dtufail/nuremberg-trials-corpus huggingface dataset:
we are going to be so long getting it done. I am just anxious to get this thing done. That is my point about it. GENERAL NIKITCHENKO. Perhaps we could then say, "The first meeting of the judges and of the Chief Prosecutors shall also take place in Berlin in a place to be determined by the Control Council."
MR. JUSTICE JACKSON. I suggest one thing more about that. I think the meeting should be held at a time to be determined by someone who should be so authorized. I suggest that our chairman be authorized to call that meeting. Otherwise who is to call it, and suppose some don't come? It ought to be the duty of someone to call this meeting immediately after this agreement is signed and fix a date for it after calling all the parties. Otherwise, if left, no one will be authorized to institute it.
GENERAL NIKITCHENKO. " ... shall take place in Berlin in such a place and at such a time as shall be determined by the Control Council."
MR. JUSTICE JACKSON. I don't think the Control Council should determine the time. I think that should be determined by the prosecutors themselves. They won't know when we are ready.
JUDGE FALCO. Have not the judges the right to get together-meet if they wish, for instance, in Paris?
GENERAL NIKITCHENKO. Perhaps after -we have this agreement signed we could ask the chairman to take care of that and put it in the charter.
SIR DAVID MAXWELL FYFE. I am very pleased merely to act as the missionary to summon the meeting of the Chief Prosecutors, and I shall do it as soon as possible after the Chief Prosecutors are appointed.
MR. JUSTICE JACKSON. Then I want to be clear as far as the holding of the trial at Nurnberg. That is where preparation would have to take place. As far as any of our prisoners are concerned, we shall have them in jail there available for interrogation, but the preparation would have to take place there. We could not prepare several places, or take the prisoners or witnesses to different points-that is why I put in "prepared" as well as "held" at Nurnberg.
any of our prisoners are concerned, we shall have them in jail there available for interrogation, but the preparation would have to take place there. We could not prepare several places, or take the prisoners or witnesses to different points-that is why I put in "prepared" as well as "held" at Nurnberg.
GENERAL NIKITCHENKO. We took those words out because we thought it was self-understood that if the trial took place in Nurnberg the defendants would be examined there, but, if we say "shall be prepared", that is not enough as preparation is being carried out now not only at Nurnberg but at various places. Naturally defendants will be examined there. Otherwise we would have to say the first trial shall be held in Nurnberg and subsequent trials in some other place"-which would be rather complicated.
MR. JUSTICE JACKSON. My anxiety is that it be understood.
SIR DAVID MAXWELL FYFE. I think General Nikitchenko said there and I for In part entirely agree-11-hat if I want to examine any American prisoners I should be quite prepared to go to Nurnberg to do it. Mr. Falco says the same.
GENERAL NIKITCHENKO. I agree.
SIR DAVID MAXWELL FYFE. I think that concludes the points referred to the chiefs of delegations, doesn't it? We are agreed that: Administrative headquarters of the Tribunal and its secretariat shall be located in Berlin. The first meeting of the members of the Tribunal and of the Chief Prosecutors shall take place in the place to be determined by the Control Council. The first trial shall take place in Nurnberg and any subsequent trials shall be held at such places as the Tribunal may decide.
secretariat shall be located in Berlin. The first meeting of the members of the Tribunal and of the Chief Prosecutors shall take place in the place to be determined by the Control Council. The first trial shall take place in Nurnberg and any subsequent trials shall be held at such places as the Tribunal may decide.
GENERAL NIKITCHENKO. There is the question of article 4 of the agreement. It is partly a question of drafting. As we took down the suggestion proposed by Mr. Justice Jackson at the preliminary session, in meaning it is absolutely the same but in words it is a bit different. "Nothing in this Agreement shall prejudice the obligations undertaken by the parties of the Moscow Declaration for the return of war criminals to the countries in which they had committed their crimes."
