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SIR THOMAS BARNES [presiding]. When we stopped yesterday, we were discussing the functions of the Chiefs of Counsel or investigation commission, and I think we arrived at a common ground. We heard a helpful statement by Mr. Nikitchenko and do not know whether Mr. Justice Jackson would like to comment on what was said.
MR. JUSTICE JACKSON. There is nothing that I would think of adding at this time. I think it is a matter of trying to reconcile the draftsmanship largely. We may have differences that will develop in draftsmanship, but I think it is in readiness to be considered on the basis of draftsmanship.
There are one or two other subjects on which we would like a little discussion in order to make clear what we intend. In article 1 of the Soviet draft [XXIII], where the purpose of the Tribunal is set forth to be the just and prompt punishment of the major war criminals, we would like to see "trial" in place of "punishment" or "trial and punishment". At least we would like to make clear in the draft, or whatever draft comes out of this, that the function of the Tribunal is to try as well as to punish.
GENERAL NIKITCHENKO. Of course, in the draft we can produce the necessary corrections, and, therefore, the Tribunal is not only to punish but definitely to charge.
MR. JUSTICE JACKSON. In the fifth subdivision, article 16, we would not think it appropriate for the Tribunal to return the case to the commission for further investigation. In other words, our conception of the Tribunal is that it has no function in regard to the prosecution, but its function is to determine the merits of the case as presented.
A similar observation would be in order as to article 17. We think that the Tribunal would not have the function of deciding what witnesses should be called nor the place of hearing, but that that function, so far as calling witnesses is concerned, is one for the prosecutors, and the place of trial is one which would have to be fixed by agreement, having in view the facilities available and the general desires of the military authorities in connection with it.
GENERAL NITCHENKO. It is the business of the commission to collect the material for prosecution while the business of the Tribunal is to judge on the material collected. The opinion is that in case the material is insufficient and the Tribunal thinks the case has not been sufficiently investigated, it would be better to refer it back to the commission to collect additional material than to have the case come out that the material was insufficient to prosecute.
As far as the place or the time of the trial should be concerned, of course, it has to be in conjunction with the military authorities or the Control Council. It should suit and fit in with their requirements. Further, if the commission, when they investigate, find out they must call a number of witnesses, that should have some bearing on where the trial should take place.
MR. JUSTICE JACKSON. The provision of article 18 as to the place of trial: it seems to us that the last sentence relates to local criminals under the other part of the Moscow declaration and that the international group of criminals should be tried at some one stated place. If the crimes are committed in the locality, it would then be appropriate that they be considered local criminals under the Moscow declaration rather than in our group, and we think great difficulties would follow trying to determine where one of the international criminals had been criminal at his worst. Therefore, we would omit this provision as to the international criminals.
GENERAL NIKITCHENKO. There is a similar paragraph in the American version, or a similar sentence. It is rather difficult without a concrete case in hand to decide whether the criminal should be charged in the place where he committed his worst crime or in a general sense, and it is not advisable to bind the court beforehand to the decision it should take. The paragraph is not binding but just a suggestion.
MR. JUSTICE JACKSON. I wonder what sentence in our draft General Nikitchenko, thinks conveys this meaning. We did not intend such a meaning.
SIR THOMAS BARNES. Paragraph 7 deals with this question but not in the sense stated.
GENERAL NIKITCHENKO. The provision is slightly different in article 7.
SIR THOMAS BARNES. Do you accept the provision of article 7 of the American draft?
GENERAL NIKITCHENKO. We are prepared to change the Russian draft or the American draft.
SIR THOMAS BARNES. I was asking -whether the Soviet Delegation was willing to accept article 7 as drafted by the United States.
GENERAL NIKITCHENKO. It is not a sufficiently serious question to have division of opinion and could be drafted to say the court should have the right to say where it should take place.
MR. JUSTICE JACKSON. We have some difficult problems in reference to the place of trial. We have problems which, as we see it, are not problems for the court but are problems for the governments involved.
If prisoners to a considerable number are brought to trial, there are security problems and the matter of custody, feeding, and billeting. There is the matter of having access to them for interrogation. All of those are things for which we do not depend on the court and about which we would not think the court ought to have any function but on which we, for ourselves, would depend on the American Army as to choice of any place of trial. Then, too, there is the question of the facilities for the trial. Now this is an important question. Many of these provisions turn on it, and therefore we think we should discuss it. We are told that as far as the American occupation authorities are concerned, they do not want us to conduct these trials at a place which is also the seat of government, such as Berlin or Frankfort, because those points are already crowded, it is difficult to obtain sufficient building space, difficult to obtain facilities, and they prefer, as I understand their attitude for security reasons and others, that these trials should take place at some point other than the seat of government. Now that would mean that the trials would not take place at Berlin as has been suggested, and it has been suggested to us that Nurnberg would be an appropriate place from the security point of view of the American Army. It may also be appropriate from the point of view that the Nazi movement had its birthplace there.
