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International Conference on Military Trials : London, 1945
Amendments Proposed by American Delegation, July 16, 1945
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MEMORANDUM to Conference of Representatives of the UNION OF SOVIET SOCIALIST REPUBLICS, the UNITED KINGDOM, the UNITED STATES OF AMERICA and the Provisional Government of FRANCE, Submitted by the UNITED STATES To Accompany Suggested AMENDMENTS to the Draft of the CHARTER Prepared by the DRAFTING COMMITTEE
1. It is suggested that there be added at the end of Article 10 a proviso reading as follows:
"provided notice deemed reasonable by the Tribunal is given all members of the organization and any such members desiring to be heard as witnesses regarding the criminal character of such organization are afforded an opportunity to be heard in such manner as the Tribunal deems fair and just."
2. It is suggested that there be added as a parenthesis after subparagraph (b) of Article 6 the following:
" (An invasion of another country in the absence of an attack upon, invasion of, or declaration of war against such country shall for purposes of this Agreement constitute the launching of a war of aggression)."
3. It is suggested that there be added as subparagraph 3 of Article 15 the following:
"Any Chief Prosecutor may (1) bring to trial before such International Military Tribunal any person in the custody of his Government or of any Government which consents to the trial of such person, and any group or organization, representative members of which are in the custody of his Government, if, in his judgment such person, group, or organization has committed any criminal violation of International Law defined in Article 12 hereof; and (2) introduce any evidence which in his judgment has probative value relevant to the issues raised by the charges being tried."
4. It is suggested that Article 22 be amended to read as follows:
or organization has committed any criminal violation of International Law defined in Article 12 hereof; and (2) introduce any evidence which in his judgment has probative value relevant to the issues raised by the charges being tried." 4. It is suggested that Article 22 be amended to read as follows:
"The Tribunal shall receive in evidence sworn or unsworn statements of witnesses, depositions, recorded examinations before or findings of military or other tribunals; the acts or documents of the Committees set up in the various Allied countries for the investigation of war crimes; copies of any official reports, publications and documents or other evidentiary materials and all such other evidence as is customarily received by international tribunals."
5. It is suggested that the matter in brackets in subparagraph (b) of Paragraph 18 be stricken. This matter reads as follows:
"And to prevent the use of the trial as a means of a dissemination of propaganda."
ROBERT H. JACKSON
Chief of Counsel for the United States of America
16 July 1945.
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 16, 1945
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SIR DAVID MAXWELL FYFE [presiding]. When we adjourned on Friday, we were -dealing with paragraph 10 of the subcommittee's draft of the charter [XXV], and we were in a certain difficulty with the conception of "notice".(1) It was suggested to me afterwards that it might be a helpful approach if we would provide that the Tribunal give notice, and I have a draft of an addition to article 10 for us to consider. I wonder whether this would carry out our wishes. I feel that there is no real difference among us, and I hope that something like this may help. Would it be convenient for me to go through it bit by bit so as to translate it and explain what each bit is?
"After receipt of the Indictment, the Tribunal shall give notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration . . . . "
may help. Would it be convenient for me to go through it bit by bit so as to translate it and explain what each bit is? "After receipt of the Indictment, the Tribunal shall give notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration . . . . "
That relates back to paragraph 10 as it stands unaltered. The Tribunal may declare in connection with any act of which the individual may be convicted that the group or organization of which the defendant is a member is a criminal organization and that any member of the organization may defend it who submits himself to the jurisdiction of the Tribunal. That is, in order to be heard at all, he must admit that the Tribunal is entitled to inquire into these charges; otherwise he would not be heard. And "through the defendants charged in their capacity of members of the organization"-that relates back to the discussion that we had on the agreement when, you remember, we put in these words that "whether they may be accused individually in the capacity of members of the organization," "be entitled to submit evidence or argument to controvert the allegation that the organization was a criminal organization." Those who come forward will be attached to them and through Kaltenbrunner's case they can either give evidence or produce arguments. The final words "that the organization is a criminal organization" then limit the extent to which he can be heard. He can be heard only on the question of whether the organization is a criminal organization. Number 10 would read:
case they can either give evidence or produce arguments. The final words "that the organization is a criminal organization" then limit the extent to which he can be heard. He can be heard only on the question of whether the organization is a criminal organization. Number 10 would read:
"After receipt of the Indictment, the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and that any member of the organization who submits himself to the jurisdiction of the Tribunal will be entitled to appear before the Tribunal and through the Defendants charged in their capacity of members of the organization be entitled to submit evidence or argument to controvert the allegation that the organization was a criminal organization."
Then 11 and 12 follow on from that, dealing with the subsequent trial of any member to be dealt with by the other courts.
GENERAL NIKITCHENKO. Is it proposed to retain the wording of 10 as it was adopted by the committee and then add this, or is it intended that this be substituted?
SIR DAVID MAXWELL FYFE. It is an addition. Retain 10 and put this at the end.
GENERAL NIKITCHENKO. I think this can certainly be accepted as a basis on which the delegations can work, and after they have had the opportunity of studying it at a later meeting it would be possible to look forward to definite views on the details. It is a basis to work on.
SIR DAVID MAXWELL FYFE. What do you feel, Mr. Justice Jackson ?
MR. JUSUCE JACXSON. I feel the same way.
SIR DAVID MAXWFLL FYFE. Then perhaps that would be the best thing, to leave 10 with that accepted as a basis, and I should be most pleased to get assistance from anyone on the details.
Now, paragraph 11, or should we leave 11 and 12 to fit in with the amendment to 10?
GENERAL NIKITCHENKO. There is a small point of drafting.
SIR DAVID MAXWELL FYFE. Then we will deal with number 12.
accepted as a basis, and I should be most pleased to get assistance from anyone on the details. Now, paragraph 11, or should we leave 11 and 12 to fit in with the amendment to 10? GENERAL NIKITCHENKO. There is a small point of drafting. SIR DAVID MAXWELL FYFE. Then we will deal with number 12.
GENERAL NIKITCHENKO. It may be that the drafting is not too good or it may be that the translation is at fault, but in the opinion of the Soviet Delegation it should read, "Any person condemned by the International Military Tribunal may be charged just to make it clear.
SIR DAVID MAXWELL FYFE. I do not think it is sufficiently clear. That is intended to cover any minor criminal, and the only point in it is that he may be charged with other crimes in addition to membership in the organization and punishment would be imposed accordingly.
GENERAL NIKITCHENKO. Your explanations have made it perfectly clear what was intended.
SIR DAVID MAXWELL FYFE. I should have liked to hear what the committee had in mind for the Tribunal in the last line.
MR. ALDERMAN. I think the word "Tribunal" in the next to the last line makes it clear, just as Sir David says. First he would be condemned by the Tribunal and pass then, if there was no charge of any additional crime, to another court. This is to condemn him for separate crimes in addition to the crime of membership in the organization. It would apply to a member of an organization which had been convicted in the Military Tribunal.
MR. JUSTICE JACKSON. I suppose the whole thing arises because of a complication in our law that does not obtain in all systems of law. Under our Constitution a person cannot twice be placed in jeopardy for the same offense, and the purpose here, as I read it, is to make clear that conviction of membership in the organization does not preclude subsequent punishment for other offenses. It is really a problem raised by the British and American law and perhaps not by the other systems of law.
jeopardy for the same offense, and the purpose here, as I read it, is to make clear that conviction of membership in the organization does not preclude subsequent punishment for other offenses. It is really a problem raised by the British and American law and perhaps not by the other systems of law.
GENERAL NIKITCHENKO. But it is said here "the punishment imposed by the Tribunal". Would that mean that the person had been before the Tribunal and had been convicted by it?
SIR DAVID MAXWELL FYFE. I thought it referred to minor criminals who had not been before it. It was not clear to me what was in the minds of the drafting committee. Perhaps Mr. Alderman would explain.
Mr. ALDERMAN. In the previous articles we have provided, in the case of the main Tribunal, that, if an organization is accused as criminal, notice will be given for members to come in. This article assumes one or more of such members have come in and subjected themselves to the jurisdiction of the court and have therefore been convicted of membership before the Tribunal. But later an occupation court finds one of them is guilty of murder. This provision would allow him to be convicted for the murder, in addition to having been convicted in the main Tribunal for his membership in the organization.
GENERAL NIKITCHENKO. Any person condemned by the Tribunal.
SIR DAVID MAXWELL FYFE. Certainly on that basis I agree.
PROFESSOR GROS. Would it mean major war criminals?
SIR DAVID MAXWELL FYFE. It might be people who had responded to notice given them to come in. It might be major or minor criminals.
MR. JUSTICE JACKSON. We might have a case like Frank, who is claimed to be both. We might try him and convict him before the International Military Tribunal, and he would still be triable by the Czechoslovakian authorities. The purpose of it, as I see it, is to save that kind of situation where one might be guilty of both kinds of crimes.
SIR DAVID MAXWELL FYFE. Then we accept the Russian suggestion.
him and convict him before the International Military Tribunal, and he would still be triable by the Czechoslovakian authorities. The purpose of it, as I see it, is to save that kind of situation where one might be guilty of both kinds of crimes. SIR DAVID MAXWELL FYFE. Then we accept the Russian suggestion.
GENERAL NIKITCHENKO. Perhaps we can re-examine the wording and put it as we think it ought to be and come back to that.
SIR DAVID MAXWELL FYFE. Now 13.
MR. JUSTICE JACKSON. On 13, I wonder whether it should be "in hiding", a term that might make us some trouble. I do not know how we could prove that some person is in hiding. I should prefer "if for any reason", unless there is some reason for putting it in that way.
GENERAL NIKITCHENKO. It is better as it stands. The wording should be "in hiding" as the article goes on to say that in the other courts for any other reason he could be tried in his absence; therefore this question of hiding does not really confine the meaning of the paragraph, and the paragraph is quite wide enough to carry any case that may arise.
MR. ALDERMAN. Wouldn't it be better draftsmanship to say, "if he has not been found", and then you need not have any debate as to what "hiding" consists of ?
GENERAL NIKITCHENKO. The Soviet Delegation considers that the present wording is better because it gives a definite example of the conditions in which the man may be tried in his absence if he is in hiding deliberately. If you use something like "if he has not been found", you may create an impression that they had not tried to find him and had simply condemned him unheard without taking the trouble to search him out.
MR. JUSTICE JACKSON. Under our rule of construction an American judge might very well say "for other reasons" means only reasons similar in character to "hiding", and you are taking the risk of limitation, as we see it.
to find him and had simply condemned him unheard without taking the trouble to search him out. MR. JUSTICE JACKSON. Under our rule of construction an American judge might very well say "for other reasons" means only reasons similar in character to "hiding", and you are taking the risk of limitation, as we see it.
GENERAL NIKITCHENKO. The judges who will be trying the case will be special judges, and they will not be bound by the ordinary rules and principles of the British, American, French, or Soviet judges. They will certainly be able to draw conclusions. Although a national judge might not, the international judge should find his way through this.
SIR DAVID MAXWELL FYFE. If we put "for any other reason" instead of "for other reasons", that may help to exclude the difficulty.
Number 15.
GENERAL NIKITCHENKO. After the words, "Each Signatory shall appoint a Chief Prosecutor", the Soviet Delegation would like to add, "to investigate the cases of the charges against the chief defendants and to prepare the cases against them".
SIR DAVID MAXWELL FYFE. Which really is to put the heading into the body of the agreement.
GENERAL NIKITCHENKO. Instead of having the statement, "Each Signatory shall appoint a Chief Prosecutor", by embodying the heading in the body.
SIR DAVID MAXWELL FYFE. I have no objection to that. Then is there anything on (a), (b), (c), (d), or (e) ?
GENERAL Ni-KITCHENKO. There is a point about (e). Is it necessary to have (e) in at all? Would not 15 be sufficient without having this?
SIR DAVID MAXWELL FYFE. The main point is, first, to help the Tribunal by giving them something to work on, and second, to save time because we don't want to have the Tribunal when we get close to the period of the trial spend a lot of time in the rules if we can agree now on something that would be helpful to them.
GENERAL NIKITCHENKO. In principle there is no objection.
them something to work on, and second, to save time because we don't want to have the Tribunal when we get close to the period of the trial spend a lot of time in the rules if we can agree now on something that would be helpful to them. GENERAL NIKITCHENKO. In principle there is no objection.
Mr. JUSTICE JACKSON. Well, I repeat the point which was made before: as against our own prisoners, we would not want the provision if prosecutors were bound by a majority vote. What is the situation practically about this? We have gone ahead trying to get our evidence and to prepare our case. Many decisions have to be made in the course of it. Yet no decision will have validity under this provision unless a third nation joins in it. We don't want to interfere with anyone else's case against his prisoners, but we do want to be free to use evidence we have been getting against prisoners in our captivity whether others wish to or not. This is a very broad limitation on each prosecutor, as it stands. It is so broad that it may mean a great deal of misunderstanding. As we have pointed out, it does not seem acceptable to us without the reservation which we made in our memorandum [XXIX].
SIR DAVID MAXWELL FYFE. Is it a real matter of envisaging the possibility of disagreement in the final designation of the defendants? It does not seem to me that the other (a), (b), (c), and (d) are likely to cause much trouble by this agreement.
without the reservation which we made in our memorandum [XXIX]. SIR DAVID MAXWELL FYFE. Is it a real matter of envisaging the possibility of disagreement in the final designation of the defendants? It does not seem to me that the other (a), (b), (c), and (d) are likely to cause much trouble by this agreement.
MR. JUSTICE JACKSON. My first difficulty is with (a) because I do not know what it comprehends, and I am always afraid of terms I cannot understand. By majority vote all prosecutors are to coordinate the work of individual prosecutors. Well, we have our way of doing our work, and it may be difficult to coordinate. I find it difficult at times to coordinate my own staff without trying to coordinate four countries. I don't think that (c) is particularly troublesome, nor (d), and I doubt that you will have any trouble about (b), but I don't know what the situation is as to defendants. I know in a pretty general way what prisoners are in the hands of the British and in the hands of the Americans. I don't know what prisoners are in the hands of the French nor of the Russians. I don't know what personalities they will ask us to deal with. But we have a considerable group of people who we think come under this classification as major war criminals. I think we have various listings running as high as 350 which the Judge Advocate General's office has classified as such. Our list runs into quite a number of people. I don't want them left on our hands. We have tried to group them to avoid more than one trial. The complication is in trying to reach in a single trial a very large number of people, but we do not want to go through a large number of trials if we can avoid it.
SIR DAVID MAXWELL FYFE. What is your suggestion, Mr. Justice Jackson, as to the qualification of this?
to avoid more than one trial. The complication is in trying to reach in a single trial a very large number of people, but we do not want to go through a large number of trials if we can avoid it. SIR DAVID MAXWELL FYFE. What is your suggestion, Mr. Justice Jackson, as to the qualification of this?
MR. JUSTICE JACKSON. I would restore the language of the former draft. If you get into a situation where there is a tie among prosecutors and nobody has a majority, the case is stalled under this draft. I cannot envisage leaving this in a position where we could be stalled.
SIR DAVID MAXWELL FYFE. On this point I feel that I agree that it is a theoretical possibility. I don't think there is much reason for disagreement in practice. hat is my approach to the matter. I cannot imagine myself fighting very hard for the exclusion of any of the people I have had to consider so far, and, personally, I should be prepared to agree to a majority vote, but I am very anxious that we should not break down on this. I do not know whether the other delegations have the proviso of the original American draft in front of them.
of any of the people I have had to consider so far, and, personally, I should be prepared to agree to a majority vote, but I am very anxious that we should not break down on this. I do not know whether the other delegations have the proviso of the original American draft in front of them.
PROFESSOR GROS. I should like to support your views. We think also that there might be some disagreement but cannot see why that should happen. On the other side, we take the constitution of the Tribunal as a combined operation, and we would like to add complete cooperation between the four prosecuting officials to make it stronger. The solution which is presented by the American draft would be only in exceptional cases, and also, I might say, it would not be too good to have two categories of persons on trial, one where unanimity would appear and the other where there was dissent between the Allied nations. It would also help the Germans in criticism of the work of the Tribunal. They would say we were divided, and I should be in favor of keeping the necessary staff cooperation because, if one or two prosecutors are not ready, I think it would be better to wait for them than to have one. It would be dangerous to have such a clause.
PROFESSOR TRAININ. We do not foresee any practical difficulty any more than the French member. He is quite convinced that in the majority of cases all steps will be taken unanimously, but I do foresee considerable difficulty if it is possible for only one of the prosecuting officers to take charge of a case. The constitution of an international tribunal is really composed of two parts, the investigation of the case and the trial itself. Both the investigation and the trial are on an international basis. Now, if it is permitted that the prosecutor representing one country could carry a case through himself, that completely destroys the international character of the whole case.
parts, the investigation of the case and the trial itself. Both the investigation and the trial are on an international basis. Now, if it is permitted that the prosecutor representing one country could carry a case through himself, that completely destroys the international character of the whole case.
SIR DAVID MAXWELL FYFE. I was not quite clear on this. Did you mean in the vote by which the Chief of Counsel should be able to bring forward defendants?
PROFESSOR GROS. I am afraid to put it in the statute that one prosecutor could bring a person to trial because the trials in the main are by the United Nations. We are pooling the war criminals and charging them in the name of the whole United Nations. I would like to find some phrases to meet the American delegate's idea, but I am convinced that it shall not be something that can be used immediately because one or two prosecuting officers are not ready. If two agree, after discussion by all, to include a defendant, be should be put on trial.
SIR DAVID MAXWELL FYFE. I gather Professor Gros' suggestion is that, in the event of equality of vote after discussion on the part of four Chiefs of Counsel, then the American provision would apply.
MR. JUSTICE JACKSON. That would be satisfactory. I would not want to do anything three of my associates are against, but I have been worrying along preparing a case for several weeks now and do not want to have to be delayed here too long.
GENERAL NIKITCHENKO. There is another way out of it. The point here is in regard to majority of votes, and the trouble would arise in the case of 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?