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Sir David Maxwell Fyfe called the Conference to order.
GENERAL NIKITCHENKO. This is the paper we are submitting this morning-a rough draft or preliminary draft of article 6 [XLIII], which is based, as can be seen, on the French draft submitted last week [XXXV]. The Soviet Delegation have taken the French draft as a basis and made some alterations. This being a rough draft, it is contemplated that further alterations might be submitted by other delegations and perhaps even by the Soviet Delegation after we have considered it. The only thing we did not find it possible to do was to put in a reference about pacts which condemned aggression. We looked through the Charter of the United Nations once again and observed that, while aggression is mentioned several times, it is not defined anywhere. Apparently this is due to the fact that aggression has become sort of a formula in itself. Apparently, when people speak about "aggression", they know what that means, but, when they come to define it, they come up against difficulties which it has not been possible to overcome up to the present time.
PROFESSOR GROS. I think we are perhaps the last people who should speak, because that draft, as General Nikitchenko said, is a redraft of the French text, and it is only a matter of some words which we could suggest changing-which is not important.
SIR DAVID MAXWELL FYFE. I think that my points are largely points of clarification. But there is one fundamental point that I want to see whether we are agreed on. I think we are. I want to make clear in this document what are the things for which the Tribunal can punish the defendants. I don't want it to be left to the Tribunal to interpret what are the principles of international law that it should apply. I should like to know where there is general agreement on that, clearly stated-for what things the Tribunal can punish the defendants. It should not be left to the Tribunal to say what is or is not a violation of international law. That is why I wanted in the English draft the words "convict and sentence after trial"-that is, the Tribunal should have the power to "try, convict and sentence". Developing the same point, I am a little worried by the inclusion in a) of "in violation of the principles of international law and treaties", because I would be afraid that that would start a discussion before the Tribunal as to what were the principles of international law. I should prefer it to be simply "in violation of treaties) agreements, and assurances".
Now b) and c)-paragraph b) deals with the civilian population and c) deals with the actual waging of war. I'm not clear why the draft includes at the end of b) "and other violations of the laws and customs of warfare", because the draft seems to cover that so explicitly in a). But I should have preferred to leave it "ill-treatment of civilians"--stop at "slave labour". "And other violations of the laws and customs of warfare" seems to limit it.
With regard to the final paragraph, again I want to be clear as to what it implies, and later I should like the assistance of Professor Gros on it too as it is largely in his form. What I want to know is that it is an imposition of law on the Tribunal. Let me take a concrete example. If it is shown that Ribbentrop was guilty of a), then it would follow as a matter of law and not be for the Tribunal to decide that Ribbentrop would then be personally answerable for all the crimes of the German forces. There is one general point which I think is covered; that is, you note in the second line you used the words "in the preparation". The preparations would in my view include such acts as the terrorization and murder of their own Jewish population in order to prepare for war; that is, preparatory acts inside the Reich in order to regiment the state for aggression and domination. This would be important politically for us because the ill-treatment of the Jews has shocked the conscience of our people and, I am sure, of the other United Nations; but we should consider it at some stage, and I thought it was covered by this act in the preparation of the design. I just wanted to make it clear that we had this in mind because I have been approached by various Jewish organizations and should like to satisfy them if possible. I have in mind only such general treatment of the Jews as showed itself as a part of the general plan of aggression.
MR. JUSTICE JACKSON. Well, I think a great deal depends on what we are trying to accomplish by definition, and I don't think this one accomplishes what the United States has had in mind to try to accomplish. This leaves open, as I see it, to be argued before the Tribunal what the international law is on nearly every question. Our basic purpose is that article 6 should settle what the law is for the purposes of this trial and end the argument. If any definition is not a proper one to settle on by agreement, it is not a proper one for us to support as advocates before a Tribunal. I think it is entirely proper that these four powers, in view of the disputed state of the law of nations, should settle by agreement what the law is as the basis of this proceeding; and, if I am wrong about that, I do not see much basis for putting these people on trial in a quasi-judicial proceeding.
The introductory paragraph of the subcommittee draft is unequivocal and unambiguous and says that the acts it sets forth shall be considered criminal violations of international law and shall come within the jurisdiction of the Tribunal. It would not leave it open f or argument that this is Dot the law. The draft before us submitted by the Soviet Delegation literally only confers jurisdiction to try persons; it does not, as I see it, define the substantive law which creates the crimes. Therefore, if this were adopted, it would be entirely open to the Tribunal if it thought the international law was such as to warrant it, to adjudge that, while these persons had committed the acts we charge, these acts were not crimes against international law and therefore to acquit them. That we think would make the trial a travesty.
