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The Lord Chancellor greeted each member of the delegations and called the meeting to order. Professor Gros had been called to Paris for consultation and was not present at the meeting.
LORD CHANCELLOR. The only claim I can make is that I bring a fresh mind to bear upon a very difficult problem. I confess that I am very anxious that we shall succeed in carrying out the Moscow declaration that the major war criminals shall be punished by joint decision of the governments of the Allies, but I think we shall all agree that the time has now come when we must finalize the thing or realize that we shall have to adopt some other procedure. So I am very anxious to see this morning whether or not we can come to some conclusion satisfactory to all. Would it be convenient to take first of all the agreement and thereafter the charter?
Mr. Justice Jackson, who has given great time and attention to this matter, has made certain suggestions which we might proceed to consider. I think nothing arises on articles 1, 2, and 3 of the agreement, but with regard to article 4 a question does arise, and that question concerns the use of the English word "obligation".
I understand that we all desire to honor to the fullest extent possible the policy which has come into being at Moscow. But the use of the word "obligation" to us Anglo-Saxon lawyers does create some slight difficulty. We should never use the word about something which is merely binding in good morals, but only about something which is binding in a court of law, and therefore I would suggest to you phrasing something like this: "Nothing in this agreement shall prejudice the Moscow declaration concerning the return of persons to be tried at the scenes of their crimes." Would that suit you, Mr. Justice Jackson?
MR. JUSTICE JACKSON. That would meet the point I had in mind and would be acceptable.
GENERAL NIKITCHENKO. We are quite prepared to do without the word "obligation", and we suggest that "Nothing in this agreement shall prejudice the provisions established by the Moscow declaration concerning the return of war criminals to the countries where they had committed their crimes."
LORD CHANCELLOR. What do you say to that, Mr. Justice Jackson?
MR. JUSTICE JACKSON. Entirely agreeable.
LORD CHANCELLOR. Nothing on 5, nothing-I think-on 6, and on article 7- Mr. Justice Jackson had some observation on that. Would you like to say something now?
MR. JUSTICE JACKSON. I had thought we would be in a rather awkward position if we were bound to hold our prisoners subject to production at this Tribunal for a year if for any reason the Tribunal should not be organized to proceed. None of the signatories has appointed its Tribunal members yet. Some of the signatories have not appointed their prosecutors. If there should be any failure to organize-and I may say it requires all four of the members of the Tribunal to constitute a quorum and at least a majority of the prosecutors-the delay would be very serious. What position would we be in if, through any of the things that sometimes happen with political bodies, particularly I speak with reference to things which happen in my country, to delay matters, there might be great delay in naming prosecutors or judges? We want to set up something here that we are quite sure can go ahead, for we all agree that not haste necessarily but expedition in this matter is necessary. That is my point.
LORD CHANCELLOR. Most feel, I am sure, that immediately after we reach agreement here the French prosecutor will be named, and at the first meeting of the prosecutors the French prosecutor will be present, and there will be no delay.
GENERAL NIKITCHENKO. The Soviet Delegation considers that it would not be quite fitting to put a provision of this sort in the agreement because, if there were delay, it certainly would not be because of persons being appointed with delay. In fact, it would be strange to appoint members of the Tribunal before this agreement we are now considering is signed, because, until then, there would be no Tribunal. Naturally, as soon as the agreement is signed, the Soviet Government will appoint both prosecutor and member.
LORD CHANCELLOR. I feel myself that speed in getting these trials going is very important and I rather feel this, that, if there is unreasonable delay-I hope and believe there won't be-but if there is delay, then, of course, the various powers might have to resort to their rights under article 6-that is, they might have to conduct their own trials. But I hope and believe that there -will be no delay, and therefore, bearing in mind that there is that reserve power in case delay should arise, I rather suggest we might leave the article, Mr. Justice Jackson, as it stands. I think we might place on record that we all sign this agreement in the expectation and on the understanding that proceedings will be expeditiously carried through. What do you say to that, Mr. Justice Jackson ?
MR. JUSTICE JACKSON. I am satisfied to let the matter stand as it is. I question whether we ought not to add to this section that to terminate the proceedings will not prejudice proceedings already taken. I don't know the effect if one of the parties terminated the agreement before sentence. Some of these cases will drag on for a considerable time if we convict organizations and then bring in individuals. I just wonder whether we ought not, as a matter of good draftsmanship, to provide that the termination should be without prejudice to the proceedings already taken. I merely suggest it. It doesn't matter to me.
GENERAL NIKITCHENKO. It seems to me it is quite natural that anything done in accordance with this agreement would be enforced after the agreement has been terminated; so it seems to us that addition is really unnecessary. As for the trial of the organizations, we have article 6 in which it says, "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court. . . ." So, if an organization has been deemed criminal, the national military tribunal can try persons after that.
MR. JUSTICE JACKSON. But the point would be that the provision of this instrument is the only law that would make the findings of this Tribunal conclusive as to the criminal character of the organization. If that were terminated and you brought individuals into a national court organized under our system of law and you offered the conviction of organizations and said, "Here is a conclusive finding", defense counsel might bring forth the termination instrument. I don't imagine it would happen. It is a risk. I don't care what is done with it, but in an American court you might not get convictions under this system of individual trials based on the conclusive findings of this Tribunal after the document which makes them conclusive has been terminated.
