dtufail/nuremberg-trials-corpus huggingface dataset:
opportunity for defense to that extent. The whole idea is to secure quick and just punishment for the crime. Those are the main considerations which the Soviet Delegation had in mind when it presented its views upon the draft of the American Delegation. The views now expressed are to be regarded as preliminary and do not exclude the possibility of alterations or additions which may arise in later discussion. In the opinion of the Soviet Delegation, the American draft should be divided into two portions. One portion should contain the principles of an agreement for the punishment of the chief war criminals of the European countries and the establishment for this purpose of an International Military Tribunal with the corresponding motivations and reasons for the agreement arrived at. The text of the agreement could include points 1, 2, and 3 of the American draft in one form or another. The other part of the American draft, in the opinion of the Soviet Delegation, should be the terms of reference of the International Military Tribunal which will be confirmed in the agreement. The terms of reference of the International Military Tribunal should form an integral part of the agreement and should be attached to it. The Soviet Delegation puts forth the example of the San Francisco agreement, where the International Court is established and where the constitution of that Court is definitely stated to be ail integral part of the agreement of the whole organization, and this agreement would set out the motives and the aims of the court and would establish the rules and regulations under which to operate. On the assumption that the agreement, should be short and the regulations should form an integral part of the agreement, we proceed then to consider how the various points put forward in the American draft can be adapted to this purpose. With regard to paragraph 5 of the American draft, the Soviet Delegation considers that this should be amended in the following sense: that the president of the International Military Tribunal should be the representative of the particular one of the powers which have signed the agreement on whose territory the trial is taking place, and in all other cases, the presidency of the court should be taken in
be amended in the following sense: that the president of the International Military Tribunal should be the representative of the particular one of the powers which have signed the agreement on whose territory the trial is taking place, and in all other cases, the presidency of the court should be taken in rotation. With regard to paragraph 6, the Soviet Delegation considers that there should be an addition to this in the sense that, if voting in the Tribunal is equal, then the vote of the president shall be decisive. When the voting is divided two and two, then the vote of the president should decide the direction of the verdict. If it were a question of a regulation that there must be three in favor of any particular verdict, that would be different, but here we have the question of a simple majority and, therefore, the president should undoubtedly have the casting vote. And if he gives that casting vote, then the verdict shall be pronounced by those two in whose favor he casts. The court decides by this majority the question of both guilty or not guilty, and the question of suitable punishment, except where the question of the death sentence is involved. Wherever it is a question of the death sentence, in the opinion of the Soviet Delegation, the majority should be three. With regard to paragraph 7, this should be altered in the following sense: that the sessions of the Tribunal may take place on the territory of any state without being limited to either Germany, Austria, or Italy, in accordance with the decisions of the Tribunal itself and by agreement with these states. The preference with regard to the scene of trial should be given to that government in relation to which the particular accused has committed the most serious offenses. There should be a provision in this part of the terms of reference that all official documents in connection with the chief war criminals must be drawn up in English, Russian, and French, and also in the language of the state in whose territory the trial is taking place. This is essential if delay is to be avoided in regard to interpretation and translation of documents during the process of the trial which would, of course, tend to delay the proceedings considerably. The court proceedings should also
also in the language of the state in whose territory the trial is taking place. This is essential if delay is to be avoided in regard to interpretation and translation of documents during the process of the trial which would, of course, tend to delay the proceedings considerably. The court proceedings should also be carried on in the language of that particular one of the Four Powers in whose territory the trials are taking place, and in other cases the Tribunal itself should decide what language is to be used in the trial. In regard to paragraph 10, in the opinion of the Soviet Delegation the question of allowing the International Tribunal to try organizations should be deleted. The Soviet Delegation explains this point by the fact that organizations such as the S.S. or the Gestapo have already been declared criminal by authorities higher than the Tribunal itself, both in the Moscow and the Crimea declarations, and the fact of their criminality has definitely been established. We cannot imagine any position