Chapter XXII: Section C: of my Appendix A, that the crimes of the SS were committed, (4)

That sort of thing bears on this question of what men who joined these organizations ought to know. There was no declared and ostensible purpose of the SS, SA, and several of these organizations, except to carry into effect the Nazi program. They would make themselves masters of the streets.

The story is all in the evidence, and I won’t go on to repeat it. The program was an open, notorious program, and these were the strong-arm organizations. So it seems to me that we get down to the situation where, as Chief Justice Taft once said to the Supreme Court of the United States on a somewhat similar question: “We as judges are not obliged to close our eyes to things that all other men can see.” And this was notorious and open.

It is a little hard, if Your Honors please, for an American patiently to listen to the arguments made here again and again, that there is some plan here to punish with death penalties or extremely severe penalties people who innocently got caught in this web of organizations. If there were the slightest purpose to go through Germany with death we wouldn’t have bothered to set up this Tribunal and stand here openly before the world with our evidence. We were not out of ammunition when the surrender took place, and the physical power to execute anyone was present.

These powers have voluntarily, in their hour of victory, submitted to the judgment of this Tribunal the question of the criminality of these organizations. And it seems to me a little trying on the patience of representatives of those powers to be told that in back of this is some purpose to wreak vengeance on innocent people. I think it is difficult for those who have survived this Nazi regime to understand how reluctant we are to kill any human being. It is a commentary on the state of mind that survived this Nazi regime, rather than upon us.

Control Council Act Number 10—I don’t know whether Your Honors have copies of that—Control Council Act Number 10, does make membership in the categories which may be convicted a crime, and I think it ought to. It ought to be sufficient to bring before a Tribunal inquiring into the detail of each individual any individual as a member, and that is all that we have here in a declaration, in substance, an indictment which enables you to put the individual on trial.

It is true that the punishment may include a death penalty, and so long as the death penalty is imposed by any society for anything, the penalty of death ought to follow in some of these cases; the SS men who were responsible for the destruction of the Warsaw Ghetto, for example, or SS men who are shown to have been responsible for the top planning, even though they did not actually participate.

But I call your attention to the fact that in Provision Number 3 of Act Number 10 the slightest penalties are also provided. The restitution of property wrongfully acquired is one of the penalties that may be imposed. The deprivation of some or all civil rights is another. And during this period of reconstruction of German society, those minor penalties may very well be imposed upon people who entered into these organized plans. If not, you have the situation that the people who organized themselves to force this Nazi program, first on the German people and then on the world, are treated exactly the same as the German who was the victim of it. Now, isn’t it our duty as occupying powers of a prostrate country to draw some distinction between those who organized to bring on this catastrophe and those who were passive and helpless in the face of overwhelming power?

Counsel for one of the defendants has already shown that, in administering the affairs, an SA man has been made a councillor in one of the districts. There is no purpose, because a man happened to get into the SA, to take his life or to take his property or to condemn him to hard labor for life. There is a purpose to have the basis for bringing these people in for what the military people call a “screening” and find out what kind of people they are and what they have been up to.

This Control Council Act—while I am frank enough to say I would not have drafted it in the language it is drafted in—this Control Council Act leaves, in the first place, discretion as to whether prosecutions will take place, in the hands of the occupying powers. I do not share the fears of counsel that millions—I have forgotten how many millions it was estimated—would be brought to trial. I know that the United States has worries enough over manpower to bring to trial 130,000, so we do not want to bring to trial millions. And it is for that reason that we have consented to the exclusion of some of these categories where it seemed we could exclude them very safely without jeopardizing the over-all program of dealing with these people.

Now, I want to make clear why it is that we do not want to go, in this Trial, into this question of each of these many subdivisions of these Nazi organizations and the functions of each. You have heard some of them named. They are innumerable. Some of them existed a short time and then disappeared.

The trial of each of these subdivisions would take—I would not venture to say how long. We do not want to see this Court trivialized. This is not a police court. This was not set up to be a police court; and this is a police court function, after this Court has laid down the general principles, to take up the case of individuals or of many individuals and to determine whether they are within or outside the definition.

I do not know whether a mounted group of SS men are any less dangerous than an unmounted group. I had always associated the equestrian art with warfare, but I do know it will take a long time to determine it.

I do not know whether SS motorcycle mounted traffic officers are less dangerous than those who do not have motorcycles, or were less criminal, but I should have a suspicion that the greater the mobility, the more active the group was in carrying out these widespread offenses.

I do not know about the physicians. I do not think it is up to us to try it in this case, but I suspect that a medical corps meant there might be some casualties; and this thing isn’t innocent on its face, as it appears. This will require a great deal of evidence, if we go into each of these things, and it seems to me that it would be out of keeping with the character of this Tribunal to go into that kind of question.

