dtufail/nuremberg-trials-corpus huggingface dataset:
I want words that will leave no doubt that men who have originated the plan or taken part in the early stages of the plan are going to be within the jurisdiction of the Tribunal. I do not want any argument that Ribbentrop did not direct the preparation because he merely was overborne by Hitler, or any nonsense of that kind. GENERAL NIKITCHENKO. Will Professor Gros excuse me if I try to amend his draft? In my opinion, in the Russian the word "policy" is not quite enough to mean actually the carrying out of a wide plan of aggression or domination over other nations, and in my opinion Ribbentrop, Ley, and others can say that they do not come under that. PROFESSOR GROS. "Policy" is the widest term we can use. SIR DAVID MAXWELL FYFE. Our difficulty is that "policy" is rather a loose word in English and is inclined to be used by people when they want to get out of expressing a concrete meaning. I should have to consider that a little. With the idea which Professor Gros initiated and General Nikitchenko supported I am in entire agreement. That is what we want to draft in order to do as inclusive a job as we can. MR. JUSTICE JACKSON. May I ask one question more on the French draft! Could the "and" in the last paragraph be "or"? You could drop both "and who" and thus eliminate the issue that seems to lurk in the definition. PROFESSOR GROS. In fact we put under that responsibility everything that has been committed in detail, and they are responsible because they are the instigators of the plan. It puts the charge of every detail on them. MR. JUSTICE JACKSON. If you are embodying our concept of conspiracy in that language, my difficulty is that an American judge would not be certain to recognize it in that dress. PROFESSOR GROS. We imply that all people who have planned invasions and atrocities are responsible for all the atrocities which have been committed in execution of that plan. They are the instigators of the crimes. MR. JUSTICE JACKSON. Well I think that clarifies a point that was troublesome in my mind, and I think in the Attorney General's mind, about this, and we do seem close together in our ultimate meaning. PROFESSOR GROS. Mrs. Mackenzie suggests we might put "and who is therefore responsible". That
MR. JUSTICE JACKSON. Well I think that clarifies a point that was troublesome in my mind, and I think in the Attorney General's mind, about this, and we do seem close together in our ultimate meaning. PROFESSOR GROS. Mrs. Mackenzie suggests we might put "and who is therefore responsible". That would be acceptable. Shall we return to Mr. Justice Jackson's proposal to define aggression ? MR. JUSTICE JACKSON. On the aggression point, what we did was to look at some of the treaties which have been made on that subject and try to draft something in line with what has been accepted before. I have here a draft of a proposed provision. That is a draft from what was used in one treaty to which the Soviet Union was a party. There is another treaty of nonaggression that was the subject of a great deal of consideration, and I call attention to the other treaty, the London nonaggression treaty of July 4, 1933, the language of which is followed closely. The point is that we take the actual attack, actual invasion, as constituting the aggression, and we cut off arguments that there wasn't an "attack" because invasion really was in defense against political or economic measures. Now Germany will undoubtedly contend, if we don't put this in, that this wasn't a war of aggression although it looked like it. They will say that in reality they were defending against encirclement or other remote menaces. Then you are in the whole political argument of who was doing what to whom in Europe before 1939. 1 think we should not litigate the cause of the war but should hold this case within the issue as to who first made an attack, without allowing trial as to any motive that involved only economic or political considerations. This language is not suggested as perfect, but I think the idea of defining "aggressor" is very important and that we shall have to face it at some point in this prosecution. We either have to define it now, in which case it will end argument at the trial, or define it at the trial, in which case it will be the subject of an argument in which the Germans will participate; and it seems to me that it is much better that we face it now and preclude all of that argument. SIR DAVID MAXWELL FYFE. I wonder
case it will end argument at the trial, or define it at the trial, in which case it will be the subject of an argument in which the Germans will participate; and it seems to me that it is much better that we face it now and preclude all of that argument. SIR DAVID MAXWELL FYFE. I wonder whether it would meet our purposes if, on the explanation of Professor Gros, the French draft is accepted as a basis in essentials covering our purpose. Then I think I would be happier myself if after "directed" is inserted a combination of some such words as "or took part in a plan to further". I would suggest that, if we accept that as a basis, including some such words again referring to the substance of a plan, Professor Gros and Mr. Clyde and Mr. Troyanovsky could act as an unofficial drafting committee on that point, and they might present us with a final copy which we would consider. GENERAL NIKITCHENKO. On the point of the Jackson proposal as to the definition of "aggressor", this question has been frequently discussed at various conferences and meetings, and