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Sir David Maxwell Fyfe called the meeting to order.
MR. JUSTICE JACKSON. Before we get into a discussion of abstract things, I should like to suggest something very concrete. The matter of a place for trial, as I have said before, is very important to settle, at least as to the first trial, because a great deal has to be done by way of providing facilities wherever it occurs. Whoever is to be responsible for it wants to begin preparation. I have examined the facilities at Nurnberg, and, while I do not think they are perfect, I think they do meet our needs better than, anything that is available in Germany from a survey that our officers have made. It is very important that we get these prisoners in one place, and that we get them where they will be accessible to our people for interrogation. They are not now in any one place, and it is very important that we get selected the ones we want to interrogate. It takes some provision of facilities to do that. If we use Nurnberg, the courthouse heating plant must be put in shape as it was knocked out by bombing. Communications must be arranged. Proper billeting and proper mess must be arranged. We all want to be adequately fed. Creature comforts are something I do not despise. So I make this suggestion about it.
We have available a plane assigned to our work. I should be very glad to invite the Representatives of the three collaborating countries to go with us to Nurnberg. It is not a long trip. I should like you to inspect the jail facilities, the courtroom, and the billeting places, and generally help contribute ideas as to what should be done if that is to be used. And if we find that it does not meet the requirements, then we will know it. But I think it is very important that we get some place selected. I would suggest, if it is agreeable, that we can be prepared to leave early on Saturday morning. We can get back here on Sunday afternoon or Monday morning. Suitable accommodations can be provided meanwhile. There is no difficulty about arranging the physical facilities for the trip, and I should be glad to extend the invitation in the interest of getting this thing expedited as much as possible.
SIR DAVID MAXWELL FYFE. I am very grateful to you f or the invitation. I shall be very pleased to accept and have a look at the physical conditions in Nurnberg to see whether they are satisfactory. There are really two points that Mr. Justice Jackson's proposal deals with, the physical requirements of the trial and the ability of Nurnberg to seat them. That point should obviously be satisfied, and I should be very pleased to go and help to decide that point. The second aspect, of course, is whether the delegations can accept in principle the subject of the physical capabilities of Nurnberg, the question of a first trial there of the outstanding and well-known war criminals. Yesterday the Soviet Delegation said that the condition of that, which they were anxious to see, was that there would be what was called a secretariat of the Tribunal in Berlin. I think we might clarify that to this extent: that there would be a secretariat and administrative office of the Tribunal in Berlin, that the indictment would be delivered there, and that at that time there would be a conference for Chiefs of Counsel in Berlin. Then if that were put on the other side of the ledger, so to speak, it might be that the Soviet Delegation would accept, subject to the physical capabilities, the idea of the first trial of the outstanding war criminals at Nurnberg.
GENERAL NIKITCHENKO. The arguments advanced by Mr. Justice Jackson yesterday regarding the seat of the first trial to be held in Nurnberg seem to be convincing, and there would be no objection from the Soviet Delegation to that first trial being in Nurnberg. They will be prepared to recommend to their Government to take part in the near future in the preparation of that first trial. The permanent headquarters thereof-where the court and the secretariat and administrative offices should be settled-is another matter, and they still consider it would be better to have the permanent seat of the court at Berlin. That would be the place where the signatories to the agreement would be convened, and preparation for later trials would be organized and staged. Summing up the views, Berlin would be a more suitable place for the permanent headquarters, but we would be agreeable to staging the first trial in Nurnberg, later trials to be at the permanent seat or to be decided later.
SIR DAVID MAXWELL FYFE. Do any of the delegations care to take a look at the Nurnberg site over the week-end?
GENERAL NIIKITCHENKO. We would be glad to take advantage of the kind invitation extended by Mr. Justice Jackson.
JUDGE FALCO. We accept and will go.
Mr. JUSTICE JACKSON. That will enable us to see what is needed to be done in order to make it adequate so that work can be started because the heating plant and things like that must be fixed and the plants are out of commission now. It would take some time in order to get them equipped.
GENERAL NIKITCHENKO. The cold weather will hardly set in before the time for the first trial comes.
MR. JUSTICE JACKSON. I hope General Nikitchenko is right, but I think we may like a little heat in the mornings. I shall let you know about the details of time and place, but subject to weather we can set it up for Saturday morning early so that we can reach Nurnberg at a convenient time for lunch.
SIR DAVID MAXWELL FYFE. Perhaps the best thing would be to leave number 23 for a redraft to carry out what we agree and proceed to the rest of the agreement. I-lave the Soviet Delegation had a chance to consider Mr. Alderman's redraft of 21 and 22, or shall we leave that for later in the day?
