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At the opening of the Conference, General Nikitchekno handed the other delegates a draft agreement embodying Soviet proposals [XIX].
SIR DAVID MAXWELL FYFE [presiding]. Gentlemen, we have the redraft of the American agreement in the form of an agreement and an annex [XVIII], and we have just received the draft of the Soviet agreement [XIX]. If it would be convenient, I shall ask Mr. Justice Jackson to say something about his redraft.
GENERAL NIKITCHENKO. With regard to the second part of the Russian proposal, we shall be able to present that in Russian today, but, if the Conference prefers to wait until tomorrow, we can also present it with the English translation.
SIR DAVID MAXWELL FYFE. Would it be convenient to hear Mr. Justice Jackson on the American draft in the meantime?
MR. JUSTICE JACKSON. We made a redraft which was a rearrangement in the form which we understood was desired of all the essential features of our plan, and I have addressed to the delegations a short memorandum which is intended to be a plea that before you abandon or reject some parts of our proposal a little more consideration be given to it.
I understand the Soviet memorandum to reject the possibility of trying organizations. The American proposal is that we utilize the conspiracy theory by which a common plan or understanding to accomplish an illegal end by any means, or to accomplish any end by illegal means, renders everyone who participated liable for the acts of every other and in connection with that to utilize these closely knit voluntary organizations as evidence of a conspiracy. That is a rough way of describing our proposal. That is the heart of our proposal. Without, that it means many trials, which we are not set up to engage in. To my mind, rejection of this plan leaves nothing of our proposal as to organizations which is really worth considering. Therefore, it seems to me that we should give some consideration, before it is rejected, to its merits and to any possible alternative.
These organizations constitute the means through which, under the American proposal, a large number of people can be reached with a small number of long trials-perhaps one main trial. The difficulty in our case is that we have in the neighborhood of perhaps 200,000 prisoners. We don't want to have 200,000 trials. Some of them perhaps ought to be tried individually on charges of individual criminal actions; but also they should be tried for their part in the planning of extermination of minorities, the aggressive warfare, the atrocities against occupied nationals, and offenses of that character. We think this should be done in a single effort so far as the collective guilt is concerned. Any other plan means moving about from place to place and in many territories, and going back, we think, substantially to the first part of the Moscow declaration rather than carrying out the second part, by which we hope to reach the principal Hitlerite planners. We see no way that we can unite in trial of these large numbers except on some basis such as we suggest, and we would be disappointed if some plan of that kind were not acceptable. If that were acceptable, the procedures by which the prosecution could be conducted, we think, could be worked out so that it would represent the best that is in our several procedures as adapted to military tribunals. We think use of the military tribunal relieves us all of trying to carry our ideas of ordinary court procedure into this trial.
We assumed from the negotiations before London that the American suggestion, including trial by conspiracy principles and the trial of organizations, was generally acceptable. We understood that there was objection by the Soviet Union to recognizing the legality of the existence of these organizations after the surrender. We are quite ready, of course, to agree that these organizations have no present legal existence, but that does not prevent effectiveness of a trial concerning their criminal character in the past when concededly they were in f act in existence, nor prevent use of membership as evidence of conspiracy. We think the objection that nothing should be done to give recognition to their present validity is a proper one that we can accede to without any impairment of our position that participating in them was a conspiracy. We would be ready to put in a provision expressly recognizing that they have been dissolved by virtue of the surrender and acts of the military government and that no recognition of their legal existence from now on is to be implied by the terms of the agreement.
We are entirely willing to take up the discussion of any counterproposal, but our discussion of a counter proposal would, of course, proceed upon the basis that our draft is still before the Conference for consideration and has not been rejected. If that is so understood, we are ready to take up anybody's proposal.
PROFESSOR GROS. Actually, very divergent opinions have been expressed on the question of organizations. We studied the new American memorandum and again the Soviet objections and have endeavored to understand these divergent views, and we shall try to suggest ways to reconcile them.
