International Conference on Military Trials : London, 1945
Minutes of Conference Session of July 16, 1945
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SIR DAVID MAXWELL FYFE [presiding]. When we adjourned on Friday, we were -dealing with paragraph 10 of the subcommittee's draft of the charter [XXV], and we were in a certain difficulty with the conception of "notice".(1) It was suggested to me afterwards that it might be a helpful approach if we would provide that the Tribunal give notice, and I have a draft of an addition to article 10 for us to consider. I wonder whether this would carry out our wishes. I feel that there is no real difference among us, and I hope that something like this may help. Would it be convenient for me to go through it bit by bit so as to translate it and explain what each bit is?

"After receipt of the Indictment, the Tribunal shall give notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration . . . . "

That relates back to paragraph 10 as it stands unaltered. The Tribunal may declare in connection with any act of which the individual may be convicted that the group or organization of which the defendant is a member is a criminal organization and that any member of the organization may defend it who submits himself to the jurisdiction of the Tribunal. That is, in order to be heard at all, he must admit that the Tribunal is entitled to inquire into these charges; otherwise he would not be heard. And "through the defendants charged in their capacity of members of the organization"-that relates back to the discussion that we had on the agreement when, you remember, we put in these words that "whether they may be accused individually in the capacity of members of the organization," "be entitled to submit evidence or argument to controvert the allegation that the organization was a criminal organization." Those who come forward will be attached to them and through Kaltenbrunner's case they can either give evidence or produce arguments. The final words "that the organization is a criminal organization" then limit the extent to which he can be heard. He can be heard only on the question of whether the organization is a criminal organization. Number 10 would read:

"After receipt of the Indictment, the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and that any member of the organization who submits himself to the jurisdiction of the Tribunal will be entitled to appear before the Tribunal and through the Defendants charged in their capacity of members of the organization be entitled to submit evidence or argument to controvert the allegation that the organization was a criminal organization."

Then 11 and 12 follow on from that, dealing with the subsequent trial of any member to be dealt with by the other courts.

GENERAL NIKITCHENKO. Is it proposed to retain the wording of 10 as it was adopted by the committee and then add this, or is it intended that this be substituted?

SIR DAVID MAXWELL FYFE. It is an addition. Retain 10 and put this at the end.

GENERAL NIKITCHENKO. I think this can certainly be accepted as a basis on which the delegations can work, and after they have had the opportunity of studying it at a later meeting it would be possible to look forward to definite views on the details. It is a basis to work on.

SIR DAVID MAXWELL FYFE. What do you feel, Mr. Justice Jackson ?

MR. JUSUCE JACXSON. I feel the same way.

SIR DAVID MAXWFLL FYFE. Then perhaps that would be the best thing, to leave 10 with that accepted as a basis, and I should be most pleased to get assistance from anyone on the details.

Now, paragraph 11, or should we leave 11 and 12 to fit in with the amendment to 10?

GENERAL NIKITCHENKO. There is a small point of drafting.

SIR DAVID MAXWELL FYFE. Then we will deal with number 12.

GENERAL NIKITCHENKO. It may be that the drafting is not too good or it may be that the translation is at fault, but in the opinion of the Soviet Delegation it should read, "Any person condemned by the International Military Tribunal may be charged just to make it clear.

SIR DAVID MAXWELL FYFE. I do not think it is sufficiently clear. That is intended to cover any minor criminal, and the only point in it is that he may be charged with other crimes in addition to membership in the organization and punishment would be imposed accordingly.

GENERAL NIKITCHENKO. Your explanations have made it perfectly clear what was intended.

SIR DAVID MAXWELL FYFE. I should have liked to hear what the committee had in mind for the Tribunal in the last line.

MR. ALDERMAN. I think the word "Tribunal" in the next to the last line makes it clear, just as Sir David says. First he would be condemned by the Tribunal and pass then, if there was no charge of any additional crime, to another court. This is to condemn him for separate crimes in addition to the crime of membership in the organization. It would apply to a member of an organization which had been convicted in the Military Tribunal.

MR. JUSTICE JACKSON. I suppose the whole thing arises because of a complication in our law that does not obtain in all systems of law. Under our Constitution a person cannot twice be placed in jeopardy for the same offense, and the purpose here, as I read it, is to make clear that conviction of membership in the organization does not preclude subsequent punishment for other offenses. It is really a problem raised by the British and American law and perhaps not by the other systems of law.

