dtufail/nuremberg-trials-corpus huggingface dataset:
considers it superfluous. Supposing we have condemned one of the criminals-it is not effective because one has left the agreement. MR. JUSTICE JACKSON. But suppose you have pending trials or a trial pending, or suppose you have indicted parties and then there is a withdrawal. It should not invalidate the proceedings taken up to that date, but the remaining parties should be entitled to modify their agreement and proceed. Certainly the party that withdraws has no interest in seeing the parties who remain disabled from proceeding, and it would seem to me that we should make it clear that the defendants under those circumstances would have no right to claim the proceedings had abated. GENERAL NIKITCHENKO. I fully agree with that. It won't prejudice the action past or pending, but the Soviet Delegation does not see any necessity to include the words to that effect in the agreement itself. MR. JUSTICE JACKSON. Unfortunately, it might be held in the absence of a provision that a dissolution of the parties has terminated the agreement. SIR DAVID MAXWELL FYFE. It seems to me the position is that we agree as to what we want, and it is simply the question of wording the new point introduced as to pending proceedings which we all agree should not be affected in any way. I wonder if the Soviet Delegation would consider this: "any proceedings pending prior to the expiration of the notice shall not be affected." It seems to me that is what we want, and it is only a question of finding words to meet it. GENERAL NIXITCIIENKO. If the agreement had terminated, it would not affect anything that was proposed to be done. The remaining parties would have to arrange about that themselves. SIR DAVID MAXWELL FYFE. Is there any harm in putting in the agreement what we have all agreed on? GENERAL NIKITCHENKO. The point is that, in so far as anything done in the past is concerned, that cannot be affected by any termination, but in anything that may happen in the future, that is another matter. I cannot see how you can make provision for something that may happen if the agreement has been terminated. SIR DAVID MAXWELL FYFE. Is there any harm in just saying, "but without prejudice to anything done prior to expiry"2 GENERAL
termination, but in anything that may happen in the future, that is another matter. I cannot see how you can make provision for something that may happen if the agreement has been terminated. SIR DAVID MAXWELL FYFE. Is there any harm in just saying, "but without prejudice to anything done prior to expiry"2 GENERAL NIHITCHENHO. The formula suggested by the Soviet Delegation is something like this: "shall not invalidate or nullify action taken in accordance with this agreement prior to its termination in accordance with this agreement." MR. JUSTICE JACKSON. Would a British judge think that sufficient to continue a trial under an agreement that was so terminated? Or is his power terminated unless the governments bring in some new agreement? SIR DAVID MAXWELL FYFE. It would cover you up to the date of termination. MR. JUSTICE JACKSON. Is it the basis for further proceedings between the remaining powers? PROFESSOR GROS. I do not see exactly the situation. Let us suppose one of the Four Powers decides to withdraw. Anyway, that Power will give a month's notice. During that month the three others may exchange notes and by exchange of notes they may maintain the charter. There would be three judges instead of four, and the voting would be two to three. It is easy to do that in a fortnight or less. I think it most important to leave those questions open. GENERAL NIKITCHENKO. The Soviet Delegation entirely agrees with what Professor Gros says. They cannot see any point in making an addition of this kind. They would agree to such a provision if that would enable them to meet your views, but in their opinion nothing that has been done in the past in accordance with the terms of this agreement can possibly be questioned in any way. SIR DAVID MAXWELL FYFE. Which would you prefer, Mr. Justice Jackson ? MR. JUSTICE JACKSON. Well, if the Tribunal were applying the Soviet law, I would accept just what Mr. Nikitchenko and Professor Trainin suggest. If I expected a judge to apply American law, I should have doubts whether you could merely continue the proceedings of trial in case a withdrawal terminated the jurisdictional agreement, but I am not going to be fussy about that and will just let it go. SIR DAVID MAXWELL FYFE. I agree, in view of what Mr.
