TRIAL OF ULRICH GREIFELT AND OTHERS

UNITED STATES MILITARY TRIBUNAL, NURBMBERG,

10TH OCTOBER, 1947-10TH MARCH, 1948

Part V

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(c) General Ruling of the International Military Tribunal

A general ruling was made with particular regard to the effects of a declaration of criminality upon the punishment of individual members by the competent courts. Referring to the provisions of the Charter, as well as to provisions’ of other laws enacted in anticipation of declarations by the Tribunal in this field, the Tribunal established in the first place that, under these rules, there was a “ crime of membership ” for individuals who belonged to organisations declared criminal. It said :

" A member of an organisation which the Tribunal has declared to be criminal may be subsequently convicted of the crime qf membership and be punished for that crime by death. " (Footnote 2: Italics are introduced.)

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However, added the Tribunal :

“ 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.”

The Tribunal, thus, agreed with the basic thesis of the prosecution that the rules of the Charter and the concept of collective criminality involved in a declaration within the Tribunal’s jurisdiction, should not be construed so as to result in an unqualified, indiscriminate and automatic collective penal responsibility of all members. The Tribunal emphasised this point with reference to its discretionary power in making declarations of criminality :

“ 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 punishment should be avoided. If satisfied of the criminal guilt of any organisation 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.”

In this manner the Tribunal severed categorically the link of cause and effect which could have been made between the notion of a group held collectively criminal and that of the guilt of its individual members : even though the declaration is founded on the premise that the group was criminal as a whole, the guilt of all or any of its members remains on the traditional ground of “ personal ” guilt.

In order to determine the field of “ personal criminal guilt ” within the scope of an organisation declared criminal as a whole, the Tribunal delivered a definition of the “ criminal organisation ” and while doing so, it fully accepted the tests submitted by the prosecution :

“ A criminal organisation is analogous to a criminal conspiracy in that the essence of both is co-operation for criminal purposes. There must be a group bound together and organised 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 organisations 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 organisation 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 organisation. Membership alone is not enough to come within the scope of these declarations.”

Two distinct consequences appear from this statement-first the concept of and the tests regarding the criminality of a group or organisation, and secondly, the tests for establishing the guilt of individual members of the group. With regard to the first, the concept is reached when there is a “ group bound and organised for a common purpose ” and when such a

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group “ is formed or used in connection with the commission of crimes.” When these two elements are fulfilled, a declaration that an organisation is criminal as a whole is justified. Since the Tribunal stressed that the organisation had to “ be formed or used ” in connection with the commission of criminal acts, this meant that it is not essential for the group to have actually committed crimes ; it is sufficient if it was set up for this purpose. With regard to the second, the tests are those of elimination, and two classes of members are excluded. First, those “ who had no knowledge of the criminal purpose or acts of the organisation ” and secondly, those “ who were drafted by the State unless they were personally implicated in the commission ” of criminal acts. The second proviso means that persons who were compulsorily drafted, even-if they had knowledge of the criminal purpose of the organisation, are not guilty unless they personally were implicated in the commission of crimes.

The tests used to make the above elimination furnish at the same time those regarded by the Tribunal as representing the basis for convicting individual members on the part of the competent courts. As already stressed, under Article 10 of the Charter, a declaration delivered by the Tribunal makes possible the bringing to trial of individuals for the “ crime of membership,” in which case the criminal nature of the organisation cannot be challenged. The Tribunal did not specify who was to bear the onus of proof regarding tests of personal guilt, when a member is brought to trial, but the wording used by the Tribunal in respect of each of the organisations it declared criminal, tends to indicate that it wished the burden to lie on the prosecution. It would, therefore, appear that two alternative courses were made open to the competent courts. The first would be to hold the view, and this course was advocated by the United States Chief prosecutor and was eventually prescribed for the Denazification Courts in the United States zone of Germany, that the declaration made by the Nuremberg Tribunal creates a presumption of guilt against every member, and that consequently all the prosecution is required to do is to establish that the accused was a member of the organisation. In this case it was to be presumed, until proof to the contrary was established by the defendant, that he knew of the criminal purposes or acts of the organisation or that he was personally implicated in the commission of crimes, although he did not join the organisation on a voluntary basis. The second course is to hold the view that no presumption of individual guilt derives from the declaration of the Nuremberg Tribunal, and that consequently, the prosecution is called to prove not only that the accused was a member of the organisation declared criminal, but also that he knew the relevant facts and was personally implicated in the commission of crimes.

