with in a summary way with reference to provisions that have emerged in the recent past within the body of international law. As it deals with an entirely new concept in this sphere, and as it has given rise to numerous trials and convictions, the present Notes contain a full account of the origin and development of the crime of membership, of its meaning and of the rules under which it has been treated by courts of law in war crime trials.
For some criminal acts, such as plunder of public and private property, conscription into German forces of inhabitants of occupied countries, the reader is referred to notes made in connection with other trials.
These Notes end with an account of the relevance of some pleas submitted by the defence.
1. THE CRIME OF GENOCIDE (Footnote 1: Genocide has also received reference in Vol. VI, pp. 32, 48, 75, 83 and 99, and some treatment in Vol. VII, pp. 7-9 and 24-6.) .
Under Count one of the Indictment, the prosecution had charged that the accused were connected with plans and enterprises involving . . . persecutions on political, racial and religious grounds and other inhumane acts against civilian populations, including German civilians and nationals of
other countries, and against prisoners of war. This charge included the whole range of acts described in the part dealing with the evidence before the Tribunal, which acts were defined as constituting crimes against humanity and/or war crimes. The point made by the prosecution was that, insofar as crimes against humanity were concerned, all these acts . . . plans and enterprises . . . were carried out as part of a systematic programme of genocide, aimed at the destruction of foreign nations and ethnic groups, in part by elimination and suppression of national characteristics.
In its judgment the Tribunal concurred with this view by stating that the entire programme carried out by the accused and their organisations was conceived and implemented for one primary purpose . . . which may be summed up in one phrase : the two-fold objective of weakening and eventually destroying other nations while at the same time strengthening Germany, territorially and biologically, at the expense of conquered nations.
(i) Origin and Substance of the Concept of Genocide
The term of genocide was coined and its substance defined by Professor R. Lemkin of the United States (Footnote 1: See Raphael Lemkin, Axis Rule in Occupied Europe, Carnegie Endowment for International Peace, Washington, 1944, pp. 79-95.). The word itself is the amalgamation of the ancient Greek term genos (race, tribe) and the Latin cide (killing), and falls into the group of words such as homicide, infanticide and the like, Generally speaking, said Professor Lemkin, Genocide does not necessarily mean the immediate destruction of a nation. . . . It is intended rather to signify a co-ordinated plan of different nations aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. . . . Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group. The detailed objectives of such an action are directed towards the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.
As an illustration of a given action falling within the scope of Genocide, the author referred to confiscations of property, such as precisely those tried in this case :
(ii) Developments concerning the Concept of Genocide
The concept of Genocide was used at the trial of the Nazi Major War Criminals before the International Military Tribunal at Nuremberg. The prosecution charged the defendants with having conducted deliberate and
systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups. This fact was recognised by the International Military Tribunal in its Judgment in the following terms :
Reference was also made to mass deportations, slave labour and the hampering of the native biological propagation.
The subject of genocide and its place in contemporary international law was taken up by the United Nations. On 11th December, 1946, the General Assembly of the United Nations adopted a resolution in which it declared genocide a crime under the existing international law and recommended the signing of a special convention for its repression in the future. This resolution read as follows :
As a result, and after nearly two years of study, the General Assembly of the United Nations adopted on 9th December, 1948, a Convention on the Prevention and Punishment of the Crime of Genocide. The Convention contains 19 Articles, the most important of which read as follows :
As can be seen the offences enumerated in Article 2 of this Convention cover practically the entire field tried in this case. The most conspicuous
instances are abortions, punishments for sexual intercourse, preventing marriages and hampering reproduction, and the measures undertaken for forced Germanization, including the kidnapping or taking away of children and infants, the deportation and resettlement of populations, and the persecutions of Jews.
The adopted text was opened to Signature and ratification on 10th December, 1948. A separate Resolution was adopted requesting the International Law Commission of the United Nations to study the possibility of establishing a criminal chamber of the International Court of Justice at The Hague, for the trial of persons charged with genocide.