It is not necessary to go into the group any more than it is the individual, and if you go into the group I know of no reason why you should not go into the individual, because if the group is within the general contour, each one member of that group is entitled to his hearing before he is condemned. It may very well be that the occupying authorities will decide that the whole group is not worth prosecuting. We have no illusions about this thing. We are never going to catch up with all the people who are guilty, let alone prosecuting the innocent. If they are prosecuted, however, it may very well be that the group would be treated together in some way, so that there could be a single determination as to each group.

In any event, since each individual has to have a hearing, there can be no point in having a hearing for subgroups between the individual and the principal organization that we ask to have declared guilty.

If there were any point in our fully trying this question and deciding just who is in and who is out of the circle of guilt, there would be no reason why the Charter would not have given you power to sentence. There would be no reason for further trials.

It seems to me that we must look at this matter somewhat in the light of an indictment. It is true it is an accusation against all members of the group. It has no effect unless it is followed by a trial and a conviction, any more than an indictment that is never followed by a trial would have effect. The effect of the declaration is that the occupying power may bring these individual members to trial. Administrative considerations will enter into it—the degree of connection. It may very well be that it will be decided that those who were mere members and not of officer rank of any capacity should not be punished. We cannot say just what will be necessary.

Frankly, I do not know just what manpower is going to be available for the United States’ part in the follow-up of these trials. There are difficulties which I do not underestimate, but I do know that the idea that this means a wholesale slaughter or a wholesale punishment of people in Germany is a figment of imagination and is not in accordance with either the spirit of this Trial or the purpose of the Charter.

I think that is all that I care to say unless the Tribunal has some question, which I will be glad to answer.

THE PRESIDENT: Mr. Justice Jackson, there are one or two questions I should like to put up to you.

First of all, in your submission, do the words in Article 11 have any bearing, the words at the end of Article 11, where it is provided that “such court”—in the last three lines—“may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activity of such groups or organizations.” Do the words “for participation in the criminal activity of such groups or organizations” add anything to the definition of the word “membership“ in Article 10?

MR. JUSTICE JACKSON: I do not think they add anything. Frankly, the wording of this article has bothered me as to just what it does mean, since no punishment is imposed by this Tribunal at all for participation in the activities of the group. The purpose of the language was to make clear that the punishment for an individual crime, if one committed a murder individually or was guilty of aggressive warfare planning, is not to interfere with the punishment for being a member of a criminal organization or _vice versa_, to make clear that they are not mutually exclusive. But the language I am not proud of.

THE PRESIDENT: Secondly, would an individual who was being tried before a national court be heard on the question whether, in fact, he knew of the criminal objects of those groups?

MR. JUSTICE JACKSON: Well, I think he would be heard on that subject, but I do not think it would be what we in the United States would call a complete defense. It would perhaps be a partial defense or mitigation. I should think that the tribunal might well—the court trying it—might well have felt that he should have known under the circumstances what his organization was, despite his denial that he did not; and that his denial, if believed, will weigh in mitigation rather than in complete defense. In other words, I do not believe that you can make as a decisive criterion of guilt the state of mind of one of these members where you have no power whatever, no ability whatever, to controvert his statement of that state of mind. I think you have to have some more objective test than his mere declaration.

THE PRESIDENT: Then I understood you to say that it was not for the Tribunal to limit or define the groups which were to be declared criminal; but, as the Charter does not define them, isn’t it necessary for the Tribunal to define what the group is?

MR. JUSTICE JACKSON: I think it is necessary for the Tribunal to identify the groups which it is condemning, sufficiently so that it would afford a basis for bringing the members to trial for membership. I do not think it is necessary to define the exact contours of guilt. It is defined in reference to membership rather than in terms of guilt or innocence. That is to say, it may be that there is some little section of the SS that on trial would be said to be not guilty of participating in the crimes of the organization. I do not think it is up to this Tribunal to take evidence, because if you take evidence as to some you must as to all, to separate out those elements. The SS is a well-known organization. Its contour is easily defined by membership, and within those contours it does not seem to me necessary to make exceptions.

THE PRESIDENT: But if there were to be an essential distinction on the question of criminality between the main body of the SS and, for instance, the Waffen-SS, would it not be the duty of the Tribunal to make that distinction?

MR. JUSTICE JACKSON: I do not think that would be necessary. I think when the member was brought to trial—one may be a conscript and still have remained in on a voluntary basis, or he may have gone beyond his duty as a conscript. I do not think it is necessary at this stage of the proceeding, where the individual is not here, to eliminate him. I do think that the principle that acts performed under conscription are not within the condemnation of the Tribunal is quite a different thing.

THE PRESIDENT: Is it possible for this Tribunal to limit the powers of the national courts under Article 10 by either defining the group or giving a definition of the word “membership” in Article 10?