arising in which the Tribunal might possibly bring out a verdict that any one of these organizations was not criminal when it has most definitely been labeled so by the governments. In the second part of this paragraph, an alteration should be made setting forth that the Representatives appointed by the Soviet Union, by the United States, by the United Kingdom, and by the French Republic should form an investigation committee. Paragraph 11, in view of what has just been said with regard to an alteration of paragraph 10, should be amended accordingly and should define the functions of the investigation commission. Paragraph 12 should be amplified by a reference to responsibility for murder or ill-treatment of prisoners of war or for the deportation of persons into slavery in Germany. Paragraph (c) of article 16 should be omitted for the reasons which have already been given by the Soviet Delegation at the meeting on June 26. That is to say, trial of organizations by the Tribunal could not be permitted. The next point is that in the suggested terms of reference there should be a statement that the criminal prosecution should be instituted by the investigation commission on the suggestion of each of the four governments
is to say, trial of organizations by the Tribunal could not be permitted. The next point is that in the suggested terms of reference there should be a statement that the criminal prosecution should be instituted by the investigation commission on the suggestion of each of the four governments who have signed the agreement, or upon the initiative of the Tribunal, or on the initiative of the investigation committee. That is one point. The second point is that the actual trial should be carried out on the basis of an indictment which should be prepared and presented by the investigation committee, although it is not stated in this document that with the indictment all the relevant evidence should be presented by the. investigation committee. With regard to article 18 the Soviet Delegation considers that this should be amplified by stating that all accounts and documents which have been created in various Allied countries for the investigation of Fascist crimes should have equal legal right with the accounts and documents which are prepared by the investigation itself. Article 19 should be amplified by a statement of the right of the Control Council in Germany to annul the verdict of the Tribunal and order a new trial, and the Soviet Delegation points out that the Control Council in Germany is the body which exercises supreme authority in that country, and therefore, it cannot be deprived of the right of confirmation, et cetera, of the verdicts of the Tribunal. The Delegation agrees that the Control Council should have the right to reduce or alter the sentence, not to increase it, but it must have the right, if new material comes to it, to demand a retrial of the case. Articles 21 and 22 of the draft, regarding the criminal responsibility of organizations, should be omitted for the reasons that have already been explained by the Soviet Delegation. Articles 23 and 24 of the draft should be altered to read that the expenses for the maintenance of the International Military Tribunal, of the investigation commission, and all of its organizations shouldcome from funds to be supplied by the Control Council in Germany. Paragraph 25 should be omitted as having no bearing on the organization of the International Military
for the maintenance of the International Military Tribunal, of the investigation commission, and all of its organizations shouldcome from funds to be supplied by the Control Council in Germany. Paragraph 25 should be omitted as having no bearing on the organization of the International Military Tribunal. Article 26, in the opinion of the Soviet Delegation, should not be in the terms of reference of the Tribunal but should be included in the text of the agreement itself. At the beginning of this statement the Soviet Delegation has suggested the inclusion of articles 1, 2, and 3 of the American draft into the agreement, and this should be included along with it. We have another document for discussion. SIR DAVID MAXWELL FYFE. What is the other document? GENERAL NIKITCHENKO. It is the outline of the terms of reference for the International Military Tribunal. SIR DAVID MAXWELL FYFE. I am wondering whether we should try the expedient of a subcommittee for getting the agreement into form. They might be able to get certain parts of it agreed to and to bring back to the Conference the points which need further discussion. I should like you to turn that procedure over in your minds. _______ The Conference adjourned until 2: 30 p.m. _______ PROFESSOR TRAININ. The final draft will probably be worked out in the subcommittee proposed this morning; at present I would like to give you only a general idea. The terms of reference are divided into several sections: The first section is fundamental, or general, principles. Here we shall have to say something about the tasks, what crimes would be tried by this Tribunal, whether there would be one or several tribunals, what language would be used there, and the question of instructions. The second section deals with the personnel of the Tribunal, namely, with the question of the order of appointment of the judges and their deputies, the question of the quorum of the Tribunal, and the question about recall of these judges. The third section deals with the question of investigations and prosecution, in other words, the functions of what is called in the American draft "the Chief of Counsel". The sections which I have just described are the general sections forming a kind of
and the question about recall of these judges. The third section deals with the question of investigations and prosecution, in other words, the functions of what is called in the American draft "the Chief of Counsel". The sections which I have just described are the general sections forming a kind of introduction. The sections that follow deal with the actual procedure, how the plans will be presented to the court and what actions will be taken. These sections are in the order of the procedure. The first one deals with the question as to who the criminal is. The next one deals with the question of who is going to bring the particular criminal to trial after the crime has been established. The next section deals with the question of the actual function of the Tribunal; namely, where it will take place, what will be the language used, who will be present, et cetera. The last of the sections referring to the procedure cites the problem, deals with the actual process of the legal proceedings, that is, the part which will be taken by the prosecution and the defense, the guarantee of the rights of the defendants and the securing of the. promptness of the proceedings, the question of preferences regarding the accusation of all cases under the jurisdiction of the Tribunal. That is followed by the section dealing with the questions of material or substantive law, namely, the question of the actual basis of the responsibility of war criminals, also what part the official position of the criminal would play and what part the order received by the criminal would have on the matter, what is the responsibility of those who helped the criminal in any way, and, last, the question of their punishment, namely, what kind of punishment would be inflicted. Then comes the section dealing with the appeal from the decision of the Tribunal, about any alterations, modifications in the decision, and then how the verdicts of the Tribunal would be carried out actually. The last section deals with the expenses. We would like to point out that the majority of the paragraphs in this draft of terms of reference correspond to the main points in the American draft. The paragraphs of the terms of reference dealing with the problems of the Tribunal correspond to
actually. The last section deals with the expenses. We would like to point out that the majority of the paragraphs in this draft of terms of reference correspond to the main points in the American draft. The paragraphs of the terms of reference dealing with the problems of the Tribunal correspond to articles 1 and 12 of the American draft. The problems of the Tribunal and the scope of its activity correspond to articles of 1 and 12 of the American draft. The section regarding the composition of the Tribunal and of its sections or provisions corresponds to article 5 of the American draft. The section concerning the deputies corresponds to article 6, the one on instructions to article 8. The guarantee of the rights of the defendant and promptness as to trial, et cetera, corresponds to article 16, that on proof to articles 17 and 18. The responsibility of those who helped the criminals corresponds to article 13. The part which the official position of the criminal plays refers to articles 14 and 15. The punishment and any change in the verdict or the carrying out of the verdict correspond to articles 19 and 20, and expenses to articles 23 to 25. All of these considerations are of a preliminary nature, but we thought it advisable to put them before the commission for consideration. GENERAL DONOVAN. I would like to ask, what does the Professor consider the rights are that are guaranteed by this section he refers to? PROFESSOR TRAININ. I have in view the rights of the defendant to be defended, his right to receive the indictment, the right of giving all the necessary explanations during the proceedings, and the right also to receive a copy of the indictment in his own native language. GENERAL DONOVAN. Are those all the rights you consider should be guaranteed? PROFESSOR TRAININ. These observations have been in a kind of preliminary way; in the course of discussion, of course, other rights may occur to us. MR. JUSTICE JACKSON. You refer to one or several tribunals. In the event that we should decide that it is better to have several tribunals, in what way would you have the distribution of cases between them, that is, would you think of one tribunal for the
of discussion, of course, other rights may occur to us. MR. JUSTICE JACKSON. You refer to one or several tribunals. In the event that we should decide that it is better to have several tribunals, in what way would you have the distribution of cases between them, that is, would you think of one tribunal for the trial of American prisoners, another for the trial of British prisoners, another for the trial of French defendants, another for the Russians? How would you think of the several tribunals functioning with reference to each other? MR. TROYANOVSKY. What do you mean by American prisoners? MR. JUSTICE JACKSON. Those in American hands. PROFESSOR TRAININ. This question has not been considered yet, and it is very difficult for me to give any details. I can only say that all these tribunals, if several, should be formed under the same principle; that is to say, if the tribunal is supposed to consist of representatives of the f our nations, then all of them should be equally of the same character. It is a question of having in each tribunal four judges, four representatives of the Four Powers. SIR DAVID MAXWELL FYFE. Would the number of tribunals depend upon the number of defendants we select ultimately? It would depend on the number of cases to be tried, and, since we don't know the number, it may eventually be decided in the consideration of instructions just as was suggested in the American draft. MR. JUSTICE JACKSON. Of course, we have thought of trying to get as much as possible of this done in one trial. The United States would not welcome the idea of a long continued series of trials, and we would like to combine in some single effort at least all trials to which we are to be parties. That is one of the reasons why we suggested the trial of organizations, to reach a large number of persons , with a small number of trials. We would not welcome a long series of trials running into dozens or hundreds. GENERAL NIKITCHENKO. It is certainly preferable to have one tribunal if the one tribunal can deal -with all the cases together and similarly to what was suggested in the American draft. Our idea is this, that certainly it would be better to have one, but, if it became obvious that that one could
GENERAL NIKITCHENKO. It is certainly preferable to have one tribunal if the one tribunal can deal -with all the cases together and similarly to what was suggested in the American draft. Our idea is this, that certainly it would be better to have one, but, if it became obvious that that one could not deal with all the cases before it within a short period of time, then it would be advisable to have one or more tribunals. As for the question of trying an organization to reach all its members, I do not think it would be right, and I do not think it is practicable. Say, for instance, the State Ministers are tried as such for the Nazi Government. The Gestapo is one organization and therefore can be tried in one sitting or one tribunal. But then the trial will refer to various members of the Gestapo who are spread all over the place, and various individuals may be tried afterwards either in the occupational courts or in the national courts. MR. JUSTICE. That would involve literally hundreds of thousands of trials if we reached all members, would it not? GENERAL NIKITCHENKO. But an international tribunal should not deal with such individuals because individuals committed greater atrocities and their crimes must be dealt with by the national court. SIR DAVID MAXWELL FYFE. That might be met by something of this kind. The International Tribunal, when it tried the vice ministers or party leaders, might declare that one of their methods of carrying out the plan of conspiracy was to use these organizations which had acted in a certain way, and then you would have a judgment against the organizations which could be used by the national courts. I think we have had all the memoranda which have been put forward on the American redraft. I think we should now consider what is the best method of producing an agreed doctrine. I wonder if the Soviet representatives have seen the memorandum of April 30, 1945 [V], which was delivered to the representatives of each of the Four Powers at San Francisco. It was explanatory of the reasons for the various American proposals and, in a sense, I suppose, constituted a basis for the acceptance in principle of the proposal and the subsequent negotiations. GENERAL NIKITCHENKO.
delivered to the representatives of each of the Four Powers at San Francisco. It was explanatory of the reasons for the various American proposals and, in a sense, I suppose, constituted a basis for the acceptance in principle of the proposal and the subsequent negotiations. GENERAL NIKITCHENKO. No, we have not seen it but are acquainted with the results of the negotiations which took place at San Francisco between Foreign Ministers and in regard to the proposal of Judge Rosenman. MR. JUSTICE JACKSON. I did not bring copies because I thought everyone had had it-and I know your Foreign Minister was given copies at San Francisco. But I shall endeavor to get photostats of the document because it gives the reasons -why some of the proposals were advanced. Everyone else here has had it. SIR DAVID MAXWELL FYFE. What do you feel, Mr. Justice Jackson? It is your original memorandum, and you have now heard the various memoranda on it. I suggested, before we adjourned this morning, that one possibility was to form a subcommittee to try to consider what are the outstanding points and refer them back to the next meeting, but, of course, I am anxious to hear what all the delegates consider doing. MR. JUSTICE JACKSON. It seems to me that we are in pretty good agreement as to promptness of trial and as to the kind of tribunal as being a military tribunal as distinguished from a civilian tribunal-which should conduct the trial. And as to the substantive law of the crimes we have little difference. But in the matter of procedure we are quite wide apart because of the fact that our legal traditions are so far apart. We will reconcile these differences only with difficulty. While they appear to be merely matters of procedure, they are matters of procedure so deeply ingrained in the thought of the American people that some of the theories of procedure mentioned here could not be supported by us. Whether right or not, I do not attempt to say. Different systems have their own merits. Systems which work with one temperament will not with another, and no one has been more severely critical than I of the American system of criminal justice, which, as suggested by the Soviet delegates, leads to great delay