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SIR DAVID MAXWELL FYFE [presiding.] We were discussing paragraph (b) of number 17-"[to require any defendant to give testimony] . . . ... [XXVI]
GENERAL NIKITCHENKO. One point is not quite clear. If the defendant does not want to answer, then neither his own counsel nor the prosecution can examine him. It is only the Tribunal, and it does not appear how the Tribunal will enter into the interrogation.
SIR DAVID MAXWELL FYFE. If he does not give evidence, does not want to answer, then, as I understood 24 (f), the Tribunal may put any question to any defendant-the Tribunal -would simply make the defendant, say Goering, stand up in the dock and ask him any questions. He cannot be forced to answer.
GENERAL NIKITCHENKO. The second point concerns the order of interrogation. It would seem better if the Tribunal should be the first to interrogate and should be followed by the prosecution and the defendant's counsel.
SIR DAVID MAXWELL FYFE. If you will look at 24 (d), after the prosecution have made their opening statement, the Tribunal "shall ask the prosecution and the defence what evidence (if any) they wish to submit to the Tribunal and the Tribunal shall rule upon the admissibility of any such evidence." And (e) : "The witnesses for the prosecution and for the defence shall be examined and may be cross-examined in each case by the other side." NOW, we envisage that both the prosecution and the defence would first of all explain the purpose of their witness, and at that point the counsel Would know as to all his evidence what it is going to be. Then we thought the other side could test the evidence, after which the Tribunal, having had it placed before them by both sides, would have the right to ask any questions and clear up points for itself. That is the system as we thought of it. It was difficult to do it otherwise with all evidence because the Tribunal would not know what any witness was going to say.
GENERAL NIKITCHENKO. It is assumed that it will be a question of asking for permission to call additional witnesses. The original witnesses will be interrogated beforehand and before the Tribunal will know What they are going to say. But if additional witnesses were called at the request of both sides or either, it would be necessary for the two sides for counsel to interrogate first so as to know what those additional witnesses have to say.
SIR DAVID MAXWELL FYFE. Of course, it would not be necessary to call a witness to put in the result of his interrogation, the statement he made on the interrogation. I think we would have to discuss how it should be done. But in the ordinary way we would call the officer who had interrogated the witness, and he would say, "This is the statement made on the interrogation."
PROFESSOR TRAININ. In essence, we are quite in agreement with this proposal. We quite agree that the defendant must be interrogated by the two sides and by the Tribunal. The only difference is that the order, we think, should be on the line of authority, and in this the Tribunal has the highest authority and should be the first to interrogate.
JUDGE FALCO. That is also my thought.
SIR DAVID MAXWELL FYFE. That does not apply to witnesses whose testimony is not before the Tribunal.
GENERAL NIKITCHENKO. As far as additional witnesses are concerned, they should be first of all interrogated by the side that asked that they be called. If called at the request of counsel, then counsel interrogate first, then the prosecution, and ultimately the Tribunal. If called by the prosecution, then he should be interrogated first by the prosecution, to be followed by counsel and then the Tribunal.
SIR DAVID MAXWELL FYFE. I think it still puzzles us a little because the Tribunal in Britain rather rely on counsel to bring testimony out, but the Tribunal is in command all the time. When counsel is asking questions, the Tribunal can interrupt and ask questions on its own. Now the Tribunal can ask questions all the time. They can stop us at any moment and ask us to clear up any point. That is our system.
PROFESSOR TRAININ. We share your point of view, but our suggestion is that we believe the Tribunal should interrogate and ask questions whenever it likes. It can always interrupt to ask questions.
SIR DAVID MAXWELL FYFE. It seems to me that that is a point that we could settle as we go along, as we all recognize the Tribunal is complete master of the situation. But I would like, if we could, to get back to the point that we were discussing yesterday. Would the Russian and French Delegations be prepared to do without questions being asked at the trial by the prosecution of a defendant who did not give evidence?
GENERAL NIKITCHENKO. It would not be necessary to write down in the charter anything about the rights of the defendant not giving answer, because, if he refuses to give answer to the prosecution and to the counsel and to the Tribunal, nothing is to be done, and therefore we do not think it would be necessary to point it out in the charter.
But as regards the rights of the prosecutor to interrogate, that is very important. If we do write anything about the defendant's right not to answer, then it would look as if we were preparing the ground for him to do so, and, if he knows about it, he will take advantage of it and refuse to answer. Therefore it is not necessary to mention it.
SIR DAVID MAXWELL FYFE. I am suggesting we cut out 17 (b).
GENERAL NIKITCHENKO. It is suggested to put 17 (b) in this form: "to interrogate any defendant".
MR. JUSTICE JACKSON. I suppose the real question is what happens if he declines to answer. No inference in our courts would be drawn against him for refusal. I assume this means, however, that, if he fails to answer, it would be harmful to his case.
