1. The jurisdiction of this Tribunal, of course, is limited to trial of those of the European Axis Powers. The definition of a crime cannot, however, be made to depend on which nation commits, the act. I am not willing to charge as a crime against a German official acts which would not be crimes if committed by officials of the United States. I think no one will respect any conviction that rests on such a legal foundation. The draft attached suggests changes which would meet those objections.

2. In (a) "participating in the waging of the war" makes one guilty of the crime. This would make the entire soldiery, conscript and volunteer, and numerous civilians guilty. It comes close to making the entire German people guilty by definition. As I have explained, the guilt we should reach is not that of numberless little people of no consequence or influence, but of those who planned and whipped up the war. I suggest words which would accomplish this change.

3. Both (b) and (c) begin with general statements and go on to more specific items. It should be made clear that these specific statements do not limit the general ones. Destruction, as well as plunder, should be specified or we fail to reach such conduct as opening dykes to flood lands with salt water, etc.

4. In (e) we should insert words to make clear that we are reaching persecution, etc. of Jews and others in Germany as well as outside of it, and before as well as after commencement of the war.

5. The objection of Note 1 applies to "participated in the war" in the last paragraph in that as it stands at present it seems to render the entire draft meaningless. It may be interpreted as meaning that a person guilty under (a) shall not be answerable unless he is also guilty under (b) and (c), and that a person guilty of crimes under (b) and (c) shall not be answerable unless the crimes are committed in connection with the planning or the initiation of aggressive war. This, of course, would largely render all three paragraphs futile.

I attach a draft intended to overcome what we regard as defects. Respectfully submitted,

ROBERT H. JACKSON