Of course, I am not speaking of the individual trials which would follow a main trial, nor of other trials in which individual defendants should be tried. I am thinking of the main case against the Nazi leaders, the organizations, et cetera, in which we see no occasion for more than one trial. For that we think there should be a fixed location because it will involve the bringing in of a great many prisoners and a great many problems of handling the people who will have a right to be present.
GENERAL NIKITCHENKO. The place where the main trial should take place could not be decided just now. On the general lines suggested by Mr. Justice Jackson, the trial of the whole organization could take place in Nurnberg, but there would be other trials identified with a certain country-for instance, Frank, who committed crimes in Czechoslovakia and who might be demanded by the local population for local trial so that they might be sure the criminal had been caught and suffered just punishment. The same would apply to other criminals, and it would be advisable to try them in the country where they had committed their main crimes.
Any trial that should take place in occupied Germany should take place by agreement of the central Control Council, but trials in other countries should be in agreement with the local government.
Mr. JUSTICE JACKSON. Of course, our difference in viewpoints may be caused by the fact that we seem to be talking about different kinds of cases. Karl Hermann Frank's case has already been dealt with in this way. We have advised our State Department that, so far as we are concerned, we have no objection to turning over Frank to the Czechoslovakian authorities for trial, provided, first, that he is protected against any mob violence and is tried; second, that the Americans, whose prisoner he has been, shall have the right on behalf of this group to have a representative present at any interrogation and have a copy of the interrogation; third, that we shall also have the right to have a representative present at the trial and have a copy of the trial proceedings for use here; that, if sentenced to death, he shall not be executed until our trial is over and we know that we do not need him; and that he will be returned to us at any time we feel we need him for the purposes of this trial. Now we do not think we have anything to do with the trial of Frank or need make any provision here for it. We are thinking of making provision for the main trial or trials, and that is why we want to leave as much as possible of local things to local people and confine our document to the main conspiracy case involving the top people, and the top people only.
MR. TROYANOVSKY. Would you mean an American representation at the trial ?
MR. JUSTICE JACKSON. A representative on our behalf whose interrogation would be available to everyone who joins in the prosecution of Frank. At the present moment we are not sufficiently organized here so that anybody is collecting evidence on behalf of the group, but I am frank to say that for the United States we are going ahead getting evidence every place we can get it and have been for a month, and we expect to make it available to all prosecutors.
GENERAL NIKITCHENKO. We quite agree. Local crimes should be tried locally. We only gave Frank as an example, but there are other main, criminals who ought to be charged by the international court but still whose activities refer mainly to certain countries and can be localized, and we had those in mind when we made the amendment to the draft.
There are criminals who may be claimed by different governments, like France or Britain, those who have committed mainly crimes against their governments. For example, Goring was mainly responsible for the attacks on London, and therefore the British Government might claim that his trial should take place in London.
MR. JUSTICE JACKSON. Where does the Soviet Delegation think Goering's trial should take place?
GENERAL NIKITCHENKO. I would not like to suggest a place where Goering should stand trial. He may be charged as one of the main criminals in Nurnberg. On the other hand, if Britain should think he should stand trial in England, I do not think we should have the power to refuse such a claim if reasonable.
SIR THOMAS BARNES. But Goering is a major war criminal. In respect to his local crimes, that ought to be subsidiary to the main trial.
MR. TROYANOVSKY. He would be tried as a major criminal, but perhaps in London ?
GENERAL NIKITCHENKO. I quite agree he should be tried as a main war criminal and by the International Military Tribunal, but the place of that Tribunal may be London if the British Government should think it satisfactory.
SIR THOMAS BARNES. We had come to think all major war criminals should be tried in Germany.
PROFESSOR GROS. It seems there are two questions here: one which is essential, and one which is secondary. The essential question is the seat of the Tribunal; the secondary one is that, under certain circumstances, which would be exceptional, some committee could decide for certain reasons that the trial should be sent to another country-but that should be exceptional. The Governments agreed the trial should be in Germany, and I think it should be for exceptional reasons. It seems most important to have those people tried there and tried as major war criminals because they are responsible for all crimes against the United Nations. Taking the case of Goering -he is responsible for many crimes in Europe, and it would be very difficult to settle the question of where he should be tried other than Germany. I think we could agree on a permanent seat for the trial, and I feel that the Soviet Delegation should have no objection to Nurnberg except where it will be decided by the Governments that such trials should be in other countries.
GENERAL DONOVAN. Would not that decision be made by the Chiefs of Counsel right here?
PROFESSOR GROS. I would not care to pronounce on that.
GENERAL DONOVAN. We wouldn't want you to pronounce. We just wanted your opinion.