GENERAL NIKITCHENKO. But it is said here "the punishment imposed by the Tribunal". Would that mean that the person had been before the Tribunal and had been convicted by it?

SIR DAVID MAXWELL FYFE. I thought it referred to minor criminals who had not been before it. It was not clear to me what was in the minds of the drafting committee. Perhaps Mr. Alderman would explain.

Mr. ALDERMAN. In the previous articles we have provided, in the case of the main Tribunal, that, if an organization is accused as criminal, notice will be given for members to come in. This article assumes one or more of such members have come in and subjected themselves to the jurisdiction of the court and have therefore been convicted of membership before the Tribunal. But later an occupation court finds one of them is guilty of murder. This provision would allow him to be convicted for the murder, in addition to having been convicted in the main Tribunal for his membership in the organization.

GENERAL NIKITCHENKO. Any person condemned by the Tribunal.

SIR DAVID MAXWELL FYFE. Certainly on that basis I agree.

PROFESSOR GROS. Would it mean major war criminals?

SIR DAVID MAXWELL FYFE. It might be people who had responded to notice given them to come in. It might be major or minor criminals.

MR. JUSTICE JACKSON. We might have a case like Frank, who is claimed to be both. We might try him and convict him before the International Military Tribunal, and he would still be triable by the Czechoslovakian authorities. The purpose of it, as I see it, is to save that kind of situation where one might be guilty of both kinds of crimes.

SIR DAVID MAXWELL FYFE. Then we accept the Russian suggestion.

GENERAL NIKITCHENKO. Perhaps we can re-examine the wording and put it as we think it ought to be and come back to that.


MR. JUSTICE JACKSON. On 13, I wonder whether it should be "in hiding", a term that might make us some trouble. I do not know how we could prove that some person is in hiding. I should prefer "if for any reason", unless there is some reason for putting it in that way.

GENERAL NIKITCHENKO. It is better as it stands. The wording should be "in hiding" as the article goes on to say that in the other courts for any other reason he could be tried in his absence; therefore this question of hiding does not really confine the meaning of the paragraph, and the paragraph is quite wide enough to carry any case that may arise.

MR. ALDERMAN. Wouldn't it be better draftsmanship to say, "if he has not been found", and then you need not have any debate as to what "hiding" consists of ?

GENERAL NIKITCHENKO. The Soviet Delegation considers that the present wording is better because it gives a definite example of the conditions in which the man may be tried in his absence if he is in hiding deliberately. If you use something like "if he has not been found", you may create an impression that they had not tried to find him and had simply condemned him unheard without taking the trouble to search him out.

MR. JUSTICE JACKSON. Under our rule of construction an American judge might very well say "for other reasons" means only reasons similar in character to "hiding", and you are taking the risk of limitation, as we see it.

GENERAL NIKITCHENKO. The judges who will be trying the case will be special judges, and they will not be bound by the ordinary rules and principles of the British, American, French, or Soviet judges. They will certainly be able to draw conclusions. Although a national judge might not, the international judge should find his way through this.

SIR DAVID MAXWELL FYFE. If we put "for any other reason" instead of "for other reasons", that may help to exclude the difficulty.

Number 15.

GENERAL NIKITCHENKO. After the words, "Each Signatory shall appoint a Chief Prosecutor", the Soviet Delegation would like to add, "to investigate the cases of the charges against the chief defendants and to prepare the cases against them".

SIR DAVID MAXWELL FYFE. Which really is to put the heading into the body of the agreement.

GENERAL NIKITCHENKO. Instead of having the statement, "Each Signatory shall appoint a Chief Prosecutor", by embodying the heading in the body.

SIR DAVID MAXWELL FYFE. I have no objection to that. Then is there anything on (a), (b), (c), (d), or (e) ?

GENERAL Ni-KITCHENKO. There is a point about (e). Is it necessary to have (e) in at all? Would not 15 be sufficient without having this?

SIR DAVID MAXWELL FYFE. The main point is, first, to help the Tribunal by giving them something to work on, and second, to save time because we don't want to have the Tribunal when we get close to the period of the trial spend a lot of time in the rules if we can agree now on something that would be helpful to them.

GENERAL NIKITCHENKO. In principle there is no objection.

