dtufail/nuremberg-trials-corpus huggingface dataset:
the word "planning" were introduced in the suggested adaptation. I should be quite prepared to agree that to enter into a plan or conspiracy to dominate be made a substantive offense in order to reach an agreement, if the other delegations could consider that point. Then I should have thought that the major difficulty of Mr. Justice Jackson was met. I wasn't sure, Professor Gros, whether you had any objection to that. PROFESSOR GROS. Not at all. We hope we show the right consideration, because finally we have accepted quite a lot of things and still are ready to accept quite a lot more, and the other would mean many modifications. We have criticized the American draft on two things: one, it covers all violations-it is an article which gives jurisdiction for all war criminals, not only the major; and two, in the last paragraph it wants to dispose of the whole question of reprisals-the question of reprisals in international law is one existing for the last 500 years and you cannot wipe it out in just one word. That is the real reason we cannot go on on the American draft. We could agree to improving, according to the desires of Mr. Justice Jackson, the Soviet draft and also would accept any suggestion because we think the meaning of the common plan is already in there. If we break the Conference and show the minutes of the conferences, they will not explain why it was broken because there is no fundamental difference between those two plans. And I do not know how we will reply to questions as to why we broke up. All questions are dealt with in the last Soviet draft. I should think that in consequence our differences are more or less this: the Americans want to win the trial on the ground that the Nazi war was illegal, and the French people and other people of the occupied countries just want to show that the Nazis were bandits. It is not very difficult to show. There has been an organized banditry in Europe for many years. The result was crimes, and we want to show that those crimes have been executed by a common plan. The result of that will be to show that the Nazis have launched and conducted an illegal war; so it is really a difference of wording, but the results will be shown to the world as you want to show them. I would
crimes, and we want to show that those crimes have been executed by a common plan. The result of that will be to show that the Nazis have launched and conducted an illegal war; so it is really a difference of wording, but the results will be shown to the world as you want to show them. I would like to make an appeal to the spirit of conciliation of Mr. Justice Jackson and ask him to consider our intentions and feelings when we are going to speak for the people of occupied countries and show that those Germans have acted as bandits and there has been a conspiracy; so we are truly at a point where we do not know what to do, but we feel there is no fundamental difference in our views. SIR DAVID MAXWELL FYFE. Would General Nikitchenko object to the adding of a paragraph explicitly mentioning the common plan? GENERAL NIKITCHENKO. First of all I would like to repeat that this actually is not the Soviet proposal the proposal which Professor Gros has supported. Just as the French Delegation would probably have a very different article 6, so the Soviet Delegation would have a different article 6 for its internal consumption. There are quite a few things here with which we might not have agreed, but, taking into consideration the fact we must try to reach agreement, we are of the opinion that that draft would be most suitable for a general agreement. I quite agree with Professor Gros' suggestion that at the beginning we should say, "shall be deemed crimes coming under jurisdiction of the Tribunal". That formula would be more precise, and it seems to the Soviet Delegation that, if we took this draft as a basis, that would be the shortest way to the agreement. We could put in alterations which would Dot in principle alter the spirit of it. As for the question about inclusion of the common plan idea, that would depend on its drafting; that is an idea that might very well be acceptable, but, if it were prepared in an unacceptable form, that would make a lot of difference. Just as Professor Gros says, I think that it is not our task to try to draft a code which could be applied at all times and under all circumstances. I wish to emphasize again that we must act under the Moscow declaration, and, although in that declaration there is nothing
a lot of difference. Just as Professor Gros says, I think that it is not our task to try to draft a code which could be applied at all times and under all circumstances. I wish to emphasize again that we must act under the Moscow declaration, and, although in that declaration there is nothing establishing a court, it does speak of the crimes for which these people must be punished. The last part of Mr. Justice Jackson's proposal about exercise of right of legitimate defense would invade a field which is outside our competence really. In any case the defendants might very well refer to this very paragraph and say they had been acting in legitimate self-defense; that is, the arguments which this paragraph is trying to avoid are not in fact avoided, because, if they do crop up, they will crop up in any case as legitimate defense. When I was speaking about our going backward, I really meant hot in our whole work, which was profitable but for the last few days. I have no minutes of our proceedings, and I may very well be mistaken, but I thought that, when the French proposal was submitted, there was more or less general agreement including Mr. Justice Jackson as to its forming a basis for discussion. And since then-but really not since San Francisco, Mr. Justice Jackson has said-we have made little progress. The draft that was submitted in San Francisco was not really discussed here although the Soviet Government bad in principle agreed to it. I wish to point out in my comments on the draft agreement prepared in San Francisco that the Soviet Government had emphatically objected to the trial of organizations. Since then in respect to the American point of view we have found it possible to meet that point of view and to say that during the trial of individual persons organizations of persons may be declared criminal. That is why the Soviet Delegation since San Francisco has been trying to meet the views of other delegations and to reach common ground. JUDGE FALCO. I ask Mr. Justice Jackson to reconsider and tell what he would add, or to what he objects, in the Soviet draft and what would be necessary to join their paragraph with his point of view. SIR DAVID MAXWELL FYFE. Mr. Justice Jackson, it seems to me that, if we could find words as to the
