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The Conference was called to order by Sir David Maxwell Fyfe and resumed discussion of the definition of "crimes".
PROFESSOR GROS. I think that on the first point the French word "try" implies try, convict, and sentence [XXXV]. I don't know as a matter of drafting whether to say "try, convict, and sentence", because it could also acquit. On the other point of the draft, I am in a difficult position to criticize because it is an extremely able attempt to put in good English what was in bad English. So it does not change much of the French text. But on the last paragraph I'm afraid that there is more in the actual British draft [XXXIX] than in the French text. In the first line only where it is said, "and who is hereby declared therefore to be", the text declares something that means a pronounced judgment of liability, and that is what I want to avoid. I might be too literal, but, if they are declared, there is no need to try them. My building of that article was perhaps a bit heavy, but it was this: I started from the commission of crimes, which is a fact not denied and certainly contrary to the laws of war and laws of humanity, and I tried to explain in that article that those acts had been committed as a consequence of policy which was defined in 1, 2, and 3, and that the effect of the relation of causation between the commission of acts and the execution of policy was a responsibility of the man who had planned policies. I recognize that this is certainly given in the French text and it might not be sufficiently expressed in the British translation I gave, but the new draft seems to me to go too far in so far as it "declares". So if there is any possibility of modifying that first line only, I am quite willing to accept. I tried to make a draft which gave effect to those facts presented and to avoid any discussion afterward by the prosecutors on the jurisdiction of the court. As it is more or less only a question of drafting, I will accept any formula which will be agreeable to the delegations.
SIR DAVID MAXWELL FYFE. The point I want to be clear on is this: As I understood it, you agree that if someone is guilty of 1, 2, and 3, it should follow as a consequence of law that he is personally responsible for the violations of international law.
PROFESSOR GROS. As a consequence of law. I might misunderstand the word "declare", but, as we had explained in French and Russian, it would mean we would declare it or pronounce it.
SIR DAVID MAXWELL FYFE. Would it meet your point if we used the words "and who is therefore in law personally answerable"?
PROFESSOR GROS. I should think so.
MR. JUSTICE JACKSON. Of course we have studied this problem a great deal, and the definition is a very difficult task. The word "declare" has, I think, a different connotation for us than it appears to have for Professor Gros. We frequently enact what is known as a declaratory statute which merely declares what the law was-merely declares some point that was not clear; or frequently we enact statutes which are declaratory of the common law, merely reducing decisional law to statute form. That does not mean that the law embodied in that statute had no existence previously. I think "declaration" merely sums it up and crystallizes it, and in using "declare" in this connection I have thought of it as just having that connotation. Thus we crystallize it, drawing together all the disputed points, and the Four Powers agree that this is and has been the rule and announce it as a declaratory act rather than as the creation of new doctrine. So "declare" does not offend me.
GENERAL NIKITCHENKO. I have only been able to make an acquaintance with this new draft of the article. I have not been able to study it thoroughly and therefore cannot at the present stage set forth my considerations in detail. But one thing strikes me as unnecessary here and that is reference to the pacts or declarations of number one. No pact or declaration is named here, but, if it is mentioned, the pacts that are named were the Kellogg-Briand and League of Nations declaration. The Soviet Union was not a member of the League at that time, and it would seem to us that reference to a declaration as to which one of the signatories was not a member should not be put into the draft. The question of defining crimes is, as we have learned, a difficult one to solve, and attempts have been made by individual delegations and by several delegations to work out an agreeable solution. At yesterday's meeting I stated that the French proposal was generally acceptable to the Soviet Delegation as it is apparently to the other delegations. But some changes or alterations have been made which at first glance I have not been able to study thoroughly. Therefore, if other delegations will allow, we on our part shall try to work out a formula which will be based on this French proposal. We shall try to take into consideration the views expressed by Professor Trainin, who in my opinion is well versed in questions of international law. We will submit a formula based on this French formula.
SIR DAVID MAXWELL FYFE. Have you got that at the end, the suggested alteration to meet Professor Gros' point --- "and who is therefore in law personally answerable"?
PROFESSOR GROS. If that is the only modification of the draft by the French Delegation and the Soviet Delegation are willing to accept the French text, I cannot see the necessity of having a new draft.
