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The Conference was called to order by the Attorney-General, Sir David Maxwell Fyfe, who welcomed the Representatives on behalf of the host, the United Kingdom.(1) He stated the purpose of the Conference in general terms and reviewed the proceedings which had led up to it. He suggested that, in as much as the United States had proposed a definite agreement, the Conference call upon Mr. Justice Jackson to explain in detail the United States proposal.
Mr. Justice Jackson pointed out that there were two drafts of the United States proposal outstanding. The first had been handed to the Foreign Ministers at San Francisco [IV]. Later studies had resulted in some changes and a later draft had been forwarded to all conferees through their respective embassies [IX]. He suggested that the latter proposal be made the basis of the discussions. General Nikitchenko suggested that, instead of embodying the entire subject in one instrument, there should be a separate and short executive agreement between the powers which would adopt an annexed statute to govern the conduct of the trials. The latter, he thought, should specify the rules of procedure in great detail. He thought it should provide for the organization of the Tribunal, by whom it should be named, its powers, and the cases it was to hear-which should be only major cases--and should specify that other criminals be handed over to the appropriate national authorities for trial by them; it should stipulate where the trials should take place, the language in which the proceedings should be conducted, and the procedure of the trial; it should leave to the court itself the working out of internal procedures.
The Attorney-General, after the morning's general discussion, called upon Mr. Justice Jackson at the afternoon session to explain the American proposal, and the proceedings were as follows:
MR. JUSTICE JACKSON. We start with the recital of the declaration of Moscow, which is really the beginning of the plan to conduct these trials, and the recital follows the language of the declaration. It is the purpose to indicate the division between the class of cases we are concerned with and the class with which we are not concerned. The recitals are intended to make plain what the background of this agreement is that is why we put in those recitals. I do not know whether any questions occur on that or not.
Then we recite that it is necessary in order to carry out those commitments that there be joint action and that all Members of the United Nations shall be invited to sign and adhere to this agreement; that adherents shall be notified to the governments through the United Kingdom; and that the four signatories will be referred to as "signatories", and the other United Nations who may adhere to it are "adherents", and all are referred to later as "parties to the agreement". I do not know whether any questions occur on those or not.
GENERAL NIKITCHENKO. I am not quite clear on the point of including the organizations. Are they juridical bodies? How is it envisaged?
Mr. JUSTICE JACKSON. I would envisage that, in case of such an organization as the S.S., the purpose of this proceeding would be to try the general purposes, plan, the methods, etc., of that organization to determine whether it constitutes such a criminal organization that we should attribute to each member responsibility for acts of the others and responsibility for the acts of the whole. The organizations that we think should be included would be only voluntary organizations, of course, where the membership was in itself significant of an adherence to the purposes of the organization and where the organization was sufficiently closely knit so that responsibility of the member would be a reasonable conclusion. We did not think that it would ordinarily reach, for example, to the army or to the Nazi party. But such organizations as the S.S., the Gestapo-perhaps some groups that are not technically organizations-would be included. But that is not attempted to be solved here. We simply attempt to decide that organizations ought to be brought within the purview of this trial.
GENERAL NIKITCHENKO. We do not propose to go into details of definition here and now but would like to draw attention to the Crimea declaration agreed to at Yalta, under which the Nazi organizations were declared to be illegal and criminal and therefore should be utterly destroyed; and it would therefore be necessary to see that this agreement, or the line taken here, follows the decision of the Three Powers in the Crimean agreement. However, that could be decided later.
MR. JUSTICE JACKSON. It is intended that there be no inconsistency. The inclusion of these organizations is not intended to be a recognition of legality of their existence in the future, and we did not think in proposing the trial that it would be any obstacle in the dissolution of them for the future. We are thinking of their past acts.
We now come to the article dealing with the military tribunals, which we think of as entirely separate from the prosecuting staff.
[Here the Justice read from paragraph 5 of the draft proposal, IX.]
We have in mind that one or more should be provided for at this time to have jurisdiction to hear any of the charges. We provide that each shall consist of four members, each with an alternate, one from each government here represented; that the presiding officer shall be selected by the members of the Tribunal or, if there is no agreement, by lot. The idea as to an alternate is that he should sit if the representative should become ill, die, or become incapacitated. The alternate would be present during the entire proceedings and be prepared to step into the place of the principal judge in event of necessity. The decision should be by majority vote. There are infinite possibilities of varying this arrangement, but this is as practical an arrangement as we could think of, and we therefore proposed it in that form.
