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MR. ROBERTS [presiding]. Perhaps I might say that the Attorney General is sorry he cannot be here. He is in Liverpool electioneering until tomorrow evening.
There are now before the Conference the Russian statute, which has not been discussed, and the American annex, which has not been discussed. Perhaps it would be convenient first for Mr. Justice Jackson to discuss the questions of principle arising on his document with reference, perhaps, to the Russian document [XIX].
MR. JUSTICE JACKSON. Mainly, I would like to be sure that we understand what some of the provisions of the Soviet draft contemplate. For example, paragraph 3 requires a turnover to the Tribunal upon its demand of all major war criminals. I do not quite understand how the Tribunal could be in a position to receive custody or take care of prisoners, and I was wondering what kind of organization for that purpose is contemplated.
GENERAL NIKITCHENKO. In this draft agreement only the principal question is provided for, that is, that the criminals should be turned over. As to how they are to be kept under custody or otherwise would be established by the Tribunal itself with the Control Council. The fact is the Control Council for Germany has sufficient apparatus and facilities for keeping the necessary prisoners under guard.
MR. JUSTICE JACKSON. Where does it have the facilities?
MR. TROYANOVSKY. Do you mean the right, or the facilities?
MR. JUSTICE JACKSON. The facilities.
GENERAL NIKITCHENKO. The Control Council, being the supreme authority in Germany, would naturally have such facilities for placing custody guards, et cetera, especially since the permanent residence of the Tribunal is to be in Berlin, or may be in Berlin. Thus it would act in direct contact with the Control Council.
If the prisoners should be on the territory of some other country than Germany, they would be kept in the custody of that government of the government of that country-and turned over for the trial.
MR. ROBERTS. Do you mean any more than to provide that these criminals should be made available to the Tribunal?
GENERAL NIKITCHENKO. In the opinion of the Soviet Delegation, criminals should be at the demand of the Tribunal, placed under its control. As for the technical consideration as to how that should be done-
GENERAL DONOVAN. But the Tribunal is a court and not a prison. The general forces are taking care of them now. If the court gets them when it calls for them, that should be enough.
GENERAL NIKITCHENKO. The question is that the Tribunal might have the ability to try those criminals, that they should be available for the trial.
GENERAL DONOVAN. Then the Soviet Delegation would be satisfied if on the day of trial the prisoner should be produced by the signatory that has that prisoner in custody and be made available during the period of the trial. Isn't that all you want !
GENERAL NIKITCHENKO. Yes, that is right.
GENERAL DONOVAN. To be sure we all understand, it is not pressed that the Tribunal should get control and custody of these prisoners but simply have them available when called for trial.
PROFESSOR TRAININ. The main principle touched upon here is that prisoners should be available for trial.
MR. JUSTICE JACKSON. And for sentence-to serve any sentence.
GENERAL NIKITCHENKO. That is right. This article is set forth here in order to avoid a situation under which a tribunal might decide upon the recommendation of the investigation commission to try some criminal, and that criminal would not be made available by the signatory which has him in custody. To avoid that, this article is put into, the agreement.
MR. ROBERTS. It is merely a question of drafting, isn't it? The question being-
GENERAL NIKITCHENKO. No, the signatory, the government concerned, should make available to the Tribunal anyone whom the Tribunal wants to try, anyone that government has in its hands.
MR. ROBERTS. It really is the Chiefs of Counsel who want him tried and not the Tribunal.
GENERAL DONOVAN. No, because the Chiefs of Counsel are in charge of the trial and not the Tribunal. That is a basic principle.
MR. JUSTICE JACKSON. In the fifth paragraph of the same instrument reference is made to the surrender, upon the demand of any of the governments, of war criminals who have committed crimes on the territories of those countries. As I explained yesterday, what we have tried to do is to reserve that question for settlement by our governments and to provide that nothing we do prejudices or controls that arrangement. I would not be in a position to make a flat agreement that anyone demanded should be turned over, nor would I be in a position to negotiate about the questions which may be involved in turnovers since I am confined in my authority to the international case.
GENERAL NIKITCHENKO. When the Soviet Delegation put this paragraph in the agreement, it based its reasoning on the fact that the working out of this is involved in the procedure on responsibility for criminals. In Mr. Justice Jackson's first draft of the agreement, [IV] it is stated that this agreement is worked out in accordance with the Moscow declaration and the part about the turning over of the criminals is quoted.
