dtufail/nuremberg-trials-corpus huggingface dataset:
have the precedent of a declaration of illegality before it can proceed against the individual members. The Soviet law does not require any such precedent to base itself on. It simply takes the trial of the individual and the establishment of whether his actions were criminal or not as the basic part of the trial. I am not prejudging in any way what form or in what text the decision to which we will come here will be set out. That will have to be worked out in the course of discussion, of course, but I wanted the other delegations to understand correctly the views of the Soviet Delegation on this question of criminal responsibility of individuals and organizations. With regard to the question of whether we agree that these organizations are criminal or not, there is, of course, only one answer , but it is not necessary in order to establish the criminality of the organization to have a separate trial of the organization itself. The duties of the Military Tribunal will be to try the chief war criminals, and whatever decision the court comes to on the criminality of those chief war criminals will apply to the organization which they represent. I think that replies to the question which Professor Gros put forth. If anything is not clear in what I have said I should very much like the delegations to set out their questions, and I will try to make the position of the Soviet Delegation clear. PROFESSOR TRAININ. I would like to say a few words with regard to the American memorandum. This sets forth two principles: the first is the authority of the Military Tribunal, and the second is mutual understanding. With regard to authority, the Soviet Delegation fully agrees that the position and authority of the Military Tribunal should be placed as high as it is possible to place it, and, in regard to mutual understanding, we trust we shall do everything to play our part in the proceeding. I should like to say in regard to the question of the responsibility of organizations that certainly in the Soviet draft there is no specific mention of the responsibility of organizations. But that does not mean that the establishment of criminal responsibility of organizations will not in effect be arrived at. The absence of
the question of the responsibility of organizations that certainly in the Soviet draft there is no specific mention of the responsibility of organizations. But that does not mean that the establishment of criminal responsibility of organizations will not in effect be arrived at. The absence of mention of the responsibility of organizations in the Soviet draft does not mean the exclusion of them and the Soviet draft does not set forth the responsibility for membership of criminal organizations. But in our opinion this principle should not be included in the agreement between the Four Powers but should be included in the statute of the Military Tribunal. In the American draft, paragraphs 23 and 25, this question of criminal responsibility of organizations is mentioned, and provided that question is included, not in the agreement but in the statute of the court, I am quite sure that in one form of words or another it can be included. The words in which this is included are a question of drafting which, of course, can be materially agreed, but the main point is that in paragraph 22 of the American draft the fact is brought out that the trial of individuals can establish the responsibility of the organization to which they belong, and no doubt, once this is recognized, it will be fairly simple to reach some form of drafting. I am not going to waste the time of the Conference on suggestion of -various drafts that will have to be worked out in a drafting committee, but in conclusion would just like to express my appreciation of the remarks made by Mr. Justice Jackson where, if I understand it correctly, he has confirmed that it is only on this one point that there is really any major difference between the views of the Soviet Delegation and those of the other delegations. MR. JUSTICE JACKSON. I think our difference on this point is not as serious as I had taken it to be. From the fifth paragraph of the comments submitted to us, and as translated by us [XVI], the Soviet Delegation suggested that the reference to the possibility of arraigning organizations before the Military Tribunal should be excluded from article 10, and again in the twelfth paragraph suggested that articles 21 and 22 concerning
the comments submitted to us, and as translated by us [XVI], the Soviet Delegation suggested that the reference to the possibility of arraigning organizations before the Military Tribunal should be excluded from article 10, and again in the twelfth paragraph suggested that articles 21 and 22 concerning criminal responsibility should be eliminated. I, and our Delegation, took it that the elimination without substituting anything else left it impossible to reach the groups at all, and it was on that basis that it looked like a wide difference of opinion. I should be glad to point out that I think the suggestions you have, made this morning left us much closer together than I had supposed. GENERAL NIKITCHENKO. Could we answer that question? I should like to say that, when we examined the first draft of the American proposal, we actually made our notes on that draft, and what we were protesting against really was the wording of 21 and 22. We understood from this, perhaps incorrectly, that it was the question of the trial of organizations without individuals and that the organization would simply be tried as a body. We considered that to be wrong. We considered that the trial of the organization should be through the individuals, and therefore we suggested the exclusion of that portion of the memorandum. MR. JUSTICE JACKSON. An essential step in declaring the criminal character of such organizations as we are dealing with here is not stated in our memorandum and perhaps caused this misunderstanding. We assumed it without stating it because in our philosophy it would be a necessary step. We propose to reach the organization through proof of what individuals did, just as you suggest. We take the same step of trying what the members did, what the common plan was through proof of what individuals agreed to, and we attribute what they did and agreed to do through the group to the organization. Then we take the next step of attributing the common principles that ran through the organization to the members. We, too, believe in individual responsibility and f or that reason could not attribute the acts of the leaders to the members unless we proved that the acts of the leaders were within some common