expected a judge to apply American law, I should have doubts whether you could merely continue the proceedings of trial in case a withdrawal terminated the jurisdictional agreement, but I am not going to be fussy about that and will just let it go. SIR DAVID MAXWELL FYFE. I agree, in view of what Mr. Justice Jackson says. We will leave it as it is. MR. JUSTICE JACKSON. Then it terminates and we say nothing about its effect. SIR DAVID MAXWELL FYFE. We leave it as it is. Article 4 is the only point outstanding on the agreement. Now we come to the charter. The first point is in paragraph 6, subparagraph (c). Is there any question before that? I have none. GENERAL NIKITCHENKO. The first point, is a point of drafting. In paragraph 1 of the charter there is no statement of the parties to the agreement, and in the opinion of the Soviet Delegation it is essential to -name the parties to the agreement. Just recite the names of the parties. SIR DAVID MAXWELL FYFE. That is purely a matter of drafting. I have no objection. Have you, Mr. Justice Jackson? MR. JUSTICE JACKSON. None at all. GENERAL NIKITCHENKO. The next question is in paragraph 5, "sit in one or more Chambers or Divisions . . . ." In the opinion of the Soviet Delegation it should be only one-either in one or more Chambers or one or more Divisions-because the use of both words, "Chambers" and "Divisions", implies some doubt in our minds as to what that should be. SIR DAVID MAXWELL FYFE. I should like to know from the draftsmen what they meant by "Chambers". SIR THOMAS BARNES. I think they meant "Divisions". PROFESSOR GROS. A chamber is one division in the French court. The French court is divided into two or three chambers. Let us take an example. In the French court the court in Paris is one court, but it sits in several chambers and it is the chamber which gives judgment. It is only a question of wording. SIR DAVID MAXWELL FYFE. Here is a court of four. Is it suggested that it might sit two and two? PROFESSOR GROS. No, not at all. SIR DAVID MAXWELL FYFE. Does it mean that it would sit in more than one chamber? PROFESSOR GROS. I suppose we might have more than one trial, and one chamber would sit in Berlin to judge so
FYFE. Here is a court of four. Is it suggested that it might sit two and two? PROFESSOR GROS. No, not at all. SIR DAVID MAXWELL FYFE. Does it mean that it would sit in more than one chamber? PROFESSOR GROS. I suppose we might have more than one trial, and one chamber would sit in Berlin to judge so and so; another chamber would sit in Nurnberg to judge so and so; and a third chamber might go anywhere else. There might be four judges and four chambers. SIR DAVID MAXWELL FYFE. My feeling is that we had better start with one, and then, if the necessity arises, let us agree to make another. What do you feel, Mr. Justice Jackson? GENERAL NIKITCHENKO. But it is stated here that "procedure of each Chamber or Division shall be identical, and shall be governed by this Charter." SIR DAVID MAXWELL FYFE. In case of need. I have no strong feelings on this at all. MR. JUSTICE JACKSON. Well, I think it is a situation in which we ought to clarify our feeling or thinking a little bit. If we are setting up three or four tribunals here, the United States is not prepared to do its part. We are thinking of preparing one case. We will have only one prosecuting staff. We would not be prepared to furnish prosecutors or judges for a whole group of tribunals. Now, I can see no advantage in having different chambers of the same international tribunal unless we are not able to work out a procedure by which we can all prosecute together. If you have several chambers of an international tribunal, they might proceed according to different procedures. I am not wedded to my procedure. I just don't understand any other. If you say that these four chambers must function but by identical procedure, then we would have to have four prosecuting staffs. I think we could get into endless complications. Now, really, gentlemen, we will have an awful job to try one case in four languages as we are undertaking here to do, and I do not want to spread so thin as to take on several international trials at once. We from our side of the water are not notoriously modest, but there are limitations on what we can get accomplished. I think we would be undertaking too much here in one bite, if you will let me put it
I do not want to spread so thin as to take on several international trials at once. We from our side of the water are not notoriously modest, but there are limitations on what we can get accomplished. I think we would be undertaking too much here in one bite, if you will let me put it that way. GENERAL NIKITCHENKO. The Soviet Delegation is referring back to article 5 of the original American draft where it is stated that one or more tribunals will be set up by the Control Council. MR. JUSTICE JACKSON. We thought it was possible that after the first trial others would be discovered or captured, in which case other tribunals might be necessary, and We tried to provide for this in the draft so that we would not need to negotiate a new agreement; but we did not make several tribunals a normal procedure, and that is the difference in our drafts. SIR DAVID MAXWELL FYFE. I think it says "in case of need". Isn't it simply a question of wording? If I understand it, this is something to be used in case of extraordinary necessity. Just a matter of getting the language that is understood by the four countries. GENERAL NIKITCHENKO - The Soviet Delegation proposes this: "In case of need and depending on the number of the matters to be tried, one or more tribunals may be set up and the establishment, functions, and procedure . . . ." et cetera. SIR DAVID MAXWELL FYFE. That follows the American draft, don't you think, Mr. Justice Jackson? MR. JUSTICE JACKSON. I should like to reserve it for future consideration, depending upon how well we agree on procedural matters, whether we should set up more than one tribunal, one to proceed along the lines of Soviet procedure and one along our own lines, and we can proceed with an official language and not four. SIR DAVID MAXWELL FYFE. You are suggesting that we see how we get on with the agreement. MR. JUSTICE JACKSON. Yes, I just reserve that question. May we go back, please, to number 3? The "replacement of judges" provision I assume means that no replacement can take place during any trial. GENERAL NiKITCUENK0. The Soviet Delegation agrees there can be no replacement during the trial. It would not apply unless the judge and the alternate were both absent at the same time. MR.