GENERAL NIKITCHENKO. No, it is not so. Actual refusal to answer would not be against him.
SIR DAVID MAXWELL FYFE. So much the better.
GENERAL NIKITCHENKO. If he refuses to answer, it is not against him. It is estimated the Tribunal might consider that his refusal to answer means he does not want to give an answer, and eventually silence means consent. It may be considered by the Tribunal one way or the other.
SIR DAVID MAXWELL FYFE. You can draw an inference from his refusal?
GENERAL NIKITCHENKO. It is up to the Tribunal as to whether the Tribunal will consider the refusal.
SIR DAVID MAXWELL FYFE. I am disposed to accept that for the reason that, as Mr. Justice Jackson mentioned yesterday, under the German law it is a recognized procedure, and we adopted it at SHAEF [Supreme Headquarters Allied Expeditionary Forces] with a slight modification when we were getting our occupation courts set up. Speaking for myself entirely, I accept the suggestion proposed by the Soviet Delegation.
Now (o), "to require the production of documents and other evidentiary material". That is a power that is given to all municipal courts, and we suggest the Tribunal shall have it.
Now (d) "to administer oaths".
GENERAL NIKITCHENKO. Who has to give the oath, because here there are witnesses mentioned and the defendants, and the defendant does not take an oath. Therefore, it is necessary to make it clear by saying that it refers only to the witnesses.
SIR DAVID MAXWELL FYFE. I agree only to witnesses.
(e), "to appoint special officers of the Tribunal to take evidence and to make findings", et cetera. The main purpose is that, if certain evidence had to be obtained from distances during the trial, the Tribunal could send an officer who could take evidence at a distant place and report to the Tribunal. That officer could report on the truthfulness of the witness, etcetera.
PROFESSOR TRAININ. It seems to me this paragraph is not very clear. It seems the Tribunal is delegating its supreme powers to somebody else, which is not permissible. at all. Therefore, my position is that this should be transferred from the charter to the rules of procedure, because there it would be simply a technical matter while, if it is in the charter, it might sound like a question of principle.
SIR DAVID MAXWELL FYFE. The only thing worrying me is the question of whether the Tribunal would consider it has power to send an examiner unless we give the power in the charter.
PROFESSOR TRAININ. The rules of procedure do not contain anything that might contradict the contents of the charter, and in the charter there is nothing to mean that the Tribunal has no right to give such instructions.
MR. JUSTICE JACKSON. I do not think a trial would be workable, or easily might not be, if the court did not have power to send a master or special officer to take evidence. Such a situation is entirely conceivable under our type of trial; it could not arise undoubtedly under the Soviet type of trial, where the case is largely made before the trial starts. But in our procedure, unless you can send out a master who could obtain evidence on some issue, it might become unworkable. We are dealing with unprecedented issues here.
SIR DAVID MAXWELL FYFE. I don't think Professor Trainin is objecting to the power. As I understand it, it would be inherent under the rules of procedure.
MR. JUSTICE JACKSON. It is not inherent because this court has no inherent power; all must be conferred upon it. It cannot acquire power by its own rules.
PROFESSOR TRAININ. It seems to me that a certain way out of the difficulty could be found. Taking fully into consideration the views expressed by the British and United States Delegations that something should be said in the charter on this point, perhaps it would be possible to combine 17 (e) with 17 (a) and simply say in subparagraph (a) "to some witnesses in the trial", and that in separate cases for technical reasons the Tribunal may instruct special officers to go out to investigate and interrogate, et cetera.
SIR DAVID MAXWELL FYFE. Yes, I think something on these lines would meet the situation.
JUDGE FALCO. I think it is only during the trial that they would have the power. Before the trial the investigator makes the investigation.
MR. JUSTICE JACKSON. You see that points up a fundamental difference between your system of procedure and ours. The evidence, in order to be evidence in our system, would have to be produced before the Tribunal itself or some master representing the Tribunal. The fact that the prosecutors get and examine the evidence would not be sufficient to bring it to the attention of the court. Therefore, under our system, unless the evidence were taken before a master representing the court, it might not be admissible. Now the importance of this, as I see it, in a case as widespread as this is that we might have an incident in France, another one in the Netherlands, another in Belgium, that needed to be proved in order to make a point. The court cannot attend at all those places, but the master could be sent to get that material, and it would be admissible. I should hate to see the power confined to the period of the trial.
JUDGE FALCO. Before the indictment is lodged, the Tribunal would not know what it is all about; so how could it, before the trial begins, send its officers to be present at interrogations?