GENERAL NIKITCHENKO. In the original American draft the proposal regarding the position of presiding officer was that it should be hold by rotation; now we see by the second draft that the chairman shall be elected or chosen by lot. The Soviet Representative would be glad to know why this alternative system was preferred in the second draft and how far it is suitable as compared with the first original proposal.
MR. JUSTICE JACKSON. We have never had the general practice in our country of rotating the presiding officer except in some courts, and in some of our commissions they rotate by the year. The presiding officer, of course, has no more power than the other members of the Tribunal, but there would be a greater consistency in the proceedings if one man presided. I do not know, if there were rotation, whether it would be by the day or week, or just how it could be arranged. We read the Soviet suggestion on rotation of the presiding officer, but I did not recall that we had ever proposed rotation, and I am inclined to think you are in error about that. Rotation was never proposed, to my knowledge, and it is rather foreign to our ideas.
COLONEL BERNAYS. The first draft taken from San Francisco had no suggestion of rotation.
MR. JUSTICE JACKSON. Your suggestion of rotation was first brought to our attention in an aide-mémoire delivered to me in Washington [X].
GENERAL NIKITCHENKO. In the question of rotation of the chairmanship, of course it would not be a question of having a different one every day. The Soviet Delegation had in mind that there are, after all, four judges envisaged for the International Tribunal, and, assuming that the opinions of the four judges were evenly divided, it would be necessary for the chairman to give his vote. The actual view of the Soviet Delegation on the way in which rotating chairmanship should be organized is that in every individual case coming before the court from the beginning there would be a single chairman in office; then when the next case came up the chairmanship would revert to another of the judges, who would hold office until that case were completed, and so on. That is particularly important if the Tribunal sits in different countries. For instance, if the Tribunal were sitting in France, it would be desirable to have a Frenchman as chairman.
Do the authors of this proposal suggest that, where it states that the whole membership of the United Nations shall be invited by the United Kingdom to appear as adherents [paragraph 3], adherence to the agreement confers any obligations to take part in the work of the court, especially if it happens to be sitting in one of those countries?
MR. JUSTICE JACKSON. It was not intended by the language to impose any obligations or to confer any rights except such privileges as might be granted in particular circumstances. There might be a situation where it would be advisable and we would agree that some nation should come forward with some evidence, for example. The problem of dealing with their cases we thought was pretty much solved by the provision for sending back for local trials the local offenders. If we are going to get this task done in any reasonable length of time, it is necessary to limit the number of people who will participate, and therefore we have taken the view that the four countries who have the chief responsibility are our own and that, while we would like the participation of the others, it would not be practical to open the matter to all others as a matter of right. That was the view we entertained in drawing these documents.
SIR DAVID MAXWELL FYFE. We have one point on number 5 which has been already mentioned, Mr. Justice Jackson, that we should prefer that the Tribunal should be set up by the Governments in consultation with the Control Council, because it would make it easier for us to got the best members for the Tribunal if they were appointed by the Government and then the Government would consult with the Control Council and see if they approve.
MR. JUSTICE JACKSON. "An International Military Tribunal may sit in any zone in Germany, Austria or Italy. . . ." [Here the Justice read paragraph 7.] Any questions on number seven? [No questions.]
[The Attorney-General was excused and Mr. Roberts acted thereafter as his alternate as chairman of the Conference and of the British group.]
GENERAL NIKITCHENKO. That point is quite clear with possibly some amendments which could be inserted in toto in the statute of the International Military Tribunal.
MR. JUSTICE JACKSON. In paragraph 8 we provided that "An International Military Tribunal shall have the power to establish its own rules of procedure, which shall be not inconsistent with the provisions of this Agreement." We have thought in our subsequent studies that the agreement should also authorize the prosecuting staff to propose rules to the Tribunal so that there would be direct authority for proposing them. I may say that the system of adopting its own rules of procedure is customarily used in our country with commissions and even with courts. I think we delegate to the court more rule-making power than you do with the Continental system. We leave it to judges to make rules for their own courts, and sometimes we even delegate the power to make rules to govern the entire litigation procedure. Perhaps that is why we have favored a large delegation of power to the Tribunal itself instead of attempting to codify details of procedure. We were also a little afraid, since this is an unprecedented case, that we were not wise enough to adopt in advance rules that were all-inclusive to meet all situations. I would like to see a liberal rulemaking power left in the court to meet all unforeseen situations as are apt to arise. We have not been through this kind of trial before, and it therefore is not so simple as drafting a statute to govern an everyday litigation.
