dtufail/nuremberg-trials-corpus huggingface dataset:
that is, it would include atrocities and persecutions in Germany if they were legal by German law. I think you will find that that is set out in the note, and, if you will look about two thirds of the way down in the note, you will find we say, "The chief crime of which it is alleged that the leaders in Germany are guilty is the common plan or conspiracy to dominate Europe and it is therefore most desirable to include this crime specifically in the statutes of the Court. Moreover, the protocol will become a public document of the first importance and for this reason it is essential that the main charge to be made against the major criminals should appear in it. The lay public will not understand its omission." I think really that this last bit that I have read gives the gist of the argument I put forth. Could I add one point? I apologize. I should have drawn attention to the introduction at the beginning of number 12: "The Tribunal shall be bound by this declaration of the signatories that the following acts are criminal violations of international laws . . . . " What we want to abolish at the trial is a discussion as to whether the acts are violations of international law or not. We declare what the international law is so that there won't be any discussion on whether it is international law or not. We hope that is in line with Professor Trainin's book. GENERAL NIKITCHENKO. May I ask a question? This list of crimes which has been outlined here-Is that to be taken to apply only to those crimes which have been committed during the process or duration of the war, or may we take it it equally applies to any crimes since then? For instance, any activities which the Germans might undertake now. Would they be included under this provision? SIR DAVID MAXWELL FYFE. I don't think we had considered that point. We should be prepared to and try to face it. I have no objection to it. There is still, of course, a state of war existing, and therefore it would seem probably to be covered. GENERAL NIKITCHENKO. We might understand that this list is not exhaustive in regard to crimes which may be tried by the International Military Tribunal, that there may be other violations which are not actually listed. SIR DAVID MAXWELL FYFE. We
existing, and therefore it would seem probably to be covered. GENERAL NIKITCHENKO. We might understand that this list is not exhaustive in regard to crimes which may be tried by the International Military Tribunal, that there may be other violations which are not actually listed. SIR DAVID MAXWELL FYFE. We might consider the redrafting of (a) so that it should "include but not be limited to . . . . 17 JUDGE FALCO. This question should certainly be discussed a little further for the moment. I suggest that the Four Powers have taken supreme command in Germany, actually commanding Germany, and, if there are infractions of law, it is for the Control Council of Germany to establish their tribunals and try those new perpetrators. For the moment I do not see any object in mixing the two things and having Germany's criminals brought before the Tribunal for trial of war criminals. I want to put this before the Conference. SIR DAVID MAXWELL FYFE. One v, Ord for consideration here. We are dealing With major war criminals. We cannot have two trials of the major war criminals. There will be nothing to prevent the Control Council and the various national commissions from dealing with the infractions of the law they are administering apart from this. We are rather considering this as limited to the major criminals. GENERAL NIKITCHENKO. We do not make it as a suggestion. It was merely for elucidation on the point. MR. JUSTICE JACKSON. We would take it that (b) covers launching a war of aggression. If there were conviction on that, (e) and (d) might become somewhat superfluous. But (e) is launching a war of aggression in violation of treaties, et cetera, and (d) is launching it by a combination of terrorism and means which they have used, et cetera, so that those three are read together to make a complete picture. JUDGE FALCO. On the question which has been raised by article 12, we have seen the proposal which had been made at San Francisco. It is very near our point and except for some details bearing on (b) and (c) we could very easily agree on the same line. SIR DAVID MAXWELL FYFE. Now the fourth point deals with the basic principles of the operation of the Tribunal [articles 17 and 18], and, if I
