dtufail/nuremberg-trials-corpus huggingface dataset:
more than trying certain persons for some specific offenses. There is involved in this the whole Nazi drive to dominate the world. There is involved in this the basis on which the United States engaged in its lend-lease operation, the belief that this war was illegal from its inception. So, in the light of all these things, we shall have to give consideration to many suggestions which transcend the function of a subcommittee. I think we shall want to prepare a memorandum in the light of what we now know, supplemental to the memorandum given you. SIR DAVID MAXWELL FYFE. If I may add to that, General NIKITCHENKO said this morning at the conclusion of the first paper that the ordinary rules of fair trial must apply-that is, fairness and justice in the eyes of history subject to quick and just punishment. Now, as far as that is concerned, there would be little argument if effect could be given to what I have just quoted taken down from General Nikitchenko; and I wondered whether we could consider this method ' which is an adaptation of Professor Gros' suggestion, as being one on which we could find a synthesis of our different views-that the prosecuting body, those of us around this table, when we have prepared the indictment and got together the evidence on which the indictment is based, might forward that indictment and the evidence or a full summary of the evidence to the court, who would then transmit it to the defendants. That is, the court would get it, and that would meet General Nikitchenko's point that the court should be fully informed of the prosecution. On the other hand, if it is passed to the defendants, it would mean the defendants had had fair notice of what they had to meet; they would then be compelled to say which part of it they accepted and which part they disputed, and these matters could come before the court. I put that forward as being a method of trying to find a synthesis between the different systems of prosecution. I am very anxious, as I think we all are, that we should not fall apart because of our different approach to our work and, at the risk of pressing all my colleagues, I should ask them to consider whether a committee, however informal and noncommittal it need
systems of prosecution. I am very anxious, as I think we all are, that we should not fall apart because of our different approach to our work and, at the risk of pressing all my colleagues, I should ask them to consider whether a committee, however informal and noncommittal it need be, could not try to find in fair detail what are the points of agreement and what are the points that need further discussion-a subcommittee. All delegations would be entitled to put in any memoranda criticizing my suggestions or anything else. It seems to me that, if we bad just four of our number and a secretary trying to find out points we want to direct our mind to, it would be helpful. PROFESSOR GROS. We think that the subcommittee would be useful if we could send some parts of those problems to them as a drafting committee. However, I do not think the discussion has been sufficient in the Conference, notably on the question of trial of the organizations. We would like to have those questions discussed in the full Conference because we think it is one of the most important, if not the most important, and I do not see any point in sending, that back to a drafting committee until it has been sufficiently discussed here. Also the substantive law and the other questions of aggression. There is no use sending the drafting of that article to any subcommittee if we have not discussed exactly what we mean or want to mean. So I would suggest we send back to the drafting committee the question of prosecuting, that one question only, and discuss the other in the Conference. GENERAL DONOVAN. Can the subject be separated? Doesn't it all have to be considered together? Here is the question of your prosecuting group and the function they will perform. PROFESSOR TRAININ. As it has been pointed out by the representative of the American Delegation, there are quite a number of questions on which we have already reached an agreement. I can add one more assuring authoritative and very prompt dealing with the Nazi criminals. That is to say, to work out such a procedure would not be an easy matter at all because we must justify absolute authority and at the same time apply it extremely quickly because
we have already reached an agreement. I can add one more assuring authoritative and very prompt dealing with the Nazi criminals. That is to say, to work out such a procedure would not be an easy matter at all because we must justify absolute authority and at the same time apply it extremely quickly because the quickness of dealing with the criminals is of great importance. It seems to me that all those points on which an agreement has already been reached could be very usefully submitted to that subcommittee, which could work out the details and overcome the practical difficulties. SIR DAVID MAXWELL FYFE. Would it be practical, Mr. Justice, Jackson, to ask the committee to select the points that agreement has been reached on, while we retain for the Conference, the discussion of the outstanding points such as mentioned by Professor Gros? MR. JUSTICE JACKSON. I think we are in a philosophical difference that lies at the root of a great many technical differences and will continue to lie at the root of differences unless we can reconcile our basic viewpoints. As the statement of our Soviet colleague said, they proceed on the assumption that the declarations of Crimea and Moscow already convict these parties and that the charges need not be tried before independent judges empowered to render an independent decision on guilt. Now that underlies a great deal of their position, and we don't make that assumption. In the first place, the President of the United States has no power to convict anybody. He can only accuse. He cannot arrest inmost cases without judicial authority. Therefore, the accusation made carries no weight in an American trial whatever. These declarations are an accusation and not a conviction. That requires a judicial finding. Now we could not be parties to setting up a mere formal judicial body to ratify a political decision to convict. The judges will have to inquire into the evidence and reach an independent decision. There is a great deal of realism in Mr. Nikitchenko's statement. There could be but one decision in this case-that we are bound to concede. But the reason is the evidence and not the statements made by heads of state with reference to these cases. That is the reason why, at the very beginning,
