dtufail/nuremberg-trials-corpus huggingface dataset:
in later individual trials. If anybody has a better plan for reaching these groups, we are open to suggestion, for among ourselves these points have given us trouble and caused endless debate, but we cannot say to American opinion that any man has had a fair trial who has not, at some point, had a chance to be beard on all issues involved in his conviction. We rather thought we followed the British ideals in that. SIR DAVID MAXWELL FYFE. In that case, they would be given the chance of presenting to the court anything they had to say by a German lawyer. But it is not likely anyone would put his head into the noose. GENERAL NIKITCHENK0. The Soviet Delegation does not quite see the point. We are not establishing a tribunal to try all members of these organizations. The whole purpose of the Tribunal is to try the chief criminals only, and in the course of that trial the court may give a verdict that the organization to which those criminals were parties is a criminal organization. As a result of that decision the individual small members become liable to penalties as members, but they will be tried by a whole series of courts, one kind or another, occupational courts or national courts, and at those trials they will have every opportunity to put forward anything they care to make in their defense. But the point we are setting up here is one to try the chief war criminals. It seemed to us that in our discussions here, fairly considerable discussions, we had achieved unanimous understanding with reference to the organization. The organizations will not be tried as legal entities, and, arising out of the verdict in the case of the individual, a verdict can be pronounced that the organization to which he belongs is criminal. Therefore, our suggestion is that number 10 should be accepted in that wording in which it has been agreed between us, and the Soviet Delegation points out that 11 goes on to talk of the consequences of what happens in 10. MR. JUSTICE JACKSON: We have not agreed to number 10. I pointed this out at every meeting, I think, at which the subject has been up, because it is a very difficult point for us. It arises from the fact that in our jurisprudence nothing is more
to talk of the consequences of what happens in 10. MR. JUSTICE JACKSON: We have not agreed to number 10. I pointed this out at every meeting, I think, at which the subject has been up, because it is a very difficult point for us. It arises from the fact that in our jurisprudence nothing is more fundamental than that the decision binds no one who is not before that court. If I were a member of an association and if one member were tried and convicted and I were later apprehended, I would have the right to raise every question in my defense, and they couldn't even use the former judgment against me. It may be a very wrong concept, but that is our tradition, that is our conception of what American legal opinion believes constitutes fair play. What we try to do in our proposed application of this principle of fair play is this: we try to reach all the different organized elements that have brought this terrible thing on Europe, and -we adapt our principles so that, with what we think is f air play, we can practically get at these vicious organizations. If you cannot do it through that procedure, you have to go through literally thousands of trials. As I said, we have complete identifications of 4,000 Gestapo people, but you just can't count on us for 4,000 trials. We are trying our level best to figure out a system which will be best to do what we want to do, to get these people, and at the same time get what we feel are methods people will consider fair and just and not a violation of our principles and traditions. Now this is a point that, as I can very readily see, seems trivial to those of you who are accustomed to a different system, but it is a point that will affect the acceptance of the result of these trials as fair in the United States. GENERAL NIKITCHENKO. May I ask a question as to what Mr. Justice Jackson has just said? Taking this point of notice-what would be the consequence for those 4,000 persons that he has mentioned? Supposing this notice is given-are they all to respond to it and are they all to be allowed to defend themselves at the trial, or is it that they will be considered guilty as a consequence of the decision of the International
would be the consequence for those 4,000 persons that he has mentioned? Supposing this notice is given-are they all to respond to it and are they all to be allowed to defend themselves at the trial, or is it that they will be considered guilty as a consequence of the decision of the International Tribunal, and that in respect to each individual one of them it is simply a matter for the court, the subordinate court, to hear whatever he may have to say in his own defense and to mitigate punishment in accordance with its findings in each individual case? The further point is that, supposing this announcement is made these 4,000 people are presumably locked up at the present time, and it is certainly not suggested that the whole of these 4,000 persons will appear before the court and offer a defense. The Soviet Delegation does not know what the effect of that might be on the American public opinion, but the effect on Soviet public opinion would certainly be that the mere fact of having given notice and then proceeding to deal with these people is not affording anything in the nature of a fair trial, and it would react very negatively in a position of that sort. MR. TROYANOVSKY. If the organization