Earlier, Mr. Biddle and Mr. Jackson were considering Article 10, and Mr. Jackson expressed some criticism concerning the penalties, which are not individualized penalties, since they can extend as far as the death penalty, as far as capital punishment.
There are, of course, some crimes for which capital punishment seems justified, such as Crimes against Humanity. But is it not going too far, to consider imposing the death penalty as the maximum for a crime which in France would perhaps be considered purely “material”—the crime of belonging to a criminal organization? Would it not be too severe for us to impose the death penalty? And might not the International Military Tribunal be forced to reduce unduly the notion of a criminal organization, precisely because we consider the possibility of this penalty being too severe? In other words, does Mr. Jackson absolutely exclude for the International Military Tribunal the power to fix a penalty, or at least a maximum penalty, 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 other than the defendants on trial is given to this Tribunal; 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.
The power, however, of sentence for membership is not even remotely conferred upon the Tribunal, and I would think that that would be a rather drastic expansion of its power.
THE TRIBUNAL (M. De Vabres): Those were the only questions I wished to ask.
THE PRESIDENT: We will adjourn for 10 minutes.
[A recess was taken.]
THE PRESIDENT: Sir David, did you want to add a reply or did you come in order that we might ask you some questions?
SIR DAVID MAXWELL-FYFE: First, if the Tribunal will allow me, there are three or four points on which I should like to add a word.
The first point that Dr. Kubuschok made was that the procedure of asking for a declaration against the organizations was objectionable for two reasons: First, because it was founded on the limited phenomenon in Anglo-Saxon jurisprudence, that a corporation may be convicted in certain limited spheres; and secondly, that the organizations were in fact dissolved some time ago.