dtufail/nuremberg-trials-corpus huggingface dataset:
is an unprecedented case, that we were not wise enough to adopt in advance rules that were all-inclusive to meet all situations. I would like to see a liberal rulemaking power left in the court to meet all unforeseen situations as are apt to arise. We have not been through this kind of trial before, and it therefore is not so simple as drafting a statute to govern an everyday litigation. GENERAL NIKITCHENKO It is, of course, impossible to foresee all the details that should be included in a statute of this kind and I agree that the court which is to be set up must have the power to elaborate detailed instructions that will be necessary; but we are afraid the actual wording of this paragraph number 8, as it is, rather implies that if we do not here and now define basic principles for government of the International Tribunal, it will be left then to the Tribunal itself when set up to do that work, and it would delay the work of the prosecutors. MR. ROBERTS. May I say that it is our view, too. We would like to draft some rules by agreement although we quite understand that the Tribunal will have the power to modify or extend those rules, but we share the Russian fear that this paragraph as it is might lead to duplication and delay. GENERAL NIKITCHENKO. This is a change we can discuss in a memorandum, but we could leave the text as it stands now in the statute and arrange that when necessary. The Tribunal may later elaborate or extend. MR. JUSTICE JACKSON. I assume you mean that a memorandum will be prepared by the Soviet which will indicate the type of rules which you think should be incorporated. We do not object to adding any rules we feel should be incorporated as we go along. The next paragraph of the draft is simply designed to make clear that each country retains the right to set up its own tribunal for any accused that are not reached by this. GENERAL NIKITCHENKO. I quite agree. MR. JUSTICE JACKSON. We take up next the subject of charges and procedural law we know, which is our own system, and we put it forward against that background, of course. [Here the Justice read -from paragraph 10.] "The parties to this Agreement agree to bring to trial before an International Military
I quite agree. MR. JUSTICE JACKSON. We take up next the subject of charges and procedural law we know, which is our own system, and we put it forward against that background, of course. [Here the Justice read -from paragraph 10.] "The parties to this Agreement agree to bring to trial before an International Military Tribunal, in the names of their respective peoples, the major criminals, including organizations, referred to in Article I " The next paragraphs are amplifications to some extent recommending additional measures and maintenance of relations with any groups that are interested in the prosecutions, including any of the United Nations which are not included in the prosecution. While this is a very sketchy provision about the prosecution, it was understood by us when we were preparing it as embodying our usual method of prosecution by which the prosecution proceeds entirely without consultation with the court and without the court's knowledge or participation in any way. Our system contemplates a complete separation of the function of hearing charges from the function of prosecution. It is a separation of functions which is a very deep-seated part of our legal philosophy, and it is against that background that it is put forward. GENERAL NIKITCHENKO. It would be desirable if we could be given a more detailed explanation of prosecution in the United States, the actual raising or preparing of a charge as applied to the tasks which lie before the International Tribunal here. MR. JUSTICE JACKSON. I can give you a little more clearly what I would envisage in the light of our system. Our first task as prosecutors, as we see it, is to get the evidence in the case. We would not wait for any court to be set up to do that because we think of that as a prosecutor's function, and therefore we have already started work on it and have many people trying to examine captured orders and reports. We have interrogated prisoners of war, interrogated civilian prisoners taken since the surrender, interrogated witnesses, and gathered all of the evidence we can get in proof of the charges. Then we envisage the preparation of an indictment or bill of accusation you can
and reports. We have interrogated prisoners of war, interrogated civilian prisoners taken since the surrender, interrogated witnesses, and gathered all of the evidence we can get in proof of the charges. Then we envisage the preparation of an indictment or bill of accusation you can call it by various names-in which we would select persons indicated by the evidence to be guilty, they would be charged with crimes, and that indictment would then be presented to the court. That would be the first time there would be any contact between the prosecutors and the court in our system-when the charges are presented. That brings the case into court-when you have an indictment. The Court would then have nothing before it except the indictment but it would fix the time of trial and might assign counsel. On the trial date we would produce in court all of our evidence. The court would not h ave the evidence merely as a result of its being gathered by the prosecutors but it would have received it in open session. Documentary proof, as we call it, would be offered and some facts would be established by "judicial notice", which means it would not be necessary