THE TRIBUNAL (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 specify 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 that ground—that the criteria were not generally satisfied as to the accused organization—or else to exclude the innocent segments from the deposition of the 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: Well, I think you have at least two ideas in the 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 saw fit 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 did not seek to reach conscripted men. If the overwhelming power of the state puts 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.
THE TRIBUNAL (Mr. Biddle): Yes.
MR. JUSTICE JACKSON: And it raises a question of fact that we would be 3 weeks trying and that is what I want to avoid, because there were Waffen-SS and other Waffen-SS 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 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.
THE TRIBUNAL (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 up a trap for innocent people. We are not so hard up for somebody to try 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 their political opposition and to imprison Jews and the terrible things that were going on in these camps.