SIR DAVID MAXWELL FYFE. If General Nikitchenko wishes to consult Professor Trainin, he must have an opportunity of doing so. But there is no difference between Professor Gros and me on the last paragraph. That does leave the question of reference to pacts or conventions. Of course I appreciate the General's point, that the Soviet Union and the United States were not members of the League of Nations. Russia, however, adhered to the Kellogg-Briand pact.
MR. TROYANOVSKY. General Nikitchenko has not acquainted himself with this text sufficiently.
SIR DAVID MAXWELL FYFE. The other point which I should like General Nikitchenko to have in mind is this: We were prepared to include along with these other pacts or agreements some other modern expressions of opinion on that point. What we want is just to give a pointer to the court as to where they may look for a definition of aggression.
GENERAL NIKITCHENK0. Sometimes treaties change. When one was signed it had one significance and may in the course of time change that significance and acquire a new significance. For that reason I thought it best not to refer to old history and possibly have a more modern statement by the United Nations organization.
SIR DAVID MAXWELL FYFE. Now, referring to our redraft of number 159 the first three paragraphs of (a) in this draft [XXXVIII] took as well as I could from the speech of General Nikitchenko in our preliminary discussion. One point raised was pending the appointment of other Chief Prosecutors- Mr. Justice Jackson and I shall carry on with the work-that is with whom will we go on with our work of preparation until colleagues are appointed? We just wanted to be sure we can use the work that has been done. (iii) is well put into words. Nikitchenko said that within that plan the Chief Prosecutors should work independently.
Paragraph (iv) deals with the solution of differences and it seemed to me that the most likely difference that would arise would be whether something should be included or not. Therefore, I have suggested that the subject matter should be left in unless there is a three to one majority for cutting it out. The same principle is applied to point (b), the list of major war criminals. The only variation is that in the last part, unless otherwise included, there should be submitted to the first trial before the Tribunal only defendants who have been unanimously designated by the first prosecutors because it is my opinion and I think it is shared by my colleagues-that the first business should be the really front-rank criminals whom everyone in the United Nations knows by name and expects to be tried quickly.
The point I bring is the question of the documents together with the draft of the indictment. And this is an attempt to find a working compromise between the two views, the one, that the court should be fully informed in the indictment of the case of the prosecution, and the other, that the court starts with a clean sheet. In (i) we have documents which are going to be referred to by our people, documents which in my view it is entirely convenient that the court should have in front of them from the beginning and should know all about. In (ii) are the documents included in the redraft of the paragraph dealing with judicial notice and admissibility, and they are, roughly, official government documents. It seems to me that, if we are going to agree that they are admissible, then the sooner the court and the defendants know their contents the fairer it will be for everyone. In (iii) we have statements of witnesses who have made statements but whom it is impossible to call, and, in (iv), copies of statements made by any defendant. In our English procedure these would be attached to the depositions and given to the judge and to the defendants. The first bit of the last paragraph is intended to meet the point that Mr. Justice Jackson made, that he would not want documents or evidence to be included merely because they existed. Therefore I have tried to take the four main types of documents which I think should go to the court and of course to the defendants, and then I have said that no document of a class other than those mentioned shall be submitted except indictments unless the prosecutors by three to one so desire. Now the remainder is a saving clause to allow for the documents to be put in between the indictment and the trial, so that we shall not be embarrassed or prejudiced by a new document turning up. Or there may be some document we do not want to produce until the trial. In each of the first three points I have suggested that the voting should be such as to preserve the fears or dislikes or views which have been expressed at this table and which I hope will evaporate when we come to deal with the actual point.
Paragraphs (d) and (e) deal with more formal points. Paragraph (d) refers to the lodgment of the indictment and the accompanying documents with the Tribunal. It is agreed that the indictment and certain documents will be lodged and it merely becomes a question of the time when they should be lodged. Paragraph (e) has to do with drawing up and approving the draft of rules of procedure, which is merely a suggestion to the Tribunal for the Tribunal has complete power to make rules for itself. I thought it would be enough in case of a disagreement; then anyone who makes a proposal has got to get three votes to have it carried through. I don't anticipate that there could be any point of serious difference on these last, (d) and (e).
