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International Conference on Military Trials : London, 1945
Draft Article on Definition of "Crimes", Submitted by French Delegation, July 19, 1945
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Note: On July 19, 1945, the French Delegation submitted a draft of article 6 on the definition of "crimes", together with their own translation of it into English, as follows:
[Translation]
DRAFT ARTICLE ON THE DEFINITION OF CRIMES
The Tribunal will have jurisdiction to try any person who has, in any capacity whatsoever, directed the preparation and conduct of :
i) the policy of aggression against, and of domination over, other nations, carried out by the European Axis Powers in breach of treaties and in violation of international law;
ii) the policy of atrocities and persecutions against civilian populations;
iii) the war, launched and waged contrary to the laws and customs of international law;
and who is responsible for the violations of international law, the laws of humanity and the dictates of the public conscience, committed by the armed forces and civilian authorities in the service of those enemy Powers.
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
Definition of "Aggression" Suggested by American Delegation as Basis of Discussion, July 19, 1945
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DEFINITION OF AGGRESSION SUGGESTED FOR CONSIDERATION WITH ARTICLE 6
An aggressor, for the purposes of this Article, is that state which is the first to commit any of the following actions:
(1) Declaration of war upon another state;
(2) Invasion by its armed forces, with or without a declaration of war, of the territory of another state;
(3) Attack by its land, naval, or air forces, with or without a declaration of war, on the territory, vessels, or aircraft of another state;
(4) Naval blockade of the coasts or ports of another state;
(5) Provision of support to armed bands formed in its territory which have invaded the territory of another state, or refusal, notwithstanding the request of the invaded state, to take in its own territory, all the measures in its power to deprive those bands of all assistance or protection.
No political, military, economic or other considerations shall serve as an excuse or justification for such actions; but exercise of the right of legitimate self-defense, that is to say, resistance to an act of aggression, or action to assist a state which has been subjected to aggression, shall not constitute a war of aggression.
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 19, 1945 Previous Document Contents Next Document Sir David Maxwell Fyfe called the Conference to order and called attention to a draft article on the definition of crimes proposed by the French Delegation [XXXV], and a definition of aggression suggested by the American Delegation for consideration in connection with the definition of crimes [XXXVII]. SIR DAVID MAXWELL FYFE. Perhaps the French Delegation will be good enough to explain their suggestion of definitions. PROFESSOR GROS. It is hard to add anything to the actual draft. The intention is the same as those of others who have proposed drafts of article6. Our objections to the definitions so far proposed are that the statute of the International Tribunal will stand as a landmark which will be examined for many years to come, and we want to try to avoid any criticisms. We do not consider as a criminal violation the launching of a war of aggression. If we declare war a criminal act of individuals, we are going farther than the actual law. We think that in the next years any state which will launch a war of aggression will bear criminal responsibility morally and politically; but on the basis of international law as it stands today, we do not believe these conclusions are right. Where a state would launch a war of aggression and not conduct that war according to rules of international law, it would be desirable to punish them as criminals, but it would not be criminal for only launching a war of aggression. We do not want criticism in later years of punishing something that was not actually criminal, such as launching a war of aggression. The judges would be in a very difficult position if we insist on that f act. The subject was often up for discussion in the League of Nations. It is said very often that a war of aggression is an international crime, as a consequence of which it is the obligation of the aggressor to repair the damages caused by his actions. But there is no criminal sanction. It implies only an obligation to repair damage. We think it will turn out that nobody can say that launching a war of aggression is an international crime-you are actually inventing
is the obligation of the aggressor to repair the damages caused by his actions. But there is no criminal sanction. It implies only an obligation to repair damage. We think it will turn out that nobody can say that launching a war of aggression is an international crime-you are actually inventing the sanction. The subject was studied by Professor Trainin in his book. He tries to construct the idea of an international crime. He recognized that international law, as it now stands, does not make it punishable. The effort to make war of aggression an international crime is still tentative. If, instead of making a declaration of international law which is not certain, we use our draft, we will avoid that difficulty and get the same results. We are not declaring a new principle of international law. We are just declaring we are going to punish those