MR. JUSTICE JACKSON. They do not have to in our system. If we were preparing a civil case in one of our courts and certain evidence needed to be taken in a distant land or where the court had no jurisdiction or witnesses could not be moved because of illness or something, we would simply go to court on notice and make a showing that we had relevant evidence in such a place and needed a master to go before the trial, to go and take the testimony of the man who is ill and as there may be danger of his dying in order to perpetuate that testimony. Masters are used in a variety of situations under our system, but it all goes back to the f act that our trial requires the production of all documents and oral testimony before the court. It does not matter if you have bales of evidence in your files, it is not before the court until it is produced in open session. Without that you haven't a trial that Will be recognized in the United States, or, I dare say, in Britain. That is our difference here. We are used to pursuing different systems.
SIR DAVID MAXWELL FYFE. We all desire to rely on the Tribunal as being the governing body, and I suggest we might meet the point if we put in (e) "to order evidence to be taken by special officers . . . in cases where the Tribunal think fit to adopt the course."
Mr. JUSTICE JACKSON. Mr. Alderman suggests that perhaps it is not clear that in such a case the examining of the witness is not done by the master himself but the two counsel f or both sides go and the master receives the evidence and reports it. He does not have to conduct the investigation as under your system he would.
PROFESSOR TRAININ. This proposal introduces certain complications in the whole construction of the Tribunal. The construction of the Tribunal would be this, that the prosecution prepares the case fully and then the case is heard by the Tribunal. This proposal introduces an intermediary stage, that is to say, that the prosecution prepares e case, and then, before it is heard in the Tribunal, the Tribunal acts as such before actually hearing the case. It seems to me that when we are dealing with war criminals such a complication, such an intermediary, should not be advisable.
MR. JUSTICE JACKSON. Is it contemplated that the procedure set up in this agreement, as it now stands, adopts for the purposes of this trial the practice that the case shall be completely made by the prosecution and not be entirely heard by the court in open court?
GENERAL NIKITCHENKO. The indictment, of course, would be heard by the Tribunal and all the evidence checked in the Tribunal session, but it is the Tribunal that would check the evidence and not persons empowered by the Tribunal.
The Tribunal would have the right to interrogate the witnesses once more. It would be left with the Tribunal either to believe the evidence given before the prosecution or not to believe it and to interrogate the same witness once more in order to check his first evidence, then to call additional witnesses, to consider all the documents and so on, generally to go into all the details of all the material which is before the Tribunal in order to decide whether the accused has committed a crime or not.
MR. JUSTICE JACKSON. Is it contemplated that all the prosecution's evidence must be submitted with the indictment?
GENERAL NIKITCHENKO. I think we have all come to the conclusion that the indictment, all the evidence, all the documents, everything concerning this case, should be passed on to the Tribunal. It is in subparagraph (d) of article 15.
MR. JUSTICE JACKSON. Well, I was afraid that was the interpretation that was arrived at by the different delegations on the instrument, and I must say we could not accept that system as carrying out our idea of a trial. I think that, when the indictment is submitted, with it can be and should be submitted as much important documentary material as possible, but the calling of witnesses in open court is absolutely essential to the rules of a trial. Our people in the United States would not understand anything less than that as a trial.
GENERAL NIKITCHENKO. There is no question about witnesses being interrogated.
MR. JUSTICE JACKSON. Well then, how does it work if all the evidence must be submitted with the indictment, what do you call them for? I do not understand. What I had supposed we had agreed by this language was that we would put such documents as it is convenient to put in with the indictment, but that we would in open court prove our case.
GENERAL NIKITCHENKO. if you will allow me, I shall have to take about five minutes of your time to explain to you how we visualize the two stages the preliminary work of the prosecution and the actual hearing of the case in the Tribunal. If there are any questions after that, then we might discuss it.
First, the prosecution interrogates the accused and the witnesses and collects all the documents which testify that such and such acts have been committed. When the prosecution has carefully examined and checked those documents and when the prosecution considers that the whole of evidence and of the documents is of sufficient importance to prepare an indictment, that indictment is made and presented to the Tribunal. The accused are informed of all documents with which they are to be served so that they can consider the documents and prepare their defense.
After the indictment has been properly prepared and confirmed by the Chiefs of Counsel, that indictment is passed on to the Tribunal together with all the material confirming it, the material on which it is based that is to say, all the documents referring to the case, all the protocols, all examination of witnesses referring to the indictment. All that is handed over to the Tribunal. After that the case is heard in open court in the presence of the accused, if he is present, or in his absence if the court decides the court can decide in his absence. In the presence of all the witnesses and then during the hearing, the accused and the witnesses are examined again. Perhaps additional witnesses would be called and be examined as well, and all the documents are announced and made known and considered from the point of their reliability. Then the Tribunal in open court hears what the witnesses and accused can say in favor of and against the accused. Only after everything has been heard, examined, and made known after that only the Tribunal can arrive at its judgment.