Then we take the next step of attributing the common principles that ran through the organization to the members. We, too, believe in individual responsibility and f or that reason could not attribute the acts of the leaders to the members unless we proved that the acts of the leaders were within some common plan or conspiracy. The mere fact that leaders did some particular act, unless within the plan of the conspiracy and within its probable scope, might not bind others to that act. Therefore, we have to tie the acts of individuals to the organization and then the organizational purposes and methods to the individual members. But we do not think we are speaking of a great difference of substance. I think the difference is not as great as it appeared to be. GENERAL NIKITCHENKO. I would just like to ask one question. Does the decision, when it has been reached in respect to an organization, by the court in this case, apply to all members of that organization; and, once the organization has been established as a criminal one, does that mean that punishment can be meted out to all members of that organization by national or other courts, or is it still necessary that those members should be put through a process of trial, either individually or in groups or gangs, or any other way? MR. JUSTICE JACKSON. There would have to be an opportunity given to an individual, before he could be brought under the general plan, to show that there was a mistake in identification, that lie was not a member in fact, or to show that he joined because he was forced to join, or some reason why the general finding of guilt should not be applied to him as an individual. He must have a chance to bring forward his individual situation, but he does not have a chance again to question the finding that the organization is guilty of particular plans or designs or offenses. That is settled in the one trial and all that he can thereafter be heard to say concerns his particular connection with the criminal design. SIR DAVID MAXWELL FYFE. To put it quite bluntly, he could not be heard to say that the Gestapo, having been found to be a criminal organization in the trial, was not a criminal organization.
that he can thereafter be heard to say concerns his particular connection with the criminal design. SIR DAVID MAXWELL FYFE. To put it quite bluntly, he could not be heard to say that the Gestapo, having been found to be a criminal organization in the trial, was not a criminal organization. MR. JUSTICE JACKSON. Now let us see what we are trying to reach by this method that we might not reach otherwise. Let us suppose that there is a very active member of the S.S. -active in organizing, active in getting in new members-but he never took a personal part in a single crime. He helped to formulate the general plan; he knew about it; lie knew the methods; he knew that their plan was to exterminate minorities, to run concentration camps, to do all these things; but you cannot prove by any witness that lie was present when a single offense, standing by itself, -was committed. By reason of his membership in this common criminal plan and by reason of his participation in it, we would expect to reach him. Now the difficulty is that there are several hundreds of thousands of members of these organizations. You cannot get witnesses, at least we haven't thought we could get witnesses, to prove where each was at all times and prove what he did. It is very hard to identify persons who are in uniform and to get accounts of their part in acts of the organized military or paramilitary units. Therefore, we would expect to be able to show what offenses were committed, and then every person who was a, part of that general plan, whether he actually held the gun that shot the hostages or whether he sat at a desk somewhere and managed the accounting, would be responsible for the acts of the organization. It may not bear on this particular plan directly, but it may bear on the thinking that is back of it as to whether one treats, in his system of jurisprudence, organizations as juridical persons, for purposes of trial. We in our system treat corporations and certain associations and organizations as juridical persons, and permit them to come into court and sue; and while we are not applying that principle in its entirety here, it perhaps makes it less unusual to us to think of trying an organization. than it