responsible for criminal acts. We do not go beyond what is traditional with most lawyers as to acts that were crimes even before the effort to make a war of aggression a war crime. The judges that will sit on the Tribunal will be lawyers, and they will be watched by all countries and will try to judge fairly and impartially. We attempt to avoid any discussion between the judges on the subject that we are trying to put in the draft. SIR DAVID MAXWELL FYFE. Do we gather that what you are saying is objectionable is the words in the draft "shall be considered criminal violations of International Law"? PROFESSOR GROS. Yes. We start from something that is not in doubt-that the conduct of a war in violation of international law is a crime-and from that we build a case. The responsibility goes up to the perpetrator and instigator. SIR DAVID MAXWELL FYFE . Just one other point. Is your number i), referring to "policy of aggression against, and of domination over", intended to be the equivalent of the common plan to wage a war of aggression in violation of international law? Had you in mind the common plan or great design? PROFESSOR GROS. We tried to cover exactly the same ideas but to build from a different basis. The previous drafts of article 6 start from the top and say what will be a criminal violation of international law. On the contrary, we start from the
law? Had you in mind the common plan or great design? PROFESSOR GROS. We tried to cover exactly the same ideas but to build from a different basis. The previous drafts of article 6 start from the top and say what will be a criminal violation of international law. On the contrary, we start from the bottom, say that there have been indisputable crimes and go up the line of responsibility to the instigator of the war. It is difficult for me to discuss this very delicate point in another language. It seems to me that the previous drafts amount only to a declaration by four people, while in our definition you have a reminder that this policy is criminal because it is carried out in violation of treaties and of international law. SIR DAVID MAXWELL FYFE. We have a conception of conspiracy in our law and would like to know whether you have it too. Take arson, for which there is no criminal sanction and which has its only remedy in reparations, as you mention. But the conspiracy to commit such arson in English law is a criminal act. PROFESSOR GROS. NO, we do not have that conception of conspiracy. We would have to make new law. SIR DAVID MAXWELL FYFE. For you in America, a conspiracy to commit a tort is a crime? MR. JUSTICE JACXSON. Sometimes, but by virtue of statutes. Except in a very few States we do not have common-law crimes, but only statutory ones. SIR DAVID MAXWELL FYFE. The question comes to this: whether it is right or desirable to accept the position that a war of aggression is a crime. It seems to be agreed that it is. The fundamental difficulty is the lack of sanction. More strictly it may be said that it is accepted as a crime without declared punishment or any declared sanction against it. PROFESSOR GROS. It may be a crime to launch a war of aggression on the part of a state that does so, but that does not imply the commission of criminal acts by individual people who have launched a war. When you say that a state which launches a war has committed a crime, you do not imply that the members of that state are criminals. SIR DAVID MAXWELL FYFE . Don't you imply that the people who have actually been personally responsible for launching the war have committed a crime? PROFESSOR GROS.
a war. When you say that a state which launches a war has committed a crime, you do not imply that the members of that state are criminals. SIR DAVID MAXWELL FYFE . Don't you imply that the people who have actually been personally responsible for launching the war have committed a crime? PROFESSOR GROS. We think that would be morally and politically desirable but that it is not international law. SIR DAVID MAXWELL FYFE. You see the distinction in my mind. To look at it as a crime of the state only may include people who have very little real responsibility for it. But, if you can show that the war has been the result of the actions of 15 or 20 people, it is a difficult conception that those people are not responsible for their own acts when it is admitted that they result in an international crime. PROFESSOR GROS. That certainly is what We would wish. But I would like you to note one thing that is important because it will be used as a precedent. I refer to the report to the Peace Conference in 1919. It certainly was the state of the law in 1919 that the acts which brought about a -war would not be charged against officers or made the subject of procedure before a tribunal. And the Germans will take for a precedent what is still worse for our object-the report of James Brown Scott and Robert Lansing to show that we have no legal basis to say that launching a war of aggression shows criminal responsibility of the people who launched that war. But, if you define their crimes according to their practical results, if you show that the Germans have been breaking treaties and as a result of that have annexed populations, run concentration camps, and violated international law by criminal acts against people, what you will condemn are those acts which in fact are criminal in all legislation, and you will condemn them for having directed those acts. I would not object at all to those same words in the charter if they were designed as a precedent for any government for the future. My difficulty is that this charter is not made to declare new international law; it is made to punish war criminals and the basis must be a safe one. Naturally, we would be open to modifications of our draft. GENERAL NIKITCHENKO. The