LORD CHANCELLOR. May I say I understand the point. Supposing you have a finding by this international court that a certain organization is a criminal organization, and supposing thereafter, after that finding has been given, the court is terminated under article 7 and after that date some individual is tried by the American courts for belonging to that organization. What the judge is telling us-and I think it would be the same in English law-it would not be possible after the termination of the court to rely on the decision of the court that the organization in question was a criminal organization. Therefore, some words of this sort might have to be added: "Such termination shall not prejudice any findings or proceedings already taken in pursuance of this agreement."
JUDGE FALCO. We agree.
GENERAL NIKITCHENKO. We agree.
LORD CHANCELLOR. Well, let those words be added. And that finishes the agreement. Now, may we take the charter? No question arises on articles 1, 2, 3, 4, and 5.
MR. JUSTICE JACKSON. I think there may be a question of clarity of language in article 4. "The presence of all four members of the Tribunal or their alternates shall be necessary to constitute the quorum." It might clarify it if we said, "The presence of all members of the Tribunal, or the alternate for any absent member shall be-". We don't want the alternates for all of them or for any who are present.
LORD CHANCELLOR. That is what we describe as a mere drafting point.
MR. TROYANOVSKY. About (a) of article 4-
LORD CHANCELLOR. I think that is an improvement in the drafting of the language.
JUDGE FALCO. That is all right.
MR. JUSTICE JACKSON. And in (c)-I am a little baffled to know what a simple majority vote is. I am a little inclined to leave "simple" out.
GENERAL NIKITCHENKO. In Russian there is a difference between a simple majority and a qualified majority. But it does not make any difference here.
LORD CHANCELLOR. Article 5? 1 rather suggest, gentlemen, that we pass over article 6 for the moment because it raises difficult questions, and go on and see the rest of the thing because I think the rest does not raise such difficult points. Article 7-1 don*t think there is anything. Articles 8, 9, 10, 11, 12, 13, 14, 15--on 15 one point. It arises in this way: After (e) you see the sentence which reads, "The Committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation: Provided that if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried." Mr. Justice Jackson suggests that after the word "Tribunal" we should insert the words "or the charges to be made".
MR. TROYANOVSKY. What exactly is that to cover-this new phrase, "or the charges to be made" ?
MR. JUSTICE JACKSON. Perhaps it would be better to state, "or the crimes to be charged against that individual". In other words, if any party proposes that an individual be tried, and he with the concurrence of one other prosecutor is entitled to have him tried, he would have to specify the charges on which he was to be tried and the crimes for which lie was to be charged. That is what is intended, so that the person bringing forth the defendant would specify the additional charges. Of course, where the four agreed, there would be no difficulty. It is only in case of tie where the two prosecutors are entitled to name a defendant. They would have to name the charges as well.
GENERAL NIKITCHENKO. Of course we have no objection at all to that except for the precise drafting. "Or the crimes for which they shall be charged"-would that be all right?
MR. JUSTICE JACKSON. That would be all right.
LORD CHANCELLOR. Then there is nothing else, I think, on 15. Article 16 (d)-Mr. Justice Jackson has thought of a point. If I may state it as I understand it, he would like these words put in: "A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel." And he would put in after "Tribunal" the words, "to cross-examine any witness called by the prosecution". It would then read: "A defendant shall have the right to conduct his own defense before the Tribunal, to cross-examine any witness called by the Tribunal, and to have the assistance of counsel."
GENERAL NIKITCHENKO. There is one question. What is meant in the English by "cross-examination"?
LORD CHANCELLOR. In an English or American trial, after a witness has given testimony for the prosecution he can be questioned by the defense in order that the defense may test his evidence verify his evidence, to see whether it is really worthy of credit. In our trials the defendant or his counsel is always entitled to put questions in cross-examination. And I think the same situation prevails in the courts of France.
JUDGE FALCO. Yes, the same.
GENERAL NIKITCHENKO. According to Continental procedure, that is very widely used too. The final form would be then, "The Defendant shall have the right to conduct his own defense before the Tribunal, to cross-examine any witness called by the prosecution", et cetera.
LORD CHANCELLOR. I think it would be better at the end of (e). We could leave (d) as it is and insert the words at the end of (e) so that it would read, "A defendant shall have the right through himself or through his counsel to present evidence at the trial in support of the defense and to cross-examine any witness called by the prosecution."
GENERAL NIKITCHENKO. If we say "put questions to any witness", would it be the same? "Cross-examine" does not translate well.
LORD CHANCELLOR. It would be better to say "to cross-examine", if you can translate that, because we understand it. Would that be all right?
JUDGE FALCO. All right.
MR. JUSTICE JACKSON. All right.
LORD CHANCELLOR. All agree. Let that be added at the end of (e). Now we come to 17.
MR. JUSTICE JACKSON. I think there was another point on 16 (b). It would now appear that the defendant's only right to make any explanation relative to the charges would be in the preliminary examination, and that would be a curtailment of his rights that would hardly look well to the American and, I would think, to the British bar. I would suggest, "preliminary examination and at the trial would have the right.
GENERAL NIKITCHENKO. We had the words "and at the trial" at first, and during drafting they fell out somewhere.
LORD CHANCELLOR. Now we come to 17, and I understand no question arises with regard to (a), (b), (e), or (d). With regard to (e), may I just say this: We have in England what we call the system of taking evidence on commission, and the taking of evidence on commission means that you can send some official of the court. We call him a master or examiner. He can go and take evidence wherever he finds it-particular witnesses who need not come to the court. Let me give an illustration. Supposing a major war criminal is being tried for inciting to murder a Jew, and you are relying upon some speech he made at some time in Germany. Now we in England could send a commissioner to that town to get evidence from people who actually heard that speech instead of bringing all those people to the trial. That saves a great deal of time over a matter which is probably not in dispute at all. We should be able to use examiners and take that evidence; when it came to trial, we should have the print of what the examiner had found out, and it would be printed in all languages. We in England call it taking evidence on commission. Now I -would suggest we do it in this way. Let (e) read as follows: "The Tribunal shall have power to appoint officers for the carrying out of any task designated by the Tribunal including the power to have evidence taken on commission." Would that meet your views, Mr. Justice Jackson?
