dtufail/nuremberg-trials-corpus huggingface dataset:
on the trial and appropriate additions should be made. Article 26. The language is not clear to me and probably should read that the judgment shall be accompanied by the reasons supporting its findings. These matters are in addition to the settlement of definition of the crimes to be adopted in Article 6.
As I have previously said if we do not succeed in agreeing upon a procedure for joint trial, I am authorized to offer to agree upon substantive law provisions and that each party may try its own prisoners for such part of the defined crimes as it sees fit to charge, and each conduct its trials according to its own procedures. This would not only eliminate disagreements as to procedures but would shorten the trials greatly and shorten the preparation. I am advised that simultaneous translation into several languages has not been successful and was, therefore, not employed at San Francisco or other recent international conferences. The translation of each step of a trial into four languages would be an extremely time consuming and tedious matter which would be avoided by separate trials. I will be glad to submit an outline of an agreement to this end.
Respectfully submitted,
SIDNEY S. ALDERMAN
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
Summary Record of Conference Between the Lord Chancellor and Mr. Justice Jackson, August 1, 1945
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On August 1, 1945, Sir William Jowitt, who had been announced as the Lord Chancellor in the new Labor government of the United Kingdom, invited Mr. Justice Jackson to a conference at his chambers in the House of Lords. He stated that he had been given responsibility for the further conduct of negotiations on behalf of the new government and by conference with the British representatives had informed himself of the points upon which agreement had been reached and of the points of disagreement.
Lord Jowitt desired to be acquainted with the American point of view as to the unsettled questions. He expressed general agreement with Mr. Justice Jackson on all except one of the points, namely, the right to terminate the agreement if any of the signatories failed promptly to name prosecutors, which he suggested might be taken to imply a distrust in some signatory. He also said it was his intention to continue Sir David Maxwell Fyfe on the British staff, although the new Attorney-General, Sir Hartley Shawcross, would be Chief Prosecutor on behalf of the British with Sir David as his first deputy.
The Lord Chancellor called for August 2,1945, a meeting of the delegations for the purpose of making a filial effort to compose differences.
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 August 2, 1945 Previous Document Contents Next Document The Lord Chancellor greeted each member of the delegations and called the meeting to order. Professor Gros had been called to Paris for consultation and was not present at the meeting. LORD CHANCELLOR. The only claim I can make is that I bring a fresh mind to bear upon a very difficult problem. I confess that I am very anxious that we shall succeed in carrying out the Moscow declaration that the major war criminals shall be punished by joint decision of the governments of the Allies, but I think we shall all agree that the time has now come when we must finalize the thing or realize that we shall have to adopt some other procedure. So I am very anxious to see this morning whether or not we can come to some conclusion satisfactory to all. Would it be convenient to take first of all the agreement and thereafter the charter? Mr. Justice Jackson, who has given great time and attention to this matter, has made certain suggestions which we might proceed to consider. I think nothing arises on articles 1, 2, and 3 of the agreement, but with regard to article 4 a question does arise, and that question concerns the use of the English word "obligation". I understand that we all desire to honor to the fullest extent possible the policy which has come into being at Moscow. But the use of the word "obligation" to us Anglo-Saxon lawyers does create some slight difficulty. We should never use the word about something which is merely binding in good morals, but only about something which is binding in a court of law, and therefore I would suggest to you phrasing something like this: "Nothing in this agreement shall prejudice the Moscow declaration concerning the return of persons to be tried at the scenes of their crimes." Would that suit you, Mr. Justice Jackson? MR. JUSTICE JACKSON. That would meet the point I had in mind and would be acceptable. GENERAL NIKITCHENKO. We are quite prepared to do without the word "obligation", and we suggest that "Nothing in this agreement shall prejudice the provisions established by the Moscow declaration concerning the return of war criminals to the
