THE TRIBUNAL (Mr. Biddle): Those are all the questions I have to ask.
THE TRIBUNAL (Professeur Donnedieu de Vabres, Member for the French Republic): 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 the tribunal in question 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 the future tribunal is the control of the effect of the declaration of this Tribunal. This Tribunal’s effect, when brought before a subsequent tribunal, is defined by the Charter, and it has only the effect that the issue as to whether the organization is criminal cannot be retried. 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 question could be raised by the defendant that he had defenses, such as duress, force against his person, 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.
THE TRIBUNAL (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 judgment of the International Military Tribunal, the judgment which we shall pass, will have to contain a precise definition of this subject. Mr. Jackson said, however, a few moments ago, in agreement I think with Mr. Biddle, that the statute of the Charter permits us to define a criminal organization. Our judgment 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 tribunals of the respective states would be forced to respect. Do I understand Mr. Jackson’s thought 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 judgment 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 judgment 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 about 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, your declaration, 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.
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 consequence which I should consider, which I should be tempted to draw, and on which I would like to hear your opinion:
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?