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(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
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