The Nuremberg Tribunal left untouched the question of how such evidence could be made good by either the prosecution or the defence. Competent courts were left full latitude in admitting circumstantial evidence, and the question of whether it is reasonable to believe that the accused had or had not knowledge of the criminal purpose or acts of his organisation can, and was in most cases, solved on the basis of the accused’s rank and position, his duties and assignments while serving in the organisation and the like. With regard to the second test, that of the implication of persons who joined the organisation on a non-voluntary basis, the Tribunal’s word “ unless ”

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following the description of a member compulsorily enlisted, indicates that, whenever the accused has established his compulsory enlistment, the burden of proof that he has actually committed crimes lies on the prosecution.

It would thus appear that, by omitting to give an explicit answer to the issue of the burden of proof, the Nuremberg Tribunal in fact delegated this task to the competent courts and shunned interfering with their jurisdiction beyond the points mentioned in the Judgment. It also appears that a great responsibility has thus been put on the subsequent courts, and that differing jurisprudence may take place, as it in fact has.

The International Military Tribunal ended its general ruling by making a recommendation to the subsequent courts as to the punishment they were to impose for the crime of membership. It referred to Law No. 10 of the Allied Control Council for Germany and to a De-Nazification Law of 5th March, 1946, the relevant provisions of which will be found later. The recommendations read as follows :

" 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 organisations 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 standardised. Uniformity of treatment so far as practical should be a basic principle. This does not, of course, mean that discretion in sentencing should not be vested in the court ; but the discretion should be within fixed limits appropriate to the nature of the crime.

2. Law No. 10, to which reference has already been made, leaves punishment entirely in the discretion of the trial court even to the extent of inflicting the death penalty.

The De-Nazification Law of 5th March, 1946, however, passed for Bavaria, Greater-Hesse and Wurttemberg-Baden, provides definite sentences for punishment in each type of offence. The Tribunal recommends that in no case should punishment imposed under Law No. 10 upon any members of an organisation or group declared by the Tribunal to be criminal exceed the punishment fixed by the De-Nazification Law. No person should be punished under both laws.

3. The Tribunal recommends to the Control Council that Law No. 10 be amended to prescribe limitations on the punishment which may be imposed for membership in a criminal group or organisation so that such punishment shall not exceed the punishment prescribed by the De-Nazification Law.”

The De-Nazification Law of 5th March, 1946, referred to by the Tribunal, is in force in the United States Zone and its heaviest penalty does not exceed 10 years’ imprisonment. The Nuremberg Tribunal, thus, made a strong point of the necessity of reducing the punishments provided by Law No. 10 in order to fit “ the nature of the crime.” The Tribunal found that the

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“ crime of membership ” in itself (Footnote 1: This distinction is important, for a defendent prosecuted for membership can at the same time be found guilty of either of the other specific crimes covered by Law No. 10, i.e. crimes against peace, war crimes or crimes against humanity. In such cases the punishments applicable are those from Art. II of Law No. 10 without restriction. ) did in no case deserve a more severe punishment than that prescribed in the De-Nazification Law of March, 1946.

It will be noted that, in order to achieve such a result, the Tribunal found it necessary to recommend the amendment of Law No. 10. No such amendment took place apparently for the reason that it was not indispensable to achieve the effect sought. Art. II, para. 3, of Law No. 10 gives the competent courts full latitude to impose various punishments, including imprisonment for a term of years, at their discretion in each case and in respect of each class of crime. Room was, thus, left for implementing the recommendation of the International Military Tribunal without amending the law.

(iii) The Law applied in the case of the Accused

The law under which Greifelt and the other accused were tried for membership of criminal organisations, as well as for crimes against humanity and war crimes, was Law No. 10 of the Allied Control Council for Germany, of 20th December, 1945. The crime of membership is provided against in Art. II para. 1 of the Law together with crimes against peace, crimes against humanity and war crimes. The relevant passages read as follows :

“ Each of the following acts is recognised as a crime : . . . . “

(d) Membership in categories of a criminal group or organisation declared criminal by the International Military Tribunal.”

The penalties generally prescribed for any crime under the Law include imprisonment with or without hard labour, which may be imposed for life, as well as death penalty. In the case of membership, however, the rules concerning punishment were supplemented by the above-cited recommendations of the International Military Tribunal. A study of the sentences passed by the United States Military Tribunal in Nuremberg for the crime of membership shows that these Tribunals have in fact followed the recommendation of the International Military Tribunal.