which had been made at San Francisco. It is very near our point and except for some details bearing on (b) and (c) we could very easily agree on the same line. SIR DAVID MAXWELL FYFE. Now the fourth point deals with the basic principles of the operation of the Tribunal [articles 17 and 18], and, if I might, I'll just give a word of explanation of each of the subheads of its contents. "An International Military Tribunal shall not be bound by technical rules of evidence," that is, by the rules of evidence which each country demands in its own courts. It shall "adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value." That makes clear that it is f or the Tribunal to decide whether the evidence has value in the direction of proof even though a national code might not allow proof by that form. Next, "it shall employ with all possible liberality simplifications of proof, such as, but not limited to: requiring defendants to make written proffers of proof." That is, the defendants maybe compelled to put in writing the purpose for which evidence is going to be called in order to prevent mere political speeches being put in under the guise of evidence. Otherwise a witness may suddenly be called into the box, We do not know what he is going to say, and he starts making political speeches in defense of German activities. Then, "making extensive use of judicial notice." That is, the Tribunal can take into account matters that are well known. "Receiving affidavits or statements for witnesses, depositions, recorded examinations before or findings of military or other tribunals, copies of official reports, publications and documents or other evidentiary materials and all such other evidence as is customarily received by international or military tribunals." That is, if there has been taken up an inquiry with a reasonable official basis in certain matters, then that can be put in evidence without the formality of proof. I think it would be convenient if I dealt with 18, which is supplementary, before any further comments. Paragraph 18 emphasizes our desire that there will not be delay or interruption or the misuse of the hearing for
in certain matters, then that can be put in evidence without the formality of proof. I think it would be convenient if I dealt with 18, which is supplementary, before any further comments. Paragraph 18 emphasizes our desire that there will not be delay or interruption or the misuse of the hearing for political purposes. Subparagraph (a) deals with confining the trials to expeditious hearing of the issues raised by the charges; (b) takes strict measures to prevent any action which will cause any delay and rules out irrelevant issues, including attempts to bringing political propaganda. That is what we envisage. There are two possibilities: the defendants themselves may try and make a noise or interrupt the court or interrupt the witnesses and proceeding. With defendants who are likely to be sentenced to death, in the face of the court sending them to prison for a few weeks-the ordinary penalty for contempt of court-it would only be playing their game and interrupting the trial. The only sanction to be effective would be to exclude their counsel or themselves from further right to put forward their defense. If they treat the court with contempt, then they will be taken as desiring not to continue their defense, and the court will determine their defense in the absence of counsel where necessary. PROFESSOR TRAININ. The general principle laid out and explained is quite clear, and the only question which might possibly arise is whether some of the points which are outlined should really be agreed upon in the principles of establishment of the Tribunal or whether they should not appear better in the regulations governing the procedure of the Tribunal. JUDGE FALCO. [Not translated.] SIR DAVID MAXWELL FYFE. Of course, we are ready to consider any suggestions for taking anything out of the main document and putting it into regulations. We thought these were worthy of being basic principles but will consider with great care and regard any suggestions of the Soviet Delegation. MR. JUSTICE JACKSON. The words here, "including attempts to introduce irrelevant political propaganda" are words with which I have difficulty. If an offer of proof is irrelevant, it should be excluded merely because it is irrelevant. If it is relevant to the defense, -would it be
of the Soviet Delegation. MR. JUSTICE JACKSON. The words here, "including attempts to introduce irrelevant political propaganda" are words with which I have difficulty. If an offer of proof is irrelevant, it should be excluded merely because it is irrelevant. If it is relevant to the defense, -would it be conceivable to exclude it because it might have unpleasant political implications? I suspect that critics will point at this phrase as indicating that there is something in our own positions that we are fearful of having exposed, if, even though it is relevant, we are proposing to exclude lines of inquiry which would be inconvenient for ourselves politically. I suggest that a formula might be found which would be adequate to admonish judges who, after all, are nationals of our own countries and equally interested with ourselves in keeping the trials on the level that would not quite so brazenly invite accusations against us all. In the United States I know it would be asked, "Who got that in and why, and who is afraid and why?" Those unfriendly to Britain will say, "I told you so", and those unfriendly to Russia will say, "I knew it all the time." I think it is a phrase in danger of political misuse. JUDGE FALCO. As an informal suggestion, could we say, "To prevent all attempts to use any political propaganda which the major war criminals would put before the trial"? This is only an informal suggestion. SIR DAVID MAXWELL FYFE. I should be very pleased to consider the suggestion. I think there are two things to avoid-one is Nazi propaganda; the other is the trial of the actions of the countries of the prosecutors. We don't want the trial to be swung over by the defense in an attempt to attack and have a trial in the eyes of the public of the action of the prosecuting countries. I think in the second I am inclined to agree with Mr. Justice Jackson. MR. JUSTICE JACKSON. I am not disagreeing with the idea but I think we should have a little more care as to how it is expressed. General Donovan has suggested that following "irrelevant issues" the phrase "of whatever kind or nature" would be sufficient to admonish our judges and not arouse our critics. SIR DAVID MAXWELL FYFE. Then the next and last
with the idea but I think we should have a little more care as to how it is expressed. General Donovan has suggested that following "irrelevant issues" the phrase "of whatever kind or nature" would be sufficient to admonish our judges and not arouse our critics. SIR DAVID MAXWELL FYFE. Then the next and last item is article 20, which states that sentences, when and as approved by the Control Council, should be carried into execution in accordance with orders of the Control Council for Germany. We suggest that the approval of the Control Council should be cut out, that is, that the findings and sentences of the Tribunal should not be subject to approval but that, when the Tribunal has imposed sentence, it ought to be carried out. If it be death, the execution will be carried out, or, if it be imprisonment, that should be carried out in accordance with the orders of the Control Council, and the Control Council may reduce or otherwise alter. "Reduce" is to lessen the sentence, but keeping the same kind. "Alter" would be substituting a different kind of sentence but may not increase its severity. GENERAL NIKITCHENKO. The Control Council could presumably cancel the sentence and demand a retrial of the case. SIR DAVID MAXWELL FYFE. I am afraid that is a point that we don't see eye to eye. We think that the Tribunal ought to be left to say the final word as to the finding. That is, as to the conviction-we don't want any interference with the finding of the Tribunal. We hope that the Tribunal will be of sufficient standing that its conclusion on conviction or not should be sufficient. We also think with regard to sentence that all that should be given to the Control Council is the opportunity to lessen but not to cancel. That is a point which we will have to discuss because there is a difference of viewpoint there. Judge Falco apparently agrees with us. GENERAL NIKITCHENKO. The Soviet Delegation is raising the question of how we should act in case, for instance, at the time of the trial the Tribunal is not in possession of the whole of the material affecting the case and brings out its verdict and sentence with insufficient material in its possession, so that the sentence may appear to
the question of how we should act in case, for instance, at the time of the trial the Tribunal is not in possession of the whole of the material affecting the case and brings out its verdict and sentence with insufficient material in its possession, so that the sentence may appear to be inadequate to public opinion. The Control Council having discovered further material or it having been discovered elsewhere, it becomes evident that the sentence is quite inadequate to the crime committed. In those circumstances how would it be possible to secure that the whole case would come up for reconsideration and additional sentence be imposed? SIR DAVID MAXWELL FYFE. If these circumstances occur-and I hope it will be prevented by our preparation and examination of the evidence-but assuming that it did occur, I should suggest that the better method would be a new trial on the more serious charge. GENERAL NIKITCHENKO. In order to try the accused on more serious charges, the original sentence would have to be annulled to provide the opportunity of a new trial on the different charge. SIR DAVID MAXWELL FYFE. Take for example how it -works in our law. If somebody attacks somebody else, then he may be tried for assault, but, if within a year death supervenes, he may be charged subsequently for murder, for which the sentence is death. The fact he had been tried for assault would not prevent it because it would be the new charge of death. GENERAL NIKITCHENKO. In that case we could try them again without actually canceling the first sentence. SIR DAVID MAXWELL FYFE. I do not think there is any difference between us as to what we want to do-that is to insure that the most serious charge we know about is brought against the accused. The only point that I am anxious to make is that the status of the Tribunal should be kept as high as possible, and it should not appear to be subject to an administrative body. That is my general point. I am in full sympathy for any serious charge and the most serious charges being brought against all the defendents we select. That concludes the British memorandum. Would it be convenient to go around the table and have the French Delegation deal with its memorandum?
