The Nuremberg Trials: Complete Tribunal Proceedings (V. 2). International Military Tribunal

of the Provisional Government of France and of the Soviet Government were, like ourselves, as representing the British Government, opposed to the addition of any defendant involving any delay in the commencement of these proceedings. I take no technical point upon that at all. I am content that you should deal with the matter now, as if the Chief Prosecutors had had a further meeting, and as a committee, in the way that they are required to act under the Charter, had by majority decided to make this application. I mention the matter only to explain the position in which I find myself, as the representative of the British Government, in regard to it. At the last meeting of Chief Prosecutors, there was agreement with the British view. The representatives of the other two States, as they were quite entitled to do, have since that meeting come to a different conclusion. Well, now, Sir, so far as that application is concerned, I would say only this: The case against the existing defendants, whether Gustav Krupp von Bohlen is included amongst them or not, can be fully established without the joinder of any additional person, whoever he might be. The general part played by the industrialists can be fully established without the joinder of any particular industrialist, whoever he might be. That case will indeed be developed, and will be made clear in the course of this Trial. That is not to say that Alfried Krupp should not be brought to justice. There is provision under the Charter for the holding of further trials, and it may be according to the result of the present proceedings, that hereafter other proceedings ought to be taken, possibly against Alfried Krupp, possibly against other industrialists, possibly against other people as well. At present, we are concerned with the existing defendants. For our part, the case against them has been ready for some time, and it can be shortly and succinctly stated; and in my submission to the Tribunal, the interests of justice demand, and world opinion expects, that these men should be put upon their defense without further delay.

      And I respectfully remind the Tribunal of what was said at the opening session in Berlin by General Nikitchenko, in these terms:

      “The individual defendants in custody will be notified that they must be ready for trial within 30 days after the service of the Indictment upon them. Promptly thereafter, the Tribunal shall fix and announce the date of the Trial in Nuremberg, to take place not less than 30 days after the service of the Indictment; and the defendants shall be advised of such date as soon as it is fixed.”

      And then these words:

      “It must be understood that the Tribunal, which is directed by the Charter to secure an expeditious hearing of the issues raised by the charges will not permit any delay, either in the preparation of the defense, or of the Trial.”

      Of course, if it happened that Alfried Krupp were prepared to step into his father’s shoes in this matter, without any delay in the proceedings, the British Prosecutors would welcome that procedure, but if his joinder involves any further delay in the Trial of the existing defendants, we are opposed to it.

      THE PRESIDENT: May I ask you: Do you agree that according to the Municipal Law of Great Britain, in the same way that I understood it to be the law of the United States of America, a man in the mental and physical condition of Gustav Krupp could not be tried?

      SIR HARTLEY SHAWCROSS: I do, Sir. I take the same view, if I may say so, with respect, as Mr. Justice Jackson took upon the question you addressed to him.

      THE PRESIDENT: And in such circumstances, the prosecution against him would not be dismissed, but he would be detained during the pleasure of the sovereign power concerned.

      SIR HARTLEY SHAWCROSS: Yes, Sir.

      THE PRESIDENT: That is one question that I wanted to put to you.

      Do you then suggest that, in the present circumstances, Gustav Krupp ought to be tried in his absence, in view of the medical reports that we have before us?

      SIR HARTLEY SHAWCROSS: Well, it is a matter which is entirely in the discretion of the Tribunal, and which I do not wish to press in any way; but as the evidence involving his firm will in any event be laid before the Tribunal, it might be convenient that he should be represented by counsel, and that the Tribunal, in arriving at its decision, should take account, as it necessarily would, of his then condition.

      THE PRESIDENT: Is there any precedent for such a course as that, to hold that he could not be tried and found guilty or not guilty and yet to retain counsel to appear for him before the Tribunal?

      SIR HARTLEY SHAWCROSS: No, Sir, I was not suggesting that he should not be treated as being an existing defendant before the Tribunal and held guilty or not. I was dealing with the subsequent course which the Tribunal might adopt in regard to him if they held him guilty of some or all of these offenses.

      THE PRESIDENT: But I thought you agreed that according to, at any rate, Municipal Law, a man in his physical condition ought not be tried.

      SIR HARTLEY SHAWCROSS: I am not agreed that according to English Municipal Law he could not be tried.

      THE PRESIDENT: And that law is based upon the interests of justice?

      SIR HARTLEY SHAWCROSS: Mr. President, I cannot dispute that, but our law of course contains no provision at all for trial in absentia. Express provision is made for such trials in the Charter constituting this Tribunal, provided that the Tribunal considers it in the interests of justice.

      THE PRESIDENT: What exactly is it you are suggesting to us, that he should be tried in absence or that he should not be tried in absence?

      SIR HARTLEY SHAWCROSS: Mr. President, we have suggested that advantage should be taken of the provision for trial in absentia, but as I said at the beginning, it is, as it appears to me, entirely a matter for the discretion of the Tribunal, not one in which I wish to press any particular view.

      THE PRESIDENT: Does the Chief Prosecutor for the Soviet Union desire to speak? You were authorized, I think, Mr. Justice Jackson, to speak on behalf of the Chief Prosecutor of the Soviet Union.

      MR. JUSTICE JACKSON: I was authorized to state that they take the same position as the United States. I don’t know that in answering their questions I would have always given the answers that they would have given. I understand, for example, that they do try cases in absentia, and I think their position on that would be somewhat different from the position I have given.

      THE PRESIDENT: This question I asked you, of course, was directed solely to the Municipal Law of the United States. Does the Chief Prosecutor of the Soviet Union wish to address the Tribunal?

      COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U.S.S.R.): No.

      THE PRESIDENT: Then does the Chief Prosecutor for the French Republic wish to address the Tribunal?

      M. CHARLES DUBOST (Deputy Chief Prosecutor for the French Republic): It would be easy to justify the position taken today by the French Delegation by merely reminding oneself that on numerous occasions the French Delegation has advocated the immediate preparation of a second trial in order that it might be possible to proceed with it as soon as the first trial was completed. We could in this way have prosecuted the German industrialists without any interruption. This point of view has never been adopted. We have rallied to the point of view of the United States as being the most expedient and most susceptible of giving complete satisfaction to French interests. We are anxious that Krupp the son should be tried. There are serious charges against him, and no one could possibly understand that there should be no representative in this trial of the greatest German industrial enterprise, as being one of the principal guilty parties in this war. We should have preferred that a second trial be made against the industrialists, but since this second trial is not to take place, we consider the presence of Alfried Krupp to be absolutely necessary.

      THE PRESIDENT: What is the position, which you take up if the substitution of Alfried Krupp would necessarily lead to delay?

      M. DUBOST: I beg your pardon, Mr. President, but I believe you have in your hand a second note which I submitted this morning to the Court after having received a telephone call from Paris.

      THE PRESIDENT: I have in my hand a document of 13 November 1945, signed by you, I think.

      M. DUBOST: That is right. There is, however, a supplementary note, which I submitted this morning,