SIR DAVID MAXWELL FYIE. "Nothing in this Agreement shall prejudice the obligations of those who are parties"-so as not to forget France.
MR. JUSTICE JACKSON. Would your Foreign Office take the position that they are under an obligation to return? As I understand the Moscow declaration, three powers stated that to be their policy, but I think it is quite a different thing to create an obligation to return persons to a state not a party to the declaration. We intend fully to carry out that policy, but I am not authorized to add an obligation to the statement of policy in the declaration. As I pointed out before, the whole subject of war criminals, except those to be tried by the International Tribunal, is not within my guidance except as I am free from time to time to advise the military authorities or State Department, but I am not authorized to make any agreements concerning that. I can say nothing which prejudices the statements contained in that declaration, but to characterize them as obligations I would not do without specific authorization.
time to time to advise the military authorities or State Department, but I am not authorized to make any agreements concerning that. I can say nothing which prejudices the statements contained in that declaration, but to characterize them as obligations I would not do without specific authorization.
SIR DAVID MAXWELL FYFE. Then you would prefer to say nothing in this agreement that will prejudice the statement of policy made by the parties of the Moscow declaration. Mr. Clyde suggests, "Nothing in the agreement shall prejudice or affect the position of the parties in the Moscow declaration in regard to the return
GENERAL NIKITCHENKO. Our impression was that this was the agreed formula, and we would not propose to change it but just to make a very slight change in the drafting.
SIR DAVID MAXWELL FYFE. I would not appreciate the difficulty myself, but as Mr. Justice Jackson has explained it I would be prepared to accept it in these words. It would leave the powers who made the Moscow declaration in the same position as before.
GENERAL NIKITCHENKO. It isn't quite clear to me. Is it proposed to change the text of this article 4 of the agreement now-that is, change. the -word "obligation"?
SIR DAVID MAXWELL FYFE. That is Mr. Justice Jackson's suggestion. Really the only change would be that. We had put in General Nikitchenko's suggestion about return of war criminals at the end.
GENERAL NIKITCHENKO. I shall take that into consideration when looking over this final draft.
"Nothing- in this Agreement shall prejudice the obligations undertaken by the parties to the Moscow Declaration concerning the return of war criminals to the countries where their crimes had been committed."
In article 27 of the charter it seems the words "pecuniary fine" do not really fit in when we consider major war criminals. The responsibility is too great for pecuniary fine. Could not we just leave out those words and say "death or such other punishment as the Tribunal may consider just"?
been committed." In article 27 of the charter it seems the words "pecuniary fine" do not really fit in when we consider major war criminals. The responsibility is too great for pecuniary fine. Could not we just leave out those words and say "death or such other punishment as the Tribunal may consider just"?
In article 7 of the charter I do not propose any change but would like to point out two considerations. Would it be proper really in speaking of major criminals to speak of them as carrying out some order of a superior? This is not a question of principle really, but I wonder if that is necessary when speaking of major criminals.
SIR DAVID MAXWELL FYFE. There are two points: first, they have already said they were just doing what Hitler said they should do; and secondly, in international law, certainly in some cases, superior orders were a defense, but in the sixth and seventh edition of Oppenheim it appears that they aren't a defense. If we don't make it clear, we may have some trouble on it.
GENERAL NIKITCHENKO. There is a misunderstanding. I wasn't against disallowing orders of a superior as a defense, but I thought that in regard to major criminals it would be improper to say that superior orders could be used in mitigation of punishment.
SIR DAVID MAXWELL FYFE. It seems to me difficult. Suppose someone said he was threatened to be shot if he did not carry out Hitler's orders. If he wasn't too important, the Tribunal might let him off with his life. It seems to be a matter for the Tribunal.
In one of the German cases on trial which were such a farce after the last war they did say that superior orders were no defense but could be taken into account on mitigation. That has been the general rule on superior orders in international law books.