MR. JUSTICE JACKSON: Well, if Your Honor pleases, I think every tribunal in its judgment has a right to include, in its judgment, provisions which will prevent its abuse. And I do not think this Tribunal is lacking in power to protect its decision against distortion or abuse. I take it that is the question rather than the question of if the national courts brought these persons to trial and paid no attention to the declaration—I do not suppose that there would be any power in this Tribunal to stop them from doing it. But I assume you mean as a consequence of this declaration, and I think that the declaration can be circumscribed or limited. I certainly would insist that the Court had inherent power to protect its judgment against abuse.

THE PRESIDENT: Do you think this Court could direct the national court to take any particular defenses into consideration?

MR. JUSTICE JACKSON: I do not know that it could put it in just that way, but I suppose it could define the categories in a way that the declaration would not reach any except those included within it. In other words, I think the declaration that this Tribunal will make is within this Tribunal’s control. When you get away from the declaration, I think you would have no control over the national courts. But insofar as they relied on the declaration, you would have power to control the effect of the declaration, provided the effect was not inconsistent with the provisions of the Charter.

THE PRESIDENT: You did, I think, make some suggestions for obtaining such evidence as you thought was necessary. Do you wish to add anything to that?

MR. JUSTICE JACKSON: I have nothing to add to that, Your Lordship. I realize that the defendants’ counsel have great difficulty in getting evidence, great difficulty in communication. I have it myself—great difficulty in getting letters delivered, great difficulty in all of these things. But I will state to this Tribunal categorically—I do not know what camp it is that was referred to yesterday as substantially refusing counsels’ application to see their clients—but so far as the American Zone is concerned, counsel, if they are properly cleared to go there, will be given every facility to get every kind of evidence that is available in that camp. If they are there at mealtimes they will be fed, and if they are there at night they will be sheltered. We will put everything in their way to help them that is possible.

Of course, there are security problems involved, and counsel cannot just walk into a camp and make himself at home. He will have to be cleared in advance so that he meets the security requirements; but there is no purpose to obstruct, and there is every purpose to assist.

THE PRESIDENT: Thank you.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I should like to ask you a few questions. Some of them will be somewhat repetitious of what the President has already said. You will excuse me if I repeat one or two of those. Most of them are directed for the purposes of this argument, which, I take it, is to form some kind of definition of the organizations, which may, of course, not be final but will at least give us a view of what should be relevant to the defendants’ making up their cases. So the questions are addressed to that, rather than any ultimate theory of definition.

You said that you would suggest excluding clerks, stenographers, and janitors in the Gestapo. Well, now, if we accepted that, would we not be obliged to exclude such categories from other criminal organizations?

MR. JUSTICE JACKSON: Not at all, Your Honor. I think there is a difference between a concession by the Prosecution and the necessity for the Tribunal’s making a decision.

It might appear logical that if we conceded clerks, stenographers, and janitors of the Gestapo were not to be included, that no clerks, stenographers, or janitors should be included. It does not follow. The relationships in different organizations differ.

From what we know about the Gestapo situation, we are satisfied that clerks, stenographers, and janitors in that organization ought not to be included, and we do not want to waste any time on it.

THE TRIBUNAL (Mr. Biddle): Was the reason for that, that those clerks would not have had knowledge of what was going on in the Gestapo?

MR. JUSTICE JACKSON: I do not think either that they had sufficient knowledge, in general, to be held or that they had sufficient power to do anything about it if they did.

Now, this question of dealing with minor people—and it is one of the questions that the Court inevitably gets into, if it undertakes to draw these lines itself rather than letting them be drawn administratively by what we choose to prosecute—is illustrated by just this sort of thing.

One of the difficulties with the Court is that it tries to be logical, and ought to be logical perhaps. I have always thought that was the great merit of the jury system, that juries do not have to be, and in prosecuting we do not have to be. It may look illogical to exempt small people in one organization and not in another, but there were differences in them.

For example—I think it is in evidence; if not, it will be—it was pointed out at one meeting by the Defendant Göring that chauffeurs to certain officers had profited to the extent of half a million Reichsmark from Jewish property that they had gotten their hands on. Now, I suppose ordinarily you would say that a chauffeur for an official was not a man who had much discretion and not a man who was expected to know much about what his employer was doing, but you have a great deal of difference in their relations to these men.

So far as I am concerned, I want to make perfectly clear—and I think it will be assumed—the United States is not interested in coming over here 3,500 miles to prosecute clerks and stenographers and janitors. That is not the class of crime, even if they did have some knowledge, that we are after, because that is not the class of offender that affects the peace of the world. I think there is little reason to fear that that sort of person—unless there is some reason to feel that some guilty connection exists beyond merely performing routine tasks—will be prosecuted in as big a problem as we have on hand here.

THE TRIBUNAL (Mr. Biddle): But in spite of that, you would include them in the SS, let us say?

