dtufail/nuremberg-trials-corpus huggingface dataset:
equal split of that vote. We have accepted the principle that in case of equal division of votes the chairman should be the casting one. Would it be possible to introduce that conception into this by arranging that the chairman of the prosecutors be the casting vote in case of a disagreement?
MR. JUSTICE JACKSON. I think Professor Gros' suggestion is a more practical one because you might have a division over the choice of a chairman. It seems to me his suggestion better meets all the requirements.
SIR DAVID MAXWELL FYFE. I only regard this as a safety valve. I should be most worried if I thought there were any real prospect of disagreement, but I don't think there is. But if we are having the need for a safety valve, I would ask everyone to try to find one.
PROFESSOR TRAININ. I follow any of the views expressed here. I agree with the chairman's view that any disagreement is quite unlikely to happen, but there is this danger, that, if we accept the suggestion of anything other than the majority vote, we would have in our charter a clause which would have the effect of converting an international tribunal into a national court, and the Soviet Delegation cannot understand how we can possibly agree to allow the International Tribunal to be turned into a national court in that way. It is for that reason that I feel the solution would be to accept this proposal of giving the chairman of prosecutors a casting vote.
JUDGE FALCO. [Not translated.]
cannot understand how we can possibly agree to allow the International Tribunal to be turned into a national court in that way. It is for that reason that I feel the solution would be to accept this proposal of giving the chairman of prosecutors a casting vote. JUDGE FALCO. [Not translated.]
MR. JUSTICE JACKSON. I should not think its character as an international tribunal would be affected so long as the opposition to going ahead could only prevail if concurred in by two, as Professor Gros has suggested. That fear might be justified if one were to go alone. It seems to me that the proposition of having a chairman in an informal body such as this cast a deciding vote is likely to be impractical, and I don't know how you are going to rotate. The suggestion of Professor Gros seems a practical way out of a situation that I hope will not arise. But wise draftsmanship anticipates the improbable as well as the probable.
SIR DAVID MAXWELL FYFE. I wonder whether we could try to find a solution on the lines of the Soviet suggestion of a chairman's casting vote. The real issue, as I see it here, is this: Suppose three people are against prosecuting a defendant and one person wants to go on prosecuting him. In that position it would be almost unthinkable that only a general charge would lie and that it would be possible to deal with it by a national court.
MR. JUSTICE JACKSON. I don't know that that would quite meet the difficulty if it ever arises.
PROFESSOR GROS. It would be a change in the status of the war criminals. Those people are still major war criminals. Some business people should be included in the list of major war criminals, and the French prosecutor would present a list of bankers, et cetera, in Germany. If the three others refuse, your solution would imply that those bankers or industrialists would be sent to France to be charged there. That changes their status as major war criminals.
should be included in the list of major war criminals, and the French prosecutor would present a list of bankers, et cetera, in Germany. If the three others refuse, your solution would imply that those bankers or industrialists would be sent to France to be charged there. That changes their status as major war criminals.
SIR DAVID MAXWELL FYFE. As the agreement reads at the moment, each signatory shall appoint a Chief Prosecutor for the investigation of charges and the prosecution of the major war criminals. Then, (b), one of the purposes of the committee would be the designation of the defendants by the Tribunal, that is, a selection before you go to the Tribunal. Then, assuming that you have, for instance, a three to one majority against the selection of your banker, for example, a majority of the prosecutors decide he is not worthy of trial as a major war criminal. The suggestion was that, if you put something at the end of the agreement that would be without prejudice, you would be carrying out the view of the majority, wouldn't you?
PROFESSOR GROS. I do not think that in such a problem you can leave the casting vote to the chairman to say the man is a major war criminal or is not. It is very difficult to comment on that. Your suggestion gives us a practical solution of three against one, but I wonder whether it gives a solution of two against two.
SIR DAVID MAXWELL FYFE. I am reminded that article 6 of the agreement already provides that "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals." It is already covered.
reminded that article 6 of the agreement already provides that "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals." It is already covered.
MR. JUSTICE JACKSON. The difficulty of that is that, if you take the banker as an example-for instance, Schacht, who is our prisoner at the moment-he is either a big war criminal or nothing. If you take him out from under this agreement, you have nothing to try him on at all. Nothing except the common-plan or conspiracy theory will reach that type of man, and, therefore, if you by a deadlock shove him out of this Tribunal, you have shoved him out of the possibility of being tried anywhere because you have no law to try him except under this agreement.