In the second American draft of the agreement [XVIII], paragraph 3, it is stated that the signatories agree that the Control Council in Germany shall establish the principles and procedures governing the return of prisoners in Germany, etcetera.
GENERAL DONOVAN. Would it meet the wishes of the Soviet Delegation if there were a recital that the signatories would arrange policies and procedure for that?
GENERAL NIKITCHENKO. But recognizing the principle of surrender?
GENERAL DONOVAN. That is right.
GENERAL NIKITCHENKO. The principle of the surrender of criminals has already been established in the Moscow declaration, and the Soviet Delegation, in the execution and carrying out of this principle and taking into consideration the fact that the American Delegation also decided it necessary to mention it, decided to put that point in the agreement as an obligation for the signatories to turn over the prisoners. As for the procedure, that of course could be established later. This paragraph does not in itself establish the procedure. The procedure should be established by the governments themselves.
JUDGE FALCO. [Not translated.]
GENERAL DONOVAN. So your position is, Mr. Falco, that the major criminals in the custody of the major signatories would be turned over for trial but not for surrender, and, in the case of those not major criminals, policies and procedures would be set up to turn over and surrender them.
SIR THOMAS BARNES. But why put that in this?
GENERAL NIKITCHENKO. The investigation commission, or the Tribunal, however it may work out, would have to decide who are the major criminals and who are not. Therefore, in any case, it would have to do with the question of minor criminals, of criminals who are not major criminals, and it would seem to us natural to put that point in the agreement as was stated in the American draft, but we think that it is not necessary to restrict those prisoners only to those prisoners who are in Germany but state the principle of surrender as applied to all prisoners.
MR. ROBERTS. I should prefer it if this paragraph were struck out because this agreement only deals with major war criminals. It seems covered by article 3, under which we have all undertaken to make available for trial major war criminals.
PROFESSOR TRAININ. These two problems of major and minor criminals are, after all, closely related, and this relationship was set forth in a correct manner in the American revised draft agreement as well as in the first draft of the agreement [IX] in article 21, where it is stated that the person charged with responsibility, et cetera, should be turned over to the occupation courts. Of course, here we should not concern ourselves with the activities of the occupation courts, but the point of surrender should be set forth in order to set out more fully the provisions of the Moscow declaration.
MR. JUSTICE JACKSON. The purpose of paragraph 26 of our annex and of the predecessor clauses in the previous draft is not to determine what shall be done about it but to reserve it so as to be clear we were not prejudicing the right of the Control Council to set up procedures governing the minor criminals. In other words, it is a reservation rather than a provision governing procedures.
Shall we regard it as acceptable if we reserve the question in some manner for the governments to establish, making clear that we are not interfering in this agreement with the declaration of Moscow?
GENERAL NIKITCHENKO. The right of national tribunals to try prisoners in their custody has not been infringed upon; so there would be no necessity to make a reservation on that point. But since we are drafting this agreement in accordance with the Moscow declaration, the principle of the Moscow declaration concerning the surrender of prisoners should be set forth-the principle itself.
MR. JUSTICE JACKSON. Since it has been already set forth, do we need to repeat the Moscow declaration here? And doesn't the provision of the agreement as submitted by the Soviet Delegation go further than the Moscow declaration? In other words, here is the provision which says that, upon the mere demand of any government ,that it wants to try somebody, we must turn him over even though we may desire to try him. That, to my mind, would put us in the position where, if we want to try a person and any other government is demanding him, we might be charged with bad faith, and we do ;not want to make any commitments that we may not live up to. I would have no authority to commit my Government to a thing of that kind.
GENERAL NIKITCHENKO. The question of the drafting of this provision might, of course, be set later, but in principle it reflects the first paragraph of the first amendment draft, in which it is stated that the German officers and members of the Nazi party who are responsible for atrocities, et cetera, would be sent back to the countries in which their crimes had been committed. That is the principle which is set forth in the Soviet provision, too.