(iii) Relationship between Genocide and Crimes against Humanity
The general concept of genocide has been recently redefined by Professor Lemkin in the following terms :
As it is conceived in the above quoted Convention, genocide is a crime as much in time of peace as in time of war. This is one of its distinctive features in comparison with crimes against humanity. The latter were recognised as crimes arising out of or in connection with a war of aggression. This feature derives from Art. 6 (c) of the Charter of the, International Military Tribunal, of 8th August, 1945, which defines crimes against humanity as offences committed in execution of or in connection with any crime within the jurisdiction of the Tribunal. The latter is a reference to crimes against peace and war crimes, which both fall into the part of international law dealing with war. The appurtenance of crimes against humanity to this particular field of international law was stressed by the International Military Tribunal at Nuremberg in its Judgment concerning the Nazi major war criminals :
On account of the fact, however, that crimes against humanity include persecutions on political, racial or religious grounds, crimes against humanity of this nature fall within the concept of genocide when committed in time of war. In these particular circumstances the specific acts constituting genocide are at the same time crimes against humanity. In the opinion of one member-the French representative-of the United Nations Ad Hoc Committee which drew up the Draft Convention, genocide is even the most typical of the crimes against humanity (Footnote 1: See Ad Hoc Committee on Genocide (5 April-10 May 1948), Report of the Committee and Draft Convention drawn up by the Commission. Economic and Social Council, E/794, 24 May 1948.).
The fact that crimes against humanity are limited to offences punishable under the laws of war has not been altered by Law No. 10 of the Allied Control Council for Germany under whose terms the accused were tried. The definition of crimes against humanity in Art. II of Law No. 10 contains no reference to crimes against peace and war crimes, which are both offences punishable under the laws of war. On the other hand, under the terms of its Preamble, Law No. 10 was enacted in order to give effect to the terms of the Moscow Declaration of 30th October, 1945, and the London Agreement of 8th August, 1945, and the Charter issued pursuant thereto. According to Art. I of the same law the Moscow Declaration . . . and the London Agreement of 8th August, 1945... are made integral parts of this Law. This link may be thought to give the definition of crimes against humanity in Law No. 10 the same connotation as in the Nuremberg Charter, and has been so interpreted by most judicial authorities (Footnote 2: see Vol. IX, p. 44.).
It thus appears that genocide, as envisaged by the United Nations in its resolution of 11th December, 1946 and in the Convention on Genocide is a crime under international law in general and is therefore not limited to offences falling within the narrower scope of the laws of war. It becomes a delicturn iuris gentium alongside offences such as piracy, trade in women and children, trade in slaves, the drug traffic, forgery of currency and the like (Footnote 3: See R Lemkin, op.cit.,p.70.). In the trial under review, however, genocide was treated within the set of the circumstances of the case, that is as an offence perpetrated in time of war and committed through a series of individual acts constituting crimes against humanity. It therefore remained within tlie sphere of the laws of war and on this account fell within the jurisdiction of the Tribunal which tried the accused. p.42
(iv) Relationship between Genocide and War Crimes
In addition to cases where genocide is reflected in acts constituting crimes against humanity, there are cases in which it may be perpetrated through acts representing war crimes. Among these cases are those coming within the concept of forced denationalisation.
In the list of war crimes drawn up by the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, there were included as constituting war crimes attempts to denationalise the inhabitants of occupied territory. Attempts of this nature were recognised as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine, At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province.
The methods applied by the Nazis in Poland and other occupied territories, including once more Alsace and Lorraine, were of a similar nature with the sole difference that they were more ruthless and wider in scope than in 1914-1918. In this connection the policy of Germanizing the populations concerned, as shown by the evidence in the trial under review, consisted partly in forcibly denationalising given classes or groups of the local population, such as Poles, Alsace-Lorrainers, Slovenes and others eligible for Germanization under the German Peoples List. As a result in these cases the programme of genocide was being achieved through acts which, in themselves, constitute war crimes.
2. MEMBERSHIP OF CRIMINAL ORGANISATIONS
Convictions of the accused for membership in criminal organisations were made in consequence and on the basis of an important and elaborate development in international law regarding this subject.
The concept of the crime of membership originated in the United Nations War Crimes Commission and later evolved in rules laid down by Governments as part of contemporary international law and implemented by the International Military Tribunal at Nuremberg and other courts, and still further developed in the municipal law of various nations (Footnote 1: For the Polish approach to this question see Vol. VII, pp.5-7, 18-24 and 86-7.). The following is a survey of this evolution.
(i) Emergence of the Concept in the United Nations War Crimes Commission
In the earliest stages of the Commissions activities the opinion was expressed that in certain cases no other prima facie evidence of guilt of alleged war criminals was required than the fact that such individuals belonged to groups or organisations known to have been actively engaged in the systematic perpetration of criminal acts. The organisations and groups envisaged were those of the Nazis, such as the ill-famed Gestapo, the S.S. and the S.A. The argument was brought forward that the groups involved were so deeply engaged in mass criminality that to require evidence of individual guilt in each specific case would be an unnecessary and even impossible task. Cases were recalled where all the witnesses of an established crime, such as massacres, had disappeared as victims of the crime, and where the group
which had committed the crime was identified as a whole. In such cases, it was argued, the mere fact of identifying at a later stage the individuals who were members of such a group created a serious presumption that they had all taken part in the commission of the crime. Therefore membership of the group introduced in itself a presumption of guilt, and the real crime consisted in the mere fact of being a member operating in an oppressed country.