ground. JUDGE FALCO. I ask Mr. Justice Jackson to reconsider and tell what he would add, or to what he objects, in the Soviet draft and what would be necessary to join their paragraph with his point of view. SIR DAVID MAXWELL FYFE. Mr. Justice Jackson, it seems to me that, if we could find words as to the introduction or the clarification of the conspiracy or common plan, the other delegations would be prepared to meet on that. It seems to me that the much greater difficulty is on the question of defining aggression. I think that is fair, isn't it, Professor Gros? That was why I suggested such words as "violations of treaties, agreements, and assurances. MR. JUSTICE JACKSON. Well, first of all, I would, of course, agree to consider the French draft. I would be willing to consider anybody's draft of any article, but I don't think that to agree to consider a draft binds me to accept it. Always I supposed I had made clear that I had reserved my position. I think there is a very basic difference between us. I think Professor Gros put his finger on it when he said the American Delegation wants to show that war is illegal, while they only want to show that the Nazis were bandits. Without boring you too much, I will tell you why we are interested in that and explain what our basic difference is here, as I see it. It is probably very difficult for those of you who have lived under the immediate attack of the Nazis to appreciate the different public psychology that those of us who were in the American Government dealt with. Our American population is at least 3,000 miles from the scene. Germany did not attack or invade the United States in violation of any treaty with us. The thing that led us to take sides in this war was that we regarded Germany's resort to war as illegal from its outset, as an illegitimate attack on the international peace and order. And throughout the efforts to extend aid to the peoples that were under attack, the justification was made by the Secretary of State, by the Secretary of War, Mr. Stimson, by myself as Attorney General, that this war was illegal from the outset and hence we were not doing an illegal thing in extending aid to peoples who were unjustly and unlawfully attacked. Now we believed, and
justification was made by the Secretary of State, by the Secretary of War, Mr. Stimson, by myself as Attorney General, that this war was illegal from the outset and hence we were not doing an illegal thing in extending aid to peoples who were unjustly and unlawfully attacked. Now we believed, and the American people believed, just the doctrine that I have put into this definition. No one excuses Germany for launching a war of aggression because she had grievances, for we do not intend entering into a trial of whether she had grievances. If she bad real grievances, an attack on the peace of the world was not her remedy. Now we come to the end and have crushed her aggression, and we do want to show that this war was an illegal plan of aggression. We want this group of nations to stand up and say, as we have said to our people, as President Roosevelt said to the people, as members of the Cabinet said to the people, that launching a war of aggression is a crime and that no political or economic situation can justify it. If that is wrong, then we have been wrong in a good many things in the policy of the United States which helped the countries under attack before we entered the war. Now it may be that we were mistaken in our attitude and philosophy and that what Germany has done is legal and right, but I am not here to confess the error nor to confess that the United States was wrong, in regarding this as an illegal war from the beginning and in believing that the great crime of crimes of our century was the launching of a needless war in Europe. Now I realize fully that the interests of those who were under immediate physical attack take a different angle. That the war was an attack on the international order does not have so much significance to them, because it affected them in more direct and immediate respects. But it was the attack on world peace that involved us and justified, we thought, the course we took. When it came to dealing with war criminals, the position of the President was clearly stated to the American people-the launching of a war of aggression was a crime. That is one of the things we want to prove, because we want the Germans and anybody else
