We weren't out of ammunition when the surrender took place, and the physical power to execute anyone was present. the judgment of this Tribunal the question of the criminality of these organizations. And it seems to me a little trying on the patience of representatives of those powers to be told that back of this is some purpose to wreak vengeance on innocent people. I think it is difficult for those who have survived this Nazi regime to understand how reluctant we are to kill any human being. It is a commentary on the stateof mind that survived this Nazi regime rather than upon us.
Now, Control Council Act Number 10--I don't know whether your Honors have copies of that. Control Council Act Number 10 does make membership in the categories which may be convicted a crime, and I think it ought to. It ought to be sufficient to bring before a Tribunal inquiring into the detail of each individual any individual who is a member, and that is all that we have here in a declaration, in substance, an indictment which enables you to put the individual on trial. and so long as the death penalty is imposed by any society for anything, the penalty of death ought to follow in some of these cases. The SS men who were responsible for the destruction of the Warsaw Ghetto, for example, or SS men who are shown to have been responsible for the top planning, even though they didn't actually participate, 3 of Act Number 10, the slightest penalties are also provided. The restitution of property wrongfully acquired is one of the penalties that may be imposed. The deprivation of some or all civil rights is another. And during this period of reconstruction of German society, those minor penalties may very well be imposed upon people who entered into these organized plans. If not, you have the situation that the people who organized themselves to force this Nazi program, first on the German people and then on the world, are treated exactly the same as the German who was the victim of it.
Now, isn't it our duty as occupying powers of a prostrate country to draw some distinction between those who organized to bring on this catastrophe and those who were passive and helpless in the face of overwhelming power?
tering the affairs, an SA man has been made a councillor in one of the districts. There is no purpose, because a man happened to get into the SA, to take his life or to take his property or to condemn him to hard labor for life. There is a purpose to have the basis for bringing these people in for what the military people call a "screening" and find out what kind of people they are and what they have been up to. drafted it in the language it is drafted in, this Control Council leaves, in the first place, discretion as to whether prosecutions will take place in the hands of the occupying powers. I have no idea that 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 don't 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 program of dealing with these people.
Now, I want to make clear why it is that we don't want to go into this trial to this question of each of thesemany sub-divisions of these Nasi 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 tiral of each of these sub-divisions would tike--I wouldn't venture to say how long. Now, we don't want to see this court trivialized. This isn't a police court. This wasn't set up to be a police court, and this is the 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 without the definition.
I don't 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 don't know whether SS motorcycle mounted traffic officers are less dangerous than those who don't have motorcycles, or less criminal, but I should have a suspicion that the greater the mobility the more active the group was in carrying out these widespread offenses.
I don't know abort the physicians. I don't think it is up to us to try it in this case, but I suspect that a medical corps meant there might be soma casualties, and this thing isn't innocent on its face, as it appears. This 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 questions.
Now, it isn't necessary to go into the group any more than it is the individual, and if you go into the group I know of no reason why you shouldn't go into the individual, because if the group is within the general contour, each member of that group to entitled to his hearing before he is condemned. It may very well be that the occupying authorities will decide that the whole group isn't 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 prosecuting 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 determination as to each group. no point inhaving a hearing for sub-groups, between the individualand the principal organization that we ask to have declared guilty. decide just who is in and who is out of the circle of guilt, there would be no reason why the Charter wouldn't have given you power to sentence. There would be no reason for further trials. 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 weremere members and not of officer rank of any capacity should not be punished. We can't say just what will be necessary.
Frankly, I don't know just what man power is going to be available for the United States' part in the follow-up of these trials. There are difficulties which I don't 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. question, which I will be glad to answer. THE PRESIDENT: Justice Jackson, there are one or two questions I should like to put up to you. bearing, the words at the end of Article 11, where its provides that "Such court" -- in the independant of and additional to the punishment imposed by the Tribunal for participation in the criminal activity of such groups or organizations."
Do the wrods "for participation in the criminal activity of such groups or organisations" add anything to the definition of the word "membership" in Article 10?
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 language 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 the language I am not proud of.
THE PRESIDENT: Secondly, would an individual who was being tried before a National Court be heard on the question whether, in Pact, he knew of the criminal object of the group?
JUSTICE JACKSON: Well, I think he would be heard on that subject, but I don't think it would be what we in the United Stated would call a complete defense. It would perhaps be a partial defense or irrigation. I should think that the Tribunal might well, the court trying it, might well have felt that he should have known under the circumstances what has organization was, despite his denial that he did not; and that his denial, if believed, would weigh in mitigation rather than in complete defense. In other words, I do not believe that you can make 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 wasn't for the Tribunal to limit or define the groups which were to be declared criminal, but as the Charter does not define them, isn't it necessary for the Tribunal to define what the group is?