Now let us take a). If we look at it as defining a crime, it is one consisting of three elements: first, there must be "aggression against or domination over"; second, it must be carried out by Axis powers; third, it must be in violation of international law and treaties. Now the moment you look at it as broken into its elements, it seems to me you find great difficulties in it. I do at least. The first is that aggression against or domination over other nations, in violation of some treaties, would not be in my judgment, if accomplished by peaceable means, an international crime. For example, if we violated our fishing treaties and continuously encroached on British waters and dominated them without a declaration of war or going to war, I should hardly think it an international crime; it would be a violation of treaties to which you might be entitled to remedy. It might lead to war, but that is not what we are aiming at, which is aggression or domination by making war. Then the second element contained in a) is, it must be carried out by Axis powers. We would think that had no place in any definition because it makes an entirely partisan declaration of law. If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us. Therefore, we think the clause "carried out by the European Axis" so qualifies the statement that it deprives it of all standing and fairness as a juridical principle. Then the third element of a), that all of this must be in violation of international law and treaties, brings us right back to the question which we set out to solve, which is to say that certain aggressions which have been declared illegal long before this war was begun are violations of international law, rather than to leave that to the Tribunal to argue about and possibly disagree about.
Paragraph b) from our point of view does not reach all that we want to reach and reaches a good deal we would not want to reach. It has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business; that is to say, the way Germany treats its inhabitants, or any other country treats its inhabitants, is not our affair any more than it is the affair of some other government to interpose itself in our problems. The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities. They were a part of the preparation for war or for the conduct of the war in so far as they occurred inside of Germany and that makes them our concern.
Paragraph c), of course, comes down to the violation of the rules of land warfare and we really need no international tribunal to punish that. We have evidence as to nearly every one of these prisoners that we have that they violated the laws and customs of land warfare against American soldiers, and therefore we can put them on trial before an American military tribunal within a month for ordering the slaughter of American prisoners of war. We don't need an international tribunal for that. So that does not seem to advance us very much on an international trial except when we couple these individual acts with the German plan to make warfare by that lawless and terroristic method.
And then the last paragraph, "and who is therefore personally answerable"-it seems to me to leave open the very question we want to settle. We must declare that they are answerable personally, and I am frank to say that international law is indefinite and weak in our support on that, as it has stood over the recent years. This definition seems to me to leave the Tribunal in the position where it could be argued, and the Tribunal might very reasonably say, that no personal responsibility resulted if we failed to say it when we are making an agreement between the four powers which fulfils in a sense the function of legislation. I think there is greater liberty in us to declare principles as we see them now than there would be in a court to use new principles that we had failed to declare in an organic act setting up the court. And therefore we leave open to an argument, and to interminable argument, and to determination by, and division of, the court, the question as to whether one is personally answerable for such acts as are set out.
Now all of this brings me back to a consideration of the plan which we put forward, however crudely, to accomplish that which we are trying to do, and I would invite reconsideration of paragraph 6 as reported by the subcommittee on drafting [XXV]. The opening paragraph settles the law that certain acts are criminal violations. I think Professor Gros' criticism, that it does not declare individual responsibility but leaves it as a matter of state responsibility, is a valid criticism which should be met, but apart from that I think no departure from our definition is acceptable on criminal violations of law for the purposes of this trial.
Now, what are these acts which should be criminal violations? First of all, we say it is the violation of laws, rules, and customs of war, which includes murder and ill-treatment, deportations, wanton destruction, plunder, and other violations of the customs of war. We are prepared to prove against every person whom we would pro. pose to indict guilt under those well-defined classes of crimes. We are prepared to show that as against the top men, not merely against the little soldiers who were out in the field and did these things, but against the top Nazis who ordered them. We have the captured orders, we have the reports, we have the evidence to show that they were guilty, and guilt will not be an inference merely because they were in office or in authority but because they personally knew and directed and planned these violations as their deliberate method of conducting war.
And then the second thing of which they are all guilty-and we can show they all participated in it with knowledge-was the launching of a war of aggression. They went to war as a means of carrying out a policy after their country had renounced war as a means of policy and after, we think, the civilized world had come to recognize any war except a defensive war or one undertaken to discipline an aggressor as a criminal violation of international law.
Now the next is the invasion or initiation of war or threats against other countries, or otherwise in violation of international law. I am quite prepared to concede that threats should go out of this definition. I think actual invasion is all that we need deal with in this case, and I should be prepared to drop the thought that mere threat of invasion is a crime under international law. Also it involves us in great difficulty as to what constitutes a threat-the building of strategic fortifications or strategic railroads or defenses might be construed as a threat and I am willing to drop that from the definition.
And the next, of course, is the common plan or enterprise, which is the means by which we hope to reach a great number of persons who are deserving of trial and punishment but against whom specific acts, other than joining in the plan and promoting the plan, might be very difficult to prove. And we see no acceptable substitution for that article as a means of reaching any large number of persons.
Then the last is the atrocities, persecutions, and deportations on political, racial, or religious grounds, and the reason for the latter part of that definition is, as I pointed out, that ordinarily we do not consider that the acts of a government toward its own citizens warrant our interference. We have some regrettable circumstances at times in our own country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state. Without substantially this definition, we would not think we had any part in the prosecution of those things which I agree with the Attorney General are absolutely necessary in this case.
Therefore I come back to the proposition that we don't know how we can work out this plan except around a definition that is substantially what we have proposed, although we admit it is no doubt capable of improvements at points and clarifications.
