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Sir David Maxwell Fyfe called the Conference to order and expressed the appreciation of the Conference for the work done by the drafting committee.
SIR DAVID MAXWELL FYFE. Would it be convenient to take the agreement first or has anyone any preliminary point to raise in general?
MR. JUSTICE JACKSON. I should like to raise a question and perhaps also suggest the answer of our Delegation. Lest there be some misunderstanding about it, I came here not only as a negotiator but also as a prosecutor with a staff prepared to stay here and, as soon as we finish the agreement, to begin preparing the case. I have authority(1) to sign any agreement which is within the general outlines of the document which we submitted at San Francisco and of the report I submitted to the President. I think it is important for our preparation of the case that we know how fast we can proceed. During the time the drafting committee was at work, I went to the Continent. I may report that we are having most satisfactory results from the examination of captured documents. We are getting proof tracing the responsibility for these atrocities and war crimes back to the top authorities better than I ever expected we would get it. I did not think men would ever be so foolish as to put in writing some of the things the Germans did put in writing. The stupidity of it and the brutality of it would simply appall you. We want to go right ahead the day we agree here to start preparing for trial. I was wondering, first, whether the other conferees are authorized to sign as I am authorized to sign, or whether our work must be referred back to their governments; and second, whether they are authorized to proceed immediately with the preparation of the case as I am authorized to proceed with the preparation of the case.
GENERAL NIKITCHENKO. The Soviet Delegation has powers only to carry on discussions with regard to the trial and punishment of war criminals and to sign any agreement which is arrived at as a result of those discussions.
JUDGE FALCO. I expect to have authority to sign, but I do not know who will be named prosecutor.
SIR DAVID MAXWELL FYFE. I am in the position that I shall have power to sign on Monday when we have got the document in its final form, and I am the Chief Prosecutor appointed for the trial.
MR. JUSTICE JACKSON. Do we understand then that the agreement on which we are working will not have to go back to Moscow to be signed? It will be signed here when we conclude negotiations?
GENERAL NIKITCHENKO. No, it will be signed here.
MR. JUSTICE JACKSON. But you will not be the prosecutors? It may be a new group to prosecute?
GENERAL NIKITCHENKO. We're not completely certain. The chief prosecuting counsel and the members of the Tribunal may be other people. It is possible they will be other people.
MR. JUSTICE JACKSON. I think that enters into our timing considerably because we all are very anxious to get this main trial under way and concluded. As a matter of fact, the President appointed me on the theory that I would be back the first of October when our Court resumes sitting. I don't suggest I will succeed in that, but I personally must either abandon this project or get it concluded certainly by the first of the year. Our whole plan contemplates one early inclusive trial after which there will be such minor trials as may be necessary to clean up. But the question of guilt of these top people it is our plan to settle in a single prompt and inclusive trial, after which my functions will be at an end.
SIR DAVID MAXWELL FYFE. I think we are all anxious-we of the British Delegation certainly are anxious-to proceed with all possible speed to deal with the major criminals, and I have, purely for the assistance, of whoever will be ultimately the Chiefs of Counsel, prepared my own idea of the list of defendants and the draft of indictment and rules of procedure which are circulated, not for the purpose of being dealt with in detail here but for the purpose of helping everyone along the road for speed.
GENERAL NIKITCHENKO. The fact that the Soviet Government has not appointed-could not appoint-prosecutors for the Tribunal until they had the assurance that the Agreement had been entered into should not and cannot serve as a cause for delay in the procedure in the Tribunal and all the preparatory work in regard to putting the case together. The consultation between the Chiefs of Counsel can be carried on without any interruption pending the actual appointment of the person who is to represent the Soviet Government on the Tribunal and in the preliminary work in preparing the case and preparing evidence. We are just as anxious as all the others to insure that the trial should take place without the slightest possible delay. And if the material for the court is prepared sufficiently well and with sufficient evidence, then the trials can certainly start before the first of October. Our task here is to prepare such an instrument as will insure the efficient operation of the prosecution and the Tribunal when ill gets down to work.
MR. JUSTICE JACKSON. Some things that concern us all result from my discussions with General Clay last week on the Continent. We started with the idea, which you will find expressed in my report to the President [VIII], which the President accepted and approved, and which therefore constituted the official policy of the United States, that whether We got an agreement or not we would go ahead and try these people who are in our captivity. So we have been preparing for an international trial, but if we cannot agree on one we are going to dispose of these people on a record made in judicial fashion. Therefore, we have gone right ahead without waiting for an agreement. Now, I went to the Continent to talk with General Clay about physical arrangements for a trial, whether we have to do it alone or whether we do it with others. We shall have very great difficulties about physical arrangements for a trial of this kind. General Clay says we just cannot come at him and expect him to provide a place for a trial quickly. The destruction is so complete that there is hardly a courtroom standing in Germany. We have got to have a place for prisoners. We have got to have a. place for witnesses. There are many people who will want to attend-military men from all parts. We have communications to set up. The press are going to want to know about this. The public is interested. There will be at least 200 correspondents for newspapers according to our estimates who will insist on having some place to live and a place to work. That estimate includes a representation of the presses of the different countries. You will have representatives of other nations who will want to observe us. The physical setup for this is a very considerable task, and therefore the plans of the prosecution must soon be in the hands of our military people if the trial is to take place in our zone. We have engineers studying what can be done in Nurnberg right now because we just cannot leave this to the last moment and then go over there and expect to be taken care of.
SIR DAVID MAXWELL FYFE. I think it would fulfil all that has been expressed by all delegations if we took as a tentative target date that the indictment should be ready within a month and the. trial, say, within three weeks after the indictment. If we took that as a target date, as a basis on which to work, it would fulfill all our plans.
GENERAL NIKITCHENKO. The Soviet Delegation is of the opinion that it is very difficult at this stage to fix any target date because the Soviet Delegation does not know the state of the evidence and the material for the accusation of these people, how far it is ready, and to what extent it will need further preparation before it is in a form in which it can actually be used at the trial.
JUDGE FALCO. I agree with the Soviet Delegation. It is difficult to accept a fixed date, but we will take note of that date and communicate with the French Government and try to meet it.
MR. JUSTICE JACKSON. Is it fair to ask how long we can anticipate that it would take the Soviet Delegation to get its prosecutors appointed and the case ready from their point of view? I may say that with the usual reservations that target dates are merely targets and not positive, but we would try to go along with the estimate which has just been made by the Attorney-General, and our case is in such shape that I think we will be able to do it. Much will depend, of course, on the procedure to be adopted, but, if we had to wait long for appointment of our colleagues, it would be pretty difficult. What is your estimate of time, may I ask?
GENERAL NIKITCHENKO. The appointment of the Chiefs of Counsel and the members of the Tribunal is a matter, of course, for the Soviet Government, and there is no question that the Soviet Government will proceed to that point immediately when it receives information that the agreement has been concluded. There should not be any delay on that score. When the Soviet Delegation came here to commence work on this agreement, they were quite certain that an agreement would be reached, and no doubt the preparatory work on our side in that respect is being done. But they did not consider that it was possible for the other delegations to consider any course of independent trial by the various countries. This would be directly opposed to the terms of the Moscow declaration, which laid down that the trial of the war criminals should be a common task of the United Nations, and, therefore, the Soviet Delegation did not contemplate the possibility of the criminals being tried independently by different people. In conclusion, the representatives of the Soviet Delegation state that the Soviet Delegation is just as anxious as all the others to insure that the trials should take place as quickly as possible.
SIR DAVID MAXWELL FYFE. I shall just sum it up in two points: The first is that we are most anxious to have all the help that we can from our Soviet colleagues and our French allies all the time. Personally-I speak for myself-I should be very glad to have the continued assistance of General Nikitchenko and Judge Falco and their colleagues, but the main first point is that we would like to have the continued assistance in the agreement. The second is that we are animated by the same purpose, that is, to secure as speedy a trial as we can, and we might see on that basis whether we cannot reach an agreement on the draft that was left to the drafting committee.
MR. JUSTICE JACKSON. I should like to join in those sentiments. I hope that the representatives here will also be the prosecutors. In fact, I would view any change with a great deal of anxiety. It would mean a long period of getting adjusted to each other, and we think we have accomplished that at this table.
GENERAL NIKITCHENKO. We shall immediately inform our Government at the conclusion of the agreement of the opinions which have been expressed around this table, but the delegations will recognize that the actual appointment of individuals is not a subject that the Delegation may speak about and will have to be decided by the Government.