At the same time evidence was at hand in the Commission that groups or organisations such as the Gestapo, SS and SA had not pursued their criminal activities on their own initiative. This evidence led to the top of the Nazi State and Party machinery and disclosed a series of explicit instructions coming from the Nazi Government. Proposals were consequently made to treat the Nazi Government itself as a criminal group, as it was the originator and instigator of all the crimes perpetrated by groups subordinated to its authority.
At this stage the Commission did not feel authorised to take a stand which could in fact amount to the introduction of precise legal rules in this matter whilst such rules had hitherto been non-existent. It took the wiser course of expressing only recommendations as to what should be done by the Governments, who were in a position to make the law required by the novelty of mass criminality as practised by the Nazis. A thorough study of the facts concerning the groups and organisations at stake was made and on 16th May, 1945, the following recommendation was adopted :
The recommendation under (a) met the proposals made in regard to the Nazi Government, to the extent to which it included it under the general denomination of leading criminals responsible for the organisation of criminal enterprises. The recommendations under (b) met the proposals regarding the necessity of imposing punishment for membership of groups for which it has been proved that they had committed crimes. All details were left aside, and in particular the questions as to whether or not membership in itself should warrant punishment, in which cases and under what rules of evidence. Such details were to be laid down during the trial of the Nazi major war criminals before the International Military Tribunal at Nuremberg.
(ii) Development at the Nuremberg Trial of Nazi Major War Criminals
The first, and for the time being, the only authoritative pronouncement on criminal groups or organisations on the basis of international law, was made during the trial of the German Major War Criminals by the International Military Tribunal at Nuremberg. The pronouncement was made by the Tribunal on the basis of specific provisions of the Charter, which
defined its jurisdiction and procedure, and after considering specific charges brought by the Prosecutors. The latter played a very prominent part in defining the boundaries of the concept of collective penal responsibility and contributed largely to the final decision of the Tribunal. Both the law of the Charter and the Judgment of the Tribunal introduce a novel method of dealing with organised mass criminality of a type which is itself new in many respects. The Judgment can be regarded as a judicial precedent with far reaching effect. One of its legal effects was that the decision of an international court had, to a certain extent, become binding upon other national or local courts, and that it had introduced an effective judicial means of combating mass criminality organised by States against other States and nations.
The defendants at the Nuremberg Trial were all members of one or more Nazi groups or organisations, and in addition to bodies such as the Gestapo, S.S. or S.A., the prosecutors included in their Indictment bodies such as the General Staff and the High Command. The relevant provisions in the Nuremberg Charter are the following :
The criminal acts for which a group or organisation may be declared criminal are those covered by the Charter in its Art. 6, i.e., crimes against peace, war crimes and crimes against humanity.
It will be noted that the Charter does not define a group or organisation. The matter is left to the appreciation of the Tribunal as a question of fact. The above provisions lay down the following rules or principles :
The most important provision is undoubtedly the last, quoted under (f). A narrow, literal interpretation of its terms could lead to the conclusion that the mere fact of having belonged to an organisation declared criminal is in itself a crime without further qualifications, and that the subsequent court has no choice but to condemn the accused once he is brought before it. Such far-reaching conclusion was, however, not arrived at by the Tribunal, neither was it meant in the Charter or advocated by the majority of the prosecutors. Both the latter, and the Tribunal in its Judgment, laid down certain conditions in which a member should be regarded as personally guilty.
Judicial declarations of the criminal nature of given groups or organisations, as were envisaged by the Nuremberg Charter, are based upon the concept of collective criminality and liability as distinct from individual criminality and liability. The Charter left only partially answered the question of just what this concept meant in the sphere of penal law, and what consequences were implied as a result of the rule that a declaration made by the Nuremberg Tribunal could not be overruled by other courts.