MR. JUSTICE JACKSON. I think it would, Lord Chancellor. The only difference would be that a master often has power to make recommended findings whereas in merely taking evidence on commission, or taking depositions, as we sometimes call it, he would not. But I do not think that is so important.
GENERAL NIKITCHENKO. According to the Continental and, in particular, the Soviet procedure, a court cannot deputize its powers to an individual, that is, a court must see for itself. But in order to be able to reach an agreement more quickly we are quite prepared to put in the proposal as suggested by the chairman in the hope that, when we come to other questions in which the Soviet Delegation cannot find it possible to forego some of its positions, the other delegations would take that into consideration.
LORD CHANCELLOR. What do you feel, M. Falco?
JUDGE FALCO. I agree.
LORD CHANCELLOR. Well, we shall agree that (e) is drafted in that way-"designated by the Tribunal, including the power of having evidence taken on commission". I am very much obliged to you. Article 18-1 don't think there is anything. Articles 19, 20, 21, 22. Article 22 reads as follows: "The administrative headquarters of the Tribunal and its secretariat shall be located in Berlin. The first meetings of the members of the Tribunal and of the chief prosecutors shall be held at Berlin at a place to be determined by the Control Council. The first trial shall be held at Nurnberg and any subsequent trials shall be held at such places as the Tribunal may decide." This is a question upon which I don't know the views of the members. That is satisfactory to us, and I think to you, Mr. Justice Jackson.
MR. JUSTICE JACKSON. There was a later draft made, to -which I intended to refer in my memo, which changes that somewhat.
LORD CHANCELLOR. I understood what I read out was the final form at the last meeting.
MR. JUSTICE JACKSON. I think that is right. I was following article 22 as it appeared in the draft itself.
LORD CHANCELLOR. Would this be all right as we read it out?
GENERAL NIKITCHENKO. In our opinion it would be perhaps better to leave that f or consideration when we consider article 6, because these are the two questions that would provoke discussion perhaps.
LORD CHANCELLOR. Very well, leave that over for the time being. Article 23-no question, I think, arises on that. Article 24-we have not set out 24. We, and I presume you too, would conduct a trial in this order. First of all, the prosecution give their evidence, then the defense give their evidence, and finally the prosecution may be allowed to call what we call "rebutting evidence" to rebut the evidence of the defense. I rather suggest that, as we set out so many details in this article, we ought to put in another letter after (f) with a provision to this effect: "The prosecution shall call their evidence first, the defendants shall then call their evidence, and thereafter the prosecution shall call such rebutting evidence as may be decided to be admissible."
That is to say, it would come after (f) , and (g) I (h), (i), and (j) would remain as they are. Would those words meet your point, Mr. Justice Jackson?
MR. JUSTICE JACKSON. Yes, I think so.
LORD CHANCELLOR. Is "rebuttal" quite clear to you? It is not quite clear to me. In our system it occurs when a point is raised by the defense-and suddenly he raises a point for the first time "but I was not there17--and you have clear evidence he was at Berlin on the critical date. Then you are permitted to call that evidence to meet that point.
GENERAL NIKITCHENKO. It would seem to me that in a detailed article of this sort it might not be necessary to specify in just what way evidence may be offered, in particular this rebutting evidence. It would seem to us that it would be sufficient to say that the prosecution and defense may in the course of the trial submit whatever evidence they have. We would suggest putting the following words after (f) in a new paragraph: "Both the prosecution and the defense may offer evidence and any rebutting evidence at any time during the trial."
LORD CHANCELLOR. You see what I feel is this: I do feel that in this article 24 you have to set out properly the precise order in which things take place. For instance, (a), you read the indictment, you ask each defendant whether he pleads guilty or not guilty, then the prosecution makes the opening statement, then come on to (g), the defense addresses the court, the prosecution addresses the court. Throughout the whole thing you are setting out the precise order in which things should take place. Now, when you come to this, you do not set out the order in which evidence is to be given; you just say, "The evidence should be given." Why not an article to set out how things take place in their sequence? Why not say, "the prosecution evidence, the defense evidence, then the rebutting evidence", and so on? I don't understand why, in an article which sets out step by step the order in which things take place, you should not set out the order in which the evidence is to be given. That is my difficulty.
MR. JUSTICE JACKSON. You see, the order set forth is not just the order we would follow in an American trial. The indictment would be read and the defendant would be asked to plead at a hearing preceding the trial probably, but that order might take place at the trial. The prosecution would then make an opening statement, would then be required to produce all its evidence and exhaust its case on the main issue and to "rest", as we call it, and then the defense would have to offer all of its evidence, exhaust its case, and rest. Then the prosecution would be entitled to bring forward its rebuttal evidence and exhaust its case on rebuttal, and then the defense might have another go at it. But the order here would leave me entirely confused, and I know that, if it were published, it would leave the American bar confused as to whether any evidence was to be presented and, if so, when and in what order. I agree with the Lord Chancellor. Having gone into so much detail, if we leave such important features of the trial out, we would create confusion among the American bar, I'm sure.