PROFESSOR TRAININ. In fact we all know what the major war criminals have to be tried for, but it has been found that to put it in words is a very difficult task indeed. Several attempts have been made. The American proposal, the French, the modified British proposal, now the Soviet proposal, and, going a little ahead, I might say we have no perfect articles yet. This article will have to be considered further, and in connection with that may I make a few remarks? The remarks made by the chairman could very well be incorporated in the article. The remarks made by Mr. Justice Jackson are more of a general character and concern questions of principle. I quite agree with Mr. Justice Jackson that this article should be the substantive law according to which the criminals should be tried. In this respect I must say that while the French formula has its advantages, it may be a bit too general in its introductory and concluding paragraphs. It is quite true that the American draft is better than the French draft in that it is more precise in stating that these are violations. But in the opinion of the Soviet Delegation the subsequent part of it could be modified by adopting some points from the French. There can be no doubt that, as stated in the French formula, violations of the customs of war, whether in regard to prisoners of war or civilians, is in fact an international crime. An action becomes an international crime even though it may be carried out in accordance with definitions of international law if it is done as part of preparation of aggression or domination over other nations. There might come a time when there will be a permanent international tribunal of the United Nations 0rganization, but this tribunal has a definite purpose in view, that is, to try criminals of the European Axis powers, and it is quite natural then that this fact should be noted in the French proposal. Although of course aggression or domination would not be permissible by any power, this Tribunal has been established for the trial of European Axis criminals. It is very pleasant to hear Mr. Justice Jackson say they have documents about personal responsibility of these various leaders for these various crimes, but it seems to me that the thought is incorporated in the French draft, that having prepared aggression and domination of other nations, these leaders are personally answerable for crimes committed in the course of this war, in the course of fulfilment of these plans. In conclusion, may I say that I made an attempt but quite agree with Mr. Justice Jackson that some more attempts have to be made and am sure the other delegations will join in this enterprise?
SIR DAVID MAXWELL FYFE. I should like, greatly daring, to try to achieve a compromise between Mr. Justice Jackson and Professor Trainin, because on a first hearing there is nothing in what Professor Trainin has said with which I disagree at all. It seems to me that this is the first point: Mr. Justice Jackson says, "I want these acts defined as crimes"; Professor Trainin has said, "It is quite true that the American draft is quite precise in that it states these are the violations." It seems to me that on that point in the introductory paragraph there is really substantial agreement except for the argument against ex Post facto legislation(1) which Professor Gros put forward.
I put this point to Professor Gros: The drafting committee's draft says that "The following acts shall be considered criminal violations of International Law . . . ." Our usual word in English statutes is "deemed", but there is no difference. It is a common word with us. Doesn't that meet Professor Gros' point that we are not declaring the law as it was but the law as we agree on it for this purpose?
PROFESSOR GROS. Yes, I agree with you, Sir David-not to state the law as we want it to be, but the exact formula. By the fact of saying those acts are deemed criminal violations we admit some of them were not, and the old construction which I attempted in my draft was to get the same result which we all want without incurring the risk of any criticism against that construction. All the acts which are enumerated in the French or Soviet drafts are not declared or deemed to be criminal violations of international law. It goes more or less on these lines: the following people will be considered as major war criminals; for that purpose they should have taken part in the preparation or conduct of such and such acts; and those plans, having been committed by army or civilian services, are criminal acts. The first people are major criminals because they have been instigators or accomplices or agents of the commission of those acts. The position seems to be better because we invite less criticism on the question of deeming any act as a criminal violation where we cannot say it is made so in any statute. We will not prevent any criticism by what has been written, but nobody can say those enumerated in b) or c) are not criminal violations of international law.
SIR DAVID MAXWELL FYFE. This seems fundamental to it. You are saying the persons who committed these acts are major criminals. Does not that imply the acts which they committed are crimes?
PROFESSOR GROS. Yes, it certainly does; but there is a difference in saying that, if they are convicted to have taken any part in any capacity in the planning of those criminal acts, they Will be dealt with as major war criminals, and declaring those acts are criminal violations of international law, which is shocking. It is a creation by four people who are just four individuals defined by those four people as criminal violations of international law. Those acts have been known for years before and have not been declared criminal violations of international law. It is ex post facto legislation.
MR. JUSTICE JACKSON. Could I ask a question? As I understand it-and I may not be correct-but as I understand it, Professor Trainin does not agree with you about that. If I understand it, Professor Trainin's book takes the position that a war of aggression or initiating war in violation of treaties is an international crime.
PROFESSOR TRAININ. Yes.
PROFESSOR GROS. But I explained to you that even Professor Trainin intended to contract the notion of international crime, and I point out the notion of international crime is different from violation of international law. It is declaring as settled something discussed for years and settling a question as if we were. a codification commission.
MR. JUSTICE JACKSON. But We are a codification commission for the purposes of this trial as I see it. That is my commission as I understand it.