MR. JUSTICE JACKSON. In ours, we have provided that the Control Council shall establish policies and procedures and that is what we think should be done-that we should not undertake to set up in our agreement policies and procedures about this, that these questions should go to the Control Council rather than be determined here since we are only dealing with major criminals.
MR. ROBERTS. I might say this is our view, too. This is an agreement dealing with major criminals, and it is a little out of place here and really is not our business.
GENERAL NIKITCHENKO. The Soviet Delegation agrees that the question of procedure in the matter of turning over criminals should be settled either by the governments or the Control Council.
PROFESSOR GROS. I think it is a question on which we all agree in principle and think it is only a question of wording of the fifth paragraph, but I am under the impression that we could accept such a change as would imply we are not encroaching upon the territory of the Council.
GENERAL NIKITCHENKO. The question of drafting would really be settled in the drafting committee, but at the present time we should settle the question in principle that in a provision of this sort a reservation should be included in the agreement.
MR. JUSTICE JACKSON. The principle as suggested by Professor Gros would be acceptable to us.
MR. ROBERTS. And to us.
PROFESSOR GROS. May I say that there seems to be more than a question of drafting here? The Soviet draft invites the Control Council to set up the procedure. I think that that reservation is necessary.
GENERAL NIKITCHENKO. In this case and the case of minor criminals, the principle of the Moscow declaration should be set forth and an obligation of the countries should be repeated, the obligation which had been set forth in the Moscow declaration.
GENERAL DONOVAN. When the document says "without prejudice", isn't that just what happens?
PROFESSOR TRAININ. It is not quite the same, and we base all our deductions on the Moscow declaration. In regard to the major criminals we worked it out in great detail. As for the other criminals we have just to repeat the principle of obligation which had been set forth in the Moscow declaration.
GENERAL NIKITCHENKO. Apparently everybody agrees that the minor criminals should be turned over, and we have no doubt that is so. We see no reason why it should not be set forth in the agreement.
GENERAL DONOVAN. But everyone wants them turned over in the ordinary manner and turned over so that they would get the worst punishment they could get. But the one who demands him should get the prisoner where, if lie were tried, he would get a heavier punishment for a heavier crime.
GENERAL NIKITCHENKO. No, we did not have that in view.
GENERAL DONOVAN. But that would be the effect.
PROFESSOR TRAININ. Naturally he should be tried in the court where he committed the gravest crimes, and, if this provision is not definite enough in that regard, it could be redrafted.
GENERAL DONOVAN. But that is all the draft suggested without surrendering the principle.
PROFESSOR TRAININ. Not exactly.
GENERAL DONOVAN. But near enough. Whatever the form, as long, as we reach the result, doesn't that satisfy us?
PROFESSOR TRAININ. Naturally the prisoner should be tried in the country where he had committed the gravest crimes, and if this provision is not definite enough in that regard it could be redrafted. If a person is recognized to be a major war criminal, he is not liable to be turned over to the local court.
GENERAL DONOVAN. But another one might be a witness.
GENERAL NIKITCHENKO. He would also be turned over.
MR. JUSTICE JACKSON. Now I would like to ask some questions about the Soviet draft of article 3 of the statue [XXIII]. This apparently contemplated the establishment of several tribunals, and we were wondering just how you -would have several tribunals function. We can see merit in the idea of having several tribunals if, for example you decided that you wanted to try your prisoners and those that you want to indict by your procedure, and we wanted to try ours by our procedure, which would probably be quicker than trying to work out a new joint procedure. But if there are to be several tribunals all under identical procedures, sitting in various parts of Europe, we do not know just how they would function and wonder whether you would explain just what you have in mind about it.
GENERAL NIKITCHENKO. In this article we provided for the same thing as was stated in article 5 of the first American draft-that one or more tribunals could be established. It would be better, of course, if there would be just one tribunal. The Soviet Delegation thinks everyone would agree to that, but it might happen that the number of cases would preclude the establishment of only one tribunal and that tribunal would not be able to handle that number of cases. In order to expedite matters it would be better to set up two or three tribunals, and each of these would then function in an identical manner according to the same procedure. The Soviet Delegation could, if that would be desirable, agree to providing for only one tribunal.