Mr. JUSTICE JACKSON. Well, I repeat the point which was made before: as against our own prisoners, we would not want the provision if prosecutors were bound by a majority vote. What is the situation practically about this? We have gone ahead trying to get our evidence and to prepare our case. Many decisions have to be made in the course of it. Yet no decision will have validity under this provision unless a third nation joins in it. We don't want to interfere with anyone else's case against his prisoners, but we do want to be free to use evidence we have been getting against prisoners in our captivity whether others wish to or not. This is a very broad limitation on each prosecutor, as it stands. It is so broad that it may mean a great deal of misunderstanding. As we have pointed out, it does not seem acceptable to us without the reservation which we made in our memorandum [XXIX].

SIR DAVID MAXWELL FYFE. Is it a real matter of envisaging the possibility of disagreement in the final designation of the defendants? It does not seem to me that the other (a), (b), (c), and (d) are likely to cause much trouble by this agreement.

MR. JUSTICE JACKSON. My first difficulty is with (a) because I do not know what it comprehends, and I am always afraid of terms I cannot understand. By majority vote all prosecutors are to coordinate the work of individual prosecutors. Well, we have our way of doing our work, and it may be difficult to coordinate. I find it difficult at times to coordinate my own staff without trying to coordinate four countries. I don't think that (c) is particularly troublesome, nor (d), and I doubt that you will have any trouble about (b), but I don't know what the situation is as to defendants. I know in a pretty general way what prisoners are in the hands of the British and in the hands of the Americans. I don't know what prisoners are in the hands of the French nor of the Russians. I don't know what personalities they will ask us to deal with. But we have a considerable group of people who we think come under this classification as major war criminals. I think we have various listings running as high as 350 which the Judge Advocate General's office has classified as such. Our list runs into quite a number of people. I don't want them left on our hands. We have tried to group them to avoid more than one trial. The complication is in trying to reach in a single trial a very large number of people, but we do not want to go through a large number of trials if we can avoid it.

SIR DAVID MAXWELL FYFE. What is your suggestion, Mr. Justice Jackson, as to the qualification of this?

MR. JUSTICE JACKSON. I would restore the language of the former draft. If you get into a situation where there is a tie among prosecutors and nobody has a majority, the case is stalled under this draft. I cannot envisage leaving this in a position where we could be stalled.

SIR DAVID MAXWELL FYFE. On this point I feel that I agree that it is a theoretical possibility. I don't think there is much reason for disagreement in practice. hat is my approach to the matter. I cannot imagine myself fighting very hard for the exclusion of any of the people I have had to consider so far, and, personally, I should be prepared to agree to a majority vote, but I am very anxious that we should not break down on this. I do not know whether the other delegations have the proviso of the original American draft in front of them.

PROFESSOR GROS. I should like to support your views. We think also that there might be some disagreement but cannot see why that should happen. On the other side, we take the constitution of the Tribunal as a combined operation, and we would like to add complete cooperation between the four prosecuting officials to make it stronger. The solution which is presented by the American draft would be only in exceptional cases, and also, I might say, it would not be too good to have two categories of persons on trial, one where unanimity would appear and the other where there was dissent between the Allied nations. It would also help the Germans in criticism of the work of the Tribunal. They would say we were divided, and I should be in favor of keeping the necessary staff cooperation because, if one or two prosecutors are not ready, I think it would be better to wait for them than to have one. It would be dangerous to have such a clause.

PROFESSOR TRAININ. We do not foresee any practical difficulty any more than the French member. He is quite convinced that in the majority of cases all steps will be taken unanimously, but I do foresee considerable difficulty if it is possible for only one of the prosecuting officers to take charge of a case. The constitution of an international tribunal is really composed of two parts, the investigation of the case and the trial itself. Both the investigation and the trial are on an international basis. Now, if it is permitted that the prosecutor representing one country could carry a case through himself, that completely destroys the international character of the whole case.

SIR DAVID MAXWELL FYFE. I was not quite clear on this. Did you mean in the vote by which the Chief of Counsel should be able to bring forward defendants?

PROFESSOR GROS. I am afraid to put it in the statute that one prosecutor could bring a person to trial because the trials in the main are by the United Nations. We are pooling the war criminals and charging them in the name of the whole United Nations. I would like to find some phrases to meet the American delegate's idea, but I am convinced that it shall not be something that can be used immediately because one or two prosecuting officers are not ready. If two agree, after discussion by all, to include a defendant, be should be put on trial.