it seems to us it does not enter into the competence of this commission to do so; in trying to punish persons guilty, we should base ourselves on the definitions entered in the various previous documents. I do not quite share the fears expressed by Mr. Justice Jackson that this would provoke an argument in court between prosecutors and defense because the Tribunal would always be in a position to put a stop to irrelevant matters. The Tribunal would not be competent to judge really what kind of war was launched by the defendants; neither would it go into the question of the causes of war. If we try to enter a definition of aggression into the charter, that we would not be competent to do, as the Tribunal would not be competent to do so. It would really be up to the United Nations or the security organization which has already been established to go into questions of that sort. There is an international court forming part of the U.N.'s organization which would pass judgment on conflicts and arguments between the different states. The task of the Tribunal is to try war criminals who have committed certain criminal acts. SIR DAVID
been established to go into questions of that sort. There is an international court forming part of the U.N.'s organization which would pass judgment on conflicts and arguments between the different states. The task of the Tribunal is to try war criminals who have committed certain criminal acts. SIR DAVID MAXWELL FYFE. I would like General Nikitchenko to help me on this. If we accept the French draft, that one of the crimes which the Tribunal will try is directing the preparation and policy of aggression, would not the Tribunal have to decide whether and why the policy charged is a policy of aggression? I would like to know how he would envision this being carried out. GENERAL NIKITCHENKO. The policy which has been carried out by the Axis powers has been defined as an aggressive policy in the various documents of the Allied nations and of all the United Nations, and the Tribunal would really not need to go into that. MR. JUSTICE JACKSON. If we are to proceed on that basis, why do we need a trial at all? GENERAL NIKITCHENKO. The fact that the Nazi leaders are criminals has already been established. The task of the Tribunal is only to determine the measure of guilt of each particular person and mete out the necessary punishment-the sentences. SIR DAVID MAXWELL FYFE. To take an actual case, one that involves my country and one in which the Soviet Union and the United States are not involved at all-take Norway for example-you see there you have a clear aggressive attack by the Germans on Norway. But we have information that they are going to say that it was done in anticipation of measures which they claim we were about to take to prevent the Norwegians from assisting the Germans by the supply of iron-that is the sort of point. If we are going to introduce Norway -and we might want to for the atrocities in Norway-I think we are rather opening the door for trouble if there is no definition. That is a concrete point about which I am worried. GENERAL NIKITCHENKO. Would a question of that sort really come up before the Tribunal? The Tribunal would not concern itself with questions like that-why Germany attacked Norway-but take it as granted. SIR DAVID MAXWELL FYFE. I don't think the defense will take it as
a concrete point about which I am worried. GENERAL NIKITCHENKO. Would a question of that sort really come up before the Tribunal? The Tribunal would not concern itself with questions like that-why Germany attacked Norway-but take it as granted. SIR DAVID MAXWELL FYFE. I don't think the defense will take it as granted. It is going to be difficult. If you charge Ribbentrop as having "directed the conducting of the policy of aggression" against other nations, one of them probably Norway, and he says there was no policy of aggression, can you keep that issue away from the Tribunal? GENERAL NIKITCHENKO. Of course a question like that might come up, but we should pass judgment on the whole policy of Germany and not on individual acts taken apart from the whole. There might be other acts in this war which were taken in self-defense, but here we should take it as the general policy of Germany. PROFESSOR GROS. I think that is also our view of the question. I hope we get the inside story of the Nazis and are able to prove that they had maps in 1934 covering Norway as northern territory for German colonization. If so, it would shut the door to the German lawyers. The German plan should not be judged only in 1939 and 1940. It will be presented by the Chiefs of Counsel since 1933. 1 have no inside knowledge of the German archives but think we could find plenty to establish their intention much before the war. The question by Mr. Justice Jackson is, what aggression would be considered criminal by the Tribunal? I wonder whether we are in a position to choose the definition which should be up before the Tribunal. First, there are plenty of documents in actual international law defining aggression, and they will be used by the court; and second, if we put in an agreement on that text, it will be an anticipation of what will be adopted by the United Nations. Thus, if the new one differed from ours on this point, we would be in difficulty. Perhaps we could agree on a companion text which would be sent by us to our governments. We would make a note of this text or any text which may be adopted and say we consider this would be a useful definition for the court; but it would not be on the same level as the rest of the agreement, to try to avoid