GENERAL NIKITCHENKO. But suppose that at the trial the defense might have certain rebutting evidence which the prosecution would not have. Would not we in setting out this order deprive the defense of a certain right of rebutting the evidence?
MR. JUSTICE JACKSON. No, we should not. The prosecution must put all of its evidence in and announce that it has finished its case, then the defense can meet any of that evidence in its evidence. Then when the defense has finished everything it wants to put in, the prosecution comes back and puts in its rebuttal. Now, if rebuttal brought forth an entirely new point, there would be a right on the part of the defense to meet that new point but not to go into something in answer to the main case. But it could meet anything new that had not been in.
LORD CHANCELLOR. It has been done, but so rarely that I in my experience have never known of defense rebutting evidence in a case. But I know it can be done.
GENERAL NIKITCHENKO. Article 24 (e) states, "The Tribunal shall ask the prosecution and defense what evidence, if any, they wish to submit to the Tribunal and rule upon the admissibility of such evidence." I think that is a sufficient provision. If we add another provision saying, "both the prosecution and the defense may at any time in the course of the trial offer evidence", would that not be sufficient to define the course of the trial?
MR. JUSTICE JACKSON. The difficulty in this is a provision to regulate the order, otherwise it serves no purpose, and if you say "at any time" you do not regulate the order. Also, in the midst of our case a defendant may get up and say, "This is not true", and offer to prove it. The court would refer to this article and would be put in an embarrassing position. But if we have the order specified, the court would say, "Now, Mr. Defendant, you will have an opportunity at the proper time and now you sit down." Otherwise I fear that we open this to disorder, and we must not forget that, of all the things these people are artists in, one of the chief things is in creating disorder. We have tried Nazi sympathizers in our courts, the American prototypes, and their policy has been to disorganize and upset a trial. I think it would worsen the provision to say "at any time", for that confounds the whole thing. It is very important to give the court a guide here so that it can say, "You will have your rights at the time specified and if you don't keep still now you will be removed from the court." This trial must be conducted in a very stern way or they may make us look ridiculous. That will be their technique.
PROFESSOR TRAININ. In this article we set out in detail the course of the trial because this article provides for new procedure. It seems to us the procedure set out here follows more the Anglo-American practice although there are some features from the Continental procedure. For instance, in the Continental procedure the prosecution would not make an opening statement nor the defense address the court after the prosecution, et cetera. Therefore, since we are making new procedure here and to meet the views expressed, perhaps we could say the defense and the prosecution may offer new evidence and rebut the evidence offered by the other side.
JUDGE FALCO. I think also we are perhaps not very different, but it is a matter of drafting because in your drafting it seems strange to us that, if the prosecution offers evidence, the defense cannot offer anything. The end is the order of the trial. We think it should say that the defense and prosecution can answer each other.
MR. JUSTICE JACKSON. I may say I agree entirely with Judge Falco. It is the intent here that the defendant have the right to offer evidence to meet the evidence brought against him, but I think we should also say when he should produce it and not leave it, "The prosecution and the defense shall produce", because that leaves controversy as to what order. The only way is to set forth when they shall do this so that there can be no controversy about it at the trial. Now we are relatively free from outside criticism. We can talk about it and discuss it. If we get into trial with the world looking on, with reporters present, and have some argument, we will have headlines about a disagreement all over the world. We must settle these things as far as we can anticipate them so that, when we get to trying this case, ~we will not have even minor disputes in the eyes of the world.
LORD CHANCELLOR. I agree with that. I think we had much better get things settled here in the privacy of this room than have these controversies arising when the court is sitting.
PROFESSOR TRAININ. But if we say the defense or the prosecution or the other way around may offer new evidence and then rebut the evidence offered by the other side, would not that in itself set out the order?
LORD CHANCELLOR. I don't know that it would. You see, here is an article in which we are setting out with great particularity the precise order in which things are to be done, and one question which we must face is this. I do not understand the Continental system, but is it not that the prosecution evidence is called before the defense evidence? In the English trials you always have the prosecution evidence called first and then the defense evidence. But is it not the fact that in the Continental system the evidence for the prosecution is called for and then thereafter evidence for the defense is called, and if that is the system you follow, why not an article setting out the order in which things are to be done? Should we not set out the order in which the evidence is to be called?
PROFESSOR TRAININ. We have no objection to saying that the prosecution shall offer its evidence and then the defense.
JUDGE FALCO. Should we not say something like this: "After evidence is offered by the prosecutor, the defendant will have time to offer evidence and offer rebuttal evidence"? We always abide by this-the accused must have the last word and be allowed to answer the prosecution.
MR. JUSTICE JACKSON. May I make a suggestion? In (d) we have the provision that after the prosecution makes the opening statement the Tribunal shall ask the prosecution what evidence they wish to offer and shall rule on it. Suppose we leave the defendant out at this point-until the prosecution finishes-and the court says, "What evidence do you want to submit?" and they rule on it. Then if we put in as (e) that "the Tribunal shall ask the defendant . . . and rule upon admissibility of the defendant's evidence", and then put a provision that thereafter the appropriate rebuttal evidence by either party may be heard and go on as we are here-we are all right. We have settled the point and it does provide in (i) that the defendant make a statement to the Tribunal which follows the address of the prosecution. That would not be our order, as the prosecution always closes the argument.
GENERAL NIKITCHENKO. That is, we would have two paragraphs, (d) and (e) ; in the first it would be the prosecution and in the second the defense.
LORD CHANCELLOR. Yes. Article (d) would read, "The Tribunal shall ask the prosecution what evidence, if any, they wish to submit to the Tribunal and the Tribunal shall rule upon the admissibility of any such evidence."