PROFESSOR TRAININ,. I welcome the fact that in the French draft personal responsibility is well emphasized and that we should try to incorporate it in our draft, but I still think the question of declaration of law remains. That is, the four countries may, for the purposes of this trial, declare certain acts to be criminal; and for the purposes of this trial the laws declared by the Four Powers should be sufficient.
SIR DAVID MAXWELL FYFE. It seems to me you might get it in this way, by saying "the following acts shall be considered criminal violations" instead of "international crimes"-I am not sure whether there is a difference-"and those who are proved to have directed or participated in the preparation and conduct of any and all of them shall be liable to be tried, to be convicted, and punished by the tribunal".
PROFESSOR TRAININ. In my opinion we have made a step forward and we understand each other better in this respect. But it would be very difficult here and now to try to work out the form which would be acceptable.
SIR DAVID MAXWELL FYFE. It seems to me these, are the two principles which we have to marry: first, a statement that this is the law which the Tribunal will apply; and secondly, the personal responsibility. Now, Professor Gros, may I put this point to you? Do you join in a distinction between international crimes and criminal violations of international law, or is there a phrase which would not offend the codification point you make?
PROFESSOR GROS. That is precisely very interesting. I am perfectly sure there is no fundamental difference between those two drafts. I will repeat: In the American draft the fact that you say that launching of a war of aggression is a criminal violation of law does not give you the power to convict and condemn the people responsible for those crimes if you do not say they are responsible.
SIR DAVID MAXWELL FYFE. Then may I make this suggestion, that we try in another draft to introduce both these conceptions? Can we include the two things: what we would consider the crimes triable by the Tribunal, and who will be the persons triable by the Tribunal?
PROFESSOR TRAININ. We agree.
SIR DAVID MAXWELL FYFE. There are two points on which I could not quite see the weight Mr. Justice Jackson gave to them. The "aggression against or domination over" seems to me to go into a different field from the violation of a fishing treaty or something of that kind. It implies, even without definition, military attack and aggression or intention to become the master rather than a mere breach of agreement. The other point was that I thought that, if we limited the trial to the European Axis criminals, no one in the future could say we were discriminating in limiting this definition to Axis aggression. I would like Mr. Justice Jackson to consider that point. It seems one on which, we are governed by limitations from our governments.
MR. JUSTICE JACKSON. Well, I agree that we are dealing only with them, but I should think that our definition would sound pretty partial if we are defining an act as a crime only when it is carried out by the Axis powers. That is what I have in mind: If it is a good rule of law, it should bind us all, and if not, we should not invoke it at this trial. It sounds very partial to me, and I think we would get great criticism from it.
PROFESSOR TRAININ. We don't say that other countries would not be equally responsible for that but say that these persons would be responsible for acts committed by the European Axis powers.
SIR DAVID MAXWELL FYFE. Then we come to point c). Having made two points against Mr. Justice Jackson, I now make one in his favor. I don't like principles of international law coming in there, because I think that would leave it to the Tribunal to define principles of international law.
PROFESSOR TRAININ. Yes, that could be changed.
SIR DAVID MAXWELL FYFE. Has anyone any disagreement with the view that acts inside the Reich, in Germany, which were preparatory to the plan of aggression and domination should come into our purview? [No response.] Then we are agreed on that. Then we come to the common plan. As I understood the last paragraph of the Soviet draft, it of course is based on the last paragraph of Professor Gros' draft. The intention of that is to state that anyone who has entered into the plan will be responsible for all acts of all persons who carried it out. Now, Mr. Justice Jackson, I would like to help on that. What was your difficulty about the way it is framed? You said we must declare the principle.
MR. JUSTICE JACKSON. Yes, declare the principle that he is responsible rather than to assume that "therefore" international law does make him answerable. We would have to declare that or settle that to be the law. Otherwise the question would be raised: is he answerable because he has done these things, particularly under the objection Professor Gros has stated? If we go back to the pre Briand-Kellogg pact days, there is no doubt that for a period of international law all war making was legal. And it seems to me that that treaty and the acts which followed it did Something to the law of war, and that change is what we stand on. But we must declare it, otherwise we shall have argument on that.
SIR DAVID MAXWELL FYFE. Would you mean, Professor Gros, in that last paragraph that it would be open to the Tribunal to say whether they should be personally answerable, or should we declare?
PROFESSOR GROS. I think we should compare it to the common criminal law. If someone is sitting behind a desk and sends some people to kill others, the man sitting behind the desk is answerable for murder, at least in French law, and I presume he is under other systems. Well, the man sitting behind the desk under the common plan, if he did not do anything else, is answerable for the same reason, as instigator; if you say that he is therefore answerable as instigator or accomplice, you give satisfaction to Mr. Justice Jackson's views.
PROFESSOR TRAININ. We are approaching common ground here. We are incorporating the best features of Mr. Justice Jackson's draft and Professor Gros', and we would leave the introductory words of Mr. Justice Jackson's draft together with the part about personal responsibility. [Apparently Professor Trainin was referring to the subcommittee draft, XXV.] Section a) would probably be left as it is in the American draft and e) probably in a somewhat different draft. As for d), it would as a matter of fact come under a) of the French draft.