First, what are the facts which we are discussing? Countless crimes have been committed by those organizations during the war-the Gestapo groups, S.S. Systematic criminal activities have been committed against the peoples of the occupied countries of which two of these delegations can speak from personal knowledge, and systematic criminal activities have been going on for years. These systematic criminal activities are no accident. The association of those groups was not accidental. These gangs in many localities were tied by one allegiance to a major organization-Gestapo, S.S., S.A., or others. If we want to reach the major war criminals, these major organizations must be our target. On that first point I cannot really see a divergence of views between the American and Soviet suggestions on the facts.
Now, as Mr. Justice Jackson said much better than I would be able to say, if we do not try these organizations as organizations what will be the situation? I propose to suggest that it would not be satisfactory in the interest of the Four Powers nor in the interest of the United Nations to f ail to try them. I submit that war criminals will not be punished merely under the declaration of Moscow or of Yalta. They should be punished even without those two declarations. They should be punished because they merit punishment of war criminals, and those two declarations are only reaffirmation of the principles of international law. But the question of application remains completely open and the declaration of Crimea, as I read it, has little significance by its own terms-"We are determined to. . . bring all war criminals to just and swift punishment . . ."
I will insist again on those terms of the declaration. We are committed to bring all war criminals to justice, and we cannot take those words as a legal pronouncement but only as a declaration of intentions reserving all question of application.
Now that the political solution of the punishment of war criminals has been put aside and provision has been taken to punish them only after trial, we would like to have a situation before the Tribunal where the organizations would be duly exposed to the working of that plan and function and pronounced not merely "illegal" but "criminal". That could have been done by the heads of state, but, as it was not and will not be done by them, it must be done by the Tribunal. It is not enough to wipe out the Nazis from now on, but it must be proved and explained to the public opinion of many countries what has been going on in Germany and Europe for years. I don't suppose there can be any divergence of opinion in the four delegations oil that second point. If we are not in accordance on the facts, we should be in accordance on that big objective. Now perhaps, if we are not in complete agreement, I will just indicate what would be the position of the French for the moment and adapt it to any suggestion of the other delegations. It is on the question of the result of the trial of an organization before the Tribunal. We do not think of it as punishing equally all members of the organization, but the situation would be more like this: First, if a special crime is alleged against one of the members, a special trial will be put against him in the local court or in the occupation court. Second, if, on the contrary, certain supposed members can prove that they are not members of the organizations, that they had no knowledge of the purposes of the organizations, that they had been forced into membership, then they could probably be discharged. Third, in the case of other members against whom no special crime can be proved or who cannot prove their innocence, the organization would in a sense be what the British call "outlawed", and we do not insist upon the kind of punishment that would be applied to them. It might even be decided by higher authorities.
Now, can we really have such a trial? I understood in one of the last meetings that the Soviet Delegation said it was impracticable to have such a trial for organizations. Most of their criminalities would no doubt be collective crimes. Such collective crimes are known in the French system of law and in the Belgian system of law, and we may be making a mistake but I think also in the Soviet system of law-crimes committed by gangs. What we demand is, in fact, the application by the International Military Tribunal of the same process of charging and punishing gangs. I know that in those systems of law trials are required against members before punishing them, but we consider that the trial of 10 or 15 leaders of an organization is the trial of all the organization and leave open for the rest of the members the question of individual punishment. If we do not try to find any solution, we will be back to the difficulty of letting them go or of punishment without trial at all. This latter solution would be difficult to sustain years after the capitulation of Germany, but a decision of the Tribunal would be the leading precedent, and the necessity of trial is such that even after the declaration of Crimea and the declaration of Moscow we still need it. This being so, I wonder if we could try to come to an agreement, as we all want the same results. Taking the idea of the Soviet draft which I just received this morning and have not been able to study in detail, could we put "groups of persons or associations" in article 2 under the range of crimes [XXI1I, Soviet draft], and then there would be no disagreement among us? We would propose that as a formal suggestion.