designed as a precedent for any government for the future. My difficulty is that this charter is not made to declare new international law; it is made to punish war criminals and the basis must be a safe one. Naturally, we would be open to modifications of our draft. GENERAL NIKITCHENKO. The definition of "war criminals" was set forth in the Moscow and Crimea declarations, and it is our opinion we should act on those declarations. If we turn once again to the terms of the Moscow declaration, we see that apparently the conception of what is a war criminal is quite clear. But the difficulty is in trying to confine this definition to a legal formula which would form the basis of a trial of these war criminals. In my opinion we should not try to draw up this definition for the future. The critics will try to find any inconsistencies and any points that are not clear and to turn these points against those who draw up the definition in the charter. In my opinion our task should be to form the basis for the trial not of any criminals who may commit international crimes in the future but of those who have already done so. I refer to the beginning of the Moscow declaration in which it is stated that Great Britain, the United States, and the Soviet Union have received from various sources evidences of atrocities, murders, cold-blooded mass executions which are being committed by Hitler's armed forces in many countries captured by them. For these crimes the Nazis should be punished. By our formula we should not give those who committed criminal acts the possibility of considering themselves political criminals. If we were to try to set forth in detail the various crimes committed by the Nazis, we might very well make a mistake. It is quite impossible to give an exhaustive list of the crimes. If, on the other hand, we should confine ourselves to a few matters, that too would not be right. Therefore we should work out a formula which would make it possible to bring to trial and punish those who have committed all the various atrocities. At the same time we should not, of course, confine ourselves to persons who have actually committed the crimes but should also especially reach those who organized or conspired them. From our point of view the form of
make it possible to bring to trial and punish those who have committed all the various atrocities. At the same time we should not, of course, confine ourselves to persons who have actually committed the crimes but should also especially reach those who organized or conspired them. From our point of view the form of article 6, as it has been formulated by the direction of the committee, is not agreeable thus. It gives a very wide field of interpretation to acts which in one case might be an international crime and in another case might not be so. That is why from our point of view the formula proposed by the French Delegation is better-first of all, because it provides not for the responsibility of states or any social organisms but for the responsibility of persons; secondly, because the crimes are set forth in such a manner that they are turned only against those who have committed the crimes. We did not submit a text of our own, not only not to provoke a fresh discussion, but in order to be able to come to an agreement quickly. We are ready to support the formula submitted by the French Delegation, that is, we would be in a position to recommend it to our Government. MR. JUSTCIE JACKSON. Well, I am in agreement with a great deal that Professor Gros and General Nikitchenko have said. This is a most difficult subject and a most important one, not only for today but for time to come. However, if we look only to the past with our action, it will be of little importance to the future. We have no interest in any particular formula so long as it accomplishes the purpose of giving some real moral meaning to the principles that underlie any prosecution. I agree entirely that the formula should look, as General Nikitchenko says, to the responsibility of persons, rather than of states, and think the formula as stated is defective in that respect. We have given a great deal of thought-not only the men of my staff but other eminent American scholars--to this subject of the crime of making war. I must say that sentiment in the United States and the better world opinion have greatly changed since Mr. James Brown Scott and Secretary Lansing announced their views as to criminal
given a great deal of thought-not only the men of my staff but other eminent American scholars--to this subject of the crime of making war. I must say that sentiment in the United States and the better world opinion have greatly changed since Mr. James Brown Scott and Secretary Lansing announced their views as to criminal responsibility for the first World War. I have no expectation that any rule we could formulate would avoid the criticism of some scholars of international law, for a good many of them since 1918-in language that was used about others-have learned nothing and have forgotten nothing. But I don't think we can take the 1918 view on matters of war and peace. At least in the United States we have moved far from it with such measures as lend-lease and neutrality. As I have understood Professor Trainin's book, which I have read carefully in the effort to understand the Soviet views, I gather