dtufail/nuremberg-trials-corpus huggingface dataset:
the Tribunal, that proposal would be adopted which had been made by the party proposing the prosecution." We could leave the last paragraph that comes after (e) and just add this in reference to point (b). MR. JUSTICE JACKSON. All that I care to be free about is the people we have in our possession. I don't care to prevent the other parties who want to try other people. We have these people and must soon release them or try them. SIR DAVID MAXWELL FYFE. I think you are in the favorable position there. You have so many prisoners that this proposal is bound to clear your books. MR. JUSTICE JACKSON. I wonder about the language which was being used here- SIR DAVID MAXWELL FYFE. We suggest this wording: "If there is a division of vote concerning the designation of defendants to be tried by the Tribunal, that proposal will be adopted which was made by the party proposing the prosecution." The only point then that still remains is to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff. General Nikitchenko said that that implies that under 15 (2) (a), "Investigation and collection of all necessary evidence", each prosecutor can add the evidence. Mr. Justice Jackson raises the difficulty that that does not say "and offer at the trial". Couldn't we put into (2) (a) "investigation and collection and preparation for offering at the trial of all the necessary evidence"? Then there is no question of its having to be referred back to the four prosecutors as to when it comes in. He puts it in on his own responsibility. GENERAL NIKITCHENKO. Isn't it clear that if they investigate and collect the evidence all that is done as preparation for the offering of that evidence at the trial? SIR DAVID MAXWELL FYFE. It is, but the point that is worrying Mr. Justice Jackson is this: Suppose he has collected what he thinks is an effective piece of evidence. He doesn't want it to go back to the four prosecutors and have long discussions before he can use it. The four agree on the plan, and he works out his own way of carrying it out. MR. JUSTICE JACKSON. I should use "and offer at the trial" instead of "preparation and offer". GENERAL NIKITCHENKO. Apparently we don't quite understand
back to the four prosecutors and have long discussions before he can use it. The four agree on the plan, and he works out his own way of carrying it out. MR. JUSTICE JACKSON. I should use "and offer at the trial" instead of "preparation and offer". GENERAL NIKITCHENKO. Apparently we don't quite understand each other. Perhaps we mean the same thing. The Tribunal naturally cannot try the case of any defendant about whom no evidence has been collected beforehand. Perhaps it is wrong, but I understand Mr. Justice Jackson to mean that after the trial has started one of the Chief Prosecutors would be able to submit evidence which would enable the Tribunal to try additional persons. SIR DAVID MAXWELL FYFE. No. MR. JUSTICE JACKSON. No. The persons would be put on trial by the vote of the majority or of the proposer in ease of a two to two vote, but under your system, if we did not have a piece of evidence in the indictment, we could not offer it. Under our system, if we did not have a certain piece of evidence in the indictment we could offer it nevertheless at the trial. We will have evidence in the form of documents which will not be translated and ready to put in the indictment, but it could be offered at the trial. That is, I don't want to be spending thousands of dollars on getting evidence which cannot be presented at the trial if some other system of law should prevail by having two votes. SIR DAVID MAXWELL FYFE. I should have thought we could put it, "investigation and collection for production at the trial of all necessary evidence". GENERAL NIKITCHENKO. The real point of paragraph (a) refers to collection of evidence before the trial starts, but we have another paragraph in article 24, paragraph (d), which provides that the prosecution may after the trial starts apply to the Tribunal for permission to submit any other evidence. This paragraph (d) of 24 gives the right to the prosecutors to submit additional evidence. SIR DAVID MAXWELL FYFE. I don't think our minds are still really on the same point. The one Mr. Justice Jackson wants is this: Suppose he collects a piece of evidence. Whether it be in time for the indictment, or after the indictment, he should be entitled to put it to the Tribunal.
