The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-First Day: Friday, 1st March, 1946
(Part 6 of 9)

[DR LATERNSER continues]

[Page 96]

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 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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