GENERAL NIKITCHENKO. If the other heads of the delegations consider it best, we have no intention of pressing it. In general, it should be considered in mitigation; we think it is proper.
be taken into account on mitigation. That has been the general rule on superior orders in international law books. GENERAL NIKITCHENKO. If the other heads of the delegations consider it best, we have no intention of pressing it. In general, it should be considered in mitigation; we think it is proper.
MR. JUSTICE JACKSON. Of course that was put in when we were considering trial of organizations, which would reach thousands of people who are not major criminals but would be reached through major criminals. And if you are going to get members of the Gestapo and S.S. through the conviction of the organization, it would be quite unfair if you would not take into consideration in fixing punishment the degree of real responsibility that they had. I think it would be a useful provision if we are to try organizations.
JUDGE FALCO. Leave it. Is it necessary to indicate to the Tribunal the reason for mitigation? If we say simply that orders are not a defense, it -would seem to be left to the Tribunal to say that they may be a mitigation.
MR. JUSTICE JACKSON. That is about what we proposed originally not an absolute defense but a mitigation.
SIR DAVID MAXWELL FYFE. The important part is that it should not be an absolute defense.
JUDGE FALCO. That is the important part. Must we add that that is the reason for the Tribunal to consider mitigation?
SIR DAVID MAXWELL FYFE. We have covered the charter except for article 6.
MR. JUSTICE JACKSON. I don*t think we have specifically settled whether we shall have special masters, nor what we shall do in cases of a tie, except in a very limited number of cases.
SIR DAVID MAXWELL FYFE. No. You reserved the question of masters. I thought we had settled paragraph 15.
MR. JUSTICE JACKSON. But, if you recall I stood on the original suggestion we have here. If there is equal division on a vote, the proposal would be adopted if made by the party which brought that particular defendant to be tried. But we have in no other case arrived at a tie solution.
15. MR. JUSTICE JACKSON. But, if you recall I stood on the original suggestion we have here. If there is equal division on a vote, the proposal would be adopted if made by the party which brought that particular defendant to be tried. But we have in no other case arrived at a tie solution.
SIR DAVID MAXWELL FYFE. The committee shall act in all above matters upon majority vote, and that means that on the other matters except (b) you have to have a three-to-one majority for the proposal.
MR. JUSTICE JACKSON. That is what I object to.
SIR DAVID MAXWELL FYFE. I thought we agreed to this.
MR. JUSTICE JACKSON. No. I agreed as to the designation of defendants.
SIR DAVID MAXWELL FYFE. I thought we had agreed as to the whole article. I thought we met your point by putting in (b) that the preparation of indictment by the committee would be proceeded with as an individual matter. Remember we altered 15 (b).
MR. JUSTICE JACKSON. But suppose we get up to the time of trial and there is a question of how to proceed and we have a vote of two to two. How shall we deal with it? It might very well happen, as we have seen here at this table, because two of us represent one system of law and two another.
SIR DAVID MAXWELL FYFE. But I thought that was covered by the first draft on that by majority -vote, for frankly I could not see the sort of point on which we would disagree at that stage.
GENERAL NIKITCHENKO. Yes, we thought we agreed by a majority vote.
MR. JUSTICE JACKSON. Maybe it was agreed to by majority vote, but I did not agree consciously. We want something that will work. We don't want just to postpone differences. Here we are, and have been free of outside or press criticism of our disagreements. But get in trial and have disagreements, and we are right out in public. We had far better iron out differences here than at the trial. The thing could be the subject of a great deal of criticism if we left our agreements so that we could be equally divided and perhaps have an unfortunate situation as a result of it.
and have disagreements, and we are right out in public. We had far better iron out differences here than at the trial. The thing could be the subject of a great deal of criticism if we left our agreements so that we could be equally divided and perhaps have an unfortunate situation as a result of it.