MR. JUSTICE JACKSON. If it became necessary to have more than one, might it not be simpler if we did not provide that they must all have identical procedures and set up a tribunal which would try those you wish to try by your procedure while we used our procedure to try ours? That is to say, we have a good deal of differences of tradition about procedure, and it is hard to reconcile them. If we agreed on the general principles of substantive law that should apply, I don't know that it is necessary that everybody proceed exactly alike, providing they are proceeding to the same end. I have been wondering whether, if more than one tribunal became necessary, it might not be simpler for each of us to use the procedure lie is more familiar with, and which would be acceptable to his own people, rather than try to set up a new procedure. We could agree on the applicable principles of criminal law.
GENERAL LORD BRIDGEMAN. I think perhaps I should say here that we on this side of the table realize the difficulties you have mentioned, but we do attach a great deal of importance to having only one tribunal if it is at all possible. We feel it would be very much better to have one tribunal.
GENERAL NIKITCHENKO. That is really what we provided for. This should be an international tribunal. We might call subdivisions of it branches or chambers, but unless all four countries are represented in it then it would lose its character of being an international tribunal.
MR. JUSTICE JACKSON. Yes, but what I am thinking of is that it would not lose its character but it would not be necessary that each division or chamber should proceed by the same procedure. By that I mean this-we have certain things that in the tradition of our people we must do, otherwise our people would think we had not given a fair trial. You have certain things which you must do or your people will criticize you. I quite realize that. Trials in our several countries are not run in the same way. They may be equally good. What we were thinking was that perhaps the best way to do would be, to proceed before separate divisions, each using the procedure he was familiar with. I only submit it for your consideration.
MR. TROYANOVSKY. The representatives of the four countries in each?
MR. JUSTICE JACKSON. Yes, in each chamber.
PROFESSOR TRAININ. Also as a matter of suggestion, if might be that one branch of the Tribunal might function in Berlin and another in some other country, and due to that fact it would have some special points of procedure. But these are merely suggestions.
PROFESSOR GROS. In principle those are pessimistic views, and we would hope that it would be possible to find an international procedure for one international tribunal. Evidently it is difficult, but it is much more important to have one international tribunal than to have two or three or four which might, perhaps, have different jurisdiction and, in a practical way, we might have trouble dividing the major war criminals in these channels. I think we might perhaps go along the same lines and only come back to the same suggestion if we could not find an agreement.
MR. JUSTICE JACKSON. There is a question that arises on article 5 concerning the Control Council and in article 9 in reference to the recall of members of the Tribunal. As to number 5, the Tribunal is attached to the Control Council. Article 9 gives the Control Council the right to recall a member of the Tribunal and to replace him by another.
Under the procedures of the United States and under our legal philosophy, once a court is set up it is completely independent of the executive, and there could be no recall by the executive authority of a, member of the tribunal. A tribunal subject to recall by the executive in our country would not be regarded as an independent court nor its findings as independent findings. Therefore, we would not find acceptable the provision for the recall of a member of the Tribunal nor for the attachment to the Control Council if by that it is meant that it is in any sense subordinate to the Control Council.
GENERAL NIKITCHENKO. The Soviet Delegation is of the opinion that, since the International Military Tribunal is a temporary interAllied organization and not a permanent national court, it is difficult always to apply the principles of national legal systems in regard to it. For instance, our judges are elected and, of course, the Soviet Delegation considers that principle could not be very well applied in this case. Also, it would not favor the principle that a judge would have the power or right to remain sitting unchanged under any circumstances. In this case it is necessary to establish new principles for a temporary organization which would not function for a very long time.
The Soviet Delegation also took into consideration article 5 of the American draft, in which it is stated that control of the International Military Tribunal should be established by the Control Council. This is really the significance of article 5 of the Soviet draft, that, since it is to be established by the Control Council, it would function sort of attached to the Control Council.
MR. JUSTICE JACKSON. We agree that it might be set up by the Control Council, and we would agree, too, that we cannot apply the principles of any one nation, but, in our view, if a member of the Tribunal is subject to recall without any reason being given, it is not an independent court. We feel strongly about an independent court to the point where we would not have much confidence in the decision of any other kind of court. I am wondering what kind of circumstances you would have in mind as justifying a recall, and perhaps we could provide for them in some other way.