SIR DAVID MAXWELL FYFE. Could we now take the agreement [XXV] as far as the reservations signified by square brackets are concerned 2 There does not seem to be anything but the complete formality of the use of a seal, which does not matter at all. On the last page where it says, ". . . and have affixed thereto their seals".
GENERAL NIKITCHENKO. I refer to article 1 where it states, "There shall be established after consultation with the Control Council of Germany an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or as representative members of organisations or groups or in both capacities." According to the Russian translation which we have, the text is somewhat altered from the form in which it was originally, and we consider that the present wording does not correspond with what we had in view.
MR. TROYANOVSKY. "Representative" translated in Russian is "typical".
SIR DAVID MAXWELL FYFE. It is not quite the same really. "Representative" connotes someone who is of sufficient standing to represent the organization rather than a "typical" member. It is not the same idea in our minds. Take a concrete example. Kaltenbrunner is a leading member and, therefore, can be selected as being the sort of person that you would take as a representative if you wanted to put the Gestapo on trial. If you wanted to deal with members of the Gestapo, you would take him as being of sufficient position, weight, and responsibility to be representative in that sense.
GENERAL NIKITCHENKO. The point made by the Soviet Delegation really amounts to this-the definition of how an organization is to be found guilty, and so on, is provided for in the rules, and therefore from the Soviet point of view there is no need to repeat any of the agreement itself. But the main point is that they consider that, if you omit this word "representative", the methods of finding and trying the organization are already laid out-if you omit this word 6grepresentative" and simply take it that they can be tried individually or in groups.
SIR DAVID MAXWELL FYFE. So long as we agree to paragraph 10, that is the main point for me.
MR. JUSTICE JACKSON. That is not meant to exclude trial of organizations as such as set out in paragraph 10.
GENERAL NIKITCHENKO. The Soviet Representatives refer to article 10 and confirm that they are in entire agreement with you. Coming back to remarks on the definition in the agreement-it is simply a question of -wording which in the Russian comes out rather awkwardly. It means that, if the word "representative" is omitted, it will be quite satisfactory.
MIR. JUSTICE JACKSON. I have difficulties with article 10. No American judge would consider that article 10 is quite adequate, as it stands, to put on trial the organization in a manner that would bind individual members of that organization because there is no provision here f or making the organization a party in the sense of giving it a chance to defend organizationally. We would need some consideration of article 10 with reference to its sufficiency to embrace the proposal for trial of organizations.
GENERAL NIKITCHENKO. The Soviet Delegation states that it will have to consider article 10 when we come to it in the consideration of rules, but, dealing simply with article I in the Agreement, is there any objection to accepting the suggestion of omitting "representative"?
MR. JUSTICE JACKSON. I think we must have the word "organization" in there if we are going to try organizations. If I were sitting as an American judge, it would not give me authority to try organizations as such. This is a jurisdictional provision. I should suspect that, if we indicted an organization, the indictment would be dismissed on the grounds of no jurisdiction.
I have no objection to the change of the word "representative" to some synonym which would translate into the Russian with less misunderstanding. But I would not find the provision satisfactory without including the word "organizations" so as to authorize trial of organizational groups or so that we may accuse organizations. This is a jurisdictional provision and organizations as such would have to be mentioned so we might indict the Gestapo, the S.S., etcetera, as associations. Otherwise, I consider it inadequate to accomplish the proposal which we submitted.
PROFESSOR GROS. The one word "representative'--if you read it "those accused individually or as members of organizations or both" Well, if you read it as "members of organizations or groups", it implies that the only reason for accusation would be membership in the organization. So the organization would be tried.
GENERAL NIKITCHENKO. That is exactly what the Soviet Delegation has in mind, what the French Delegation has said. You are going to try the organization as a representative body, but you are going to try it really in the person of its members. If a member is found whose guilt consists in being a member, then you have declared that the organization itself is criminal. The actual method by which you are going to secure the trial of organizations is laid down in the charter.
MR. JUSTICE JACKSON. Well, you see we have a fundamentally different concept and that is what I am afraid of. You will understand it as embodying your concept, and a different group of prosecutors who may succeed us will have misunderstanding. I think the only purpose of an agreement is to clear up misunderstandings, not to cover them up. Now, -we could not convict an individual for membership in an organization merely because others had been convicted individually without some notice to that individual that his organization is under trial and some chance, in some way, for him to defend it. It would be against our conception of the rights of an individual. You in the Soviet system get at it in a different way and perhaps the better way, but it is different and I want to be sure which we are driving at here. We would have to say in the indictment that the Gestapo and the S.S. Is charged with being a criminal organization so that they have notice.
I have seen over 4,000 documents in our office in Paris with fingerprints, names, descriptions, et cetera, of members of the S.S. It is an easy matter to go out and get them then, and, if they are in Soviet territory, turn them over to the Soviet Government; if they are in French territory, turn them over to the French Government. But in my concept of procedure, before you go out and pick these people up and subject them to a sentence because they have been members, they have to have notice that they are on trial. I do not know just how our other delegations view that.
SIR DAVID MAXWELL FYFE. May I suggest that I could not agree more fully with Mr. Justice Jackson. The worst service anyone can do is to cover up a difference if there really is one. I don't think there is really a difference in our minds. First, I start with the assistance given by Professor Gros and in this article I omit the words "as representative" and put in "whether they be accused individually or in the capacity of members of organizations", which I think underlines Professor Gros' point and makes it clear that, because they are members of criminal organizations, they are being tried in the capacity of organizations. Now I turn to Mr. Justice Jackson's point on jurisdiction which is that, unless notice is given that the organizations may be held criminal by the trial, there would not be jurisdiction to try. I thought that in article 10 in the charter we might put in after "the Tribunal" in the second line the words "after notice that this will be done", so that it would read, "At the trial of any individual member of any group or organization, the Tribunal, after notice that this will be done, may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization." Then the Tribunal can fix what notice is necessary. I think it would meet the point that is worrying Mr. Justice Jackson that the members of the organization must have notice, and it would also meet the Soviet point as to any ambiguity on the word "representative".
GENERAL NIKITCHENKO. The Soviet representatives accept your suggestion with regard to the words "in the capacity" in place of the word "representative".
MR. JUSTICE JACKSON. Whether it would be acceptable to us will depend a great deal on what is put in the charter, and I may say, while we are on the subject, there is a way we have thought of which is embodied in this language: "At a trial wherein representative individual members of any group or organization are defendants, and notice deemed reasonable by the Tribunal is given to all members of such group or organization of an opportunity to be heard if they submit themselves as defendants in the proceedings, the Tribunal may declare (in connection with any act of which any such representative individuals may be convicted) that the group or organization of which such individual was a member was a criminal organization." But notice and opportunity to defend are indispensable to our reaching a result of conviction.
PROFESSOR TRAININ. The duty of this Conference is to get completely clear ideas about what we intend to include in any particular paragraph, to have no doubts at all as to what a paragraph actually means, and the Soviet Delegation quotes article 10 as being an excellent example of good results from the collective work which has been put in and as an example of an article which sets forth clearly the views of all the delegations taking part. It is a model of what an article should be. The central point about article 10 is that the Soviet Delegation is in complete agreement with the fact that an organization may be declared criminal. We are fully in agreement on that point. And the second point in our view is that the organization shall be declared to be criminal following a. trial of individual members of that organization. Both these central facts are quite clearly expressed in article 10 as it is now. On the question of due notice of trial, that is a point which is to be discussed and suitable wording introduced when we come to the question of article 10.
SIR DAVID MAXWELL FYPE. Then on that basis, I think we can proceed. Has General Nikitchenko or anyone else any point on article 2?
GENERAL NIKITCHENKO. In article 4, the Soviet Delegation points out that this question of the return of persons charged is essentially a matter between two countries, the country handing over the man and the country receiving him, and therefore suggest that after the words "shall establish" we include the words "by agreement with the country concerned" or "in agreement with the country concerned".
SIR DAVID MAXWELL FYFE. I have no objection.