SIR THOMAS BARNES. Before we get to (e), don't we want to say that "That evidence shall then be called"?
LORD CHANCELLOR. Yes, that is right. [Here the Lord Chancellor repeated the text of 24 (d) and (e).] Then they would have another clause, (f)-"thereafter appropriate rebuttal evidence by either party may be called." I don't know whether we ought to define "appropriate", Mr. Justice Jackson-such rebuttal evidence as is held by the Tribunal to be admissible.
PROFESSOR TRAININ. We prefer to agree to the formula proposed by Mr. Justice Jackson, but this additional sentence that such evidence will then be called would seem unwelcome to us because this would change the course of the trial. It is quite true that first of all witnesses of the prosecution should be heard, then witnesses for the defense, but as for other evidence, it might come in any order. This would seem to us too mechanical a division between evidence of the prosecution and the defense. For instance, supposing a witness of the prosecution is giving testimony and at that time the defense might wish to offer to submit some document which would have bearing on this testimony. We think the defense should have the right to do that.
LORD CHANCELLOR. I tell you what would happen in the English courts, and 7 1 take it, in American courts also. The witness would give his evidence, he would be examined by the counsel for the prosecution, then the counsel for defense would get up to cross-examine, and in the course of his examination would produce the document and from the mouth of that witness the document -would be proved; but it would be proved by reason of the cross-examination.
PROFESSOR TRAININ. It seems to us that our views are not very different in this respect really. We might take the formula proposed by Mr. Justice Jackson without that additional phrase, and then say in another clause, "The witnesses for the prosecution shall be examined before witnesses of the defense", or something like that.
LORD CHANCELLOR. All agreed to that?
SIR THOMAS BARNES. We could add it at the end of the new (d)"The witnesses for the prosecution shall then be called." Then have (e) exactly the same, except substituting "the defense" for "the prosecution".
PROFESSOR TRAININ. It would seem better for us if we left article (d) as it stands and then add something like, "The witnesses for the prosecution shall be called and after that the witnesses for the defense." That is, both sides would ask the prosecution about the evidence, and after that witnesses would be called.
LORD CHANCELLOR. I think that is not bad. But I would suggest this: You still have trouble about rebutting evidence, but I am not sure it is not safe under (e), Mr. Justice Jackson. It would be different from our system, but, if the question of rebutting evidence arose, the Tribunal would take the matter in hand. We might get that in under (e). The only difficulty I have is about this rebutting evidence. I don't want you to think rebutting evidence is a common thing in our countries. It might be in only one case in a hundred, but it does sometimes arise, and, if we simply say, "Witnesses for the prosecution shall be called and after that witnesses for the defense", we do not provide for the rare case of the prosecution coming along and having given evidence in rebuttal.
PROFESSOR TRAININ. Perhaps we might say, "The witnesses for the prosecution shall be heard" and, in case you need to, "The Tribunal may after that call upon any witnesses."
LORD CHANCELLOR. What do you say to this? Adopt Professor Trainin's words in effect and say, "The witnesses for the prosecution shall be called and after that the witnesses for the defense." Then add, "Thereafter such rebuttal evidence as may be held by the Tribunal to be admissible shall then be called by either the prosecution or the defense." That would come in, I think, after (d). We should leave (d) exactly as it is and make a new paragraph between the present (d) and the present (e).
MR. JUSTICE JACKSON. Let me suggest this defect which I think remains under this arrangement. Let us visualize a trial. We have reached the point of (e) ; the prosecution has made its opening statement. Then the Tribunal says to the prosecution, "What evidence do you -wish to submit?" and rules on its admissibility. That will be a very long proceeding if the prosecution is required to make a complete statement of what it wants to prove, and you have to rule in advance on its admissibility. In our procedure the ruling would be made when it is offered. But suppose it is carried through as here set out and the prosecution states its case and has a ruling on admissibility. At that point the court is also required to ask the defendant what he wishes to submit and to rule upon its admissibility. The defendant is therefore asked to say what he wishes to prove before he has heard the prosecution's evidence. The formula I suggest is that, when the prosecution makes its statement of what it intends to prove, it must proceed with its case, and the defendant be asked after the prosecution's case is in what it wishes to prove, and then a ruling; otherwise I think we get into some confusion.
GENERAL NIKITCHENKO. We are quite agreed to the formula proposed by the Lord Chancellor.
LORD CHANCELLOR. Could we meet Mr. Justice Jackson's difficulty, which I think I follow, in this way? As (d) is drafted, the wording is, "The Tribunal shall ask the prosecution and the defense", and it is at that point after the opening statement. He says that at that stage in the proceeding the defense may not know what evidence they want to give. Would it not, therefore, be better instead of having "the Tribunal shall ask" to substitute the word "may" and put it this way: "The Tribunal may at any time they think convenient" ask the prosecution and defense? They need not do it unless they want to.
PROFESSOR TRAININ. Article 24, the procedure as set forth, is the result of a prolonged discussion and numerous compromises. If the new proposal is adopted, that -would really change the whole thing, and it seems to us that this division would be too mechanical. The fact that the witnesses for the prosecution shall be called first and witnesses for the defense next really provides that the prosecution would present all of its case or almost all at the same time. But at the present time we would not find it possible to accept the new solution as proposed by substituting the word "may" for the word "shall". Of course, we are quite prepared to accept the proposal of the Lord Chancellor as it was stated the first time, and we think that goes quite a long way to meet the objection but think the second proposal would change the whole procedure too much.