That would meet the point I had in mind and would be acceptable. GENERAL NIKITCHENKO. We are quite prepared to do without the word "obligation", and we suggest that "Nothing in this agreement shall prejudice the provisions established by the Moscow declaration concerning the return of war criminals to the countries where they had committed their crimes." LORD CHANCELLOR. What do you say to that, Mr. Justice Jackson? MR. JUSTICE JACKSON. Entirely agreeable. LORD CHANCELLOR. Nothing on 5, nothing-I think-on 6, and on article 7- Mr. Justice Jackson had some observation on that. Would you like to say something now? MR. JUSTICE JACKSON. I had thought we would be in a rather awkward position if we were bound to hold our prisoners subject to production at this Tribunal for a year if for any reason the Tribunal should not be organized to proceed. None of the signatories has appointed its Tribunal members yet. Some of the signatories have not appointed their prosecutors. If there should be any failure to organize-and I may say it requires all four of the members of the Tribunal to constitute a quorum and at least a majority of the prosecutors-the delay would be very serious. What position would we be in if, through any of the things that sometimes happen with political bodies, particularly I speak with reference to things which happen in my country, to delay matters, there might be great delay in naming prosecutors or judges? We want to set up something here that we are quite sure can go ahead, for we all agree that not haste necessarily but expedition in this matter is necessary. That is my point. LORD CHANCELLOR. Most feel, I am sure, that immediately after we reach agreement here the French prosecutor will be named, and at the first meeting of the prosecutors the French prosecutor will be present, and there will be no delay. GENERAL NIKITCHENKO. The Soviet Delegation considers that it would not be quite fitting to put a provision of this sort in the agreement because, if there were delay, it certainly would not be because of persons being appointed with delay. In fact, it would be strange to appoint members of the Tribunal before this agreement we are now considering is signed,
that it would not be quite fitting to put a provision of this sort in the agreement because, if there were delay, it certainly would not be because of persons being appointed with delay. In fact, it would be strange to appoint members of the Tribunal before this agreement we are now considering is signed, because, until then, there would be no Tribunal. Naturally, as soon as the agreement is signed, the Soviet Government will appoint both prosecutor and member. LORD CHANCELLOR. I feel myself that speed in getting these trials going is very important and I rather feel this, that, if there is unreasonable delay-I hope and believe there won't be-but if there is delay, then, of course, the various powers might have to resort to their rights under article 6-that is, they might have to conduct their own trials. But I hope and believe that there -will be no delay, and therefore, bearing in mind that there is that reserve power in case delay should arise, I rather suggest we might leave the article, Mr. Justice Jackson, as it stands. I think we might place on record that we all sign this agreement in the expectation and on the understanding that proceedings will be expeditiously carried through. What do you say to that, Mr. Justice Jackson ? MR. JUSTICE JACKSON. I am satisfied to let the matter stand as it is. I question whether we ought not to add to this section that to terminate the proceedings will not prejudice proceedings already taken. I don't know the effect if one of the parties terminated the agreement before sentence. Some of these cases will drag on for a considerable time if we convict organizations and then bring in individuals. I just wonder whether we ought not, as a matter of good draftsmanship, to provide that the termination should be without prejudice to the proceedings already taken. I merely suggest it. It doesn't matter to me. GENERAL NIKITCHENKO. It seems to me it is quite natural that anything done in accordance with this agreement would be enforced after the agreement has been terminated; so it seems to us that addition is really unnecessary. As for the trial of the organizations, we have article 6 in which it says, "Nothing in this Agreement shall prejudice the jurisdiction or the
in accordance with this agreement would be enforced after the agreement has been terminated; so it seems to us that addition is really unnecessary. As for the trial of the organizations, we have article 6 in which it says, "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court. . . ." So, if an organization has been deemed criminal, the national military tribunal can try persons after that. MR. JUSTICE JACKSON. But the point would be that the provision of this instrument is the only law that would make the findings of this Tribunal conclusive as to the criminal character of the organization. If that were terminated and you brought individuals into a national court organized under our system of law and you offered the conviction of organizations and said, "Here is a conclusive finding", defense counsel might bring forth the termination instrument. I don't imagine it would happen. It is a risk. I don't care what is done with it, but in an American court you might not get convictions under this system of individual trials based on the conclusive findings of this Tribunal after the document which makes them conclusive has been terminated. LORD CHANCELLOR. May I say I understand the point. Supposing you have a finding by this international court that a certain organization is a criminal organization, and supposing thereafter, after that finding has been given, the court is terminated under article 7 and after that date some individual is tried by the American courts for belonging to that organization. What the judge is telling us-and I think it would be the same in English law-it would not be possible after the termination of the court to rely on the decision of the court that the organization in question was a criminal organization. Therefore, some words of this sort might have to be added: "Such termination shall not prejudice any findings or proceedings already taken in pursuance of this agreement." JUDGE FALCO. We agree. GENERAL NIKITCHENKO. We agree. LORD CHANCELLOR. Well, let those words be added. And that finishes the agreement. Now, may we take the charter? No question arises on articles 1, 2, 3, 4, and 5. MR. JUSTICE JACKSON. I think there may be