GENERAL NIKITCHENKO It is, of course, impossible to foresee all the details that should be included in a statute of this kind and I agree that the court which is to be set up must have the power to elaborate detailed instructions that will be necessary; but we are afraid the actual wording of this paragraph number 8, as it is, rather implies that if we do not here and now define basic principles for government of the International Tribunal, it will be left then to the Tribunal itself when set up to do that work, and it would delay the work of the prosecutors.
MR. ROBERTS. May I say that it is our view, too. We would like to draft some rules by agreement although we quite understand that the Tribunal will have the power to modify or extend those rules, but we share the Russian fear that this paragraph as it is might lead to duplication and delay.
GENERAL NIKITCHENKO. This is a change we can discuss in a memorandum, but we could leave the text as it stands now in the statute and arrange that when necessary. The Tribunal may later elaborate or extend.
MR. JUSTICE JACKSON. I assume you mean that a memorandum will be prepared by the Soviet which will indicate the type of rules which you think should be incorporated. We do not object to adding any rules we feel should be incorporated as we go along. The next paragraph of the draft is simply designed to make clear that each country retains the right to set up its own tribunal for any accused that are not reached by this.
GENERAL NIKITCHENKO. I quite agree.
MR. JUSTICE JACKSON. We take up next the subject of charges and procedural law we know, which is our own system, and we put it forward against that background, of course. [Here the Justice read -from paragraph 10.] "The parties to this Agreement agree to bring to trial before an International Military Tribunal, in the names of their respective peoples, the major criminals, including organizations, referred to in Article I "
The next paragraphs are amplifications to some extent recommending additional measures and maintenance of relations with any groups that are interested in the prosecutions, including any of the United Nations which are not included in the prosecution. While this is a very sketchy provision about the prosecution, it was understood by us when we were preparing it as embodying our usual method of prosecution by which the prosecution proceeds entirely without consultation with the court and without the court's knowledge or participation in any way. Our system contemplates a complete separation of the function of hearing charges from the function of prosecution. It is a separation of functions which is a very deep-seated part of our legal philosophy, and it is against that background that it is put forward.
GENERAL NIKITCHENKO. It would be desirable if we could be given a more detailed explanation of prosecution in the United States, the actual raising or preparing of a charge as applied to the tasks which lie before the International Tribunal here.
MR. JUSTICE JACKSON. I can give you a little more clearly what I would envisage in the light of our system. Our first task as prosecutors, as we see it, is to get the evidence in the case. We would not wait for any court to be set up to do that because we think of that as a prosecutor's function, and therefore we have already started work on it and have many people trying to examine captured orders and reports. We have interrogated prisoners of war, interrogated civilian prisoners taken since the surrender, interrogated witnesses, and gathered all of the evidence we can get in proof of the charges. Then we envisage the preparation of an indictment or bill of accusation you can call it by various names-in which we would select persons indicated by the evidence to be guilty, they would be charged with crimes, and that indictment would then be presented to the court. That would be the first time there would be any contact between the prosecutors and the court in our system-when the charges are presented. That brings the case into court-when you have an indictment. The Court would then have nothing before it except the indictment but it would fix the time of trial and might assign counsel. On the trial date we would produce in court all of our evidence. The court would not h
ave the evidence merely as a result of its being gathered by the prosecutors but it would have received it in open session. Documentary proof, as we call it, would be offered and some facts would be established by "judicial notice", which means it would not be necessary to prove them. Oral testimony would be received. The decision would then be made, based on the evidence that was produced before the court by the prosecutors. The court would take no responsibility for the production of any part of the proof. It would have no part in the prosecution. It would simply have one function, to receive and weigh evidence and determine the question of guilt. That in a crude way is a statement of our procedure.
PROFESSOR TRAININ. The basic problem is whether the International Military Tribunal requires an auxiliary body, and I understand from the document which has been submitted and from the explanation of the United States Representative that both the Soviet and American Representatives hold the same view, that some body for the purpose of investigation is necessary; so both delegations make the same reply to that question.