JUSTICE JACKSON: I think it is necessary for the Tribunal to identify the group which it is condemning sufficiently so that it would afford a basis for bringing the members to trial for membership.
I don't think it is necessary to define the exact contours 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 little section of the SS that on trial would be said to be not guilty of participating in the crimes of the organization, I don't think it is up to this Tribunal to take evidence, because if you take evidence as to some you must as to all.
The SS is a well known organization. Its contour is easily defined by membership, and within those contours it doesn't 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?
JUSTICE JACKSON: I do not think that would be necessary. I think when the member was brought to trial -- one may be a conscript and still have remained in on a voluntary basis, or he may have gone beyond his duty as a conscript. I don't think it is necessary at this stage of the proceeding, 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 defining either the group or giving a definition of the word "membership".
JUSTICE JACKSON: Well, if your Honor please, I think every Tribunal in its judgment has a right to include in its judgment provisions which will prevent its abuse. I don't 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, if the National Courts brought these persons to trial and paid no attention to the declaration. I don't 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 thick this Court could direct the National Court to take any particular defenses into consideration?
JUSTICE JACKSON: I don't know that it could put it in just that way, but I suppose it could define the categories in 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 control. When you get away from the declaration, I think you would have no control over the Courts. But insofar as they relied on the declaration you would have power to control the effect of the 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?
JUSTICE JACKSON: I have nothing to add to that, your Lordship. I realize 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 of these things. But I will state to this Tribunal categorically -- I don't know to what camp it was referred to yesterday as substantially refusing counsel's application to see their clients -- but so for as the American zone is concerned counsel, if they are properly cleared to go there, will be given every facility to get every Kind of evidence that is available in than camp. If they are there at mealtimes they will be fed, and if they are there at night they will be sheltered . We will put everything in their way to help them that is possible.
Of course there are security problems involved, and counsel can't just walk in a camp and make himself at home. He will have to be cleared in advance so that they meet the security requirements; but there is no purpose to obstruct, and there is every purpose to assist.
THE PRESIDENT: Thank you.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I'd 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 request one or two of those. Most of them are directed for the purpose of this argument, which I take it is to form some kind of definition of the organization, which may of course not be final but will at least give us a view of what should be relevant to the defendants making up their cases.
So the questions are addressed to that rather than any ultimate theory of definition. in the Gestapo. Well, now, if we accepted that, would we not be obliged to exclude such categories from other criminal organizations?
JUSTICE JACKSON: Not at all, I think, your Honor. I think there is a difference between a concession by the Prosecution and either the necessity for the Court making a decision or a decision by the Tribunal. janitors of the Gestapo were not to be included, that no clerks, stenographers or janitors should be included. It doesn't follow, The relationship in different organizations differ. stenographers and janitors in that organization ought not to be included, and we don't want to waste any time on it.
MR. BIDDLE: What is the reason for that, that those clerks would not have had knowledge of what is going on in the Gestapo?
JUSTICE JACKSON: I don't think they either had sufficient knowledge, in general, to be held, now that that they had sufficient power to do anything about it if they did. questions that the Court inevitably gets into if it undertakes to draw these lines itself rather than letting them be drawn administratively by what we choose to prosecute -- is just illustrated by this sort of thing. ought to be logical perhaps. I have always thought that was the great merit of the jury system; that juries don't have to be, and in prosecuting we don't have to be. It may look illogical to exempt small people in one organization and not in another, but there were differences in them. meeting by the Defendant Goering that chauffeurs to certain officers had profitted to the extent of half a million Reichsmarks out of Jewish property that they had gotten their hands on.
Now, I suppose ordinarily you'd 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 state it further -- and I think it will be assumed -- the United States isn't interested in coming over here 3500 miles to prosecute clerks and stenographers and janitors. That isn't the class of crime, even if they did have some knowledge, that we are after, because that isn't the class of offending 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 they have some guilty connection beyond merely performing routine tasks -- will be prosecuted as a bigger problem as we have on hand here.
THE TRIBUNAL (Mr. Biddle): But in spite of that, you would include them in the Einsatz, let us say?
MR. JUSTICE JACKSON: I would not exclude them.
MR. BIDDLE: I take it, you would include them.