MR. JUSTICE JACKSON: I would not exclude them.

THE TRIBUNAL (Mr. Biddle): I take it that would include them.

MR. JUSTICE JACKSON: If they were members, they would be included; if they were merely employees, that is something different; but if they took the oath and became a part of the SS organization, I think they stand in a different relation to the employed clerks of a government agency.

THE TRIBUNAL (Mr. Biddle): Now, somewhat along those same lines, you stated, in trying to define what a criminal organization was, that its membership must have been—I am quoting your words—“generally voluntary” and its criminal purpose or methods open and notorious and “of such character that its membership in general may properly be charged with knowledge of them.”

Now I am going to ask you a question which is somewhat repetitious of what the President asked you, but perhaps you can specify a little more. Would it not be inconsistent with that test which you suggest for criminality, if we decline to consider whether any substantial segment of the organization—I mean a section or segment might comprise a third of the whole organization or even more, like the Waffen-SS within the general SS—was either conscripted, which is one test, or ignorant of the criminal purpose? Because if such a substantial segment could be shown to be innocent under these tests, would it not be necessary either to decline a declaration on that ground—that the criteria were not generally satisfied as to the accused organization—or else to exclude the innocent segments from the deposition of the criminal organization?

Now, that is a rather involved question but it seems to me, if the test is the knowledge or assumed knowledge, that evidence that a very large segment did not and probably could not have had knowledge would be relevant and would be relevant not only for the purposes of evidence, but for the purposes of definition?

MR. JUSTICE JACKSON: Well, I think you have at least two ideas in the question that must be dealt with separately. The first is that conscription and knowledge, to my way of thinking, present a very different problem.

As to conscription, as I said before, I think, if the Tribunal saw fit to condition its judgment not to apply to conscripted members of any organization, I shall have no quarrel with it. I have always conceded we did not seek to reach conscripted men. If the overwhelming power of the state puts them in that position, I do not think we should pursue them for it.

If the Tribunal says that the Waffen-SS must be excluded because it was conscripted, that raises a question of fact.

THE TRIBUNAL (Mr. Biddle): Yes.

MR. JUSTICE JACKSON: And it raises a question of fact that we would be 3 weeks trying and that is what I want to avoid, because there were Waffen-SS and other Waffen-SS and there were different periods of time and there were different conditions; and we get into a great deal of difficulty if we undertake to apply the principle that the conscript is not to be punished; and that, it seems to me, is what is properly left to the future course, the question as to whether an individual or a number of individuals comes within that principle. In other words, I think this Court should lay down principles and not undertake what I call “police court administration” of those principles as applied to individuals.

THE TRIBUNAL (Mr. Biddle): May I interrupt you for a moment on the first point? I take it, then, that you would think it appropriate to express a general limitation with respect to conscription in the declaration, but not to designate to whom that applies?

MR. JUSTICE JACKSON: I would have no objection to such a designation as far as I am concerned. Now, the other question is a question of knowledge, which is infinitely more difficult. We do not want to set up a trap for innocent people. We are not so hard up for somebody to try that we have to seek and to catch people who had no criminal purpose in their hearts; but there can be no doubt that every person affiliated with this movement at any point knew that it was aimed at war and aggressive war. There can be no doubt that they knew that these formations under the Nazi Party were maintaining concentration camps to beat down their political opposition and to imprison Jews and the terrible things that were going on in these camps.

To ask us to prove individual knowledge or to ask us to accept the man’s own statement of his state of mind is to say that there can be no convictions, of course. It seems to me that the scale of this crime and the universality of it, going on all over Germany, concentration camps dotting the landscape, and the vast population, is sufficient to charge with knowledge the principal organizations of the Nazi Party which were responsible for those things. The test that I think applies as to knowledge is not what some member now on the witness stand may say he knew or did not know; but what, in the light of the conditions of the times, he ought to have known—what he is chargeable with.

THE TRIBUNAL (Mr. Biddle): Wouldn’t it follow from that that there was no taking of any evidence on what was generally known?

MR. JUSTICE JACKSON: Well, I think the proof of what was going on establishes the point as to chargeability with knowledge.

THE TRIBUNAL (Mr. Biddle): Do you claim that the defendants should not be permitted to give any evidence as to that which was generally known with respect to what was going on?

MR. JUSTICE JACKSON: To what was generally known, I do not think the defendant’s denial that he knew what was going on has any materiality.

THE TRIBUNAL (Mr. Biddle): That was not my question. My question was whether a witness could be permitted to testify that the acts of the particular organizations were not generally known to its members. Would you exclude that evidence?

MR. JUSTICE JACKSON: I certainly would, and if I heard it I would not believe it; but perhaps my . . .

THE TRIBUNAL (Mr. Biddle): Excuse me. Although on your test of knowledge, you wouldn’t permit the defendants to meet that test?