We in our system treat corporations and certain associations and organizations as juridical persons, and permit them to come into court and sue; and while we are not applying that principle in its entirety here, it perhaps makes it less unusual to us to think of trying an organization. than it would if you do not treat organizations as juridical persons. I am wondering if your system does treat organizations under some circumstances as juridical persons. PROFESSOR TRAININ. The question of juridical person is quite well known to the Soviet legal system, but it is applied in civil law, and they do not recognize this principle in their criminal law. In the criminal law it is necessary to bring home the responsibility to individual persons and not to condemn organizations. That does not in the least prevent the conviction of a person for adherence to or membership in a criminal organization, and the Soviet law provides for the trial of gangs or criminal associations, and it also provides for the trial of an individual for being a member of a criminal organization. MR. JUSTICE JACKSON. I think the statement was made that the conviction of heads under the Soviet system would establish the responsibility of the members. That would be a somewhat more drastic application of the principle than we would be familiar with. It is not only necessary that the individual be responsible, which lie is if he knowingly becomes a member of the gang, but that he have some opportunity in trial to defend what he has done. That is to say, you cannot, under our system, attribute guilt to a person who has not had an opportunity to appear and defend on the main issues. Therefore, it is necessary under our conception of reaching that individual that lie shall have the right, at least by some representative arrangement, to be heard. That can be given him only, as we see it, if you put the organization on trial and give notice to the membership as far as can be given that the organization is on trial and that the members who are to be affected by the judgment may appear and defend it. That is, a mere decision that the heads of an organization had made a criminal conspiracy would not be sufficient to convict any member who was
far as can be given that the organization is on trial and that the members who are to be affected by the judgment may appear and defend it. That is, a mere decision that the heads of an organization had made a criminal conspiracy would not be sufficient to convict any member who was not a party to the trial or given an opportunity to be heard in some, way, and that is why we had provided under the section on "Fair Trial for Defendants" [paragraph 14] that "reasonable notice shall be given to the defendants of the charges against them and of the opportunity to defend", that "such notice may be actual or constructive", and that "the Tribunal shall determine what constitutes reasonable notice . . . . " Probably nobody, or at least few persons, in Germany would step forward and admit that they were members of these organizations. But under our system we would have to give them some notice and an opportunity to be heard. That does not necessarily mean that the Tribunal would have to hear each individual, but it would be necessary that in some way they have an opportunity to be heard before you can attribute guilt to them. GENERAL NIKITCHENKO. Perhaps that point has not been quite clearly understood. According to the Soviet criminal law the members of a criminal organization are tried individually, but their being found guilty, if they are found guilty, does not mean that the organization to which they belong is declared to be a criminal organization. The Soviet law provides, in the case of criminal trials, for the trial of persons for infringement of the law itself and the commencement of the process of the courts against them. Whether it is a single individual or a gang, the man or the gang must be tried, and there is no automatic provision that because one has been convicted all other members are thereby pronounced guilty. In fact, in the Soviet criminal law, when the trial of a member of an organization has proved that the organization to which he belongs is a criminal one, the responsibility is not on the individual to come forward and confess that he was a member of such an illegal organization. The responsibility is on the prosecuting organs of the court to bring a charge
an organization has proved that the organization to which he belongs is a criminal one, the responsibility is not on the individual to come forward and confess that he was a member of such an illegal organization. The responsibility is on the prosecuting organs of the court to bring a charge against that individual, and, when the prosecution brings such a charge and the individual is placed on trial, he is then given the opportunity of proving or disproving whether the accusations made against him by the prosecution are correct or whether he has acceptable legal defense against those accusations. MR. JUSTICE JACKSON. The question I would like to ask about that is, when the member is brought to trial, would he be entitled to try again the question as to whether the organization was criminal or just entitled to try whether he participated in it voluntarily? GENERAL NIKITCHENKO. The Soviet Delegation says that under the Soviet law there would be no question whatever of a man being permitted to raise the point again whether the organization itself was criminal or not. Once the court had decided in any case, no subsequent trial could raise the question whether it is criminal or not. It has definitely been pronounced criminal. What he can do is to produce at the trial evidence that he did not belong to the organization, or took only a minor part in its proceedings, or possibly did not know for what purposes the organization existed, or perhaps that he was forced to join it, but those factors would be considered by the court as providing the basis for his acquittal or reduction in penalty in his individual case. MR. JUSTICE JACKSON. That is a very excellent statement of what we are trying to get expressed in our document as to the method we would pursue here. GENERAL NIKITCHENHO. I would like to add that what has been said, of course, refers to Soviet law, that in international law there is nothing which would cover the question of criminal responsibility of persons or organizations except one agreement which covers the question of acts of terrorism, to which of course the Soviet Delegation is a party. But in the American draft of this paragraph 5, which they ask to be included, they set forth