GENERAL NIKITCHENKO. No, we have just received it.
SIR DAVID MAXWELL FYFE. Then we shall leave that until later when you have had a chance to consider it.
Now, number 24. 1 think, Mr. Troyanovsky, that General Nikitchenko said that he accepted 24 subject to a point.
GENERAL NIKITCHENKO. The basic principle of 24 is acceptable to the Soviet Delegation, but we propose for subparagraph (e) "The court, the prosecution, and the defense shall interrogate the accused and the witnesses. The Tribunal may at any time put any question to the defendants and the witnesses."
MR. ALDERMAN. That is in (f) now as it stands.
GENERAL NIKITCHENKO. Just add in (f) "at any time".
SIR DAVID MAXWELL FYFE. It seems to me that the difference between us is on the production of the witness. The court is in supreme control as to what will happen when a witness is called, but our conception is that, when the witness is called, the party calling him will ask him questions to bring out the purpose for which he is called, which will be explained to the Tribunal.
GENERAL NIKITCHENKO. We agree that any witnesses who are summoned or called up for questioning by a particular side shall on the first case be questioned by that party.
MR. ALDERMAN. May I suggest that that formula leaves out entirely the idea of cross-examination?
GENERAL NIKITCHENKO. That is, to leave the second part of subparagraph (e) intact. The amendment really affects the first part. Leave (e) as it stands, but add the introductory phrase.
SIR DAVID MAXWELL FYFE. As I understood from yesterday, the Soviet Delegation do not mean to insist that the defendant must answer the question. If he does not want to answer, the position is as we discussed it yesterday.
GENERAL NIKITCHENKO. Yes.
SIR DAVID MAXWELL FYFE. I think that on that basis it does not conflict with our ideas that the defendant may be interrogated.
PROFESSOR GROS. I am not quite clear on the point of when the defendant pleads "guilty" or "not guilty" as nothing appears in the agreement. Did we decide on the rules, or should it be discussed here?
SIR DAVID MAXWELL FYFE. It is a question of the rules, Professor Gros, because it varies from case to case. Sometimes, in sitting as a judge, one is quite content with the statement from the prosecutor when the defendant has pleaded "not guilty". I should think it is a matter for the Tribunal.
MR. ALDERMAN. I might say that with this there is only one possible consequence of a plea of "guilty" and that is that a man is convicted on his own plea regardless of evidence.
SIR DAVID MAXWELL FYFE. Hasn't the judge the right to ask the prosecution to call any witnesses in order to explain on the question of punishment?
Mr. ALDERMAN. On the question of punishment, yes.
SIR DAVID MAXWELL FYFE. Then number 25, the question of languages. Has anyone any point on that? Number 26?
PROFESSOR TRAININ. In regard to rights of the defense and the prosecution-no article says they take any part. Therefore, I propose to submit two articles, one regarding the prosecution and one regarding the defense. Nothing has been said so far regarding the prosecution, defining the functions of prosecution. The first sentence in this proposed article reads, "One or several prosecutors shall take part in each trial. This function may be fulfilled by the Chief Prosecutors or by other persons authorized by them." Now for the defense: "The defense may act at the request of the defendant. Function of counsel for the defense may be discharged at the request of the defendants by persons who are members of the bar, or by other persons authorized thereto by the Tribunal." Those two articles are regarded as necessary to make the statute complete.
SIR DAVID MAXWELL FYFE. I have no objection to the contents. Perhaps we could just have a look at the drafting and bring it up with the other reserved matters, but I see no objection.
MR. ALDERMAN. It seems to me the first one is covered already by article 15 (2) (d) and (e).
PROFESSOR TRAININ. That rather stipulates or defines the right of the prosecution, but we think there should be a definite article defining the rights of the prosecution and who is entitled to act for the defense.
MR. ALDERMAN. The other seems to be covered completely under "Fair Trials", (b) and (e).
SIR DAVID MAXWELL FYFE. I agree and support Professor Trainin as to the inclusion of the first sentence. I think that ought to be made clear, that either one or several of the prosecutors should take part, but think it should be made clear that each of the four will be entitled to put forward whatever part of the case is decided.
PROFESSOR TRAININ. There is, of course, a certain amount of repetition in the additions suggested, but article 16 merely stipulates guaranties offered to the accused persons, whereas I would like to see two articles setting out the exact functions.
