MR. JUSTICE JACKSON: Your Honor, I understand the French Delegation has filed a statement with the Secretary of the Tribunal, which joins in the position of the United States. I have just been called, on behalf of the Soviet Prosecutor, General Rudenko, who is now in Moscow, to advise us that the Soviet Delegation now joins, and I was this morning authorized to speak in their behalf. Both those delegations desire to reduce, as, of course, do we, any possible delay to a minimum.
I may say that the disagreement at the outset over the inclusion of Alfried was due not to any difference of opinion as to whether this industry should be represented in this Trial, but it was not understood that the condition of the elder Krupp was such as would preclude his trial. It was believed that it was. . . .
THE PRESIDENT: Mr. Justice Jackson, forgive my interrupting you, but the words that I have just read show that the condition of Krupp was comprehended at the time. The words are: “Immediately upon service of the Indictment, learning of the serious condition of Krupp, the United States again called a meeting of Prosecutors, and again the proposal of the United States was defeated by a vote of three to one.”
MR. JUSTICE JACKSON: Your Honor is referring to the meeting which was held after the Indictment had been served. I am referring to the original framing of the Indictment, so we are speaking of two different points of time.
THE PRESIDENT: I see.
MR. JUSTICE JACKSON: It was felt that it would be very difficult to manage a trial which included too many defendants, and that inasmuch as Gustav Krupp von Bohlen was in, it was unnecessary to have others. When the Indictment was served, the information came to us of his condition, and we called the meeting. It was not then anticipated with certainty that the Trial could not proceed. His condition was then, we knew, serious, but the extent of it was not known to us as definitely as it is now; and it was felt by the other three prosecuting nations at that time that it would not be necessary to make this substitution.
In the light of what has now happened, both the Soviet Union and the French Republic join in the position of the United States.
THE PRESIDENT: Then may I ask you how long [a] delay you suggest should be given, if your motion for the addition of Alfried Krupp were granted?
MR. JUSTICE JACKSON: Of course I hesitate to say what might be reasonable from the point of view of the defendants, but it would seem to me that in the first place, he might be willing to step into his father’s place without delay; but in any case that the delay should not postpone the commencement of this trial beyond the 2d day of December, which I think is Monday, which would enable him, it seems to me, with the work that has been done, to prepare adequately, and would enable us to serve immediately. If permission is granted, we can immediately make the service; and, of course, they have already had full information of the charges, and access to the documents.
THE PRESIDENT: Is he not entitled under the Charter and the rules of procedure to 30 days from the service of the Indictment upon him?
MR. JUSTICE JACKSON: I think the Charter makes no such requirement, and I understand that the rules of the Court are within the control of the Court itself.
THE PRESIDENT: Would you suggest that he should be given less time than the other defendants?
MR. JUSTICE JACKSON: I have no hesitation in sponsoring that suggestion, for the reason that the work that has already been done presumably would be available to him; and as I have suggested, of all the defendants, the Krupp family is in the best position to defend, from the point of view of resources, from the point of view of the reach of their organization; and, I am sure you will agree, they are not at all handicapped in the ability of counsel.
THE PRESIDENT: I have one last question to put to you: Can it be in the interest of justice to find a man guilty, who, owing to illness, is unable to make his defense properly?
MR. JUSTICE JACKSON: Assuming the hypothesis that Your Honor states, I should have no hesitation in saying that it would not be in the interests of justice to find a man guilty who cannot properly be defended. I do not think it follows that the character of charges that we have made in this case against Krupp, Gustav Krupp von Bohlen, cannot be properly tried in absentia. That is an arguable question; but it can be assumed that all of the acts which we charge him with are either documentary, or they were public acts. We are not charging him with the sort of thing for which one resorts to private sources. The one serious thing that seems to me, is that he would not be able to take the stand himself in his defense, and I am not altogether sure that he would want to do that, even if he were present.
THE PRESIDENT: But you have stated, have you not, and you would agree, that according to the Municipal Law of the United States of America, a man in the physical and mental condition of Krupp could not be tried.
MR. JUSTICE JACKSON: I think that would be true in most of the jurisdictions.
THE PRESIDENT: Thank you.
Mr. Attorney General.
SIR HARTLEY SHAWCROSS (Chief Prosecutor for the United Kingdom): May it please you, Mr. President: The matters which I desire to submit to the Tribunal can be shortly stated, and first amongst them I should say this: There is no kind of difference of principle between myself and my colleagues, representing the other three prosecution Powers, none whatsoever. Our difference is as to method and as to procedure. In the view of the British Government, this Trial has been enough delayed, and matters ought now to proceed without further postponement.
Before I say anything in regard to the application which is before the Tribunal, on behalf of Gustav Krupp von Bohlen, may I say just one word about our position in regard to industrialists generally. Representing, as I do, the present British Government, it may be safely assumed by the Tribunal that I am certainly not less anxious than the representatives of any other state the part played by industrialists in the preparation and conduct of the war should be fully exposed to the Tribunal and to the world. That will be done, and that will be done in the course of this Trial, whether Gustav Krupp von Bohlen or Alfried Krupp are parties to the proceedings or not. The defendants who are at present before the Tribunal, are indicted for conspiring not only with each other, but with divers other persons; and if it should be the decision of the Tribunal that Gustav Krupp von Bohlen should be dismissed from the present proceedings, the evidence as to the part which he, his firm, his associates, and other industrialists played in the preparation and conduct of the war, would still be given to this Tribunal, as forming part of the general conspiracy in which these defendants were involved with divers other persons, not now before the Court.
Now, then, in regard to the application which is before the Court on behalf of Gustav Krupp von Bohlen, the matter is, as it seems to me, entirely one for the Tribunal; and I would only wish to say this about it: It is an application which, in my submission, must be treated on its own merits. This is a court of justice, not a game in which you can play a substitute, if one member of a team falls sick. If this defendant is unfit to stand his trial before this Tribunal, and whether he is fit or unfit is a matter for the Tribunal, he will be none the less unfit because the Tribunal decides not to join some other person, not at present a party to the proceedings.
There is provision under the Charter for trial in absentia. I do not wish to add anything which has been said in regard to that aspect of the matter by my friend, Mr. Justice Jackson, but I ask the Tribunal to deal with the application, made on behalf of Gustav Krupp von Bohlen, quite independently of any considerations as to the joinder of some other person, considerations which, in my submission, are relevant to that application. There is, however, before the Tribunal, an independent application to permit the joinder of a new defendant at this late state. I think I should