dtufail/nuremberg-trials-corpus huggingface dataset:
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 dines 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 Goering 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. 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 crones. 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?