Let us admit the possibility of a case when the accused first admits his crime, and then in open court denies and says he never committed the crime and was not even on the spot when it was committed. At first the Tribunal will again interrogate the accused by reminding him of his own admission of the crime, then call witnesses who will prove he was at the particular spot and had committed the crime, and also present all available documents. It is quite possible that after that the accused will be compelled to admit his crime.
I wanted to emphasize that there should be an open court, open to the public as well, and during the hearing everything that would be said by the accused or witnesses would be heard by those present, by the public and the newspaper correspondents, so that they could follow in all details all the proceedings.
MR. JUSTICE JACKSON. The trial that is contemplated here would be the same kind of proceeding then that the Kharkov trials were.
GENERAL NIKITCHENKO. Not exactly the same because in the charter we are preparing there are certain points which make the procedures somewhat different from those adopted in Kharkov. According to Soviet law, the prosecutor is the first to interrogate, while here it appears the counsel calling the witness is the first. Secondly, the opening statement of the prosecutor is not known in the Soviet lam at all. So there are certain differences.
MR. JUSTICE JACKSON. But essentially it is the same procedure the same method of proceeding except for those small variations.
PROFESSOR TRAINI.N. The differences are not so small as they seem to be. For instance, according to the Soviet procedure, the prosecution and counsel are exactly on equal footing in the case while, according to the charter, the prosecution has definitely the predominant part to play during the case; and although that is contrary to the Soviet legislation on this subject, we decided to accept it simply because that is the usual procedure in England and the United States and therefore it is more widely known.
SIR DAVM MAXWELL FYFE. I wonder whether General Nikitchenko would look at paragraph 24, as I think it Would be the easiest way. Is that accepted?
GENERAL NIKITCHENKO. It should be added here that the prosecution can interrogate both the defendant and the witnesses as in the proposal. Otherwise, it is quite acceptable.
MR. JUSTICE JACKSON. 1 think it is very important that we do not come out of here with a document which some construe one way and some another. If we adopt a system that we both understand, 1 do not think it is so important what it is. I by no means insist that ours is better than anyone's else, but it is important we understand so that there is no future disagreement causing us to spend a lot of trial time in controversy. I would like to refer to the draft of indictment which was presented by the British conferees [XXXI], which is the thing in our procedure which would initiate the case. That would be filed with the court and is all that the court would know about the case until the day of the trial. Now this, of course, is a rough proposal. It might have a great deal more than this in it. I speak with very poor knowledge of British criminal law *and somewhat imperfect knowledge of our own, but, generally speaking, we are not supposed to plead our evidence. The purpose of the indictment in our system is to inform the defendant, not what evidence is against him, but what ultimate charge he must meet. I would be quite happy to see a good deal more evidence put in an indictment than is suggested here, but if we are to bind ourselves to the proposition that all evidence must be put into the indictment, it is an entirely new concept for us to operate on, and I must say I do not understand how it would work in a case like this where we will not have our evidence fully in hand at the time of indictment.
PROFESSOR GROS. Add to that the adoption of article 15, paragraph (d), where it is said, "The lodgement of the indictment and the accompanying documents with the Tribunal." That was a sort of compromise between the American conception as it has been explained by Mr. Justice Jackson and the French and Soviet conception, which is different. We would be shocked by the idea that the prosecutor would come out of the blue with evidences which are completely unknown until the moment of the trial. I do not see such a difference in principle in what has been said.
SIR DAVID MAXWELL F=. Along the same lines, in our system I do not know whether this is the same in the United States we have a preliminary hearing before a magistrate, and at that hearing the prosecution call all their witnesses and put in all their documents. It is obvious that the court, the judge who is going to try the case, knows what the case will be, knows the evidence, and sees the documents, and so do the defendants. But, if the defendant pleads "not guilty", the whole of that evidence has to be heard again by the court, and you can supplement it by calling further witnesses.
PROFESSOR TRAININ. I am very grateful for this reminder, but what we mean is this: there cannot be any intermediary hearing of the case. That is to say, first of all, the whole case is investigated and then must be tried by the Tribunal as such, and, if any intermediary stage were had, that would complicate the whole thing and bring about undesirable results.
SIR DAVID MAXWELL FYFE. I was only explaining our brief, which does lead us to say that the Tribunal and the accused should see a number of documents beforehand as explained in 15 (d). I do not know whether Mr. Justice Jackson would explain any difference, but I should have thought the adaptation for this purpose would be that we should lodge with the indictment as many documents as possible for example, treaties and official examinations by various countries that these should be passed on to the defense, but then we should call all the evidence at the trial, call all the witnesses we wanted or any people who had to explain the documents. I should like Mr. Justice Jackson's idea, as I do not know whether you have the same system.
