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The Conference was called to order by the Attorney-General and at once took up the redraft submitted by the British of article 6 [XLVII].
PROFESSOR GROS. I have nothing to say on the material. It seems to me everything has been discussed. Now, as to drafting, naturally it is a question of general approach to the problem of drafting for an international conference. I don't know whether, when you put in for example, "murder and ill-treatment of civilians" it helps the difficulty. The fact that you are obliged to say "including (inter alia)" proves that it is only an illustration, and it makes the text a little heavy. But it is only a question of drafting. I do accept it with one or two verbal amendments.
I have one remark on (b), where we appear as wanting to prosecute because of racial or religious treatments only because they were connected with the war. I know it was very clearly explained at the last session by Mr. Justice Jackson that we are in fact prosecuting those crimes only for that reason, but for the last century there have been many interventions for humanitarian reasons. All countries have interfered in affairs of other countries to defend minorities who were being persecuted. Perhaps it is only a question of wording perhaps if we could avoid to appear as making the principle that those interventions are only justified because of the connection with aggressive war, it would not change your intention, Mr. Justice Jackson, and it would not be so exclusive of the other intervention that has taken place in the last century.
GENERAL NIKITCHENKO. The Soviet Delegation considers that in general this proposal of article 6 is quite acceptable. It takes into consideration views expressed by Mr. Justice Jackson that we should state such and such actions are considered crimes, and that at the same time in the end it gives a certain amount of prominence to individual responsibility and the responsibility not only of the persons who had carried out the crimes but also of the persons who had participated in those crimes. Of course there may be some alterations of drafting, as for instance in the first paragraph, where it is stated that "on conviction of which punishment may be" inflicted upon any person who has been proved, et cetera, while at the end practically the same is repeated, "any person . . . 11. Perhaps it would be better to cross it out in the first paragraph and just leave it as it is in the end. If we come to the question of drafting, then perhaps we could make some suggestions on that score.
MR. JUSTICE JACKSON. Well, I have not had the time that I would like to give to studying a thing that is as technical as this. We are trying to embody a great deal in a very small space, and accuracy is quite essential. Of course it leaves out entirely our (b) as it was reported by the drafting committee [XXV]. And it does seem to me that it leaves it very doubtful, at least arguable, whether we have included the "common plan" or "enterprise" idea. I think probably it was the intention to do so, but I think it makes it more doubtful than it ought to be.
In paragraph (a) it seems to me that the words "carried out by the European Axis Powers" should come out of the definition because, as I said yesterday, if it is a crime for Germany to do this, it would be a crime for the United States to do it. I don't think we can define crimes to be such because of the particular parties who committed the acts, but for the purpose of meeting General Nikitchenko's suggestion that we are only supposed to deal with the Axis powers, we could in the opening paragraph state that this Tribunal has jurisdiction only over those who carried out these crimes on behalf of the Axis powers so that we could keep the idea of a limitation, but not in the definition. Other than that I should like to reserve comment until I have studied it a little further.
SIR DAVID MAXWELL FYFE. With regard to Professor Gros' point about the prosecution on racial and religious grounds, I thought that this was the general view that we had accepted yesterday, that they were to be limited to those carried out in pursuance of aggression and domination mentioned in point (a). The heads of delegations remember that I took the contrast between a Nazi chastising a Jew before the war and the systematic persecution of the Jews in order to carry out the Nazi plan, and that is the sort of contrast that I tried to get in the draft, but I am very pleased to consider any improvement.
PROFESSOR GROS. I think that it puts on us an obligation to prove that those persecutions were inflicted in pursuit of aggression and that is a difficult burden because, even in the Nazi plan against the Jews, there is no apparent aggression against other nations. Paragraph (a) speaks of aggression over other nations; so it would be easy for German counsel to submit to the court that the Nazis' plan against the Jews is a purely internal matter without any relation whatsoever to aggression as the text stands.