MR. JUSTICE JACKSON: If they were members, they would be included; if they were merely -
MR. BIDDLE: Yes.
MR. JUSTICE JACKSON: 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 the government agency.
MR. BIDDLE: Now, somewhat along these 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 memberships in general may properly be charged with knowledge of them. what the President asked you; but perhaps to specify a little more, would it not be inconsistent with that test which you surest 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 a substantial segment could be shown to be innocent under these tests, would not it be necessary either to decline a declaration on that ground, that the criterion -- that the criteria were not generally satisfied as to the accused organization or else exclude the innocent segments from the deposition of the criminal organization?
the test is the knowledge or assumed knowledge, that a very large segment did not and probably could not have had knowledge that would be relevant not only for the purposes of evidence but for the purposes of definition?
MR. NUSTICE JACKSON: Well, I think you have at least two ideas in the question of what must be dealt with separately. The first is conscription and knowledge, to my way of thinking, presents a very different problem. 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 didn't seek to reach conscripted men -- if the overwhelming power of the State puts them in that position, I don't think we should pursue them for it. was conscripted, that raises a question of fact.
MR. BIDDLE: Yes.
MR. JUSTICE JACKSON: And it raises a question of fact that we would be three weeks trying, and that is what I want to avoid, because there were Waffen SS's and other 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, is what is properly left to the future course, the question as to whether an individual or a number of individuals come 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.
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 this is infinitely more difficult. We don't want to set up a trap for innocent people. We are not so hard up for somebody to try so 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 the 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 conviction, 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 that the principal organizations of the Nazi Party were responsible for those things. The test that I think which applies as to knowledge is not what some member now on the witness stand may say, that he knew or didn't know, but what in the light of the conditions of the times ought to have known what he is chargeable with.
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.
MR. BIDDLE: Do you claim that the defendants should not be permitted to give any evidence as to what was generally known with respect to what was going on?
MR. JUSTICE JACKSON: To what was generally known, I don't think the defendant's denial that he knew what was going on has any materiality.
MR. BIDDLE: That wans't 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: Well, I would, I would, I certainly would, and if I heard it I wouldn't believe it; but perhaps my -
MR. BIDDLE: Excuse me. Although on your test of knowledge, you wouldn' permit the defendants to neat 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 didn't 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 established and the repeated daily connection between the organizations of this criminal program is so clear.
THE PRESIDENT : The German translation doesn't seem to be coming through.
MR. JUSTICE JACKSON: I am sorry.
MR. BIDDLE: Did you finish? Mr. 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 would warn you of this. 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.
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 German 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.
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. 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 way 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 don't know such a man.
MR. BIDDLE: Mr. Jackson, there is only one more question I should like to address to Law No. 10. I am a little puzzled myself' on Law No. 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.
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 a proper question?
MR. JUSTICE JACKSON: Well, I think I would not have made these penalties of this Act apply to all of the crimes. 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 these penalties from death down to deprivation of the right to vote in the next election.
MR. BIDDLE: And you would not have made the death penalty to the members of the SA who resigned in 1922?
MR. JUSTICE JACKSON: No, I would not have, and I think in that way I would have been more exclusive.
to try to make the penalty or the punishment fit the crime, rather than leave it wide open.
THE TRIBUNAL (Mr. Biddle): Mr. Jackson, what defenses do you think are permitted under the Control Counsel Law? We have to assume that the members of the Tribunal will permit certain defenses of any defense expressly permitted.
JUSTICE JACKSON: No, no defenses expressly permitted. I take it any defense which goes to the genuineness of the membership is at the volition of the individual; duress, fraud - and by duress I mean the legal definition of duress - I don't think that the fact that he has had good business, and the fact that man is to contend that the customers may leave him if he does not join the party, that is not duress, or anything that goes to the genuineness of his membership.
MR. BIDDLE: One more question. If the Tribunal were of the view that a declaration of criminality of the organization is an essential 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 Counsel 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?
JUSTICE JACKSON: I would not think so, Your Honor. I think that this Tribunal was constituted by the power to determine, and for the purposes of determining on the record such facts after hearing of the evidence, and, after knowing the facts, determining what organizations were of such a character that the members ought to be put to trial for such membership. not constituted as this might be, either administratively or some other way, to reach that same result, I don't think this is proper consideration. Of course, you could punish these members without anything, we have them in our power and in our camps. But the Governments have decided they want themselves to decide any issues 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 Counsel to do it, irrespective of what they do to you.