There is a great deal of realism in Mr. Nikitchenko's statement. There could be but one decision in this case-that we are bound to concede. But the reason is the evidence and not the statements made by heads of state with reference to these cases. That is the reason why, at the very beginning, the position of the United States was that there must be trials rather than political executions. The United States feels we could not make political executions. I took that position publicly. I have no sympathy with these men, but, if we are going to have a trial, then it must be an actual trial. That is the position of the American Government, and it troubles me a bit to think of trying to solve by a subcommittee so fundamental a, disagreement as to trial. It raises the question of whether procedural differences are not so great that the idea of separate tribunals for each nation for the trial of its separate groups of prisoners may not be the easiest and most satisfactory way of reconciling it. I do not know, but just put that forward. GENERAL NIKITCHENKO. Perhaps I am mistaken, but I understood that our purpose is not to discuss the philosophy of law but try and work out an agreement, the purpose of which would be the carrying on of justice in the naming of the. war criminals. I cannot deny that in various countries there are various systems of carrying out the justice and some of them may have preferences, but I am quite sure that the aim of those systems, whatever they may be, is always the same, namely, the carrying out of justice. It seems to me that our purpose and task here is exactly that very task, that is to say, to work out a system by which this justice could be carried out quickly and fairly. We could see what is in all the systems that could be taken out from them and applied for our purpose. In other words, we should work out on the basis of those systems a new system, a practical system, to deal with the cases which are before us. MR. JUSTICE JACKSON. I agree with that view of it. SIR DAVID MAXWELL FYFE. So do I. GENERAL NIKITCHENKO. The French Delegation put forward here a number of problems concerning the criminal prosecution and legal procedure. As
those systems a new system, a practical system, to deal with the cases which are before us. MR. JUSTICE JACKSON. I agree with that view of it. SIR DAVID MAXWELL FYFE. So do I. GENERAL NIKITCHENKO. The French Delegation put forward here a number of problems concerning the criminal prosecution and legal procedure. As regards the accusation, there is not much difference in essence and little from the point of view of our task. It is not so important who will put forward the actual accusation of the criminal, whether it would be the government, or the Control Council, or individuals, or on the basis of information received by individuals, or some other authority or person. The accusation must be properly considered and all the evidence collected. It maybe collected by the Chiefs of Counsel or whatever the name of the organization may be. It does not matter the name. It is for us to decide the composition and structure of procedure, and, when this evidence is collected, the accusation will be presented to the accused person so that he would be sufficiently guaranteed that he will have his defense. For example, a man is accused of having committed all kinds of crimes in concentration camps. All the evidence would be presented to him, and then it would be for the accused person to acknowledge or to protest against such accusation; and, if his evidence were sufficient to prove he had never committed those crimes, then there would be no case to be presented against him. Altogether, it seems that, although there may be various differences in the systems which exist in various countries, still the essence is always the same, and it is a question of various forms which lead to the same object. When all the material is collected, all the evidence received, and the accused person is interrogated properly by the prosecutor or by the Chiefs of Counsel or by any other properly authorized person, then it is the business of that organization, like the Chiefs of Counsel for instance, to prepare the actual indictment, attach to it all the evidence, and hand it over to the Tribunal. And then the Tribunal's task will not be so terribly complicated because all the material is before it,
