dtufail/nuremberg-trials-corpus huggingface dataset:
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 the customs of war. We are prepared to prove against every person whom we would pro. pose to indict guilt under those well-defined classes of crimes. We are prepared to show that as against the top men, not merely against the little soldiers who were out in the field and did these things, but against the top Nazis who ordered them. We have the captured orders, we have the reports, we have the evidence to show that they were guilty, and guilt will not be an inference merely because they were in office or in authority but because they personally knew and directed and planned these violations as their deliberate method of conducting war. And then the second thing of which they are all guilty-and we can show they all participated in it with knowledge-was the launching of a war of aggression. They went to war as a means of carrying out a policy after their country had renounced war as a means of policy and after, we think, the civilized world had come to recognize any war except a defensive war or one undertaken to discipline an aggressor as a criminal violation of international law. Now the next is the invasion or initiation of war or threats against other countries, or otherwise in violation of international law. I am quite prepared to concede that threats should go out of this definition. I think actual invasion is all that we need deal with in this case, and I should be prepared to drop the thought that mere threat of invasion is a crime under international law. Also it involves us in great difficulty as to what constitutes a threat-the building of strategic fortifications or strategic railroads or defenses might be construed as a threat and I am willing to drop that from the definition. And the next, of course, is the common plan or enterprise, which is the means by which we hope to reach a great number of persons who are deserving of trial and punishment but against whom specific acts,
or defenses might be construed as a threat and I am willing to drop that from the definition. And the next, of course, is the common plan or enterprise, which is the means by which we hope to reach a great number of persons who are deserving of trial and punishment but against whom specific acts, other than joining in the plan and promoting the plan, might be very difficult to prove. And we see no acceptable substitution for that article as a means of reaching any large number of persons. Then the last is the atrocities, persecutions, and deportations on political, racial, or religious grounds, and the reason for the latter part of that definition is, as I pointed out, that ordinarily we do not consider that the acts of a government toward its own citizens warrant our interference. We have some regrettable circumstances at times in our own country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state. Without substantially this definition, we would not think we had any part in the prosecution of those things which I agree with the Attorney General are absolutely necessary in this case. Therefore I come back to the proposition that we don't know how we can work out this plan except around a definition that is substantially what we have proposed, although we admit it is no doubt capable of improvements at points and clarifications. PROFESSOR TRAININ. In fact we all know what the major war criminals have to be tried for, but it has been found that to put it in words is a very difficult task indeed. Several attempts have been made. The American proposal, the French, the modified British proposal, now the Soviet proposal, and, going a little ahead, I might say we have no perfect articles yet. This article will have to be considered further, and in
that to put it in words is a very difficult task indeed. Several attempts have been made. The American proposal, the French, the modified British proposal, now the Soviet proposal, and, going a little ahead, I might say we have no perfect articles yet. This article will have to be considered further, and in connection with that may I make a few remarks? The remarks made by the chairman could very well be incorporated in the article. The remarks made by Mr. Justice Jackson are more of a general character and concern questions of principle. I quite agree with Mr. Justice Jackson that this article should be the substantive law according to which the criminals should be tried. In this respect I must say that while the French formula has its advantages, it may be a bit too general in its introductory and concluding paragraphs. It is quite true that the American draft is better than the French draft in that it is more precise in stating that these are violations. But in the opinion of the Soviet Delegation the subsequent part of it could be modified by adopting some points from the French. There can be no doubt that, as stated in the French formula, violations of the customs of war, whether in regard to prisoners of war or civilians, is in fact an international crime. An action becomes an international crime even though it may be carried out in accordance with definitions of international law if it is done as part of preparation of aggression or domination over other nations. There might come a time when there will be a permanent international tribunal of the United Nations 0rganization, but this tribunal has a definite purpose in view, that is, to try criminals of the European Axis powers, and it is quite natural then that this fact should be noted in the French proposal. Although of course aggression or domination would not be permissible by any power, this Tribunal has been established for the trial of European Axis criminals. It is very pleasant to hear Mr. Justice Jackson say they have documents about personal responsibility of these various leaders for these various crimes, but it seems to me that the thought is incorporated in the French draft, that having prepared aggression and