SIR DAVID MAXWELL FYFE. Perhaps we could leave that. We all want these points made clear. That would come in at the end of 25, or at the end of 21 or 23. Now shall we go to "Judgment and Sentence", number 26? Numbers 27? 28?
MR. ALDERMAN. Will we use "sentenced" or "convicted"? I do not know why the brackets were around that.
MR. JUSTICE JACKSON. We would not want to use the words "confiscation of property". We have no such penalty, and for historical reasons that -would be extremely unacceptable to the American people. I don't know whether there is any point in arguing the merit of our position; it may be entirely wrong. Our view is that a fixed money penalty may be assessed but to confiscate a, defendant's property, along with a death sentence, -would be to punish his family, not him, and we just don't do it. It would be somewhat obsolete as a penalty-like drawing and quartering. It is the kind of penalty we don't impose. I don't suspect these people will have very much left to confiscate anyway. I think it is a provision that is not very practicable. I do not want to include the term but am quite willing that a penalty payable in money, a fixed penalty, be assessed; but the words "confiscation of property" would set pretty badly with Americans.
SIR DAVID MAXWELL FYFE. We take it in two stages. The courts have a complete right to impose a qualified money penalty, but that can be levied on the goods and property of the defendant.
MR. JUSTICE JACKSON. That is right.
SIR DAVID MAXWELL FYFE . There doesn't seem to be a great deal of difference in effect.
PROFESSOR TRAININ. In the case of the death penalty, can a money fine be imposed?
SIR DAVID MAXWELL FYFE. It is possible. It has not been done in my experience, but I do not think there is anything to prevent it.
PROFESSOR TRAININ. I would like to take that into consideration but find it difficult to conceive it alongside a penalty of death. It is a question after all of drafting. Perhaps we could find a more suitable word. The word "fine" does Dot appeal to us very much but we would consider another term instead of "confiscation".
SIR DAVID MAXWELL FYFE. The principle is that the Tribunal shall have the right to impose a qualified money penalty which will be leviable on the goods, property, or estate of the defendants.
PROFESSOR GROS. There is a difference between the question of "fine" , which is quite easy to understand, and the question of confiscation". We would not see any objection to confiscation of property which had been stolen.
SIR DAVID MAXWELL FYFE. We have a procedure whereby restitution may be ordered of stolen property, and I should be pleased to have a suggestion to cover restitution.
PROFESSOR TRAININ. That would be quite all right-deprivation of looted property.
SIR DAVID MAXWELL FYFE. Well, we would include that in the redraft. Now, number29? Number30? What is the difficulty here, Mr. Alderman?
MR. ALDERMAN. Our views are that the expenses of the Tribunal and of the trial ought to be charged against the funds allotted for the maintenance of the Control Council but that the expenses of individual prosecutors of the four countries, like the money spent in America and London, ought to be borne by each signatory rather than by the Control Council.
SIR DAVID MAXWELL FYFE. Does anyone want to press for the inclusion of the expenses of the Chiefs of Prosecutors--for the alteration of this text?
The position is that the following points are still outstanding, and I ask your help on this. On paragraph 10 there is a British draft which has been accepted in principle subject to consideration. Paragraph 15, the resolution of differences between Chief Prosecutors, and the redraft of 21 and 22 which Mr. Alderman has provided this morning. There will be a redraft of 23 to meet what we decided this morning, two additions by Professor Trainin, and a redraft of number 28. Now it seems to me that the best course would be to use this morning on paragraph 6 and then try to provide redrafts which would be circulated tomorrow of the various outstanding points.
MR. JUSTICE JACKSON. It seems to me the time has arrived when the heads of the delegations will have to sit down and reconcile language where there are minor changes, since language is so important. The exact language will have to be settled, and I don*t know whether it can be done expeditiously except to sit down as heads of delegations and bind our people for better or worse to something.
SIR THOMAS BARNES. It would be better to redraft these things and then the heads of the delegations settle upon it.
GENERAL NIKITCHENKO. Perhaps it would be better to entrust to a drafting subcommittee the task of working out the texts of those articles which are no longer doubtful, and by the time that that task was completed perhaps the heads of delegations could get together and submit agreed proposals for the texts of the disputed articles, particularly article 6.
SIR DAVID MAXWELL FYFE. I am not quite clear. Would the drafting committee cover these outstanding ones that I mentioned this morning?
GENERAL NIKITCHENKO. Yes-those where differences in drafting lie-because in principle we have agreed, except for article 6, which could be discussed by the heads of delegations.
SIR DAVID MAXWELL FYFE. Well, I think there was, on paragraph 15, a question of the majority vote.