MR. JUSTICE JACKSON. I have no objection except that I find this turnover of accused persons is a complicated question and think it would be a good thing to consider this further. I found at Salzburg that half a million people have come into that territory occupied by the American forces. They are being loaded on trucks, taken back to the Hungarian frontier, and turned over without any identification. A number of those people are wanted as common criminals. I am advised that they just load them first and let someone know they are coming. It is just impossible to screen all of them by agreement. On the other hand, you have the situation where there is a demand for Frank by the Czechoslovakian Government, and I think they ought to try him and perhaps we ought to, too. Now I think it is going to be utterly impracticable for my Government to deal with these thousands of cases from Washington through diplomatic channels. I think it must be done by delegation, within the framework of a certain policy to the Control Council to set up their procedures. You have the question of extradition from one control zone to the other; you have the question of extradition of prisoners of war or persons who are in custody; and you have the question of persons who are not in custody and would have to be apprehended by some process or other. You have cases where we have been asked to return people against whom, so far as we can see, no charge of crime is made whatsoever. They are questions to be faced, but a Foreign Office 3,000 miles away is in a very difficult position to pass upon them, and I don't know that we at this Conference want to undertake to set up formal agreements about them. I am willing to accept and pass for the moment the provision but with the explanation that that is something that ought to be, in my judgment, a governmental matter in the sense that the Government at Washington should set up the policy, but it ought to be in the bands of the Control Council to execute.
GENERAL NIKITCHENKO. The Soviet Delegation points out that this article does not treat with the ordinary displaced persons, people taken away for labor, et cetera. It treats exclusively with the war criminals whose guilt is well known, and it is simply a question of arranging the procedure under which they shall be handled by trial in the place where their crimes were committed. It does not touch the ordinary run of criminals at all, and, when we are dealing with these war criminals who are well known to everybody and wanted by several individual countries, we consider it should be a matter of arrangement or agreement between the two governments, the one who holds him and the one receiving him, and it remains to be arranged between them.
JUDGE FALCO. [not translated.]
GENERAL NIKITCHENKO. The Soviet Union once more points out that this has nothing to do with repatriation and only refers to war criminals. In this article we are not laying down any procedure; we are not deciding whether the procedure shall be established through diplomatic channels or the Control Council or by any other method; and it is quite open to any government which is concerned with war criminals whether the procedure should be done by simply informing their representative on the Control Council to carry it out or whether it should be done diplomatically or otherwise. One important thing is that the man has to be returned to the scene of his crime, and the government to receive him should decide upon the method.
MR. JUSTICE JACKSON. My difficulty is highlighted by what Judge Falco said. If these people are minor criminals to be returned to them, I have nothing to do with them. If they are major people, we are not returning them. We are trying them. Therefore, the article seems to me to be outside of our proper sphere, but I have no doubt that my Government will agree to establish procedures and has established them, and, as I have pointed out, they are in many cases functioning now. But I would like it clear what it is intended to represent. If it is intended to represent minor criminals to be returned to the scene, then I must reiterate it is not within my authority. I am a lawyer, not a diplomat, which is surely apparent to you by this time, if, indeed, I can claim to be the former. Only major criminals who are being tried are my concern. Therefore it seems that negotiations about others here are more likely to produce confusion than to lead to good results.
PROFESSOR TRAININ. This matter is subject to considerable discussion. It has been discussed in preliminary meetings and in the committee. The Soviet Delegation is not going to repeat all the arguments that have been brought forward before, but as a result of those discussions this formula was agreed by the committee representing the general view, and as far as legal ground is concerned that legal ground is provided by the terms of the Moscow declaration. The Soviet Delegation considers that this article does represent the agreed views of the delegations as stated in the committee. It is for that reason that the Soviet Delegation points out that this article quite clearly represents the decision of the delegations. The American draft changes that. The proposal is only a matter of making it slightly more definite than it was. The Soviet Delegation is fully in accord with what Judge Jackson has said about this, and it is not suggested that this shall be a matter of diplomatic procedure and diplomatic exchange. We consider that in 99 percent of the cases the matter will be dealt with by the Control Council, but it is obvious that in handing over these people some sort of arrangement will have to be fixed-at what point, who is to receive them, and all that sort of detail work-and it is therefore necessary that the two parties, the one handing over and the one receiving, should mutually agree on those points.
PROFESSOR GROS. In the first place article 4, as it stands, is as it has been set down by the subcommittee, and, in the second place, it just repeats a principle which is agreed and it must be read in accordance with paragraph 2 of the Moscow declaration. If you read article 4 and paragraph 2, you see there is no digression. If you take the agreement as it stands, I do not see any argument presented here. If we put in the sentence that is now suggested, we go a step further because we give more precise indication than given in paragraph 2 of the Moscow declaration, and I am afraid we are not actually entitled to do that as it is a matter of governments deciding the exact procedure. We would prefer to leave the question open.
MR. JUSTICE JACKSON. Let me say this to make perfectly clear our position. The work of the drafting committee is purely tentative so far as we are concerned. We expressly made that provision when it was appointed, and we considered that any changes any party wants to suggest to this are open to consideration. We are now considering a change in it, proposed by General Nikitchenko, which is that we add that these procedures are to be established by agreement of the governments involved. If that leads to what I would expect, representatives in Washington will immediately go to the State Department and say, "We want to make an agreement with you about the return of certain prisoners." I have advised that the State Department ought to lay down only general principles and refer specific instances to the Control Council. It has not been decided what will be done, but the Control Council is in frequent sessions, and they are in touch with this problem, and their procedure is likely to be very informal. You want a prisoner and General Kharkov will ask General Clay for the man. General Clay, I expect, will ask us whether we want him for the International Tribunal. If we say, "No, we have no Deed for him", I expect he will say that he will be in such a train at such a time and you may take him over at such a point. I do not want to obligate my Government to enter into a series of agreements in Washington on that thing. It does not seem necessary. The good faith of the United States is pledged in the Moscow declaration. I am willing to say that the agreement we made once we reiterate, but I don't want to obligate the Government to make a series of treaties, and it is not within my commission to do so. That is my point.
PROFESSOR TRAININ. I fully agree with the statement made by the American Delegation that the work of the committee is of preliminary character, and there is no possible objection to altering it in any way at the meetings of the Conference.
SIR DAVID MAXWELL FYFE. May I suggest for the consideration of the Soviet Delegation Professor Gros' point that it has already been emphasized that this must be subject to the recital of the Moscow declaration, which implies that the other governments will be consulted, and that on that basis of the views expressed and in the reiteration, in which I join, we shall all stand by the Moscow declaration. It is not necessary to press this point.
GENERAL NIKITCHENKO. The Soviet Delegation would like to point out once more that in the article and the suggestion they made there is nothing at all to say that these agreements have to be reached by diplomatic method. The government must decide the method to be adopted, and it may be through the Control Council or may be through law. The statement made by Judge Jackson clearly shows that, in the process of handing over any individual criminal, there is an agreement by the two sides-somebody from the one side or the other does arrange the time and everything else and fixes the procedure of handing over, which has nothing to do with diplomatic agreement or discussion-and therefore it is from their point of view that there must be arrangement by somebody that the Soviet Delegation has proposed this slight clarification of article 4. Would it help if you said "arrangement" instead of "agreement"?
PROFESSOR GROS. Would it help if we say, "put at the disposal of the interested country, to be tried at the scene of the crime" or "the return of a person charged with offenses who in accordance with the Moscow declaration would be put at the disposal of the interested country to be tried at the scene of their crime"?
SIR DAVID MAXWELL FYFE. There is another alternative, it seems to me. The real point of difference is whether to make the agreement before establishing the procedure-which Mr. Justice Jackson has given his reasons against-or to consult the government of the receiving country, which we are all agreed upon. There is no difference between us, if each of the signatories shall establish a procedure providing, after consultation with the country interested, for the return of the persons.
MR. JUSTICE JACKSON. Well, I think in the first place that the article is outside of my authority if it refers to the minor criminals, but I have no hesitation in saying that the United States will conform to the Moscow declaration. But I do want it made clear that we are not undertaking to agree to return persons wanted for trial by the International Military Tribunal. In other words, the International Tribunal requirements take precedence over this because, if other governments are to be given more or less what appears to be rights under this, we want to make clear they have no right to interfere with the international trials.
GENERAL NIKITCHENKO. The Soviet Delegation expresses agreement with the suggestions put forward by Professor Gros. They now propose a slight change as follows: "Each of the signatories shall establish procedure governing the return to the country concerned by arrangement with that country of persons . . . ." et cetera.
