MR. JUSTICE JACKSON: 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.
THE TRIBUNAL (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 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.
THE TRIBUNAL (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.
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 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 war 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 do not know such a man.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, there is only one more question I should like to address in connection with Law Number 10. I am a little puzzled myself on Law Number 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.
THE TRIBUNAL (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 an improper 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 those crimes, penalties from death down to deprivation of the right to vote in the next election.