is deemed criminal, that is, if these persons would be convicted on the basis of having belonged to that organization without having an individual hearing, that in itself would be a grave injustice. MR. JUSTICE JACKSON. It is not planned to change number 11 at all. We are now merely trying to get a finding or decision that they are criminal organizations. The individual, when he is picked up, would have the chance to make the defenses which Mr. Nikitchenko outlined here. I thought he stated it much better than we had it in our draft the right to claim he was forced into the organization, the right to claim he did not understand its principles, the right to give new evidence in mitigation, he would have that right before sentence. But our problem is, can you limit him to that? We want a finding under section 10 which would limit him to giving that personal and individual kind of defense when picked up and brought before the occupational or military courts, or whatever courts they may be, in order to foreclose him and prevent him from raising the whole
problem is, can you limit him to that? We want a finding under section 10 which would limit him to giving that personal and individual kind of defense when picked up and brought before the occupational or military courts, or whatever courts they may be, in order to foreclose him and prevent him from raising the whole question whether the organization was criminal and going through that 4,000 times. Under our ideas we would have to give a man a chance to be heard. That does not mean each of the 4,000 would actually be heard. If 4,000 came in, they would be locked up and allowed to choose someone to represent them. You would not be obliged to listen to each of 4,000 people but would have a master hear their evidence. I think it is highly unlikely that any substantial number would appear. Perhaps a few fanatics. Already they are accusing each other. They say, "We never knew the organization was doing anything of this kind." The whole effort of every German we have interrogated is to get away from this thing as far as he can. We haven't any fear they would come forward and say they were Gestapo people and knew what it was doing. But if they did, we would have to deal with it. It is a possibility. GENERAL NIKITCHENKO. If the organization is declared to be criminal, does the punishment ordinarily extend to all its members, and, if it does not extend to all the members, who is going to apply it? SIR DAVID MAXWELL FYFE. May I give my understanding of that? The punishment would not automatically extend, because every member would be given the chance, before some court, of putting forward the defenses which General Nikitchenko mentioned that is, that he was forced into it, or did not understand it, or was the wrong person, or something of that kind. As I understand the present proposal, notice would be given of the issue to be brought before the court carrying the criminality of these organizations and that the member may be heard on that issue, simply on the criminality. In a manner the court would be entitled to say, "We shall hear you on that issue but only if counsel present your case and to the evidence that is relevant on that case." My point is that the important distinction would be limited to the criminality of the
on that issue, simply on the criminality. In a manner the court would be entitled to say, "We shall hear you on that issue but only if counsel present your case and to the evidence that is relevant on that case." My point is that the important distinction would be limited to the criminality of the organization. The responsibility of the individual would be dealt with later by another court and then he would be able to raise his individual pleas. PROFESSOR TRAININ. Numbers 10 and 11 represent a maximum effort to provide for the American and the British points of view. Soviet law does not provide for the trial of anybody who is not a physical person. Now in the drafting of 10 and 11, we have gone a very long way indeed to meet the desire of the American draft to provide for the trial of organizations which are not physical persons, and the resulting draft as laid down in these two paragraphs represents a very great advance toward meeting the views of the American Delegation. The point is that it is already laid down that the individual cannot dispute the finding that the organization is a criminal organization. Now, if an individual does appear before the court to defend the position of the organization, the Tribunal cannot hear him. The Tribunal is specifically constituted under its charter for the trial of the major criminals only, and there is no provision made for any method by which a casual member of the criminal organization could place his case before the court, because the court would simply refuse to hear it. That, of course, does not apply to the case where they appear as witnesses as long as they are not appearing as accused persons. If called as witnesses, they may appear as witnesses and in their capacity they can express their views, but they cannot be under a charge of criminal conspiracy. MR. JUSTICE JACKSON. We appreciate that the Soviet Delegation has gone a long way in departing from the usual Soviet law trying to accommodate our views, and we want to emphasize we have gone a long way from traditional American practice trying to get a procedure here by which you can really get -these thousands upon thousands of Gestapo and S.S. members. We have no desire to modify 10 or 11. The sole difficulty with it is that in