already taken in pursuance of this agreement." JUDGE FALCO. We agree. GENERAL NIKITCHENKO. We agree. LORD CHANCELLOR. Well, let those words be added. And that finishes the agreement. Now, may we take the charter? No question arises on articles 1, 2, 3, 4, and 5. MR. JUSTICE JACKSON. I think there may be a question of clarity of language in article 4. "The presence of all four members of the Tribunal or their alternates shall be necessary to constitute the quorum." It might clarify it if we said, "The presence of all members of the Tribunal, or the alternate for any absent member shall be-". We don't want the alternates for all of them or for any who are present. LORD CHANCELLOR. That is what we describe as a mere drafting point. MR. TROYANOVSKY. About (a) of article 4- LORD CHANCELLOR. I think that is an improvement in the drafting of the language. JUDGE FALCO. That is all right. MR. JUSTICE JACKSON. And in (c)-I am a little baffled to know what a simple majority vote is. I am a little inclined to leave "simple" out. GENERAL NIKITCHENKO. In Russian there is a difference between a simple majority and a qualified majority. But it does not make any difference here. LORD CHANCELLOR. Article 5? 1 rather suggest, gentlemen, that we pass over article 6 for the moment because it raises difficult questions, and go on and see the rest of the thing because I think the rest does not raise such difficult points. Article 7-1 don*t think there is anything. Articles 8, 9, 10, 11, 12, 13, 14, 15--on 15 one point. It arises in this way: After (e) you see the sentence which reads, "The Committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation: Provided that if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried." Mr. Justice Jackson suggests that after the word "Tribunal" we should insert the words "or the charges to be made". MR. TROYANOVSKY. What exactly is that to cover-this new phrase, "or the charges to be made" ? MR.
will be adopted which was made by the party which proposed that the particular Defendant be tried." Mr. Justice Jackson suggests that after the word "Tribunal" we should insert the words "or the charges to be made". MR. TROYANOVSKY. What exactly is that to cover-this new phrase, "or the charges to be made" ? MR. JUSTICE JACKSON. Perhaps it would be better to state, "or the crimes to be charged against that individual". In other words, if any party proposes that an individual be tried, and he with the concurrence of one other prosecutor is entitled to have him tried, he would have to specify the charges on which he was to be tried and the crimes for which lie was to be charged. That is what is intended, so that the person bringing forth the defendant would specify the additional charges. Of course, where the four agreed, there would be no difficulty. It is only in case of tie where the two prosecutors are entitled to name a defendant. They would have to name the charges as well. GENERAL NIKITCHENKO. Of course we have no objection at all to that except for the precise drafting. "Or the crimes for which they shall be charged"-would that be all right? MR. JUSTICE JACKSON. That would be all right. LORD CHANCELLOR. Then there is nothing else, I think, on 15. Article 16 (d)-Mr. Justice Jackson has thought of a point. If I may state it as I understand it, he would like these words put in: "A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel." And he would put in after "Tribunal" the words, "to cross-examine any witness called by the prosecution". It would then read: "A defendant shall have the right to conduct his own defense before the Tribunal, to cross-examine any witness called by the Tribunal, and to have the assistance of counsel." GENERAL NIKITCHENKO. There is one question. What is meant in the English by "cross-examination"? LORD CHANCELLOR. In an English or American trial, after a witness has given testimony for the prosecution he can be questioned by the defense in order that the defense may test his evidence verify his evidence, to see whether it is really worthy of credit. In our trials the defendant or his
LORD CHANCELLOR. In an English or American trial, after a witness has given testimony for the prosecution he can be questioned by the defense in order that the defense may test his evidence verify his evidence, to see whether it is really worthy of credit. In our trials the defendant or his counsel is always entitled to put questions in cross-examination. And I think the same situation prevails in the courts of France. JUDGE FALCO. Yes, the same. GENERAL NIKITCHENKO. According to Continental procedure, that is very widely used too. The final form would be then, "The Defendant shall have the right to conduct his own defense before the Tribunal, to cross-examine any witness called by the prosecution", et cetera. LORD CHANCELLOR. I think it would be better at the end of (e). We could leave (d) as it is and insert the words at the end of (e) so that it would read, "A defendant shall have the right through himself or through his counsel to present evidence at the trial in support of the defense and to cross-examine any witness called by the prosecution." GENERAL NIKITCHENKO. If we