dtufail/nuremberg-trials-corpus huggingface dataset:
to the contents. Perhaps we could just have a look at the drafting and bring it up with the other reserved matters, but I see no objection. MR. ALDERMAN. It seems to me the first one is covered already by article 15 (2) (d) and (e). PROFESSOR TRAININ. That rather stipulates or defines the right of the prosecution, but we think there should be a definite article defining the rights of the prosecution and who is entitled to act for the defense. MR. ALDERMAN. The other seems to be covered completely under "Fair Trials", (b) and (e). SIR DAVID MAXWELL FYFE. I agree and support Professor Trainin as to the inclusion of the first sentence. I think that ought to be made clear, that either one or several of the prosecutors should take part, but think it should be made clear that each of the four will be entitled to put forward whatever part of the case is decided. PROFESSOR TRAININ. There is, of course, a certain amount of repetition in the additions suggested, but article 16 merely stipulates guaranties offered to the accused persons, whereas I would like to see two articles setting out the exact functions. SIR DAVID MAXWELL FYFE. Perhaps we could leave that. We all want these points made clear. That would come in at the end of 25, or at the end of 21 or 23. Now shall we go to "Judgment and Sentence", number 26? Numbers 27? 28? MR. ALDERMAN. Will we use "sentenced" or "convicted"? I do not know why the brackets were around that. MR. JUSTICE JACKSON. We would not want to use the words "confiscation of property". We have no such penalty, and for historical reasons that -would be extremely unacceptable to the American people. I don't know whether there is any point in arguing the merit of our position; it may be entirely wrong. Our view is that a fixed money penalty may be assessed but to confiscate a, defendant's property, along with a death sentence, -would be to punish his family, not him, and we just don't do it. It would be somewhat obsolete as a penalty-like drawing and quartering. It is the kind of penalty we don't impose. I don't suspect these people will have very much left to confiscate anyway. I think it is a provision that is not very practicable. I do not want to
and we just don't do it. It would be somewhat obsolete as a penalty-like drawing and quartering. It is the kind of penalty we don't impose. I don't suspect these people will have very much left to confiscate anyway. I think it is a provision that is not very practicable. I do not want to include the term but am quite willing that a penalty payable in money, a fixed penalty, be assessed; but the words "confiscation of property" would set pretty badly with Americans. SIR DAVID MAXWELL FYFE. We take it in two stages. The courts have a complete right to impose a qualified money penalty, but that can be levied on the goods and property of the defendant. MR. JUSTICE JACKSON. That is right. SIR DAVID MAXWELL FYFE . There doesn't seem to be a great deal of difference in effect. PROFESSOR TRAININ. In the case of the death penalty, can a money fine be imposed? SIR DAVID MAXWELL FYFE. It is possible. It has not been done in my experience, but I do not think there is anything to prevent it. PROFESSOR TRAININ. I would like to take that into consideration but find it difficult to conceive it alongside a penalty of death. It is a question after all of drafting. Perhaps we could find a more suitable word. The word "fine" does Dot appeal to us very much but we would consider another term instead of "confiscation". SIR DAVID MAXWELL FYFE. The principle is that the Tribunal shall have the right to impose a qualified money penalty which will be leviable on the goods, property, or estate of the defendants. PROFESSOR GROS. There is a difference between the question of "fine" , which is quite easy to understand, and the question of confiscation". We would not see any objection to confiscation of property which had been stolen. SIR DAVID MAXWELL FYFE. We have a procedure whereby restitution may be ordered of stolen property, and I should be pleased to have a suggestion to cover restitution. PROFESSOR TRAININ. That would be quite all right-deprivation of looted property. SIR DAVID MAXWELL FYFE. Well, we would include that in the redraft. Now, number29? Number30? What is the difficulty here, Mr. Alderman? MR. ALDERMAN. Our views are that the expenses of the Tribunal and of the trial ought to be charged against
That would be quite all right-deprivation of looted property. SIR DAVID MAXWELL FYFE. Well, we would include that in the redraft. Now, number29? Number30? What is the difficulty here, Mr. Alderman? MR. ALDERMAN. Our views are that the expenses of the Tribunal and of the trial ought to be charged against the funds allotted for the maintenance of the Control Council but that the expenses of individual prosecutors of the four countries, like the money spent in America and London, ought to be borne by each signatory rather than by the Control Council. SIR DAVID MAXWELL FYFE. Does anyone want to press for the inclusion of the expenses of the Chiefs of Prosecutors--for the alteration of this text? The position is that the following points are still outstanding, and I ask your help on this. On paragraph 10 there is a British draft which has been accepted in principle subject to consideration. Paragraph 15, the resolution of differences between Chief Prosecutors, and the redraft of 21 and 22 which Mr. Alderman has provided this morning. There will be a redraft of 23 to meet what we decided this morning, two additions by Professor Trainin, and a redraft of number 28. Now it seems to me that the best course would be to use this morning on