and justified, we thought, the course we took. When it came to dealing with war criminals, the position of the President was clearly stated to the American people-the launching of a war of aggression was a crime. That is one of the things we want to prove, because we want the Germans and anybody else to know that as far as the United States is concerned it regards any attack on the peace of the world as an international crime. It may become necessary to abandon the effort to try these people on that basis, but there are some things worse for me than failing to reach in agreement, and one of them is reaching an agreement which would stultify the position which the United States has taken throughout. I can realize that our position may seem academic and theoretical to those who have been subject to more direct attack, but it was not too theoretical a basis for our help in action. I do not consider that I would be authorized to abandon the American position, and, if I were so authorized and it were left to my discretion, I would not be willing to do it. I think there are four possible courses here: one is to set up the international Four Power trials we have been considering; another is to refer the war-criminal matter back to the Potsdam Conference for a political decision as to what they will do with these prisoners; another is for the United States, whose interests and views in the matter do not seem to be in accordance with those of the European Allies, to turn over its prisoners to the three Allies and permit their trial or disposition by such method as you three agree upon; and the fourth course would be for each of us, by separate trials, to proceed to try those we have as criminals. I am willing to recommend sending the question to Potsdam for a political decision if we cannot a SIR DAVID MAXWELL FYFE. I do not think anyone suggests that aggression does not make a crime. "The following acts shall be deemed crimes": number one, aggression. MR. JUSTICE JACKSON. Well, aggression limited to violation of specific treaties, not the general treaty to outlaw war of aggression. Now, Germany did not attack us in violation of treaties, or otherwise. PROFESSOR GROS. They violated the pact of Paris. MR.
following acts shall be deemed crimes": number one, aggression. MR. JUSTICE JACKSON. Well, aggression limited to violation of specific treaties, not the general treaty to outlaw war of aggression. Now, Germany did not attack us in violation of treaties, or otherwise. PROFESSOR GROS. They violated the pact of Paris. MR. JUSTICE JACKSON. But they would not attack the United States. We were acting under the theory that there was an illegal war long before we were attacked. As I say, your position is a somewhat different position from ours. PROFESSOR GROS. Everybody examined if the war was illegal in France and Great Britain and found it so in 1939. Also we realized the attack by Germany against Poland and the German war was illegal on the German side. I always thought the decision of the Tribunal would begin by first considering that Germany, having violated the Pact of Paris, launched an illegal war and that it would be said to be illegal by the court as its first finding. That would cover the fact of aggression and the explanation could be given by the court; so we would all agree that the war of aggression is illegal. What is not agreed is that the fact of launching the war of aggression makes it possible to have a government of war criminals. So, if you put it as accepted by the three delegations, you do not imply that the members of the German Government are war criminals-you'd just say that the court will judge for itself and the decision will remain with the Tribunal. As I said the other day, I don't quite see how, if Germany had launched a war of aggression but had not committed any acts in (b) and (e) , we could actually set up a court to judge members of the German Government. It is what is in the aggression, what comes after the aggression, that makes really the necessity and the right of judging those men. We cannot speak of American political history but remind you that more than a century ago America participated in destroying international banditry when some men came and captured Algiers, which was a port of piracy; so it is not the first time the Americans have come to us-and to the other European countries-to fight when it is useful. So there is no difference. SIR DAVID MAXWELL
ago America participated in destroying international banditry when some men came and captured Algiers, which was a port of piracy; so it is not the first time the Americans have come to us-and to the other European countries-to fight when it is useful. So there is no difference. SIR DAVID MAXWELL FYFE. But I thought that we were prepared to include aggression against other nations as a crime. GENERAL NIKITCHENKO. It does say in paragraph (a) that aggression or domination shall be considered crimes; so I do not think anyone objects to saying that aggression is a crime. SIR DAVID MAXWELL FYFE. But I do not think we are at any difference from you there. MR. JUSTICE JACKSON. Where does it say that aggression is a crime? That definition limits it decisively. That is why we set it up separately after a good deal of consideration and study. SIR DAVID MAXWELL FYFE . I should myself be prepared to say both are crimes: aggression against other nations and initiation Of war in breach of treaties. If that would help toward getting agreement, I would be prepared to have it in that way. It happens to be my view. GENERAL NIKITCHENKO. Without a reference to the European Axis powers. SIR DAVID MAXWELL FYFE. That would be in the introductory paragraph according to the draft. That is Professor Gros' suggestion on that point, that it would be pushed up to the beginning. I think we suggested one way of dealing with that at the beginning of ours: "to convict any person . . . on the part of the European Axis powers". We make it quite clear we are dealing in accordance with our reference from Moscow. It seems to me that there is really no difference on that point. I should not think you would get three people who hold more generally that war of aggression is a crime than General Nikitchenko, Mr. Justice Jackson, and myself. MR. JUSTICE JACKSON. That is why I find it hard to understand why no simple statement to that effect comes to the table in any definition except that of the Americans. SIR DAVID MAXWELL FYFE. What we were considering with the view to trying to find a reality that we all agree on was "aggression or initiation of war of aggression on other nations" in this combined draft. You make two offenses there.