SIR DAVID MAXWELL FYFE. From what I have heard I think we shall be able to prove that. Take the anti-Jewish measures as an example. The anti-Jewish measures were a result of the orders of the Nazi leaders and not only the Nazi leaders but the Nazi government. It will not be very difficult for anyone to associate them with the general plan of aggression, but if Professor Gros will consider that point and suggest an improvement in the words I should be pleased to consider it. With regard to what General Nikitchenko said, I would be grateful for his general agreement and would appreciate suggestions. With regard to Mr. Justice Jackson's point, I had hoped that the "common plan" which was in the old 6 (d) was covered by the words "who is proved to have in any capacity whatever directed or participated in the preparation or planning for or carrying out of any . . . acts," and then in the last half of the last paragraph, which is Professor Gros' words-and to be responsible "for each and every violation of international law", et cetera, committed by the Axis powers. That means that, if anyone is shown to have participated in a plan to do (a), (b), or (c), or any of them, he is responsible for all acts in carrying it out. I hoped it had got the "common plan," idea adapted to this form.
With regard to the second point, I think the answer to Mr. Justice Jackson's anxiety is the Moscow declaration. And so long as we make clear that we are following the heads of state at Moscow, then I think it only a matter of words as to how we put it in. I think we should make it clear that we are carrying that out as given us by the heads of three states and in which the French are good enough to collaborate. Now what is the best step for dealing with this?
MR. JUSTICE JACKSON. Well, I am willing to do most anything. We are still at several points of difference. If we are within drafting distance of each other, perhaps the next step is drafting. I would like to point out, on this common plan or enterprise, what I think is substantial difference between the American draft and your redraft. And with characteristic stubbornness I submit that ours is superior, if I may do so without offense. Under your draft, the last paragraph, any person who is proved to have participated in any capacity whatever in the carrying out of any of these acts shall be personally answerable therefor. Now that literally reaches millions of people whom our definition wasn't intended to reach. That would reach the private soldier who had no choice but to go where he was ordered; it would reach the farmer who may have accepted some slave labor on his farm at the height of the harvest; it would reach a great many people of that kind. If you notice, the emphasis in the American (d) is not that he did something that helped the government but that he entered in a common plan or enterprise aimed at these forbidden acts. Now that to my mind was the crime to reach. I think the difference is quite substantial. We are trying to reach by our "common plan or enterprise" device the planners, the zealots who put this thing across. We are trying not to confuse it with the people who in most countries have very little to do with the policies they are called upon to execute. And it seems to me that the emphasis should be on the planning level rather than on the mere fact that at some point one voluntarily or involuntarily, knowingly or unknowingly, participated in carrying it out.
PROFESSOR GROS. May I say that that was our intention and that was why we put in the French draft the words, "preparation" and "policy"; but I could support Mr. Justice Jackson fully on his observations because I can also see that our word "policy" might be vague. It certainly covers the planning irrespective of acts, designs, or attempts and covers much more than "plan" as it also covers execution.
In paragraphs (b) and (c) :we could cover more than the instigators as it stands here. I suggest "took part in a plan to further", but I don't know whether we could come back to that draft.
MR. JUSTICE JACKSON. That is the only observation I had that occurs to me at the moment.
SIR DAVID MAXWELL FYFE. I wonder whether this would commend itself to the Conference. I find that, if we start conversational suggestions on drafting, we are apt to get wide of the points. If the delegations would put their suggestions in writing, we could deal with this line by line. If we refer it to the drafting committee, they may not realize on how many points we agreed.
PROFESSOR GROS. I think the ideas on which we insisted are included in the draft, and it is essentially a question of wording; so I would certainly be quite happy to accept anything in accordance with Mr. Justice Jackson's or General Nikitchenko's desires.
I present first the French and Soviet draft, and in consequence I accept the British as it would be amended to give satisfaction to the other delegations, but I don't like to work on a draft which is not ours and to put modifications on it, as I don't think that is fair.