MR. JUSTICE JACKSON. Well first, of course, before I discuss the American usage, let me say I am not insisting upon any American system. One purpose of having a military tribunal was to be able to adopt the best from all systems. Secondly, I supposed this provision represented a compromise between the common-law system and the Continental system so that the indictment would embody a large part of the case but not necessarily all of the case. Our practice is difficult to explain because we have 48 States and some of them proceed under the common-law system and some by code systems, but, in general, after a prisoner has been arrested, he is to go before a magistrate, at which Point the prosecution must make a prima facie case for holding him for the grand jury. Then in most States we have a grand jury, which is drawn by lot and is a secret body, and that inquires into the case. No man can be put to trial for a major crime unless he is indicted by a grand jury of his neighbors-at least 16 present to make a quorum in most States-and 12 must concur in the indictment. Then this indictment is presented by the grand jury in much the form of the British indictment. It may be in somewhat more detail. The first the court really knows about the evidence in the case is when the whole case must be presented to the court as if you never heard it before. I think the observation that Professor Gros has made to us at times that ours is perhaps a more combative and sporting system is probably true. I am not arguing for its merits. I think there is great merit in your system, and in ours, and ours is abused sometimes by prosecution and sometimes by defendants. But we must find some middle ground here. I had hoped that we had done it by the language used by the drafting committee. It seems to be quite appropriate in this kind of case that we use much of the Continental procedure. Certainly it is appropriate to use with the Germans, for that is their system as I understand it, and we are quite willing to go a long way toward the adoption of it. But we could not agree that the taking of evidence virtually ended with the indictment, so far as our presentation of proof is concerned.
SIR DAVID MAXWELL FYFE. It seems to me there are two points, and I think we are agreed, but we ought to make them quite clear. On the one hand, Mr. Justice Jackson accepts that in this case the indictment will be accompanied by all possible documents such as treaties, public reports of atrocities, and the like-that these will be passed to the Tribunal. That is what the Americans are conceding toward the compromise of the system. On the other hand, the French Delegation agree that at the trial all evidence will be called, but, as suggested in paragraph 24, the prosecution can put in additional documents if any have come to hand or seem desirable at that time. It seems to me that with these two compromises we have married the two systems. Isn't that the reality, Mr. Justice Jackson?
MR. JUSTICE JACKSON. Yes, I think it is. I would like to ask whether in the Continental system during preparation of documents accompanying the indictment the defendant has any representation, that is to say, in examinations of witnesses. Is the defendant represented in preparing that case or is it just the prosecution ?
SIR DAVID MAXWELL FYFE. I should have thought the defendant was not represented at the preliminary. That is for the prosecution, but the prosecutor should supply the defendant with a copy of the examination.
It seems to me, gentlemen, that on that basis we are in fact in agreement and that this is a matter of words. Perhaps the drafting committee could make our words clearer. I wonder whether on that we could return to a very minor point on 17 (g), which is simply the appointment of court officials. "Marshals" is a particularly British thing. When our country was more disturbed, the judge on circuit used to have a bodyguard and the marshal was captain of his bodyguard, but in ordinary times he is more or less a secretary. I take it we may use some other term.
PROFESSOR TRAININ. In substance there is no difference at all, but perhaps it would be better to combine (,q) in (a).
MR. TROYANOVSKY. (e) with (g), not (a).
MR. JUSTICE JACKSON. May I ask, is it the sense of the other delegates that we should abandon (e) ?
SIR DAVID MAXWELL FYFE. No, (e) and (g) combined.
GENERAL NIKITCHENKO. The Soviet Delegation does not think this would quite fit in.
MR. JUSTICE JACKSON. Are we going to appoint and use masters in this, or can't we use them? It makes a great deal of difference in the scope of our case. If we cannot use masters in the assembling of this proof, I think it makes a good deal of difference with the line of preparation we have thought of using and whether we come out of here with a workable plan or not.
SIR DAVID MAXWELL FYFE. I thought we had agreed that we could use masters. The point Professor Trainin makes is that the technical nature should be stretched. It should not appear to be delegation of the powers of the court. I just wanted to find words to indicate that.
Is there anything on number 18? There is a question in (b), "take strict measures to prevent any action which will cause unreasonable delay. . . .", et cetera. What I gather was in the minds of the drafting committee was that you do not want these trials to become a platform for Nazi speeches. That is what we want to rule out. On the other hand, we don't want to use words which would seem to prevent the Nazis making their defense. I should have thought that, if we put in "to rule out irrelevant issues and matter of any kind whatsoever", that would meet the point. Cut out the words in brackets.
MR. TROYANOVSKY. The last part would be deleted.
SIR DAVID MAXWELL FYFE. I agree.