GENERAL NIKITCHENKO. In 15 it would be necessary to I ay down the principle that, if there is a difference, the chairman should have the deciding vote.
SIR DAVID MAXWELL FYFE. Well, I think that is a matter we could profitably discuss between the heads of the delegations. We reserve that for them.
PROFESSOR GROS. I am afraid I must point out some difficulties on article 6; so I shall ask the Conference to discuss it or have it discussed by the heads of the delegations.
SIR DAVID MAXWELL FYFE. Would it be useful if we occupied the next hour by a preliminary discussion on article 6 so that we would know what the general views are?
GENERAL NIKITCHENKO. I hardly think it would be possible in the course of an hour to decide the various points still under dispute in article 6, particularly (c) and (d). Perhaps it would be better to leave it until tomorrow.
SIR DAVID MAXWELL FYFE. Would it be possible for the delegations who have alterations to let us have a note of the alterations before we start discussing?
MR. JUSTICE JACKSON. Could we not get each other's views here ? I am sure I am not informed as to what the objection is. I have the French draft of objections.
PROFESSOR GROS. We agree completely with the intent, but we would like it formulated in a more careful way to avoid any discussion by international lawyers in the next months or years to come.
SIR DAVID MAXWELL FYFE. I am very anxious to meet everyone's views, but on the other hand we are all anxious to get on with the matter and I gather that the Soviet Delegation would like to submit a draft of their views. Is that so?
GENERAL NIKITCHENKO. No, there will be observations on the existing draft.
SIR DAVID MAXWELL FYFE. But will they be in writing?
GENERAL NIKITCHENKO. There is no intention of submitting a new draft.
SIR DAVID MAXWELL FYFE. It is only a third writing, and we would like to have it submitted in writing.
GENERAL NIKITCHENKO. We will submit it in writing tomorrow morning.
SIR DAVID MAXWELL FYFE. Could we meet tomorrow afternoon ? If General Nikitchenko, Mr. Justice Jackson, Professor Gros, and I meet to consider article 6 tomorrow, could Professor Trainin, Mr. Alderman, Mr. Barnes, and Judge Falco meet to consider the cleaning up of the draft?
PROFESSOR TRAININ. Perhaps it would be quicker if the drafting committee met in the morning.
PROFESSOR GROS. Let the heads of the delegations discuss 15 (b)
SIR DAVID MAXWELL FYFE. Shall we use the time by discussing 15?
GENERAL NIKITCHENKO. The only doubtful part of 15 is the last paragraph.
SIR DAVID MAXWELL FYFE. In my view there are two points outstanding on 15 (b) after our discussion. The first is the question of the final designation of the defendants under (b). Our discussion rather went on the line, on that point, that one delegation might want to prosecute a defendant and that, on its being put to the prosecutors, there might be an equal division. That was the problem that was raised. I am in favor of bringing in the defendants, that is, in case of doubt. Quite generally, I think I would rather see a defendant in than see him out. And I myself on that point would be prepared to commit the British Delegation to this: that once our defendant was proposed by a Chief Prosecutor, he should not be excluded from trial unless there were a majority of three to one in favor of exclusion. That seems to me to encourage the trial. Now on the other points, that is, coordination of individual work, approval of the indictment, and the lodgment of the indictment and rules of procedure, I should have thought that the draft would be satisfactory, that in these matters the positive would have to have the majority. I draw a distinction myself between it and the exclusion of a defendant. I want that to be made as difficult as possible, but on the other matters I am prepared to accept the draft. There would not be a casting vote. There would be a vote of three to one.
GENERAL NIKITCHENKO. If there is a division of votes two to two, the person would be prosecuted.
SIR DAVID MAXWELL FYFE. That is just my suggestion in case of doubt about prosecuting. But apart from that, I prefer to leave that as it is.
