Perhaps I also ought to say that this does not affect—it does not refer directly to defendants’ counsel who represent the criminal organizations. Those counsel will be heard after the close of the Prosecution’s case, as has already been announced.
Next would be Hess.
SIR DAVID MAXWELL-FYFE: I only want to say that if the Tribunal did desire to hear anything on the question of reprisals, which was raised by Dr. Exner, Mr. Dodd is prepared, if the Tribunal would care to hear further matter on it.
THE PRESIDENT: Yes. The Tribunal would like to hear that now.
MR. THOMAS J. DODD (Executive Trial Counsel for the United States): May it please the Tribunal, I wish to say at the very outset, that I have made a rather hurried preparation during the noon recess of the few notes on this subject based on some work which we had done a little earlier. I am not altogether prepared to go into the matter to any great extent at this time, but I did want to call to the attention of the Tribunal a few of these notes that we have prepared, and to say that, in view of Dr. Exner’s contention that some of the documents which are offered by the Defense, or which they intend or hope to offer, are admissible on the theory or under the doctrine of reprisal.
We would like to say to the Tribunal that the Convention of 1929 concerning the treatment of prisoners of war expressly prohibits altogether the use of reprisals against prisoners of war. Parenthetically, I might say that the United States prohibited in its Army instructions reprisals against prisoners of war as early as 1862 or 1863.
Secondly, I should like to point out that the Hague regulations do not mention at all, insofar as we are able to ascertain, the use of so-called “reprisal action” against civilians.
It appears that the Brussels conference of 1874, which accepted the unratified Brussels Declaration, so-called in international law—that conference rejected or struck out several sections which were proposed by the Russians at that time, having to do with the use of reprisal action against civilians. I cite that because it is interesting and indicates that the powers were certainly thinking about the matter of reprisals against civilians as early as then.
Thirdly, I should like to point out to the Tribunal that it is commonly said by the writers on this subject that before reprisal action may be taken a notice of some character is usually required, and this reprisal action is directed against some specific instance which the first power believes to be offensive and which it believes may call for or justify the use of reprisal action. So that some notice of some kind seems to be required by the power which feels it has been offended to the offending power.
I might say that in the Prosecution’s case-in-chief we specifically avoided any reference to the well-known incident during this war of the shackling of prisoners of war, because there, there was some color of notice, and the matter was resolved by the powers concerned.