our views, and we want to emphasize we have gone a long way from traditional American practice trying to get a procedure here by which you can really get -these thousands upon thousands of Gestapo and S.S. members. We have no desire to modify 10 or 11. The sole difficulty with it is that in our procedure, before you can make judgment effective against anybody or a finding effective against anybody, be has to be in some manner a party to the proceeding, or otherwise he is not affected by it. I might write a judgment in a case in which 100 people were involved and 99 of them had been arrested and before the court, and I said the whole hundred ought to hang, but the man not in the case may come in and laugh at me. Therefore, our necessity is not to change 10 or 11, but to get these many people under it so that it will be effective. If you don't do that, if you don't take some step of that kind, notwithstanding the fact that the court may say that the Gestapo or S.S. is criminal, and you bring a member into an American occupation court presided over by an American officer, I should be surprised if that officer should not take the position that the member was not a party to the cause and not bound by the pronouncement that the organization is a criminal one. Our whole desire is to make this effective by making these people parties in some way to the procedure. I do not know whether you have that requirement, in so technical a fashion as we do, but there is our problem. I hope in the light of this explanation we can work out something that will make it possible to go ahead, for without such a procedure the decision of the court would reach only those persons specifically indicted. JUDGE FALCO. The French do have a system of putting persons on trial as an association of evildoers and proceeding accordingly. SIR DAVID MAXWELL FYPE. I feel that here we are dealing with a new problem, and I am not afraid of making new law that goes beyond the British legal conceptions so long as it is fair and in accordance with the generally accepted necessities of natural justice or fairness. I should have thought that that would be met here if the other members of the organizations were
new problem, and I am not afraid of making new law that goes beyond the British legal conceptions so long as it is fair and in accordance with the generally accepted necessities of natural justice or fairness. I should have thought that that would be met here if the other members of the organizations were given a right to be heard on this issue without prejudice to their future trial on their individual issues. Would not it meet the requirements, which I think I share in basically, of most of Mr. Justice Jackson's views and also meet the practical difficulties advanced by the Soviet Delegation if tile Tribunal were given the power of hearing any members of the organization on the issue as to whether the organization is criminal in such a manner and in such conditions as the Tribunal thinks? Wouldn't that meet the points of view? I don't think any member of the Gestapo could complain as to this issue being barred to him in the future if he were given the chance, that is, if notice were given to him of coming forward or through his advocate pressing his point at this trial. PROFESSOR TRAININ. In what capacity would these other members appear before the court, as defendants or witnesses? MR. JUSTICE JACKSON. They could only appear and defend in the name and by virtue of membership in the organization. The organization would be on trial and individual members would have a right later, before they were to be sentenced in any court, to present their individual reasons, but as a group they would be required to put forward their argument as to the criminal plans of the group in this main proceeding. PROFESSOR TRAININ. People appear before the court only in quite definite capacity, either witnesses, accused, or experts, or persons having some definite standing in the court. I do not see in what particular role these persons appear. SIR DAVID MAXWELL FYFE. I should say that the nearest approach is this: The issue having been raised whether this organization is criminal, as a member of it he would have a right to be heard on that issue. It is a. procedure which is used occasionally in court that an issue having been raised that affects a person the court gives that person the right to be heard on that issue. GENERAL NIKITCHENKO. In a trial like this you have
as a member of it he would have a right to be heard on that issue. It is a. procedure which is used occasionally in court that an issue having been raised that affects a person the court gives that person the right to be heard on that issue. GENERAL NIKITCHENKO. In a trial like this you have the defense, the accused. If they are members of the Gestapo who appear to be in a position to raise some kind of defense in regard to the criminality of the organization, then surely the defense or the accused himself will call them as witnesses and they will appear in the court in the capacity of witnesses for the defense. SIR DAVID MAXWELL FYFE. Mr. Justice Jackson's difficulty is that, unless all members of tile organization are given notice, they would not know the issue had been raised. That is why he wants some notice to all members that they could appear, that is, as witnesses for Kaltenbrunner or in some other way. PROFESSOR TRAININ. One more question about the trial. Will it be followed by the trials of individual members of the organization? They will certainly not all be present at the main trial. When the trial takes place, they will try to prove that either they were not members of the criminal organization, or else, being members, that they have