MR. JUSTICE JACKSON: If the Tribunal please, I am very reluctant to interrupt this examination, but I should like to ask if the Tribunal will avail itself of the Charter provision to require from Counsel a statement as to how this is relevant to the charges which we are engaged in trying.
It raises a rather large and important question, and that question is this, as I see it: It raises a question which involves a great deal of time, if time is an important element in this proceeding.
For the purposes of this statement, I may admit that there were actions taken by partisan groups within occupied territories which were very annoying and very objectionable and very injurious to the would-be conqueror. If it is sought to introduce testimony as to what partisans did toward the German occupying forces, on the theory of reprisal, then I respectfully submit that Counsel is proceeding in reverse order, that is to say, if the Defense says “Yes, we did commit certain atrocities; we did violate international law,” then it may be that the motive—I shall argue that it is not—is relevant under the Hague Convention, but then at least we might have that question presented.
But unless this evidence is offered on the theory that reprisals would be justified, it has no place, I submit, in the case. If it is offered on the basis of establishing a theory of reprisal, our first inquiry is, what is it that reprisals were for? In other words, the doctrine of reprisal can only be invoked when you first admit that you committed certain definite acts in violation of international law. Then your question is whether you were justified. I submit that it might shorten and certainly would clarify this proceeding, if counsel will definitely state as to what acts on the part of the German occupying force he is directing this testimony, as I suppose, to excuse it; and that, unless there is some theory of reprisal pointed out with sufficient definiteness, so that we may identify the violations on Germany’s part for which she is seeking excuse by way of reprisal, this testimony is not helpful in deciding the ultimate question.
The question here is not whether the occupying countries resisted. Of course they resisted. The question is whether acts of the character we have shown can be excused by way of reprisal; and, if so, there must be an admission of those acts, and the doctrine of reprisal must be set forth, it seems to me, much more specifically.
THE PRESIDENT: Yes, Dr. Stahmer.
DR. STAHMER: I have not been able to get all of the statement, because the translation did not quite keep up with it, but I believe that for the following reasons what we have discussed up to now is relevant:
The defendants are accused of the fact that hostages were taken in large numbers and shot and it is maintained that this was not justified; at any rate, the motives which led to the taking of hostages have not, up to now, been discussed, at least not sufficiently. To clarify this question, which is so important for the decisions in this Trial, it is in my opinion absolutely necessary to make it clear that these decrees concerning the arrest and the treatment of hostages were called for by the attitude of the resistance movements. Therefore, in my opinion it could be said with justification that the actions of the resistance movement were the cause for the measures which had to be taken later by the German military authorities, much to their regret.
MR. JUSTICE JACKSON: May I say one word in answer to Dr. Stahmer’s offer, if it be an offer.
The suggestion of Dr. Stahmer that the motives here are to be tried seems to me to lead us very far afield. If he is invoking the international law doctrine of reprisal, then he has to meet the conditions of that doctrine. Article 2 of the Geneva Convention of the 27th of July 1929 provides specifically that measures of reprisal against prisoners of war are prohibited. He therefore must relate it to someone other than prisoners of war. Under the doctrine of reprisal, as we understand it, any act which is claimed to be justified as a reprisal must be related to a specific and continuing violation of international law on the other side. That is, it is not every casual and incidental violation which justifies wholesale reprisals. If it were, then international law could have no foundation, for a breach on one side, however unimportant, would completely absolve the other from any rules of warfare.