MR. JUSTICE JACKSON. The difficulty with that is that I would come back close to the draft we suggested because I did a great deal of work on definitions and it was the best we could do; and this redraft leaves out the launching of aggressive war, which is a subject of great interest to us. Secretary Stimson, who was at one time Secretary of State and is now Secretary of War, has persuasively contended that the German war was illegal in its inception and that therefore the United States was justified in departing from the strict rules of neutrality. While I shall submit, as I have no alternative by reason of being outvoted on it, I would not abandon that proposal. I would return to the "common act or enterprise" language, or "policy" in place of "enterprise", which would bring us about back to our definition, except in the opening, about which Professor Gros is quite right; our draft is defective, in failing to put emphasis on individual responsibility. I repeat that we shall be making a mistake if we don't put in some provision which so limits aggression as to prevent a general litigation of the causes of war. Those would be the things I would put in, and they have all been passed on adversely by the Conference. I don't want to be unduly persistent about it.
GENERAL NIKITCHENKO. We are trying here to work out the common article which would be acceptable to the four delegations present here. It is very probable that, if the Soviet Delegation had to work out an article 6 just for itself, it would look quite a bit different from what it looks now. We accepted the French proposal as a basis because we thought we could come to an agreement on that, and we thought we could work out our own idea on the French text. Then, as that has proved unacceptable as the proposal which we hoped would form a basis for an agreement, it is quite possible that this text as it stands will not satisfy in its entirety all the delegations. But perhaps it is the best compromise that can be reached. If the chairman says we must work on a new text again and on a redraft of this text, I think we shall be back where we started three weeks ago. That is why it seems to me this proposal should be taken by him as a basis. We could make alterations, of course, but it should expedite matters. It would seem better to take this as a basis and just have certain drafting changes. We do not intend to submit a new text. We just have a few drafting corrections or alterations.
SIR DAVID MAXWELL FYFE. I hope we shall be able to work that out, if the delegations will try to let me have any alterations to this text as soon as they can.
The other matter is paragraph 22, which Mr. Justice Jackson suggested last night-the address and administrative headquarters.
GENERAL NIKITCHENKO. Perhaps we could shorten this text a bit and, rather than go back to the one that was proposed by the drafting committee, say as follows: "The administrative headquarters of the Tribunal and its secretariat shall be located in Berlin. The first meeting of the judges and of the Chief Prosecutors shall take place in Berlin. The first trial shall take place in Nurnberg and subsequent trials" et cetera. We could leave out for the time being the word Nurnberg, as we said we are waiting for a reply on that score. As for the fact that records should be lodged there permanently, it seems unnecessary to mention it in the charter. Probably if the secretariat is to be in Berlin, the records will also be kept there.
SIR DAVID MAXWELL FYFE. We understand that the Soviet Delegation is waiting for instructions on Nurnberg, and we hope that they will come.
MR. JUSTICE JACKSON. There is only one addition, "is located and that the location in Berlin shall be determined by the Control Council."
GENERAL NIKITCHENKO. We are quite agreed that the Control Council is supposed to do that,, but perhaps it is a question of finding a building in Berlin, and is it necessary to put details of that sort in the charter?
MR. JUSTICE JACKSON. You see somebody has to do it right away if space is going to be available, and, if the Control Council is to be asked to do it, they will make the effort. If not, we are going to be so long getting it done. I am just anxious to get this thing done. That is my point about it.
GENERAL NIKITCHENKO. Perhaps we could then say, "The first meeting of the judges and of the Chief Prosecutors shall also take place in Berlin in a place to be determined by the Control Council."
MR. JUSTICE JACKSON. I suggest one thing more about that. I think the meeting should be held at a time to be determined by someone who should be so authorized. I suggest that our chairman be authorized to call that meeting. Otherwise who is to call it, and suppose some don't come? It ought to be the duty of someone to call this meeting immediately after this agreement is signed and fix a date for it after calling all the parties. Otherwise, if left, no one will be authorized to institute it.
GENERAL NIKITCHENKO. " ... shall take place in Berlin in such a place and at such a time as shall be determined by the Control Council."