MR. JUSTICE JACKSON. Well, I still think it is outside of our business and that it presents difficult problems. What persons are to be returned? We are not going to return persons we want for trial by the International Military Tribunal. That exception should be in. The moment we say that, we in effect say that the rest is outside of our business. The Soviet proposal I shall cable to the State Department, and I shall be governed by instructions because I do not consider that the provision is within my authority. It seems innocuous to say we would comply with the Moscow declaration. That I know to be the policy of my Government, and I saw no difficulty up to that point.
But we have many difficulties about specific cases, and I think it must go to the foreign-affairs authorities in my country.
GENERAL NIKITCHENKO. Article 4 does not have any question of handing over the major war criminals.
PROFESSOR GROS. I wonder if I could make a suggestion. When we read the declaration of 5 June 1945 with Germany, we see that there is an article here on surrender of all war criminals who had been designated. There is also an article on the thirteenth which says in paragraph b that complementary requirements would be imposed, and I am under the impression that those requirements are worked out actually and perhaps one of those requirements covers the point which we are actually discussing. All those countries which are represented here also have a delegation in London, and I would suggest that each one of us make contact with the members in each delegation and ask them if such an article has not already been prepared and signed. If it has, it would save us much trouble and discussion here.
GENERAL NIKITCHENKO. The Soviet Delegation points out that article 4 does not cover only those war criminals who are in Germany but also many of them who are at the present time in other countries. The authority of the Control Council extends only to Germany, not to those other countries, and it is intended that the provisions of this article be applied to those people who happen to be in those countries other than Germany. But for some reason they are being moved to Germany, and we are anxious that this be made clear.
MR. JUSTICE JACKSON. Well, I think nothing further is to be accomplished by discussing it. I will submit it to the State Department because I do not feel it is within my power to deal with anything but major criminals, and I have already advised the State Department that I declined to take responsibility for the return of minor criminals beyond deciding that they are not needed for the international trials,
SIR DAVID MAXWELL FYFE. I wonder whether we might reserve this for discussion again in the afternoon. As I understand Mr. Justice Jackson's difficulty, it is the question of his authority in dealing with the minor criminals. Would it go as far as we want it in this agreement to meet the point that has been raised by Professor Gros to put it in this way: "Nothing in this agreement shall prejudice the provision of the Moscow declaration concerning the return of war criminals to the countries where they committed their crimes"? That would cover this point, Mr. Justice Jackson, if it were put in that way, would it not?
MR. JUSTICE JACKSON. Yes, that would be entirely acceptable.
GENERAL NIKITCHENKO. Perhaps we will consider it in the text.
SIR DAVID MAXWELL FYFE. I am very anxious that we reach agreement on this and other points.
GENERAL NIK1TCHENKO. We have one more last remark on the agreement.
MR. JUSTICE JACKSON. Let us finish on the agreement if we can.
SIR DAVID MAXWELL FYFE. I wonder if I may have a point on article 5. Will you allow me just to mention it? The article provides for any government of the United Nations to accede by notice given to my Government. I am a little worried. I don't raise this as a vital point but a point I should like all of the delegations to consider. I am a little worried whether this leads us very far. Does accession impose any rights? I thought that, if we provided two things: first of all, affording other Allied governments a right to participate, and second, seeking the cooperation of the United Nations, we might be giving some more concrete and specific thing to them when inviting their cooperation on something that would help ourselves. I do not want to press the matter but think it a more practical approach on which I should like my colleagues' views.
GENERAL NIKITCHENKO. The Soviet Delegation, in regard to article 5, consider that the accession of any country, any of the United Nations, to this agreement does not in any way grant rights to that country. The accession does not give it any rights, and, therefore, there is no chance of the question being misunderstood in the sense that by acceding to it they thereby secure some right which they have not at present.
MR. PATRICK DEAN. If anybody feels that "accession" is wrong, we are perfectly happy to change it to "adherence". I merely feel that that is a common formula.
MR. JUSTICE JACKSON. I agree fully with the point that has been made by the Attorney-General. My question goes a little farther than that perhaps. We have felt very keenly that the War Crimes Commission has been doing excellent work and that the War Crimes Commission ought to have some opportunity to present its work if a way could be found. I mention it now, not having brought it up before because I had assumed we were all going to be prosecutors and therefore we could go on with the next step when we settled the agreement. We do not want to get into the problem of trying all of these individual cases, but here is an official commission set up to represent the United Nations, except Soviet Russia, which has her own Extraordinary Commission, and of course I think her Commission should have the same privilege. It has seemed to me a report by this Commission on the Nazi crimes, or reports by separate governments composing it, might properly find some lodgment in this Tribunal in some manner as an official survey of the methods by which these people conducted warfare. It has seemed to us that a great deal of excellent work has been done here by eminent men whose names are back of their indictments, and we value it. Let me say I think my Government has not supported it as adequately as it should have, but, since we have been in this work and in touch with it enough to know what they have done, we feel that some method should be devised by which the occupied countries of the United Nations, through this Commission, can make some proper presentation of their cases in this trial. The method I don't presume at this moment to outline because we have not thought it through, but I feel that purpose should underlie our attitude toward the smaller countries.
SIR DAVID MAXWELL FYFE. The point is, does the Conference feel we ought to have a provision for adherence or simply for consultation as to evidence? That is the point I would like your views on.
GENERAL NIKITCHENKO. The Soviet Delegation considers that the article as set forth now in the agreement fully meets the requirements. It does not provide any rights to any of the other governments which may adhere afterwards, and the fact of adherence of the other United Nations will merely express their wish to cooperate and assist in the work of the Tribunal to punish the war criminals.
SIR DAVID MAXWELL FYFE. I do not want to press it, as I said, but I want to express my agreement with Mr. Justice Jackson that we must find a method of receiving their evidence and recognizing the work they have done when we prepare for the trial. I will not press this any further.
Then we do agree that we could use the word "adhere" instead of "accede".
[It was so agreed.]
GENERAL NIKITCHENKO. The question of an acceding government was not discussed in the committee, and in the opinion of the Soviet Delegation it is entirely wrong that an acceding government should be given the right to participate. It is a question of excluding the word "acceding".
SIR DAVID MAXWELL FYFE. Yes, I agree, as far as I am concerned.
GENERAL NIKITCHENKO. It is simply an oversight and, of course, for reasons already explained.
MR. JUSTICE JACKSON. I think we have one more question on article 7. Shouldn't we make it clear that, while any party may terminate and withdraw from further obligations to proceed, the termination shall not affect the validity of what already has been done, does not affect the substantive law principles involved, and does not invalidate the agreement as between the remaining powers? The remaining ones might want to go ahead. Should we not include those ideas in the termination article?
SIR DAVID MAXWELL FYFE. Would it not be covered by saying, instead of "terminating", "withdraw" from it?
GENERAL NIKITCHENKO. No one would prevent the two or three remaining powers from agreeing to do as they wish. If one withdraws, the remaining could do what they wish. This is an agreement between four governments. If one withdraws, it ceases to be an agreement. There should be some new agreement if they wish to make one.
MR. JUSTICE JACKSON. That is what we should seek to avoid. If one quit, it should be possible for the others to go on without waiting to renegotiate a new agreement. We don't want the withdrawal of one to break up the arrangement.
PROFESSOR GROS. The agreement readsand shall remain in force for the period of one year. .There is no danger for the first year, and, if some three governments, let us say, want to remain, there is no reason for a new treaty. Just keep this one.
PROFESSOR TRAININ. This agreement is on the part of four parties. In the prosecution committee, for instance, there are four parties. If one disappears, you would have to change the agreement.
MR. JUSTICE JACKSON. Frequently a clause is put in contracts that the withdrawing of one party shall not affect the rights of the other parties.
SIR DAVID MAXWELL FYFE. Would something like this help-"but such withdrawal shall not prejudice anything done under the agreement or its continuing validity among the remaining signatories"?
GENERAL NIKITCHENKO. We will consider that point. This is a technical one. Any agreement normally establishes a period during which it is to remain in force, and perhaps the best way to do it would be not to fix a definite period of one year here but to say that this agreement shall remain in force for the period necessary for the object of the agreement to be achieved, or until the tasks of the Tribunal shall be completed, or something of that sort.
MR. JUSTICE JACKSON. Well, I am not particular about the draftsmanship of it as long as it works out substantially to avoid breakup of a trial by one nation's action.