submit additional evidence. SIR DAVID MAXWELL FYFE. I don't think our minds are still really on the same point. The one Mr. Justice Jackson wants is this: Suppose he collects a piece of evidence. Whether it be in time for the indictment, or after the indictment, he should be entitled to put it to the Tribunal. Now, he does not want the other Chiefs of Counsel to have the right not to allow him to put that piece of evidence if they are equally divided. That would be covered if we put in "investigation and collection". There is no intention of bringing in new defendants. It is only to give the prosecutors opportunity to produce their own evidence. GENERAL NIKITCHENKO. If We phrase it that way, would it not imply they should collect evidence for production only at the trial itself ? If there is a provision that evidence should also be collected only for production at the trial-the obligation for collecting evidence before the trial would drop. SIR DAVID MAXWELL FYFE. Before or at the trial. I quite agree. MR. JUSTICE JACKSON. The point is that the American people will not recognize as a trial a trial at which no evidence is produced in open court. There is no use of our going ahead with a trial that our people will not recognize as a fair trial. I can't do that. I am perfectly willing to go as far as we can in making this case complete in the indictment, presenting all that is available, but, if you present all the case in the indictment and have to stop at that point, then there will be 30 days or so to enable these defendants to prepare for trial-three weeks at least, I should say. During that period we might find the most important evidence. You would be amazed at the documents we keep turning up all the time in Germany. There is a lot buried in your territory, the territory occupied by Russia, that we haven't seen yet. I think we ought to get an indictment filed against these people and make as much of a case in it as we can, but I think we should reserve the right to use at the trial as much evidence as we can get up to the time of trial. I cannot go beyond that point. SIR DAVID MAXWELL FYFE. That is why I thought we would meet both points if we used the words "and production before or at
case in it as we can, but I think we should reserve the right to use at the trial as much evidence as we can get up to the time of trial. I cannot go beyond that point. SIR DAVID MAXWELL FYFE. That is why I thought we would meet both points if we used the words "and production before or at the trial". If the evidence turns up in time for the indictment, it will be used to draft the indictment; if it turns up between the indictment and trial, it will be used at the trial. GENERAL NIKITCHENKO. In the Soviet system it is very often practiced that evidence is produced at the trial, new evidence that has not been produced before, and the French system apparently also. JUDGE FALCO. Evidence yes, but not a new judge. SIR DAVID MAXWELL FYFE. I think we are agreed then on article 15, and it remains to perfect its drafting. The Conference adjourned until July 22, 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
Redraft of Definition of "Crimes", Submitted by Soviet Delegation, July 23, 1945
Previous Document
Contents
Next Document
DRAFT ARTICLE 6 OF THE CHARTER
(As proposed by the Soviet Delegation)
The Tribunal shall have power to try any person who has in any capacity whatever directed or participated in the preparation or conduct of any or all of the following acts, designs or attempts namely:
a) Aggression against or domination over other nations carried out by the European Axis in violation of the principles of international law and treaties;
b) Atrocities against the civilian population including murder and ill-treatment of civilians, the deportation of civilians to slave labour and other violations of the laws and customs of warfare;
c) Waging war in a manner contrary to the laws and customs of warfare including murder and ill-treatment of prisoners of war, wanton destruction of towns and villages, plunder and other criminal acts ;
and who is therefore personally answerable for the violation of international law, of the laws of humanity and of the dictates of the public conscience, committed in the course of carrying out the said acts, designs or attempts by the forces and authorities whether armed, civilian or otherwise, in the service of any of the European Axis Powers.