to prove them. Oral testimony would be received. The decision would then be made, based on the evidence that was produced before the court by the prosecutors. The court would take no responsibility for the production of any part of the proof. It would have no part in the prosecution. It would simply have one function, to receive and weigh evidence and determine the question of guilt. That in a crude way is a statement of our procedure. PROFESSOR TRAININ. The basic problem is whether the International Military Tribunal requires an auxiliary body, and I understand from the document which has been submitted and from the explanation of the United States Representative that both the Soviet and American Representatives hold the same view, that some body for the purpose of investigation is necessary; so both delegations make the same reply to that question. There is agreement apparently on the second point, that the commission of inquiry works independently and draws up the indictment. In that way, one is called "commission of inquiry" on the Russian side and "Prosecutor" on the American. Both
necessary; so both delegations make the same reply to that question. There is agreement apparently on the second point, that the commission of inquiry works independently and draws up the indictment. In that way, one is called "commission of inquiry" on the Russian side and "Prosecutor" on the American. Both delegations agree on the function of drawing up the indictment. Then there is the third task of bringing in the indictment before the Tribunal. On that point there seemed to be slight difference because the American proposal suggests there is no need to provide any additional material. The court can decide only the actual form of indictment. That, of course, is a point which can be discussed later. Since the United States proposal foresees the necessity for the prosecuting body to conduct investigation and draw up the indictment, both delegations are sufficiently close to one another. MR. JUSTICE JACKSON. I am afraid that we are not quite as close as Professor Trainin states, but I hope we may be. We think the indictment might properly refer to some facts of which the court might take judicial notice, but our system contemplates bringing into the court after the indictment all of the proof. The indictment itself merely shows that one is accused and informs him of the charges against him, but the indictment itself is not much more than a notice of trial and of the charges and does not stand as evidence. Therefore, the prosecuting officers would conduct the trial at which all the proof would be brought out. I do not know whether the difference between us is, or just how much of the difference is, a matter of words and how much a matter of substance. I think both will have to develop our ideas as we go along. I should like to ask how the French would handle this prosecution. JUDGE FALCO. I do not insist upon the adoption of the French System because we are working on a new thing in this International Tribunal. I want to explain the French system to see whether there are better ideas to be used in the new International Tribunal. The prosecution is made in France by a magistrate (juge d'instruction), and after that the prosecuting officer looks over the case and sums up the charges to present to the judges.
Tribunal. I want to explain the French system to see whether there are better ideas to be used in the new International Tribunal. The prosecution is made in France by a magistrate (juge d'instruction), and after that the prosecuting officer looks over the case and sums up the charges to present to the judges. The prosecuting officer is put in charge of the case, and the witnesses are interrogated. The court is outside of the prosecution and must not interfere with the prosecutor, so that there is a great similarity with the American system as it has been exposed by Mr. Justice Jackson. The French could not see any advantage in mixing the thing and having the court participating in the prosecution. We think it would be simpler to leave the prosecution in full charge of the prosecutors, and that leaves the court sitting and judging apart from the prosecution. The situation between the court and the prosecuting officer is such that not all procedure which has been had before the court hearing is taken into consideration by the court. The court takes the case as a new thing and does not look into the procedure which has been made before. PROFESSOR TRAININ. The Soviet system shows independence of function between the prosecuting body and the court itself. The court could not be satisfied merely with written depositions. It must also have oral proceedings. We have agreed on the basic principle that there must be a preparatory or auxiliary body, but it seems the difference arises as to the functions of that latter body. According to the United States proposal, if we have understood it, the first step is for the prosecuting body, which would be the commission of inquiry in the Soviet system, to gather together all the evidence and sum it up into a form of indictment, and the second step is hearings before the Tribunal; but, if that indictment is merely a form of statement of the case against the criminal, it would not be sufficient. If necessary, additional evidence or material would be called for. The alternative which seems to be contemplated in the United States draft seems to be a rather complicated process and would hold up the Tribunal if there were two independent procedures established. The court should have power independently
