The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/22

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 clarify the matter 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 the
grounds, that the criteria as to the accused organization
were not satisfactory or else to exclude the innocent
segments from the charge of being a 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: I think there are at least two points
in that 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 sees fit to condition its judgement not to apply to
conscripted members of any organization, I shall have no
quarrel with it. I have always conceded, that we did not
seek to charge conscripted men - if the overwhelming power
of the State put 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.


MR. JUSTICE JACKSON: And it raises a question of fact that
would take three weeks to try and that is what I want to
avoid, because there were different categories of the Waffen
SS's, 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,
would be properly left to future proceedings, 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.

                                                  [Page 101]

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

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 a trap for innocent
people. We are not so hard up for somebody to try that we
have to hunt down and 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 time, 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.

MR. BIDDLE: Would it not 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

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: As to what was generally known, I do
not think the defendant's denial that he knew what was going
on is, in any way, material.

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....

MR. BIDDLE: Excuse me. Although on your test of knowledge,
you would not permit the defendants to meet that test?

MR. JUSTICE JACKSON: I should say that that is just exactly
the situation, that the Tribunal would take judicial notice,
from the evidence available, that this was a thing that must
have been known in Germany, and I do not think that 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
with knowledge of which he is chargeable, and it seems to me
that the magnitude of these things is equally established
and the repeatedly daily connection between the
organizations and this criminal programme is equally clear.

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.

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.

                                                  [Page 102]

MR. BIDDLE: I shall direct the question to you as a lawyer
and not as an expert in military matters. Assume that one of
these individuals became an Army Group Commander after the
wars of aggression had been proposed, planned, initiated -
approximately, that would be after 1942, let us say - after
Pearl Harbour, 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 be so.

MR. BIDDLE: The reason I asked you that, Mr. Justice
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 becomes a
member, he ratifies what has gone before, and it would seem
to me that when he comes into the picture at that point, it
is an agreement with all that had gone before, according to
the generally accepted concept 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 of all that the
Nazi Party had done, who never became a member of it, who
stood out against it and publicly made his position clear,
who took no part in the war until the day his country was
being invaded, and said: "I do not care what happened
before; my country is being invaded and I shall now go to
its defence," I would have difficulty in convicting that
man. I do not know such a man.

MR. BIDDLE: Mr. Justice Jackson, there is only one more
question I should like to address in connection with Law No.
10. I am a little puzzled myself about Law No. 10, the
Control Council Law of 20th December. 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 presume, they can do that easily
without any help on our part.

MR. JUSTICE JACKSON: That is right.

MR. BIDDLE: Now, you said something very interesting. You
said the Act would not have been so, if you had drafted it.
How would you have drafted it, if that is not an improper

MR. JUSTICE JACKSON: Well, I think I would not have made the
penalties of this Act apply to all of the crimes. You have a
whole list of crimes which, to my mind, range from the very
major 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.

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 have tried to make the punishment
fit the crime, rather than leave it open.

MR. BIDDLE: Mr. Justice Jackson, what defences do you think
are expressly permitted under the Control Council Law? Do we
not have to assume that the members of the Tribunal will
sanction certain defences or any defences expressly

MR. JUSTICE JACKSON: No, no defence is expressly permitted.
I take it that any defence which applies to the genuineness
of membership, such 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, makes
duress, but anything which goes to the genuineness of his

                                                  [Page 103]

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 defence 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 they 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 Honour. 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 body which does not have hearing
processes* [NB. See Article 9, para. 2, of the Charter and
Article 7(e) of the Charter.] 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 view to
take. I should think it would be 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 view.

Of course, you could punish these members without further
action. 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 ....

MR. BIDDLE: But you have no doubt of the power of the
Control Council to do it, irrespective of what we do, have

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 very 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.

MR. BIDDLE: Those are all the questions I have to ask.

THE TRIBUNAL (M. de Vabres): 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 this Tribunal 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 any future courts will
depend on the declaration of this Tribunal. This Tribunal's
judgement, when brought before a subsequent court, is
defined by the Charter, and it has only the effect that the
issue as to whether the organization is criminal cannot be

                                                  [Page 104]
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 points could be raised by the defendant that he had
defences, such as duress, force against his person, or
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

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 judgement of the International Military
Tribunal, the judgement which we shall pass, will have to
contain a precise definition of this subject. Mr. Jackson
said, however, a few months ago, in agreement I think with
Mr. Biddle, that the statute of the Charter permits us to
define a criminal organization. Our judgement 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 courts of the respective States would
be forced to respect. Do I understand Mr. Jackson 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 judgement 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 judgement 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 in 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, 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.

M. DE VABRES: Yes, yes. The question which I have just asked
seems to be of theoretical interest only. This is, however,
the practical conclusion which I should consider, which I
should be tempted to draw, and on which I would like to hear
your opinions.

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?

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