Now we would like to ask the Soviet Delegation what part of those ideas it could accept because it would help come to an understanding and we would know whether we could agree that those gangs of criminals must be taken as a whole, and what do they suggest as a mode of punishment if there is not one single trial?
SIR DAVID MAXWELL FYFE. I would like to direct what I have to say to what I understand was the difficulty as to the organizations, and I begin by quoting the passage in the Crimea declaration which I think caused that difficulty: "It is our intense inflexible purpose to bring all war criminals to just and swift punishment . . ." and these are the important words----"'to wipe out the Nazi party, Nazi laws, organizations and institutions, remove all Nazi and military influences from public office and from the cultural and economic life of the German people." As I understood Mr. Nikitchenko's difficulty, it was this: that implies that the organizations are illegal and should be destroyed, and therefore it would be difficult to leave to a court as an open question whether the organizations were illegal. That I understand as the difficulty.
It seems to me that the answer is that we must place before the court and the court must determine what these organizations have actually done. Assuming for the moment that we were prosecuting Kaltenbrunner, one thing that would be alleged against him would be that he carried out the conspiracy by means of the Gestapo, and the purpose and method and actions of the Gestapo would be a part of the charge and part of the proof. Therefore, it will be part of our method of proof against the individuals to show that these organizations were part of the carrying out of the general plan. I should hope that the court would declare that this was so in the judgment they would pass.
It, therefore, seems to me that whatever form we took we should be bound to bring the question of the purposes, methods, and acts of the organization before the court, and in doing so we would not be going contrary to the Crimea declaration but merely bringing it into effect. The result of that would be, as Professor Gros has pointed out, that it would be declared that these organizations were not only illegal but criminal in their action. This would be binding on the occupation courts and on our military courts and every individual member of the organizations who could be brought up and charged with their membership in the absence of any additional charge. By this means we should avoid the result that thousands of members of the Gestapo and S.S. would be walking free in Germany when everyone knew they bad committed abominable crimes, that is, in a case where we would not prove a specific crime against the member with the evidence available.
GENERAL, NIKITCHENKO. The Soviet Delegation states that they have very carefully studied the documents they have before them including the new American draft, and from that and also from what was said around the table do not see that there is any brief for the very Pessimistic view expressed by Mr. Justice Jackson that there is a question of such fundamental difference in views between us that either the American draft with regard to the trial of organizations has to be accepted or that we are in complete disagreement.
We consider that some of the misunderstandings are undoubtedly based on what is not a clear idea of what the Soviet Delegation is ready to suggest, and, if we are able to make quite clear what our proposals really amount to, then a lot of the objections which have been raised around the table will automatically disappear.
The basic question is the responsibility of organizations and whether it is possible to get a legal declaration by the court that organizations are criminal. The view that the Soviet Delegation has excluded the possibility of the trial of members of organizations for criminal participation in the work of such organizations is not correct.
The Soviet law, criminal law, fully recognizes in exactly the same way as the French, and probably others, the collective responsibility of members of an organization for the crimes committed by the organization. The theory of the Soviet criminal law fully recognizes the trial of gangs or organizations and the responsibility of the members of such organizations in addition to any individual responsibility they may carry for individual acts. Where we do not agree is in the idea that the trial of organizations should form actually the basis of the agreement for the trial of criminals. An organization is not a physical body, but the members of that organization are physical, and, if they have committed individual crimes as members of the organization, then they should be tried individually as physical persons who have committed acts because they were members of a criminal organization.
In order to establish the criminal nature of the criminal actions of the organizations, in the opinion of the Soviet Delegation, it is necessary to investigate the actions of individuals of the organization and to establish the fact that they have committed criminal acts by virtue of their adherence to the organization. How otherwise can we establish that the organization has in fact committed criminal acts unless we are able to prove whether individuals belonging to it have committed such crimes?