SIR DAVID MAXWELL FYFE. General Nikitchenko, will you give us again the wording of that last suggestion V
GENERAL NIKITCHENRO. Something like "shall remain in force for a period of one year and shall continue thereafter for the period necessary to achieve the completion of the task set themselves by the signatories". I cannot say whether that method of fixing a period is an acceptable method.
SIR DAVID MAXWELL FYFE. I am prepared to accept it in that form.
MR. JUSTICE JACKSON. I agree. One thing more. This provides for signature by "plenipotentiaries". I do not know whether I am a "plenipotentiary" or not. Perhaps the British Foreign Office will advise me. The name is so formidable that I would not like to assume it without adequate authority.
MR. PATRICK DEAN. It could be used correctly.
The Conference adjourned until 3 p.m.
SIR DAVID MAXWELL FYFE [presiding]. With respect to article 4can we come to an agreement on that?
GENERAL NIKITCHENKO. The situation is still exactly as it was.
SIR DAVID MAXWELL FYFE. Have you given any consideration to the draft I gave to you?
GENERAL NIKITCHENKO. No, we have not had time.
SIR DAVID MAXWELL FYFE. Perhaps then we might leave that. We must clearly understand I think that this is the position. If it is left in the form of a provision for arranging with the governments of other countries, then Mr. Justice Jackson will have to consult his State Department. That is the position, isn't it?
MR. JUSTICE JACKSON. That would be the position. However, without specific instructions, I would be perfectly willing to have our agreement contain the provision, in substance, that "nothing in this instrument should prejudice the obligation assumed under the Moscow declaration to return persons in certain categories to the scenes of their crimes."
GENERAL NIKITCHHENKO. We should like, if possible, that the suggested wording be put forward in writing. It is rather difficult to get it. We will be glad to submit our suggestions in writing.
MR. JUSTICE JACKSON. It could read, "Nothing in this agreement shall prejudice or release the obligation of the parties to the Moscow declaration to return for trial at the scene of their crimes the persons therein described."
GENERAL NIKITCHENKO. Let us return to this point later on.
SIR DAVID MAXWELL FYFE. The other point the Foreign Office has put to me I am sorry to raise it again-is that it is usual in agreements to provide for a period, and we are rather worried about leaving it without any period in article 7. 1 think we ought to get the views on that point. I am told that is the correct procedure.
GENERAL NIKITCHENKO. The Soviet Delegation is proposing that we should adopt the suggestion already made, that is, that this agreement shall be for a period of one year and thereafter shall continue subject to the eventual provision of a month's notice of withdrawal or until the task of the Tribunal has been completed-that the agreement shall continue until such time, etcetera, for a period of one year and to place a definite period.
SIR DAVID MAXWELL FYFE. I thought you said one month's notice would apply after the year.
GENERAL NIKITCHENKO. We agree that the one month's notice will apply after the year. Exactly as it is in the agreement. Simply make it "one year and shall continue thereafter, subject to the right of any signatory to give through the diplomatic channel one month's notice"--just as it was, putting "withdraw from" instead of "terminate". What exactly is implied by "withdraw"?
MR. PATRICK DEAN. One party could withdraw at the end of the year, but the agreement would still run on, as I understand it.
PROFESSOR TRAININ. The Soviet Delegation thinks this could not be carried out even if we all agreed to it. There is nothing to prevent the other parties wishing to remain in to conclude another agreement.
SIR DAVID MAXWELL FYFE. That would imply the other parties would have to make a, fresh agreement.
GENERAL NIKITCHENKO. They can make the same agreement, of course, but confining it to the three parties remaining.
SIR DAVID MAXWELL FYFE. The only point is not to fix a termination that might prejudice any action taken during the year.
MR. JUSTICE JACKSON. I think we should make it clear that it does not. So far as I am concerned, I would be willing to let any party withdraw during the year if it wanted to, because I think no unwilling partner could work well even for one day. I'm perfectly willing that anyone can withdraw on 30 days' notice or 10 days' notice. I do not favor holding anybody in a cooperative arrangement like this the moment he does not, want to cooperate. The only thing is that we should make it clear that the work already done, should stand after a withdrawal and the other three parties may still carry on if they wish. We might have an agreement and, though I hope not, we might have a disagreement when one might wish to withdraw even in the middle of the trial, and we should not be obliged to start over again. But I am not for holding anybody in who wants to be excluded.
SIR DAVID MAXWELL FYFE. If we leave it in the original form, "one month's notice of intention to terminate it", then such termination shall be done prior to any-
GENERAL NIKITCHENKO. The Soviet Delegation considers it superfluous. Supposing we have condemned one of the criminals-it is not effective because one has left the agreement.
MR. JUSTICE JACKSON. But suppose you have pending trials or a trial pending, or suppose you have indicted parties and then there is a withdrawal. It should not invalidate the proceedings taken up to that date, but the remaining parties should be entitled to modify their agreement and proceed. Certainly the party that withdraws has no interest in seeing the parties who remain disabled from proceeding, and it would seem to me that we should make it clear that the defendants under those circumstances would have no right to claim the proceedings had abated.
GENERAL NIKITCHENKO. I fully agree with that. It won't prejudice the action past or pending, but the Soviet Delegation does not see any necessity to include the words to that effect in the agreement itself.
MR. JUSTICE JACKSON. Unfortunately, it might be held in the absence of a provision that a dissolution of the parties has terminated the agreement.
SIR DAVID MAXWELL FYFE. It seems to me the position is that we agree as to what we want, and it is simply the question of wording the new point introduced as to pending proceedings which we all agree should not be affected in any way. I wonder if the Soviet Delegation would consider this: "any proceedings pending prior to the expiration of the notice shall not be affected." It seems to me that is what we want, and it is only a question of finding words to meet it.
GENERAL NIXITCIIENKO. If the agreement had terminated, it would not affect anything that was proposed to be done. The remaining parties would have to arrange about that themselves.
SIR DAVID MAXWELL FYFE. Is there any harm in putting in the agreement what we have all agreed on?
GENERAL NIKITCHENKO. The point is that, in so far as anything done in the past is concerned, that cannot be affected by any termination, but in anything that may happen in the future, that is another matter. I cannot see how you can make provision for something that may happen if the agreement has been terminated.
SIR DAVID MAXWELL FYFE. Is there any harm in just saying, "but without prejudice to anything done prior to expiry"2
GENERAL NIHITCHENHO. The formula suggested by the Soviet Delegation is something like this: "shall not invalidate or nullify action taken in accordance with this agreement prior to its termination in accordance with this agreement."
MR. JUSTICE JACKSON. Would a British judge think that sufficient to continue a trial under an agreement that was so terminated? Or is his power terminated unless the governments bring in some new agreement?
SIR DAVID MAXWELL FYFE. It would cover you up to the date of termination.
MR. JUSTICE JACKSON. Is it the basis for further proceedings between the remaining powers?
PROFESSOR GROS. I do not see exactly the situation. Let us suppose one of the Four Powers decides to withdraw. Anyway, that Power will give a month's notice. During that month the three others may exchange notes and by exchange of notes they may maintain the charter. There would be three judges instead of four, and the voting would be two to three. It is easy to do that in a fortnight or less. I think it most important to leave those questions open.
GENERAL NIKITCHENKO. The Soviet Delegation entirely agrees with what Professor Gros says. They cannot see any point in making an addition of this kind. They would agree to such a provision if that would enable them to meet your views, but in their opinion nothing that has been done in the past in accordance with the terms of this agreement can possibly be questioned in any way.
SIR DAVID MAXWELL FYFE. Which would you prefer, Mr. Justice Jackson ?
MR. JUSTICE JACKSON. Well, if the Tribunal were applying the Soviet law, I would accept just what Mr. Nikitchenko and Professor Trainin suggest. If I expected a judge to apply American law, I should have doubts whether you could merely continue the proceedings of trial in case a withdrawal terminated the jurisdictional agreement, but I am not going to be fussy about that and will just let it go.
SIR DAVID MAXWELL FYFE. I agree, in view of what Mr. Justice Jackson says. We will leave it as it is.
MR. JUSTICE JACKSON. Then it terminates and we say nothing about its effect.
SIR DAVID MAXWELL FYFE. We leave it as it is.
Article 4 is the only point outstanding on the agreement. Now we come to the charter.
The first point is in paragraph 6, subparagraph (c). Is there any question before that? I have none.