person, then it is the business of that organization, like the Chiefs of Counsel for instance, to prepare the actual indictment, attach to it all the evidence, and hand it over to the Tribunal. And then the Tribunal's task will not be so terribly complicated because all the material is before it, the defendant will be called, the witnesses will be called, and the task of the Tribunal will be simply to check whether all the evidence against the accused person is sufficiently valid and valuable and whether the -witnesses are sufficiently trustworthy and in sufficient number. If the defendant asks to call further witnesses, it will be the business of the Tribunal to decide whether they should be called or not. The differences apparently are mainly in this, that in our court the president of the court does not actually conduct a case. He simply directs it and guides the other judges sitting with him in the court; the actual decision is taken by them by majority of votes. As far as the material is concerned, material for prosecution in the majority of courts, there are already national commissions investigating crimes. There is already a large amount of material. We do not know exactly all the names of the defendants but know what categories of persons are going to be tried, and that material will be of great help to the prosecution and to those who investigate into their crimes. Therefore, when all the material is collected, properly checked by the prosecutor or Chiefs of Counsel, and handed over to the Tribunal, probably the Tribunal will not take much time to try the criminals. It may take one week or may take several weeks. The main cases and complicated cases after such substantial and detailed preparation should take a very short time. I am glad to make a proposal. Before we decide whether a subcommittee should be formed or not and which questions should be considered by it if formed, I think it is very important f or us to decide the fundamental question of whether we should work out one document comprising everything or two documents, one dealing with the actual agreement concerning particulars of principle and the other one, the terms of reference. If we decide this question, after that it would
is very important f or us to decide the fundamental question of whether we should work out one document comprising everything or two documents, one dealing with the actual agreement concerning particulars of principle and the other one, the terms of reference. If we decide this question, after that it would be easier for us to pick out from the questions which we are discussing those on which there is no diversity of opinion between us the questions of principle on which we have all agreed. And then that series of questions all agreed upon in principle could be passed to the subcommittee for drafting first. But first of all, it is essential from our point of view to decide whether it is going to be one agreement or two and then to select from each of those two the questions which are more or less all clear in order to pass others on to the subcommittee. SIR DAVID MAXWELL FYFE. Mr. Justice Jackson, do you see any fundamental difficulty in having it in the form of an agreement? MR. JUSTICE JACKSON. As far as we are concerned, we would be Willing to accept the Soviet Delegation's suggestion dividing the document into two parts. I think that would be acceptable to us, keeping in mind, however, that we want to keep it in the form of an executive agreement and not a treaty. SIR DAVID MAXWELL FYFE. It seems we all agree that the document should be in two parts, the agreement and the terms of reference, the terms of reference being annexed or incorporated in the document., Mr. Justice Jackson points out that it is to be an executive agreement and not in the form of a treaty. GENERAL NIKITCHENKO. Would it be necessary to use the exact words, "executive agreement," or would it be possible to say "in accordance with the principles laid down in the Moscow declaration the following governments conclude the following agreement"? MR. JUSTICE JACKSON. We will have to keep it clear that it is an executive agreement on behalf of the President, as Commander-in-Chief; otherwise it would have to be ratified by the United States Senate, which would incur delay. SIR DAVID MAXWELL FYFE. Then we are agreed on that point. Now the question is, what is the best method of providing that agreement? Mr. Justice Jackson, I can
agreement on behalf of the President, as Commander-in-Chief; otherwise it would have to be ratified by the United States Senate, which would incur delay. SIR DAVID MAXWELL FYFE. Then we are agreed on that point. Now the question is, what is the best method of providing that agreement? Mr. Justice Jackson, I can see you are not in full agreement on the question of the subcommittee. We have all been quite frank in this matter. I am trying to find the best method. Would it suit you better if you produced a further draft incorporating as much as you could of what has been put forward in these memoranda and pointing out where there was difficulty and discussing it in the full Conference? How much time would you like? MR. JUSTICE JACKSON. We would endeavor to have it ready to bring here by Monday. We shall try to have it ready far enough in advance to be translated. After further discussion regarding time necessary for translation Sir David Maxwell Fyfe announced he would arrange the next meeting when the document was ready for the Conference. 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
Revised Draft of Agreement and Memorandum Submitted by American Delegation, June 30, 1945
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EXECUTIVE AGREEMENT RELATING TO THE PROSECUTION OF EUROPEAN AXIS WAR CRIMINALS
1.In accordance with the Moscow Declaration of October 30, 1943, concerning the responsibility of the Nazis and Hitlerites for atrocities and crimes in violation of International Law, and in accordance with other statements of the United Nations regarding the punishment of those who have committed, been responsible for, or taken a consenting part in, such atrocities and crimes, the Government of the Union of Soviet Socialist Republics, the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, acting by their duly authorized representatives, concluded the following agreement to which the adherence of all members of the United Nations is provided for, in order to provide the necessary practical measures for the prompt prosecution and trial of the major war criminals of the European Axis Powers, including the groups and organizations responsible for or taking a consenting part in the commission of such crimes and in the execution of criminal plans.