companion text which would be sent by us to our governments. We would make a note of this text or any text which may be adopted and say we consider this would be a useful definition for the court; but it would not be on the same level as the rest of the agreement, to try to avoid the difficulties mentioned by Mr. Nikitchenko. It might even be only one of the rules suggested to the Tribunal. The Tribunal will look into all those declarations and treaties. MR. JUSTICE JACKSON. But the fear I have, and the fear which I take it is shared to some extent at least by the Attorney-General, is that this problem will come up at the trial as it seems certain to do. Some vague idea that Germany was defending herself against some remote menace is the line of defense taken by apologists for Germany in all countries. Certainly an American judge will then say, "Why did not you fellows define aggression 'when drawing up the agreement? It is not a clearly defined term of art-we find no body of law that clearly defines it." The treaties that I have cited use different language and sometimes with quite different meaning, and I am sure that an American judge would say that, if you charge a man with making aggressive war, it is his privilege to show that the war he made was not aggressive, and it is his privilege to show, in defense or in mitigation, provocation, threats, economic strangulation, and that sort of thing. It might be that from the point of view of the application of Continental law you would not have that difficulty. But, you see, you -would have here two judges brought up in the common law tradition, and I would be greatly surprised if they would not say that the charge of aggression could be met by any evidence showing that the purpose was ultimately defensive, if we do not define aggression in such a way that it excludes resort to war to redress economic or political disadvantages or threats of encirclement, et cetera. PROFESSOR GPOS. I may be overconfident, but it is confidence in you. If the prosecution presents its case on that policy of aggression, there will be no necessity of defining aggression. If you begin by making a definition of aggression in this agreement, you will have
encirclement, et cetera. PROFESSOR GPOS. I may be overconfident, but it is confidence in you. If the prosecution presents its case on that policy of aggression, there will be no necessity of defining aggression. If you begin by making a definition of aggression in this agreement, you will have to define other things-launching of war contrary to international law-and you will have to define what you call the laws of humanity and the dictates of the public conscience. When you begin clarifying, if you go to the full length of it, you will have 340 articles. In contrast, if you will leave it in the American -way of dealing with international law, you leave it to the judge to consult the sources. And even if you give that definition, it is controversial. It remains controversial because, if you give the definition which is now proposed, your judge may discuss and disagree with that definition; so you run the same danger. SIR DAVID MAXWELL FYFE. Professor Gros, it comes to this: that your argument is bound to admit the possibility of an argument at the trial on what is aggression. We have three choices: first, leave aggression out, which does not appeal to us because it is the essence of our complaint against the Germans; second, have political argument; third, define aggression. I am merely trying to clarify it. You really would run the risk of having a long trial. PROFESSOR GROS. We had a great trial at the end of the last century-the Dreyfus case. The French courts president said always when there was a difficulty that such a question could not be raised; you must settle our difficulty in the court. MR. JUSTICE JACKSON. I really think that this trial, if it should get into an argument over the political and economic causes of this war, could do infinite harm, both in Europe, which I don't know well, and in America, which I know fairly well. If we should have a prolonged controversy over whether Germany invaded Norway a few jumps ahead of a British invasion of Norway, or whether France in declaring war was the real aggressor, this trial can do infinite harm for those countries with the people of the United States. And the same is true of our Russian relationships. The Germans will certainly accuse all three of our
invaded Norway a few jumps ahead of a British invasion of Norway, or whether France in declaring war was the real aggressor, this trial can do infinite harm for those countries with the people of the United States. And the same is true of our Russian relationships. The Germans will certainly accuse all three of our European Allies of adopting policies which forced them to war. The reason I Say that is that captured documents which we have always made that claim-that Germany would be forced into war. They admit they were planning war, but the captured documents of the Foreign Office that I have examined all come down to the claim, "We have no way out; we must fight; we are encircled; we are being strangled to death." Now, if the question comes up, what is a judge to do about it I would say that, before one is judged guilty of being an aggressor, we must not only let him deny it, but say we will hear his case. I am quite sure a British or American judge would say to a defendant, "You may prove your claim", unless we had something like this which says, "No political, military, or other considerations excuse going to war". In other words, states have got to settle their grievances peacefully. I am afraid there is great risk in omitting this, and I see no risk in putting it in. It may be criticized, but I see no such risk in putting it in as in leaving it out. We did not think it necessary originally, but more recently we have. SIR DAVID MAXWELL FYFE. There is one point that Mr. Clyde suggested, and it is worth exploring because it is a difficult point. He points out that in the French draft after "aggression" you have the words "and of domination over". Now, in fact, every country that was the subject of aggression was the subject of domination. If I might just remind you, there were Austria, Czechoslovakia, Denmark, Russia-the plan was to dominate Russia-Yugoslavia, Belgium, and Holland. Aggression was succeeded by domination, and in the case of Russia there was an attempt to dominate which failed. Mr. Clyde suggests also that we limit it to "the domination of others"--that we say in the charter everything we wanted. PROFESSOR GROS. I think ultimately we must face the facts that difficulty exists now and that we have to try to
in the case of Russia there was an attempt to dominate which failed. Mr. Clyde suggests also that we limit it to "the domination of others"--that we say in the charter everything we wanted. PROFESSOR GROS. I think ultimately we must face the facts that difficulty exists now and that we have to try to have a fair trial. The question is whether one deals with it as you suggest by putting it in writing now or by leaving it to the judges. I do not object to the idea of trying to find a solution, but what I mean is that the text in itself should not be equivalent to the charge, "No, you cannot say that." For public opinion there is always a certain difficulty in shutting out a defense. MR. JUSTICE JACKSON. I had not thought of it in just that way. It seems to me that it is quite a proper thing to be said as a matter of law in advance of a trial that an attack by one upon another is not justified by political or economic considerations. Just as we would say in advance of a trial f or assault that an attack of one person upon another would not be justified by the fact that there were political or economic advantages in doing it, that one must not pursue his political or economic aims by that method. And that is what I understand to be the substance of the Kellogg-Briand pact , the whole non-aggression policy, and of nonaggression treaties, that the states renounce the right to pursue those advantages by attack upon each other. And from the point of view of the sentiment of the world and the average man, I think that is a very important consideration and one that it is quite justifiable to embody in our statement of the law of the case to be applied by the court. I think that is the law; I think that ought to be the law; and I think that if we could make it clear in the instrument it would avoid a great deal of controversy. PROFESSOR GROS. Could I make a suggestion? What is stopping us practically is that this is a definition of aggression and we do not see a possibility of adopting between our four delegations a definition of aggression. But if in that agreement we refer the Tribunal to the existing definition of aggression-which
a suggestion? What is stopping us practically is that this is a definition of aggression and we do not see a possibility of adopting between our four delegations a definition of aggression. But if in that agreement we refer the Tribunal to the existing definition of aggression-which is a complete text-the declaration of the League of Nations of 1927, signed by Germany, Italy, and Japan, by way of denouncing war, we have a solid basis in international law defining war of aggression. If we say that the Tribunal will refer to those two pacts and to any other convention defining aggression that will give them the possibility of choosing their definition, they will have to do that. Do you not think that, if we just put in three lines referring the Tribunal to the definition of those texts, it would be enough? [Here Professor Gros read from the Kellogg-Briand pact .] It covers political, military, and economic situations; so there you have a part of your definition. The pact condemns international war, and the declaration of 1927, which they signed, condemns it too. MR. JUSTICE JACKSON. You would prefer just a general reference to it, or would there be any objection to using language that the court should apply the principle of that treaty to which Germany was a party? Would you find any objection to that? PROFESSOR GROS. NO, none at all. MR. JUSTICE JACKSON. That treaty was the pact of Paris of 1928 (Kellogg-Briand) and the 1927 resolution by the Assembly of the League of Nations. Germany, Italy, and Japan were there. Perhaps we could work out some reference covering what we have in mind. I think it is very important here. PROFESSOR GROS. I do not see any harm in referring to pacts signed by Germany, because they will be referred to by the Tribunal. SIR DAVID MAXWELL FYFE. I should be glad to accept that as a compromise between the two views. GENERAL NIKITCHENKO. I wish to repeat it is not part of our task to try to work out a definition of aggression because, however perfect or good our definition would be, it would not be binding to the defendants, and they might question it. If such an argument does crop up, it would be up to the Chief Prosecutors, who would be very competent to parry any arguments that the