dtufail/nuremberg-trials-corpus huggingface dataset:
GENERAL NIKITCHENKO. The Control Council, being the supreme authority in Germany, would naturally have such facilities for placing custody guards, et cetera, especially since the permanent residence of the Tribunal is to be in Berlin, or may be in Berlin. Thus it would act in direct contact with the Control Council.
If the prisoners should be on the territory of some other country than Germany, they would be kept in the custody of that government of the government of that country-and turned over for the trial.
MR. ROBERTS. Do you mean any more than to provide that these criminals should be made available to the Tribunal?
GENERAL NIKITCHENKO. In the opinion of the Soviet Delegation, criminals should be at the demand of the Tribunal, placed under its control. As for the technical consideration as to how that should be done-
GENERAL DONOVAN. But the Tribunal is a court and not a prison. The general forces are taking care of them now. If the court gets them when it calls for them, that should be enough.
GENERAL NIKITCHENKO. The question is that the Tribunal might have the ability to try those criminals, that they should be available for the trial.
GENERAL DONOVAN. Then the Soviet Delegation would be satisfied if on the day of trial the prisoner should be produced by the signatory that has that prisoner in custody and be made available during the period of the trial. Isn't that all you want !
GENERAL NIKITCHENKO. Yes, that is right.
GENERAL DONOVAN. To be sure we all understand, it is not pressed that the Tribunal should get control and custody of these prisoners but simply have them available when called for trial.
PROFESSOR TRAININ. The main principle touched upon here is that prisoners should be available for trial.
MR. JUSTICE JACKSON. And for sentence-to serve any sentence.
we all understand, it is not pressed that the Tribunal should get control and custody of these prisoners but simply have them available when called for trial. PROFESSOR TRAININ. The main principle touched upon here is that prisoners should be available for trial. MR. JUSTICE JACKSON. And for sentence-to serve any sentence.
GENERAL NIKITCHENKO. That is right. This article is set forth here in order to avoid a situation under which a tribunal might decide upon the recommendation of the investigation commission to try some criminal, and that criminal would not be made available by the signatory which has him in custody. To avoid that, this article is put into, the agreement.
MR. ROBERTS. It is merely a question of drafting, isn't it? The question being-
GENERAL NIKITCHENKO. No, the signatory, the government concerned, should make available to the Tribunal anyone whom the Tribunal wants to try, anyone that government has in its hands.
MR. ROBERTS. It really is the Chiefs of Counsel who want him tried and not  the Tribunal.
GENERAL DONOVAN. No, because the Chiefs of Counsel are in charge of the trial and not the Tribunal. That is a basic principle.
MR. JUSTICE JACKSON. In the fifth paragraph of the same instrument reference is made to the surrender, upon the demand of any of the governments, of war criminals who have committed crimes on the territories of those countries. As I explained yesterday, what we have tried to do is to reserve that question for settlement by our governments and to provide that nothing we do prejudices or controls that arrangement. I would not be in a position to make a flat agreement that anyone demanded should be turned over, nor would I be in a position to negotiate about the questions which may be involved in turnovers since I am confined in my authority to the international case.
that arrangement. I would not be in a position to make a flat agreement that anyone demanded should be turned over, nor would I be in a position to negotiate about the questions which may be involved in turnovers since I am confined in my authority to the international case.
GENERAL NIKITCHENKO. When the Soviet Delegation put this paragraph in the agreement, it based its reasoning on the fact that the working out of this is involved in the procedure on responsibility for criminals. In Mr. Justice Jackson's first draft of the agreement, [IV] it is stated that this agreement is worked out in accordance with the Moscow declaration and the part about the turning over of the criminals is quoted.
In the second American draft of the agreement [XVIII], paragraph 3, it is stated that the signatories agree that the Control Council in Germany shall establish the principles and procedures governing the return of prisoners in Germany, etcetera.
GENERAL DONOVAN. Would it meet the wishes of the Soviet Delegation if there were a recital that the signatories would arrange policies and procedure for that?
GENERAL NIKITCHENKO. But recognizing the principle of surrender?
GENERAL DONOVAN. That is right.
GENERAL NIKITCHENKO. The principle of the surrender of criminals has already been established in the Moscow declaration, and the Soviet Delegation, in the execution and carrying out of this principle and taking into consideration the fact that the American Delegation also decided it necessary to mention it, decided to put that point in the agreement as an obligation for the signatories to turn over the prisoners. As for the procedure, that of course could be established later. This paragraph does not in itself establish the procedure. The procedure should be established by the governments themselves.