GENERAL DONOVAN. One thing occurs to me as I look at the word "recall". We may be applying different meaning to the word. Do you mean replacing? Certainly you would have the right to replace a disabled judge, but I wonder what reason you would have in mind for using the word "recall".
GENERAL NIKITCHENKO. Yes, that would be the meaning-replace.
MR. JUSTICE JACKSON. Replace for what reason-sickness or death or inability to go on, or replace him because his decisions were not satisfactory ?
GENERAL DONOVAN. You ought to tell them first that we are asking that because of a little American political history.
GENERAL NIKITCHENKO. If the Government has the right through the Control Council to appoint a member of the Tribunal, it should also have the right to replace him if that may be necessary-if a member is needed for the fulfilment of some other duties in some other place, or he may be ill even though he might not be actually confined to his bed. In that case the government should have the right to replace him by some other person.
JUDGE FALCO. [Not translated. Judge Falco spoke in general support of the American view and in support of an independent tribunal.]
GENERAL NIKITCHENKO. In the American draft it is also stated that the Control Council should appoint members of the International Military Tribunal, each with an alternate, et cetera.
MR. JUSTICE JACKSON. It would make some difference what causes the vacancy. We do not state that they may recall the judges or discharge them. It would also make some difference if you mean that, if there are several trials, a long series of trials, a change could be made between trials so to speak; but if you meant that in the middle of a trial a judge could be removed, that would be something different. I am wondering which you have in mind.
GENERAL NIKITCHENKO. No, not in the middle of a trial.
MR. ROBERTS. From our point of view we appreciate the point raised by the United States and the French, but feel after the explanation given by the Soviet that there is little difference between us. A judge would not be changed during the trial except for reasons of illness, et cetera.
MR. JUSTICE JACKSON. There are one or two questions that arise oil subsection 3 with reference to the investigation commission. We have a somewhat different philosophy of the prosecuting officer's function than the Soviet memorandum discloses. We do not think of the prosecution as a commission but rather as f our separate representatives. However, that should be determined in article 12, where reference is made to the fact that the members should be appointed by the Control Council. The President of the United States has already appointed me for this purpose; the Control Council has no right to recall me, and it could not be conceded. In other words, we are past that point. Our representative is named and is representative of the President of the United States and not of the Control Council.
GENERAL LORD BRIDGEMAN. I think we should say at this point that that is our view, too. The Attorney-General has likewise been appointed to represent our Government. It brings me back to article 8 where the same position arises. We took the view the other way around as our representative could be appointed by the Government just the same way the Chief of Counsel is appointed. Perhaps those two points stand together.
PROFESSOR TRAININ. Just one consideration. In the American draft, article 10, apparently the Chiefs of Counsel are regarded as a sort of commission since they would take decisions by a majority vote.
MR. JUSTICE JACKSON. It was not intended to be a commission in the formal sense but rather that the representatives or Chiefs of Counsel should meet together and decide these things by informal conversation. But, of course, a majority would govern in most situations although we have reserved the right of each counsel to present his case even though other counsel might not agree with him. That is to say, each counsel would have the right to bring forward evidence on behalf of his country even though no other country would be interested in that part of the case.
GENERAL DONOVAN. As we look at it, each Chief of Counsel is sitting here separately and independently representing his government, but each Chief of Counsel works with the others in cooperation to advance the trials of these people. It is not a formal auxiliary board but simply a group of lawyers working together.
GENERAL NIKITCHENKO. Would they then act together or would each one act independently?
GENERAL DONOVAN. No, they would act together. I would use the word "collaboration" if it had not fallen into such bad use now. But not in any formal way.
PROFESSOR TRAININ. But to turn a case over to the Tribunal they would have to decide upon that together, would they not?
GENERAL DONOVAN. Yes.
MR. JUSTICE JACKSON. Will you refer to the American draft under the heading, "Provisions for bringing defendants to trial"? We state that the normal way of functioning would, of course, be by agreement. Ordinarily, I suppose, there will be no disagreement, but it is also necessary to protect the position of each one of the governments to some extent because each one wants to be sure that its own case is presented. Therefore, it is provided in the American draft that any Chief of Counsel may bring to trial any person in the custody of his own Government, et cetera. [Quoting]. In other words, four members proceeding by agreement would be the normal procedure, but no government could be prevented from proceeding against its own prisoners and making its own case against its prisoners by any number of counsel who would not want to proceed. You see, in that way a certain measure of independence is preserved, while at the same time there is provision for normally acting together.