MR. JUSTICE JACKSON. I don't think the Control Council should determine the time. I think that should be determined by the prosecutors themselves. They won't know when we are ready.
JUDGE FALCO. Have not the judges the right to get together-meet if they wish, for instance, in Paris?
GENERAL NIKITCHENKO. Perhaps after -we have this agreement signed we could ask the chairman to take care of that and put it in the charter.
SIR DAVID MAXWELL FYFE. I am very pleased merely to act as the missionary to summon the meeting of the Chief Prosecutors, and I shall do it as soon as possible after the Chief Prosecutors are appointed.
MR. JUSTICE JACKSON. Then I want to be clear as far as the holding of the trial at Nurnberg. That is where preparation would have to take place. As far as any of our prisoners are concerned, we shall have them in jail there available for interrogation, but the preparation would have to take place there. We could not prepare several places, or take the prisoners or witnesses to different points-that is why I put in "prepared" as well as "held" at Nurnberg.
GENERAL NIKITCHENKO. We took those words out because we thought it was self-understood that if the trial took place in Nurnberg the defendants would be examined there, but, if we say "shall be prepared", that is not enough as preparation is being carried out now not only at Nurnberg but at various places. Naturally defendants will be examined there. Otherwise we would have to say the first trial shall be held in Nurnberg and subsequent trials in some other place"-which would be rather complicated.
MR. JUSTICE JACKSON. My anxiety is that it be understood.
SIR DAVID MAXWELL FYFE. I think General Nikitchenko said there and I for In part entirely agree-11-hat if I want to examine any American prisoners I should be quite prepared to go to Nurnberg to do it. Mr. Falco says the same.
GENERAL NIKITCHENKO. I agree.
SIR DAVID MAXWELL FYFE. I think that concludes the points referred to the chiefs of delegations, doesn't it? We are agreed that: Administrative headquarters of the Tribunal and its secretariat shall be located in Berlin. The first meeting of the members of the Tribunal and of the Chief Prosecutors shall take place in the place to be determined by the Control Council. The first trial shall take place in Nurnberg and any subsequent trials shall be held at such places as the Tribunal may decide.
GENERAL NIKITCHENKO. There is the question of article 4 of the agreement. It is partly a question of drafting. As we took down the suggestion proposed by Mr. Justice Jackson at the preliminary session, in meaning it is absolutely the same but in words it is a bit different. "Nothing in this Agreement shall prejudice the obligations undertaken by the parties of the Moscow Declaration for the return of war criminals to the countries in which they had committed their crimes."
SIR DAVID MAXWELL FYIE. "Nothing in this Agreement shall prejudice the obligations of those who are parties"-so as not to forget France.
MR. JUSTICE JACKSON. Would your Foreign Office take the position that they are under an obligation to return? As I understand the Moscow declaration, three powers stated that to be their policy, but I think it is quite a different thing to create an obligation to return persons to a state not a party to the declaration. We intend fully to carry out that policy, but I am not authorized to add an obligation to the statement of policy in the declaration. As I pointed out before, the whole subject of war criminals, except those to be tried by the International Tribunal, is not within my guidance except as I am free from time to time to advise the military authorities or State Department, but I am not authorized to make any agreements concerning that. I can say nothing which prejudices the statements contained in that declaration, but to characterize them as obligations I would not do without specific authorization.
SIR DAVID MAXWELL FYFE. Then you would prefer to say nothing in this agreement that will prejudice the statement of policy made by the parties of the Moscow declaration. Mr. Clyde suggests, "Nothing in the agreement shall prejudice or affect the position of the parties in the Moscow declaration in regard to the return
GENERAL NIKITCHENKO. Our impression was that this was the agreed formula, and we would not propose to change it but just to make a very slight change in the drafting.
SIR DAVID MAXWELL FYFE. I would not appreciate the difficulty myself, but as Mr. Justice Jackson has explained it I would be prepared to accept it in these words. It would leave the powers who made the Moscow declaration in the same position as before.