say "put questions to any witness", would it be the same? "Cross-examine" does not translate well. LORD CHANCELLOR. It would be better to say "to cross-examine", if you can translate that, because we understand it. Would that be all right? JUDGE FALCO. All right. MR. JUSTICE JACKSON. All right. LORD CHANCELLOR. All agree. Let that be added at the end of (e). Now we come to 17. MR. JUSTICE JACKSON. I think there was another point on 16 (b). It would now appear that the defendant's only right to make any explanation relative to the charges would be in the preliminary examination, and that would be a curtailment of his rights that would hardly look well to the American and, I would think, to the British bar. I would suggest, "preliminary examination and at the trial would have the right. GENERAL NIKITCHENKO. We had the words "and at the trial" at first, and during drafting they fell out somewhere. LORD CHANCELLOR. Now we come to 17, and I understand no question arises with regard to (a), (b), (e), or (d). With regard to (e), may I just say this: We have in England what we call the system of taking evidence on commission, and
at the trial" at first, and during drafting they fell out somewhere. LORD CHANCELLOR. Now we come to 17, and I understand no question arises with regard to (a), (b), (e), or (d). With regard to (e), may I just say this: We have in England what we call the system of taking evidence on commission, and the taking of evidence on commission means that you can send some official of the court. We call him a master or examiner. He can go and take evidence wherever he finds it-particular witnesses who need not come to the court. Let me give an illustration. Supposing a major war criminal is being tried for inciting to murder a Jew, and you are relying upon some speech he made at some time in Germany. Now we in England could send a commissioner to that town to get evidence from people who actually heard that speech instead of bringing all those people to the trial. That saves a great deal of time over a matter which is probably not in dispute at all. We should be able to use examiners and take that evidence; when it came to trial, we should have the print of what the examiner had found out, and it would be printed in all languages. We in England call it taking evidence on commission. Now I -would suggest we do it in this way. Let (e) read as follows: "The Tribunal shall have power to appoint officers for the carrying out of any task designated by the Tribunal including the power to have evidence taken on commission." Would that meet your views, Mr. Justice Jackson? MR. JUSTICE JACKSON. I think it would, Lord Chancellor. The only difference would be that a master often has power to make recommended findings whereas in merely taking evidence on commission, or taking depositions, as we sometimes call it, he would not. But I do not think that is so important. GENERAL NIKITCHENKO. According to the Continental and, in particular, the Soviet procedure, a court cannot deputize its powers to an individual, that is, a court must see for itself. But in order to be able to reach an agreement more quickly we are quite prepared to put in the proposal as suggested by the chairman in the hope that, when we come to other questions in which the Soviet Delegation cannot find it possible to forego some of its positions, the
see for itself. But in order to be able to reach an agreement more quickly we are quite prepared to put in the proposal as suggested by the chairman in the hope that, when we come to other questions in which the Soviet Delegation cannot find it possible to forego some of its positions, the other delegations would take that into consideration. LORD CHANCELLOR. What do you feel, M. Falco? JUDGE FALCO. I agree. LORD CHANCELLOR. Well, we shall agree that (e) is drafted in that way-"designated by the Tribunal, including the power of having evidence taken on commission". I am very much obliged to you. Article 18-1 don't think there is anything. Articles 19, 20, 21, 22. Article 22 reads as follows: "The administrative headquarters of the Tribunal and its secretariat shall be located in Berlin. The first meetings of the members of the Tribunal and of the chief prosecutors shall be held at Berlin at a place to be determined by the Control Council. The first trial shall be held at Nurnberg and any subsequent trials shall be held at such places as the Tribunal may decide." This is a question upon which I don't know the views of the members. That is satisfactory to us, and I think to you, Mr. Justice Jackson. MR. JUSTICE JACKSON. There was a later draft made, to -which I intended to refer in my memo, which changes that somewhat. LORD CHANCELLOR. I understood what I read out was the final form at the last meeting. MR. JUSTICE JACKSON. I think that is right. I was following article 22 as it appeared in the draft itself. LORD CHANCELLOR. Would this be all right as we read it out? GENERAL NIKITCHENKO. In our opinion it would be perhaps better to leave that f or consideration when we consider article 6, because these are the two questions that would provoke discussion perhaps. LORD CHANCELLOR. Very well, leave that over for the time being. Article 23-no question, I think, arises on that. Article 24-we have not set out 24. We, and I presume you too, would conduct a trial in this order. First of all, the prosecution give their evidence, then the defense give their evidence, and finally the prosecution may be allowed to call what we call "rebutting evidence" to rebut the evidence of the defense. I