MR. JUSTICE JACKSON: I should say that that is just exactly the situation, that the Court would take judicial notice, from the evidence that is in, that this was a thing that must have been known in Germany; and I would not think that it would be permissible for a citizen of the United States to testify that he did not know the United States was at war, a fact of which he is chargeable with knowledge; and it seems to me that the magnitude of these things is so equally established and the repeated daily connection between the organizations and this criminal program is so equally clear.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I only have two or three more questions. One is directed to the General Staff. Does the particular date when an individual accused—I beg your pardon—when an individual assumed one of the commands listed in Appendix B of the Indictment have any bearing on whether he is a member of the organization? Now, I am going to bring that question down to the General Staff.

MR. JUSTICE JACKSON: Perhaps I should warn you of this—that I am not a military man. I have not specialized on that subject and I shall want to refer your question to someone whose knowledge is more reliable than mine.

THE TRIBUNAL (Mr. Biddle): I shall ask the question directed to you as a lawyer and not an expert in military matters. Assume that one of these individuals became an army group commander after the wars of aggression had been planned, proposed, initiated—roughly, that would be after 1942; let us say, after Pearl Harbor—and had reached the stage when Germany was on the defensive; is his acceptance of a command at that date sufficient to make him a member of the organization?

MR. JUSTICE JACKSON: I should think it would.

THE TRIBUNAL (Mr. Biddle): The reason I asked you that, Mr. Jackson, is that I thought you had rather indicated in your opening address that the starting of the war was the essence of the crime rather than the waging of war, and I was wondering whether in that case there would be any difference which we should consider?

MR. JUSTICE JACKSON: Well, I think when one joins, he ratifies what has gone before, and it would seem to me that when he came into the picture at that point, it was a ratification of all that had gone before on the ordinary principles of conspiracy.

Now I think it is a difficult question, whether a man had not had any prior connection with the Nazi Party—if you take the example of a man who disapproved all that the Nazi Party had done, who never became a member of it, who stood out against it and publicly his position was clear, and he took no part in the war until the day his country was being invaded and he said, “I don’t care what happened before; my country is being invaded and I shall now go to its defense,” I would have difficulty convicting that man. I do not know such a man.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, there is only one more question I should like to address in connection with Law Number 10. I am a little puzzled myself on Law Number 10, the Control Council Law of December 20—I think that was the date. You spoke of one reason for declaring the organizations criminal and bringing persons into the Control Council for screening. I take it they can do that easily without any help on our part.

MR. JUSTICE JACKSON: That is right.

THE TRIBUNAL (Mr. Biddle): Now, you said something very interesting. You said the act would not have been so, if you would have drafted it. How would you have drafted it, if that is not an improper question?

MR. JUSTICE JACKSON: Well, I think I would not have made these penalties of this act apply to all of the crimes. You have one lumping of a whole list of crimes which, to my mind, range from the very serious to the very minor. Then you have applicable to all of those crimes, penalties from death down to deprivation of the right to vote in the next election.

THE TRIBUNAL (Mr. Biddle): For instance, you would not have made the death penalty applicable to the members of the SA who might have resigned in 1922?

MR. JUSTICE JACKSON: I would not; and I think that in that way I would have been more explicit with the penalties. Like the Mikado, I would try to make the punishment fit the crime, rather than leave it wide open.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, what defenses do you think are expressly permitted under the Control Council Law? Don’t we have to assume that the members of the Tribunal will permit certain defenses or are any defenses expressly permitted?

MR. JUSTICE JACKSON: No; no defense is expressly permitted. I take it that any defense which goes to the genuineness of membership, as the volition of the individual, duress, fraud—and by duress I mean legal duress—I do not think that the fact that it is good business, that the man’s customers may leave him if he does not join the Party—that is not duress; but anything which goes to the genuineness of his membership.

THE TRIBUNAL (Mr. Biddle): Only one more question. If the Tribunal were of the view that a declaration of criminality of the organization is an essentially legislative matter, as suggested by some of the defense lawyers, rather than a judicial one—if we were of that view, would it be appropriate for the Tribunal to consider the legislative authority of the Control Council, to make such a declaration, which undoubtedly we could do in exercising that discretion which is conferred on us under Article 9 of the Charter?

MR. JUSTICE JACKSON: I would not think so, Your Honor. I think that this Tribunal was constituted by the powers for the purpose of determining on the record—after hearing the evidence, after knowing the facts—determining what organizations were of such a character that the members ought to be put to trial for membership.

The fact that some other group which does not have hearing processes and which is not constituted as this might, either administratively or some other way, reach that same result, I do not think is a proper consideration. I should think it was rather a way of avoiding the duty—there are other ways of doing it, but this is the way our governments have agreed upon. I should think it would not be a proper consideration.