GENERAL NIKITCHENKO. It isn't quite clear to me. Is it proposed to change the text of this article 4 of the agreement now-that is, change. the -word "obligation"?
SIR DAVID MAXWELL FYFE. That is Mr. Justice Jackson's suggestion. Really the only change would be that. We had put in General Nikitchenko's suggestion about return of war criminals at the end.
GENERAL NIKITCHENKO. I shall take that into consideration when looking over this final draft.
"Nothing- in this Agreement shall prejudice the obligations undertaken by the parties to the Moscow Declaration concerning the return of war criminals to the countries where their crimes had been committed."
In article 27 of the charter it seems the words "pecuniary fine" do not really fit in when we consider major war criminals. The responsibility is too great for pecuniary fine. Could not we just leave out those words and say "death or such other punishment as the Tribunal may consider just"?
In article 7 of the charter I do not propose any change but would like to point out two considerations. Would it be proper really in speaking of major criminals to speak of them as carrying out some order of a superior? This is not a question of principle really, but I wonder if that is necessary when speaking of major criminals.
SIR DAVID MAXWELL FYFE. There are two points: first, they have already said they were just doing what Hitler said they should do; and secondly, in international law, certainly in some cases, superior orders were a defense, but in the sixth and seventh edition of Oppenheim it appears that they aren't a defense. If we don't make it clear, we may have some trouble on it.
GENERAL NIKITCHENKO. There is a misunderstanding. I wasn't against disallowing orders of a superior as a defense, but I thought that in regard to major criminals it would be improper to say that superior orders could be used in mitigation of punishment.
SIR DAVID MAXWELL FYFE. It seems to me difficult. Suppose someone said he was threatened to be shot if he did not carry out Hitler's orders. If he wasn't too important, the Tribunal might let him off with his life. It seems to be a matter for the Tribunal.
In one of the German cases on trial which were such a farce after the last war they did say that superior orders were no defense but could be taken into account on mitigation. That has been the general rule on superior orders in international law books.
GENERAL NIKITCHENKO. If the other heads of the delegations consider it best, we have no intention of pressing it. In general, it should be considered in mitigation; we think it is proper.
MR. JUSTICE JACKSON. Of course that was put in when we were considering trial of organizations, which would reach thousands of people who are not major criminals but would be reached through major criminals. And if you are going to get members of the Gestapo and S.S. through the conviction of the organization, it would be quite unfair if you would not take into consideration in fixing punishment the degree of real responsibility that they had. I think it would be a useful provision if we are to try organizations.
JUDGE FALCO. Leave it. Is it necessary to indicate to the Tribunal the reason for mitigation? If we say simply that orders are not a defense, it -would seem to be left to the Tribunal to say that they may be a mitigation.
MR. JUSTICE JACKSON. That is about what we proposed originally not an absolute defense but a mitigation.
SIR DAVID MAXWELL FYFE. The important part is that it should not be an absolute defense.
JUDGE FALCO. That is the important part. Must we add that that is the reason for the Tribunal to consider mitigation?
SIR DAVID MAXWELL FYFE. We have covered the charter except for article 6.
MR. JUSTICE JACKSON. I don*t think we have specifically settled whether we shall have special masters, nor what we shall do in cases of a tie, except in a very limited number of cases.
SIR DAVID MAXWELL FYFE. No. You reserved the question of masters. I thought we had settled paragraph 15.
MR. JUSTICE JACKSON. But, if you recall I stood on the original suggestion we have here. If there is equal division on a vote, the proposal would be adopted if made by the party which brought that particular defendant to be tried. But we have in no other case arrived at a tie solution.
SIR DAVID MAXWELL FYFE. The committee shall act in all above matters upon majority vote, and that means that on the other matters except (b) you have to have a three-to-one majority for the proposal.
MR. JUSTICE JACKSON. That is what I object to.
SIR DAVID MAXWELL FYFE. I thought we agreed to this.
MR. JUSTICE JACKSON. No. I agreed as to the designation of defendants.