SIR DAVID MAXWELL FYFE. I gather Professor Gros' suggestion is that, in the event of equality of vote after discussion on the part of four Chiefs of Counsel, then the American provision would apply.

MR. JUSTICE JACKSON. That would be satisfactory. I would not want to do anything three of my associates are against, but I have been worrying along preparing a case for several weeks now and do not want to have to be delayed here too long.

GENERAL NIKITCHENKO. There is another way out of it. The point here is in regard to majority of votes, and the trouble would arise in the case of equal split of that vote. We have accepted the principle that in case of equal division of votes the chairman should be the casting one. Would it be possible to introduce that conception into this by arranging that the chairman of the prosecutors be the casting vote in case of a disagreement?

MR. JUSTICE JACKSON. I think Professor Gros' suggestion is a more practical one because you might have a division over the choice of a chairman. It seems to me his suggestion better meets all the requirements.

SIR DAVID MAXWELL FYFE. I only regard this as a safety valve. I should be most worried if I thought there were any real prospect of disagreement, but I don't think there is. But if we are having the need for a safety valve, I would ask everyone to try to find one.

PROFESSOR TRAININ. I follow any of the views expressed here. I agree with the chairman's view that any disagreement is quite unlikely to happen, but there is this danger, that, if we accept the suggestion of anything other than the majority vote, we would have in our charter a clause which would have the effect of converting an international tribunal into a national court, and the Soviet Delegation cannot understand how we can possibly agree to allow the International Tribunal to be turned into a national court in that way. It is for that reason that I feel the solution would be to accept this proposal of giving the chairman of prosecutors a casting vote.

JUDGE FALCO. [Not translated.]

MR. JUSTICE JACKSON. I should not think its character as an international tribunal would be affected so long as the opposition to going ahead could only prevail if concurred in by two, as Professor Gros has suggested. That fear might be justified if one were to go alone. It seems to me that the proposition of having a chairman in an informal body such as this cast a deciding vote is likely to be impractical, and I don't know how you are going to rotate. The suggestion of Professor Gros seems a practical way out of a situation that I hope will not arise. But wise draftsmanship anticipates the improbable as well as the probable.

SIR DAVID MAXWELL FYFE. I wonder whether we could try to find a solution on the lines of the Soviet suggestion of a chairman's casting vote. The real issue, as I see it here, is this: Suppose three people are against prosecuting a defendant and one person wants to go on prosecuting him. In that position it would be almost unthinkable that only a general charge would lie and that it would be possible to deal with it by a national court.

MR. JUSTICE JACKSON. I don't know that that would quite meet the difficulty if it ever arises.

PROFESSOR GROS. It would be a change in the status of the war criminals. Those people are still major war criminals. Some business people should be included in the list of major war criminals, and the French prosecutor would present a list of bankers, et cetera, in Germany. If the three others refuse, your solution would imply that those bankers or industrialists would be sent to France to be charged there. That changes their status as major war criminals.

SIR DAVID MAXWELL FYFE. As the agreement reads at the moment, each signatory shall appoint a Chief Prosecutor for the investigation of charges and the prosecution of the major war criminals. Then, (b), one of the purposes of the committee would be the designation of the defendants by the Tribunal, that is, a selection before you go to the Tribunal. Then, assuming that you have, for instance, a three to one majority against the selection of your banker, for example, a majority of the prosecutors decide he is not worthy of trial as a major war criminal. The suggestion was that, if you put something at the end of the agreement that would be without prejudice, you would be carrying out the view of the majority, wouldn't you?

PROFESSOR GROS. I do not think that in such a problem you can leave the casting vote to the chairman to say the man is a major war criminal or is not. It is very difficult to comment on that. Your suggestion gives us a practical solution of three against one, but I wonder whether it gives a solution of two against two.

SIR DAVID MAXWELL FYFE. I am reminded that article 6 of the agreement already provides that "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals." It is already covered.

MR. JUSTICE JACKSON. The difficulty of that is that, if you take the banker as an example-for instance, Schacht, who is our prisoner at the moment-he is either a big war criminal or nothing. If you take him out from under this agreement, you have nothing to try him on at all. Nothing except the common-plan or conspiracy theory will reach that type of man, and, therefore, if you by a deadlock shove him out of this Tribunal, you have shoved him out of the possibility of being tried anywhere because you have no law to try him except under this agreement.