Of course, you could punish these members without anything. We have them in our power and in our camps. But our governments have decided they want this thing done after a full consideration of the record, and in this matter I think that. . .

THE TRIBUNAL (Mr. Biddle): But you have no doubt of the power of the Control Council to do it, irrespective of what we do, do you?

MR. JUSTICE JACKSON: I do not know of any limitations on the power of the Control Council. There is no constitution. It is a case of the victor and the vanquished, and I think that is one of the reasons why, however, we should be very careful to observe the request of our governments to proceed in this way. In a position where there was no restraint on their power except their physical power, and mighty little of that today, they have voluntarily submitted to this process of trial and hearing, and it seems to me that nothing should be done, by us as members of the legal profession at least, to discredit that process or to avoid it.

THE TRIBUNAL (Mr. Biddle): Those are all the questions I have to ask.

THE TRIBUNAL (Professeur Donnedieu de Vabres, Member for the French Republic): I would like to ask Mr. Jackson a few details on the consequences of the declaration of the criminality of an organization. Suppose an individual belonging to one of the organizations classified as criminal—for instance, an SS man or a member of the Gestapo—is brought before the military jurisdiction of an occupying power. According to what has been said so far, he will be able to justify himself by proving that his membership in the group was a forced membership. He was not a volunteer and if I have understood correctly, he will also be able to justify himself by proving that he never knew of the criminal purpose of the association. That, at least, is the interpretation which has been adopted and defended by the Prosecution, and which we consider exact.

But I suppose that the tribunal in question has a different conception. I suppose that it considers the condemnation of the individual who was a member of the criminal organization, 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 be obliged to conform to this interpretation?

MR. JUSTICE JACKSON: The control of the future tribunal is the control of the effect of the declaration of this Tribunal. This Tribunal’s effect, when brought before a subsequent tribunal, is defined by the Charter, and it has only the effect that the issue as to whether the organization is criminal cannot be retried. There could be no such thing as automatic condemnations, because the authority given in the Charter is to bring persons to trial for membership.

It would, of course, be incumbent on the prosecutor on ordinary principles of jurisprudence to prove membership. I think proof that one had joined would be sufficient to discharge that burden, but then the question could be raised by the defendant that he had defenses, such as duress, force against his person, threats of force, and would have to be tried; but the Charter does not authorize any use of the declaration of this Tribunal except as a basis for bringing members to trial.

THE TRIBUNAL (M. De Vabres): If I am not mistaken, the authority of the International Military Tribunal will be imposed on the respective jurisdictions of the states, and will oblige them to adopt the interpretation in question. But in that case I conclude that, in the opinion of the Chief Prosecutor, Mr. Jackson, the judgment of the International Military Tribunal, the judgment which we shall pass, will have to contain a precise definition of this subject. Mr. Jackson said, however, a few moments ago, in agreement I think with Mr. Biddle, that the statute of the Charter permits us to define a criminal organization. Our judgment would not only contain a determination of the groups which we consider criminal, but also a definition of a criminal organization; and in the same way there would be precise definitions concerning the cases of irresponsibility, for example, the case of forced membership. There would be precise definitions which the tribunals of the respective states would be forced to respect. Do I understand Mr. Jackson’s thought correctly?

But, in that case, the question I ask is the following, and it is somewhat similar to that of Mr. Biddle: Briefly, would it not mean conferring on our judgment a certain legislative character? We are not an ordinary court, since we are adopting provisions, such as the definition of a criminal organization, which are generally included in a law, and at the same time our judgment contains provisions which limit the cases of individual responsibility. That is to say, in brief, we are to a certain extent legislators, as it was argued yesterday.

MR. JUSTICE JACKSON: I think that is true, that there is in this something in the nature of legislation or of the nature of an indictment. You may draw either analogy. But I do not see anything about that, as I understand it, which complicates the problem. In the United States we have a strict separation of legislative from judicial power, but there is nothing in that matter which controls this Tribunal, and whether you draw the analogy of an indictment in which you are accusing by your finding, your declaration, or whether you draw the analogy of legislation, it would be equally valid as the act of the Four Powers, since they are not required to withhold any power from the Tribunal.

THE TRIBUNAL (M. De Vabres): Yes, yes. The question which I have just asked seems to be of theoretical interest only. This is, however, the practical consequence which I should consider, which I should be tempted to draw, and on which I would like to hear your opinion:

If we have some legislative power, in that we are able to limit the indicting of persons and admit causes of irresponsibility or excuses, does this absolutely exclude our limiting at the same time the punishment?

Earlier, Mr. Biddle and Mr. Jackson were considering Article 10, and Mr. Jackson expressed some criticism concerning the penalties, which are not individualized penalties, since they can extend as far as the death penalty, as far as capital punishment.

