International Conference on Military Trials : London, 1945
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THE decision of the Department of State to publish the record of negotiations resulting in the London agreement of August 8, 1945, for the trial of major European war criminals and the accompanying charter of the International Military Tribunal makes appropriate some introductory information to help the reader integrate the separate documents and discussions into a general plan.

The United States, at the close of World War II, found itself in possession of high-ranking prisoners. Many of them had been publicly branded with personal blame for precipitating the war and for incitement or perpetration of acts of barbarism in connection with its preparation and conduct. This country, through President Franklin D. Roosevelt, had joined in rather definite commitments to bring such men to justice, but no treaty, precedent, or custom determined by what method justice should be done. The latter problem seems to have been given little consideration by any of the Allied governments until discussion of possible procedures was initiated early in 1945 at the Yalta Conference. Thereafter, as the documents set forth herein show, the United States proposal was expanded and refined into a draft of a proposed agreement which the United States submitted to the Foreign Ministers of France, Great Britain, and the Union of Soviet Socialist Republics at the San Francisco Conference. This American draft was again revised and on June 14 was resubmitted to the other governments. On June 26 representatives of the four nations met in London to chart a common course of action.

The four nations whose delegates sat down at London to reconcile their conflicting views represented the maximum divergence in legal concepts and traditions likely to be found among occidental nations. Great Britain and the United States, of course, are known as common law countries and, with some variations between their procedures, they together exemplify the system of law peculiar to English-speaking peoples. On the other hand, France and the Soviet Union both use variations of what generally may be called the Continental system. But between French and Soviet practice there are significant variations, occasioned perhaps by the different derivations of the two systems, the French having its roots in Roman law of the Western Empire and the Russian having been influenced by Roman ideas chiefly from the Eastern Empire by way of Byzantium. It was to be expected that differences in origin, tradition, and philosophy among these legal systems would beget different approaches to the novel task of dealing with war criminals through the judicial process.

A fundamental cleavage, which persisted throughout the negotiations, was caused by the difference between the Soviet practice, under which a judicial inquiry is carried on chiefly by the court and not by the parties, and the Anglo-American theory of a criminal trial, which the Soviet jurist rejects and stigmatizes as the "contest theory". The Soviets rely on the diligence of the tribunal rather than on the zeal and self-interest of adversaries to develop the facts. Another fundamental opposition concerns the function of a judiciary. The Soviet views a court as "one of the organs of government power, a weapon in the hands of the ruling class for the purpose of safeguarding its interests". It is not strange that those trained in that view should find it difficult to accept or to understand the Anglo-American idea of a court as an independent agency responsible only before the law. It will not be difficult to trace in the deliberations of the Conference the influence of these antagonistic concepts. While the Soviet authorities accept the reality and binding force of international law in general, they do not submit themselves to the general mass of customary law deduced from the practice of western states. With dissimilar backgrounds in both penal law and international law it is less surprising that clashes developed at the Conference than that they could be reconciled.

That these discords were stubborn and deep, the minutes of the conferences adequately disclose. They do not and cannot disclose all the efforts at conciliation, for there were many personal conversations between members of differing delegations, outside the formal meetings, which aimed to gain knowledge of each other's viewpoints and clear up misunderstandings. Since the press was not admitted to the conferences there was no public exploitation of our divergencies and no temptation to differ merely for reasons of home politics; indeed, in no delegation was there any disposition to do so.

Much of these conference minutes will impress the reader as embodying vain repetition. And much of the exposition of rival legal systems is too cryptic and general to be satisfying to the student of comparative law. How much of the obvious difficulty in reaching a real meeting of minds was due to the barrier of language and how much to underlying differences in juristic principles and concepts was not always easy to estimate. But when difference was evident, from whatever source, we insisted with tedious perseverance that it be reconciled as far as possible in the closed conferences and not be glossed over only to flare up again in the public trials.