SIR DAVID MAXWELL FYFE. Well now, would the Conference like me to try the marriage on this line? I will prepare a redraft for presentation tomorrow at 2: 30.
MR. JUSTICE JACKSON. We have other points referred to us and will run into grave difficulty if we don't soon get our work concluded here. I wonder whether we should not make an effort to deal with some of them.
SIR DAVID MAXWELL FYFE. Have you a note of them?
MR. JUSTICE JACKSON. Professor Trainin would know whether I am correctly informed. As I understand it, there are Soviet objections to the matter contained in the language which was redrafted in article 22. There is also a difference of opinion about article 17 relating to interpreters and the power to appoint special masters.
SIR DAVID MAXWELL FYFE.Shall we take 17 [XLV]? The three points in the differences are: first, the present draft of 17 (e) and (g) second, Mr. Clyde's suggestion; third, Professor Trainin's. It occurred to me that perhaps Professor Trainin could help us. Is there any objection to the Tribunal's appointing someone to take the evidence of a witness, or is it the Professor's point that it is only for the Tribunal to decide and not to be put in the agreement?
PROFESSOR TRAININ. I have some doubts whether the Tribunal would do that whether there would be need, and if there were ' whether the Tribunal would do it. In any case I think it is a question which the Tribunal could very well decide itself, and the Soviet Delegation suggest that by saying "the functions and duties of these officers" in the rules of procedure we give the Tribunal the right to do so if it wishes.
SIR DAVID MAXWELL FYFE. What do you think, Mr. Justice Jackson?
MR. JUSTICE JACKSON. I don't think you could by so limited a phrase authorize the court to name what would in our practice answer as special masters. This is not a new problem. The Permanent Court of International Justice had to consider plans to bring about a combination of the Anglo-American and Continental law procedure in this respect, and it attempted to do so by permitting the court, or the president, when the court should not be sitting, at the request of one of the parties or on its own initiative, to take the necessary steps to provide for examination of witnesses and experts other than by the court itself. That is the rule adopted by the Court pursuant to authorization of the statute, and they have had quite elaborate dealing with this question of nominating a commission to take testimony. It seems to be a general custom in international tribunals to authorize it, and I don't see how we can ever do this job unless we can delegate some evidence taking to masters. I just think it is an unworkable thing, otherwise, and since it is agreed that the court may do it under the formula suggested by Professor Trainin, I don't see what objection there could be to expressly authorizing it so that there could be no question about it.
PROFESSOR TRAININ. Of course there is a difference between an international court and an international military tribunal which would try criminal cases. I doubt whether that would be really necessary, but in any case there is nothing to prevent the Tribunal's doing that. For instance, in the Charter of the United Nations organization certain questions are left open such as the important question of contingence of armed forces placed at its disposal. That question will be settled by separate agreement. We could leave this question for the Tribunal to decide. It would be much easier. We would lose less time that way. There isn't a single word in this charter which would prevent the Tribunal's doing that.
JUDGE FALCO. A word of subsidiary nature would perhaps prevent the court's thinking it had no power to appoint officers to take testimony.
MR. JUSTICE JACKSON. Particularly when the document is concerned with naming of secretaries, reporters, et cetera, who are merely clerical officers, it should not omit masters.
SIR DAVID MAXWELL FYFE. It means "somebody who can be sent to the bedside of a witness to take his evidence". That is exactly what it means.
JUDGE FALCO. You could perhaps find another expression of subsidiary nature.
SIR DAVID MAXWELL FYFE. Suppose we merely say that the Tribunal shall have power to appoint officers designated to carry out tasks designated by it.
MR. JUSTICE JACKSON. I hate to leave questions open in this agreement for argument among the prosecutors. It seems to me the amendment suggested here meets the situation frankly and clearly and the Tribunal would then have no trouble. Since it is conceded that the court ought to have that power, I cannot understand the objection to making it clear so that we shall not be in dispute or confusion when we come to apply it.
PROFESSOR TRAININ. The Tribunal would appoint these masters only in very special cases, and I don't think in the charter of the International Military Tribunal it is necessary to state that the Tribunal might delegate its powers to somebody. If it finds it necessary, then it would do so.
MR. JUSTICE JACKSON. There is nothing accomplished by discussing it further. It is something we disagree on, and I think a case of this size is unworkable if masters cannot be used; at least, it is unworkable in anything like our system of trial.
PROFESSOR TRAININ. We would be willing to accept your formula.
SIR DAVID MAXWELL FYFE. I should have thought that would have
covered it. Take out "secretaries and interpreters" and say "appoint officers for the carrying out of any task designated by the Tribunal."
MR. JUSTICE JACKSON. Are not we agreed on the question? Does this leave it open to argument as to whether the court would have the power?
SIR DAVID MAXWELL FYFE. I don't think there is any question that it would not. I should imagine it gives the Tribunal the power. I think Professor Trainin's point is that it is one for the Tribunal and not for the charter, and really that is the main point, that this is a Tribunal matter and not a charter-makers' matter.
PROFESSOR TRAININ. According to this new formula of yours, it would have full power then.
MR. JUSTICE JACKSON. Well, I think we can pass it. We know each other's positions about it.
SIR DAVID MAXWELL FYFE. The other point is 22. "The administrative headquarters . . . shall be located at Berlin. The first trial. . . ." Is there a Soviet objection?
PROFESSOR TRAININ. We propose it shall be said, "The Tribunal shall be located or established in Berlin." And of course it could sit in various places. Perhaps you could say, "The Tribunal shall be located in Berlin and it shall sit in such places as shall be determined by the Tribunal."
MR. JUSTICE JACKSON. What is meant by that? Just what would be in Berlin?
GENERAL NIKITCHENKO. Before the first trial takes place certain organizational work would have to be carried out in preparation for the trial. That work would be carried out in Berlin. Furthermore, the administrative headquarters would be in Berlin, the secretariat in Berlin, the judges would meet there before the first trial begins, and when the trials begin they would take place in various other cities.
SIR DAVID MAXWELL FYFE. Apart from the administrative headquarters and the secretariat-that is in the draft-there would be, I think General Nikitchenko said, a meeting of the judges and preparatory work of the prosecutors. What I suggested was that there should be a meeting of the prosecutors in Berlin-that the indictment should be handed over at Berlin. And now I think we are getting nearer agreement if we take it as concrete and specific things. Would that meet the Soviet Delegation's approval if we had these four things: administrative headquarters, secretariat, meeting of the prosecutors, and the indictment should be handed over at Berlin.
GENERAL NIKITCHENKO. The Tribunal is really made up of its members and also of various organisms such as secretariat, etcetera. If we just speak of administrative organization and secretariat, the members would think that should be in Berlin before the first trial began, that is, to get ready for that trial. That does not in any way mean that the members of the Tribunal or the prosecutors would have to live in Berlin. They would decide to meet, say once a week or once every fortnight or whatever they thought fit-to meet there, and settle certain general questions before the trial begins-to have a place where they could meet.
MR. JUSTICE JACKSON. Our people on the Control Council have told me that they thought it much better if the proceedings of this court were held some place other than where the Four Power military government was trying to function. And that is why they suggested Nurnberg, that Berlin already is having great difficulty to find adequate housing and other facilities. It has been badly destroyed, and the situation there is such that neither transportation nor communication nor housing would be easy to provide for us in addition to the requirements made by government. So far as I am informed, there simply are not facilities at Berlin to carry this on.
GENERAL NIKITCHENKO. That has nothing to do with the trials. They would not take place in Berlin probably. All that this first sentence provides for is a place where the members can meet before the trial begins to look at the indictment and settle any other questions that may be brought about. As we learned in an international court which has its address in The Hague, the members would not remain there permanently, and this, of course, would not in any way prevent the Tribunal from having trials not in Berlin. As a matter of fact, they probably would take place in other places but should have a residence where they could meet.
MR. JUSTICE JACKSON. But why should we go to Berlin where our records wouldn't be-we have tons of records-where the prisoners wouldn't be, and meet there when it seems to me that we should meet where the prisoners and the records and the evidence are.
PROFESSOR TRAININ. The members of the Tribunal and Chief Prosecutors may decide somewhere else but every institution of that sort should have an address, or permanent residence, that is.
SIR DAVID MAXWELL FYFE. That is what I thought we had covered by the "administrative headquarters".
GENERAL NIKITCHENKO. These words are not quite clear. What does it actually mean?
SIR DAVID MAXWELL FYFE. It would be the administrative headquarters which would be the permanent residence and personal address. What we call a registered office-the permanent residence. It certainly would cover the seat of the Tribunal and the personal address.
GENERAL NIKITCHENKO. Yes, that is what we contemplate. This new firm of ours-the Tribunal-would have to have an address and that should be Berlin. Do not say "administrative headquarters", which in Russian at least is not clear.
MIR. JUSTICE JACKSON. That is what I want to be perfectly clear about, what is being asked? In the first place we have had, I think, different ideas about the system of trials-what we are going to do. Now the British have filed a draft list naming nine and two more for consideration as defendants. Our plan has been, as I have said here, to include key men in a single trial and to reach others through that trial of organizations so that we would not have to hold more than one trial or at least not more than a few trials. We think on studying our list of prisoners that we would reach, through the trial of organizations, almost all of these people by our methods. Now I gather there is a different idea in the Soviet Delegation's mind, and I would like to inquire how many prisoners in addition to ours you want tried and what kind of prisoners they are. What is their rank, what is their position, what is the problem of reaching your prisoners, as you see it?
GENERAL NIKITCHENKO. We have no lists with us of the prisoners held in custody by the Soviet authorities; so we are really not in a position to answer that question, but in any case we do not contemplate that this Tribunal should deal with a great many prisoners. Prisoners who would come under the jurisdiction of this Tribunal would be the major criminals, that is, mainstays of the Nazi government, leaders of the Nazi Party, chiefs of the Gestapo and S.S., etcetera. Of course apparently the United States and Great Britain, and probably France, have their own lists of criminals, and at the present time we could not precisely answer that question, but we do not contemplate having too many of these people-that would be only the major leaders.
SIR DAVID MAXWELL FYFE. I think that view is universal, what we all have in mind. That would be exactly my answer. I would include high-ranking generals that we can prove have taken part in any of the crimes-High Command, not chiefs in general.
GENERAL NIKITCHENKO. And perhaps certain major organizers of war, such as Schacht, Krupp, or persons like that.
SIR DAVID MAXWELL FYFE. My mind is quite open and prepared to take any case put up by the prosecutors. I don't think that there is any disagreement with us, Mr. Justice Jackson.
MR. JUSTICE JACKSON. Well, I think we agree on certain things, but I have got to get our prisoners some place where we can go to work on their cases, and the only place I can find to do it is in Nurnberg. And you see I cannot find out, in addition to our list and yours, how many are, involved. The principal man that is missing from our list is Martin Bormann, and apart from him there isn't much that we have not got in prison. I have been told that the Russians have Bormann, and I am wondering if that is true-if they can bring Bormann to trial along with the rest.
GENERAL NIKITCHENKO. Unfortunately we have no information at the present time about Bormann. The Soviet idea was that, immediately after the agreement is concluded, a person would be appointed who would deal with these matters. Of course the Soviet authorities are carrying out investigations on their part, but the Soviet idea was that that would be taken up immediately after we have the charter and agreement ready and signed.
SIR DAVID MAXWELL FYFE. I was wondering whether something of this sort might do. Then we leave the place to be fixed by the prosecutors if it is to be elsewhere than Berlin.
MR. JUSTICE JACKSON. I would not agree to that, Mr. Attorney-General. We would have to meet in Berlin unless there were a majority to meet somewhere else. I think we have to fix the meeting place. There comes in there the tie-vote situation. I think we would have to fix it. I don't want to be stubborn about it, but I have to tell the Army where to get ready for these trials. I can't leave it for prosecutors, two of whom are not yet appointed.
SIR DAVID MAXWELL FYFE. No, it is much better to have the thing out now.
MR. JUSTICE JACKSON. I think it is something to be settled in the agreement, because I have got to get these prisoners there. I am really getting very discouraged about this, I must say. And it seems to me that there are one or two or three things to do. I am getting very discouraged about the possibility of conducting an international trial with the different viewpoints. It isn't the fault of anybody, but we have very different viewpoints. I think the United States might well withdraw from this matter and turn our prisoners over to the European powers to try, or else agree on separate trials, or something of that sort. It seems to me our difference in viewpoint is too great to work without so much difficulty and delay that it is going to be impractical to try these people within the length of time I can commit the United States to this venture. The matter has taken a different shape than when I came here authorized to sign on behalf of my Government, and it looks quite discouraging, I must say.
SIR DAVID MAXWELL FYFE. I am sorry. I am a born optimist myself and also a working politician. This is the first time for the United Nations to get to work on a concrete task, and there are bound to be difficulties, but I have been struck this afternoon, as on Friday when we dealt with article 15, with the realization that, when we got down to it, we found agreement. I should be displeased, and my Government would be extremely disappointed if we could not find means of working this out as an international body. Apart from our own people or the peoples of Europe, our work is to see these top-notch Nazis tried, condemned, and many of them executed. And I should be very sorry if we fell down when we have drafted out so much agreement over, to my mind, matters of detail. As I see this problem as we are dealing with it at the moment, we give the Tribunal an address of residence and a secretariat, the judges meet or the prosecutors meet, and then as soon as possible the men go to the place of their own decision. I don't really think there is any point of difference between us yet.
GENERAL NIKITCHENKO. Not a single government would have sent its representative here unless it wanted united action on this matter, and the Soviet Government on its part wanted and does want united action, and that is why under the Moscow and Crimea declarations they have done so. Our committee here has done a good deal of valuable work, and, of course, we would not be happy about the fact we have met with difficulties. There have been moments when the Soviet Delegation was rather discouraged with the progress of the work and thought perhaps some details could impair our reaching an agreement. But as a result of good will and good intentions on all sides we have been able out of 30 articles of the charter and of the agreement to come to agreement on 27 articles of the charter and the whole agreement. Therefore all we have left is three articles, and as a matter of fact in principle we agreed this afternoon on what should be included in the sixth article.
In regard to the article about special masters, the Soviet Delegation thinks that on that point agreement which would satisfy everybody could be reached. So apparently all that is left now is to name or not to name the permanent seat of the Tribunal and of the Chief Prosecutors. This would have extremely great importance if the permanent seat of the Tribunal would necessarily mean that all the trials would be held there. Mr. Justice Jackson says that the most convenient place for the American prisoners would be Nurnberg, and very probably the first trial would in fact take place in Nurnberg, but as there are prisoners in the hands of the British, French, et cetera, investigation of charges against those persons would probably go oil at the same time in preparation for subsequent trials. I do not say that there would be many trials, perhaps three or four, probably not more. In any case there should be a place where members of the Tribunal could meet to discuss certain questions before the first trial or in between the trials. For separate meetings they can choose any place they like. The trials would also take place not in Berlin but in other places. But the center where they should meet if they wanted to should be the permanent seat.