2. All members of the United Nations shall be invited by the Government of the United Kingdom, acting on behalf of the other Signatories hereto, to adhere to this Agreement. Such adherence shall in each case be notified to the Government of the United Kingdom, which shall promptly inform the other parties to this agreement.
3. The Signatories agree that the Control Council for Germany shall establish policies and procedures governing (a) the return to the scene of their crimes of persons in Germany charged with criminal offenses, in accordance with the Moscow Declaration, and (b) the surrender of persons within Germany in the custody of any of the Signatories who are demanded for prosecution by any party to this Agreement.
procedures governing (a) the return to the scene of their crimes of persons in Germany charged with criminal offenses, in accordance with the Moscow Declaration, and (b) the surrender of persons within Germany in the custody of any of the Signatories who are demanded for prosecution by any party to this Agreement.
4. The parties to this Agreement agree to bring to trial before an International Military Tribunal, in the name, of their respective peoples, major criminals, including groups and organizations referred to in Article 1. To this end the Soviet Union, the United States, the United Kingdom, and France have each designated a representative to act as its Chief of Counsel. The Chiefs of Counsel shall be responsible for determining, preparing the charges against, and bringing to trial the persons and organizations so to be tried.
5. The Soviet Union, the United States, the United Kingdom, and France shall also promptly designate representatives to sit upon an International Military Tribunal which shall be charged with trying such persons, groups, and organizations.
6. There is hereby adopted the Annex to this instrument which (a) declares applicable International Law and specifies acts constituting criminal violations of International Law, (b) sets out the powers and duties of the Chiefs of Counsel, (c) provides for the establishment, jurisdiction, procedures, and powers of an International Military Tribunal, and (d) makes provision for the punishment of those convicted before such International Military Tribunal.
Annex
1. This Annex is adopted pursuant to the Executive Agreement made this day by the Union of Soviet Socialist Republics, the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, which Agreement provides for the adherence thereto of all members of the United Nations who may elect so to adhere.
made this day by the Union of Soviet Socialist Republics, the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, which Agreement provides for the adherence thereto of all members of the United Nations who may elect so to adhere.
2. The purpose of this Annex, in pursuance of the aforesaid Executive Agreement, is to make detailed provisions for the necessary practical means and measures to carry out the declaration issued at Moscow on October 30, 1943, and other statements of the United Nations on the question of punishment of war criminals insofar as they relate to the trial and punishment of major war criminals.
3. To this end this Annex (a) declares applicable International Law and specifies acts constituting criminal violations of International Law, (b) sets out the powers and duties of the Chiefs of Counsel for the purpose of bringing the major war criminals, including groups and organizations, to trial for their criminal violations of International Law, (c) provides for the establishment, the jurisdiction, procedures, and powers of the International Military Tribunal to be established for the purpose of trying such criminals for their crimes, and (d) makes provision for the punishment of those convicted before such International Military Tribunal.
4. For convenience, (a) the four Signatories will sometimes be referred to as "the Signatories," (b) the members of the United Nations adhering hereto as provided in the preceding Article will sometimes be referred to as "the Adherents," and (c) the Signatories and all Adherents will sometimes be collectively referred to as "the parties to this Agreement."
5. The Tribunal shall be bound by this declaration of the Signatories that the following acts are criminal violations of International Law: