dtufail/nuremberg-trials-corpus huggingface dataset:
International Conference on Military Trials : London, 1945 Previous Document Contents Next Document At the opening of the Conference, General Nikitchekno handed the other delegates a draft agreement embodying Soviet proposals [XIX]. SIR DAVID MAXWELL FYFE [presiding]. Gentlemen, we have the redraft of the American agreement in the form of an agreement and an annex [XVIII], and we have just received the draft of the Soviet agreement [XIX]. If it would be convenient, I shall ask Mr. Justice Jackson to say something about his redraft. GENERAL NIKITCHENKO. With regard to the second part of the Russian proposal, we shall be able to present that in Russian today, but, if the Conference prefers to wait until tomorrow, we can also present it with the English translation. SIR DAVID MAXWELL FYFE. Would it be convenient to hear Mr. Justice Jackson on the American draft in the meantime? MR. JUSTICE JACKSON. We made a redraft which was a rearrangement in the form which we understood was desired of all the essential features of our plan, and I have addressed to the delegations a short memorandum which is intended to be a plea that before you abandon or reject some parts of our proposal a little more consideration be given to it. I understand the Soviet memorandum to reject the possibility of trying organizations. The American proposal is that we utilize the conspiracy theory by which a common plan or understanding to accomplish an illegal end by any means, or to accomplish any end by illegal means, renders everyone who participated liable for the acts of every other and in connection with that to utilize these closely knit voluntary organizations as evidence of a conspiracy. That is a rough way of describing our proposal. That is the heart of our proposal. Without, that it means many trials, which we are not set up to engage in. To my mind, rejection of this plan leaves nothing of our proposal as to organizations which is really worth considering. Therefore, it seems to me that we should give some consideration, before it is rejected, to its merits and to any possible alternative. These organizations constitute the means through which, under the American proposal, a large number of people can be reached with a small number of long trials-perhaps
Therefore, it seems to me that we should give some consideration, before it is rejected, to its merits and to any possible alternative. These organizations constitute the means through which, under the American proposal, a large number of people can be reached with a small number of long trials-perhaps one main trial. The difficulty in our case is that we have in the neighborhood of perhaps 200,000 prisoners. We don't want to have 200,000 trials. Some of them perhaps ought to be tried individually on charges of individual criminal actions; but also they should be tried for their part in the planning of extermination of minorities, the aggressive warfare, the atrocities against occupied nationals, and offenses of that character. We think this should be done in a single effort so far as the collective guilt is concerned. Any other plan means moving about from place to place and in many territories, and going back, we think, substantially to the first part of the Moscow declaration rather than carrying out the second part, by which we hope to reach the principal Hitlerite planners. We see no way that we can unite in trial of these large numbers except on some basis such as we suggest, and we would be disappointed if some plan of that kind were not acceptable. If that were acceptable, the procedures by which the prosecution could be conducted, we think, could be worked out so that it would represent the best that is in our several procedures as adapted to military tribunals. We think use of the military tribunal relieves us all of trying to carry our ideas of ordinary court procedure into this trial. We assumed from the negotiations before London that the American suggestion, including trial by conspiracy principles and the trial of organizations, was generally acceptable. We understood that there was objection by the Soviet Union to recognizing the legality of the existence of these organizations after the surrender. We are quite ready, of course, to agree that these organizations have no present legal existence, but that does not prevent effectiveness of a trial concerning their criminal character in the past when concededly they were in f act in existence, nor prevent use of membership as evidence of conspiracy. We think the objection that
course, to agree that these organizations have no present legal existence, but that does not prevent effectiveness of a trial concerning their criminal character in the past when concededly they were in f act in existence, nor prevent use of membership as evidence of conspiracy. We think the objection that nothing should be done to give recognition to their present validity is a proper one that we can accede to without any impairment of our position that participating in them was a conspiracy. We would be ready to put in a provision expressly recognizing that they have been dissolved by virtue of the surrender and acts of the military government and that no recognition of their legal existence from now on is to be implied by the terms of the agreement. We are entirely willing to take up the discussion of any counterproposal, but our discussion of a counter proposal would, of course, proceed upon the basis that our draft is still before the Conference for consideration and has not been rejected. If that is so understood, we are ready to take up anybody's proposal. PROFESSOR GROS. Actually, very divergent opinions have been expressed on the question of organizations. We studied the new American memorandum and again the Soviet objections and have endeavored to understand these divergent views, and we shall try to suggest ways to reconcile them. First, what are the facts which we are discussing? Countless crimes have been committed by those organizations during the war-the Gestapo groups, S.S. Systematic criminal activities have been committed against the peoples of the occupied countries of which two of these delegations can speak from personal knowledge, and systematic criminal activities have been going on for years. These systematic criminal activities are no accident. The association of those groups was not accidental. These gangs in many localities were tied by one allegiance to a major organization-Gestapo, S.S., S.A., or others. If we want to reach the major war criminals, these major organizations must be our target. On that first point I cannot really see a divergence of views between the American and Soviet suggestions on the facts. Now, as Mr. Justice Jackson said much better than I would be able to say, if we do not try
others. If we want to reach the major war criminals, these major organizations must be our target. On that first point I cannot really see a divergence of views between the American and Soviet suggestions on the facts. Now, as Mr. Justice Jackson said much better than I would be able to say, if we do not try these organizations as organizations what will be the situation? I propose to suggest that it would not be satisfactory in the interest of the Four Powers nor in the interest of the United Nations to f ail to try them. I submit that war criminals will not be punished merely under the declaration of Moscow or of Yalta. They should be punished even without those two declarations. They should be punished because they merit punishment of war criminals, and those two declarations are only reaffirmation of the principles of international law. But the question of application remains completely open and the declaration of Crimea, as I read it, has little significance by its own terms-"We are determined to. . . bring all war criminals to just and swift punishment . . ." I will insist again on those terms of the declaration. We are committed to bring all war criminals to justice, and we cannot take those words as a legal pronouncement but only as a declaration of intentions reserving all question of application. Now that the political solution of the punishment of war criminals has been put aside and provision has been taken to punish them only after trial, we would like to have a situation before the Tribunal where the organizations would be duly exposed to the working of that plan and function and pronounced not merely "illegal" but "criminal". That could have been done by the heads of state, but, as it was not and will not be done by them, it must be done by the Tribunal. It is not enough to wipe out the Nazis from now on, but it must be proved and explained to the public opinion of many countries what has been going on in Germany and Europe for years. I don't suppose there can be any divergence of opinion in the four delegations oil that second point. If we are not in accordance on the facts, we should be in accordance on that big objective. Now perhaps, if we are not in complete agreement, I
has been going on in Germany and Europe for years. I don't suppose there can be any divergence of opinion in the four delegations oil that second point. If we are not in accordance on the facts, we should be in accordance on that big objective. Now perhaps, if we are not in complete agreement, I will just indicate what would be the position of the French for the moment and adapt it to any suggestion of the other delegations. It is on the question of the result of the trial of an organization before the Tribunal. We do not think of it as punishing equally all members of the organization, but the situation would be more like this: First, if a special crime is alleged against one of the members, a special trial will be put against him in the local court or in the occupation court. Second, if, on the contrary, certain supposed members can prove that they are not members of the organizations, that they had no knowledge of the purposes of the organizations, that they had been forced into membership, then they could probably be discharged. Third, in the case of other members against whom no special crime can be proved or who cannot prove their innocence, the organization would in a sense be what the British call "outlawed", and we do not insist upon the kind of punishment that would be applied to them. It might even be decided by higher authorities. Now, can we really have such a trial? I understood in one of the last meetings that the Soviet Delegation said it was impracticable to have such a trial for organizations. Most of their criminalities would no doubt be collective crimes. Such collective crimes are known in the French system of law and in the Belgian system of law, and we may be making a mistake but I think also in the Soviet system of law-crimes committed by gangs. What we demand is, in fact, the application by the International Military Tribunal of the same process of charging and punishing gangs. I know that in those systems of law trials are required against members before punishing them, but we consider that the trial of 10 or 15 leaders of an organization is the trial of all the organization and leave open for the rest of the members the question of individual punishment. If
gangs. I know that in those systems of law trials are required against members before punishing them, but we consider that the trial of 10 or 15 leaders of an organization is the trial of all the organization and leave open for the rest of the members the question of individual punishment. If we do not try to find any solution, we will be back to the difficulty of letting them go or of punishment without trial at all. This latter solution would be difficult to sustain years after the capitulation of Germany, but a decision of the Tribunal would be the leading precedent, and the necessity of trial is such that even after the declaration of Crimea and the declaration of Moscow we still need it. This being so, I wonder if we could try to come to an agreement, as we all want the same results. Taking the idea of the Soviet draft which I just received this morning and have not been able to study in detail, could we put "groups of persons or associations" in article 2 under the range of crimes [XXI1I, Soviet draft], and then there would be no disagreement among us? We would propose that as a formal suggestion. Now we would like to ask the Soviet Delegation what part of those ideas it could accept because it would help come to an understanding and we would know whether we could agree that those gangs of criminals must be taken as a whole, and what do they suggest as a mode of punishment if there is not one single trial? SIR DAVID MAXWELL FYFE. I would like to direct what I have to say to what I understand was the difficulty as to the organizations, and I begin by quoting the passage in the Crimea declaration which I think caused that difficulty: "It is our intense inflexible purpose to bring all war criminals to just and swift punishment . . ." and these are the important words----"'to wipe out the Nazi party, Nazi laws, organizations and institutions, remove all Nazi and military influences from public office and from the cultural and economic life of the German people." As I understood Mr. Nikitchenko's difficulty, it was this: that implies that the organizations are illegal and should be destroyed, and therefore it would be difficult to leave to a court as an open question whether the organizations were
from the cultural and economic life of the German people." As I understood Mr. Nikitchenko's difficulty, it was this: that implies that the organizations are illegal and should be destroyed, and therefore it would be difficult to leave to a court as an open question whether the organizations were illegal. That I understand as the difficulty. It seems to me that the answer is that we must place before the court and the court must determine what these organizations have actually done. Assuming for the moment that we were prosecuting Kaltenbrunner, one thing that would be alleged against him would be that he carried out the conspiracy by means of the Gestapo, and the purpose and method and actions of the Gestapo would be a part of the charge and part of the proof. Therefore, it will be part of our method of proof against the individuals to show that these organizations were part of the carrying out of the general plan. I should hope that the court would declare that this was so in the judgment they would pass. It, therefore, seems to me that whatever form we took we should be bound to bring the question of the purposes, methods, and acts of the organization before the court, and in doing so we would not be going contrary to the Crimea declaration but merely bringing it into effect. The result of that would be, as Professor Gros has pointed out, that it would be declared that these organizations were not only illegal but criminal in their action. This would be binding on the occupation courts and on our military courts and every individual member of the organizations who could be brought up and charged with their membership in the absence of any additional charge. By this means we should avoid the result that thousands of members of the Gestapo and S.S. would be walking free in Germany when everyone knew they bad committed abominable crimes, that is, in a case where we would not prove a specific crime against the member with the evidence available. GENERAL, NIKITCHENKO. The Soviet Delegation states that they have very carefully studied the documents they have before them including the new American draft, and from that and also from what was said around the table do not see that there is any brief for the very Pessimistic view expressed by Mr.
available. GENERAL, NIKITCHENKO. The Soviet Delegation states that they have very carefully studied the documents they have before them including the new American draft, and from that and also from what was said around the table do not see that there is any brief for the very Pessimistic view expressed by Mr. Justice Jackson that there is a question of such fundamental difference in views between us that either the American draft with regard to the trial of organizations has to be accepted or that we are in complete disagreement. We consider that some of the misunderstandings are undoubtedly based on what is not a clear idea of what the Soviet Delegation is ready to suggest, and, if we are able to make quite clear what our proposals really amount to, then a lot of the objections which have been raised around the table will automatically disappear. The basic question is the responsibility of organizations and whether it is possible to get a legal declaration by the court that organizations are criminal. The view that the Soviet Delegation has excluded the possibility of the trial of members of organizations for criminal participation in the work of such organizations is not correct. The Soviet law, criminal law, fully recognizes in exactly the same way as the French, and probably others, the collective responsibility of members of an organization for the crimes committed by the organization. The theory of the Soviet criminal law fully recognizes the trial of gangs or organizations and the responsibility of the members of such organizations in addition to any individual responsibility they may carry for individual acts. Where we do not agree is in the idea that the trial of organizations should form actually the basis of the agreement for the trial of criminals. An organization is not a physical body, but the members of that organization are physical, and, if they have committed individual crimes as members of the organization, then they should be tried individually as physical persons who have committed acts because they were members of a criminal organization. In order to establish the criminal nature of the criminal actions of the organizations, in the opinion of the Soviet Delegation, it is necessary
of the organization, then they should be tried individually as physical persons who have committed acts because they were members of a criminal organization. In order to establish the criminal nature of the criminal actions of the organizations, in the opinion of the Soviet Delegation, it is necessary to investigate the actions of individuals of the organization and to establish the fact that they have committed criminal acts by virtue of their adherence to the organization. How otherwise can we establish that the organization has in fact committed criminal acts unless we are able to prove whether individuals belonging to it have committed such crimes? Does the trial, by the court, of individuals necessarily exclude the fact of the trial referring to the organization? In f act, what they are proposing is that the members of the organizations-S.S., Gestapo, and so on-have committed certain crimes in certain definite places, which crimes can be proved, and the whole group will be tried. It is immaterial whether the number of prisoners is 10 or 100 or any other number, but the fact that those individual prisoners are tried and convicted does, in fact, prove that the whole organization to which they belong is in effect a criminal organization. The way to establish that proof is not by the trial of the organization as such but by the trial of the individual members. SIR DAVID MAXWELL FYFE. May we have a restatement of that, as it is of vital importance and we seem nearing an agreement? GENERAL NIKITCHENRO. The Soviet Delegation consider that the Tribunal could try not merely individuals but groups. It would be immaterial whether those groups consist of members of the German Government, of the S.S., of the Gestapo, or any other organization, and it would also be immaterial how many of the persons accused were on trial at any one time, but the main point would be that the establishment of the criminal responsibility of those individuals would in effect establish the criminal responsibility of the whole organization to which they belong. I would just like to note that the main difference between the Soviet and American plans appears to be that the American Delegation suggests the trial of the
the criminal responsibility of those individuals would in effect establish the criminal responsibility of the whole organization to which they belong. I would just like to note that the main difference between the Soviet and American plans appears to be that the American Delegation suggests the trial of the organization and then, having established the criminal character of the organization, to proceed from that to the trial of the individual adherents of the organization. The Soviet Delegation considers that that approach would not be the right one to secure conviction and punishment for individual members, The second question is, what would be the consequences of a verdict by the court in regard to certain members of an organization upon other members of the same organization who might not be before the court? The Soviet criminal law is based on the fact of the individual criminal responsibility of the individual person. It is immaterial whether he committed some action alone or as a part of a gang; he has to carry individual responsibility for the action he has committed, one way or the other. We therefore consider that a decision of the court which establishes the criminal responsibility of the heads or the leaders of any organization of that kind automatically establishes the criminal responsibility of the various subordinate members of the organization. But that does not mean that the national courts or the occupation courts can apply punishment to all the members of an organization simply on the basis of the decision by the Tribunal of the trial of the individual members of that organization. It is not our task to define the functions of either national or occupational courts. According to the national laws of the various countries the basis on which criminal responsibility is established differs, and it may be that in the American and the British legal systems the court has to have the precedent of a declaration of illegality before it can proceed against the individual members. The Soviet law does not require any such precedent to base itself on. It simply takes the trial of the individual and the establishment of whether his actions were criminal or not as the basic part of the