GENERAL NIKITCHENKO. The first point, is a point of drafting. In paragraph 1 of the charter there is no statement of the parties to the agreement, and in the opinion of the Soviet Delegation it is essential to -name the parties to the agreement. Just recite the names of the parties.
SIR DAVID MAXWELL FYFE. That is purely a matter of drafting. I have no objection. Have you, Mr. Justice Jackson?
MR. JUSTICE JACKSON. None at all.
GENERAL NIKITCHENKO. The next question is in paragraph 5, "sit in one or more Chambers or Divisions . . . ." In the opinion of the Soviet Delegation it should be only one-either in one or more Chambers or one or more Divisions-because the use of both words, "Chambers" and "Divisions", implies some doubt in our minds as to what that should be.
SIR DAVID MAXWELL FYFE. I should like to know from the draftsmen what they meant by "Chambers".
SIR THOMAS BARNES. I think they meant "Divisions".
PROFESSOR GROS. A chamber is one division in the French court. The French court is divided into two or three chambers. Let us take an example. In the French court the court in Paris is one court, but it sits in several chambers and it is the chamber which gives judgment. It is only a question of wording.
SIR DAVID MAXWELL FYFE. Here is a court of four. Is it suggested that it might sit two and two?
PROFESSOR GROS. No, not at all.
SIR DAVID MAXWELL FYFE. Does it mean that it would sit in more than one chamber?
PROFESSOR GROS. I suppose we might have more than one trial, and one chamber would sit in Berlin to judge so and so; another chamber would sit in Nurnberg to judge so and so; and a third chamber might go anywhere else. There might be four judges and four chambers.
SIR DAVID MAXWELL FYFE. My feeling is that we had better start with one, and then, if the necessity arises, let us agree to make another. What do you feel, Mr. Justice Jackson?
GENERAL NIKITCHENKO. But it is stated here that "procedure of each Chamber or Division shall be identical, and shall be governed by this Charter."
SIR DAVID MAXWELL FYFE. In case of need. I have no strong feelings on this at all.
MR. JUSTICE JACKSON. Well, I think it is a situation in which we ought to clarify our feeling or thinking a little bit. If we are setting up three or four tribunals here, the United States is not prepared to do its part. We are thinking of preparing one case. We will have only one prosecuting staff. We would not be prepared to furnish prosecutors or judges for a whole group of tribunals. Now, I can see no advantage in having different chambers of the same international tribunal unless we are not able to work out a procedure by which we can all prosecute together. If you have several chambers of an international tribunal, they might proceed according to different procedures. I am not wedded to my procedure. I just don't understand any other. If you say that these four chambers must function but by identical procedure, then we would have to have four prosecuting staffs. I think we could get into endless complications. Now, really, gentlemen, we will have an awful job to try one case in four languages as we are undertaking here to do, and I do not want to spread so thin as to take on several international trials at once. We from our side of the water are not notoriously modest, but there are limitations on what we can get accomplished. I think we would be undertaking too much here in one bite, if you will let me put it that way.
GENERAL NIKITCHENKO. The Soviet Delegation is referring back to article 5 of the original American draft where it is stated that one or more tribunals will be set up by the Control Council.
MR. JUSTICE JACKSON. We thought it was possible that after the first trial others would be discovered or captured, in which case other tribunals might be necessary, and We tried to provide for this in the draft so that we would not need to negotiate a new agreement; but we did not make several tribunals a normal procedure, and that is the difference in our drafts.
SIR DAVID MAXWELL FYFE. I think it says "in case of need". Isn't it simply a question of wording? If I understand it, this is something to be used in case of extraordinary necessity. Just a matter of getting the language that is understood by the four countries.
GENERAL NIKITCHENKO - The Soviet Delegation proposes this: "In case of need and depending on the number of the matters to be tried, one or more tribunals may be set up and the establishment, functions, and procedure . . . ." et cetera.
SIR DAVID MAXWELL FYFE. That follows the American draft, don't you think, Mr. Justice Jackson?
MR. JUSTICE JACKSON. I should like to reserve it for future consideration, depending upon how well we agree on procedural matters, whether we should set up more than one tribunal, one to proceed along the lines of Soviet procedure and one along our own lines, and we can proceed with an official language and not four.
SIR DAVID MAXWELL FYFE. You are suggesting that we see how we get on with the agreement.
MR. JUSTICE JACKSON. Yes, I just reserve that question. May we go back, please, to number 3? The "replacement of judges" provision I assume means that no replacement can take place during any trial.
GENERAL NiKITCUENK0. The Soviet Delegation agrees there can be no replacement during the trial. It would not apply unless the judge and the alternate were both absent at the same time.
MR. TROYANOVSKY. Because ordinarily the place of the judge would be taken by his alternate.
GENERAL NIKITCHENKO. That is to say, the case goes on. If one of the judges falls ill, then his place is taken by the alternate, and the case goes on. That is provided for in the last sentence of number 2.
MR. JUSTICE JACKSON. I agree, but the point I make is, as I explained before, that we could not agree to a court which would be subject to reconstitution because its rulings were not satisfactory, or anything of that kind, and could not consent to recall of a judge during the trial.
SIR DAVID MAXWELL FYFE. I think that is agreed.
SIR THOMAS BARNES. Are we going to alter the text?
MR. JUSTICE JACKSON. We could simply add, "No replacement could take place during the trial except by the alternate."
SIR DAVID MAXWELL FYFE. We suggest that "no replacement shall take place during the trial except by his alternate."
MR. JUSTICE JACKSON. May I raise one more question-the provision about the selection of a, president? I think there is difficulty here. We may as well face it. We do not contemplate any trial on the territory of the, United States. We do not, I assume, contemplate any trial in Britain, and probably not on the territory of France, which means that at least three of the countries are automatically excluded from the presidency. You are not in the territory of any of these countries when you are in Germany even if it is occupied territory. Berlin is, partly at least, neutral territory, and it seems to me we have got here a provision that has in it the seeds of confusion, and we ought to say what we mean a little more definitely with reference to the practicalities of this situation. We shall be sitting in territory occupied, but it is not territory of ours. We certainly do not make any claims to the territory.
SIR THOMAS BARNES. That is covered in the second paragraph, isn't it, where it says, "In other cases, the members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a president . . .", et cetera.
MR. JUSTICE JACKSON. Well, that is all right if that is so understood.
SIR DAVID MAXWELL FYFE. IS there anything else, Mr. Justice Jackson?
MR. JUSTICE JACKSON. I don't think so.
GENERAL NIKITCHENKO. I have a suggestion to make on the discussion of number 6. The point is that the committee was unable to agree on the drafting of points (c), (d), and (e). We objected to (d) because we considered it already covered, but it seems now that article 6 is the one which raises most problems on which there has been least agreement so far. I think we should leave article 6 out, proceed to other articles, and come back to it, as it is the most controversial article.
MR. JUSTICE JACKSON. May I mention before we leave number 4 the question as to four members of the Tribunal or their alternates being necessary to constitute a quorum? I would have a little question as to whether all four must be present every moment of the time and don't think it is quite clear here whether, in the absence of a member, his alternate could sit in his place. 1 would be inclined to make it three because sometimes you have temporary absence-a man is late or absent due to illness-and the others could go ahead. I think it is just a matter of draftsmanship-the meaning is clear.
PROFESSOR TRAININ. The Soviet Delegation is quite prepared to accept that with definite wording.
MR. JUSTICE JACKSON. Do you think four is necessary at all times for the hearing? I think four should be present at any vote, but, if a man is just temporarily delayed, or something of that kind, would you want to stop the proceedings on account of the absence?
PROFESSOR TRAININ. For a hearing the Soviet Delegation considers you must have f our present, that the court is not constituted if the four are not present, and would not be empowered to hear the case if the four or their alternates were not sitting.
JUDGE FALCO. [not translated.]
SIR DAVID MAXWELL FYFE. I don't think it is a very important point, Mr. Justice Jackson. We'll just have to see that the four of them are on time.
I am anxious myself to meet any suggestion. Shall we see how far we get on with the others and then turn back to number 6? Shall we proceed to 7, 8, and 9? If there are no questions, we are down to 10. In number 10, Mr. Justice Jackson, you did intimate this morning that you had a point there.