paragraph 6 and then try to provide redrafts which would be circulated tomorrow of the various outstanding points. MR. JUSTICE JACKSON. It seems to me the time has arrived when the heads of the delegations will have to sit down and reconcile language where there are minor changes, since language is so important. The exact language will have to be settled, and I don*t know whether it can be done expeditiously except to sit down as heads of delegations and bind our people for better or worse to something. SIR THOMAS BARNES. It would be better to redraft these things and then the heads of the delegations settle upon it. GENERAL NIKITCHENKO. Perhaps it would be better to entrust to a drafting subcommittee the task of working out the texts of those articles which are no longer doubtful, and by the time that that task was completed perhaps the heads of delegations could get together and submit agreed proposals for the texts of the disputed articles, particularly
better to entrust to a drafting subcommittee the task of working out the texts of those articles which are no longer doubtful, and by the time that that task was completed perhaps the heads of delegations could get together and submit agreed proposals for the texts of the disputed articles, particularly article 6. SIR DAVID MAXWELL FYFE. I am not quite clear. Would the drafting committee cover these outstanding ones that I mentioned this morning? GENERAL NIKITCHENKO. Yes-those where differences in drafting lie-because in principle we have agreed, except for article 6, which could be discussed by the heads of delegations. SIR DAVID MAXWELL FYFE. Well, I think there was, on paragraph 15, a question of the majority vote. GENERAL NIKITCHENKO. In 15 it would be necessary to I ay down the principle that, if there is a difference, the chairman should have the deciding vote. SIR DAVID MAXWELL FYFE. Well, I think that is a matter we could profitably discuss between the heads of the delegations. We reserve that for them. PROFESSOR GROS. I am afraid I must point out some difficulties on article 6; so I shall ask the Conference to discuss it or have it discussed by the heads of the delegations. SIR DAVID MAXWELL FYFE. Would it be useful if we occupied the next hour by a preliminary discussion on article 6 so that we would know what the general views are? GENERAL NIKITCHENKO. I hardly think it would be possible in the course of an hour to decide the various points still under dispute in article 6, particularly (c) and (d). Perhaps it would be better to leave it until tomorrow. SIR DAVID MAXWELL FYFE. Would it be possible for the delegations who have alterations to let us have a note of the alterations before we start discussing? MR. JUSTICE JACKSON. Could we not get each other's views here ? I am sure I am not informed as to what the objection is. I have the French draft of objections. PROFESSOR GROS. We agree completely with the intent, but we would like it formulated in a more careful way to avoid any discussion by international lawyers in the next months or years to come. SIR DAVID MAXWELL FYFE. I am very anxious to meet everyone's views, but on the other hand we are
draft of objections. PROFESSOR GROS. We agree completely with the intent, but we would like it formulated in a more careful way to avoid any discussion by international lawyers in the next months or years to come. SIR DAVID MAXWELL FYFE. I am very anxious to meet everyone's views, but on the other hand we are all anxious to get on with the matter and I gather that the Soviet Delegation would like to submit a draft of their views. Is that so? GENERAL NIKITCHENKO. No, there will be observations on the existing draft. SIR DAVID MAXWELL FYFE. But will they be in writing? GENERAL NIKITCHENKO. There is no intention of submitting a new draft. SIR DAVID MAXWELL FYFE. It is only a third writing, and we would like to have it submitted in writing. GENERAL NIKITCHENKO. We will submit it in writing tomorrow morning. SIR DAVID MAXWELL FYFE. Could we meet tomorrow afternoon ? If General Nikitchenko, Mr. Justice Jackson, Professor Gros, and I meet to consider article 6 tomorrow, could Professor Trainin, Mr. Alderman, Mr. Barnes, and Judge Falco meet to consider the cleaning up of the draft? PROFESSOR TRAININ. Perhaps it would be quicker if the drafting committee met in the morning. PROFESSOR GROS. Let the heads of the delegations discuss 15 (b) SIR DAVID MAXWELL FYFE. Shall we use the time by discussing 15? GENERAL NIKITCHENKO. The only doubtful part of 15 is the last paragraph. SIR DAVID MAXWELL FYFE. In my view there are two points outstanding on 15 (b) after our discussion. The first is the question of the final designation of the defendants under (b). Our discussion rather went on the line, on that point, that one delegation might want to prosecute a defendant and that, on its being put to the prosecutors, there might be an equal division. That was the problem that was raised. I am in favor of bringing in the defendants, that is, in case of doubt. Quite generally, I think I would rather see a defendant in than see him out. And I myself on that point would be prepared to commit the British Delegation to this: that once our defendant was proposed by a Chief Prosecutor, he should not be excluded from trial unless there were a majority of three to one in favor of exclusion. That seems to me to encourage the