(iv) The Guilt of the Accused for the crime of Membership

The conviction of the accused for the crime of membership was made, according to Art. II para. 1 (d) of Law No. 10, on the grounds of the declaration made by the International Military Tribunal in regard to the criminal nature of the main organisation to which they belonged, that is the S.S. (Die. Schutzstaffeln der Nationalsocialistischen Deutschen Arbeiterpartie). The ,International Military Tribunal’s declaration concerning the S.S. read as follows :

“ The S.S. was utilised for purposes which were criminal under the Charter involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labour programme and the mistreatment and murder of prisoners of war. The defendant Kaltenbrunner was a member of the S.S. implicated in

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these activities. In dealingwith the S.S. the Tribunal includes all persons who had been officially accepted as members of the S.S. including the members of the Allgemeine S.S. members of the Waffen S.S., members of the S.S. Totenkopf Verbaende and the members of any of the different police forces who were members of the S.S. The Tribunal does not include the so-called S.S. riding units. The Sicherheistdienst des Reichsfuhrers S.S. (commonly called the S.D.) is dealt with in the Tribunal’s Judgment on the Gestapo and S.D.

“ The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the S.S. as enumerated in the preceding paragraph who became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organisation in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes. The basis of this finding is the participation of the organisation in war crimes and crimes against humanity connected with the war ; this group declared criminal cannot include, therefore, persons who had ceased to belong to the organisation enumerated in the preceding paragraph prior to 1st September, 1939.”

In the above declaration the International Military Tribunal included all persons who had been officially accepted as members of any of the branches of the S.S., except the so-called Riding units. The main branches were the Allgemeine S.S., the Waffen S.S., and the S.S. Totenkopf Verbaende. On the other hand, it excluded from the classes of members liable to prosecution for the crime of membership, those members who were drafted by the State in such a way as to give them no choice in the matter and who had committed no crimes personally, as well as those who had ceased to be members before 1st September, 1939.

In the trial under review all the defendants, with the exception of the one acquitted of all charges, held prominent ranks in the categories of the S.S. covered by the above declaration of the International Military Tribunal. Greifelt, Lorenz, Hofmann and Hildebrandt were Obergruppenfuehrers (Lt.-Generals) in the S.S., Creutz, Mayer-Hetling, Schwarzenberger and Ebner were Oberfuehrers (Senior Colonels), Huebner and Sollmann were Standartenfuehrers (Colonels), and Schwalm an Obersturmfuehrer (Lt.-Colonel). Finally, Brueckner and Tesch were Sturmbannfuehrers (Majors).

In its judgment the Tribunal made no specilic reference to the branch of the S.S. to which the accused belonged, but it is likely that they all were members of the Allgemeine S.S.

As to the tests of individual guilt stressed by the International Military Tribunal with regard to members of the S.S., they consisted, as stressed in the Judgment, in ascertaining whether the accused “ became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter (i.e., crimes against peace, war crimes, and crimes against humanity), or whether they

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were “ personally implicated as members of the organisation in the commission of the crimes.” On the face of the evidence concerning each of the accused, the Tribunal was satisfied that, being members of the S.S., they had the relevant knowledge and/or were personally implicated in the perpetration of crimes committed by the S.S.

(v) Jurisprudence of other trials

Many more trials of war criminals led to the conviction of accused persons for membership in criminal organisations. Several cases may be cited as typical of the jurisprudence which was created on these occasions. Five of these were tried by United States Military Tribunals at Nuremberg and three more by United States General Military Government Courts in Germany on the basis of declarations made by the International Military Tribunal and on the grounds of Law No. 10 of the Allied Control Council for Germany.

The cases are illustrative of how the general ruling and recommendations of the International Military Tribunal were implemented in connection with its declarations regarding the criminal nature of Nazi groups and organisations. Some of them show the way in which the issue of the burden of proof concerning the personal guilt of the defendants was solved, and how the tests of their guilt were applied.