On some points, however, no agreement was reached. An example is the oft-repeated American proposal to include in the charter a definition of "aggression", which was one of the most controversial crimes dealt with. This omission may well be regarded as a defect, at least in theory, in the charter. In practice it had no harmful consequences, largely because the evidence of Hitler's own conferences with his High Command showed the attacks which began with Poland to be so blatantly aggressive by any permissible definition that almost no denial of the aggressive character of the war was heard at the trial, and some of the defendants even characterized it as such.

Much of the Conference was given to discussion of the American proposal for a procedure whereby the Tribunal in the main trial would declare certain Nazi organizations to be criminal as a basis for reaching the members in later trials of individuals at which the Tribunal's finding as to the criminal character of the organizations would be conclusive of that question. This was one of the essential features of the Yalta proposal put forth by Secretary of State Edward R. Stettinius, Jr., Secretary of War Henry L. Stimson, and Attorney General Francis J. Biddle. No other plan had been devised for reaching the multitudes who, as members of such organizations as the Gestapo and SS, promoted and executed the Nazi criminal program. At the time of the London Conference it was not known what, if any, steps the Allied Control Council would take to deal with these organizations. Therefore, this plan seemed to have an importance which somewhat diminished as the denazification program unfolded after the Nuernberg trial began.

Another point on which there was a significant difference of viewpoint concerned the principles of conspiracy as developed in Anglo-American law, which are not fully followed nor always well regarded by Continental jurists. Continental law recognizes the criminality of aiding and abetting but not all the aspects of the crime of conspiracy as we know it. But the French and Soviet Delegations agreed to its inclusion as appropriate to the kind of offenses the charter was designed to deal with. However, the language which expressed this agreement seems not to have conveyed to the minds of the judges the intention clearly expressed by the framers of the charter in conference, for, while the legal concept of conspiracy was accepted by the Tribunal, it was given a very limited construction in the judgment.

The most serious disagreement, and one on which the United States declined to recede from its position even if it meant the failure of the Conference, concerned the definition of crimes. The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct. At the final meeting the Soviet qualifications were dropped and agreement was reached on a generic definition acceptable to all.

The agreement and charter of London, as finally signed by representatives of the four conferring powers on August 8,1945, has been formally adhered to by 19 additional nations: Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, and Yugoslavia. The principles of the charter thus constitute the solemn judgment of 23 governments representing some 900 million people. In addition, the principles of the Nuernberg trial have been given general approval by the General Assembly of the United Nations.

The principles of the charter, no less than its wide acceptance, establish its significance as a step in the evolution of a law-governed society of nations. The charter is something of a landmark, both as a substantive code defining crimes against the international community and also as an instrument establishing a procedure for prosecution and trial of such crimes before an international court. It carries the conception of crime against the society of nations far beyond its former state and to a point which probably will not be exceeded, either through revision in principle or through restatement, in the foreseeable future. There is debate as to whether its provisions introduce innovations or whether they merely make explicit and unambiguous what was previously implicit in international law. But whether the London Conference merely codified existing but inchoate principles of law, or whether it originated new doctrine, the charter, followed by the international trial, conviction, and punishment of the German leaders at Nuernberg, marks a transition in international law which calls for a full exposition of the negotiations which brought it forth.

Three broad categories of acts are defined as criminal in this code. The first, crimes against peace, consists of planning, preparing, initiating, or waging a war of aggression or a war in violation of international undertakings, or participating in a common plan or conspiracy to accomplish any of the foregoing acts. The second category, war crimes, embraces violations of the laws and customs of land and sea warfare, including plunder, wanton destruction, and all forms of mistreatment of inhabitants of occupied territories and prisoners of war. The third class of offenses, crimes against humanity, consists of murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with crimes against peace or war crimes, whether or not in violation of domestic law of the country where perpetrated. The most significant results of applying these definitions as the law of nations are to outlaw wars of aggression and to lift to the level of an international offense the persecution of minorities for the purpose of clearing the road to war.