JUDGE FALCO. [Not translated.]
that point in the agreement as an obligation for the signatories to turn over the prisoners. As for the procedure, that of course could be established later. This paragraph does not in itself establish the procedure. The procedure should be established by the governments themselves. JUDGE FALCO. [Not translated.]
GENERAL DONOVAN. So your position is, Mr. Falco, that the major criminals in the custody of the major signatories would be turned over for trial but not for surrender, and, in the case of those not major criminals, policies and procedures would be set up to turn over and surrender them.
SIR THOMAS BARNES. But why put that in this?
GENERAL NIKITCHENKO. The investigation commission, or the Tribunal, however it may work out, would have to decide who are the major criminals and who are not. Therefore, in any case, it would have to do with the question of minor criminals, of criminals who are not major criminals, and it would seem to us natural to put that point in the agreement as was stated in the American draft, but we think that it is not necessary to restrict those prisoners only to those prisoners who are in Germany but state the principle of surrender as applied to all prisoners.
MR. ROBERTS. I should prefer it if this paragraph were struck out because this agreement only deals with major war criminals. It seems covered by article 3, under which we have all undertaken to make available for trial major war criminals.
PROFESSOR TRAININ. These two problems of major and minor criminals are, after all, closely related, and this relationship was set forth in a correct manner in the American revised draft agreement as well as in the first draft of the agreement [IX] in article 21, where it is stated that the person charged with responsibility, et cetera, should be turned over to the occupation courts. Of course, here we should not concern ourselves with the activities of the occupation courts, but the point of surrender should be set forth in order to set out more fully the provisions of the Moscow declaration.
stated that the person charged with responsibility, et cetera, should be turned over to the occupation courts. Of course, here we should not concern ourselves with the activities of the occupation courts, but the point of surrender should be set forth in order to set out more fully the provisions of the Moscow declaration.
MR. JUSTICE JACKSON. The purpose of paragraph 26 of our annex and of the predecessor clauses in the previous draft is not to determine what shall be done about it but to reserve it so as to be clear we were not prejudicing the right of the Control Council to set up procedures governing the minor criminals. In other words, it is a reservation rather than a provision governing procedures.
Shall we regard it as acceptable if we reserve the question in some manner for the governments to establish, making clear that we are not interfering in this agreement with the declaration of Moscow?
GENERAL NIKITCHENKO. The right of national tribunals to try prisoners in their custody has not been infringed upon; so there would be no necessity to make a reservation on that point. But since we are drafting this agreement in accordance with the Moscow declaration, the principle of the Moscow declaration concerning the surrender of prisoners should be set forth-the principle itself.
MR. JUSTICE JACKSON. Since it has been already set forth, do we need to repeat the Moscow declaration here? And doesn't the provision of the agreement as submitted by the Soviet Delegation go further than the Moscow declaration? In other words, here is the provision which says that, upon the mere demand of any government ,that it wants to try somebody, we must turn him over even though we may desire to try him. That, to my mind, would put us in the position where, if we want to try a person and any other government is demanding him, we might be charged with bad faith, and we do ;not want to make any commitments that we may not live up to. I would have no authority to commit my Government to a thing of that kind.
put us in the position where, if we want to try a person and any other government is demanding him, we might be charged with bad faith, and we do ;not want to make any commitments that we may not live up to. I would have no authority to commit my Government to a thing of that kind.
GENERAL NIKITCHENKO. The question of the drafting of this provision might, of course, be set later, but in principle it reflects the first paragraph of the first amendment draft, in which it is stated that the German officers and members of the Nazi party who are responsible for atrocities, et cetera, would be sent back to the countries in which their crimes had been committed. That is the principle which is set forth in the Soviet provision, too.
MR. JUSTICE JACKSON. In ours, we have provided that the Control Council shall establish policies and procedures and that is what we think should be done-that we should not undertake to set up in our agreement policies and procedures about this, that these questions should go to the Control Council rather than be determined here since we are only dealing with major criminals.
MR. ROBERTS. I might say this is our view, too. This is an agreement dealing with major criminals, and it is a little out of place here and really is not our business.
GENERAL NIKITCHENKO. The Soviet Delegation agrees that the question of procedure in the matter of turning over criminals should be settled either by the governments or the Control Council.
PROFESSOR GROS. I think it is a question on which we all agree in principle and think it is only a question of wording of the fifth paragraph, but I am under the impression that we could accept such a change as would imply we are not encroaching upon the territory of the Council.