Does the trial, by the court, of individuals necessarily exclude the fact of the trial referring to the organization? In f act, what they are proposing is that the members of the organizations-S.S., Gestapo, and so on-have committed certain crimes in certain definite places, which crimes can be proved, and the whole group will be tried. It is immaterial whether the number of prisoners is 10 or 100 or any other number, but the fact that those individual prisoners are tried and convicted does, in fact, prove that the whole organization to which they belong is in effect a criminal organization. The way to establish that proof is not by the trial of the organization as such but by the trial of the individual members.
SIR DAVID MAXWELL FYFE. May we have a restatement of that, as it is of vital importance and we seem nearing an agreement?
GENERAL NIKITCHENRO. The Soviet Delegation consider that the Tribunal could try not merely individuals but groups. It would be immaterial whether those groups consist of members of the German Government, of the S.S., of the Gestapo, or any other organization, and it would also be immaterial how many of the persons accused were on trial at any one time, but the main point would be that the establishment of the criminal responsibility of those individuals would in effect establish the criminal responsibility of the whole organization to which they belong.
I would just like to note that the main difference between the Soviet and American plans appears to be that the American Delegation suggests the trial of the organization and then, having established the criminal character of the organization, to proceed from that to the trial of the individual adherents of the organization. The Soviet Delegation considers that that approach would not be the right one to secure conviction and punishment for individual members,
The second question is, what would be the consequences of a verdict by the court in regard to certain members of an organization upon other members of the same organization who might not be before the court? The Soviet criminal law is based on the fact of the individual criminal responsibility of the individual person. It is immaterial whether he committed some action alone or as a part of a gang; he has to carry individual responsibility for the action he has committed, one way or the other. We therefore consider that a decision of the court which establishes the criminal responsibility of the heads or the leaders of any organization of that kind automatically establishes the criminal responsibility of the various subordinate members of the organization. But that does not mean that the national courts or the occupation courts can apply punishment to all the members of an organization simply on the basis of the decision by the Tribunal of the trial of the individual members of that organization.
It is not our task to define the functions of either national or occupational courts. According to the national laws of the various countries the basis on which criminal responsibility is established differs, and it may be that in the American and the British legal systems the court has to have the precedent of a declaration of illegality before it can proceed against the individual members. The Soviet law does not require any such precedent to base itself on. It simply takes the trial of the individual and the establishment of whether his actions were criminal or not as the basic part of the trial.
I am not prejudging in any way what form or in what text the decision to which we will come here will be set out. That will have to be worked out in the course of discussion, of course, but I wanted the other delegations to understand correctly the views of the Soviet Delegation on this question of criminal responsibility of individuals and organizations.
With regard to the question of whether we agree that these organizations are criminal or not, there is, of course, only one answer , but it is not necessary in order to establish the criminality of the organization to have a separate trial of the organization itself. The duties of the Military Tribunal will be to try the chief war criminals, and whatever decision the court comes to on the criminality of those chief war criminals will apply to the organization which they represent. I think that replies to the question which Professor Gros put forth.
If anything is not clear in what I have said I should very much like the delegations to set out their questions, and I will try to make the position of the Soviet Delegation clear.
PROFESSOR TRAININ. I would like to say a few words with regard to the American memorandum. This sets forth two principles: the first is the authority of the Military Tribunal, and the second is mutual understanding. With regard to authority, the Soviet Delegation fully agrees that the position and authority of the Military Tribunal should be placed as high as it is possible to place it, and, in regard to mutual understanding, we trust we shall do everything to play our part in the proceeding.
I should like to say in regard to the question of the responsibility of organizations that certainly in the Soviet draft there is no specific mention of the responsibility of organizations. But that does not mean that the establishment of criminal responsibility of organizations will not in effect be arrived at. The absence of mention of the responsibility of organizations in the Soviet draft does not mean the exclusion of them and the Soviet draft does not set forth the responsibility for membership of criminal organizations. But in our opinion this principle should not be included in the agreement between the Four Powers but should be included in the statute of the Military Tribunal. In the American draft, paragraphs 23 and 25, this question of criminal responsibility of organizations is mentioned, and provided that question is included, not in the agreement but in the statute of the court, I am quite sure that in one form of words or another it can be included. The words in which this is included are a question of drafting which, of course, can be materially agreed, but the main point is that in paragraph 22 of the American draft the fact is brought out that the trial of individuals can establish the responsibility of the organization to which they belong, and no doubt, once this is recognized, it will be fairly simple to reach some form of drafting.