done nothing as members which could lead them to be punished, or they may state the organization was not a criminal organization. In the opinion of the Soviet Delegation it would be far better that this question of criminality of the organization should be raised at the trial rather than the procedure generally suggested. The question of what the Gestapo really is is perfectly well known to all countries. MR. JUSTICE JACKSON. I don't want to prolong the discussion, but you don't want to depend on American judges to know all about the Gestapo. You must remember your people are much nearer to this scene than we have been. Information comes through radio, which we sometimes doubt, and newspapers, which we sometimes suspect of exaggeration. This experience is not so well known in the United States that you call depend on a judge to assume it. The evidence we have found since I came here the first time has utterly astonished me, and I followed the Nazi regime fairly closely because I had
and newspapers, which we sometimes suspect of exaggeration. This experience is not so well known in the United States that you call depend on a judge to assume it. The evidence we have found since I came here the first time has utterly astonished me, and I followed the Nazi regime fairly closely because I had something to do with the effects of the war on us under President Roosevelt's administration. These organizations are criminal beyond anything that I can dream. I think proof of their acts really means more to understanding by the United States of the problem you have had to deal with, and are going to have to deal with on this Continent, than you think. PROFESSOR TRAININ. It is because of that consideration that we have accepted the American view that the verdict must apply to the whole of the organization. SIR DAVID MAXWELL FYFE. It seems to me there are two methods of approach which we ought to explore. This is a point of great difficulty on which there is a great difference, but I am still hopeful that it may be solved. On the one side, I should ask that we consider what is the irreducible minimum of notice that would satisfy the American and British conception that a person can only be subject to a judgment if he is given the chance of questioning; that is, let us try to consider what is the smallest amount of notice. On the other side, there is the suggestion put forward, or at least implied in what Professor Trainin has said; that is, you could have judgment under article 10 which would pronounce for the benefit of humanity and posterity the enormities of the Gestapo and S.S. but would not be binding on the occupation courts who have dealt with the subsequent members. MR. JUSTICE JACKSON. Our alternative seems as bad as the plan. I am not saying this is an easy plan. It certainly is not. The alternative is thousands of trials. There are hundreds of thousands of members of these two organizations. The thought that each one might delay the proceedings by raising the issue of the nature of the organization is appalling to me and makes it a task that I think never can be accomplished. We shall run some risks of dealing with persons who will want to defend if
of members of these two organizations. The thought that each one might delay the proceedings by raising the issue of the nature of the organization is appalling to me and makes it a task that I think never can be accomplished. We shall run some risks of dealing with persons who will want to defend if they have notice. If we recess until Monday, I will try to prepare the kind of notice that I think would suffice. If we are to do any translating, we would probably have to have until Tuesday. We shall try to have it late Monday. SIR DAVID MAXWELL FYFE. If Monday afternoon would give you time, shall we adjourn until three o'clock Monday afternoon? The Conference adjourned until Monday, July 16, 1945, at 3 p.m. (1) Cablegram from Acting Secretary of State Joseph C. Grew to the United States Ambassador at London, June 30,1945. Back 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
Illustrative Notice of Trial to Members of Accused Organizations, Submitted by American Delegation, July 16, 1945
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A SUGGESTED EXAMPLE OF NOTICE TO MEMBERS OF GESTAPO AND S.S. AS TO TRIAL OF THEIR ASSOCIATION OR ORGANIZATION BEFORE INTERNATIONAL MILITARY TRIBUNAL FOR TRIAL OF WAR CRIMES
The Union of Soviet Socialist Republics, the United Kingdom, the Provisional Government of France, and the United States of America
_VS_
Goering, Ribbentrop, and others, and the Gestapo and the S.S. as organizations, groups, or associations.
Notice is hereby given:
That the above named organizations, to wit-the Gestapo and the S.S.-stand before the above tribunal charged with being criminal organizations, membership in which -will subject the members to punishment upon conviction of the organization;
That any person who acknowledges membership in either of said organizations, and submits himself to the jurisdiction of said tribunal, and surrenders himself to the custody of the forces of the four nations at ------------- on or before the ------------- day of ------------1945 will be entitled to representation at said tribunal, and through representatives of the group, organization, or association will be entitled to submit evidence or argument to controvert said charge;
And that in default of appearance as above provided, any member of said organization shall be precluded from questioning in any court or commission such findings as the above named tribunal shall make.
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