The prosecutors undertook to provide the answers, and in doing so they constructed a precise and complete theory. The theory was evolved by the United States Chief Prosecutor, Justice Robert H. Jackson, one of the promoters and principal authors of the Nuremberg Charter and the leading figure at the Trial. It was endorsed by the other prosecutors, with certain not unimportant reservations expressed by the Russian prosecutor, and was accepted and confirmed by the Tribunal in its Judgment. This develop-
ment took place in response to a decision of the Tribunal requesting the prosecution and the defence to clarify in particular the tests of criminality which were to be applied, in view of the fact that the Charter did not define a criminal group or organisation. The theory can conveniently be described under three main items : the concept of collective criminality ; the legal nature of a declaration of criminality ; and the effects of such declaration.
The Concept of Collective Criminality. When presenting the case against criminal groups or organisations to the Tribunal, Justice Jackson made reference in the first place to the fact that the Charter did not introduce an entirely new legal concept. He referred to the legislation of different countries in which membership in certain collective bodies, as well as the bodies themselves, were considered criminal and their members prosecuted as such and quoted the following examples :
A United States Law of 28th June, 1940, provides that it is unlawful for any person to organise or help to organise any society, group or assembly of persons to teach, advocate or encourage the overthrow or destruction of any government in the United States by force or violence, or to be or become the member of, or affiliate with, any such society, group or assembly of persons knowing its purposes.
In Great Britain there were in the past laws of a similar nature, such as the British India Act No. 30 of 1836. It provided that whoever was proved to have belonged to a gang of thugs was to be punished with imprisonment for life with hard labour.
The French Penal Code provides that any organised association or understanding made with the object of preparing or committing crimes against persons or property, constitute a crime against public peace.
The Soviet Penal Code contains provisions similar to those of the French Code, around the concept of the crime of banditry.
The most striking references were those made to the German laws themselves. The German Penal Code of 1871 punished by imprisonment the participation in an organisation, the existence, constitution, or purposes of which are to be kept secret from the Government, or in which obedience to unknown superiors or unconditional obedience to known superiors is pledged. In 1927 and 1928 German Courts treated the entire German Communist Party as criminal, and pronounced sentences against its Leadership Corps. Judgment against members of the Communist Party included every cashier, employee, delivery boy and messenger, and every district leader. In 1924 German courts declared the entire Nazi Party to be a criminal organisation. The German Supreme Court laid down general principles for any organisation liable to a declaration of criminality and stated that it was a matter of indifference whether all the members pursued the forbidden aims. It was enough if a part exercised the forbidden activity. It also considered irrelevant whether members of the group or association agreed with the aim, tasks, means of working and means of fighting and what their real attitude of mind was. In all such cases they were held guilty.
While referring to these precedents, Justice Jackson introduced the essence of the concept of collective criminality, through the notion of conspiracy as it evolved more particularly in English and American law.
The criterion provided by the latter, for determining whether the ends of the indicted organisations were guilty ends, was whether the organisations contemplated illegal methods or intended illegal ends. If so, the responsibility of each member for the acts of every other member was not essentially different from the liability for conspiracy. The principles of the latter were that no formal meeting or agreement was necessary ; that no member was bound to know who the other members were and what part they were to take or what acts they had committed ; that members were liable for acts of other members, although particular acts were not intended or anticipated, if they were committed in execution of the common plan ; and, finally, that it was not essential to be a member of the conspiracy at the same time as the others or at the time of the criminal acts.
It was in connection with these firmly established precedents that the United States Chief Prosecutor submitted to the Tribunal the principles which, in his opinion and in that of his colleagues, should govern the concept of collective criminality. We think, said Justice Jackson, that on ordinary legal principles the burden of proof to justify a declaration of criminality is, of course, upon the prosecution. He then declared that this burden was discharged by answering the following four essential tests of criminality, which represent at the same time the fundamental elements of the concept of collective criminality :
As a fifth and last condition, required only for the purpose of enabling the Nuremberg Tribunal to make a declaration of criminality under the Charter, the United States Chief Prosecutor referred to the necessity of establishing that some individual defendant tried by the Tribunal had been a member of the organisation, and was guilty of some act on the basis of which the organisation was to be declared criminal.
. Such were the elements of the concept of collective criminality as defined by the Prosecution and as lying at the root of the concept of criminal organisation and of a declaration under the Nuremberg Charter. It will be noted that with qualifications, such as voluntary membership and knowledge of the criminal purposes or acts, they are far from operating on the basis of automatic and indiscriminate collective guilt. What they do is to circumscribe a sphere of undisputed criminal activity conducted by a multitude of individuals who have, as a whole, willingly and knowingly taken part in it. On the other hand, as defined, they relate to a specific judicial act which, although denouncing the whole group as criminal, does not prejudice the issue of guilt and punishment of the individual members. This, as we will see, is only partly and in principle solved in a declaration of criminality, whereas the actual decision is left to the competent courts and fully allows for acquittals, as the case may be.