There is agreement apparently on the second point, that the commission of inquiry works independently and draws up the indictment. In that way, one is called "commission of inquiry" on the Russian side and "Prosecutor" on the American. Both delegations agree on the function of drawing up the indictment. Then there is the third task of bringing in the indictment before the Tribunal. On that point there seemed to be slight difference because the American proposal suggests there is no need to provide any additional material. The court can decide only the actual form of indictment. That, of course, is a point which can be discussed later. Since the United States proposal foresees the necessity for the prosecuting body to conduct investigation and draw up the indictment, both delegations are sufficiently close to one another.
MR. JUSTICE JACKSON. I am afraid that we are not quite as close as Professor Trainin states, but I hope we may be. We think the indictment might properly refer to some facts of which the court might take judicial notice, but our system contemplates bringing into the court after the indictment all of the proof. The indictment itself merely shows that one is accused and informs him of the charges against him, but the indictment itself is not much more than a notice of trial and of the charges and does not stand as evidence. Therefore, the prosecuting officers would conduct the trial at which all the proof would be brought out. I do not know whether the difference between us is, or just how much of the difference is, a matter of words and how much a matter of substance. I think both will have to develop our ideas as we go along.
I should like to ask how the French would handle this prosecution.
JUDGE FALCO. I do not insist upon the adoption of the French System because we are working on a new thing in this International Tribunal. I want to explain the French system to see whether there are better ideas to be used in the new International Tribunal. The prosecution is made in France by a magistrate (juge d'instruction), and after that the prosecuting officer looks over the case and sums up the charges to present to the judges. The prosecuting officer is put in charge of the case, and the witnesses are interrogated. The court is outside of the prosecution and must not interfere with the prosecutor, so that there is a great similarity with the American system as it has been exposed by Mr. Justice Jackson. The French could not see any advantage in mixing the thing and having the court participating in the prosecution. We think it would be simpler to leave the prosecution in full charge of the prosecutors, and that leaves the court sitting and judging apart from the prosecution. The situation between the court and the prosecuting officer is such that not all procedure which has been had before the court hearing is taken into consideration by the court. The court takes the case as a new thing and does not look into the procedure which has been made before.
PROFESSOR TRAININ. The Soviet system shows independence of function between the prosecuting body and the court itself. The court could not be satisfied merely with written depositions. It must also have oral proceedings. We have agreed on the basic principle that there must be a preparatory or auxiliary body, but it seems the difference arises as to the functions of that latter body. According to the United States proposal, if we have understood it, the first step is for the prosecuting body, which would be the commission of inquiry in the Soviet system, to gather together all the evidence and sum it up into a form of indictment, and the second step is hearings before the Tribunal; but, if that indictment is merely a form of statement of the case against the criminal, it would not be sufficient. If necessary, additional evidence or material would be called for. The alternative which seems to be contemplated in the United States draft seems to be a rather complicated process and would hold up the Tribunal if there were two independent procedures established. The court should have power independently to value the indictment and call for any other material desired. The point is that it is necessary for this preparatory or auxiliary body to continue and complete the evidence in the form of an indictment so that the process should be whole and complete and the court, when the indictment is brought before it, will be in a position to adopt a formal decision without any further delay. The evidence would be handed in with the indictment.
MR. JUSTICE JACKSON. It might be well to clear up a misunderstanding. Our indictment is merely a charge. It merely accuses and names the crime of which it accuses, tells briefly where it was committed and when, and does not give evidence. For instance, if you are indicting a man for murder, your indictment charges that on a certain date at a certain place he did commit murder by shooting such a person, causing his death, against the law and the peace and dignity of the state, and he is therefore accused. You do not set forth the evidence in the indictment. You merely start the case in motion, and then the trial is for producing the evidence; I think that is where our basic difference has been-over the nature of the indictment. [Here the Justice addressed the British Delegation.] I assume your form of indictment, which we largely copied, is very similar.
MR. ROBERTS. Much the same. In the charges the accused is given sufficient particulars for him to know with what he is charged so that he can prepare his defense. We, I think, on this side of the table entirely agree with the procedure which the French outlined and which they say they are prepared to recommend to their Government.