been established for the trial of European Axis criminals. It is very pleasant to hear Mr. Justice Jackson say they have documents about personal responsibility of these various leaders for these various crimes, but it seems to me that the thought is incorporated in the French draft, that having prepared aggression and domination of other nations, these leaders are personally answerable for crimes committed in the course of this war, in the course of fulfilment of these plans. In conclusion, may I say that I made an attempt but quite agree with Mr. Justice Jackson that some more attempts have to be made and am sure the other delegations will join in this enterprise? SIR DAVID MAXWELL FYFE. I should like, greatly daring, to try to achieve a compromise between Mr. Justice Jackson and Professor Trainin, because on a first hearing there is nothing in what Professor Trainin has said with which I disagree at all. It seems to me that this is the first point: Mr. Justice Jackson says, "I want these acts defined as crimes"; Professor Trainin has said, "It is quite true that the American draft is quite precise in that it states these are the violations." It seems to me that on that point in the introductory paragraph there is really substantial agreement except for the argument against ex Post facto legislation (1) which Professor Gros put forward. I put this point to Professor Gros: The drafting committee's draft says that "The following acts shall be considered criminal violations of International Law . . . ." Our usual word in English statutes is "deemed", but there is no difference. It is a common word with us. Doesn't that meet Professor Gros' point that we are not declaring the law as it was but the law as we agree on it for this purpose? PROFESSOR GROS. Yes, I agree with you, Sir David-not to state the law as we want it to be, but the exact formula. By the fact of saying those acts are deemed criminal violations we admit some of them were not, and the old construction which I attempted in my draft was to get the same result which we all want without incurring the risk of any criticism against that construction. All the acts which are enumerated in the French or Soviet drafts are not declared or
violations we admit some of them were not, and the old construction which I attempted in my draft was to get the same result which we all want without incurring the risk of any criticism against that construction. All the acts which are enumerated in the French or Soviet drafts are not declared or deemed to be criminal violations of international law. It goes more or less on these lines: the following people will be considered as major war criminals; for that purpose they should have taken part in the preparation or conduct of such and such acts; and those plans, having been committed by army or civilian services, are criminal acts. The first people are major criminals because they have been instigators or accomplices or agents of the commission of those acts. The position seems to be better because we invite less criticism on the question of deeming any act as a criminal violation where we cannot say it is made so in any statute. We will not prevent any criticism by what has been written, but nobody can say those enumerated in b) or c) are not criminal violations of international law. SIR DAVID MAXWELL FYFE. This seems fundamental to it. You are saying the persons who committed these acts are major criminals. Does not that imply the acts which they committed are crimes? PROFESSOR GROS. Yes, it certainly does; but there is a difference in saying that, if they are convicted to have taken any part in any capacity in the planning of those criminal acts, they Will be dealt with as major war criminals, and declaring those acts are criminal violations of international law, which is shocking. It is a creation by four people who are just four individuals defined by those four people as criminal violations of international law. Those acts have been known for years before and have not been declared criminal violations of international law. It is ex post facto legislation. MR. JUSTICE JACKSON. Could I ask a question? As I understand it-and I may not be correct-but as I understand it, Professor Trainin does not agree with you about that. If I understand it, Professor Trainin's book takes the position that a war of aggression or initiating war in violation of treaties is an international crime. PROFESSOR TRAININ. Yes. PROFESSOR GROS. But I explained to
as I understand it, Professor Trainin does not agree with you about that. If I understand it, Professor Trainin's book takes the position that a war of aggression or initiating war in violation of treaties is an international crime. PROFESSOR TRAININ. Yes. PROFESSOR GROS. But I explained to you that even Professor Trainin intended to contract the notion of international crime, and I point out the notion of international crime is different from violation of international law. It is declaring as settled something discussed for years and settling a question as if we were. a codification commission. MR. JUSTICE JACKSON. But We are a codification commission for the purposes of this trial as I see it. That is my commission as I understand it. PROFESSOR TRAININ,. I welcome the fact that in the French draft personal responsibility is well emphasized and that we should try to incorporate it in our draft, but I still think the question of declaration of law remains. That is, the four countries may, for the purposes of this trial, declare certain acts to be criminal; and for the purposes of this trial the laws declared by the Four Powers should be sufficient. SIR DAVID MAXWELL FYFE. It seems to me you might get it in this way, by saying "the following acts shall be considered criminal violations" instead of "international crimes"-I am not sure whether there is a difference-"and those who are proved to have directed or participated in the preparation and conduct of any and all of them shall be liable to be tried, to be convicted, and punished by the tribunal". PROFESSOR TRAININ. In my opinion we have made a step forward and we understand each other better in this respect. But it would be very difficult here and now to try to work out the form which would be acceptable. SIR DAVID MAXWELL FYFE. It seems to me these, are the two principles which we have to marry: first, a statement that this is the law which the Tribunal will apply; and secondly, the personal responsibility. Now, Professor Gros, may I put this point to you? Do you join in a distinction between international crimes and criminal violations of international law, or is there a phrase which would not offend the codification point you make?
