First Day, Tuesday, 20 November 1945,
Morning Session 29
Afternoon Session 57
Second Day, Wednesday, 21 November 1945,
Morning Session 95
Afternoon Session 118
Third Day, Thursday, 22 November 1945,
Morning Session 156
Afternoon Session 178
Fourth Day, Friday, 23 November 1945,
Morning Session 203
Afternoon Session 226
Fifth Day, Monday, 26 November 1945,
Morning Session 254
Afternoon Session 277
Sixth Day, Tuesday, 27 November 1945,
Morning Session 302
Afternoon Session 323
Seventh Day, Wednesday, 28 November 1945,
Morning Session 348
Afternoon Session 375
Eighth Day, Thursday, 29 November 1945,
Morning Session 394
Afternoon Session 417
Ninth Day, Friday, 30 November 1945,
Morning Session 435
Afternoon Session 456
PRELIMINARY HEARING
Wednesday, 14 November 1945
THE PRESIDENT (Lord Justice Lawrence): Is Counsel for Gustav Krupp von
Bohlen in Court?
DR. THEODOR KLEFISCH (Counsel for Defendant Krupp von Bohlen): Yes.
THE PRESIDENT: Do you wish to make your motion now?
DR. KLEFISCH: Yes.
THE PRESIDENT: Will you make your motion?
DR. KLEFISCH: Mr. President, gentlemen: As defense counsel for Krupp von
Bohlen und Halbach, I repeat the request which has already been made in
writing, to suspend the proceedings against this defendant, at any rate,
not to carry out the Trial against this defendant. I leave it to this
High Court to decide whether it should suspend proceedings against Krupp
for the time being or altogether.
According to the opinion of the specialists, who were appointed by this
Court for the investigation of the illness of Krupp, Krupp von Bohlen
und Halbach is not able, on account of his serious illness, to appear at
this Trial without danger to his life. Their opinion is that he is
suffering from an organic disturbance of the brain and that mental
decline makes the defendant incapable of reacting normally to his
surroundings.
From that it follows that Krupp is not capable of informing his defense.
Furthermore, the report states that the deterioration of his physical
and mental powers has already been going on for several years and that
since Krupp was involved in an auto accident on 4 December 1944, he can
only speak a few disconnected words now and again, and during the last
two months has not even been able to recognize his relatives and
friends. On the basis of these facts one can only establish that Krupp
has no knowledge of the serving of the Indictment of 19 October. Thus he
does not know that he is accused and why.
The question now arises whether, in spite of this permanent inability to
appear for trial, in spite of this inability to inform his defense, and
in spite of his not knowing of the Indictment and its contents, Krupp
can be tried in absentia. Article 12 of the Charter gives the right to
the Tribunal to take proceedings against people who are absent, under
two conditions: First, if the accused cannot be found; second, if the
Tribunal, for other reasons, thinks it is necessary in the interests of
justice, to try him _in absentia_. Since the first condition,
impossibility of finding the defendant, is immediately eliminated, it
must be examined whether the second condition can be applied, that is,
whether it is necessary, in the interests of justice, to try Krupp.
The Defense is of the opinion that justice does not demand a trial
against Krupp _in absentia_, that this would even be contrary to
justice. I want to quote the following reasons: The decision on this
question must come from the concept of justice in the sense of Article
12 of the Charter. We must take into account here that the 12th Article
is purely a regulation concerning procedure. The question arises,
however, whether the Trial against Krupp in his absence would be a just
procedure. In my opinion, a just procedure is only then given if it is,
as a whole or in its particular regulations, fashioned in such a way
that an equitable judgment is guaranteed. That is a judgment whereby the
convicted defendant will be punished accordingly and the innocent
exonerated from guilt and punishment.
Is it possible that a just judgment can be guaranteed if a defendant is
tried _in absentia_, who through no fault of his own, cannot appear and
defend himself, who cannot inform his defense counsel, and who does not
even know that he is accused and for what reason? To ask this question
is to deny it. Even the regulations of the Charter concerning the rights
of the defendant in the preliminary procedure and in the main Trial,
oblige us to answer this question with “no”.
The following regulations are applicable here:
According to Article 16 (a), the accused shall receive a copy of the
Indictment before the Trial.
According to Article 16 (b), the defendant in the preliminary procedure,
and in the main Trial, has the right to declare his own position in the
face of each accusation.
According to Article 16 (c), a preliminary interrogation of the
defendant should take place.
According to Article 16 (d), the defendant shall decide whether he
wishes to defend himself or to have somebody else defend him.
According to Article 16 (e), the defendant has the right to submit
evidence himself and to cross-examine each witness.
The Defendant Krupp could not make use of any of these rights.
According to Article 24 the same also applies to the special rights,
which have been accorded the defendants for the main Trial: The
defendant should declare his position in the main Trial, that is,
whether he pleads guilty or not.