JUDGE FALCO. In a French bill of accusation it would be a little more complicated than what Justice Jackson said but more or less on the same line. It would be a little longer, beginning with indication of the facts and followed by indication of the proof and evidence which have been gotten by the prosecuting officer and indication of the law which applies. We would not suggest that it be adopted by the International Tribunal, which is an entirely new creation, but as indicated in French law the court can always call for now witnesses or new evidences so that we might also think along those lines.
GENERAL NIKITCHENKO. I think the system of prosecution as it is practiced in the Soviet Union does not at all differ from that practiced in France as explained at this table. The prosecutors are independent in their investigation and drawing of the charge of indictment. They submit that document to the Prosecutor General, who can ask for additional material and who has to confirm and authorize the indictment before it is submitted to the court. There are prepared, of course, details of the evidence that is advanced in support of that charge, and the document concludes with the indictment as in France. So there is really no difference between the Soviet procedure and the French. There does seem to be a difference between their system and that of the United States and the United Kingdom, where the material does not go to the court, but only a formal indictment. If it is now suggested that the French proposal is really the equivalent or fits in with the United States and United Kingdom systems, it seems to be a misunderstanding, because the resemblance is really between the French and Soviet systems. There is no suggestion on the part of the Soviet Delegation to apply the whole Soviet system to the trial of war criminals. We should aim to simplify procedure and to facilitate the work of the courts. Therefore, there should be the two stages of, first, preliminary collection of material-on that point there does not seem any difference of opinion-and then, the second point, a special body which is to accomplish that task. The difference apparently is on the point as to whether the material is to be submitted to the court or whether it is to be kept by the prosecuting officers. In the view of the Soviet Delegation, if the court XXXXXX and reference should be made in the indictment as to the reasons for the charges advanced, giving the evidence that has been collected and leaving it with the court as completely presented. The court should not be confined merely to preliminary investigation, but, as additional evidence is required, it should be in the power of the court to ask for it. The court, of course, continues to be completely independent.
MR. JUSTICE JACKSON. I think I have failed to make clear that in our practice the evidence is passed to the court but is passed at a stage subsequent to the indictment. The indictment merely results in notifying the defendant of the charge, the time and place of trial, and that sort of thing. All the evidence is passed to the court and enters into its archives, passing out of the hands of the prosecution. The decision of the court is based on the complete evidence. The difference is, as I gather, that you would, so to speak, attach your evidence to the indictment, while we would follow the indictment by production of the proof in open court at the trial. There is, therefore, in our system more importance to the trial and less importance to the indictment, the indictment being merely accusation. The court hears all the evidence, and in most cases our courts must hear the evidence of each witness. The defendant has the right to be confronted by every witness against him, and all testimony is heard in open court. Our system results, perhaps, in a longer trial but a shorter indictment.
GENERAL NIKITCHENKO. In the Soviet system the indictment itself is not regarded as evidence. It is merely the document containing particulars of the offense and the evidence on which it is chargeable.
MR. JUSTICE JACKSON. I would-like to make clear in suggesting this arrangement that we have not proposed that our system of ordinary or jury trial be adopted. In fact, we would not think it would be at all feasible to try these cases according to the unmodified American system. What we are trying to do is to depart from ours and find a system which, while it follows the general philosophy of our system, is one on which we can hope to try these cases in a reasonable length of time and without undue difficulties.
JUDGE FALCO. I suggest that we iron out the difficulties of criminal law and see what we want, extracting from our different laws the best factors. Also, we agree that we would like to put before the court a complete investigation, and we do not want to waste time because it would take much time and create a bad impression on the Allied and German people. I submit that the first question is to make a complete investigation. I believe the Soviet views, which are very near the French one-it would be the act of transmitting to the court the charges and the evidence going with it, and it should be for examination by the prosecuting officer. Whatever the forms we will adopt of that, certainly the French Delegation has no preference. We should go to work with the idea that a system of international prosecution must be reached, and we must not risk the court's not being satisfied. That is the most important question.
GENERAL DONOVAN. Is it your suggestion that the proposal made by Justice Jackson should be modified to submit to the court not only the indictment but evidentiary material in support of it as prepared by all counsel?
JUDGE FALCO. I agree.
MR. ROBERTS. It is your suggestion that that should be done before the trial and that before the trial the court should have the power to reject or send back.
JUDGE FALCO. Are we to have only one prosecutor?