GENERAL NIKITCHENKO. Referring to the example by Mr. Justice Jackson in reply to Professor Gros, the example of Schacht-we are of the opinion that whether we have this clause or not, the point is that we have a provision for dealing with persons who organized or incited or otherwise caused all these war crimes, who were the instigators of the wars of aggression, and who are, in fact, much greater criminals than the minor people who carried out murders, ill-treatment of prisoners, et cetera. Whether this provision is in this paragraph or not, the agreement, as it is, provides for the punishment of these people, of whom Schacht is a good example, and they would not escape because of the wording of this particular paragraph.

To provide for the right of one or, in the case of equal division, of two prosecutors to act on their own initiative, is to adopt a principle which is contrary to the whole charter of the International Tribunal, and it would follow from the contradictions of that principle that we would have to introduce a whole set of rules, all of which -would be in direct contradiction of the principles on which the international body is based. The whole agreement and the charter are based on combined action, on cooperation between the Four Powers. Now, if we introduce at one point in one paragraph a principle which departs from this and allows the action of only one power independently, then we are going completely contrary to the whole idea on which the charter is based, and the introduction of that one exception would mean that a whole series of regulations would have to be provided as to what would be done when that happens. It is quite contrary to the whole spirit of the charter.

If we take the practical case, the unlikely practical case, where no agreement is arrived at, article 6 of the agreement provides for the trial by national courts, and in the unlikely case of your having three of the prosecutors against the trial of one individual and a single prosecutor in favor of it, article 6 would give that one prosecutor the power to transfer the case to his national court for trial. It would not automatically absolve a defendant in that case from being tried, and the proposal that the Soviet Delegation now puts forward would in our opinion provide that in all cases an agreement will be reached by the casting vote.

SIR DAVID MAXWELL FYFE. I feel that we have exhausted the use of immediate discussion of it, and it would be a good point to consider, as we may be able to find a solution. Therefore, I suggest we leave this as a reserved point to come back to. Now, shall we take the second part of 15-"The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties. . . ." Is there any question on 15, paragraph 2?

GENERAL NIKITCHENKO. The first point is this: we consider it better as a matter of convenience to make the second part of this article into a separate article. Number it as 16. As it stands now, the whole of 15 becomes lengthy and clumsy, and it would be easier if it were divided.

SIR DAVID MAXWELL FYFE. I see no objection to that.

GENERAL NIKITCHENKO. Coming to the very last paragraph of 15 as it stands, "It is understood that no witness or defendant detained by any Signatory shall be taken out of the possession of the Signatory without its assent." The Soviet Delegation does not understand what that is meant to cover.

SIR THOMAS BARNES. Consider paragraph (a) above, "Investigation and collection of all necessary evidence" and (c), "The preliminary examination of all necessary witnesses and of the defendants." Under this paragraph each of the prosecutors may act individually, and that last paragraph was put in to prevent one of the signatories from demanding the attendance or testimony of defendants in the custody of another and obtaining their attendance without the consent of the detaining country.

GENERAL NIKITCHENKO. Does not that limit the application of article 3 of the Agreement, "Each of the Signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal"?

SIR DAVID MAXWELL FYFE. It only means that both signatories must agree. One signatory asks and the other agrees. It is difficult to mention a case where one signatory would want to examine a witness beforehand without the consent of another.

GENERAL NIKITCHENKO. That is quite right. We agree. Does this refer to the preliminary investigation or actual presentation at court ?

SIR DAVID MAXWELL FYFE. The preliminary investigation. There would be no objection as far as I can see. Suppose the Soviet Delegation wanted to send someone to ask a prisoner of ours some questions. We would arrange for questioning to take place at a convenient spot. It would only be a matter of arrangement.

GENERAL NIKITCHENKO. It is purely a question of drafting. The words which are not clear are "taken out of the possession of". It might be better to provide no investigation or the questioning of the man without the consent of the holding signatory.

SIR DAVID MAXWELL FYFE. I can see the difficulty. Of course, "custody" means "being held in the custody of one power". They would remain in the custody of the holding power, but all the facilities would be offered.

GENERAL NIKITCHENKO. Yes, it is quite clear.

SIR DAVID MAXWELL FYFE. We shall keep the whole, then, and alter the numbers at the ending. Now number 16.

PROFESSOR TRAININ. It is simply a question of more exactitude in 16 (b). It says, "to give any explanation which he may desire with regard to the charges made against him." "With regard to the charges"-in the Russian translation apparently he can talk about anything he likes.