GENERAL NIKITCHENKO. Our opinion is that, as embodied in article 5, the seat of the Tribunal could be fixed in Berlin where the main Control Council is. As in article 18, that means where the session should take place, and I think it might take place in other countries when convenient or in other parts of Germany as required.
MR. JUSTICE JACKSON. We have thought we could use the procedure which is used by the British, and I think to some extent by the French, and by ourselves by which a tribunal takes evidence through a deputy, or a master or auditor-there are various names for him-a delegate of the court who would go to particular localities where there may be evidence, hear that evidence, and report it back. We thought
that with the main tribunal sitting at Nurnberg, if there were evidence to be taken in Poland, in Czechoslovakia, or in London or elsewhere, the Tribunal would reach that by sending a master to take that testimony. In fact, that is one of the ways the taking of testimony in this case would be speeded up greatly - - by the use of masters-and that is why we provided in our draft the use of masters for that purpose. That is in paragraph 10 of our draft.
GENERAL NIKITCHENKO. The collection of material and witnesses should be in the hands of a commission and not the Tribunal, and when trial takes place we do not see how a person could be sent out to another country to collect material. That is why we think a permanent seat of the Tribunal should be in one place, and all cases should go there unless the Tribunal should think they do not want to decide now where it should sit.
MR. JUSTICE JACKSON. The master, under our procedure, would not go out during the trial but as a part of the preparation. But I think we have each other's viewpoints sufficiently in mind so that we understand what the problem is.
MR. ROBERTS. I think we visualize what the Soviet Delegation visualizes - that the evidence be collected before the Tribunal sits, and then, once the trials start, they should be continuous.
MR. JUSTICE JACKSON. Our thought of using masters, sitting a-, delegates of the court, would be that what had been received by them would in effect be received by the court and would so be put into the record as to avoid a duplication.
PROFESSOR TRAININ. The work of the master should be carried out by the commission on the preliminary work. When the case is ready and goes to court, then additional questions may be put by the court and several points may be elucidated by the court, but the master's work really coincides with the work carried out by the commission.
MR. JUSTICE JACKSON. In article 22 is the statement that all attempts to use the trial for Nazi propaganda and for attacks on the Allied countries should be decisively ruled out. We are in agreement with the principle, but I should not like to see it go into the document in this form. If that statement should remain in the document or any statement like it, it might be the basis for attacks on the Allied countries on the ground that there is something that we are fearful of. Although we are sometimes disappointed in judges, we would expect to name to the court judges who could be relied upon, as much as the prosecutors, not to allow this trial to become that sort of propaganda instrumentality, and we would much prefer either more restrained instructions or no instructions on that subject.
PROFESSOR TRAININ. This question could be discussed further, and I think it could be softened down considerably.
MR. JUSTICE JACKSON. The other, and I think the last problem that it seems necessary to discuss here, is in article 34, in which the Control Council is virtually given powers of an appellate court over this trial. That we would not like to see. We think that the trial should be conducted by judges of high standing and that it should not be subject to review by a nonjudicial body such as the Control Council. It would offend deeply the American view of the independence of the court and would quite deprive the trial of the kind of credit that we think its decision should have in the United States. If exercised, it would be deeply resented and, therefore, we think it should not be included.
MR. ROBERTS. I think our view coincides with that of Mr. Justice Jackson.
JUDGE FALCO. We agree.
Mr. TROYANOVSKY. Do you accept the right of mitigation of punishment by the Control Council?
Mr. JUSTICE JACKSON. We do.
SIR THOMAS BARNES. We agree.
GENERAL NIKITCHENKO. If the Control Council has the power to mitigate sentence, they should also have the power to rescind it. For example, if a case has been judged on insufficient evidence, would the Control Council be allowed to pass it back for retrial?
MR. JUSTICE JACKSON. Our viewpoint would be this: the Control Council would have the power of mitigation of sentence, but it should have no function whatever with reference to the finding of guilt or innocence. The finding made by the court or Tribunal as to guilt or innocence would be a final and conclusive disposition of that matter. As prosecutors we might decide to prosecute on another charge, or I suppose the Tribunal might possibly dismiss without prejudice to supplementing the proof or something of that kind. But we would not think that the Control Council or anyone else should be in a position to interfere with the finding of guilt or innocence.
MR. ROBERTS. That is our viewpoint too.
MR. JUSTICE JACKSON. That, I think, gives us the principal points that we were troubled about. We want to express our thanks to our Soviet colleagues for their patience in trying to enlighten our understanding, and to our other colleagues f or bearing with us so long, but I think it is important that we understand each other about these things.
MR. ROBERTS. I think we should also like to express our gratitude, even though I have not had the privilege of being here the whole time.