GENERAL DONOVAN. You want the prosecutors to act jointly?
JUDGE FALCO. I agree that they act jointly so that there is no risk of the court not being satisfied. To illustrate the Soviet position, the prosecution would be reviewed by he four prosecuting officers and not by the court.
MR. JUSTICE JACKSON. I wonder if we are far enough advanced in understandings each other so that we can proceed to the legal principles that underlie the trial.
GENERAL NIKITCHENKO. Views expressed seem to be approaching one another; so I think we could proceed. According to the French proposal, these four prosecuting officers would actually be working as an investigating commission.
MR. ROBERTS. Which is really what we are doing now.
MR. JUSTICE JACKSON. Certainly.
GENERAL NIKITCHENKO. Especially since no lengthy preparation would be necessary as evidence is already gathered.
GENERAL DONOVAN. Submission of the indictment should not be accompanied by submission of the evidentiary material, but the evidence would come in only at the trial itself.
MR. ROBERTS. I agree.
JUDGE FALCO. The evidence and material itself would go before the court at trial. This would be a summary of the facts.
GENERAL NIKITCHENKO. The Soviet Delegation takes the view that the indictment should be accompanied by the evidence, the evidentiary material. I point out that the United States proposal rather assumes lengthy investigation is involved, whereas the evidence and material is all available. Therefore, I do not see why there should be a separation between those two. After all, it is just a summary of the facts of the case and statement of the charge.
GENERAL DONOVAN. Perhaps I see the difficulty. I wonder if they think we propose that the indictment and the material could be separated by a great lapse of time. That is not what we propose. The indictment would be submitted to the court on a given day and perhaps on that very day the evidence would be taken by the court under oath, but separately.
GENERAL NIKITCHENKO. But before the trial begins.
GENERAL DONOVAN. We submit the indictment to the court and notify the defendants so that they can prepare for trial. The day for the trial is set and then all evidence on which the indictment is based, the evidence which will prove that charge, is submitted under oath, together with such documents as the court will receive.
MR. ROBERTS. That is what we on this side of the table visualize. The court is to try the case at the time set, not to try it before, but try it in court on the evidence which is presented.
GENERAL DONOVAN. And the evidence is submitted in the presence of the defendant and his counsel, to the admission of which the objection of the defense might be sustained, so that the court must sit as a referee.
GENERAL NIKITCHENKO. The details of this we could deal with later. The point at present would be for us to see whether there is any difference of opinion on the principles involved.
MR. JUSTICE JACKSON. I agree. Shall we take up the legal principles?
Number 12 has given us a great deal of difficulty, and we have redrafted and amended it a good many times. This was caused, I suppose, by the difficulty of stating an entire body of criminal law for international trial purposes in a single paragraph. It is a very important paragraph and deserves careful study, word by word, because every word will come back to plague us before we get through with the trial. What we have attempted to do is to reach the heart of these offenses. We think it would be very unfortunate if we were to go into this trial with an argument as to whether the acts were criminal, and it should not be left to the court to sift out from the various authorities what the law is. Following that thought, we provided that, "Atrocities and offenses against persons or property constituting violations of international law, including the laws, rules and customs of land and naval warfare."
We have been doing a great deal of studying on that, and I fancy everyone at the table will have some suggestions to make as to changes.
GENERAL NIKITCHENKO. I do not think there is any need to go into any discussion on this at the present moment but agree that an article of this nature is essential in the establishment of an international military tribunal in order to decide who will be tried. Obviously it will need thorough investigation, and there is no point in starting on that now.
MR. JUSTICE JACKSON. Numbers 13 and 14 are continuations of somewhat the same subject. [Here the Justice read paragraphs 13 and 14, ante, p. 58-]
GENERAL NIKITCHENKO. The Soviet delegates have no doubt whatsoever about including articles substantially of this character in the draft statute of the International Tribunal. It may, of course, be necessary to make amendment in the wording, et cetera, and the conditions under which it will proceed to pass judgment on leaders and organizations which we think ought to be regarded as equally responsible.
MR. JUSTICE JACKSON. There must also be provisions to assure that these trials will be fair trials, that defendants will have reasonable notice and opportunity to defend, and that those who are physically present before the Tribunal will be furnished with copies of the indictment, and given an opportunity to be heard in their defense, have counsel, etcetera. GENERAL NIKITCHENKO. That is all perfectly clear.