go back, please, to number 3? The "replacement of judges" provision I assume means that no replacement can take place during any trial. GENERAL NiKITCUENK0. The Soviet Delegation agrees there can be no replacement during the trial. It would not apply unless the judge and the alternate were both absent at the same time. MR. TROYANOVSKY. Because ordinarily the place of the judge would be taken by his alternate. GENERAL NIKITCHENKO. That is to say, the case goes on. If one of the judges falls ill, then his place is taken by the alternate, and the case goes on. That is provided for in the last sentence of number 2. MR. JUSTICE JACKSON. I agree, but the point I make is, as I explained before, that we could not agree to a court which would be subject to reconstitution because its rulings were not satisfactory, or anything of that kind, and could not consent to recall of a judge during the trial. SIR DAVID MAXWELL FYFE. I think that is agreed. SIR THOMAS BARNES. Are we going to alter the text? MR. JUSTICE JACKSON. We could simply add, "No replacement could take place during the trial except by the alternate." SIR DAVID MAXWELL FYFE. We suggest that "no replacement shall take place during the trial except by his alternate." MR. JUSTICE JACKSON. May I raise one more question-the provision about the selection of a, president? I think there is difficulty here. We may as well face it. We do not contemplate any trial on the territory of the, United States. We do not, I assume, contemplate any trial in Britain, and probably not on the territory of France, which means that at least three of the countries are automatically excluded from the presidency. You are not in the territory of any of these countries when you are in Germany even if it is occupied territory. Berlin is, partly at least, neutral territory, and it seems to me we have got here a provision that has in it the seeds of confusion, and we ought to say what we mean a little more definitely with reference to the practicalities of this situation. We shall be sitting in territory occupied, but it is not territory of ours. We certainly do not make any claims to the territory. SIR THOMAS BARNES. That is covered in the second paragraph, isn't it, where it
what we mean a little more definitely with reference to the practicalities of this situation. We shall be sitting in territory occupied, but it is not territory of ours. We certainly do not make any claims to the territory. SIR THOMAS BARNES. That is covered in the second paragraph, isn't it, where it says, "In other cases, the members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a president . . .", et cetera. MR. JUSTICE JACKSON. Well, that is all right if that is so understood. SIR DAVID MAXWELL FYFE. IS there anything else, Mr. Justice Jackson? MR. JUSTICE JACKSON. I don't think so. GENERAL NIKITCHENKO. I have a suggestion to make on the discussion of number 6. The point is that the committee was unable to agree on the drafting of points (c), (d), and (e). We objected to (d) because we considered it already covered, but it seems now that article 6 is the one which raises most problems on which there has been least agreement so far. I think we should leave article 6 out, proceed to other articles, and come back to it, as it is the most controversial article. MR. JUSTICE JACKSON. May I mention before we leave number 4 the question as to four members of the Tribunal or their alternates being necessary to constitute a quorum? I would have a little question as to whether all four must be present every moment of the time and don't think it is quite clear here whether, in the absence of a member, his alternate could sit in his place. 1 would be inclined to make it three because sometimes you have temporary absence-a man is late or absent due to illness-and the others could go ahead. I think it is just a matter of draftsmanship-the meaning is clear. PROFESSOR TRAININ. The Soviet Delegation is quite prepared to accept that with definite wording. MR. JUSTICE JACKSON. Do you think four is necessary at all times for the hearing? I think four should be present at any vote, but, if a man is just temporarily delayed, or something of that kind, would you want to stop the proceedings on account of the absence? PROFESSOR TRAININ. For a hearing the Soviet Delegation considers you must have f our present, that the court is not
I think four should be present at any vote, but, if a man is just temporarily delayed, or something of that kind, would you want to stop the proceedings on account of the absence? PROFESSOR TRAININ. For a hearing the Soviet Delegation considers you must have f our present, that the court is not constituted if the four are not present, and would not be empowered to hear the case if the four or their alternates were not sitting. JUDGE FALCO. [not translated.] SIR DAVID MAXWELL FYFE. I don't think it is a very important point, Mr. Justice Jackson. We'll just have to see that the four of them are on time. I am anxious myself to meet any suggestion. Shall we see how far we get on with the others and then turn back to number 6? Shall we proceed to 7, 8, and 9? If there are no questions, we are down to 10. In number 10, Mr. Justice Jackson, you did intimate this morning that you had a point there. MR. JUSTICE JACKSON. Our point really is not so much with number 10, providing it is understood that the organization may be tried as such and provided there is put in the agreement a proviso for some manner of notice, constructive as we