which would cover the question of criminal responsibility of persons or organizations except one agreement which covers the question of acts of terrorism, to which of course the Soviet Delegation is a party. But in the American draft of this paragraph 5, which they ask to be included, they set forth actions which are to be presumed criminal. The opinion of the Soviet Delegation is that it is not the function of the International Military Tribunal to define what actions are or are not criminal in the case of war criminals, but that that is already understood. MR. JUSTICE JACKSON. Reverting to the question of the method of trial of gangs. MR. TROYANOVSKY. There was a slight misunderstanding in the translation. GENERAL NIKITCHENKO. [Restatement.] Article 5 of the American draft does, in fact, set forth the points which should form the nucleus of an international law. MR. JUSTICE JACKSON. Coming back to the question of the trial the reason we prefer the main trial to establish the guilt of the organizations, with that trial to include the most responsible leaders that we now have in captivity, is that we will have, for a long period of time, people showing up in various parts of Germany who are members of these organizations but who could not be obtained for trial at the present time. We do not want to have to go through a trial of the main issues every time a group or a number of them is captured. What we want to do is to get the organizational trial over with so that as fast as they are found they can be brought before a military court or a subsidiary tribunal, not the main tribunal-brought in and, if they can establish that they are not members or took only a minor part or anything else that should be considered on their behalf, they can be heard on that, but not again on the question of whether their organization had been a party to criminal conspiracies. We can go ahead as soon as we establish that the organization is criminal as such, and then the individual members can be dealt with as fast as they can be identified and found. GENERAL NIKITCHENKO. That is quite right, and the accused will have no opportunity of acquitting the question of guilt of the organization
soon as we establish that the organization is criminal as such, and then the individual members can be dealt with as fast as they can be identified and found. GENERAL NIKITCHENKO. That is quite right, and the accused will have no opportunity of acquitting the question of guilt of the organization laid down either by the agreement or by verdict of the Military Tribunal. The question of the guilt of the organization cannot be reopened once the criminality of that organization has been established. The only question we are emphasizing is that each individual member of an organization should not be subjected to punishment as soon as his connection has been discovered, and that as and when such individuals are found they must nevertheless be given an opportunity to bring forth a defense, and the punishment to be meted out to them will be according to the part taken. MR. JUSTICE JACKSON. I think we all agree. By Mr. Nikitchenko's reference to the conditions of paragraph 5 of our memorandum, I do not take it that he objects to including a statement of the acts, which are considered criminal violations of international law, but is a matter of draftsmanship as to the place it should go in the agreement. GENERAL NIKITCHENKO. No doubt at a later meeting we will be discussing the draft of this paragraph, but as to including such a paragraph in the document the Soviet Delegation has no objection whatsoever. This article must, in fact, become the point of international law on which the guilt of individuals or of organizations will eventually be based. MR. JUSTICE JACKSON. We agree. SIR DAVID MAXWELL FYFE. Would it be convenient to break off a this point? I would like to say how pleased I am that we have bee able to reach an agreement on a great many points at this sitting. _________________ The Conference adjourned. Source: 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
International Conference on Military Trials : London, 1945
Minutes of Conference Session of July 3, 1945
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MR. ROBERTS [presiding]. Perhaps I might say that the Attorney General is sorry he cannot be here. He is in Liverpool electioneering until tomorrow evening.
There are now before the Conference the Russian statute, which has not been discussed, and the American annex, which has not been discussed. Perhaps it would be convenient first for Mr. Justice Jackson to discuss the questions of principle arising on his document with reference, perhaps, to the Russian document [XIX].
MR. JUSTICE JACKSON. Mainly, I would like to be sure that we understand what some of the provisions of the Soviet draft contemplate. For example, paragraph 3 requires a turnover to the Tribunal upon its demand of all major war criminals. I do not quite understand how the Tribunal could be in a position to receive custody or take care of prisoners, and I was wondering what kind of organization for that purpose is contemplated.
GENERAL NIKITCHENKO. In this draft agreement only the principal question is provided for, that is, that the criminals should be turned over. As to how they are to be kept under custody or otherwise would be established by the Tribunal itself with the Control Council. The fact is the Control Council for Germany has sufficient apparatus and facilities for keeping the necessary prisoners under guard.
MR. JUSTICE JACKSON. Where does it have the facilities?
MR. TROYANOVSKY. Do you mean the right, or the facilities?
MR. JUSTICE JACKSON. The facilities.
GENERAL NIKITCHENKO. The Control Council, being the supreme authority in Germany, would naturally have such facilities for placing custody guards, et cetera, especially since the permanent residence of the Tribunal is to be in Berlin, or may be in Berlin. Thus it would act in direct contact with the Control Council.