SIR DAVID MAXWELL FYFE. I do hope we wont have to go over this because I may say I suggested the compromise on the selection of defendants, which, of course, means that it was a concession directly to those who had the defendants so that they could go forward, as I appreciated especially the position of the Americans who had most of the defendants and wanted to get clearance and wanted to get quit of them by trying them. I really find it difficult to see what point of difference before the trial would not be left to three to one majority.
MR. JUSTICE JACKSON. You have a question of difference of view between those of the Continental systems and of our own as to how and whether to try organizations, and as to conspiracy, and on definition of crimes. If disagreements at a trial cannot be solved, it will be disorganized and we will not think it a workable plan. We want some way to break any tie that may occur.
SIR DAVID MAXWELL FYFE. Organizations are covered by article 10. 1 think we agreed with Mr. Justice Jackson.
MR. JUSTICE JACKSON. Well, we agreed that they may be tried.
Suppose that, when we get right to it, there is a disagreement as to how or whether we shall try them. We have seen a great misunderstanding of our proposal in that respect.
SIR DAVID MAXWELL FYFE. No one could defeat the trial if article 10 is accepted as an agreed compromise on that point. Suppose you put forward the trial of Kaltenbrunner as a member of a group. You propose him as a member of a group, but under the charter that makes article 10 apply. Then you have only to get one person with you on that. Because that is a proposal to deal with a defendant.
agreed compromise on that point. Suppose you put forward the trial of Kaltenbrunner as a member of a group. You propose him as a member of a group, but under the charter that makes article 10 apply. Then you have only to get one person with you on that. Because that is a proposal to deal with a defendant.
MR. JUSTICE JACKSON. I would think it is a little broader than that. You see, we start with very basic differences of viewpoint as our approach to a trial. 1n many ways, as I have said before, I think the Continental system is better than ours, but we get into those points where we don't see alike because we were brought up in different systems. I should be happy to recommend to our Government to turn our prisoners over to you three and retire from it. We want to do our duty about this and no more, but we do not want to come out of here with an unworkable agreement which will get us into friction and difficulty at the public trial.
SIR DAVID MAXWELL FYFE. Let us take article 1 of the agreement. "There shall be established . . . an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities." Then you come on to article 15 of the charter, "The Committee shall act in all the above matters by a majority vote . . . Provided that . . . that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried." Surely the reading of these two articles together would give you the right, provided you got one vote, for instance, for Kaltenbrunner as a member of a group. Then article 10 applies and you get your procedure.
MR. JUSTICE JACKSON. But that would only apply to the designation of a defendant. Each other point as to how we would proceed is left open if we disagree.
the right, provided you got one vote, for instance, for Kaltenbrunner as a member of a group. Then article 10 applies and you get your procedure. MR. JUSTICE JACKSON. But that would only apply to the designation of a defendant. Each other point as to how we would proceed is left open if we disagree.
SIR DAVID MAXWELL FYFE. Would it meet your point if, at the end of 15, there were a provision for an equal division of vote concerning the designation of defendant or the capacity in which he has to be tried.
MR. JUSTICE JACKSON. I think we should have a provision such as I submitted on the twentieth of July in writing and which I realize was voted down, that in any case where we are equally divided the person whose prisoner is involved may bring to trial or offer any evidence relative to the issues provided he has the support of one other Chief Prosecutor.
SIR DAVID MAXWELL FYFE. But you have got that.
MR. JUSTICE JACKSON. I don't think we have it except as to the designation of defendant.
SIR DAVID MAXWELL FYFE. I intended to give you that. All the delegations meant by article 10 to give you the right to try, provided you could get one other Chief of Counsel to support you.
JUDGE FALCO. That was my impression also.
JACKSON. I don't think we have it except as to the designation of defendant. SIR DAVID MAXWELL FYFE. I intended to give you that. All the delegations meant by article 10 to give you the right to try, provided you could get one other Chief of Counsel to support you. JUDGE FALCO. That was my impression also.