The charter also enacts the principle that individuals rather than states are responsible for criminal violations of international law and applies to such lawbreakers the principle of conspiracy by which one who joins in a common plan to commit crime becomes responsible for the acts of any other conspirator in executing the plan. In prohibiting the plea of "acts of state" as freeing defendants from legal responsibility, the charter refuses to recognize the immunity once enjoyed by criminal statesmanship. Finally, the charter provides that orders of a superior authority shall not free a defendant from responsibility, though they may be considered in mitigation of punishment if justice so requires. The codification of these principles and their adoption by so many nations would seem to close the chapter on that era when all wars were regarded as legally permissible even though morally reprehensible. It ushers international law into a new era where it is in accord with the common sense of mankind that a war of deliberate and unprovoked attack deserves universal condemnation and its authors condign penalties. It is quite evident that the law of the charter pierces national sovereignty and presupposes that statesmen of the several states have a responsibility for international peace and order, as well as responsibilities to their own states. It would be idle to deny that this concept carries far-reaching implications.

Nor will the ultimate influence of this doctrine of international responsibility depend on its merits alone. If the nations which command the great physical forces of the world want the society of nations to be governed by law, these principles may contribute to that end. If those who have the power of decision revert to the concept of unlimited and irresponsible sovereignty, neither this nor any charter will save the world from international lawlessness.

But if the ultimate influence of the charter's substantive law provisions will have to await the verdict of time, the significance of the charter as a procedural document has already been proved. The international trial procedure established in the charter was subjected to a practical test at Nuernberg. It won vindication when a long trial of complex issues, carried on jointly by lawyers of five nations, proceeded with a surprising absence of friction and controversy over procedure.

The significance of the charter's procedural provisions is emphasized by the fact that they represent the first tried and successful effort by lawyers from nations having profoundly different legal systems, philosophies, and traditions to amalgamate their ideas of fair procedure so as to permit a joint inquiry of judicial character into criminal charges. Legal systems exhibit disparities in their methods of procedure greater than in the principles of law they serve. Members of the legal profession acquire a rather emotional attachment to forms and customs to which they are accustomed and frequently entertain a passionate conviction that no unfamiliar procedure can be morally right. It has often been thought that because of these deep-seated differences of procedure the use of the judicial process by and among the community of nations is inherently limited. That these differences present grave difficulties in so adapting the judicial process, the minutes of these conferences amply attest. That the conference was able to reconcile these divergencies and prescribe on paper a procedure acceptable to all four nations was gratifying evidence that our fundamental concepts of fair procedure are not in hopeless conflict. That these paper provisions could be made to work in actual practice demonstrated that we had not achieved theoretical reconciliations in disregard of practical considerations. Hope for an effective world government, even of limited powers, has largely been predicated on internationalizing the processes of legislation and administration. It will also require equivalent internationalizing of the judicial process. The success of this multipartite effort in using trial procedures to find facts and to apply law offers grounds for the belief that the nations can employ the processes of judicial hearing more widely than has been done in the past when there is a will to do so.

It was recognized at the outset as fundamental that, what ever other criticisms might be made of any international trial, it would be fatal to its acceptance if the defendants were not provided with a full and fair opportunity to defend themselves on every charge. The only problem was that a procedure that is acceptable as a fair trial in countries accustomed to the Continental system of law may not be regarded as a fair trial in common-law countries. What is even harder for Americans to recognize is that trials which we regard as fair and just may be regarded in Continental countries as not only inadequate to protect society but also as inadequate to protect the accused individual. However, features of both systems were amalgamated to safeguard both the rights of the defendants and the interests of society.