would call it, or actual, which the Tribunal would think sufficient so that the members are likely to be reached. Unfortunately, in one of our own redrafts, the provision about notice seems to have been dropped out. But somewhere along the line we must give notice to these members that this issue is up. We can give it by constructive notice. It may not have much practical meaning, because I doubt that anyone would come forward and identify himself as a member of an organization, the leaders of which are in jail, but I cannot satisfy American legal opinion with any procedure in which there is not some attempt in good faith to give notice to a man that there are legal proceedings going on which affect him and give him a chance in some manner to be represented and heard. SIR DAVID MAXWELL FYFE. Is this what you have in mind, Mr. Justice Jackson, that it would be constructive notice, for the actual notice is rather difficult, as we would not know the number? Notice would be given on the radio and through the press, whatever press is functioning in Germany, that at the trial of, say,
SIR DAVID MAXWELL FYFE. Is this what you have in mind, Mr. Justice Jackson, that it would be constructive notice, for the actual notice is rather difficult, as we would not know the number? Notice would be given on the radio and through the press, whatever press is functioning in Germany, that at the trial of, say, Kaltenbrunner, the court will be asked to pronounce the organization known as the Gestapo to be a criminal organization. If he wishes to attend and dispute this point, he may attend before the court. That is about what you have in mind? MR. JUSTICE JACKSON. Yes. He might come in and submit to the jurisdiction of the court, which might make conditions rather onerous, but I think we must give him some fair chance. I do not think he can be bound by the decision when he has not had an opportunity to be heard. GENERAL NIKITCHENKO. The Soviet Delegation is not quite clear. In practice probably the whole point is quite an unimportant one, but, theoretically, take the trial of Kaltenbrunner. A notice will be issued that at the trial the court will be asked to pronounce that the Gestapo is a criminal organization and anybody who wants to dispute this or defend his case must come forward. Well, supposing some hundreds of the members of the Gestapo did choose to come forward to defend the case of the organization. What would happen in the court and particularly what would happen on the trial of Kaltenbrunner if a hundred or two came forward to join in? PROFESSOR GROS. Representative members of those organizations would be put on trial, but, if they are present, other members of the organization have no claim to say that the organization has not been charged in full knowledge of its functions, and there is the possibility that, if others come in, we shall have to refuse them because we are not going to charge minor criminals. The Tribunal must say we do not want to hear them. I would say I picture this in quite another way. There are very good lawyers in Germany and in the Nazi Party who probably would come to the bar and discuss questions some smaller member of the Gestapo would not be in a position to discuss. But we would be very glad to have more criminals, as I said, and we may misunderstand
in quite another way. There are very good lawyers in Germany and in the Nazi Party who probably would come to the bar and discuss questions some smaller member of the Gestapo would not be in a position to discuss. But we would be very glad to have more criminals, as I said, and we may misunderstand the point. MR. JUSTICE JACKSON. I must say this is a problem of real difficulty. MY own view of it is that the practical side of it is not serious, but I may be wrong. We shall have, locked up and on trial for their lives, the chiefs of these organizations. I find it difficult to believe that many men will step forward and say, "I am one with him and want to be heard." But if a man does, he must submit himself to the jurisdiction of the court and be locked up. And if there are 200, I would let them choose a lawyer and be heard. There would be 200 of them to be condemned, if we were successful in our case and ready for sentence. I do not think it is necessary that all be present in court, particularly if they appear by representatives. We will have masters. The court can act through them to take testimony as need be, but they will already have identified themselves as parties and parties who knew what the Gestapo was. The only thing I would think might induce their appearing would be that in jail they would be better fed than if at large. If they don't come forward, you have no trouble, and if they do, you have the trouble of letting them be represented. The difficulty is and I don't know whether it is a difficulty because it is one of the things I should fight for we don't condemn persons who have not had a chance to be heard on the issues. We have to give them some chance to be heard when picked up and identified. It seems to us that the risks of dealing with them in the main trial are much less than the risks of leaving it open to them to raise those questions in later individual trials. If anybody has a better plan for reaching these groups, we are open to suggestion, for among ourselves these points have given us trouble and caused endless debate, but we cannot say to American opinion that any man has had a fair trial who has not, at some point, had a chance to be beard