The essential thing, however, in my opinion, is that it is not important whether world opinion or, perhaps, to use an expression forged in the Nazi work-shop, “the healthy instincts of the people,” or even political considerations play a part in the decision of this question, but that the question (Article 12) must be decided uniquely from the point of view of whether justice demands the trial against Krupp. I do not want to deny that the cries of justice may be the same as the cries echoing world opinion. However, the demands of world opinion and the demands of justice may be in contradiction to each other.
In the present case, however, a contradiction between the demands of world opinion for a trial against Krupp in absentia and the demands of justice exists because, as I just related, it would violate the recognized principles of the legal procedures of all states and especially Article 12 of the Charter, to try a mentally deranged man who cannot defend himself in a trial in which everything is at stake for the defendant,—his honor, his existence, and above all, the question of whether he belongs to the accursed circle of the arch-war criminals who brought such frightful misery to humanity and to their own Fatherland. I do not even wish, however, to put the disadvantages and dangers for the man and the interests of the defendant into the foreground. Much more significant are the dangers and disadvantages of such an unusual procedure for basic justice, because the procedure against such a defendant, who is unfit for trial due to his total inability to conduct his defense properly, cannot guarantee a just and right decision. This danger for basic justice, must, in my opinion, be avoided by a court of such unequalled world historical importance, which has assumed the noble and holy task, by punishment of the war criminals, of preventing the repetition of such a horrible war as the second World War and of opening the gates to permanent peace for all peoples of the earth.
THE PRESIDENT: Mr. Justice Jackson, do you oppose the motion?
MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States): Appearing in opposition to this motion, I should, perhaps, first file with the Tribunal my commission from President Truman to represent the United States in this proceeding. I will exhibit the original commission and hand a photostat to the Secretary.
I also speak in opposition to this motion on behalf of the Soviet Union and with the concurrence of the French Delegation which is present. I fully appreciate the difficulties which have been presented to this Tribunal in a very loyal fashion by the distinguished representative of the German legal profession who has appeared to protect the interests of Krupp, and nothing that I say in opposing this motion is to imply any criticism of Counsel for Krupp who is endeavoring to protect the interest of his client, as it is his duty to do, but he has a client whose interests are very clear.
We represent three nations of the earth, one of which has been invaded three times with Krupp armaments, one of which has suffered in this war in the East as no people have ever suffered under the impact of war, and one of which has twice crossed the Atlantic to put at rest controversies insofar as its contribution could do so, which were stirred by German militarism. The channel by which this Tribunal is to interpret the Charter in reference to this matter is the interest of justice, and it cannot ignore the interests that are engaged in the Prosecution any more than it should ignore the interests of Krupp.
Of course, trial in absentia has great disadvantages. It would not comply with the constitutional standard for citizens of the United States in prosecutions conducted in our country. It presents grave difficulties to counsel under the circumstances of this case. Yet, in framing the Charter, we had to take into account that all manner of avoidances of trial would be in the interests of the defendants, and therefore, the Charter authorized trial in absentia when in the interests of justice, leaving this broad generality as the only guide to the Court’s discretion.
I do not suggest that Counsel has overstated his difficulties, but the Court should not overlook the fact that of all the defendants at this Bar, Krupp is unquestionably in the best position, from the point of view of resources and assistance, to be defended. The sources of evidence are not secret. The great Krupp organization is the source of most of the evidence that we have against him and would be the source of any justification. When all has been said that can be said, trial in absentia still remains a difficult and an unsatisfactory method of trial, but the question is whether it is so unsatisfactory that the interests of these nations in arraigning before your Bar the armament and munitions industry through its most eminent and persistent representative should be defeated. In a written answer, with which I assume the members of the Tribunal are familiar, the United States has set forth the history of the background of the Defendant Krupp, which indicates the nature of the public interest that pleads for a hearing in this case.
I will not repeat what is contained beyond summarizing that for over 130 years the Krupp enterprise has flourished by furnishing the German military machine its implements of war. During the interval between the two world wars, the present defendant, Krupp von Bohlen und Halbach, was the responsible manager, and during that time his son, his eldest son, Alfried, was initiated into the business in the expectation that he would carry on this tradition. The activities were not confined to filling orders by the Government. The activities included the active participation in the incitement to war, the active breaking up through Germany’s withdrawal of a disarmament conference and the League of Nations; the active political campaigning in support of the Nazi program of aggression in its entirety.
It was not without profit to the Krupp enterprises, and we have recited the spectacular rise of its profits through aiding to prepare Germany for aggressive war. So outstanding were these services that this enterprise was made an exception to the nationalization policy and was perpetuated by Nazi decrees as a family enterprise in the hands of the eldest son, Alfried.
Now it seems to us that in a trial in which we seek to establish the principle juridically, as it has been established by treaties, conventions, and international custom, that the incitement of an aggressive war is a crime, it would be unbelievable that the enterprise which I have outlined to you should be omitted from consideration.
Three of the prosecuting nations ask the permission of this Tribunal immediately to file an amendment to the Indictment, which will add the name of Alfried Krupp von Bohlen und Halbach at each point in the Indictment after the name of Gustav Krupp von Bohlen, and that the Tribunal make immediate service of the Indictment on son Alfried, now reported to be in the hands of the British Army of the Rhine.
I have to face the problem whether this will cause delay. All of the nations at your Bar deplore delay. None deplore it more than I, who have long been active in this task, but if the task in which we are engaged is worth doing at all, it is worth doing well; and I do not see how we can justify the placing of our convenience or a response to an uninformed demand for haste ahead of doing this task thoroughly. I know there is impatience to be on with the trial, but I venture to say that very few litigations in the United States involving one plaintiff and one defendant under local transactions in a regularly established court come to trial in 8 months after the event, and 8 months ago the German Army was in possession of this room and in possession of the evidence that we have now. So we make no apology for the time that has been taken in getting together a case which covers a continent, a decade of time, and the affairs of most of the nations of the earth.
We do not think the addition of Alfried Krupp need delay this Trial by the usual allowance of time to the defendant. The work already done on behalf of Krupp von Bohlen would no doubt be available to Alfried. The organization Krupp is the source of the documents and of most of the evidence on which the Defense will depend. If this request of the United States of America, the Soviet Union, and the French Republic is granted, and Alfried Krupp is joined, we would then have no Objection to the dismissal, which is the real substance of the motion, of the elder Krupp, whose condition doubtless precludes his being brought to trial in person.
THE PRESIDENT: Mr. Justice Jackson, may I draw your attention to Page 5 of the written statement