GENERAL NIKITCHENKO. The question of drafting would really be settled in the drafting committee, but at the present time we should settle the question in principle that in a provision of this sort a reservation should be included in the agreement.
not encroaching upon the territory of the Council. GENERAL NIKITCHENKO. The question of drafting would really be settled in the drafting committee, but at the present time we should settle the question in principle that in a provision of this sort a reservation should be included in the agreement.
MR. JUSTICE JACKSON. The principle as suggested by Professor Gros would be acceptable to us.
MR. ROBERTS. And to us.
PROFESSOR GROS. May I say that there seems to be more than a question of drafting here? The Soviet draft invites the Control Council to set up the procedure. I think that that reservation is necessary.
GENERAL NIKITCHENKO. In this case and the case of minor criminals, the principle of the Moscow declaration should be set forth and an obligation of the countries should be repeated, the obligation which had been set forth in the Moscow declaration.
GENERAL DONOVAN. When the document says "without prejudice", isn't that just what happens?
PROFESSOR TRAININ. It is not quite the same, and we base all our deductions on the Moscow declaration. In regard to the major criminals we worked it out in great detail. As for the other criminals we have just to repeat the principle of obligation which had been set forth in the Moscow declaration.
GENERAL NIKITCHENKO. Apparently everybody agrees that the minor criminals should be turned over, and we have no doubt that is so. We see no reason why it should not be set forth in the agreement.
GENERAL DONOVAN. But everyone wants them turned over in the ordinary manner and turned over so that they would get the worst punishment they could get. But the one who demands him should get the prisoner where, if lie were tried, he would get a heavier punishment for a heavier crime.
GENERAL NIKITCHENKO. No, we did not have that in view.
GENERAL DONOVAN. But that would be the effect.
PROFESSOR TRAININ. Naturally he should be tried in the court where he committed the gravest crimes, and, if this provision is not definite enough in that regard, it could be redrafted.
for a heavier crime. GENERAL NIKITCHENKO. No, we did not have that in view. GENERAL DONOVAN. But that would be the effect. PROFESSOR TRAININ. Naturally he should be tried in the court where he committed the gravest crimes, and, if this provision is not definite enough in that regard, it could be redrafted.
GENERAL DONOVAN. But that is all the draft suggested without surrendering the principle.
PROFESSOR TRAININ. Not exactly.
GENERAL DONOVAN. But near enough. Whatever the form, as long, as we reach the result, doesn't that satisfy us?
PROFESSOR TRAININ. Naturally the prisoner should be tried in the country where he had committed the gravest crimes, and if this provision is not definite enough in that regard it could be redrafted. If a person is recognized to be a major war criminal, he is not liable to be turned over to the local court.
GENERAL DONOVAN. But another one might be a witness.
GENERAL NIKITCHENKO. He would also be turned over.
MR. JUSTICE JACKSON. Now I would like to ask some questions about the Soviet draft of article 3 of the statue [XXIII]. This apparently contemplated the establishment of several tribunals, and we were wondering just how you -would have several tribunals function. We can see merit in the idea of having several tribunals if, for example you decided that you wanted to try your prisoners and those that you want to indict by your procedure, and we wanted to try ours by our procedure, which would probably be quicker than trying to work out a new joint procedure. But if there are to be several tribunals all under identical procedures, sitting in various parts of Europe, we do not know just how they would function and wonder whether you would explain just what you have in mind about it.
our procedure, which would probably be quicker than trying to work out a new joint procedure. But if there are to be several tribunals all under identical procedures, sitting in various parts of Europe, we do not know just how they would function and wonder whether you would explain just what you have in mind about it.
GENERAL NIKITCHENKO. In this article we provided for the same thing as was stated in article 5 of the first American draft-that one or more tribunals could be established. It would be better, of course, if there would be just one tribunal. The Soviet Delegation thinks everyone would agree to that, but it might happen that the number of cases would preclude the establishment of only one tribunal and that tribunal would not be able to handle that number of cases. In order to expedite matters it would be better to set up two or three tribunals, and each of these would then function in an identical manner according to the same procedure. The Soviet Delegation could, if that would be desirable, agree to providing for only one tribunal.
MR. JUSTICE JACKSON. If it became necessary to have more than one, might it not be simpler if we did not provide that they must all have identical procedures and set up a tribunal which would try those you wish to try by your procedure while we used our procedure to try ours? That is to say, we have a good deal of differences of tradition about procedure, and it is hard to reconcile them. If we agreed on the general principles of substantive law that should apply, I don't know that it is necessary that everybody proceed exactly alike, providing they are proceeding to the same end. I have been wondering whether, if more than one tribunal became necessary, it might not be simpler for each of us to use the procedure lie is more familiar with, and which would be acceptable to his own people, rather than try to set up a new procedure. We could agree on the applicable principles of criminal law.
whether, if more than one tribunal became necessary, it might not be simpler for each of us to use the procedure lie is more familiar with, and which would be acceptable to his own people, rather than try to set up a new procedure. We could agree on the applicable principles of criminal law.