GENERAL NIKITCHENKO. When the charter was considered in the committee and in discussions that took place here before the committee took over the matter, the Soviet Delegation were always stressing the necessity of preventing the accused having the possibility of using the trial for propaganda because it is quite possible that the accused would like to become the accusers in the course of the trial. Therefore, the Soviet Delegation thought it right to alter this particular sentence dealing with measures to prevent such action and attached considerable importance to the point. To make it impossible for the accused to use the trial for a platform for propaganda and accusation but in order to arrive at a unanimous decision as soon as possible, the Soviet Delegation are prepared to accept the suggestion and omit the last sentence, seeing that the other delegations think that sentence might diminish the authority of the Tribunal.
SIR DAVID MAXWELL FYFE. W e are grateful for the omission.
MR. JUSTICE JACKSON. I Want to say I am entirely in sympathy with the purpose of the Soviet Delegation in suggesting this sentence, although I could not be happy at the use of the sentence as it is. I think we should give a little thought to whether this purpose can be accomplished by some other means. There is a very real danger of this trial being used, or of an attempt being made to use it, for propaganda purposes, and I should like to make a suggestion as to what seems to me a weakness in the original American proposal that would help overcome this difficulty. It seems to me that the chief way in which the Germans can use this forum as a means for disseminating propaganda is by accusing other countries of various acts which they will say led them to make war defensively. That would be ruled out of this case if we could find and adopt proper language which would define what we mean when we charge a war of aggression. Language has been used in a number of treaties which defines aggression and limits it in such a way that it would prevent their making these counteraccusations which would take lots of time and cause lots of trouble. It seems to me that, if we make a study of treaties which have defined "war of aggression", we can confine our charge against them to a physical act of attack and that is the crime, the attack. We might consider one or two definitions used heretofore.
SIR DAVID MAXWELL FYFE. In preparation for paragraph 6.
MR. JUSTICE JACKSON. Yes, I think it should go in paragraph 6, but it limits the possibility of propaganda. For example, here is a definition used in the treaty signed at London on July 3,1933, by Afghanistan, Estonia, Latvia, Persia, Poland, Rumania, Turkey and the U.S.S.R., which was apparently worked out with great care:
"ARTICLE II. Accordingly, the a I aggressor in an international conflict shall, subject to the agreements in force between the Parties to the dispute, be considered to be that State which is the first to commit any of the following actions:
"1. Declaration of war upon another State;
"2. Invasion by its armed forces, with or without a declaration of war, of the territory of another State;
"3. Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State;
"4. Naval blockade of the coasts or ports of another State;
"5. Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take, in its own territory, all the measures in its power to deprive those bands of all assistance or protection.
"ARTICLE III No political, military, economic or other consideration may serve as an excuse or justification for the aggression referred to in Article II. (For examples, see Annex.) "
These definitions would foreclose what they are apt to attempt because they are going to say for propaganda purposes, "It is true we made an attack, but there are political and economic situations which were our justifications." And that may have to be litigated. There are other treaties which we could consult for perhaps other definitions. We will try to get them all together and think it would be helpful.
SIR DAVID MAXWELL FYFE. I am very grateful to Mr. Justice Jackson and am sure it will be helpful to have them to consider.
Has anyone anything on 18 (c) ? Then 19 or 20.
GENERAL NIKITCHENKO. Perhaps the Russian translation of 20 is not correct, but as it reads it appears as if the Tribunal should require the defendants to convince the Tribunal of relevance of evidence. That is a rather tricky thing and the defendants may not succeed in doing so, and therefore it seems that the wording should be altered somehow to make it clear as to what is meant.
MR. TROUANOVSKY. Perhaps to say "to prove to the Tribunal".
GENERAL NIKITCHENKO. It is suggested that it should be the Tribunal which requires the defendants to state convincing arguments in favor of relevance of any evidence.
We agree with the idea of this paragraph; that is to say, the defendant should not be allowed simply to ask for presentation of such and such documents or witnesses. He must present sufficient arguments to support his request. It is suggested that the Tribunal shall be required to be informed of the nature of the evidence before it is offered so that they may rule upon its relevance. Perhaps a new draft should be presented at the next meeting.
SIR DAVID MAXWELL FYFE. There is no difference between us in essence, merely a question of finding the words. Shall we pass to 21? 22?
Number 22, 1 think, is important because that would allow the smaller Allies to present us with official reports which might be useful.
MR. JUSTICE JACKSON. But how do we stand about the indictment as to probative value? As I understand it, this recognizes the probative value of the indictment, which under our system, of course, has no probative value. In other words, it is an adoption of the Continental system as to the probative value of the report of the prosecutors, and I really think that, if we are going to adopt it, we ought to adopt the Continental system candidly so I can say to my people, "We are trying Continentals and trying them by the Continental system."
PROFESSOR TRAININ. The indictment has no actual probative value. It is only one of the elements to prove a case.
PROFESSOR GROS. There are two things not clear in 22. One is evidence used by whom? By the prosecution commission or the Tribunal? It should be said.