subject to an administrative body. That is my general point. I am in full sympathy for any serious charge and the most serious charges being brought against all the defendents we select. That concludes the British memorandum. Would it be convenient to go around the table and have the French Delegation deal with its memorandum? [EXPLANATION OF FRENCH MEMORANDUM] [XV] PROFESSOR GROS. The first part of the French memorandum is only a reminder of the position which has been taken in San Francisco and, naturally, the proposal which has been put before us on the charges. As I have said, the British proposal is partly inspired by that proposal. So that reservation which we made in the first part is not so important as it would look at first sight. As we said the other day, the Four Powers agree to press the cases against the major war criminals in the best way to insure a speedy punishment, whatever forms we use. We have given a note on the French procedure in criminal prosecutions, but it is only a recommendation and we would not think of insisting on adoption of the French procedure. MR. JUSTICE JACKSON. How would you permit the defense to submit the case? Would you have him given a particular time after the prosecution has presented its entire case or have him answer each document as it is submitted? PROFESSOR GROS. He would speak once only. He could call witnesses. He would arrange with the prosecutor beforehand for appearance of witnesses so that a refusal of such witness could be given before and not at the trial. MR. JUSTICE JACKSON. May I say one word, Mr. Chairman, about the French memorandum? I think the spirit of it is admirable. The thought that we will compare our systems and try to use the best of each for this purpose is the spirit in which we want to work, and there is a great deal of good in both systems. Many things are not as troublesome in practice as we think in theory, and I agree fully with your suggestion that what we want is to get a practical procedure rather than an adaptation of any nation's procedure. I think it is a very helpful memorandum. [EXPLANATION OF SOVIET MEMORANDUM] [XVI) GENERAL NIKITCHENKO. The first is with regard to the character of the trial. We are not dealing here with
suggestion that what we want is to get a practical procedure rather than an adaptation of any nation's procedure. I think it is a very helpful memorandum. [EXPLANATION OF SOVIET MEMORANDUM] [XVI) GENERAL NIKITCHENKO. The first is with regard to the character of the trial. We are not dealing here with the usual type of case where it is a question of robbery, or murder, or petty offenses. We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea declarations by the heads of the governments, and those declarations both declare to carry out immediately just punishment for the offenses which have been committed. Second, the procedure that we want to work out should be such as to insure the speediest possible execution of the decisions of the United Nations, and the regulations that we set down for this Tribunal must be worked out with that in view. In this connection the Soviet Delegation is in complete agreement with statements made by the French Delegation with regard to the formulation of rules and regulations to achieve maximum speed. The object should not be to select any individual national system of trial. All these systems have good points. In, the British arid American there is probably too much latitude allowing the possibility to the accused of dragging out the process of the trial and causing unnecessary delay. As we now have to deal with something completely new, it is necessary for us to select the best of the different systems with a view to achieving speed in arriving at a decision. Third, with regard to the position of the judge-the Soviet Delegation. considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case. The declaration of the Crimea Conference is quite clear that the objective is to bring these criminals to a just and speedy trial. Therefore, the judge, before he takes his seat in court, already knows what has been quoted in the press of all countries, and it is well known, about the criminal as accused and the general outline of the case against him. The case f or the prosecution is undoubtedly
bring these criminals to a just and speedy trial. Therefore, the judge, before he takes his seat in court, already knows what has been quoted in the press of all countries, and it is well known, about the criminal as accused and the general outline of the case against him. The case f or the prosecution is undoubtedly known to the judge before the trial starts and there is, therefore, no necessity to create a sort of fiction that the judge is a disinterested person who has no legal knowledge of what has happened before. If such procedure is adopted that the judge is supposed to be impartial, it would only lead to unnecessary delays and offer opportunity for the accused to bring delays in the action of the trial. Fourth, the Soviet Delegation points out that, at the time when the declaration was made by the leaders of the United Nations on the question that the chief criminals should be tried, it was not certain whether these criminals would actually be tried by a court or would be punished by some purely political action. That is to say, they might have been dealt with by means other than, a trial. Since then it has been decided that they shall go through a process of trial, but the object of that trial is, of course, the punishment of the criminals, and therefore the role of the prosecutor should be merely a role of assisting the court in the actual cases. That is the role of either the investigation committee or Chiefs of Counsel as proposed in these drafts. The difference is that the prosecution would assist the judge, and there would be no question that the judge has the character of an impartial person. Only rules of fair trial must, of course, apply because years and centuries will pass and it will be to posterity to examine these trials and to decide whether the persons who drew up the rules of the court and carried out the trials did execute their task with fairness and with justice but subject to giving the accused an opportunity for defense to that extent. The whole idea is to secure quick and just punishment for the crime. Those are the main considerations which the Soviet Delegation had in mind when it presented its views upon the draft of the American Delegation. The views now expressed are to be regarded as preliminary