GENERAL NIKITCHENKO. Referring to the example by Mr. Justice Jackson in reply to Professor Gros, the example of Schacht-we are of the opinion that whether we have this clause or not, the point is that we have a provision for dealing with persons who organized or incited or otherwise caused all these war crimes, who were the instigators of the wars of aggression, and who are, in fact, much greater criminals than the minor people who carried out murders, ill-treatment of prisoners, et cetera. Whether this provision is in this paragraph or not, the agreement, as it is, provides for the punishment of these people, of whom Schacht is a good example, and they would not escape because of the wording of this particular paragraph.
minor people who carried out murders, ill-treatment of prisoners, et cetera. Whether this provision is in this paragraph or not, the agreement, as it is, provides for the punishment of these people, of whom Schacht is a good example, and they would not escape because of the wording of this particular paragraph.
To provide for the right of one or, in the case of equal division, of two prosecutors to act on their own initiative, is to adopt a principle which is contrary to the whole charter of the International Tribunal, and it would follow from the contradictions of that principle that we would have to introduce a whole set of rules, all of which -would be in direct contradiction of the principles on which the international body is based. The whole agreement and the charter are based on combined action, on cooperation between the Four Powers. Now, if we introduce at one point in one paragraph a principle which departs from this and allows the action of only one power independently, then we are going completely contrary to the whole idea on which the charter is based, and the introduction of that one exception would mean that a whole series of regulations would have to be provided as to what would be done when that happens. It is quite contrary to the whole spirit of the charter.
If we take the practical case, the unlikely practical case, where no agreement is arrived at, article 6 of the agreement provides for the trial by national courts, and in the unlikely case of your having three of the prosecutors against the trial of one individual and a single prosecutor in favor of it, article 6 would give that one prosecutor the power to transfer the case to his national court for trial. It would not automatically absolve a defendant in that case from being tried, and the proposal that the Soviet Delegation now puts forward would in our opinion provide that in all cases an agreement will be reached by the casting vote.
one prosecutor the power to transfer the case to his national court for trial. It would not automatically absolve a defendant in that case from being tried, and the proposal that the Soviet Delegation now puts forward would in our opinion provide that in all cases an agreement will be reached by the casting vote.
SIR DAVID MAXWELL FYFE. I feel that we have exhausted the use of immediate discussion of it, and it would be a good point to consider, as we may be able to find a solution. Therefore, I suggest we leave this as a reserved point to come back to. Now, shall we take the second part of 15-"The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties. . . ." Is there any question on 15, paragraph 2?
GENERAL NIKITCHENKO. The first point is this: we consider it better as a matter of convenience to make the second part of this article into a separate article. Number it as 16. As it stands now, the whole of 15 becomes lengthy and clumsy, and it would be easier if it were divided.
SIR DAVID MAXWELL FYFE. I see no objection to that.
GENERAL NIKITCHENKO. Coming to the very last paragraph of 15 as it stands, "It is understood that no witness or defendant detained by any Signatory shall be taken out of the possession of the Signatory without its assent." The Soviet Delegation does not understand what that is meant to cover.
SIR THOMAS BARNES. Consider paragraph (a) above, "Investigation and collection of all necessary evidence" and (c), "The preliminary examination of all necessary witnesses and of the defendants." Under this paragraph each of the prosecutors may act individually, and that last paragraph was put in to prevent one of the signatories from demanding the attendance or testimony of defendants in the custody of another and obtaining their attendance without the consent of the detaining country.
defendants." Under this paragraph each of the prosecutors may act individually, and that last paragraph was put in to prevent one of the signatories from demanding the attendance or testimony of defendants in the custody of another and obtaining their attendance without the consent of the detaining country.
GENERAL NIKITCHENKO. Does not that limit the application of article 3 of the Agreement, "Each of the Signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal"?
SIR DAVID MAXWELL FYFE. It only means that both signatories must agree. One signatory asks and the other agrees. It is difficult to mention a case where one signatory would want to examine a witness beforehand without the consent of another.
GENERAL NIKITCHENKO. That is quite right. We agree. Does this refer to the preliminary investigation or actual presentation at court ?
SIR DAVID MAXWELL FYFE. The preliminary investigation. There would be no objection as far as I can see. Suppose the Soviet Delegation wanted to send someone to ask a prisoner of ours some questions. We would arrange for questioning to take place at a convenient spot. It would only be a matter of arrangement.
GENERAL NIKITCHENKO. It is purely a question of drafting. The words which are not clear are "taken out of the possession of". It might be better to provide no investigation or the questioning of the man without the consent of the holding signatory.
