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 7 of 9)

[Page 100]

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 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 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 knowledge.

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 question?

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 permitted?

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 membership.

[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 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 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 retried.

[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 trial.

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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