MR. JUSTICE JACKSON. Our point really is not so much with number 10, providing it is understood that the organization may be tried as such and provided there is put in the agreement a proviso for some manner of notice, constructive as we would call it, or actual, which the Tribunal would think sufficient so that the members are likely to be reached. Unfortunately, in one of our own redrafts, the provision about notice seems to have been dropped out. But somewhere along the line we must give notice to these members that this issue is up. We can give it by constructive notice. It may not have much practical meaning, because I doubt that anyone would come forward and identify himself as a member of an organization, the leaders of which are in jail, but I cannot satisfy American legal opinion with any procedure in which there is not some attempt in good faith to give notice to a man that there are legal proceedings going on which affect him and give him a chance in some manner to be represented and heard.
SIR DAVID MAXWELL FYFE. Is this what you have in mind, Mr. Justice Jackson, that it would be constructive notice, for the actual notice is rather difficult, as we would not know the number? Notice would be given on the radio and through the press, whatever press is functioning in Germany, that at the trial of, say, Kaltenbrunner, the court will be asked to pronounce the organization known as the Gestapo to be a criminal organization. If he wishes to attend and dispute this point, he may attend before the court. That is about what you have in mind?
MR. JUSTICE JACKSON. Yes. He might come in and submit to the jurisdiction of the court, which might make conditions rather onerous, but I think we must give him some fair chance. I do not think he can be bound by the decision when he has not had an opportunity to be heard.
GENERAL NIKITCHENKO. The Soviet Delegation is not quite clear. In practice probably the whole point is quite an unimportant one, but, theoretically, take the trial of Kaltenbrunner. A notice will be issued that at the trial the court will be asked to pronounce that the Gestapo is a criminal organization and anybody who wants to dispute this or defend his case must come forward. Well, supposing some hundreds of the members of the Gestapo did choose to come forward to defend the case of the organization. What would happen in the court and particularly what would happen on the trial of Kaltenbrunner if a hundred or two came forward to join in?
PROFESSOR GROS. Representative members of those organizations would be put on trial, but, if they are present, other members of the organization have no claim to say that the organization has not been charged in full knowledge of its functions, and there is the possibility that, if others come in, we shall have to refuse them because we are not going to charge minor criminals. The Tribunal must say we do not want to hear them. I would say I picture this in quite another way. There are very good lawyers in Germany and in the Nazi Party who probably would come to the bar and discuss questions some smaller member of the Gestapo would not be in a position to discuss. But we would be very glad to have more criminals, as I said, and we may misunderstand the point.
MR. JUSTICE JACKSON. I must say this is a problem of real difficulty. MY own view of it is that the practical side of it is not serious, but I may be wrong. We shall have, locked up and on trial for their lives, the chiefs of these organizations. I find it difficult to believe that many men will step forward and say, "I am one with him and want to be heard." But if a man does, he must submit himself to the jurisdiction of the court and be locked up. And if there are 200, I would let them choose a lawyer and be heard. There would be 200 of them to be condemned, if we were successful in our case and ready for sentence. I do not think it is necessary that all be present in court, particularly if they appear by representatives. We will have masters.
The court can act through them to take testimony as need be, but they will already have identified themselves as parties and parties who knew what the Gestapo was. The only thing I would think might induce their appearing would be that in jail they would be better fed than if at large. If they don't come forward, you have no trouble, and if they do, you have the trouble of letting them be represented. The difficulty is and I don't know whether it is a difficulty because it is one of the things I should fight for we don't condemn persons who have not had a chance to be heard on the issues. We have to give them some chance to be heard when picked up and identified. It seems to us that the risks of dealing with them in the main trial are much less than the risks of leaving it open to them to raise those questions in later individual trials. If anybody has a better plan for reaching these groups, we are open to suggestion, for among ourselves these points have given us trouble and caused endless debate, but we cannot say to American opinion that any man has had a fair trial who has not, at some point, had a chance to be beard on all issues involved in his conviction. We rather thought we followed the British ideals in that.
SIR DAVID MAXWELL FYFE. In that case, they would be given the chance of presenting to the court anything they had to say by a German lawyer. But it is not likely anyone would put his head into the noose.
GENERAL NIKITCHENK0. The Soviet Delegation does not quite see the point. We are not establishing a tribunal to try all members of these organizations. The whole purpose of the Tribunal is to try the chief criminals only, and in the course of that trial the court may give a verdict that the organization to which those criminals were parties is a criminal organization. As a result of that decision the individual small members become liable to penalties as members, but they will be tried by a whole series of courts, one kind or another, occupational courts or national courts, and at those trials they will have every opportunity to put forward anything they care to make in their defense.
But the point we are setting up here is one to try the chief war criminals. It seemed to us that in our discussions here, fairly considerable discussions, we had achieved unanimous understanding with reference to the organization. The organizations will not be tried as legal entities, and, arising out of the verdict in the case of the individual, a verdict can be pronounced that the organization to which he belongs is criminal. Therefore, our suggestion is that number 10 should be accepted in that wording in which it has been agreed between us, and the Soviet Delegation points out that 11 goes on to talk of the consequences of what happens in 10.
MR. JUSTICE JACKSON: We have not agreed to number 10. I pointed this out at every meeting, I think, at which the subject has been up, because it is a very difficult point for us. It arises from the fact that in our jurisprudence nothing is more fundamental than that the decision binds no one who is not before that court. If I were a member of an association and if one member were tried and convicted and I were later apprehended, I would have the right to raise every question in my defense, and they couldn't even use the former judgment against me. It may be a very wrong concept, but that is our tradition, that is our conception of what American legal opinion believes constitutes fair play. What we try to do in our proposed application of this principle of fair play is this: we try to reach all the different organized elements that have brought this terrible thing on Europe, and -we adapt our principles so that, with what we think is f air play, we can practically get at these vicious organizations. If you cannot do it through that procedure, you have to go through literally thousands of trials. As I said, we have complete identifications of 4,000 Gestapo people, but you just can't count on us for 4,000 trials. We are trying our level best to figure out a system which will be best to do what we want to do, to get these people, and at the same time get what we feel are methods people will consider fair and just and not a violation of our principles and traditions. Now this is a point that, as I can very readily see, seems trivial to those of you who are accustomed to a different system, but it is a point that will affect the acceptance of the result of these trials as fair in the United States.
GENERAL NIKITCHENKO. May I ask a question as to what Mr. Justice Jackson has just said? Taking this point of notice-what would be the consequence for those 4,000 persons that he has mentioned? Supposing this notice is given-are they all to respond to it and are they all to be allowed to defend themselves at the trial, or is it that they will be considered guilty as a consequence of the decision of the International Tribunal, and that in respect to each individual one of them it is simply a matter for the court, the subordinate court, to hear whatever he may have to say in his own defense and to mitigate punishment in accordance with its findings in each individual case?
The further point is that, supposing this announcement is made these 4,000 people are presumably locked up at the present time, and it is certainly not suggested that the whole of these 4,000 persons will appear before the court and offer a defense. The Soviet Delegation does not know what the effect of that might be on the American public opinion, but the effect on Soviet public opinion would certainly be that the mere fact of having given notice and then proceeding to deal with these people is not affording anything in the nature of a fair trial, and it would react very negatively in a position of that sort.
MR. TROYANOVSKY. If the organization is deemed criminal, that is, if these persons would be convicted on the basis of having belonged to that organization without having an individual hearing, that in itself would be a grave injustice.
MR. JUSTICE JACKSON. It is not planned to change number 11 at all. We are now merely trying to get a finding or decision that they are criminal organizations. The individual, when he is picked up, would have the chance to make the defenses which Mr. Nikitchenko outlined here. I thought he stated it much better than we had it in our draft the right to claim he was forced into the organization, the right to claim he did not understand its principles, the right to give new evidence in mitigation, he would have that right before sentence. But our problem is, can you limit him to that? We want a finding under section 10 which would limit him to giving that personal and individual kind of defense when picked up and brought before the occupational or military courts, or whatever courts they may be, in order to foreclose him and prevent him from raising the whole question whether the organization was criminal and going through that 4,000 times. Under our ideas we would have to give a man a chance to be heard. That does not mean each of the 4,000 would actually be heard. If 4,000 came in, they would be locked up and allowed to choose someone to represent them. You would not be obliged to listen to each of 4,000 people but would have a master hear their evidence. I think it is highly unlikely that any substantial number would appear. Perhaps a few fanatics. Already they are accusing each other. They say, "We never knew the organization was doing anything of this kind." The whole effort of every German we have interrogated is to get away from this thing as far as he can. We haven't any fear they would come forward and say they were Gestapo people and knew what it was doing. But if they did, we would have to deal with it. It is a possibility.
