Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-71.06
Last-Modified: 1999/11/22

This Control Council Act, while I am frank enough to say I
would not have drafted it in its existing form 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
overall programme 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. Now, we do not want to see this
court treated lightly. This is not a police court. This was
not set up to be a police court, and it would be 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 definitions.

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 offences.

I do not know about the physicians. I do not think it is for
us to try it in this case, but I suspect that a medical
corps meant that there might be some casualties; and this
thing is not as innocent as it appears on the surface. It
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 deal with the group any more than it
is the individual, and if you deal with the group I know of
no reason why you should not do the same with 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 prosecute 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 decision 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 sub-groups
between the individual and the principal organization that
we ask to have declared guilty.

                                                   [Page 97]

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 for the Charter not having
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 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 wording 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 I am not
proud of the wording.

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 these
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 defence. It would
perhaps be a partial defence or mitigation. I should think
that the court trying it might well have felt that he should
have known in 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
defence. In other words, I do not believe that you can take,
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, is it not necessary for the Tribunal to define what
the group is?

                                                   [Page 98]

MR. JUSTICE JACKSON: I think it is necessary for the
Tribunal to identify the groups which it is condemning
sufficiently to afford a basis for bringing the members to
trial for membership. I do not think it is necessary to
define the exact bounds 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 small 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
those elements.

The SS is a well-known organization. Its limit is easily
defined by membership, and within those limits 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 is brought to trial - he may have
been a conscript and still have remained a voluntary member,
or he may have gone beyond his duty as a conscript. I do not
think it is necessary at this stage of the proceedings,
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 Honour pleases, I think
every Tribunal in its judgement has a right to include
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 whether the National Courts bring
these persons to trial and pay 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 judgement against abuse.

THE PRESIDENT : Do you think this Court could direct the
National Court to take any particular defences 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 such 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 jurisdiction. When you get away from the
declaration, I think you would have no jurisdiction over the
National Courts. But in so far as they relied on the
declaration, you would have power to control the effect of
that 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 realise 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 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 counsel's application to see their
clients - but so far as the

                                                   [Page 99]

American zone is concerned, counsel, if they are properly
authorized 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 do all we
can to help them that is.

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 authorized in advance so that he meets the
security requirements; but there is no intention to
obstruct, and there is every intention to assist.

THE PRESIDENT: Thank you.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I would 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'
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 commissionaires 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 Honour. I think there
is a difference between a concession by the prosecution and
either the need for the Tribunal to make a decision, or a
decision so made by the Tribunal.

It might appear logical that if we conceded that clerks,
stenographers and commissionaires of the Gestapo were not to
be included, that no clerks, stenographers or
commissionaires would 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 commissionaires in
that organization ought not to be included, and we do not
want to waste any time on it.

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 charged, 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 must deal
with if it undertakes to define these lines itself rather
than let them be drawn administratively - is illustrated by
just this sort of thing.

One of the difficulties of the Tribunal is that it tries to
be logical, and perhaps ought to be so. 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 session by the defendant
Goering, that chauffeurs to certain officers had profited to
the extent of a half million Reichsmark from Jewish property
that they had seized.

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 find a great deal of difference in their
relationships.

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 commissionaires. That is not
the class of

                                                  [Page 100]

crime, even if these men 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 a case of this magnitude.

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.

MR. BIDDLE: I take it that would mean you 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.

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