SIR DAVID MAXWELL FYFE. I can see the difficulty. Of course, "custody" means "being held in the custody of one power". They would remain in the custody of the holding power, but all the facilities would be offered.
GENERAL NIKITCHENKO. Yes, it is quite clear.
SIR DAVID MAXWELL FYFE. We shall keep the whole, then, and alter the numbers at the ending. Now number 16.
the difficulty. Of course, "custody" means "being held in the custody of one power". They would remain in the custody of the holding power, but all the facilities would be offered. GENERAL NIKITCHENKO. Yes, it is quite clear. SIR DAVID MAXWELL FYFE. We shall keep the whole, then, and alter the numbers at the ending. Now number 16.
PROFESSOR TRAININ. It is simply a question of more exactitude in 16 (b). It says, "to give any explanation which he may desire with regard to the charges made against him." "With regard to the charges"-in the Russian translation apparently he can talk about anything he likes.
SIR DAVID MAXWELL FYFE. Instead of "which lie may desire -with regard to the charges made" we could say "which is relevant"'.
MR. JUSTICE JACKSON. Should he be allowed an explanation? "Explanation" would not have any legal meaning to me that you could apply in confining it. He could make almost any sort of speech he wanted to. It seems to me he should be limited to testimony as to the facts rather than an explanation.
MR. ALDERMAN. "Statement" would be better than "explanation".
GENERAL NIKITCHENKO. "Give testimony" instead of "give explanation".
SIR DAVID MAXWELL FYFE. That is covered by (e), isn't it? "through himself or through his counsel".
PROFESSOR TRAININ. Apparently in point (e) the word "evidence" would not apply to verbal testimony.
SIR DAVID MAXWELL FYFE. No, it would not.
GENERAL NIKITCHENKO. What does point (b) mean?
SIR DAVID MAXWELL FYFE. I should have thought it would be best to confine (b) to the preliminary examination and to put "any preliminary examination . . . he shall have the right to give any explanation . . . ... And in (e) the defendant shall have the right through himself or his counsel to present his own or any evidence.
should have thought it would be best to confine (b) to the preliminary examination and to put "any preliminary examination . . . he shall have the right to give any explanation . . . ... And in (e) the defendant shall have the right through himself or his counsel to present his own or any evidence.
Now, number 17. 1 think this requires a certain amount of explanation, because I notice it is bracketed. We shall deal -with it point by point. "The Tribunal shall have the power: (a) to summon -witnesses to the trial and to require their attendance and testimony and to put questions to them . . . ." That is the equivalent of the International Tribunal's making witnesses attend. " [ (b) to require any defendant to give testimony] . . . . " I think there is a difference in our systems. In England no defendant need give evidence in a criminal charge. It is up to him. On the Continent he can make a statement without being cross-examined. I understand that under this code he must answer questions.
JUDGE FALCO. He is interrogated like a witness. He can say what he wants.
SIR DAVID MAXWELL FYFE. It is not really adding a great deal. It would actually be contrary to our ideas that a person should be forced to give evidence if he did not want to, and, in addition, be could stand mute if he liked. I would like to hear others' views on that.
MR. JUSTICE JACKSON. Our system, like yours, would not permit us to force a defendant to testify against himself. The constitutional provision against compulsory self-incrimination would protect him. That privilege is not known to the German law, as I understand it, and not to some other systems we are using here. We would be willing to adopt the Continental practice of making them testify, but, like you, I do not think it would accomplish a great deal and would not insist upon it if the others disagree.
is not known to the German law, as I understand it, and not to some other systems we are using here. We would be willing to adopt the Continental practice of making them testify, but, like you, I do not think it would accomplish a great deal and would not insist upon it if the others disagree.
PROFESSOR TRAININ. The right of the prosecution and the court to ask questions of the accused must be provided for, but there is nothing at all to compel him to answer. I do not know of any law by which it is possible to compel the defendant to answer questions, but the court should be allowed the right to ask. They have the right to question.
JUDGE FALCO. We have the same view.
MR. JUSTICE JACKSON. I feel that the possibility of a two to two division is greater than we anticipated. Here we are now divided two to two on a question of procedure.
SIR DAVID MAXWELL FYFE. The Soviet would cover the Continental point. The defendant may be asked questions by the prosecution, the defense, or the court, but he is not bound to answer them.
MR. TROYANOVSKY. But that is provided for in number 24.
MR. ALDERMAN. The solution is to strike this clause out.
SIR DAVID MAXWELL FYFE. I believe 24(f) covers the right to question them, and we could strike this out here.