GENERAL NIKITCHENKO. I beg your pardon. To which document do you refer?
MR. JUSTICE JACKSON. Paragraph 8 of the last document that was passed to you-the annex to the draft.
GENERAL NIKITCHENKO. In the Soviet draft it is stated that proceedings should be carried out by the whole commission, but it also provides that investigations may be carried out by the whole commission on request by the individual members. In this respect we try to provide for an independent action by the individual members of the commission, but as a rule it considers that decisions should be taken by majority vote of the representatives because the commission or the Chiefs of Counsel is a representative body of the four Governments.
MR. JUSTICE JACKSON. The probability is that the difficulty or difference arises from the fact that you regard, under your system, the investigation as embracing many of the things which we regard as the function of the trial. I notice in your article 15 that you provide that the indictment shall be accompanied by all of the evidence pertaining to the case. Now you see, we do not do that, and therefore what we have reserved is the right to act independently in the trial of the case if necessary, as well as in the investigation, while you have reserved the right to act independently only in the investigation. I do not see how we could act on the basis that all evidence pertaining to the case must accompany the indictment because that leaves nothing for the trial but to read the evidence, whereas we call witnesses and frequently give a great deal of evidence that is not in the indictment. The indictment in our practice is intended to state an outline of the charges rather than all the evidence. We are quite willing in this case to put in a great deal of evidence for the indictment or as supplementary to it in some form, but do not think we could deprive the trial of all functions of taking the evidence.
GENERAL NIKITCHENKO. In order to insure on the one hand the impartiality and justice of the trial and at the same time speed up the procedure, the Soviet Delegation considers that it would be best to divide the procedure in two stages as set forth in the annex-first, the collection of evidence by the commission acting as a whole or independently at the request of the commission. As for what constitutes evidence, that is set forth in the American draft and those details could be put in the final draft in the final annex.
This first stage of the proceedings includes the examination of the defendants and witnesses and the collection of documents, and if a defendant denies his guilt he can refer to other evidence. It would be the duty of the commission, the Chiefs of Counsel, to look through that additional evidence which the defendant has pointed out. After the collection of evidence an indictment is drawn up in -which the protocols of examination of defendants and witnesses and documents, as for instance the documents of various national investigation commissions, are included. Thus, during the preliminary investigation the defendant has every chance of refuting his guilt, and the commission of investigators or the Chiefs of Counsel would be bound to take that into consideration and to look to any additional evidence to which the defendant might refer.
After the collection of evidence has taken place, the commission does not take a decision on whether the person is guilty or not. It just decides on whether there is sufficient evidence to warrant starting court proceedings, to warrant turning the case over to the court, and at the same time the defendants are furnished with all the evidence the commission had collected in the case so that they know exactly with what they are charged.
The task of the Tribunal, after it had received the indictment with all the evidence, would not be to hear that evidence but to decide which of the witnesses should be called for examining in regard to the points raised by the charges, and, summing up all the evidence and the results of the examinations, to pass judgment.
The defendant should have the right to defend himself, to demand witnesses for examination, evidence which had not been refused by the commission, to call on witnesses and to act through the help of his counsel for the defense of himself personally. When everything has been cleared up, all the evidence necessary produced, then the prosecutor sums up the case for the prosecution followed by the counsel for defense, or the defendant himself if he wishes to defend himself without aid of counsel. After this the judges, in the absence of the defendant's prosecutor or counsel, pass judgment.
In the opinion of the Soviet Delegation this procedure would on the one hand insure a fair trial since the defendant would be given every chance to refute the evidence produced against him and would, on the other hand, insure him promptness of trial since most of the preliminary work -would have been done before.
PROFESSOR TRAININ. It must be emphasized that before court proceedings start not only the court itself but the defendant and his counsel for defense would be furnished with the indictment and all the evidence.
The Conference adjourned until Wednesday, July 1,1945, at 11 a.m.
International Conference on Military Trials : London, 1945
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945
International organization and conference series; II
European and British Commonwealth 1
Department of State Publication 3080
Washington, DC : Government Printing Office, 1949