GENERAL LORD BRIDGEMAN. I think perhaps I should say here that we on this side of the table realize the difficulties you have mentioned, but we do attach a great deal of importance to having only one tribunal if it is at all possible. We feel it would be very much better to have one tribunal.
GENERAL NIKITCHENKO. That is really what we provided for. This should be an international tribunal. We might call subdivisions of it branches or chambers, but unless all four countries are represented in it then it would lose its character of being an international tribunal.
MR. JUSTICE JACKSON. Yes, but what I am thinking of is that it would not lose its character but it would not be necessary that each division or chamber should proceed by the same procedure. By that I mean this-we have certain things that in the tradition of our people we must do, otherwise our people would think we had not given a fair trial. You have certain things which you must do or your people will criticize you. I quite realize that. Trials in our several countries are not run in the same way. They may be equally good. What we were thinking was that perhaps the best way to do would be, to proceed before separate divisions, each using the procedure he was familiar with. I only submit it for your consideration.
MR. TROYANOVSKY. The representatives of the four countries in each?
MR. JUSTICE JACKSON. Yes, in each chamber.
PROFESSOR TRAININ. Also as a matter of suggestion, if might be that one branch of the Tribunal might function in Berlin and another in some other country, and due to that fact it would have some special points of procedure. But these are merely suggestions.
each? MR. JUSTICE JACKSON. Yes, in each chamber. PROFESSOR TRAININ. Also as a matter of suggestion, if might be that one branch of the Tribunal might function in Berlin and another in some other country, and due to that fact it would have some special points of procedure. But these are merely suggestions.
PROFESSOR GROS. In principle those are pessimistic views, and we would hope that it would be possible to find an international procedure for one international tribunal. Evidently it is difficult, but it is much more important to have one international tribunal than to have two or three or four which might, perhaps, have different jurisdiction and, in a practical way, we might have trouble dividing the major war criminals in these channels. I think we might perhaps go along the same lines and only come back to the same suggestion if we could not find an agreement.
MR. JUSTICE JACKSON. There is a question that arises on article 5 concerning the Control Council and in article 9 in reference to the recall of members of the Tribunal. As to number 5, the Tribunal is attached to the Control Council. Article 9 gives the Control Council the right to recall a member of the Tribunal and to replace him by another.
Under the procedures of the United States and under our legal philosophy, once a court is set up it is completely independent of the executive, and there could be no recall by the executive authority of a, member of the tribunal. A tribunal subject to recall by the executive in our country would not be regarded as an independent court nor its findings as independent findings. Therefore, we would not find acceptable the provision for the recall of a member of the Tribunal nor for the attachment to the Control Council if by that it is meant that it is in any sense subordinate to the Control Council.
as an independent court nor its findings as independent findings. Therefore, we would not find acceptable the provision for the recall of a member of the Tribunal nor for the attachment to the Control Council if by that it is meant that it is in any sense subordinate to the Control Council.
GENERAL NIKITCHENKO. The Soviet Delegation is of the opinion that, since the International Military Tribunal is a temporary interAllied organization and not a permanent national court, it is difficult always to apply the principles of national legal systems in regard to it. For instance, our judges are elected and, of course, the Soviet Delegation considers that principle could not be very well applied in this case. Also, it would not favor the principle that a judge would have the power or right to remain sitting unchanged under any circumstances. In this case it is necessary to establish new principles for a temporary organization which would not function for a very long time.
The Soviet Delegation also took into consideration article 5 of the American draft, in which it is stated that control of the International Military Tribunal should be established by the Control Council. This is really the significance of article 5 of the Soviet draft, that, since it is to be established by the Control Council, it would function sort of attached to the Control Council.
MR. JUSTICE JACKSON. We agree that it might be set up by the Control Council, and we would agree, too, that we cannot apply the principles of any one nation, but, in our view, if a member of the Tribunal is subject to recall without any reason being given, it is not an independent court. We feel strongly about an independent court to the point where we would not have much confidence in the decision of any other kind of court. I am wondering what kind of circumstances you would have in mind as justifying a recall, and perhaps we could provide for them in some other way.