MR. ROBERTS. That would suit me if we left it to the court.
PROFESSOR TRAININ. In article 24 it says that defendants and witnesses may be questioned by the Tribunal, but it does not say anything about the prosecutor questioning.
SIR DAVID MAXWELL FYFE. If he does not give evidence, then the court can answer the question.
PROFESSOR TRAININ. The point is that the duties of the prosecutor under the Tribunal are of such a nature that they differ entirely from the Continental system. The prosecutor has much greater powers and, therefore, the Soviet Delegation considers that the prosecutor and the defense should have the right to question a defendant, but the defendant would not be compelled to answer.
under the Tribunal are of such a nature that they differ entirely from the Continental system. The prosecutor has much greater powers and, therefore, the Soviet Delegation considers that the prosecutor and the defense should have the right to question a defendant, but the defendant would not be compelled to answer.
MR. ALDERMAN. Why the defense? The defense could not represent him unless the defense does what he asks him to.
SIR DAVID MAXWELL FYFE. I feel there is no real difference between us, but it is rather difficult to explain.
MR. JUSTICE JACKSON. The question remains whether the defendant is prejudiced by his refusal to answer. That is the real underlying question-is silence like a confession?
The Conference adjourned until Tuesday, July 17, 1945, at 2 p.m.
(1)Ante, p. 234 ff.
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
Illustrative Draft of Indictment, Submitted by British Delegation, July 17, 1945
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DRAFT LIST OF DEFENDANTS AND INDICTMENT
GOERING, HESS, RIBBENTROP, LEY, KEITEL, KALTENBRUNNER, ROSENBERG, HANS FRANK, FRICK AND STREICHER.
[For consideration: Von Schirach, Sauckel.)
1. That between the 30th day of January, 1933 and the 8th day of May, 1945 the defendants unlawfully conspired together and with other persons to devise and carry out a common plan aimed at the establishment of complete German domination of Europe and other countries, which plan included and was intended to include and was reasonably calculated to involve the use of unlawful means for its accomplishment: TO wit
2. For the purpose and in pursuance of the common plan the defendants organised in Germany large forces for the terrorisation and elimination of dissent from or disagreement with the carrying out of the plan, and for the suppression of the Jews and in particular, the defendants established and maintained the Schutz Staffel, the Gestapo, the Hitler Youth Organisation and the system of concentration camps.
3. The defendants repudiated and broke Clause of the
Treaty of Versailles
by the establishment of a Luftwaffe of which establishment they gave official notice to foreign governments on the 9th March, 1935.
4. The defendants broke Clauses and of the said Treaty by reintroducing conscription in Germany and fixing the peacetime strength of the German Army at some 550,000 men by Reich Decree dated the 16th March, 1935.
5. That the defendants broke Clauses 42 to 44 of the said Treaty by sending Armed Forces marching into the demilitarised Rhineland zone of which notice was given to foreign Governments (namely, Belgium, France, Great Britain and Italy) on the said date.
German Army at some 550,000 men by Reich Decree dated the 16th March, 1935. 5. That the defendants broke Clauses 42 to 44 of the said Treaty by sending Armed Forces marching into the demilitarised Rhineland zone of which notice was given to foreign Governments (namely, Belgium, France, Great Britain and Italy) on the said date.
6. That having entered into treaties, pacts and agreements and having given assurances in purported pursuance of the maintenance of peace with neighboring countries the defendants broke such treaties, pacts, agreements and assurances as hereinafter set out.
Treaty etc. Breach
(a) Agreement with Schuschnigg, 11th July, 1936.- Invasion of Austria, 11/12th March, 1938.
(b) Four Power Agreement concluded at Munich on the 8th March, 1939. Invasion of Czechoslovakia, 15th September, 1938.
(c) Non-aggression pact with Denmark, 31st May, 1939. Invasion of Denmark, 9th April, 1940.
(d)
Non-aggression pact with Russia
, 23rd August, 1939. Attack on Russia, 22nd June, 1941.
(e) Assurance of neutrality given  to Yugoslavia. Attack on Yugoslavia, 6th April, 1941.
The Locarno Agreement of 10th May, 1925 and assurances given to Belgium on the 30th January 1937 and 26th August 1939. Invasion of Belgium 1940.
(g) Assurance given to Luxembourg on 26th August, 1939. Invasion of Luxembourg, 10th  May, 1940.
(h) Assurances given to Holland on 26th August and 6th October, 1939. Invasion of Holland, 10th May, 1940.
(i) Poland]
7. In breach of
Article 1 of Hague Convention No. III of 1907