I am not going to waste the time of the Conference on suggestion of -various drafts that will have to be worked out in a drafting committee, but in conclusion would just like to express my appreciation of the remarks made by Mr. Justice Jackson where, if I understand it correctly, he has confirmed that it is only on this one point that there is really any major difference between the views of the Soviet Delegation and those of the other delegations.
MR. JUSTICE JACKSON. I think our difference on this point is not as serious as I had taken it to be. From the fifth paragraph of the comments submitted to us, and as translated by us [XVI], the Soviet Delegation suggested that the reference to the possibility of arraigning organizations before the Military Tribunal should be excluded from article 10, and again in the twelfth paragraph suggested that articles 21 and 22 concerning criminal responsibility should be eliminated. I, and our Delegation, took it that the elimination without substituting anything else left it impossible to reach the groups at all, and it was on that basis that it looked like a wide difference of opinion. I should be glad to point out that I think the suggestions you have, made this morning left us much closer together than I had supposed.
GENERAL NIKITCHENKO. Could we answer that question? I should like to say that, when we examined the first draft of the American proposal, we actually made our notes on that draft, and what we were protesting against really was the wording of 21 and 22. We understood from this, perhaps incorrectly, that it was the question of the trial of organizations without individuals and that the organization would simply be tried as a body. We considered that to be wrong. We considered that the trial of the organization should be through the individuals, and therefore we suggested the exclusion of that portion of the memorandum.
MR. JUSTICE JACKSON. An essential step in declaring the criminal character of such organizations as we are dealing with here is not stated in our memorandum and perhaps caused this misunderstanding. We assumed it without stating it because in our philosophy it would be a necessary step. We propose to reach the organization through proof of what individuals did, just as you suggest. We take the same step of trying what the members did, what the common plan was through proof of what individuals agreed to, and we attribute what they did and agreed to do through the group to the organization. Then we take the next step of attributing the common principles that ran through the organization to the members. We, too, believe in individual responsibility and f or that reason could not attribute the acts of the leaders to the members unless we proved that the acts of the leaders were within some common plan or conspiracy. The mere fact that leaders did some particular act, unless within the plan of the conspiracy and within its probable scope, might not bind others to that act. Therefore, we have to tie the acts of individuals to the organization and then the organizational purposes and methods to the individual members. But we do not think we are speaking of a great difference of substance. I think the difference is not as great as it appeared to be.
GENERAL NIKITCHENKO. I would just like to ask one question. Does the decision, when it has been reached in respect to an organization, by the court in this case, apply to all members of that organization; and, once the organization has been established as a criminal one, does that mean that punishment can be meted out to all members of that organization by national or other courts, or is it still necessary that those members should be put through a process of trial, either individually or in groups or gangs, or any other way?
MR. JUSTICE JACKSON. There would have to be an opportunity given to an individual, before he could be brought under the general plan, to show that there was a mistake in identification, that lie was not a member in fact, or to show that he joined because he was forced to join, or some reason why the general finding of guilt should not be applied to him as an individual. He must have a chance to bring forward his individual situation, but he does not have a chance again to question the finding that the organization is guilty of particular plans or designs or offenses. That is settled in the one trial and all that he can thereafter be heard to say concerns his particular connection with the criminal design.
SIR DAVID MAXWELL FYFE. To put it quite bluntly, he could not be heard to say that the Gestapo, having been found to be a criminal organization in the trial, was not a criminal organization.