I apologize for being thus elaborate, but I was very anxious that we should if Possible agree on the solution for any foreseeable point of difference.
JUDGE FALCO. I accept the suggested draft for article 15, but there is one point which strikes my mind from the point of view of a French prosecutor as 9, little shocking: the indictment and the documents lodged with the Tribunal should contain the whole case of the prosecution so that from the time the indictment is filed both the Tribunal and defendants can know the whole case against them. It seems there is a possibility under this draft that the defense could be faced during the trial with the opening of Pandora's box of unhappy surprises, in as much as during the trial there is liberty to the prosecution to produce something new.
SIR DAVID MAXWELL FYFE. Our system is that, when you do that, you give notice to the other side as soon as you can, and the Tribunal can say, "If you are taken by surprise, we will give you a day to consider it.
JUDGE FALCO. But the defense has not so much time to answer.
SIR DAVID MAXWELL FYFE. It is irrelevant, but I have myself worked on that system for 20 years, and I don't think it produces unfairness. In very rare cases the defense are given time or assistance to produce a witness to help meet it.
MR. JUSTICE JACKSON. From the very beginning it has been apparent that our greatest problem is how to reconcile two very different systems of procedure, each of which carried out by itself seems to do justice acceptable to the people who use it. It is very difficult to arrive at the point at which you can change some practices from one to the other. I think that in some ways the Continental and Soviet systems are perhaps better than ours. I mean no criticism in saying that 1, of course, am used to working with the other kind of system, and I would not know how to proceed with a trial in which all of the evidence had been included in the indictment. I would not see anything left for a. trial, and, for myself, I would not know what to do in open court.
SIR DAVID MAXWELL FYFE. I wonder, Mr. Justice Jackson, whether you would mind dealing with point (a). The first point was designed to meet your apprehension as to the difficulty of getting on with the job in the meantime. I have tried to meet that on the lines of General Nikitchenko's speech.
MR. JUSTICE JACKSON. I think this effects about as fair a compromise of the two systems as we could make. The question of avoiding a tie vote is pretty well met. We might have some differences in detail, but in general 1 think it is a workable basis on which we could arrive at agreement. I think there should be some time limit within which the signatories should appoint prosecutors, because obviously we cannot wait. We are under pressure and criticism for the delay already and I think that meanwhile we should go ahead and prepare for trial. We want to get these prisoners and witnesses assembled at the place of trial and begin interrogating them.
GENERAL NIKITCHENKO. From my point of view, every attempt by any delegation to improve the drafting of any article of the agreement and the charter is to be welcomed, and from this point of view I -wish to express my gratitude to Mr. Fyfe for his attempt to work out a suitable solution. But in considering new proposals we should consider them from the point of view of whether they would bring us to the conclusion of our work more speedily or -would perhaps hold up our -work. We are, on our part, attempting to make proposals which in our view would facilitate the work, but it sometimes happens it makes the work more complex.
I might be wrong but it was my impression that during the previous discussion the principal difficulty about article 15 was how to work out a solution of (a), (b), (e), and (d) in case of a tie vote. The other difficulty was in point (a) with the word "coordination", and to facilitate the work I propose to include the words "coordination of plan". As for the last paragraph of point (i) of 15, as far as I can judge that was the one point of difficulty.
In answering the question put by Mr. Justice Jackson concerning the work of the Chiefs of Counsel until the other two are appointed. I made observation that that work would not be impaired. It is the right of every sovereign state to appoint any person to fulfil tasks which may in the future become part of an international work. That is why it seems to me quite unnecessary to make a proviso that the committee would, so to speak, adopt the individual work of the Chiefs of Counsel. That is why points (i), (ii) and (iii) of (a) in the new draft of article 15 go further than should be provided for in the charter. If during the preliminary discussion the delegations are agreed in principle to 15 and the new text now proposed does not change anything, there is no reason why we should drop the original text. The only question really left is point (b) of original 15 about designation of persons to be tried. If there is a tie vote, we think that in regard to the other points the principles stated in the paragraph coming after (e), that is, by majority vote, should remain in the original. In regard to (b), that is, the final designation of persons to be tried, we agree that in case of a tie the decision should be that proposed by the side which intends to turn the prisoner over to the Tribunal. That is, if one side proposes to turn a person over to the Tribunal and another prosecutor supports him, then the person should be turned over even though the other two should be against it. The new draft, while it does not in principle depart from the original text, would in fact only make the work more difficult. In view of the fact that in the meeting of the drafting committee a whole series of questions which had not previously been discussed was raised, we admit that each delegation has the right to refer back to the questions supposedly settled but consider that should not be done too often to make our work too complex.