Source:
International Conference on Military Trials : London, 1945
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945
International organization and conference series; II
European and British Commonwealth 1
Department of State Publication 3080
Washington, DC : Government Printing Office, 1949
International Conference on Military Trials : London, 1945 Minutes of Conference Session of July 23, 1945 Previous Document Contents Next Document Sir David Maxwell Fyfe called the Conference to order. GENERAL NIKITCHENKO. This is the paper we are submitting this morning-a rough draft or preliminary draft of article 6 [XLIII], which is based, as can be seen, on the French draft submitted last week [XXXV]. The Soviet Delegation have taken the French draft as a basis and made some alterations. This being a rough draft, it is contemplated that further alterations might be submitted by other delegations and perhaps even by the Soviet Delegation after we have considered it. The only thing we did not find it possible to do was to put in a reference about pacts which condemned aggression. We looked through the Charter of the United Nations once again and observed that, while aggression is mentioned several times, it is not defined anywhere. Apparently this is due to the fact that aggression has become sort of a formula in itself. Apparently, when people speak about "aggression", they know what that means, but, when they come to define it, they come up against difficulties which it has not been possible to overcome up to the present time. PROFESSOR GROS. I think we are perhaps the last people who should speak, because that draft, as General Nikitchenko said, is a redraft of the French text, and it is only a matter of some words which we could suggest changing-which is not important. SIR DAVID MAXWELL FYFE. I think that my points are largely points of clarification. But there is one fundamental point that I want to see whether we are agreed on. I think we are. I want to make clear in this document what are the things for which the Tribunal can punish the defendants. I don't want it to be left to the Tribunal to interpret what are the principles of international law that it should apply. I should like to know where there is general agreement on that, clearly stated-for what things the Tribunal can punish the defendants. It should not be left to the Tribunal to say what is or is not a violation of international law. That is why I wanted in the English draft the words "convict and sentence after trial"-that is, the Tribunal should have the power to "try, convict and
things the Tribunal can punish the defendants. It should not be left to the Tribunal to say what is or is not a violation of international law. That is why I wanted in the English draft the words "convict and sentence after trial"-that is, the Tribunal should have the power to "try, convict and sentence". Developing the same point, I am a little worried by the inclusion in a) of "in violation of the principles of international law and treaties", because I would be afraid that that would start a discussion before the Tribunal as to what were the principles of international law. I should prefer it to be simply "in violation of treaties) agreements, and assurances". Now b) and c)-paragraph b) deals with the civilian population and c) deals with the actual waging of war. I'm not clear why the draft includes at the end of b) "and other violations of the laws and customs of warfare", because the draft seems to cover that so explicitly in a). But I should have preferred to leave it "ill-treatment of civilians"--stop at "slave labour". "And other violations of the laws and customs of warfare" seems to limit it. With regard to the final paragraph, again I want to be clear as to what it implies, and later I should like the assistance of Professor Gros on it too as it is largely in his form. What I want to know is that it is an imposition of law on the Tribunal. Let me take a concrete example. If it is shown that Ribbentrop was guilty of a), then it would follow as a matter of law and not be for the Tribunal to decide that Ribbentrop would then be personally answerable for all the crimes of the German forces. There is one general point which I think is covered; that is, you note in the second line you used the words "in the preparation". The preparations would in my view include such acts as the terrorization and murder of their own Jewish population in order to prepare for war; that is, preparatory acts inside the Reich in order to regiment the state for aggression and domination. This would be important politically for us because the ill-treatment of the Jews has shocked the conscience of our people and, I am sure, of the other United Nations; but we should consider it at some stage, and I thought it was
the Reich in order to regiment the state for aggression and domination. This would be important politically for us because the ill-treatment of the Jews has shocked the conscience of our people and, I am sure, of the other United Nations; but we should consider it at some stage, and I thought it was covered by this act in the preparation of the design. I just wanted to make it clear that we had this in mind because I have been approached by various Jewish organizations and should like to satisfy them if possible. I have in mind only such general treatment of the Jews as showed itself as a part of the general plan of aggression. MR. JUSTICE JACKSON. Well, I think a great deal depends on what we are trying to accomplish by definition, and I don't think this one accomplishes what the United States has had in mind to try to accomplish. This leaves open, as I see it, to be argued before the Tribunal what the international law is on nearly every question. Our basic purpose is that article 6 should settle what the law is for the purposes of this trial and end the argument. If any definition is not a proper one to settle on by agreement, it is not a proper one for us to support as advocates before a Tribunal. I think it is entirely proper that these four powers, in view of the disputed state of the law of nations, should settle by agreement what the law is as the basis of this proceeding; and, if I am wrong about that, I do not see much basis for putting these people on trial in a quasi-judicial proceeding. The introductory paragraph of the subcommittee draft is unequivocal and unambiguous and says that the acts it sets forth shall be considered criminal violations of international law and shall come within the jurisdiction of the Tribunal. It would not leave it open f or argument that this is Dot the law. The draft before us submitted by the Soviet Delegation literally only confers jurisdiction to try persons; it does not, as I see it, define the substantive law which creates the crimes. Therefore, if this were adopted, it would be entirely open to the Tribunal if it thought the international law was such as to warrant it, to adjudge that, while these persons had