SIR DAVID MAXWELL FYFE. I thought we had agreed as to the whole article. I thought we met your point by putting in (b) that the preparation of indictment by the committee would be proceeded with as an individual matter. Remember we altered 15 (b).
MR. JUSTICE JACKSON. But suppose we get up to the time of trial and there is a question of how to proceed and we have a vote of two to two. How shall we deal with it? It might very well happen, as we have seen here at this table, because two of us represent one system of law and two another.
SIR DAVID MAXWELL FYFE. But I thought that was covered by the first draft on that by majority -vote, for frankly I could not see the sort of point on which we would disagree at that stage.
GENERAL NIKITCHENKO. Yes, we thought we agreed by a majority vote.
MR. JUSTICE JACKSON. Maybe it was agreed to by majority vote, but I did not agree consciously. We want something that will work. We don't want just to postpone differences. Here we are, and have been free of outside or press criticism of our disagreements. But get in trial and have disagreements, and we are right out in public. We had far better iron out differences here than at the trial. The thing could be the subject of a great deal of criticism if we left our agreements so that we could be equally divided and perhaps have an unfortunate situation as a result of it.
SIR DAVID MAXWELL FYFE. I do hope we wont have to go over this because I may say I suggested the compromise on the selection of defendants, which, of course, means that it was a concession directly to those who had the defendants so that they could go forward, as I appreciated especially the position of the Americans who had most of the defendants and wanted to get clearance and wanted to get quit of them by trying them. I really find it difficult to see what point of difference before the trial would not be left to three to one majority.
MR. JUSTICE JACKSON. You have a question of difference of view between those of the Continental systems and of our own as to how and whether to try organizations, and as to conspiracy, and on definition of crimes. If disagreements at a trial cannot be solved, it will be disorganized and we will not think it a workable plan. We want some way to break any tie that may occur.
SIR DAVID MAXWELL FYFE. Organizations are covered by article 10. 1 think we agreed with Mr. Justice Jackson.
MR. JUSTICE JACKSON. Well, we agreed that they may be tried.
Suppose that, when we get right to it, there is a disagreement as to how or whether we shall try them. We have seen a great misunderstanding of our proposal in that respect.
SIR DAVID MAXWELL FYFE. No one could defeat the trial if article 10 is accepted as an agreed compromise on that point. Suppose you put forward the trial of Kaltenbrunner as a member of a group. You propose him as a member of a group, but under the charter that makes article 10 apply. Then you have only to get one person with you on that. Because that is a proposal to deal with a defendant.
MR. JUSTICE JACKSON. I would think it is a little broader than that. You see, we start with very basic differences of viewpoint as our approach to a trial. 1n many ways, as I have said before, I think the Continental system is better than ours, but we get into those points where we don't see alike because we were brought up in different systems. I should be happy to recommend to our Government to turn our prisoners over to you three and retire from it. We want to do our duty about this and no more, but we do not want to come out of here with an unworkable agreement which will get us into friction and difficulty at the public trial.
SIR DAVID MAXWELL FYFE. Let us take article 1 of the agreement. "There shall be established . . . an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities." Then you come on to article 15 of the charter, "The Committee shall act in all the above matters by a majority vote . . . Provided that . . . that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried." Surely the reading of these two articles together would give you the right, provided you got one vote, for instance, for Kaltenbrunner as a member of a group. Then article 10 applies and you get your procedure.
MR. JUSTICE JACKSON. But that would only apply to the designation of a defendant. Each other point as to how we would proceed is left open if we disagree.
SIR DAVID MAXWELL FYFE. Would it meet your point if, at the end of 15, there were a provision for an equal division of vote concerning the designation of defendant or the capacity in which he has to be tried.
MR. JUSTICE JACKSON. I think we should have a provision such as I submitted on the twentieth of July in writing and which I realize was voted down, that in any case where we are equally divided the person whose prisoner is involved may bring to trial or offer any evidence relative to the issues provided he has the support of one other Chief Prosecutor.