PROFESSOR TRAININ. Perhaps not only prosecutors but counsel for the defense.
PROFESSOR GROS. We must ask the commissions to send their reports.
PROFESSOR TRAININ. It is to point out to whom the national committees shall send their documents. The whole purpose of this paragraph is simply to show that the documents received from the national commission will have exactly as much value as evidence as the documents prepared by the prosecution. That is the whole point, simply to say the Tribunal itself will consider their value on receipt of them just as they will value any evidence introduced or entered in the prosecution.
SIR DAVID MAXWELL FYFE. Could we have that suggestion again?
MR. TROYANOVSKY ". ... . . shall be received in evidence by the Tribunal and given such probative value as the Tribunal shall decide."
PROFESSOR TRAININ. The chairman pointed out in the beginning that this article is important. Therefore why change it? As it stands, it is quite clear.
SIR DAVID MAXWELL FYFE. I thought it was not clear and we were trying to clarify it.
PROFESSOR TRAININ. Of course, what value would the documents have if they have no value I And therefore every document which is presented to the Tribunal has sufficient value to be considered. Then the Tribunal would consider what the value is, to say whether they are of sufficient evidence or not.
SIR DAVID MAXWELL FYFE. That was what my words were trying to make clear-that they will be received in evidence and then the Tribunal will attach the value. Or they would have the same probative value as the acts of the committee.
MR. ALDERMAN. We never decided what probative value those acts would have.
GENERAL NIKITCHENKO. Just as indefinite, but equal with the documents.
MR. JUSTICE JACKSON. The difficulty with this provision, as I see it, is that after all we must have words here that mean something before us. To me this is like making a promise that is bound to be broken. We cannot say it has the same value as something having no value, without leaving ourselves open to suspicion. We all agree that an indictment has no probative value and to say that the War Crimes Commission's report shall have the same probative value, or the same value as something that has no probative value, is a use of English that I don't know how we could ever explain to our profession. I couldn't. What we need here is a provision that the documents prepared by the War Crimes Commission and the Extraordinary Commission of Russia-and I think we should also include other tribunal records of other trials-should be admissible as evidence in this case and that their weight is to be determined by the Tribunal.
MR. TROYANOVSKY. The Russian term here is "judicial value".
MR. JUSTICE JACKSON. Once anything is accepted in evidence the weight then becomes a question for the Tribunal. These things should be admitted in evidence, and we should make provision f or other documents which were included in our other draft. For instance, we have reason to believe that Frank will be tried, and a great deal of evidence will be brought out in that trial that will be of value. I think that record should be admissible before the International Tribunal.
Sin DAVID MAXWELL F=. It seems to me there are two points first, to see that they will be received in evidence by the Tribunal, which implies the Tribunal will attach the value; and secondly, we should include, as Mr. Justice Jackson suggests, the records of trials that have already taken place. Is there any objection to the second, regarding the inclusion of records of trials which have taken place?
GENERAL NIKITCHENKO. No objection.
MR. JUSTICE JACKSON,. And the other documents mentioned in our list we want to make it as broad as possible in getting documents in.
SIR DAVID MAXWELL FYFE. I think we ought to see a redraft and see it tomorrow morning. Should we?
PROFESSOR GROS. Could I suggest it could be included in article 21?
MR. ALDERMAN. It belongs to "judicial notice" really.
Sip, DAVID MAXWELL FYFE. Now we come to the question of where the trial is to take place. I understand Mr. Justice Jackson has just made a tour in Germany. Perhaps he could tell us about the results of it.
MR. JUSTICE JACKSON. There is not much to report. There are very few courthouses standing large enough to assemble very many people in. General Clay suggested that the most suitable place for a trial is Nurnberg. We went there and looked at the premises. The courtroom is not as large as it ought to be, perhaps, but it is larger than any other courtroom standing in that part of the country, or any other part that we can find out about, and the jail facilities are very adequate; in fact, 1,200 people could be jailed there. There is a tunnel from the jail to the courthouse. The whole is enclosed by a 20 foot wall, which means that from a security point of view it would be an excellent setup. There is adequate office space for everybody and that in the building in which the courtroom is located. Adequate communication systems can be set up. Adequate billeting for witnesses, for all of the counsel and their staffs, and all of those things can be provided for. Of course they will be if that is the place chosen. That is by far the most suitable place we could find, and that would be our suggestion.
GENERAL NIKITCHENKO. I think it is hardly possible for us to decide now where the sittings of the Tribunal will take place permanently. The cases may be heard in various places, and I do not think that it enters into our task either. The idea of this article 23 is simply to establish the principle of the places that would be selected for the Tribunal, and it is said here, "such other place as the Signatories may agree." What is important is what will be the center of the Tribunal where all the documents of which we have been speaking, documents of the national commissions and so on, should be directed, and it is our view that that place where the actual center of the Tribunal should exist must be Berlin. As far as the sittings are concerned, it would be quite sufficient to say that the Tribunal should sit at such a place as the signatories may agree.