While admitting that this going back to putting questions under discussion again might do good and that a better draft might be worked out, we consider it necessary to make a statement to the effect that we on our part may whenever we wish revert back to any of the articles agreed to in preliminary discussions, both in the agreement and in the charter.
As for article 15, the Soviet Delegation would propose that in point (a), the word "plan" should be added and the question of designation of persons to be turned over to the Tribunal should be decided as proposed by the chairman, while otherwise the article should stand as it is.
SIR DAVID MAXWELL FYFE. How would that work?
GENERAT NIKITCHENKO. "Coordination of the plan of individual work of the Chief Prosecutors."
SIR DAVID MAXWELL FYFE. Does that mean that, except for (b), the original end of 15 would stand, that is, the committee shall act? Does General Nikitchenko suggest that 15 should stand as it is in the original draft?
GENERAL NIKITCHENKO. That is, the change in article (a) and the new procedure of voting only in regard to (b). The rest of the article should stand.
SIR DAVID MAXWELL FYFE. "Coordination" seemed to worry Mr. Justice Jackson when we last discussed it. I thought it would get rid of that worry if we set out what we meant by coordination. I took 11 2, and 3 from the memo sent to the Conference. How does Mr. Justice Jackson feel about "coordination"?
MR. JUSTICE JACKSON. Well, I never like such general phrases when defining people's duties and powers because they really mean just what you read into them rather than what is written into them. Therefore I never like a proposition as general as that. But my chief difficulty is that there was no provision in 15 as it stood dealing with a tie vote of the prosecutors. I have not understood what the principle of rotation is, that is, how it could be applied to the work of the prosecutors. I recall that the proposal of rotation was made by the Soviet Delegation, and I don't understand whether it means a rotation of chairmanship in separate trials or a rotation during the trial.
GENERAL NIKITCHENKO. It would be difficult in the charter to specify just how this rotation would take place since we do not know exactly how this work of the Chief Prosecutors is going to move along.
The rotation which the presidency or chairmanship might take for a period of time-that is, week to week, session to session, as these meetings would not take place very often-in any case the prosecutors themselves would be able to specify that principle. At the present, it is really only necessary to state the principle itself.
JUDGE FALCO. Why should a chairmanship of the prosecutors be necessary since they could manage their own discussions and it would be unnecessary for us to resolve how they should settle their differences? I understand the difficulty, and we may have to make some arrangement about a tie vote, but I do not quite see the necessity for any chairmanship.
MR. JUSTICE JACKSON. Article 15 would be substantially acceptable to us as in the original draft if provisions were made for a tie vote somewhat in the language of the suggested amendment I shall pass around at this time [XLI].
SIR DAVID MAXWELL FYFE. Would that connote, Mr. Justice Jackson, that other prosecutors could take part in the trial if they carried on completely independent action?
MR. JUSTICE JACKSON. No. I was thinking of doing it in this way: the prosecutor who wanted to prosecute an organization, for instance, although the others did not, would be entitled to introduce his evidence. The others might say, "We are not participating in this part of the case." I don't see how we can protect the rights of anyone in case of a tie except in that way.
GENERAL NIKITCHENKO. The main principle which applied in international institutions of this sort -would be either a unanimous vote or a majority. Unfortunately we face a position in which a tie is possible. It would be quite wrong to give one of the prosecutors the right, despite and contrary to the opinion of his three colleagues, to try a person.