SIR DAVID MAXWELL FYFE. Instead of "which lie may desire -with regard to the charges made" we could say "which is relevant"'.

MR. JUSTICE JACKSON. Should he be allowed an explanation? "Explanation" would not have any legal meaning to me that you could apply in confining it. He could make almost any sort of speech he wanted to. It seems to me he should be limited to testimony as to the facts rather than an explanation.

MR. ALDERMAN. "Statement" would be better than "explanation".

GENERAL NIKITCHENKO. "Give testimony" instead of "give explanation".

SIR DAVID MAXWELL FYFE. That is covered by (e), isn't it? "through himself or through his counsel".

PROFESSOR TRAININ. Apparently in point (e) the word "evidence" would not apply to verbal testimony.

SIR DAVID MAXWELL FYFE. No, it would not.

GENERAL NIKITCHENKO. What does point (b) mean?

SIR DAVID MAXWELL FYFE. I should have thought it would be best to confine (b) to the preliminary examination and to put "any preliminary examination . . . he shall have the right to give any explanation . . . ... And in (e) the defendant shall have the right through himself or his counsel to present his own or any evidence.

Now, number 17. 1 think this requires a certain amount of explanation, because I notice it is bracketed. We shall deal -with it point by point. "The Tribunal shall have the power: (a) to summon -witnesses to the trial and to require their attendance and testimony and to put questions to them . . . ." That is the equivalent of the International Tribunal's making witnesses attend. " [ (b) to require any defendant to give testimony] . . . . " I think there is a difference in our systems. In England no defendant need give evidence in a criminal charge. It is up to him. On the Continent he can make a statement without being cross-examined. I understand that under this code he must answer questions.

JUDGE FALCO. He is interrogated like a witness. He can say what he wants.

SIR DAVID MAXWELL FYFE. It is not really adding a great deal. It would actually be contrary to our ideas that a person should be forced to give evidence if he did not want to, and, in addition, be could stand mute if he liked. I would like to hear others' views on that.

MR. JUSTICE JACKSON. Our system, like yours, would not permit us to force a defendant to testify against himself. The constitutional provision against compulsory self-incrimination would protect him. That privilege is not known to the German law, as I understand it, and not to some other systems we are using here. We would be willing to adopt the Continental practice of making them testify, but, like you, I do not think it would accomplish a great deal and would not insist upon it if the others disagree.

PROFESSOR TRAININ. The right of the prosecution and the court to ask questions of the accused must be provided for, but there is nothing at all to compel him to answer. I do not know of any law by which it is possible to compel the defendant to answer questions, but the court should be allowed the right to ask. They have the right to question.

JUDGE FALCO. We have the same view.

MR. JUSTICE JACKSON. I feel that the possibility of a two to two division is greater than we anticipated. Here we are now divided two to two on a question of procedure.

SIR DAVID MAXWELL FYFE. The Soviet would cover the Continental point. The defendant may be asked questions by the prosecution, the defense, or the court, but he is not bound to answer them.

MR. TROYANOVSKY. But that is provided for in number 24.

MR. ALDERMAN. The solution is to strike this clause out.

SIR DAVID MAXWELL FYFE. I believe 24(f) covers the right to question them, and we could strike this out here.

MR. ROBERTS. That would suit me if we left it to the court.

PROFESSOR TRAININ. In article 24 it says that defendants and witnesses may be questioned by the Tribunal, but it does not say anything about the prosecutor questioning.

SIR DAVID MAXWELL FYFE. If he does not give evidence, then the court can answer the question.

PROFESSOR TRAININ. The point is that the duties of the prosecutor under the Tribunal are of such a nature that they differ entirely from the Continental system. The prosecutor has much greater powers and, therefore, the Soviet Delegation considers that the prosecutor and the defense should have the right to question a defendant, but the defendant would not be compelled to answer.

MR. ALDERMAN. Why the defense? The defense could not represent him unless the defense does what he asks him to.

SIR DAVID MAXWELL FYFE. I feel there is no real difference between us, but it is rather difficult to explain.

MR. JUSTICE JACKSON. The question remains whether the defendant is prejudiced by his refusal to answer. That is the real underlying question-is silence like a confession?

The Conference adjourned until Tuesday, July 17, 1945, at 2 p.m.

(1)Ante, p. 234 ff.

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

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