(c) Fine, and imprisonment with or
without hard labor, in lieu thereof."
In effect, therefore, a member of an organization
which the Tribunal has declared to be criminal may be subsequently
convicted of the crime of membership and be punished for that crime
by death. This is not to assume that international or military courts
which will try these individuals will not exercise appropriate
standards of justice.
This is a far reaching and novel procedure. Its application,
unless properly safeguarded, may produce great injustice. Article 9,
it should be noted, uses the words "The Tribunal may
declare", so that the Tribunal is vested with discretion as to
whether it will declare any organization criminal. This discretion is
a judicial one and does not permit arbitrary action, but should be
exercised in accordance with well-settled legal principles, one of
the most important of which is that criminal guilt is personal, and
that 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.
A criminal organization is analogous to a
criminal conspiracy in that the essence of both is cooperation for
criminal purposes. There must be a group bound together and organized
for a common purpose. The group must be formed or used in connection
with the commission of crimes denounced by the Charter. Since the
declaration with respect to the organizations and groups will, as has
been pointed out, fix the criminality of its members, that definition
should exclude persons who had no knowledge of the criminal purposes
or acts of the organization and those who were drafted by the State
for membership, unless they were personally implicated in the
commission of acts declared criminal by Article 6 of the Charter as
members of the organization. Membership alone is not enough to come
within the scope of these declarations.
Since declarations of criminality which the
Tribunal makes will be used by other courts in the trial of persons
on account of their membership in the organizations found to be
criminal, the Tribunal feels it appropriate to make the following
recommendations:
1. That so far as possible throughout the four zones of
occupation in Germany the classifications, sanctions, and penalties
be standardized. Uniformity of treatment so far as practical should
be a basic principle. This does not, of course, mean that discretion
in