While it obviously was indispensable to provide for an expeditious hearing of the issues, for prevention of all attempts at unreasonable delay and for elimination of every kind of irrelevancy, these necessary measures were balanced by other provisions which assured to the defendants the fundamentals of procedural "due process of law." Although this famous phrase of the American Constitution bears an occasionally unfamiliar implication abroad, the Continental countries joined us in enacting its essence-guaranties securing the defendants every reasonable opportunity to make a full and free defense. Thus the charter gives the defendant the right to counsel, to present evidence, and to cross-examine prosecution witnesses. It requires the indictment to include full particulars specifying the charges in detail-more fully than in our own practice. It gives the defendant the right to make any explanation relevant to the charge against him and to have all proceedings conducted in or translated into his own language.

At least one of the procedural divergencies among the conferring nations worked to the advantage of defendants. The Anglo-American system gives a defendant the right, which the Continental system usually does not grant, to give evidence in his own behalf under oath. However, Continental procedure allows a defendant the right, not accorded him under our practice, to make a final unsworn statement to the tribunal at the conclusion of all testimony and after summation by lawyers for both sides without subjecting himself to cross-examination. The charter resolved these differences by giving defendants both privileges, permitting them not only to testify in their own defense but also to make the final statement to the court.

Another feature of the charter is its simplification of evidentiary requirements. The peculiar and technical rules of evidence developed under the common-law system of jury trials to prevent the jury from being influenced by improper evidence constitute a complex and artificial science to the minds of Continental lawyers, whose trials usually are conducted before judges and do not accord the jury the high place it occupies in our system. We saw no occasion at the London Conference to insist upon jury rules for a trial where no jury would be used. Accordingly, the charter adopted the principle that the Tribunal should admit any evidence which it deemed to have probative value and should not be bound by technical rules of evidence. While this left a large and somewhat unpredictable discretion to the Tribunal, it enabled both prosecution and defense to select their evidence on the basis of what it was worth as proof rather than whether it complied with some technical requirement. The record of the trial would seem to vindicate the use of this principle.

Acknowledgment is due of the indispensable contributions made by conferees representing other nations to the difficult task of reconciling conflicts in legal concepts and procedures. Judge Robert Falco of the Cour de Cassation, the highest court of France, and Professor Andre Gros, a distinguished scholar of French jurisprudence and international law, were eminently qualified to expound their own practice. The Soviet Union's representatives, General I. T. Nikitchenko, vice president of the Soviet Supreme Court and presiding officer of its criminal division, and Professor A. N. Trainin, author and teacher in fields of Soviet and international law, were authoritative exponents of Soviet legal practice and philosophy. At the beginning and during the greater part of the Conference Great Britain's chief representative, aided by an able staff, was the Attorney-General, Sir David Maxwell Fyfe. After the Churchill government was superseded, the final work of the Conference was conducted for the United Kingdom by the new Lord Chancellor, William Viscount Jowitt of Stevenage. The success of the negotiations was due no less to the patience and good will of these eminent lawyers than to their learning and vision.

Acknowledgment also is due to the contributions of members of the American staff, in addition to those whose names appear in the proceedings, who are too numerous to be here delivered from willing anonymity but who gave not only wise counsel but tireless support, whether with research, drafting, typing, or any of the other drudgery that sustains an effort of this kind.

The conference deliberations were stenographically recorded by Mrs. Elsie L. Douglas, whose minutes and notes constitute the core of this record; and she, together with Miss Alma Soller, has borne the chief burden of preparing these records for publication.

These negotiations are not offered for consideration in any hope that this or any other codification of international criminal law will be enough to prevent future aggressions when the stakes are so high that men will risk any sanction if they think their armadas will prevail. But all who have shared in this work have been united and inspired in the belief that at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right. And we are encouraged to believe that the achievement of this accord with representatives of the legal systems of continental Europe, from whose legal thought our profession has remained insulated, both because of the barriers of language and because of our nonparticipation in some of the international endeavors of the century, will do something toward overcoming our jurisprudential isolationism.


December 29, 1947

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

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