JUDGE FALCO. The French Delegation thinks it would be very disappointed if we do not manage to make an international agreement and think we nearly reached doing it. As the Russian delegate said, on all questions and exceptions we have had of any consequence there are only perhaps one or two questions we are not quite agreed on but nearly agreed on all but the last. As far as lam concerned, after what I saw at Nurnberg, it is certainly an excellent place to hold the trials and have all the organization of the court and prosecution and I think it would be a great mistake to have the headquarters and secretariat at another place where the trials are not going on. There we saw all is very well for the trials, but, if the Russian Delegation makes this a question of principle and tells us that question is only settled if the headquarters of the secretariat be at Berlin, I would consider it.
MR. JUSTICE JACKSON. Well, the difficulty with the proposition here is that, if the United States is going to take responsibility as host for these trials at Nurnberg, we must put a staff to work getting physical plans ready, and the same is true any place else. The Army has told me again and again, "Don't come at us without consultation months ahead of time because it takes time." Now we could not even find out under the proposal now before us where the trial could be held until the other prosecutors are appointed. It would be the middle of September before we could know whether we could even go ahead, and I cannot wait that long. I shall have to say to my Government that they will have to put someone else to this task because I must be back to the Supreme Court. That is not your trouble, of course, but it is a very practical one for me. I think this agreement should fix the place for the first trial so that we can be at work at once getting it ready. I have tried to point out the facilities at Nurnberg. I am willing to give a list of my prisoners and lay all my cards on the table, but if you let this thing drag we will be running into different currents of public sentiment and people will be disgusted with too much delay. I don't see how we can, as lawyers responsible to our people, permit it. I could not accept the draft that is suggested by the chairman much as I would like to be agreeable to a man who is so agreeable to us but I regard it as an unworkable thing to leave it so that there could be no meeting place fixed until some remote time when all are appointed.
SIR DAVID MAXWELL FYFE. I don't think I made it clear that draft is only of the first sentence. I hoped that we would go on to deal with the question of the first trial after that. That was only taking the place of the words "administrative headquarters of the Tribunal and its secretariat shall be located at Berlin", which was the agreed draft. I was elaborating on that to meet the Soviet point on the address and the meeting unless otherwise agreed. That is the first sentence only; then I thought we should approach the question of the first trial.
GENERAL NIKITCHENKO. I have already stated that we took upon ourselves to recommend to our Government Nurnberg as the place of the first trial. So far we have no answer to that communication and as soon as we do, and we hope that it will be positive, we will be able to state in the charter that the first trial would take place in Nurnberg. But at the present time it is a question as to whether we have a permanent seat of the Tribunal.
SIR DAVID MAXWELL FYFE. Is there a hope of getting an answer on Nurnberg in time to incorporate it this week in the charter?
GENERAL NIKITCHENKO. We hope to have the answer in one or two days.
SIR DAVID MAXWELL FYFE. Then I think that is a most helpful hope. I think the method of getting an agreement is to decide to 'put in a slightly longer form what should be done at Berlin and then hope to put in the first trial at Nurnberg. Then it would be for the Tribunal and Chief Prosecutors to decide what meetings they would have at Berlin and at Nurnberg, and, if the prisoners were taken to Nurnberg, it would be a matter of convenience. The Chief Prosecutors would all want to go and examine them there.
PROFESSOR TRAININ. We agree.
MR. JUSTICE JACKSON. Let me suggest what would seem to me possible. I don't know just what is meant by administrative headquarters myself, but the address, secretariat, and administrative headquarters, and the permanent record of proceedings, wherever held, could be in Berlin. The first meeting of the judges and Chief Prosecutors could be held at the headquarters. The first trial shall both be prepared and held at Nurnberg, and any subsequent trials shall be held at such places as the Tribunal shall decide.
SIR DAVID MAXWELL FYFE. As Mr. Justice Jackson suggests, as well as the Tribunal you have the first meeting of the prosecutors at Berlin.
MR. JUSTICE JACKSON. After the word "Berlin" I would insert "and records of the proceedings wherever held shall he permanently lodged there." Then before the word "meeting" I would insert the word "first" so that it would read "the first meeting of the judges and of the Chief Prosecutors shall be held at the headquarters which shall be fixed by the Control Council". That is, the location in Berlin shall be determined by the Control Council. "The first trial shall be prepared and held at Nurnberg and any subsequent trials shall be held at such places as the Tribunal may decide." Then I could get to work at once and get ready. Also we can have the Control Council pick us some headquarters which would have to be, I assume, in the neutral zone in Berlin. Perhaps if we consider that at our next meeting, we can agree.
The Conference adjourned.
(1) A law passed after the occurrence of a fact or commission of an act, which alters the legal consequences of the fact or deed. (Footnote added by the Avalon Project). Back
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