LORD CHANCELLOR. What would you do? In article 24 as drafted you have, after the opening statement by the prosecution, the provision that the Tribunal is obliged to ask both the prosecution and the defense. Suppose the defense said this: "I really don't know at the present time what evidence I shall submit; before I make up my mind about that I want to hear what evidence is against me. But you cannot ask what evidence I would submit until hearing what the prosecution has against me." What should the Tribunal do then?
PROFESSOR TRAININ. Perhaps then we could add another point, seeing the prosecution and the defense may at any time ask the Tribunal to offer additional evidence.
LORD CHANCELLOR. I would be content myself to leave it with the thought I suggested, that is to say, getting in somewhere "The witnesses for the prosecution shall be examined and after that the witnesses for the defense; thereafter such rebutting evidence as may be held admissible shall be called by either the prosecution or the defense."
MR. JUSTICE JACKSON. Well, I don't want to stand out against the judgment of all the other delegates about a matter in which our interests are identical. Our interest here, if we are going to have a trial, is to have one which will be creditable in the eyes of the world, and I must say this trial has danger of not becoming such if we enter into it without complete understanding. We, in the United States, try issues in courts that are somewhat appalling to other peoples in the length of our trials and the scope of our questions, and I have had some experience trying them. But this trial has a scope that is utterly beyond anything that ever has been attempted that I know of, in judicial history, and we must attempt to do it in four languages. I have been having a great deal to do with the preparation of the case for trial. This book, in my hand, of over a hundred pages, for example, is a mere outline, mere index, setting forth the documents in the case against Hermann Goering. It involves a decade of time. It involves operations, almost daily operations, which we could classify as criminal under any definition. Now if that has to be translated into four languages and then be the subject of examination in court, we are undertaking here a tremendous task and our professional reputations are at stake. I just tremble at the thought of not having this procedure clear and simple and somewhat mechanical, if I may say so. The fact is it is and should be mechanical, requiring the prosecution to exhaust its case and then the defense take up its case and exhaust it. That does not disturb me, but, if we get into trial with counsel jumping up at all times and no agreed order of procedure, we are going to have an impossible situation. I would much rather see us agree that the trial is impossible than to demonstrate that the trial is impossible.
LORD CHANCELLOR. I think there is great force in that. This is going to be an extraordinarily lengthy business, but still we must do the best we can and by providing now that the witnesses for the prosecution shall be examined and then witnesses for the defense and then rebutting evidence don't we provide there clearly enough what the order is going to be?
MR. JUSTICE JACKSON. I think it is, so far as the witnesses are concerned, but I am wondering what our Soviet colleagues contemplate under (d). It puzzles me to understand it because in our practice the prosecution's opening statement is supposed to outline the case and give the court-and jury, of course-the information as to what we propose to prove. Now when I am confronted with (d) and I think of the court saying to the prosecution, "Now, what evidence do you wish to submit to the Tribunal?" then I am confronted with reciting such a volume of stuff as to each of these defendants-much more than it is possible to have ready in an opening statement. It would take weeks of translations just to comply with (d) if you comply with it as I am afraid our Soviet colleagues think it should be complied with.
GENERAL NIKITCHENKO. We understand that we have reached agreement as to the fact that before the trial a certain amount of evidence would be lodged with the Tribunal together with the indictment. Now, in the opening statement the prosecution would outline the main charges against defendants; then under paragraph (d) the prosecution would state to the Tribunal what new evidence they had, evidence not lodged with the indictment, or any witnesses; and the Tribunal would pass judgment on that, whether that evidence was considered necessary and whether it was relevant to the case. In order to avoid disorder in the court we have a provision saying that the Tribunal may put a stop to attempts to cause delay and also that it may forbid the defendant or his counsel to be present at one or more sessions if he behaves in a disorderly manner. As a matter of fact the chairman would direct the course of the trial and do everything in his power not to cause delay. Furthermore, we have agreed in order to avoid discussion at the trial that witnesses for the prosecution shall be examined before those for the defense and, in addition to that, any evidence may be offered in rebuttal. All that taken together would seem in our opinion to be quite sufficient to avoid delay. With all these provisions the Tribunal would be in a position to expedite the trial and avoid delay and disorder.
MR. JUSTICE JACKSON. I am really fearful that we are getting the delays of both systems into this trial. It will be impossible, I should say, if an indictment is to be a comprehensive statement of the evidence, to file it within anything like the time in which you, Lord Chancellor, or I would file the indictment in this case, because once the crimes are defined we could file an indictment within a very short time. It is a matter of specifying the charges. If we attempt the indictment with the particularity the Soviet system would require, it is a very considerable job, unless we are going to drop out of it a considerable amount of the case. Then, of course, reasonable time must elapse to give the defendants time to prepare.
LORD CHANCELLOR. Still, on this clause you know, Mr. Justice Jackson, that I agree with all you say about the dangers of delay. But can we do better than to put in the new clause after (d), "The witnesses for the prosecution shall be examined and after that the witnesses for the defense and thereafter such rebutting evidence as may be held admissible shall be called by either the prosecution or the defense"? Now haven't we provided for the order of things the article is attempting to do adequately?
MR. JUSTICE JACKSON. I don't know that we can do better if we are going to try for joint trials and embody parts of all procedure in it. I am satisfied that the Soviet Government could take these prisoners and try them in much less time than we all can; and we could take them also and try them in much less time. But our effort to combine systems, particularly when you take the four-language requirement, results in a proceeding that is so cumbersome as to be almost unworkable and to raise grave questions as to whether we ought to provide for a formal trial-whether we ought to have a joint executive commission, merely bear charges against these people and call them for an explanation and not go into a trial-make this a political decision. I think my worries are not more serious than the worries of the other delegations should be. We are all concerned equally.