GENERAL NIKITCHENKO. If the organization is declared to be criminal, does the punishment ordinarily extend to all its members, and, if it does not extend to all the members, who is going to apply it?
SIR DAVID MAXWELL FYFE. May I give my understanding of that? The punishment would not automatically extend, because every member would be given the chance, before some court, of putting forward the defenses which General Nikitchenko mentioned that is, that he was forced into it, or did not understand it, or was the wrong person, or something of that kind. As I understand the present proposal, notice would be given of the issue to be brought before the court carrying the criminality of these organizations and that the member may be heard on that issue, simply on the criminality. In a manner the court would be entitled to say, "We shall hear you on that issue but only if counsel present your case and to the evidence that is relevant on that case." My point is that the important distinction would be limited to the criminality of the organization. The responsibility of the individual would be dealt with later by another court and then he would be able to raise his individual pleas.
PROFESSOR TRAININ. Numbers 10 and 11 represent a maximum effort to provide for the American and the British points of view. Soviet law does not provide for the trial of anybody who is not a physical person. Now in the drafting of 10 and 11, we have gone a very long way indeed to meet the desire of the American draft to provide for the trial of organizations which are not physical persons, and the resulting draft as laid down in these two paragraphs represents a very great advance toward meeting the views of the American Delegation. The point is that it is already laid down that the individual cannot dispute the finding that the organization is a criminal organization. Now, if an individual does appear before the court to defend the position of the organization, the Tribunal cannot hear him. The Tribunal is specifically constituted under its charter for the trial of the major criminals only, and there is no provision made for any method by which a casual member of the criminal organization could place his case before the court, because the court would simply refuse to hear it. That, of course, does not apply to the case where they appear as witnesses as long as they are not appearing as accused persons. If called as witnesses, they may appear as witnesses and in their capacity they can express their views, but they cannot be under a charge of criminal conspiracy.
MR. JUSTICE JACKSON. We appreciate that the Soviet Delegation has gone a long way in departing from the usual Soviet law trying to accommodate our views, and we want to emphasize we have gone a long way from traditional American practice trying to get a procedure here by which you can really get -these thousands upon thousands of Gestapo and S.S. members. We have no desire to modify 10 or 11. The sole difficulty with it is that in our procedure, before you can make judgment effective against anybody or a finding effective against anybody, be has to be in some manner a party to the proceeding, or otherwise he is not affected by it. I might write a judgment in a case in which 100 people were involved and 99 of them had been arrested and before the court, and I said the whole hundred ought to hang, but the man not in the case may come in and laugh at me. Therefore, our necessity is not to change 10 or 11, but to get these many people under it so that it will be effective. If you don't do that, if you don't take some step of that kind, notwithstanding the fact that the court may say that the Gestapo or S.S. is criminal, and you bring a member into an American occupation court presided over by an American officer, I should be surprised if that officer should not take the position that the member was not a party to the cause and not bound by the pronouncement that the organization is a criminal one. Our whole desire is to make this effective by making these people parties in some way to the procedure. I do not know whether you have that requirement, in so technical a fashion as we do, but there is our problem.
I hope in the light of this explanation we can work out something that will make it possible to go ahead, for without such a procedure the decision of the court would reach only those persons specifically indicted.
JUDGE FALCO. The French do have a system of putting persons on trial as an association of evildoers and proceeding accordingly.
SIR DAVID MAXWELL FYPE. I feel that here we are dealing with a new problem, and I am not afraid of making new law that goes beyond the British legal conceptions so long as it is fair and in accordance with the generally accepted necessities of natural justice or fairness. I should have thought that that would be met here if the other members of the organizations were given a right to be heard on this issue without prejudice to their future trial on their individual issues. Would not it meet the requirements, which I think I share in basically, of most of Mr. Justice Jackson's views and also meet the practical difficulties advanced by the Soviet Delegation if tile Tribunal were given the power of hearing any members of the organization on the issue as to whether the organization is criminal in such a manner and in such conditions as the Tribunal thinks? Wouldn't that meet the points of view? I don't think any member of the Gestapo could complain as to this issue being barred to him in the future if he were given the chance, that is, if notice were given to him of coming forward or through his advocate pressing his point at this trial.
PROFESSOR TRAININ. In what capacity would these other members appear before the court, as defendants or witnesses?
MR. JUSTICE JACKSON. They could only appear and defend in the name and by virtue of membership in the organization. The organization would be on trial and individual members would have a right later, before they were to be sentenced in any court, to present their individual reasons, but as a group they would be required to put forward their argument as to the criminal plans of the group in this main proceeding.
PROFESSOR TRAININ. People appear before the court only in quite definite capacity, either witnesses, accused, or experts, or persons having some definite standing in the court. I do not see in what particular role these persons appear.
SIR DAVID MAXWELL FYFE. I should say that the nearest approach is this: The issue having been raised whether this organization is criminal, as a member of it he would have a right to be heard on that issue. It is a. procedure which is used occasionally in court that an issue having been raised that affects a person the court gives that person the right to be heard on that issue.
GENERAL NIKITCHENKO. In a trial like this you have the defense, the accused. If they are members of the Gestapo who appear to be in a position to raise some kind of defense in regard to the criminality of the organization, then surely the defense or the accused himself will call them as witnesses and they will appear in the court in the capacity of witnesses for the defense.
SIR DAVID MAXWELL FYFE. Mr. Justice Jackson's difficulty is that, unless all members of tile organization are given notice, they would not know the issue had been raised. That is why he wants some notice to all members that they could appear, that is, as witnesses for Kaltenbrunner or in some other way.
PROFESSOR TRAININ. One more question about the trial. Will it be followed by the trials of individual members of the organization? They will certainly not all be present at the main trial. When the trial takes place, they will try to prove that either they were not members of the criminal organization, or else, being members, that they have done nothing as members which could lead them to be punished, or they may state the organization was not a criminal organization. In the opinion of the Soviet Delegation it would be far better that this question of criminality of the organization should be raised at the trial rather than the procedure generally suggested. The question of what the Gestapo really is is perfectly well known to all countries.
MR. JUSTICE JACKSON. I don't want to prolong the discussion, but you don't want to depend on American judges to know all about the Gestapo. You must remember your people are much nearer to this scene than we have been. Information comes through radio, which we sometimes doubt, and newspapers, which we sometimes suspect of exaggeration. This experience is not so well known in the United States that you call depend on a judge to assume it. The evidence we have found since I came here the first time has utterly astonished me, and I followed the Nazi regime fairly closely because I had something to do with the effects of the war on us under President Roosevelt's administration. These organizations are criminal beyond anything that I can dream. I think proof of their acts really means more to understanding by the United States of the problem you have had to deal with, and are going to have to deal with on this Continent, than you think.
PROFESSOR TRAININ. It is because of that consideration that we have accepted the American view that the verdict must apply to the whole of the organization.
SIR DAVID MAXWELL FYFE. It seems to me there are two methods of approach which we ought to explore. This is a point of great difficulty on which there is a great difference, but I am still hopeful that it may be solved. On the one side, I should ask that we consider what is the irreducible minimum of notice that would satisfy the American and British conception that a person can only be subject to a judgment if he is given the chance of questioning; that is, let us try to consider what is the smallest amount of notice. On the other side, there is the suggestion put forward, or at least implied in what Professor Trainin has said; that is, you could have judgment under article 10 which would pronounce for the benefit of humanity and posterity the enormities of the Gestapo and S.S. but would not be binding on the occupation courts who have dealt with the subsequent members.
MR. JUSTICE JACKSON. Our alternative seems as bad as the plan. I am not saying this is an easy plan. It certainly is not. The alternative is thousands of trials. There are hundreds of thousands of members of these two organizations. The thought that each one might delay the proceedings by raising the issue of the nature of the organization is appalling to me and makes it a task that I think never can be accomplished. We shall run some risks of dealing with persons who will want to defend if they have notice. If we recess until Monday, I will try to prepare the kind of notice that I think would suffice. If we are to do any translating, we would probably have to have until Tuesday. We shall try to have it late Monday.
SIR DAVID MAXWELL FYFE. If Monday afternoon would give you time, shall we adjourn until three o'clock Monday afternoon?
The Conference adjourned until Monday, July 16, 1945, at 3 p.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