If necessary, additional evidence or material would be called for. The alternative which seems to be contemplated in the United States draft seems to be a rather complicated process and would hold up the Tribunal if there were two independent procedures established. The court should have power independently to value the indictment and call for any other material desired. The point is that it is necessary for this preparatory or auxiliary body to continue and complete the evidence in the form of an indictment so that the process should be whole and complete and the court, when the indictment is brought before it, will be in a position to adopt a formal decision without any further delay. The evidence would be handed in with the indictment. MR. JUSTICE JACKSON. It might be well to clear up a misunderstanding. Our indictment is merely a charge. It merely accuses and names the crime of which it accuses, tells briefly where it was committed and when, and does not give evidence. For instance, if you are indicting a man for murder, your indictment charges that on a certain date at a certain place he did commit murder by shooting such a person, causing his death, against the law and the peace and dignity of the state, and he is therefore accused. You do not set forth the evidence in the indictment. You merely start the case in motion, and then the trial is for producing the evidence; I think that is where our basic difference has been-over the nature of the indictment. [Here the Justice addressed the British Delegation.] I assume your form of indictment, which we largely copied, is very similar. MR. ROBERTS. Much the same. In the charges the accused is given sufficient particulars for him to know with what he is charged so that he can prepare his defense. We, I think, on this side of the table entirely agree with the procedure which the French outlined and which they say they are prepared to recommend to their Government. JUDGE FALCO. In a French bill of accusation it would be a little more complicated than what Justice Jackson said but more or less on the same line. It would be a little longer, beginning with indication of the facts and followed by indication of the proof and evidence which
to recommend to their Government. JUDGE FALCO. In a French bill of accusation it would be a little more complicated than what Justice Jackson said but more or less on the same line. It would be a little longer, beginning with indication of the facts and followed by indication of the proof and evidence which have been gotten by the prosecuting officer and indication of the law which applies. We would not suggest that it be adopted by the International Tribunal, which is an entirely new creation, but as indicated in French law the court can always call for now witnesses or new evidences so that we might also think along those lines. GENERAL NIKITCHENKO. I think the system of prosecution as it is practiced in the Soviet Union does not at all differ from that practiced in France as explained at this table. The prosecutors are independent in their investigation and drawing of the charge of indictment. They submit that document to the Prosecutor General, who can ask for additional material and who has to confirm and authorize the indictment before it is submitted to the court. There are prepared, of course, details of the evidence that is advanced in support of that charge, and the document concludes with the indictment as in France. So there is really no difference between the Soviet procedure and the French. There does seem to be a difference between their system and that of the United States and the United Kingdom, where the material does not go to the court, but only a formal indictment. If it is now suggested that the French proposal is really the equivalent or fits in with the United States and United Kingdom systems, it seems to be a misunderstanding, because the resemblance is really between the French and Soviet systems. There is no suggestion on the part of the Soviet Delegation to apply the whole Soviet system to the trial of war criminals. We should aim to simplify procedure and to facilitate the work of the courts. Therefore, there should be the two stages of, first, preliminary collection of material-on that point there does not seem any difference of opinion-and then, the second point, a special body which is to accomplish that task. The difference apparently is on the point as to whether the material is to be submitted
courts. Therefore, there should be the two stages of, first, preliminary collection of material-on that point there does not seem any difference of opinion-and then, the second point, a special body which is to accomplish that task. The difference apparently is on the point as to whether the material is to be submitted to the court or whether it is to be kept by the prosecuting officers. In the view of the Soviet Delegation, if the court XXXXXX and reference should be made in the indictment as to the reasons for the charges advanced, giving the evidence that has been collected and leaving it with the court as completely presented. The court should not be confined merely to preliminary investigation, but, as additional evidence is required, it should be in the power of the court to ask for it. The court, of course, continues to be completely independent. MR. JUSTICE JACKSON. I think I have failed to make clear that in our practice the evidence is passed to the court but is passed at a stage subsequent to the indictment. The indictment merely results in notifying the defendant of the charge, the time and place of