LORD CHANCELLOR. But still, as far as the clause is concerned, I think that if we put this new clause in after (d) we have got about as much as we can. Judge Falco, how do you feel about this?
JUDGE FALCO. I agree with you. I find Judge Jackson is always optimistic. But I find him more pessimistic toward the end.
LORD CHANCELLOR. Well, let us put in the new clause after (d).
GENERAL NIKITCHENKO. We would like to know what Mr. Justice Jackson has in view when he says each party should try the criminals independently. As a matter of fact, we come here authorized to sign an agreement for the establishment of an international military tribunal. We have no powers to sign an agreement saying we do not need an international military tribunal.
LORD CHANCELLOR. No, I don't think Mr. Justice Jackson means that. He merely is pointing out what we have to bear in mind. Unless we are careful we may make a procedure which involves such long delays and uncertainties that it really becomes impractical, and we may be driven to separate trials. But we hope very much that that will not arise because it would be a bad thing before the world, after having declared we should have a joint trial, if we should now declare we are not going to have it.
I don't think there is anything on article 25. Article 26-1 am in this trouble. I don't know what it means. It means-with the greatest respect, I think it means nothing. It reads, "The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall be motivated by the reasons supporting its findings . . . . 11 Now that in the English language has no meaning, and, if my colleagues were to ask me what I meant by signing that, I should be obliged to say I didn't know. I think it means that the judgment of any tribunal as to guilt shall give the reasons upon which it is based and shall be final and not subject to review. If it means that, I would pray that in the English I might have it: "shall give the reason upon which it is based and shall be final and not subject to review".
PROFESSOR TRAININ. This is actually what we have in Russian what you propose.
MR. JUSTICE JACKSON. As it stands, I would have to say I don't know what it means, but I would rely upon the Lord Chancellor's interpretation as a sensible one.
LORD CHANCELLOR. Very well. Let that be altered. Now, gentlemen, we have got article 6. Shall we start it or leave off here? It would be very good if we could finish it. I shall have to leave in about 15 minutes.
MR. JUSTICE JACKSON. Perhaps in 15 minutes we might get something to think about.
LORD CHANCELLOR. All right. Mr. Justice Jackson, you might tell us the difficulties in regard to article 6 which you have set out.
MR, JUSTICE JACKSON. I think our difficulties were set forth in memoranda [LV]. Our difficulties with the draft which had been approved by the British and Soviet Delegations are before the delegates, and I have submitted an alternative which meets our criticism [LVI]. Perhaps it would save time, since everyone is probably familiar with those, if we would hear the criticisms of our counterproposal, or the criticisms of our criticisms.
LORD CHANCELLOR. May I suggest that we look at your draft and take the first sentence first of all? So this is what the new draft says: "The Tribunal established by the Agreement referred to in Article 1 hereof shall have power and jurisdiction to try and determine charges of crime against individuals who and organizations which acted in aid of the European Axis Powers and to impose punishment on those found guilty."
GENERAL NIKITCHENKO. As for the body of this article, paragraphs (a), (b), and (e), we have only one or two very minor drafting objections. But as for the first paragraph, we think that it could be made more precise. It seems to us that these words, "acted in aid", are rather indefinite and liable to misunderstanding. We might not reach the actual persons who organized and carried out the crimes, and that is why we would propose to follow this formula for the first paragraph: "The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis Powers, whether as individuals or as members of organizations, committed any of the following crimes." Then we could repeat, "The following-"
LORD CHANCELLOR. I would be prepared to accept that.
MR. JUSTICE JACKSON. It sounds all right to me.
JUDGE FALCO. We agree.
LORD CHANCELLOR. Paragraphs (a), (b), and (c)-what alterations do you want?
GENERAL NIKITCHENKO. In all three articles we propose to leave out the headings, "The Crime of War" and other titles. The crime of war is, to be more precise, "the crime against peace", and we think the titles complicate things. We could just say "planning, initiating", et cetera, and then also say not of "any" international, but of "war in violation of international treaties".
LORD CHANCELLOR. Leave out "any" and-?
MR. TROYANOVSKY. And leave the general treaty for the renunciation of war.
LORD CHANCELLOR. I thought it rather convenient to have it in, but I don't think it matters a bit.
GENERAL NIKITCHENKO. We don't think that of great importance either.
PROFESSOR TRAININ. We think that from a theoretical point of view these titles are welcome, but to put them in a I aw would perhaps make it too vague.
MR. JUSTICE JACKSON. I think it is a very convenient designation. I may say it was suggested to me by an eminent scholar of international law. It would be a very convenient classification, and I think it would help the public understanding of what the difference is.
LORD CHANCELLOR. I think Professor Trainin's book treats aggression not as the crime of war but as a crime against peace, and I do think that if you do have a nomenclature it would be well to have a nomenclature that comes from his book, and instead of calling it 49crime of war", call it "crime against peace". I myself prefer to keep the nomenclature but to substitute for the "crime of war" the "crime against peace".
GENERAL NIKITCHENKO. We have no objections to that. Take out the word "any" and the reference to the general treaty.
LORD CHANCELLOR. That is all right with me.
MR. JUSTICE JACKSON. I don't think that is very serious impairment of the definition.
LORD CHANCELLOR. Then let us take (b).
