Secondly, anything which is claimed to be justified as a reprisal must follow within a reasonable time and it must be related reasonably to the offense which it is sought to prevent. That is, you cannot by way of reprisal engage in wholesale slaughter in order to vindicate a single murder. Next it must be shown as to the reprisals that a protest was made, as a basis for invoking reprisals. You cannot engage in reprisals without notice. The reprisal must be noticed and there must be notification by a responsible party of the government.
And next, and most important, a deliberate course of violation of international law cannot be shielded as a reprisal. Specific acts must be reprisals for specific acts under the conditions I have pointed out. You cannot vindicate a reign of terror under the doctrine of reprisals; and so I respectfully submit that the offer of Dr. Stahmer to inquire into the motives of Göring individually, or of all defendants collectively, or of Germany, does not meet any legal test. It might be pointed out to the Tribunal by way of mitigation of sentence after conviction, but is not a proper consideration on the question of guilt or innocence of the charges which we have brought to the bar.
THE PRESIDENT: Mr. Justice Jackson, I understood you to agree that this sort of evidence might be relevant in mitigation of sentence?
MR. JUSTICE JACKSON: I think if Your Honors find the defendants guilty, then it comes to the question of sentence, as is our practice. You might find almost anything that a defendant saw fit to urge relevant to the sentence, but I do not take it that Dr. Stahmer is now dealing with the question of offers relevant to that subject. If it is, I should consent that any plea for leniency be heard, of course. It is offered, as I understand it, on the question of guilt.
THE PRESIDENT: That may be so, but the Tribunal may consider it more convenient to hear the evidence now. The Charter, as far as I see, has not provided for any evidence to be given after conviction, if a defendant is convicted. Therefore any evidence which would have to be given in mitigation would be given now.
MR. JUSTICE JACKSON: The difficulty with that, I should think, would be this: that a defendant may very well be found guilty on some counts but not on others. That would require at this time the litigation of the question of sentence, two-thirds of which might be irrelevant because he might not be found guilty on more than one count.
I may be biased in favor of the practice that I know, or at least may be presumed to have some knowledge of. In our procedure the question of guilt is tried first. The question of sentence is a separate subject, to be determined after the verdict. I should think that would be the logical way to proceed here. And I understand that this—and I think Dr. Stahmer confirms my view—that this is not offered on the question of sentence. I do not think he concedes he has reached that point yet.
DR. STAHMER: May I briefly comment on the legal question? It is maintained, or at least this side asserts, that violations of international law were committed in France to a large extent by organizing guerrilla warfare. The struggle against these actions, which do not conform to international law, could be carried out by reprisals, as has just been expounded by Mr. Justice Jackson. It is correct that there were certain reasons for the application of reprisals, but in my opinion it is questionable if such . . .
THE PRESIDENT: May I ask whether you agree that the conditions which Mr. Justice Jackson stated are accurately stated?
DR. STAHMER: Yes, but we have to deal here, in my opinion, with the fact of an emergency, caused by conduct violating international law, that is by unleashing guerrilla warfare. This fact justified the army commanders to take general measures in order to remove these conditions brought about illegally. Therefore, at any rate, these facts are of importance for determining the verdict.