THE PRESIDENT: The Tribunal would like to hear what Counsel for the United States says about it.
MR. JUSTICE JACKSON: If Your Honor pleases, I believe it is a well-established principle of international law that a violation on one side does not excuse or warrant violations on the other side. There is, of course, a doctrine of reprisal, but it is clearly not applicable here, on any basis that has been shown.
In the second place, even if the treatment of the subject matter were competent, I think it is being improperly gone into in this manner. Here is a broad question, “Did you hear of violations of international law?” It would at least, even if the subject were proper, require that some particularity of a case be given. A broad conclusion of a charge—a violation of international law—would hardly be sufficient to inform this Tribunal as to the basis on which this witness may have acted.
If there were some specific instance, with credible information called to his attention, there might be some basis; but surely the question as asked by counsel does not afford a basis here.
It seems to me we are getting far afield from the charges here and that this is far afield from anything that is involved in the case. I do not know what particular atrocities or violations of international law are to be excused by this method. There must have been atrocities committed, on the basis of which there is sought to be excused atrocities committed by somebody else. Who else committed them, why they were committed, is a subject we might have to try if we went into this subject. It seems to me that the inquiry is quite beside the point, and even if it were not, if there were any way that it is within the point, it is improperly put in this manner.
DR. STAHMER: This question, which is of fundamental importance, was argued before this Tribunal some time ago. This was when I applied for permission to be given to produce White Books containing reports on atrocities. I think it was during the sitting of 25 February.
At that time Professor Exner defined his attitude to this question and the Tribunal then permitted me to produce these White Books, with the proviso that I would still have to state what I intended to present from these books.
Already on that occasion attention was drawn to the importance of the question of whether atrocities were committed by the other side as well, because this very point may contribute to a more just and possibly to a more lenient judgment of German behavior. The motive of an act has always a decisive bearing on the findings, and the view will be taken here that an act on the German part will be judged differently if the other side has not really shown entirely correct behavior.
Furthermore it is an important question whether measures taken may have been reprisals. On the strength of these considerations I hold that this important question should be admitted.
THE PRESIDENT: The Tribunal will adjourn for 10 minutes.