In my opinion, this is a declaration which is extremely significant for
the course of the Trial and of the decision, and the defendant can only
do this in persona. I do not know whether it is admissible that Defense
Counsel may make this declaration of “guilty” or “not guilty” for the
defendant, and even if this were admissible, Defense Counsel would not
be able to make this declaration because he had no opportunity to come
to any understanding with the defendant.
Finally, the accused, who is not present, cannot exercise his right of a
final plea.
The Charter, which has decreed so many and such decisive regulations for
the rights of the defendant, thereby recognizes that the personal
exercise of these rights which were granted to the accused is an
important source of knowledge for the finding of an equitable judgment,
and that a trial against such a defendant, who is incapable of
exercising these rights through no fault of his own, cannot be
recognized as a just procedure in the sense of Article 12.
I should like to go further, however, by saying that the procedure _in
absentia_ against Krupp, would be contrary to justice, not only
according to the provisions of the Charter but also according to the
generally recognized principles of the law of procedure of civilized
states.
So far as I am informed, no law of procedure of a continental state
permits a court procedure against somebody who is absent, mentally
deranged, and completely incapable of arguing his case. According to the
German Law of Procedure, the trial must be postponed in such a case
(Paragraph 205 of the German Code of Criminal Law). If prohibiting the
trial of a defendant, who is incapable of being tried, is a generally
recognized principle of procedure (_principe général de droit reconnu
par des nations civilisées_) in the sense of Paragraph 38 (c) of the
Statute of the International Court in The Hague, then a tribunal upon
which the attention of the whole world is, and the attention of future
generations will be directed, cannot ignore this prohibition.
The foreign press, which in the last days and weeks has repeatedly been
concerned with the law of the Charter, almost unanimously stresses that
the formal penal procedure must not deviate from the customs and
regulations of a fair trial, as is customary in civilized countries; but
it does not object, as far as the penal code is concerned, to a
departure from the principles recognized heretofore, because justice and
high political considerations demand the establishment of a new
international criminal code with retroactive effect in order to be able
to punish war criminals.
I wish to add another point here, which may be important for the
decision on the question discussed. This High Court would naturally not
be able to acquire an impression of the personality of Krupp, an
impression which in such an extraordinarily significant trial is a
valuable means of perception, which cannot be underestimated for the
judgment of the incriminating evidence. If, in the Charter, trial _in
absentia_ is permitted on principle against defendants who cannot be
located, then corresponding laws of procedure of all states, and even of
the German Code of Criminal Procedure agree to that.
A defendant who has escaped is absolutely different from a defendant who
cannot argue his case, because in contrast to the latter, he has the
possibility of appearing in court and thus, of defending himself. If he
deliberately avoids this possibility, then he arbitrarily makes himself
responsible for the disadvantages and dangers entailed by his absence.
In this case, naturally, there would be no question of an unjust trial.
The view has been expressed in recent days and weeks that world opinion
demands a trial against the Defendant Krupp under all circumstances, and
even _in absentia_, because Krupp is the owner of the greatest German
armament works and also one of the principal war criminals. So far as
this demand of world opinion is based on the assumption that Krupp is
one of the principal war criminals, it must be replied that this
accusation is as yet only a thesis of the Prosecution, which must first
be proved in the Trial.
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 of the United States? At the bottom of Page 5
you say, “the prosecutors representing the Soviet Union, the French
Republic, and the United Kingdom unanimously oppose inclusion of Alfried
Krupp”, and then you go on to say on the fourth line of Page 6,
“immediately upon service of the Indictment, learning the serious
condition of Krupp, the United States again called a meeting of
prosecutors and proposed an amendment to include Alfried Krupp. Again
the proposal of the United States was defeated by a vote of three to
one.” Are you now telling the Tribunal that there has been another
meeting at which the prosecutors have reversed their two previous
decisions?
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 perhaps say this: That as you, Mr. President, pointed
out, at the last meeting of the Chief Prosecutors, at which this
possibility was discussed, not for the first time, the representatives
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, according to which I adopt the same viewpoint
as that expressed by Mr. Justice Jackson. I was in fact able to find out
between the document of last night and that of this morning the
consequences that would be brought about. . . .
THE PRESIDENT: Perhaps the best course would be to read this document
which has now been put before us.
M. DUBOST: “We consider that the trial of Krupp’s father is not
possible at the present time. The trial of a dying old man who
is unable to attend is out of the question. We are anxious that
Krupp’s son should be prosecuted for there are very serious
charges against him. We had asked up to this point that he
should be prosecuted without any delay in the trial, but for
reasons of expediency which led us to adopt this point of view,
this has ceased to be a pressing problem since the Soviet
Delegation has adopted the point of view of Mr. Justice Jackson.
Consequently we no longer raise any objection, and we likewise
have come to this point of view.”
THE PRESIDENT: Does what you say now mean that you wish Alfried Krupp to
be substituted notwithstanding the fact that it must cause delay?