him out. And I myself on that point would be prepared to commit the British Delegation to this: that once our defendant was proposed by a Chief Prosecutor, he should not be excluded from trial unless there were a majority of three to one in favor of exclusion. That seems to me to encourage the trial. Now on the other points, that is, coordination of individual work, approval of the indictment, and the lodgment of the indictment and rules of procedure, I should have thought that the draft would be satisfactory, that in these matters the positive would have to have the majority. I draw a distinction myself between it and the exclusion of a defendant. I want that to be made as difficult as possible, but on the other matters I am prepared to accept the draft. There would not be a casting vote. There would be a vote of three to one. GENERAL NIKITCHENKO. If there is a division of votes two to two, the person would be prosecuted. SIR DAVID MAXWELL FYFE. That is just my suggestion in case of doubt about prosecuting. But apart from that, I prefer to leave that as it is. JUDGE FALCO. We agree, MR. JUSTICE JACKSON. Well, I don't like to be alone, but I have always found that the safest thing to do when you do not understand is to say "No", and I do not understand what I am committing myself to in 15 (1) (a). There are literally thousands of decisions which will have to be made from hour to hour and day to day and -which are not minor matters. It is not at all unlikely we shall have a two to two division. We have seen it here at this table. I would not want to insist on going ahead with something that no one of my colleagues would agree to. But we have basic differences of viewpoint with regard to certain points in this case. For instance, I personally am much more concerned about the possible disagreements over the documents to be submitted, in view of the views expressed here, than I am about the particular defendants to be prosecuted. I think we would have little difficulty on that. But in the coordination of work of the chiefs of prosecution and their staffs, if that must be submitted to a majority vote, we cannot have a majority for anything, at least for some weeks, because we haven't the other
defendants to be prosecuted. I think we would have little difficulty on that. But in the coordination of work of the chiefs of prosecution and their staffs, if that must be submitted to a majority vote, we cannot have a majority for anything, at least for some weeks, because we haven't the other prosecutors. I think we are in a state of stall that makes this plan unworkable. I do not think giving the vote to a rotating chairman, so that adoption of a proposal might depend on which day you brought it up, would be a workable plan. I don't know how you intend to rotate-I've never understood it-but I am wondering what result you would get. It seems to me that the only suggestion that meets our needs would be that the same arrangement that the Attorney-General suggests as to the determination of defendants applies to the determination of policies on which they shall be prosecuted. In other words, if there is an equal division, the side which has the possession of the prisoner may go ahead. I would not see any workable plan other than that, and I think we must provide it. It does not derogate at all from the international character of this agreement. It must provide what will occur in case of an equal division in prosecutors if we are going to have things determined by formal vote of the prosecutors. GENERAL NIKITCHENKO. Regarding the problem of coordination, the Soviet Delegation imagines that there is no real necessity for every single step of each single prosecutor to be coordinated. Coordination should occur, but coordination to the general plan of prosecution, and in execution of the plan each should be entitled to independent action. When all the Chief Prosecutors have been appointed, they should get together and decide and advise one another who is going to deal with a particular case and who is going to investigate a particular accusation. That is considered essential. Each could then have freedom to deal with that particular case. Until the other countries have appointed prosecutors, the Chief Prosecutors appointed and who are ready should be entitled to carry on their work. Perhaps it would satisfy Mr. Justice Jackson if a single word or two were added to subparagraph (a), " . . . in coordination with
with that particular case. Until the other countries have appointed prosecutors, the Chief Prosecutors appointed and who are ready should be entitled to carry on their work. Perhaps it would satisfy Mr. Justice Jackson if a single word or two were added to subparagraph (a), " . . . in coordination with the general plan and with the work of each of the Chief Prosecutors and his staff." SIR DAVID MAXWELL FYFE. What I would suggest is that we redraft this more fully, including what General Nikitchenko suggests. The drafting committee could elaborate on this. MR. JUSTICE JACKSON. Well, I think General Nikitchenko's suggestion meets my problem as to (a), and I agree with him fully that in those things there must be a common plan. My problem is this and I think it is a very real one and very fundamental-what happens when two of us favor one plan and two of us another, as for example, what should go into the indictment and what should go in at the trial? We approach this from different systems of law and practice and different traditions. Now, my view is, if it is an American prisoner and I want to charge him and one of my associates agrees, I should be entitled to do so. I would not want to do it unless one of my associates did agree. In other words, the absence of an agreement should not stall our case. I think every agreement which is intended to function by majority rule where an equal division is possible should make provision as to what happens in case of a tie vote. My difficulty in the question of applying the principle that the chairman shall cast two votes in case of a tie is that we have settled nothing as to who shall be the chairman. Does rotation mean by the week, by the day, or by the trial? You have the possibility of equal division as to choice of a chairman, and, if the selection of a chairman is revolving, other questions arise. I think it would be most unfortunate if the way a thing was decided depended upon when it was brought up and who happened to be in the chair at the moment. Where we chiefly use the casting vote is in the case of a person who has no vote in bringing about the tie, like the Vice President, who votes in the Senate