effect comes to the table in any definition except that of the Americans. SIR DAVID MAXWELL FYFE. What we were considering with the view to trying to find a reality that we all agree on was "aggression or initiation of war of aggression on other nations" in this combined draft. You make two offenses there. What I suggested was "aggression against other nations"; or "initiation of war in violation of treaties, agreements, or assurances". Mr. Justice Jackson presents his own phrase of launching a war of aggression. MR. JUSTICE JACKSON. I don't want to stand on that. 1 think it would be better to say "initiating a war of aggression or initiation of war in violation of treaties, agreements, or assurances", and we had added "or otherwise in violation of international law". Going to war without a declaration is a violation and has been for many years, and we want to get all of these recognized violations in if possible; so we think we should not drop "or otherwise in violation of international law" in order to have available the repeated cases in which these people went to war without declaration, et cetera. MR. TROYANOVSKY. Is there any difference between initiation and launching? SIR DAVID MAXWELL FYFE. No, just a more colorful term. GENERAL NIKITCHENKO. Is it supposed then to condemn aggression or initiation of war in general or to condemn specifically aggressions started by the Nazis in this war? If the attempt is to have a general definition, that would not be agreeable. SIR DAVID NIAXWELL FYFE. But it would be covered by the fact that the Tribunal would only be empowered to convict a person who committed the act of aggression on behalf of the European Axis powers. It would be limited. We are avoiding your difficulty by doing that. We are saying expressly that this Tribunal can only deal with the following crimes on behalf of the Axis; so it is limiting the trial as clearly as it could to those who were doing it on behalf of the Axis. GENERAL NIKITCHENKO. If we leave it as it is in Mr. Justice Jackson's proposal, wouldn't that limit it more, that is, a person who had not acted on the part of the European Axis powers would not have committed the crime.
as clearly as it could to those who were doing it on behalf of the Axis. GENERAL NIKITCHENKO. If we leave it as it is in Mr. Justice Jackson's proposal, wouldn't that limit it more, that is, a person who had not acted on the part of the European Axis powers would not have committed the crime. Perhaps the translation is at fault, but, as it is, it seems to us that it refers not only to the past but to the future-so that in the future they shall be deemed criminal violations. SIR DAVID MAXWELL FYFE. "Shall" in a document such as this is merely mandatory. In English it is obligation and not tense. We could use the present tense "are deemed and do come within powers". It is really only a legislative form. Mr. Justice Jackson, if that point is met, don't we really meet your view? MR. JUSTICE JACKSON. I think that takes care of that point. There are other points in connection with this. We avoided use of the word "conspiracy" in view of technical differences in the law of conspiracy in the Continental and the common-law countries and put in the words 16common plan". I think you drop what is important in making the proof if you omit joining in the common plan. It is likely to be much easier to prove that they became parties to the plan to expand Germany by force than to a plan to start a war. You will have some difficulty with that because Hitler always showed people up to the last moment that his plan would not involve war because his enemies would not fight. At the same time it was always understood that it might involve war and they were taking that chance, and I think careful words are necessary to avoid a handicap in proof. SIR DAVID MAXWELL FYFE. Well, I cut these words out because I thought from the last captured documents I had seen that there would be no difficulty in showing the plan would involve war. This added complication for our Russian and French friends. These are legal phrases we are familiar with and they are not. The simpler form I like better. Will you forgive me if I leave? I must go and learn my fate at the polls. Sir Thomas will carry on. SIR THOMAS BARNES. Do you attach great importance to those words? MR. JUSTICE JACKSON. I don't attach great importance, and it has no more meaning to us than it has to