that his view comes very close to the view which we entertain in the United States. Our attitude as a nation, in a number of transactions, was based on the proposition that this was an illegal war from the moment that it was started, and that therefore, without losing our rights as neutrals or nonbelligerents, it was our right to extend aid to the nations under illegal attack, and the lend-lease program, the exchange of bases for destroyers, and much of American policy was based squarely on the proposition that a war of aggression is outlawed. I was obliged to pass on a good deal of American activity in the period just preceding the war, as Attorney General, and I stated the position quite clearly that our view was that this was an illegal war of aggression in violation of the Briand-Kellogg pact. and other applicable treaties. And I notice that the latest issue of Oppenheim on International Law, just out, says that my Havana speech, which some of you have read, was a sound view of international law, although it was criticized in my own country at the time. Therefore, our view is that this isn't merely a case of showing that these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace, which to our mind is a criminal offense by
was criticized in my own country at the time. Therefore, our view is that this isn't merely a case of showing that these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace, which to our mind is a criminal offense by common-law tests, at least, and the other atrocities were all preparatory to it or done in execution of it. Now the difficulty, as I see it, is that there is no prescribed sanction, no criminal penalty, provided for that kind of what we may call "common law" crime of violation of international law. Neither is there a criminal sanction or penalty prescribed for the other violations of international law which the French draft considers to be punishable. In other words, we have no statute which states any penalties or individual responsibilities for any offenses under whatever formula we attempt to arraign them. To be specific: The language of the French draft, I am fearful, does not cover just the same things that our draft covers. If it did, I should be quite happy to accept the formula. In subparagraph (1) for example, to be punishable the policy of aggression must be carried out, as I read the statement, both in breach of treaties and in violation of international law. That we think would leave open to argument before the court whether this policy of aggression is in violation of present international law, and brings up at the trial all of the questions that our statute ought to settle. If that read "in breach of treaties or violation" of international law, we would have much less difficulty with it. PROFESSOR GROS. If you will read the French text, which I am afraid was somewhat difficult to translate into English, that covers your point. We say in violation of international law and treaties, but international law is composed of treaties. To violate a treaty is to violate international law. So if you want to say "or" instead of "and", we do not object at all. Aggression is certainly the same if you breach a special treaty or if you just invade your neighbor-it is the same condemnable policy. MR. JUSTICE JACKSON. The other doubt that I have is whether this draft sufficiently and explicitly embodies the
you want to say "or" instead of "and", we do not object at all. Aggression is certainly the same if you breach a special treaty or if you just invade your neighbor-it is the same condemnable policy. MR. JUSTICE JACKSON. The other doubt that I have is whether this draft sufficiently and explicitly embodies the common plan or conspiracy idea which is necessary to reach a great many of the equally guilty persons against whom evidence of specific violent acts May be lacking although there is ample proof that they participated in the common plan or enterprise or conspiracy. I think that if those points could be clarified, so that we don't leave them in doubt, we might be able to work out from this an acceptable basis. I do like the brevity of the French version. But I again repeat that in connection with this we should attempt to make some provision as to what constitutes an aggression, in which I think all of the American proposals were defective. Otherwise we may get into litigation over whether what we call a policy of aggression was in fact a policy of long-range self-defense. That is the point which I suggested the other day and is one on which I would like to present this written proposal to this group [XXXVI]. Would it be a good thing to consider that now or later? PROFESSOR Gros. I think to embody the common-plan theory would be easy. It is only a question of drafting. We thought of putting the word "planned", but it is difficult. It would have "or the plan of ", but as it refers to conduct- SIR DAVID MAXWELL FYFE. It occurred to me you could do it in either of two ways. In the beginning "and took part in a plan to further", or the policy of aggression could be put in a more concrete form by "conduct of a plan to achieve aggression against". What is in my mind is getting a man like Ribbentrop or Ley. It would be a great pity if we failed to get Ribbentrop or Ley or Streicher. Now I want words that will leave no doubt that men who have originated the plan or taken part in the early stages of the plan are going to be within the jurisdiction of the Tribunal. I do not want any argument that Ribbentrop did not direct the preparation because he merely was overborne by Hitler, or