MR. JUSTICE JACKSON. Now let us see what we are trying to reach by this method that we might not reach otherwise. Let us suppose that there is a very active member of the S.S. -active in organizing, active in getting in new members-but he never took a personal part in a single crime. He helped to formulate the general plan; he knew about it; lie knew the methods; he knew that their plan was to exterminate minorities, to run concentration camps, to do all these things; but you cannot prove by any witness that lie was present when a single offense, standing by itself, -was committed. By reason of his membership in this common criminal plan and by reason of his participation in it, we would expect to reach him. Now the difficulty is that there are several hundreds of thousands of members of these organizations. You cannot get witnesses, at least we haven't thought we could get witnesses, to prove where each was at all times and prove what he did. It is very hard to identify persons who are in uniform and to get accounts of their part in acts of the organized military or paramilitary units. Therefore, we would expect to be able to show what offenses were committed, and then every person who was a, part of that general plan, whether he actually held the gun that shot the hostages or whether he sat at a desk somewhere and managed the accounting, would be responsible for the acts of the organization.
It may not bear on this particular plan directly, but it may bear on the thinking that is back of it as to whether one treats, in his system of jurisprudence, organizations as juridical persons, for purposes of trial. We in our system treat corporations and certain associations and organizations as juridical persons, and permit them to come into court and sue; and while we are not applying that principle in its entirety here, it perhaps makes it less unusual to us to think of trying an organization. than it would if you do not treat organizations as juridical persons. I am wondering if your system does treat organizations under some circumstances as juridical persons.
PROFESSOR TRAININ. The question of juridical person is quite well known to the Soviet legal system, but it is applied in civil law, and they do not recognize this principle in their criminal law. In the criminal law it is necessary to bring home the responsibility to individual persons and not to condemn organizations. That does not in the least prevent the conviction of a person for adherence to or membership in a criminal organization, and the Soviet law provides for the trial of gangs or criminal associations, and it also provides for the trial of an individual for being a member of a criminal organization.
MR. JUSTICE JACKSON. I think the statement was made that the conviction of heads under the Soviet system would establish the responsibility of the members. That would be a somewhat more drastic application of the principle than we would be familiar with. It is not only necessary that the individual be responsible, which lie is if he knowingly becomes a member of the gang, but that he have some opportunity in trial to defend what he has done. That is to say, you cannot, under our system, attribute guilt to a person who has not had an opportunity to appear and defend on the main issues. Therefore, it is necessary under our conception of reaching that individual that lie shall have the right, at least by some representative arrangement, to be heard. That can be given him only, as we see it, if you put the organization on trial and give notice to the membership as far as can be given that the organization is on trial and that the members who are to be affected by the judgment may appear and defend it. That is, a mere decision that the heads of an organization had made a criminal conspiracy would not be sufficient to convict any member who was not a party to the trial or given an opportunity to be heard in some, way, and that is why we had provided under the section on "Fair Trial for Defendants" [paragraph 14] that "reasonable notice shall be given to the defendants of the charges against them and of the opportunity to defend", that "such notice may be actual or constructive", and that "the Tribunal shall determine what constitutes reasonable notice . . . . "
Probably nobody, or at least few persons, in Germany would step forward and admit that they were members of these organizations. But under our system we would have to give them some notice and an opportunity to be heard. That does not necessarily mean that the Tribunal would have to hear each individual, but it would be necessary that in some way they have an opportunity to be heard before you can attribute guilt to them.
GENERAL NIKITCHENKO. Perhaps that point has not been quite clearly understood. According to the Soviet criminal law the members of a criminal organization are tried individually, but their being found guilty, if they are found guilty, does not mean that the organization to which they belong is declared to be a criminal organization. The Soviet law provides, in the case of criminal trials, for the trial of persons for infringement of the law itself and the commencement of the process of the courts against them. Whether it is a single individual or a gang, the man or the gang must be tried, and there is no automatic provision that because one has been convicted all other members are thereby pronounced guilty.
In fact, in the Soviet criminal law, when the trial of a member of an organization has proved that the organization to which he belongs is a criminal one, the responsibility is not on the individual to come forward and confess that he was a member of such an illegal organization. The responsibility is on the prosecuting organs of the court to bring a charge against that individual, and, when the prosecution brings such a charge and the individual is placed on trial, he is then given the opportunity of proving or disproving whether the accusations made against him by the prosecution are correct or whether he has acceptable legal defense against those accusations.