GENERAL NIKITCHENKO. In this paragraph the words "but not be limited to" in our translation are very strange. I think they should be dropped and we should add "or deportation".
MR. JUSTICE JACKSON. The difficulty is in our rules for interpretation of statutes, and you will have at least one judge on the Tribunal who is accustomed to that interpretation. If you name a general category and then go on to specify, you are limited to your specifications. I would be quite willing to have it in translation in any way it makes sense to you, but I think it is quite important that you do make clear that the specifications are not the only things that you are reaching, because some of these crimes are quite unique and are not covered perhaps by general definition. Now, the deportation to slave labor-The reason I dropped "deportation to slave labor" was that there are other deportations that are just as objectionable as slave labor from my point of view, for example, deportations to compulsory prostitution, deportations just to get people out of the way to take their land, or deportations to concentration camps. It seemed to me that we limited the deportations. I would be quite willing to say "deportation to slave labor or for any other purpose".
GENERAL NIKITCHENKO. The words "but not be limited to" are not very important really to us. If you don't mind, we could drop them and I would in our translation say "and other crimes". As for your suggestion, "to slave labor and f or any other purposes", that is all right.
LORD CHANCELLOR. I am afraid I must go to rehearse my part in the proceedings of the House of Lords at the opening of Parliament. Would you like to go on? You are so near agreement. If you want me to come again, I could be available this afternoon about 5: 30 or tomorrow at 2: 30; or perhaps, if the Attorney-General could go on representing us, you could get finished here.
The Lord Chancellor left and Sir David Maxwell Fyfe took the chair.
GENERAL NIKITCHENKO. We have just two more words here.
SIR DAVID MAXWELL FYFE. "Deportations to slave labor or for any other purpose"--and that is article (b). Article (c).
GENERAL NIKITCHENKO. Could we say "in order to accomplish" or something like that instead of "furtherance"?
JUDGE FALCO. I suggest "in execution".
Mr. JUSTICE JACKSON. Is there objection in connection with that?
SIR DAVID MAXWELL FYFE. All agreed on "execution of"? What about the concluding paragraph?
Mr. JUSTICE JACKSON. This concluding paragraph would take the place of article 9.
SIR DAVID MAXWELL FYFE. Article 9 is "organizers", and we go further now and say that they are not merely equal and responsible but are responsible for the acts of other persons.
MR. JUSTICE JACKSON. I think we shall have to do that in order to reach some of these things.
SIR DAVID MAXWELL FYFE. The only difference between the new draft and the old is that the new draft makes the point which Mr. Justice Jackson raises in the end of the discussion in his paper that we want to get to the leaders as well as to the rank and file.
GENERAL NIKITCHENKO. Could we say here also "execution" instead of "furtherance"?
SIR DAVID MAXWELL FYFE. That only leaves article 22. It is the one for which the Soviet Delegation had told us they would recommend Nurnberg, and were awaiting instructions. Is there any word?
GENERAL NIKITCHENKO. We are prepared to agree to the first trial at Nurnberg, but we would like it considered that the administrative headquarters and the first meetings of the Tribunal and the prosecutors shall also take place in Berlin at a place to be designated by the Control Council. The first trial shall be held in Nurnberg and subsequent trials as , we had it.
MR. JUSTICE JACKSON. That is the language we did agree on.
GENERAL NIKITCHENKO. "The Tribunal shall be located in Berlin-"
MR. JUSTICE JACKSON. We don't see just what you mean, as it is interpreted, in saying that "the Tribunal shall be located in Berlin" when it is going to sit elsewhere.
GENERAL NIKITCHENKO. We specify that the first trial would be in Nurnberg and subsequent trials in other places and that only the first meeting would take place in Berlin; so it does not limit us in any way.
MR. JUSTICE JACKSON. I agree, but I don't understand just how we can use the words "located in Berlin" if the judges are sitting in Nurnberg and other places. Perhaps we have a different idea.
PROFESSOR TRAININ. Because we do say that only the first meeting would take place there and we do say that the first trial would be in Nurnberg and subsequent trials in other cities, it seems to us that in Russian it would be quite clear that its permanent seat-its address would be Berlin.
MR. JUSTICE JACKSON. If you use "permanent seat", that would make clear that that is equivalent in our understanding to "headquarters".
GENERAL NIKITCHENKO. Yes, the permanent seat of the Tribunal shall be at Berlin.
MR. JUSTICE JACKSON. We seem to have cleared up all points of difference now, and we need, next, to get the agreement in three languages so that we can execute it.
SIR THOMAS BARNES. Would it be best to have it run out as altered and checked by each delegation before it is translated?
GENERAL NIKITCHENKO. We have the technical work to do, and also in article 6 we took it upon our own personal responsibility to agree to Mr. Justice Jackson's proposal. We still have to receive instructions on that score. Until we get the instructions, we could get going with the technical work of looking through the text.
MR. JUSTICE JACKSON. May I ask when you would expect instructions? I have been called to France and would not get back until Sunday night. Would you expect to be in a position to sign before Monday? If so, I shall forego the trip.
GENERAL NIKITCHENKO. We think we could get the text complete today and probably take a day to compare and have instructions tomorrow or the day after, Saturday.
MR. JUSTICE JACKSON. Since I have no Russian translator on my own staff, I would want our Embassy to check the translation.
SIR DAVID MAXWELL FYFE. Then we shall wait until Monday for signature.
Sir David then thanked his colleagues for their cooperation and friendship throughout the Conference while be was presiding officer and said that his connection with the work had been a very great pleasure.
The Conference was 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