In regard to other issues, such as the approval of the indictment and of the documents to be submitted therewith and the lodgment of the indictment, the Chief Prosecutors will without great trouble be able to find a solution without redrafting-by adding certain documents or by taking some away-and in this way will reach a desirable solution. The main thing that as far as I could judge was causing anxiety to Mr. Justice Jackson, and with -very good reason, was the designation of defendants to be tried by the Tribunal, if there is a division of vote. Naturally, when there is a majority for one or the other in the decision, there would be no doubt. Apparently the French, British, and Soviet Delegations would agree that, in case of a tie vote, the decision would be in favor of the party which had proposed to turn the defendant over to the Tribunal for trial. Therefore, if the vote is three to one, then naturally the person who is in the minority would have to submit to the decision of the majority. If, on the other hand, the vote is two to two, if the person is turned over to the Tribunal, he may be tried. In any case we would avoid the case of some criminal being passed over.
SIR DAVID MAXWELL FYFE. We are all agreed on that point. It seems to me the real point of difference, between us is in the last words of Mr. Justice Jackson's suggested draft, "introduce any evidence which in his judgment has probative value relevant to the issues raised by the charges being tried." Suppose we applied the same principle to that. Wouldn't that give us the compromise in case anyone wished to introduce any evidence which in his judgment was of probative value? That would only be rejected if there were a three to one vote against it. The introducer would be entitled to add the evidence unless three of his colleagues were against it. We could introduce that and leave what we have agreed on (b) and the rest of 15 as it is. Would not that meet us all?
GENERAL NIKITCHENKO. Point (a) of the second part of article 15 [XXV], in which it is said that "investigation and collection" is part of the individual work of the Chief Prosecutors-in this respect there is no need for a majority vote really. But the question of whether a person concerning whom the prosecutor had collected evidence would be turned over to the Tribunal or not would be decided by the whole committee. Once a person has been designated for trial as a war criminal, each of the Chief Prosecutors is free to collect what he thinks fit for the trial of that person.
SIR DAVID MAXWELL FYFE. That seems to me to solve the difficulty of coordination. If it is understood that each individual is free, then we are really attacking an empty position in being worried about "coordination". We will let (i), (ii), and (iii) go, but if we have the wording we had for (a) "to make a general plan for the carrying out of any trial or trials" [XXXVIII], I do not think there is any difference between that and coordination of individual plan for prosecutors. There is no difference in ideas but just in words. To make or to agree upon a plan between the individual prosecutors as in (a) then-in view of what General Nikitchenko has said in 15 (2) (a), I do not think there is any real difference between us-to agree upon a plan of individual work or plan between the individual prosecutors.
GENERAL NIKITCHENKO. That is acceptable.
SIR DAVID MAXWELL FYFE. To agree upon a plan of each. Then (b) is altered as in the new draft EXXXVIIII. We leave (c), (d), and (e) as they are and put in the committee, which act in all the above matters except (b) by a majority vote.
GENERAL NIKITCHENKO. In regard to (b), the rule should be by majority or unanimous vote. "If there is a division of votes concerning the designation of the defendants to be tried by the Tribunal, that proposal would be adopted which had been made by the party proposing the prosecution." We could leave the last paragraph that comes after (e) and just add this in reference to point (b).
MR. JUSTICE JACKSON. All that I care to be free about is the people we have in our possession. I don't care to prevent the other parties who want to try other people. We have these people and must soon release them or try them.
SIR DAVID MAXWELL FYFE. I think you are in the favorable position there. You have so many prisoners that this proposal is bound to clear your books.
MR. JUSTICE JACKSON. I wonder about the language which was being used here-
SIR DAVID MAXWELL FYFE. We suggest this wording: "If there is a division of vote concerning the designation of defendants to be tried by the Tribunal, that proposal will be adopted which was made by the party proposing the prosecution."
The only point then that still remains is to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff. General Nikitchenko said that that implies that under 15 (2) (a), "Investigation and collection of all necessary evidence", each prosecutor can add the evidence. Mr. Justice Jackson raises the difficulty that that does not say "and offer at the trial". Couldn't we put into (2) (a) "investigation and collection and preparation for offering at the trial of all the necessary evidence"? Then there is no question of its having to be referred back to the four prosecutors as to when it comes in. He puts it in on his own responsibility.
GENERAL NIKITCHENKO. Isn't it clear that if they investigate and collect the evidence all that is done as preparation for the offering of that evidence at the trial?