MR. JUSTICE JACKSON. The question I would like to ask about that is, when the member is brought to trial, would he be entitled to try again the question as to whether the organization was criminal or just entitled to try whether he participated in it voluntarily?
GENERAL NIKITCHENKO. The Soviet Delegation says that under the Soviet law there would be no question whatever of a man being permitted to raise the point again whether the organization itself was criminal or not. Once the court had decided in any case, no subsequent trial could raise the question whether it is criminal or not. It has definitely been pronounced criminal. What he can do is to produce at the trial evidence that he did not belong to the organization, or took only a minor part in its proceedings, or possibly did not know for what purposes the organization existed, or perhaps that he was forced to join it, but those factors would be considered by the court as providing the basis for his acquittal or reduction in penalty in his individual case.
MR. JUSTICE JACKSON. That is a very excellent statement of what we are trying to get expressed in our document as to the method we would pursue here.
GENERAL NIKITCHENHO. I would like to add that what has been said, of course, refers to Soviet law, that in international law there is nothing which would cover the question of criminal responsibility of persons or organizations except one agreement which covers the question of acts of terrorism, to which of course the Soviet Delegation is a party. But in the American draft of this paragraph 5, which they ask to be included, they set forth actions which are to be presumed criminal. The opinion of the Soviet Delegation is that it is not the function of the International Military Tribunal to define what actions are or are not criminal in the case of war criminals, but that that is already understood.
MR. JUSTICE JACKSON. Reverting to the question of the method of trial of gangs.
MR. TROYANOVSKY. There was a slight misunderstanding in the translation.
GENERAL NIKITCHENKO. [Restatement.] Article 5 of the American draft does, in fact, set forth the points which should form the nucleus of an international law.
MR. JUSTICE JACKSON. Coming back to the question of the trial the reason we prefer the main trial to establish the guilt of the organizations, with that trial to include the most responsible leaders that we now have in captivity, is that we will have, for a long period of time, people showing up in various parts of Germany who are members of these organizations but who could not be obtained for trial at the present time. We do not want to have to go through a trial of the main issues every time a group or a number of them is captured. What we want to do is to get the organizational trial over with so that as fast as they are found they can be brought before a military court or a subsidiary tribunal, not the main tribunal-brought in and, if they can establish that they are not members or took only a minor part or anything else that should be considered on their behalf, they can be heard on that, but not again on the question of whether their organization had been a party to criminal conspiracies. We can go ahead as soon as we establish that the organization is criminal as such, and then the individual members can be dealt with as fast as they can be identified and found.
GENERAL NIKITCHENKO. That is quite right, and the accused will have no opportunity of acquitting the question of guilt of the organization laid down either by the agreement or by verdict of the Military Tribunal. The question of the guilt of the organization cannot be reopened once the criminality of that organization has been established. The only question we are emphasizing is that each individual member of an organization should not be subjected to punishment as soon as his connection has been discovered, and that as and when such individuals are found they must nevertheless be given an opportunity to bring forth a defense, and the punishment to be meted out to them will be according to the part taken.
MR. JUSTICE JACKSON. I think we all agree. By Mr. Nikitchenko's reference to the conditions of paragraph 5 of our memorandum, I do not take it that he objects to including a statement of the acts, which are considered criminal violations of international law, but is a matter of draftsmanship as to the place it should go in the agreement.
GENERAL NIKITCHENKO. No doubt at a later meeting we will be discussing the draft of this paragraph, but as to including such a paragraph in the document the Soviet Delegation has no objection whatsoever. This article must, in fact, become the point of international law on which the guilt of individuals or of organizations will eventually be based.
MR. JUSTICE JACKSON. We agree.
SIR DAVID MAXWELL FYFE. Would it be convenient to break off a this point? I would like to say how pleased I am that we have bee able to reach an agreement on a great many points at this sitting.
The Conference adjourned.
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