SIR DAVID MAXWELL FYFE. But you have got that.
MR. JUSTICE JACKSON. I don't think we have it except as to the designation of defendant.
SIR DAVID MAXWELL FYFE. I intended to give you that. All the delegations meant by article 10 to give you the right to try, provided you could get one other Chief of Counsel to support you.
JUDGE FALCO. That was my impression also.
GENERAL NIKITCHENKO. We were under the impression that article 10 provided for the declaration of an organization to be a criminal organization during the trial of its responsible members or representative members. As for Mr. Justice Jackson's remark that it perhaps might be better for the European powers to try the criminals, as far as we know this question would be up to the parties here represented; but as far as We know the United States showed the initiative in this respect in the holding of an international trial and the other parties agreed to that. Each head of the delegation of course speaks for his own country, but on our part we can say the position of the Soviet Delegation in this respect has not changed since we started these talks. That is why we are trying to reach agreement taking into consideration the points of each delegation and trying to attempt a compromise solution.
SIR DAVID MAXWELL FYFE. I should have thought you were covered.
MR. JUSTICE JACKSON. Well, I don't feel we are quite, and I don't think we should leave it in doubt in anyone's mind. There is a way out of any tie. I am probably unduly cautious and insistent, but it is always my practice in drafting, if I see a point is disagreed, to meet it and settle it instead of leaving it to cause trouble later. And it seems to me that, if we don't meet this issue as to breaking any tie and solve it now, we may meet it in the midst of trial with a hundred reporters writing about points on which we disagree. We have worked well here together. We don't always agree, but we respect each other's opinion and try to reach agreement. But if we leave these things to come up in the midst of the trial, it would be a very discouraging thing to me. When we are tied two to two, who settles it? No matter what it is? Counsel often disagree. 1 have frequently disagreed -with my American associates in an American trial, and, where no one is boss over the others, there must be someone to settle such disagreements.
SIR DAVID MAXWELL FYFE. But on that point, the point of evidence we discussed that on Friday and amended 15 (a) by putting in "and production before or at the Trial", so that that would come under the action the Chief Prosecutors could take individually and would be left to you. That was put in to cover that difficulty.
GENEPAL NIKITCHENKO. We agree.
SIR DAVID MAXWELL FYFE. We are all agreed there-to meet you on that point. We discussed this point on Friday.
MR. JUSTICE JACKSON. At considerable length-but I did not think we had met it squarely. However, I will look it over further. I don't want to leave any points that are arguable.
SIR DAVID MAXWELL FYFE. We all intended to meet your difficulties on that fairly and squarely and thought we bad in the alteration of 15.
GENERAL NIKITCHENKO. We suggested that we divide article 15 into two parts.
SIR DAVID MAXWELL FYFE. A separate article on what prosecutors can do individually-We shall try and have the amendments tomorrow by eleven o'clock and meet at two-thirty. The drafting committee is waiting on the heads of counsel. We meet tomorrow on the question of masters.
MR. JUSTICE JACKSON. I think we should accept the committee's draft on it because it is clear that, if you have in the draft that you may appoint special masters and then leave it out, it is always open to the people who do not want masters appointed to say that it was in and later taken out and hence the power was withheld. I think it should be quite clear. In my entire lifetime we couldn't get all the evidence in this case if we did not use special masters.
SIR DAVID MAXWELL FYFE. That point, quite frankly, is not one on which I have any great feeling. I suggested the alteration to Professor Trainin's draft which I thought would meet it, but might I make this appeal to the Conference? If, apart from article 6which obviously is on a different plane because there we are discussing the law which we are going to create-if Mr. Justice Jackson could waive his difficulties as much as possible on 15 and 16, we would accept that, and I would make an equal appeal to General Nikitchenko to accept the intermediate on 17. 1 think then we could abide by the decision. I suggest that the delegations consider that point. I am most anxious to come to agreement this week and ask that both consider it in that light.
GENERAL NIKITCHENKO. I share your hopes to wind up our work this week.
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