trial, and that sort of thing. All the evidence is passed to the court and enters into its archives, passing out of the hands of the prosecution. The decision of the court is based on the complete evidence. The difference is, as I gather, that you would, so to speak, attach your evidence to the indictment, while we would follow the indictment by production of the proof in open court at the trial. There is, therefore, in our system more importance to the trial and less importance to the indictment, the indictment being merely accusation. The court hears all the evidence, and in most cases our courts must hear the evidence of each witness. The defendant has the right to be confronted by every witness against him, and all testimony is heard in open court. Our system results, perhaps, in a longer trial but a shorter indictment. GENERAL NIKITCHENKO. In the Soviet system the indictment itself is not regarded as evidence. It is merely the document containing particulars of the offense and the evidence on which it is chargeable. MR. JUSTICE JACKSON. I would-like to make clear in suggesting this arrangement that we
a shorter indictment. GENERAL NIKITCHENKO. In the Soviet system the indictment itself is not regarded as evidence. It is merely the document containing particulars of the offense and the evidence on which it is chargeable. MR. JUSTICE JACKSON. I would-like to make clear in suggesting this arrangement that we have not proposed that our system of ordinary or jury trial be adopted. In fact, we would not think it would be at all feasible to try these cases according to the unmodified American system. What we are trying to do is to depart from ours and find a system which, while it follows the general philosophy of our system, is one on which we can hope to try these cases in a reasonable length of time and without undue difficulties. JUDGE FALCO. I suggest that we iron out the difficulties of criminal law and see what we want, extracting from our different laws the best factors. Also, we agree that we would like to put before the court a complete investigation, and we do not want to waste time because it would take much time and create a bad impression on the Allied and German people. I submit that the first question is to make a complete investigation. I believe the Soviet views, which are very near the French one-it would be the act of transmitting to the court the charges and the evidence going with it, and it should be for examination by the prosecuting officer. Whatever the forms we will adopt of that, certainly the French Delegation has no preference. We should go to work with the idea that a system of international prosecution must be reached, and we must not risk the court's not being satisfied. That is the most important question. GENERAL DONOVAN. Is it your suggestion that the proposal made by Justice Jackson should be modified to submit to the court not only the indictment but evidentiary material in support of it as prepared by all counsel? JUDGE FALCO. I agree. MR. ROBERTS. It is your suggestion that that should be done before the trial and that before the trial the court should have the power to reject or send back. JUDGE FALCO. Are we to have only one prosecutor? GENERAL DONOVAN. You want the prosecutors to act jointly? JUDGE FALCO. I agree that they act jointly so that there is no risk of the court not being
that should be done before the trial and that before the trial the court should have the power to reject or send back. JUDGE FALCO. Are we to have only one prosecutor? GENERAL DONOVAN. You want the prosecutors to act jointly? JUDGE FALCO. I agree that they act jointly so that there is no risk of the court not being satisfied. To illustrate the Soviet position, the prosecution would be reviewed by he four prosecuting officers and not by the court. MR. JUSTICE JACKSON. I wonder if we are far enough advanced in understandings each other so that we can proceed to the legal principles that underlie the trial. GENERAL NIKITCHENKO. Views expressed seem to be approaching one another; so I think we could proceed. According to the French proposal, these four prosecuting officers would actually be working as an investigating commission. MR. ROBERTS. Which is really what we are doing now. MR. JUSTICE JACKSON. Certainly. GENERAL NIKITCHENKO. Especially since no lengthy preparation would be necessary as evidence is already gathered. GENERAL DONOVAN. Submission of the indictment should not be accompanied by submission of the evidentiary material, but the evidence would come in only at the trial itself. MR. ROBERTS. I agree. JUDGE FALCO. The evidence and material itself would go before the court at trial. This would be a summary of the facts. GENERAL NIKITCHENKO. The Soviet Delegation takes the view that the indictment should be accompanied by the evidence, the evidentiary material. I point out that the United States proposal rather assumes lengthy investigation is involved, whereas the evidence and material is all available. Therefore, I do not see why there should be a separation between those two. After all, it is just a summary of the facts of the case and statement of the charge. GENERAL DONOVAN. Perhaps I see the difficulty. I wonder if they think we propose that the indictment and the material could be separated by a great lapse of time. That is not what we propose. The indictment would be submitted to the court on a given day and perhaps on that very day the evidence would be taken by the court under oath, but separately. GENERAL NIKITCHENKO. But before the trial begins. GENERAL DONOVAN. We submit the indictment