JUDGE FALCO. We agree,
MR. JUSTICE JACKSON. Well, I don't like to be alone, but I have always found that the safest thing to do when you do not understand is to say "No", and I do not understand what I am committing myself to in 15 (1) (a). There are literally thousands of decisions which will have to be made from hour to hour and day to day and -which are not minor matters. It is not at all unlikely we shall have a two to two division. We have seen it here at this table. I would not want to insist on going ahead with something that no one of my colleagues would agree to. But we have basic differences of viewpoint with regard to certain points in this case. For instance, I personally am much more concerned about the possible disagreements over the documents to be submitted, in view of the views expressed here, than I am about the particular defendants to be prosecuted. I think we would have little difficulty on that. But in the coordination of work of the chiefs of prosecution and their staffs, if that must be submitted to a majority vote, we cannot have a majority for anything, at least for some weeks, because we haven't the other prosecutors. I think we are in a state of stall that makes this plan unworkable. I do not think giving the vote to a rotating chairman, so that adoption of a proposal might depend on which day you brought it up, would be a workable plan. I don't know how you intend to rotate-I've never understood it-but I am wondering what result you would get. It seems to me that the only suggestion that meets our needs would be that the same arrangement that the Attorney-General suggests as to the determination of defendants applies to the determination of policies on which they shall be prosecuted. In other words, if there is an equal division, the side which has the possession of the prisoner may go ahead. I would not see any workable plan other than that, and I think we must provide it. It does not derogate at all from the international character of this agreement. It must provide what will occur in case of an equal division in prosecutors if we are going to have things determined by formal vote of the prosecutors.
GENERAL NIKITCHENKO. Regarding the problem of coordination, the Soviet Delegation imagines that there is no real necessity for every single step of each single prosecutor to be coordinated. Coordination should occur, but coordination to the general plan of prosecution, and in execution of the plan each should be entitled to independent action. When all the Chief Prosecutors have been appointed, they should get together and decide and advise one another who is going to deal with a particular case and who is going to investigate a particular accusation. That is considered essential. Each could then have freedom to deal with that particular case. Until the other countries have appointed prosecutors, the Chief Prosecutors appointed and who are ready should be entitled to carry on their work. Perhaps it would satisfy Mr. Justice Jackson if a single word or two were added to subparagraph (a), " . . . in coordination with the general plan and with the work of each of the Chief Prosecutors and his staff."
SIR DAVID MAXWELL FYFE. What I would suggest is that we redraft this more fully, including what General Nikitchenko suggests. The drafting committee could elaborate on this.
MR. JUSTICE JACKSON. Well, I think General Nikitchenko's suggestion meets my problem as to (a), and I agree with him fully that in those things there must be a common plan. My problem is this and I think it is a very real one and very fundamental-what happens when two of us favor one plan and two of us another, as for example, what should go into the indictment and what should go in at the trial? We approach this from different systems of law and practice and different traditions. Now, my view is, if it is an American prisoner and I want to charge him and one of my associates agrees, I should be entitled to do so. I would not want to do it unless one of my associates did agree. In other words, the absence of an agreement should not stall our case. I think every agreement which is intended to function by majority rule where an equal division is possible should make provision as to what happens in case of a tie vote. My difficulty in the question of applying the principle that the chairman shall cast two votes in case of a tie is that we have settled nothing as to who shall be the chairman. Does rotation mean by the week, by the day, or by the trial? You have the possibility of equal division as to choice of a chairman, and, if the selection of a chairman is revolving, other questions arise. I think it would be most unfortunate if the way a thing was decided depended upon when it was brought up and who happened to be in the chair at the moment. Where we chiefly use the casting vote is in the case of a person who has no vote in bringing about the tie, like the Vice President, who votes in the Senate if there is a tie, but who does not vote in producing a tie. He has no vote other than a deciding one. So I don't think it is workable in this situation, and I would not be able to agree to an arrangement that I think might not work.
SIR DAVID MAXWELL FYFE. I still feel that the only way of dealing with this is to get out a compromise on paper to try to make the different points and discuss that with the heads of delegations tomorrow. If I may assume the task myself, I will try to get out what I consider a fair compromise, and then we could deal with it tomorrow afternoon. I firmly believe that four reasonable men, animated by the same keen desire, could break down and find a way. Then shall we adjourn now on the understanding that the drafting committee meets tomorrow morning at 10: 30 to clean up the draft and the heads of delegations meet at 2:30?
MR. JUSTICE JACKSON. One other thing is suggested on this. I think there should be an arrangement whereby a nation may appoint a successor to its Chief Prosecutor because, candidly, it is suggested by my personal situation. The American plan contemplated cleaning this thing up in one trial or, at the very most, a very few trials. I shall not be able to remain for the life of this agreement and shall not be able to go through a number of trials. I shall submit to the President the question of whether he should choose my successor before a trial or after one. But I would want no misunderstanding-if we desire to change prosecutors, it is not a question of my own or my country's bad faith or receding from the agreement.
The Conference adjourned.
International Conference on Military Trials : London, 1945
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945
International organization and conference series; II
European and British Commonwealth 1
Department of State Publication 3080
Washington, DC : Government Printing Office, 1949