All experiments were conducted in concentration camps (Dachau, Sachsenhausen, Natzweiler, Ravensbruck, Buchenwald, etc.), and caused inhumane suffering, torture or death of many inmates. They consisted in high altitude experiments to investigate the limits of human endurance and existence at extremely high altitudes (up to 68,000 feet) ; freezing experiments to investigate means of treating persons severely chilled or frozen ; malaria experiments to investigate immunisation and treatment of malaria ; lost (mustard) gas experiments to investigate treatment caused by that gas ; sulfanilamide experiments to investigate the effectiveness of the drug ; bone, muscle and nerve regeneration and bone transplantation experiments ; seawater experiments to study methods of making seawater drinkable ; epidemic jaundice experiments to establish the cause of and discover inoculations against that disease ; sterilization experiments to develop a method best suited for sterilising. millions of people ; spotted fever experiments to investigate the

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effectiveness of vaccines ; experiments with poison to investigate the effect of various poisons. In addition to this, several defendants were charged with activities involving murder, torture and ill-treatment not connected with medical experiments. In all cases inmates of concentration camps were used as “ guinea-pigs ” and were as a rule healthy subjects.

Karl Brandt and nine other accused were indicted for having committed such criminal acts as members of the S.S. and were, accordingly, also prosecuted as “ guilty of membership in an organisation declared to be criminal by the International Military Tribunal ” at Nuremberg.

When deciding upon this particular charge, the United States Military Tribunal referred to the general ruling of the International Military Tribunal and applied in each case the tests of individual guilt defined by the latter. On the face of the evidence submitted, Karl Brandt and eight other defendants were found guilty of membership on the ground that they had been in the S.S. until the end of the war and that, as such, they were actually and personally “ implicated in the commission of war crimes and crimes against humanity.” One defendant was found guilty of having “ remained in the S.S. voluntarily throughout the war, with actual knowledge of the fact that that organisation was being used for the commission of acts declared criminal by Control Council Law No. 10.”

The principal defendant Joseph Altstoetter, was Chief (Ministerialdirektor) of the Civil law and Procedure Division of the Reich Ministry of Justice, and Oberfuhrer in the S.S. Together with the other defendants he was charged with misusing legislative or judicial power in such a manner as actually to commit crimes against persons subjected to Nazi laws and/or courts of justice. The evidence submitted was to the effect that Nazi legal machinery was used as one of the means “ for the terroristic functions in support of the Nazi regime “. Death sentence and other severe penalties were prescribed for acts which either did not represent criminal offences under standards of modern justice or did in no case warrant such heavy punishments. Sentences were pronounced by Nazi courts in pursuance of such criminal laws in a very large number of cases. The accused were indicted for being implicated in such acts, which, under the terms of the Control Council Law No. 10, amounted to war crimes or crimes against humanity.

Seven defendants, including Altstoetter, were accused of having committed such crimes as members of organisations declared criminal by the Inter-national Military Tribunal. (Footnote 2: Ibid, pp. 4-5, 65-72 and 77.) The organisations involved were the S.S.,

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S.D. and Leadership Corps of the Nazi Party. Some of the defendants were members of two organisations simultaneously. They were accordingly charged separately with the crime of membership in such organisations. As in the previous case the Tribunal applied the tests of criminality defined by the International Military Tribunal and found the accused individuals guilty of membership on different grounds. Alstoetter was found guilty as a member of the S.S. falling within the groups declared criminal by the International Military Tribunal, on the grounds that he had knowledge of the criminal purposes and acts of the S.S. and remained voluntarily in the organisation. The test of knowledge was likewise positively established against two other defendants. In one case the Tribunal was satisfied by the evidence that the accused actually knew of the execution of political prisoners and that he personally took part in the misdeeds. It also arrived at such conclusion on the basis of circumstantial evidence deriving from the accused’s official position and duties. “ No man who had his intimate contacts with the Reich Security Main Office, the S.S., the S.D., and the Gestapo could possibly have been in ignorance of the general character of those organisations.” In the second case the evidence regarding the mens rea of the accused was entirely of a circumstantial nature. The crimes, said, the Tribunal, “ were of such wide scope and so intimately connected with the activities of the Gauleitung (the accused’s organisation) that it would be impossible for a man of the defendant’s intelligence not to have known of the commission of these crimes, at least in part if not entirely.” It is interesting to note that the chief defendant, Altstoetter, was found guilty only on the count of membership and freed from other charges. He was sentenced to 5 years’ imprisonment.

Two defendants were acquitted. In one case the defendant was charged as a member of the Leadership Corps of the Nazi Party, and the Tribunal established that his group did not in fact belong to the Leadership Corps, nor to any other organisation declared criminal. In the second case the accused was charged as a member of the Leadership Corps Staff and a “ sponsoring ” member of the S.S. The Tribunal ruled that neither a Gaustellenleiter nor a “ sponsoring ” member of the S.S. could be regarded as a member of an organisation declared criminal by the International Military Tribunal.

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