most unfortunate if the way a thing was decided depended upon when it was brought up and who happened to be in the chair at the moment. Where we chiefly use the casting vote is in the case of a person who has no vote in bringing about the tie, like the Vice President, who votes in the Senate if there is a tie, but who does not vote in producing a tie. He has no vote other than a deciding one. So I don't think it is workable in this situation, and I would not be able to agree to an arrangement that I think might not work. SIR DAVID MAXWELL FYFE. I still feel that the only way of dealing with this is to get out a compromise on paper to try to make the different points and discuss that with the heads of delegations tomorrow. If I may assume the task myself, I will try to get out what I consider a fair compromise, and then we could deal with it tomorrow afternoon. I firmly believe that four reasonable men, animated by the same keen desire, could break down and find a way. Then shall we adjourn now on the understanding that the drafting committee meets tomorrow morning at 10: 30 to clean up the draft and the heads of delegations meet at 2:30? MR. JUSTICE JACKSON. One other thing is suggested on this. I think there should be an arrangement whereby a nation may appoint a successor to its Chief Prosecutor because, candidly, it is suggested by my personal situation. The American plan contemplated cleaning this thing up in one trial or, at the very most, a very few trials. I shall not be able to remain for the life of this agreement and shall not be able to go through a number of trials. I shall submit to the President the question of whether he should choose my successor before a trial or after one. But I would want no misunderstanding-if we desire to change prosecutors, it is not a question of my own or my country's bad faith or receding from the agreement. 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
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
Report of American Member of Drafting Subcommittee, July 19, 1945
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MEMORANDUM TO MR. JUSTICE JACKSON
19 July 1945
Subject: Report of Drafting Subcommittee Session of Thursday, 19 July 1945.
1. The Drafting Subcommittee spent the morning of Thursday 19 July 1945, working on the redraft of the agreement and of the charter. There was no trouble about the agreement; only a few slight verbal and punctuation changes were made.
2. In revising the charter we, of course, skipped over Article 6 and Article 15, which were to be dealt with by the heads of the delegations in the afternoon meeting of Thursday, 19 July. We made a number of verbal changes without particular difficulty until we reached Article 17 in which we were to merge subparagraphs (e) and (g). Sir Thomas Barnes and I had redrafted this merger of the two subparagraphs as follows:
"(f). to appoint interpreters, reporters, clerks and other officials, either generally or for a particular case. In particular, if at any time during the Trial it shall be established by the Tribunal that (for a reason which the Tribunal finds sufficient) a witness cannot be brought to the place of trial, then the Tribunal shall have power to appoint a special officer to take the evidence of such witness and to report to the Tribunal. Persons so appointed shall, before assuming their duties, if required by the Tribunal take an oath in a form provided by the Tribunal."
3. Professor Trainin objected to this and proposed a much more general formula to the following effect:
"The Tribunal shall have the power to appoint officers (secretaries, interpreters, etc.) for the carrying out of tasks of a subsidiary nature. The functions and duties of these officers shall be set forth by the Tribunal in the Rules of Procedure,"
a much more general formula to the following effect: "The Tribunal shall have the power to appoint officers (secretaries, interpreters, etc.) for the carrying out of tasks of a subsidiary nature. The functions and duties of these officers shall be set forth by the Tribunal in the Rules of Procedure,"
4. Sir Thomas Barnes and I argued that the Tribunal has no inherent powers and will only have such powers as the signatories confer on it, and insisted that we put in expressly the power to appoint examiners or to issue letters rogatory. Professor Trainin thereupon agreed that the Tribunal would have the power to appoint officers and to decide what functions it would give them. After much discussion I smoked him out on whether he would agree now to insert the word "examiners" in his formula. He refused to do this and it finally became quite clear that he did not intend or wish the Tribunal to have the power to appoint examiners.
5. In our argument on this point Sir Thomas and I were fully seconded by K Falco, in spite of the fact that the French procedure does not provide for special masters or examiners. We were entirely unable to bring Professor Trainin around, and the whole question had to be reserved for discussion at the plenary sessions.
SIDNEY S. ALDERMAN
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