which the Tribunal will apply; and secondly, the personal responsibility. Now, Professor Gros, may I put this point to you? Do you join in a distinction between international crimes and criminal violations of international law, or is there a phrase which would not offend the codification point you make? PROFESSOR GROS. That is precisely very interesting. I am perfectly sure there is no fundamental difference between those two drafts. I will repeat: In the American draft the fact that you say that launching of a war of aggression is a criminal violation of law does not give you the power to convict and condemn the people responsible for those crimes if you do not say they are responsible. SIR DAVID MAXWELL FYFE. Then may I make this suggestion, that we try in another draft to introduce both these conceptions? Can we include the two things: what we would consider the crimes triable by the Tribunal, and who will be the persons triable by the Tribunal? PROFESSOR TRAININ. We agree. SIR DAVID MAXWELL FYFE. There are two points on which I could not quite see the weight Mr. Justice Jackson gave to them. The "aggression against or domination over" seems to me to go into a different field from the violation of a fishing treaty or something of that kind. It implies, even without definition, military attack and aggression or intention to become the master rather than a mere breach of agreement. The other point was that I thought that, if we limited the trial to the European Axis criminals, no one in the future could say we were discriminating in limiting this definition to Axis aggression. I would like Mr. Justice Jackson to consider that point. It seems one on which, we are governed by limitations from our governments. MR. JUSTICE JACKSON. Well, I agree that we are dealing only with them, but I should think that our definition would sound pretty partial if we are defining an act as a crime only when it is carried out by the Axis powers. That is what I have in mind: If it is a good rule of law, it should bind us all, and if not, we should not invoke it at this trial. It sounds very partial to me, and I think we would get great criticism from it. PROFESSOR TRAININ. We don't say that other
is carried out by the Axis powers. That is what I have in mind: If it is a good rule of law, it should bind us all, and if not, we should not invoke it at this trial. It sounds very partial to me, and I think we would get great criticism from it. PROFESSOR TRAININ. We don't say that other countries would not be equally responsible for that but say that these persons would be responsible for acts committed by the European Axis powers. SIR DAVID MAXWELL FYFE. Then we come to point c). Having made two points against Mr. Justice Jackson, I now make one in his favor. I don't like principles of international law coming in there, because I think that would leave it to the Tribunal to define principles of international law. PROFESSOR TRAININ. Yes, that could be changed. SIR DAVID MAXWELL FYFE. Has anyone any disagreement with the view that acts inside the Reich, in Germany, which were preparatory to the plan of aggression and domination should come into our purview? [No response.] Then we are agreed on that. Then we come to the common plan. As I understood the last paragraph of the Soviet draft, it of course is based on the last paragraph of Professor Gros' draft. The intention of that is to state that anyone who has entered into the plan will be responsible for all acts of all persons who carried it out. Now, Mr. Justice Jackson, I would like to help on that. What was your difficulty about the way it is framed? You said we must declare the principle. MR. JUSTICE JACKSON. Yes, declare the principle that he is responsible rather than to assume that "therefore" international law does make him answerable. We would have to declare that or settle that to be the law. Otherwise the question would be raised: is he answerable because he has done these things, particularly under the objection Professor Gros has stated? If we go back to the pre Briand-Kellogg pact days, there is no doubt that for a period of international law all war making was legal. And it seems to me that that treaty and the acts which followed it did Something to the law of war, and that change is what we stand on. But we must declare it, otherwise we shall have argument on that. SIR DAVID MAXWELL FYFE. Would you mean, Professor Gros, in that last paragraph that it would be open
it seems to me that that treaty and the acts which followed it did Something to the law of war, and that change is what we stand on. But we must declare it, otherwise we shall have argument on that. SIR DAVID MAXWELL FYFE. Would you mean, Professor Gros, in that last paragraph that it would be open to the Tribunal to say whether they should be personally answerable, or should we declare? PROFESSOR GROS. I think we should compare it to the common criminal law. If someone is sitting behind a desk and sends some people to kill others, the man sitting behind the desk is answerable for murder, at least in French law, and I presume he is under other systems. Well, the man sitting behind the desk under the common plan, if he did not do anything else, is answerable for the same reason, as instigator; if you say that he is therefore answerable as instigator or accomplice, you give satisfaction to Mr. Justice Jackson's views. PROFESSOR TRAININ. We are approaching common ground here. We are incorporating the best features of Mr. Justice Jackson's draft and Professor Gros', and we would leave the introductory words of Mr. Justice Jackson's draft together with the part about personal responsibility. [Apparently Professor Trainin was referring to the subcommittee draft, XXV.] Section a) would probably be left as it is in the American draft and e) probably in a somewhat different draft. As for d), it would as a matter of fact come under a) of the French draft. SIR DAVID MAXWELL FYFE. Well now, would the Conference like me to try the marriage on this line? I will prepare a redraft for presentation tomorrow at 2: 30. MR. JUSTICE JACKSON. We have other points referred to us and will run into grave difficulty if we don't soon get our work concluded here. I wonder whether we should not make an effort to deal with some of them. SIR DAVID MAXWELL FYFE. Have you a note of them? MR. JUSTICE JACKSON. Professor Trainin would know whether I am correctly informed. As I understand it, there are Soviet objections to the matter contained in the language which was redrafted in article 22. There is also a difference of opinion about article 17 relating to interpreters and the power to appoint special masters. SIR DAVID MAXWELL
Trainin would know whether I am correctly informed. As I understand it, there are Soviet objections to the matter contained in the language which was redrafted in article 22. There is also a difference of opinion about article 17 relating to interpreters and the power to appoint special masters. SIR DAVID MAXWELL FYFE.Shall we take 17 [XLV]? The three points in the differences are: first, the present draft of 17 (e) and (g) second, Mr. Clyde's suggestion; third, Professor Trainin's. It occurred to me that perhaps Professor Trainin could help us. Is there any objection to the Tribunal's appointing someone to take the evidence of a witness, or is it the Professor's point that it is only for the Tribunal to decide and not to be put in the agreement? PROFESSOR TRAININ. I have some doubts whether the Tribunal would do that whether there would be need, and if there were ' whether the Tribunal would do it. In any case I think it is a question which the Tribunal could very well decide itself, and the Soviet Delegation suggest that by saying "the functions and duties of these officers" in the rules of procedure we give the Tribunal the right to do so if it wishes. SIR DAVID MAXWELL FYFE. What do you think, Mr. Justice Jackson? MR. JUSTICE JACKSON. I don't think you could by so limited a phrase authorize the court to name what would in our practice answer as special masters. This is not a new problem. The Permanent Court of International Justice had to consider plans to bring about a combination of the Anglo-American and Continental law procedure in this respect, and it attempted to do so by permitting the court, or the president, when the court should not be sitting, at the request of one of the parties or on its own initiative, to take the necessary steps to provide for examination of witnesses and experts other than by the court itself. That is the rule adopted by the Court pursuant to authorization of the statute, and they have had quite elaborate dealing with this question of nominating a commission to take testimony. It seems to be a general custom in international tribunals to authorize it, and I don't see how we can ever do this job unless we can delegate some