GENERAL NIKITCHENKO. We were under the impression that article 10 provided for the declaration of an organization to be a criminal organization during the trial of its responsible members or representative members. As for Mr. Justice Jackson's remark that it perhaps might be better for the European powers to try the criminals, as far as we know this question would be up to the parties here represented; but as far as We know the United States showed the initiative in this respect in the holding of an international trial and the other parties agreed to that. Each head of the delegation of course speaks for his own country, but on our part we can say the position of the Soviet Delegation in this respect has not changed since we started these talks. That is why we are trying to reach agreement taking into consideration the points of each delegation and trying to attempt a compromise solution.
SIR DAVID MAXWELL FYFE. I should have thought you were covered.
we can say the position of the Soviet Delegation in this respect has not changed since we started these talks. That is why we are trying to reach agreement taking into consideration the points of each delegation and trying to attempt a compromise solution. SIR DAVID MAXWELL FYFE. I should have thought you were covered.
MR. JUSTICE JACKSON. Well, I don't feel we are quite, and I don't think we should leave it in doubt in anyone's mind. There is a way out of any tie. I am probably unduly cautious and insistent, but it is always my practice in drafting, if I see a point is disagreed, to meet it and settle it instead of leaving it to cause trouble later. And it seems to me that, if we don't meet this issue as to breaking any tie and solve it now, we may meet it in the midst of trial with a hundred reporters writing about points on which we disagree. We have worked well here together. We don't always agree, but we respect each other's opinion and try to reach agreement. But if we leave these things to come up in the midst of the trial, it would be a very discouraging thing to me. When we are tied two to two, who settles it? No matter what it is? Counsel often disagree. 1 have frequently disagreed -with my American associates in an American trial, and, where no one is boss over the others, there must be someone to settle such disagreements.
SIR DAVID MAXWELL FYFE. But on that point, the point of evidence we discussed that on Friday and amended 15 (a) by putting in "and production before or at the Trial", so that that would come under the action the Chief Prosecutors could take individually and would be left to you. That was put in to cover that difficulty.
GENEPAL NIKITCHENKO. We agree.
SIR DAVID MAXWELL FYFE. We are all agreed there-to meet you on that point. We discussed this point on Friday.
MR. JUSTICE JACKSON. At considerable length-but I did not think we had met it squarely. However, I will look it over further. I don't want to leave any points that are arguable.
We agree. SIR DAVID MAXWELL FYFE. We are all agreed there-to meet you on that point. We discussed this point on Friday. MR. JUSTICE JACKSON. At considerable length-but I did not think we had met it squarely. However, I will look it over further. I don't want to leave any points that are arguable.
SIR DAVID MAXWELL FYFE. We all intended to meet your difficulties on that fairly and squarely and thought we bad in the alteration of 15.
GENERAL NIKITCHENKO. We suggested that we divide article 15 into two parts.
SIR DAVID MAXWELL FYFE. A separate article on what prosecutors can do individually-We shall try and have the amendments tomorrow by eleven o'clock and meet at two-thirty. The drafting committee is waiting on the heads of counsel. We meet tomorrow on the question of masters.
MR. JUSTICE JACKSON. I think we should accept the committee's draft on it because it is clear that, if you have in the draft that you may appoint special masters and then leave it out, it is always open to the people who do not want masters appointed to say that it was in and later taken out and hence the power was withheld. I think it should be quite clear. In my entire lifetime we couldn't get all the evidence in this case if we did not use special masters.
SIR DAVID MAXWELL FYFE. That point, quite frankly, is not one on which I have any great feeling. I suggested the alteration to Professor Trainin's draft which I thought would meet it, but might I make this appeal to the Conference? If, apart from article 6which obviously is on a different plane because there we are discussing the law which we are going to create-if Mr. Justice Jackson could waive his difficulties as much as possible on 15 and 16, we would accept that, and I would make an equal appeal to General Nikitchenko to accept the intermediate on 17. 1 think then we could abide by the decision. I suggest that the delegations consider that point. I am most anxious to come to agreement this week and ask that both consider it in that light.