Legal Nature of the Declaration of Criminality. The declaration of criminality as provided in the Nuremberg Charter, is a specific judicial act. The indicted organisations, said the United States Chief Prosecutor, were not on trial in the conventional sense of that term. They were more nearly under investigation as they might have been before a Grand Jury in Anglo-American practice. The competence of the Tribunal was limited to trying persons, which meant only natural persons and not entities or bodies. As a consequence the Tribunal was not empowered to impose any sentence upon the indicted groups and organisations. The only issue, he added, concerned the collective criminality of the organisation or group, and it was to be adjudicated by what amounts to a declaratory judgment. The declaration, said the British Prosecutor Sir David Maxwell-Fyfe, was in the nature of a res adjudicata or of a judgment in rem as distinct from a judgment in personam.
The adjudication is, thus, entirely of a declaratory nature, and leaves open all questions of individual guilt and punishment. These, as has been mentioned on several occasions, are left to the national or local courts competent to try individual members on the basis of the declaratory judgment of the Nuremberg Tribunal.
Effects of the Declaration of Criminality. The chief effect of a declaration of collective criminality is that the criminal nature of the group or organisation in question is considered proved and cannot be questioned (Art. 10 of the Charter). But, as will now be seen, this does not prejudice the question as to whether all the individual members are to be regarded as guilty and punished, and consequently does not result in automatic and obligatory convictions.
The prosecution made this point clear when advocating that, from the view point of the individual members, the consequence of the declaration was that it created a rebuttable presumption of guilt, and thus reversed the burden of proof. Members, when tried, were not allowed to disprove that their organisation or group was criminal at the time of their membership, but they were entitled to disprove the tests made against them individually as members of the body declared criminal. Nothing precludes him (a member) from denying that his participation was voluntary, said Justice Jackson, and proving that he acted under duress ; he may prove that he
was deceived or tricked into membership ; he may show that he had withdrawn, or he may prove that his name on the rolls is a case of mistaken identity. Actual fraud or trick of which a member is a victim, has never thought to be the victims crime. As regards the members knowledge of the criminal nature of the organisation, he may not have known on the day he joined, but may have remained a member after learning the facts. And he is chargeable not only with what he knew, but with all which he was reasonably indicted.
It will be seen later that the Tribunal did not wish to answer the thesis of presumption of guilt either way, but that it decided that, apart from cases where a member was proved guilty of specific crimes, the tests of voluntary membership, and of actual or reasonably presumed knowledge represented the main issues upon which the subsequent courts were to decide each individual case of guilt (Footnote 1: It is interesting to note that, during the proceedings one of the judges expressed opinions to the effect that a declaration of criminality could or even should be understood to result in obligatory and automatic convictions. Thus, the French judge, M. Donnedieu de Vabres, questioned the legal basis for introducing the tests submitted by Justice Jackson. According to these tests, emphasised the French judge, a member could be acquitted by proving that his membership was not voluntary or that he never knew of the criminal purpose of the organisation. However, he said, I suppose that this Tribunal has a different conception. I suppose that it considers the condemnation of the individual who was a member of the criminal organisation, obligatory and automatic. Strictly speaking, the interpretation which has been advocated by Mr. Jackson is not written in any text. It does not appear in the Charter. Consequently, by virtue of what texts would the Tribunal in question (meaning the subsequent court) be obliged to conform to this interpretation ? To this Justice Jackson replied that there could be no such thing as automatic condemnations, because the authority given in the Chapter [should be Charter-Ed.] is to bring persons to trial for membership. But, added Justice Jackson, the points could be raised by the defendant that he had defences, such as duress, force against his person, or threats of force, and would have to be tried. See Proceedings, Part 8, H.M. Stationery Office, London, 1947, p. 103-104. Doubts such as those expressed by the French judge are an illustration of how the terms of the Charter could have, however unwittingly, been misinterpreted, had there not been a theory to explain their real purpose and meaning. It is also worth noting that, before making final decisions in its Judgment, all judges debated at length the theory of the United States Chief Prosecutor in the course of the proceedings and manifested their anxiety to clarify in every detail the issues involved. For full data, see op. cit., p. 97-113. )
It thus appears that a declaration has a binding effect in the subsequent proceedings insofar as it finally decides upon the question of criminality of a given group or organisation. This is a novelty in international law in that the judgment of a Tribunal which has not tried individual members has effect in the proceedings of courts trying them.
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