There are, of course, some crimes for which capital punishment seems justified, such as Crimes against Humanity. But is it not going too far, to consider imposing the death penalty as the maximum for a crime which in France would perhaps be considered purely “material”—the crime of belonging to a criminal organization? Would it not be too severe for us to impose the death penalty? And might not the International Military Tribunal be forced to reduce unduly the notion of a criminal organization, precisely because we consider the possibility of this penalty being too severe? In other words, does Mr. Jackson absolutely exclude for the International Military Tribunal the power to fix a penalty, or at least a maximum penalty, for the crime of belonging to a criminal organization?

MR. JUSTICE JACKSON: I should not think that it was within the proper sphere of the Tribunal to deal with the question of penalties, for the reason that no power to sentence anyone other than the defendants on trial is given to this Tribunal; I mean, no power to sentence for membership in the organizations. Therefore, I think no incidental power to control penalties is given, but the power to declare an organization criminal does, incidentally, confer power to determine what that organization is, and I have not been disposed to question the power of the Tribunal to carry that definition to great detail, although I would question the wisdom of it.

The power, however, of sentence for membership is not even remotely conferred upon the Tribunal, and I would think that that would be a rather drastic expansion of its power.

THE TRIBUNAL (M. De Vabres): Those were the only questions I wished to ask.

THE PRESIDENT: We will adjourn for 10 minutes.

[_A recess was taken._]

THE PRESIDENT: Sir David, did you want to add a reply or did you come in order that we might ask you some questions?

SIR DAVID MAXWELL-FYFE: First, if the Tribunal will allow me, there are three or four points on which I should like to add a word.

The first point that Dr. Kubuschok made was that the procedure of asking for a declaration against the organizations was objectionable for two reasons: First, because it was founded on the limited phenomenon in Anglo-Saxon jurisprudence, that a corporation may be convicted in certain limited spheres; and secondly, that the organizations were in fact dissolved some time ago.

I think it is important to stress that that is not the legal conception which underlies this portion of the Charter. It is really based, in my submission, on a doctrine found in most systems of law, either _res adjudicata_ or the conception of the judgment _in rem_ as opposed to the judgment _in personam_. That is, that it is in the general and public interest that litigation on a particular point should not be interminable, and that, if the appropriate tribunal has come to a decision on a point of general interest and importance, that point should not thereafter be litigated many times.

It is the essential view of the Prosecution here that this Tribunal, having had the advantage of evidence dealing with the whole period and functioning of the Nazi conspiracy, is the appropriate and, indeed, the only suitable tribunal for deciding the question of criminality. It is a prospect which would be quite impracticable and beggars the imagination as to time to consider that every military government or military court should decide one after the other the question of criminality of great organizations like these. And therefore we have in the Charter adopted the procedure that that preliminary question will be decided once and for all by this Tribunal.

The fact that the organizations have been administratively dissolved is irrelevant. What is important is, what was the nature of the organizations when they did function? And that is the issue which the Tribunal has to determine. And we submit and indeed say that it is a clear implication, if not indeed expressly within the words of Article 9, that it must be at the trial of the individual defendants that the question of this criminality should be decided, and we say that apart from considerations of practicality the wording of Article 9 is a clear guide against separation of these issues as suggested by two or three of the Defense Counsel.

I only want to add one word about what has been said on the argument on Law Number 10. Dr. Kubuschok made the point that this procedure really acted entirely against the individual. There are at least two answers: The first, which I have endeavored to give, as to the legal concept behind the idea of a declaration, and the second, the one which has been canvassed before the Tribunal, as to the rights of defense. May I say that, in my submission, membership in an organization is a question of fact and therefore these defenses of duress, fraud, or mistake—to take three examples—must clearly be permissible and good defenses on that question of fact. The third is that every document such as the Charter—the same would apply to every piece of legislation—always contemplates intelligent and reasonable administration in carrying out its requirements, and it would be, in my submission, idle to take the view that where you have a permissive enactment like Law Number 10—and it is clearly permissive as to prosecution—intelligent administration should prosecute every one who could be prosecuted under the act.

In our candid proverb, hard cases make bad law; and in my submission, it would be wrong to decide or interpret on an extremely unlikely hard case.

I want, if I may, to say just one or two words on the argument so interestingly put forward by Dr. Servatius and mentioned a few moments ago by the learned French judge.

In my submission there is no legislative function for this Tribunal whatsoever. There is a clearly judicial function, and I want to make it quite clear; I do not qualify it by “quasi-judicial” or any qualification at all. It is a simple judicial duty. The first portion of that duty is to define what is criminal. In my submission, as Mr. Justice Jackson argued yesterday, that presents no difficulties. It occurs in Article 9, three articles after Article 6, and “criminal“ in that context means an organization whose aims, objects, methods, or activities involved the committing of the crimes set out in Article 6.