JUSTICE JACKSON: I don't know of any limitations on the power of the Control Counsel. There is no constitution. It is a case of the victor and the vanquished, and I think that is one reason why, however, we should be very careful to observe the request of our nation to proceed in this way. We are in the position where there is no restraint in the power except from physical power, and mighty little of that today. They are 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 to discredit that process, or to avoid it.
MR. BIDDLE: That is 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 a declaration of criminality of an organization. Suppose that you belonged to one of the organizations classified as criminal, for instance, a SS, or a member of the Gestapo, is brought before the jurisdiction - the military jurisdiction of an occupying authority. In consequence of what has been said so far, he might be able to justify himself by proving that his membership in the group was a false membership. He was not a volunteer; if I understood correctly, he would also be able to justify himself by establishing that he never know of the criminal capacitie* of the association. That fact is, at least, the interpretation which has been consecrated by our ministry, and which we consider exact; however better to suppose that the Court just being considered at the moment is a different nation. I suppose that it designates from the condemnation that the individual himself was a member of the criminal organization, or, which is new a bigotry organization, and that an automatic condemnation definitely does less, is that the interpretation which has been defined by Mr. Jackson This interpretation is written in no text, and does not find itself in the statute. In consequence of which by virtue of what text would the Tribunal, itself being considered, be obliged to conform to the interpretation?
JUSTICE JACKSON: The control of the future Tribunal is the control of the effect of the declaration on this Tribunal.
This Tribunal's effect when brought before a subsequent tribunal is defined by the Charter, and this is only the effect that the issue has as to whether the organization as is criminal cannot be retried. That there would be no such thing as automatic condemnation, because the authority given in the Charter is to bring a person to trial for a membership. It would, of course, be incumbent on the prosecutio on an ordinary principle of jurisprudence to prove membership. I think proof that one had joined would be sufficient to discharge that burden, but then the question might be raised by the defense that he had defenses, such as duress, force against his person. Such threats of force would be raisable, and would have to be tried, but the Charter does authorize any use of the declaration by this Tribunal except as a basis for bringing, the members to trial.
M. de Vabres: I understand well this authority of the Military Court of the International Tribunal which would be imposed in the particular jurisdiction of the States, and oblige them to consecrate the interpretation it would have to consider. But in that case in concluding with your thought, Mr. Jackson, the judgment of the International Military Tribunal, the judgment which we will deliver, will have to contain some precise definition on this topic. Mr. Jackson said, however, a few moments ago, and I am in agreement with Mr. Biddle, that the statute permits us to define a criminal organization. That would be in our opinion not only a determination of the group which We consider criminal, but also a definition of a criminal organization, and from that in some manner there would be a precise definition concerning the cases of responsibility of false membership, and precise definition which the particular court of the States would be forced to respect. Do I understand Mr. Jackson's thought correctly.
In that case the question which I ask is the following: and is similar to that of Mr. Biddle: It is not always granted to consider our judgment a certain legislative character, we are not an ordinary court since we are consecrated to give a decision, such as a decision of a criminal organization, which generally includes this law, and at the same to use a decision which contains a disposition that limits the cases for individual responsibility.
That is to say in brief we are to a certain extent legislative as indeed we so heard from you yesterday.
JUSTICE JACKSON: This is something in the nature of legislative, but under the nature of the Indictment you may treat either analogy, and I don't see anything about that, if I understand it, which is a complicated problem. In the United States we have a strict separation of legislative from the judicial power, and nothing in that power which controls this Tribunal, and whether you treat the analogy, as to the Indictment, which you be accusing by your finding in your declaration, or, whether you treat the analogy as legislative, it would be in all sense of the word as an act of the four powers, since they are not required to withhold any power from the Tribunal.
M. de Vabres: Yes, yes.
THE TRIBUNAL (M. DeVabres): Yes. The question which I have just asked seems to have only theoretical interest. This is, however, the practical consequence which I would be tempted to consider, and on which I would like to hear your opinion: incrimination and admit causes of responsibility 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 sanctions, which are not individual sanctions, since they can extend as far as the death penalty. against humanity. But isn't it too much, if we consider the manner of a crime, which in France would be considered purely material, such as the crime of belonging to a criminal organization--would it not be too much for us to foresee the death penalty, and in that case the International Military Tribunal might be forced to reduce to some extent the notion of a criminal organization, merely because we consider the possibility of this penalty being too severe? Does this include our being able to formulate a penalty, or at least a maximum penalty, which might be applied 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 is given to this Tribunal other than the Defendants on trial; 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.