MR. JUSTICE JACKSON. Then we come to the question of organizations, by which we intend to reach a great many people, in fact, with a very few people before the court. [Here the Justice read from paragraph 16, ante, p. 58.1 This goes back to the proposition presented at Yalta of reaching the members of these organizations through the organizations. Unless we do that, the number of trials that would be necessary would be prohibitive. We think it can be done with proper safeguards so that it will be an instrument of justice and not injustice. We recognize it as a method which has to be guarded. If not, it would be a very unjust procedure, and therefore we have tried to provide for getting it done, but getting it done consistently with our ideas of what constitutes a fair trial.
GENERAL NIKITCHENKO. On that point we have exchanged views.
MR. ROBERTS. It was covered at the beginning of this afternoon, was it?
MR. JUSTICE JACKSON. Now, numbers 17 and 18. We think we can improve these in draftsmanship, but the idea may have more significance to British and American lawyers than it does to Continental lawyers. We do not want technical rules of evidence designed for jury trials to be used in this case to cut down what is really and fairly of probative value, and so we propose to lay down as a part of the statute that utmost liberality shall be used. Most of those things are really addressed to the judges, and perhaps the question doesn't trouble you who follow the Continental system as much as it does us.
GENERAL NIKITCHENKO. That is quite understood. We think it is perhaps very advisable to remind the judges that there may be a possibility of attempts by the Fascists to use the courts as a sounding board for accusing the Allies of imperial designs.
MR. JUSTICE JACKSON. We had thought they may attempt to break up the trial through some of their techniques of behavior and thought that another section should provide very strict control, even to the extent that they should be denied the privilege of defense if their conduct is consistently in violation of orders of the court. The question of propaganda may be a somewhat difficult one. I think the scope of our charges will have to be considered in the light of what we expect to be answered. We certainly do not want to permit this to be turned into a trial of anyone except those accused, and we shall have to look to our accusations and cut our indictment to what we expect to try. We shall have to hear them within the issues. It is one of the important things about defining carefully the acts which constitute crimes. So far as we are concerned, we have never thought there was any basis in this case for trying the remote causes for this war. Our definition of crime does not involve causes; it involves only actual aggressive war-the attack. It is one thing to attack for remote reasons. It is another thing to have a war of self-defense, which I suppose we all concede is permissible and not a crime. We shall have to consider these articles carefully as definitions of crime. We have no thought here, in charging them with launching an illegal war, to have a general trial of German grievances.
GENERAL NIKITCHENKO. Don't you think it reasonable that provisions must be made to stop all attempts to use the trial for propaganda?
MR. ROBERTS. Irrelevant propaganda.
MR. JUSTICE JACKSON. I think some admonition could be embodied. I think the draftsmanship Deeds to be skillful in order to avoid the implication that the nations conducting this trial are afraid of something.
Number 19, on punishment, I think is fairly obvious. The only question was whether the extent to which the Control Council should have authority to control the sentence should be a continuing authority to reduce but no authority to increase.
MR. ROBERTS. Before we pass from 19, I think we on our side of the table are not in favor of the Control Council having the power of approval because, I suppose, if they have the power of approval, they have the power of disapproval, which means they could set the decision of the Tribunal aside. We personally would not like that.
MR. JUSTICE JACKSON. It was not intended to permit disapproval of a finding of guilt or innocence, but only modification of the sentence.
JUDGE FALCO. Can we really decide on this before knowing what the relations will be between the Allied Council and the International Military Tribunal?
GENERAL NIKITCHENKO. After all, we are not taking any decision now. We are merely discussing and clearing up various points in this draft. It will be done later when we shall decide what exact principle should be embodied.
MR. JUSTICE JACKSON. Number 20 leaves sentences to be directed under the Control Council. Number 21 has already been discussed. Number 22, 1 think, is obvious. Numbers 23, 24, and 25 deal with financial matters that are not very important to these defendants.
It was agreed that representatives of each nation other than the United States would prepare memoranda of objections and suggestions, and the Conference adjourned to meet Friday, June 29, 1945, at 10 a.m.
International Conference on Military Trials : London, 1945
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945
International organization and conference series; II
European and British Commonwealth 1
Department of State Publication 3080
Washington, DC : Government Printing Office, 1949