SIR DAVID MAXWELL FYFE. It is, but the point that is worrying Mr. Justice Jackson is this: Suppose he has collected what he thinks is an effective piece of evidence. He doesn't want it to go back to the four prosecutors and have long discussions before he can use it. The four agree on the plan, and he works out his own way of carrying it out.
MR. JUSTICE JACKSON. I should use "and offer at the trial" instead of "preparation and offer".
GENERAL NIKITCHENKO. Apparently we don't quite understand each other. Perhaps we mean the same thing. The Tribunal naturally cannot try the case of any defendant about whom no evidence has been collected beforehand. Perhaps it is wrong, but I understand Mr. Justice Jackson to mean that after the trial has started one of the Chief Prosecutors would be able to submit evidence which would enable the Tribunal to try additional persons.
SIR DAVID MAXWELL FYFE. No.
MR. JUSTICE JACKSON. No. The persons would be put on trial by the vote of the majority or of the proposer in ease of a two to two vote, but under your system, if we did not have a piece of evidence in the indictment, we could not offer it. Under our system, if we did not have a certain piece of evidence in the indictment we could offer it nevertheless at the trial. We will have evidence in the form of documents which will not be translated and ready to put in the indictment, but it could be offered at the trial. That is, I don't want to be spending thousands of dollars on getting evidence which cannot be presented at the trial if some other system of law should prevail by having two votes.
SIR DAVID MAXWELL FYFE. I should have thought we could put it, "investigation and collection for production at the trial of all necessary evidence".
GENERAL NIKITCHENKO. The real point of paragraph (a) refers to collection of evidence before the trial starts, but we have another paragraph in article 24, paragraph (d), which provides that the prosecution may after the trial starts apply to the Tribunal for permission to submit any other evidence. This paragraph (d) of 24 gives the right to the prosecutors to submit additional evidence.
SIR DAVID MAXWELL FYFE. I don't think our minds are still really on the same point. The one Mr. Justice Jackson wants is this: Suppose he collects a piece of evidence. Whether it be in time for the indictment, or after the indictment, he should be entitled to put it to the Tribunal. Now, he does not want the other Chiefs of Counsel to have the right not to allow him to put that piece of evidence if they are equally divided. That would be covered if we put in "investigation and collection". There is no intention of bringing in new defendants. It is only to give the prosecutors opportunity to produce their own evidence.
GENERAL NIKITCHENKO. If We phrase it that way, would it not imply they should collect evidence for production only at the trial itself ? If there is a provision that evidence should also be collected only for production at the trial-the obligation for collecting evidence before the trial would drop.
SIR DAVID MAXWELL FYFE. Before or at the trial. I quite agree.
MR. JUSTICE JACKSON. The point is that the American people will not recognize as a trial a trial at which no evidence is produced in open court. There is no use of our going ahead with a trial that our people will not recognize as a fair trial. I can't do that. I am perfectly willing to go as far as we can in making this case complete in the indictment, presenting all that is available, but, if you present all the case in the indictment and have to stop at that point, then there will be 30 days or so to enable these defendants to prepare for trial-three weeks at least, I should say. During that period we might find the most important evidence. You would be amazed at the documents we keep turning up all the time in Germany. There is a lot buried in your territory, the territory occupied by Russia, that we haven't seen yet. I think we ought to get an indictment filed against these people and make as much of a case in it as we can, but I think we should reserve the right to use at the trial as much evidence as we can get up to the time of trial. I cannot go beyond that point.
SIR DAVID MAXWELL FYFE. That is why I thought we would meet both points if we used the words "and production before or at the trial". If the evidence turns up in time for the indictment, it will be used to draft the indictment; if it turns up between the indictment and trial, it will be used at the trial.
GENERAL NIKITCHENKO. In the Soviet system it is very often practiced that evidence is produced at the trial, new evidence that has not been produced before, and the French system apparently also.
JUDGE FALCO. Evidence yes, but not a new judge.
SIR DAVID MAXWELL FYFE. I think we are agreed then on article 15, and it remains to perfect its drafting.
The Conference adjourned until July 22, 1945.
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