only confers jurisdiction to try persons; it does not, as I see it, define the substantive law which creates the crimes. Therefore, if this were adopted, it would be entirely open to the Tribunal if it thought the international law was such as to warrant it, to adjudge that, while these persons had committed the acts we charge, these acts were not crimes against international law and therefore to acquit them. That we think would make the trial a travesty. Now let us take a). If we look at it as defining a crime, it is one consisting of three elements: first, there must be "aggression against or domination over"; second, it must be carried out by Axis powers; third, it must be in violation of international law and treaties. Now the moment you look at it as broken into its elements, it seems to me you find great difficulties in it. I do at least. The first is that aggression against or domination over other nations, in violation of some treaties, would not be in my judgment, if accomplished by peaceable means, an international crime. For example, if we violated our fishing treaties and continuously encroached on British waters and dominated them without a declaration of war or going to war, I should hardly think it an international crime; it would be a violation of treaties to which you might be entitled to remedy. It might lead to war, but that is not what we are aiming at, which is aggression or domination by making war. Then the second element contained in a) is, it must be carried out by Axis powers. We would think that had no place in any definition because it makes an entirely partisan declaration of law. If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us. Therefore, we think the clause "carried out by the European Axis" so qualifies the statement that it deprives it of all standing and fairness as a juridical principle. Then the third element of a), that all of this must be in violation of international law and treaties, brings us right back to the
think the clause "carried out by the European Axis" so qualifies the statement that it deprives it of all standing and fairness as a juridical principle. Then the third element of a), that all of this must be in violation of international law and treaties, brings us right back to the question which we set out to solve, which is to say that certain aggressions which have been declared illegal long before this war was begun are violations of international law, rather than to leave that to the Tribunal to argue about and possibly disagree about. Paragraph b) from our point of view does not reach all that we want to reach and reaches a good deal we would not want to reach. It has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business; that is to say, the way Germany treats its inhabitants, or any other country treats its inhabitants, is not our affair any more than it is the affair of some other government to interpose itself in our problems. The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities. They were a part of the preparation for war or for the conduct of the war in so far as they occurred inside of Germany and that makes them our concern. Paragraph c), of course, comes down to the violation of the rules of land warfare and we really need no international tribunal to punish that. We have evidence as to nearly every one of these prisoners that we have that they violated the laws and customs of land warfare against American soldiers, and therefore we can put them on trial before an American military tribunal within a month for ordering the slaughter of American prisoners of war. We don't need an international tribunal for that. So that does not seem to advance us very much on an international trial except when we couple these individual acts with the German plan to make warfare by that lawless and terroristic method. And then the last paragraph,
slaughter of American prisoners of war. We don't need an international tribunal for that. So that does not seem to advance us very much on an international trial except when we couple these individual acts with the German plan to make warfare by that lawless and terroristic method. And then the last paragraph, "and who is therefore personally answerable"-it seems to me to leave open the very question we want to settle. We must declare that they are answerable personally, and I am frank to say that international law is indefinite and weak in our support on that, as it has stood over the recent years. This definition seems to me to leave the Tribunal in the position where it could be argued, and the Tribunal might very reasonably say, that no personal responsibility resulted if we failed to say it when we are making an agreement between the four powers which fulfils in a sense the function of legislation. I think there is greater liberty in us to declare principles as we see them now than there would be in a court to use new principles that we had failed to declare in an organic act setting up the court. And therefore we leave open to an argument, and to interminable argument, and to determination by, and division of, the court, the question as to whether one is personally answerable for such acts as are set out. Now all of this brings me back to a consideration of the plan which we put forward, however crudely, to accomplish that which we are trying to do, and I would invite reconsideration of paragraph 6 as reported by the subcommittee on drafting [XXV]. The opening paragraph settles the law that certain acts are criminal violations. I think Professor Gros' criticism, that it does not declare individual responsibility but leaves it as a matter of state responsibility, is a valid criticism which should be met, but apart from that I think no departure from our definition is acceptable on criminal violations of law for the purposes of this trial. Now, what are these acts which should be criminal violations? First of all, we say it is the violation of laws, rules, and customs of war, which includes murder and ill-treatment, deportations, wanton destruction, plunder, and other violations of