SIR DAVID MAXWELL FYFE. It seems to me that, if we are going to stick to our hopes that we shall get a trial in September-I think we all agreed that was worth trying to do-we must fix a place for the first trial almost right away. The arrangements will be very considerable. We have to find accommodations not only for the judges, counsel, and defendants, but also for the press. That will mean all the communications, arranging for airplanes, motor cars, and the like, and I should have thought we ought to agree for the first trial. How extensive that will be will, of course, depend upon the agreement of those ultimately appointed prosecutors. Certainly as far as accommodations are concerned, Nurnberg seems very suitable, and it could be almost immediately used as a center for collecting the evidence. I should very much like to impress on the delegations the suitability of Nurnberg for the first trial and then leave the wording we have here "such other place as the Signatories may agree." After we agree on a place, I am told by General Bridgeman, who advised me on the matter, it will take six weeks or two months to arrange. If we don't agree, we are really stultified about the trial coming on before October.
GENERAL NIKITCHENKO. Does it mean that, if the first sitting of the Tribunal takes place at Nurnberg, the center of operation of the Tribunal, which will be of vast importance, will remain permanently in Nurnberg?
SIR DAVID MAXWELL FYFE. I should think that for the moment it was necessary to decide only for the first trial. After that, it would be for the prosecutors to arrange it.
GENERAL N1KITCHENK0. I think the question should be divided into two parts; namely, one is the question of where the Tribunal shall sit, and the second question is of the place of its permanent seat. And as to the second, the official seat, the Soviet Delegation are in favor of Berlin. Geographically, we think it much more central than Nurnberg. Second, Berlin is much more convenient as that is the seat of the Allied Control Council and the Allied Control Council have all the arrangements and personnel at their disposal and can be very helpful to the Tribunal in many ways in various facilities which win be required by the Tribunal.
MR. JUSTICE JACKSON. I have never thought of this as a permanent tribunal. I have never given thought to a permanent seat for it, and we do not contemplate it. The whole American plan which was proposed here was designed to reach a very large number of people at a single trial or at most, perhaps, a very few trials. That is the reason we have tried to reach people through organizations. We have not thought of it as a trial of 15 or 30 people, but we have thought of it as a trial the result of which would affect thousands of people at least. I must say that if you contemplate reaching any such number of people by any other method, if you contemplate a court going on circuit, as we would say, and sitting for an indefinite period of time, that has not been the way we have thought of this at all. Therefore, we contemplate cleaning up most of this in a single trial. That is the heart of the American plan. That is the only thing that I know of that commends it, that it does have reach and scope by which to reach many people through few trials and to reject it is to reject the entire heart of the American plan. I do not insist it be adopted, but, if it is not, we must reconstruct our entire plan of handling this matter.
GENERAL NIKITCHENKO. I don't quite understand what is meant by that. Is it meant that the Tribunal will actually be able to condemn thousands and thousands of people, not really to condemn but simply to reach their guilt? I thought that the Tribunal would deal with the cases only of the principal criminals. As far as I understand, there are about 350 principal war criminals in the hands of the United States :11one and then the other countries have large numbers of them as well, and therefore, it seems to be quite impossible to try them all. There may be 500 or more at once. I thought that principal criminals would be divided into groups, say, for instance, a separate case for the leaders 1)f the Nazi Party and a separate case for members of the Gestapo, and so on, and each of those big groups may be subdivided into smaller groups which are linked with each other. It seems to me that in this we are faced with a number of separate cases and not with one or two.
The agreement is supposed to be concluded for a year. It may be that the actual trying of all those trials will take less than a year, but anyway it will take considerable time-enough time to necessitate having a seat for the Tribunal, but the actual hearings of the cases may take place in other places as well.
MR. JUSTICE JACKSON. What would be at the central seat? A court in my conception of it has no organization except a clerk to keep its records and a little staff of officers. These prisoners are in the hands of our military authorities, who would be responsible for their custody and protection. The court would have no permanent organization that I would know of beyond its records, which should be lodged with each of the governments involved. I don't know just what is contemplated by "seat of the court" as distinguished from the place where it would conduct the trial.
SIR DAVII) MAXWELL FYFE. We have been sitting for three hours and have got to a very knotty point. It seems it might be worth our adjourning and considering this before our next meeting.
The Conference adjourned until Wednesday, July 18, 1945, at 10: 30 a.m.
International Conference on Military Trials : London, 1945
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945
International organization and conference series; II
European and British Commonwealth 1
Department of State Publication 3080
Washington, DC : Government Printing Office, 1949