When “criminal” has been defined, it is a matter of judicial weighing of evidence to decide whether there is evidence of these crimes being committed by the organization or being the aim or object of the organization, as I have stated. But I respectfully ask the Tribunal to hesitate long before it accepts the argument of Dr. Servatius that this Tribunal should decide the interpretation of “criminal” on its own _a priori_ basis, to use Dr. Servatius’ own words, of politics and ethics. That would be introducing a new, dangerous, and unchartered factor into the Trial. There is, in my submission, a clear line of guidance for the judicial approach, and nothing in the Charter to support the _prima facie_, unexpected idea that a body established as a tribunal should delegate to itself legislative powers.

Again, if I may add just one word as to the conclusions which Dr. Kubuschok drew on the question of criminality as a ground for deciding the relevancy of evidence, his first conclusion was that the organization in question, according to its constitution or charter, did or did not have a criminal aim or purpose.

I accept, of course, the test of aim and purpose, but I do not accept the limitation as to charter or constitution. The criminal aim or purpose may be shown by the declarations or publications of the leaders of the organizations, and also, as I submitted, by its course of conduct in method and action. I agree with Dr. Kubuschok that aim or purpose is the first test, but I do not agree with his limitation as to establishing it.

His second point was that crimes under Article 6 were not committed within or in connection with the organization or were not committed continuously over a period. The first part of that would seem fairly clear, that, if the crimes were not committed within or in connection with the organization, the organization is obviously in a very favorable position. But I first answer the second part by saying that it does not come into the picture of this case that there is any instance of isolated crimes with regard to every organization. The crimes alleged are, in fact, spread over the period alleged in the Indictment, but I suggest that the adoption of such a criterion does not really help. One comes back to the first point of Dr. Kubuschok, that aims or purposes, as disclosed by declarations, methods, or activities, are the primary and most important tests.

Then, the third point that Dr. Kubuschok made was that an appreciable number of members had no knowledge of the criminal aims or of the continuous commission of crimes. I endeavored to stress, as did Mr. Justice Jackson, that the Prosecution’s test is constructive knowledge. That is, ought a reasonable person in the position of a member to have known of these crimes? And that really is the answer, in my respectful submission, to the relevancy of individual knowledge of one particular member.

It is only too true that during the period under discussion a very large number of people made a habit of sticking their heads in the sand and endeavoring to abstain from acquiring knowledge of things that were unpleasant. In my respectful submission, that sort of conduct on the part of a member would not help him at all, and the only answer to that is to adopt the test which we have suggested: Ought a person in that position reasonably to have known of the commission of the crimes?

Dr. Kubuschok’s fourth point is that an appreciable number of members or certain independent groups joined the organization under compulsion or illusion or superior orders. Shortly we answer that by saying that that is only relevant to the defense of an individual member in the subsequent proceedings, and, of course, it is only a defense where he can show that he has taken no personal part in the criminal acts.

Then, the last point which Dr. Kubuschok made was that an appreciable number of members were honorary members. Again we say that that is only relevant to the defense of the individual member, and it does not really alter or increase the defenses open to him.

The only other point of Dr. Kubuschok’s which I do think requires mention is that in considering how evidence could be presented, he said that certain rights of defense are universal. The first of these which he claimed was direct oral testimony, and he said that each individual defendant should have this right. He then admitted that that was practically impossible and suggested as a solution that we must typify, that is, that representatives of groups in the various camps should make affidavits showing what percentage took part in criminal actions or knew about them.

I want to point out to the Tribunal that it is expressly laid down in the Charter that members of the organization are entitled to apply to the Tribunal for leave to be heard, but the Tribunal shall have power to allow or reject the application. As a point of construction no less than of sense, there would have been no point in giving the Tribunal the power to reject the application, if it were implicit that everyone should have the right to be heard.

The answer is that the Tribunal has complete discretion to decide what line and what course shall be taken to procure the evidence. The Prosecution, through Mr. Justice Jackson, has indicated that it makes no objection to any reasonable form of collecting relevant evidence. What the Prosecution objects to is evidence being tendered on the issue before the Tribunal which is only relevant to the question of individual innocence or guilt of the member.

My Lord, I could have dealt, and indeed was prepared to deal, with a number of points raised by the other Counsel for the Defense. I hope they would not think that it is any disrespect to their arguments that I have not dealt with them, but I know that the Tribunal wishes to ask certain questions, and I do not want to trespass on that time. I only want to deal with one point, because it kills with one stone two birds that have flown against our argument in this case.

It will be remembered that when I dealt with the SA yesterday, Dr. Seidl—and I am sorry he is not here—raised the question that the Defendant Frank was not a member of the SA; and Dr. Löffler, in dealing with the SA today, raised the question that its activities no doubt did not really extend after 1939, and not importantly after the purge in 1934.