GENERAL NIKITCHENKO. I am very thankful that all the delegations had so much patience to listen to all the viewpoints.
MR. JUSTICE JACKSON. The American version in paragraph 21 corresponds very much to the Soviet point of view as expressed here, but it is confined to mitigating sentences. The findings of guilt or innocence are not made reviewable by our draft.
GENERAL NIKITCHENKO. I do not think the Control Council could decide a question of guilt. They are only discussing punishment. But if the Council finds the evidence insufficient to arrive at a decision, it should be able to pass it back to the Tribunal for retrial.
MR. JUSTICE JACKSON. We have two steps here-one, the finding of guilt, a conviction. That merely says you are guilty but does not decide what shall be done with you. That is one step. Then the next step is the decision on the sentence, which is the amount of punishment the convicted should bear for the guilt. Now the sentence in our procedure is subject to revision, or pardon, or commutation without touching the finding of guilt necessarily. That is what we have referred to in that paragraph so that the Control Council might revise the sentence downward but not touch the finding of guilt, which a new trial in our procedure would do.
PROFESSOR GROS. The French Delegation thinks also there should be a possibility of modification of the sentence by the Control Council in the same lines which have been put before the Conference by the American Delegation. Now, if I understand the function of the commission, it is the discovery of new evidence on the trial, but, if that discovery is made by authorities under the Control Council, we might perhaps think of a situation in which the Control Council would go to the prosecutors and tell them, "On this trial we have new evidence", but it would be on the authority of the prosecuting commission and not on the decision of the Control Council. In this way the two authorities would be joined in the result, and it would be exactly the result the Soviet Delegation wants.
GENERAL DONOVAN. Under our system it would be the duty of the prosecutor to do that very thing.
MR. JUSTICE JACKSON. The suggestion was made, I have forgotten whether by General Nikitchenko or by the chairman, at a preceding meeting that we name a drafting committee consisting of one from each delegation to take up the details and see how far we can get with the drafting. As far as our Delegation is concerned, we are prepared to accept that suggestion and proceed in that way. I do not know whether further discussion is desired. I shall ask to be excused in a minute because the fourth day of July is a day on which we annually revive our historic hostility toward the British, but just for a noon hour, and I would like to join the American colony in London at their luncheon. You see, General Nikitchenko, we too are revolutionists.
GENERAL NITCHENKO. At this time I trust the hostility will be in a more or less friendly form.
SIR THOMAS BARNES. Would both the American and the Soviet drafts be used in conference or could they be incorporated in one instrument?
MR. JUSTICE JACKSON. We would leave that to the subcommittee, and Mr. Alderman will represent us. He will meet with the other representatives whenever it is convenient and will bring in such help at any time as he feels he needs.
SIR THOMAS BARNES. It would be helpful if we could have two separate columns showing the American draft in one column and the Soviet plan in the other with its corresponding clauses.
GENERAL NIKITCHENKO. I should like to know if the structure, the general form, of the Soviet draft is acceptable.
MR. JUSTICE JACKSON. I do not think we have any serious objections to most of the structure. We are not inclined to stick to any particular form.
PROFESSOR GROS. Is it agreed that the subcommittee will discuss also the drafting of the agreement?
[It was so agreed.]
Mr. TROYANOVSKY. The Soviet Delegation would prefer that there be four members of the subcommittee with alternates.
MR. JUSTICE JACKSON. Do you want the alternates present?
GENERAL NIKITCHENKO. No.
Mr. JUSTICE JACKSON. That is acceptable, and Mr. Alderman will name his alternate at any time he will not be able to be present. At whose call should the subcommittee meet? I'd suggest that you settle on the time so that at least your first meeting will not be delayed.
SIR THOMAS BARNES. I suppose there would not be any objection to Mr. Dean's being present at the subcommittee meetings as he represents the Foreign Office, who would really have to be consulted in the last resort on this matter. That is why he is present here at the Conference.
The first meeting, of the subcommittee was fixed for Thursday, July 5, 1945, at 10: 30 a. in. at Church House.
Note: On Saturday, July 7, 1945, Mr. justice Jackson, with a number of his staff, flew to Wiesbaden, where certain former German officials of anti-Nazi sympathy, who had fled to Switzerland and had been brought to Wiesbaden by Allen Dulles of the Office of Strategic Services, were interviewed and their statements taken. Also, a collection of captured documents of importance to the case was examined.
Proceeding to Frankfort, the group conferred with Gen. Lucius D. Clay, who advised that Nurnberg would be the most suitable place for trials. Going on to Nurnberg, Mr. justice Jackson and members of the staff inspected the Palace of justice and the jail, obtained dimensions and floor plans, and examined billeting facilities. After proceeding to Salzburg and stopping at Munich, he visited the Paris offices set up on the Rue Presburg for preparation of the case. A large collection of documents was under examination there.
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