SIR DAVID MAXWELL FYFE [presiding]. It is suggested that each delegation explain its memorandum of proposed amendments to the American draft proposal [IX]. I shall proceed, if it is agreeable, with our draft of amendments.

[EXPLANATION OF UNITED KINGDOM MEMORANDUM] [XIV]

The first point in the United Kingdom memorandum deals with article 5 of the United States draft. That is where the draft says that there should be set up by the Control Council for Germany one or more international military tribunals. We suggest that they should be set up by the signatories, that is, the governments of the Four Powers represented here, after consultation with the Control Council of Germany- I do not think I could improve upon the words of the memorandum. While the Control Council must be consulted, the responsibility for the tribunals must rest with the governments concerned. It is important to emphasize the independence of the Tribunal, and it would be a mistake to place it under the Control Council. It should be a government problem rather than a Control Council problem. Any comments?

GENERAL NIKITCHENKO. Perhaps it would be best to run through the memorandum.

SIR DAVID MAXWELL FYFE , The next point has to do with article 8. The draft reads: "An International Military Tribunal shall have the power to establish its own rules of procedure, which shall be not inconsistent with the provisions of this Agreement."

Our suggestion is that this body and the chiefs of the various delegations represented here should prepare and submit to the Tribunal rules for their approval. We considered that the initiative with regard to rules ought to come from the governments, and, if this is accepted, we suggest a new provision at the end of article II which would provide for recommending rules of procedure for adoption, and that any rule so adopted by the Tribunal shall not be inconsistent with this agreement. The purpose of this is to give a lead to the Tribunal as to the lines on which they should proceed. We give them the right to approve, but we envisage circumstances under which we way have to make alterations to suit the evidence as it eventually comes on and think it would be useful if we suggested to the Tribunal lines on which to proceed.

MR. JUSTICE JACKSON. May I suggest that it may be desirable to retain in some place the substance of number 8, whereas your suggestion in your commentary might be understood to eliminate it?

SIR DAVID MAXWELL FYFE. We should retain the provision giving the power to adopt the rules after counsel suggests them.

GENERAL NIKITCHENKO. Why not, in deciding the statutes of the Tribunal, lay down the basic grounds on which the Tribunal is to operate.

SIR DAVID MAXWELL FYFE. I agree. We are in agreement with that. That is what is intended by the Tribunal. The rules so adopted by the Tribunal shall not be inconsistent with this agreement. The provisions would lay down certain rules.

PROFESSOR TRAININ. There is a distinction between the basic rules of the document and the question of actual procedure. In regard to the formulation of the basic rules on which the Tribunal will operate, that is undoubtedly the duty of the Four Powers in this agreement, but in addition to that there will be the question of establishing the methods of procedure to be adopted by the tribunals themselves, and the Soviet Delegation is of the opinion that that part of the regulation should be left to the Tribunal to work out on their own. There are basically two parts-the basic rules and the rules of procedure which are based upon them.

SIR DAVID MAXWELL FYFE. I am in agreement with the division into the two parts. I ask the Soviet Delegation to reserve for consideration whether, while accepting this provision, we should not give a lead to the Tribunal on the question of detailed procedure. It might help the Tribunal because it has not got an existing code of procedure to work on.

We now pass to number 12. This is the declaration of legal principles and the United States draft can be summarized as (a) violation of international law; (b) violation of municipal law and domestic law; (c) invasion or threat of invasion, or initiation of war against other countries in breach of treaties, agreements, or assurances between nations or otherwise in violation of international law, et cetera. Now we suggest first of all that violations of the laws, rules, and customs of war and such acts shall include, but shall not be limited to, mass murder and ill-treatment of prisoners of war and civilian populations and the plunder of such populations. Then "launching a war of aggression" may involve a discussion of different schools of thought as to whether that is an existing offense against international law, and there is the further question whether we are breaking new ground. That we think ought to be discussed and is one of the matters which this Conference should consider. Then we come to (c) invasion or threat of invasion of, or initiation of war against, other countries in breach of treaties, agreements, or assurances between nations or otherwise in violation of international law. Then we introduce (d) -the common plan or enterprise aimed at aggression against or domination over other relations and calculated to involve the unlawful means of violation of international law. We think that it is important that that should be made clear in the declaration of legal principles because we think it is the gist of the offense which is believed by most of the people in the world.

Then (e) deals with atrocities and persecutions in pursuance of the plan and whether they are in violation of the domestic law of the country where perpetrated; that is, it would include atrocities and persecutions in Germany if they were legal by German law. I think you will find that that is set out in the note, and, if you will look about two thirds of the way down in the note, you will find we say, "The chief crime of which it is alleged that the leaders in Germany are guilty is the common plan or conspiracy to dominate Europe and it is therefore most desirable to include this crime specifically in the statutes of the Court. Moreover, the protocol will become a public document of the first importance and for this reason it is essential that the main charge to be made against the major criminals should appear in it. The lay public will not understand its omission." I think really that this last bit that I have read gives the gist of the argument I put forth.

Could I add one point? I apologize. I should have drawn attention to the introduction at the beginning of number 12: "The Tribunal shall be bound by this declaration of the signatories that the following acts are criminal violations of international laws . . . . " What we want to abolish at the trial is a discussion as to whether the acts are violations of international law or not. We declare what the international law is so that there won't be any discussion on whether it is international law or not. We hope that is in line with Professor Trainin's book.

GENERAL NIKITCHENKO. May I ask a question? This list of crimes which has been outlined here-Is that to be taken to apply only to those crimes which have been committed during the process or duration of the war, or may we take it it equally applies to any crimes since then? For instance, any activities which the Germans might undertake now. Would they be included under this provision?

SIR DAVID MAXWELL FYFE. I don't think we had considered that point. We should be prepared to and try to face it. I have no objection to it. There is still, of course, a state of war existing, and therefore it would seem probably to be covered.

GENERAL NIKITCHENKO. We might understand that this list is not exhaustive in regard to crimes which may be tried by the International Military Tribunal, that there may be other violations which are not actually listed.

SIR DAVID MAXWELL FYFE. We might consider the redrafting of (a) so that it should "include but not be limited to . . . . 17

JUDGE FALCO. This question should certainly be discussed a little further for the moment. I suggest that the Four Powers have taken supreme command in Germany, actually commanding Germany, and, if there are infractions of law, it is for the Control Council of Germany to establish their tribunals and try those new perpetrators. For the moment I do not see any object in mixing the two things and having

Germany's criminals brought before the Tribunal for trial of war criminals. I want to put this before the Conference.

SIR DAVID MAXWELL FYFE. One v, Ord for consideration here. We are dealing With major war criminals. We cannot have two trials of the major war criminals. There will be nothing to prevent the Control Council and the various national commissions from dealing with the infractions of the law they are administering apart from this. We are rather considering this as limited to the major criminals.

GENERAL NIKITCHENKO. We do not make it as a suggestion. It was merely for elucidation on the point.

MR. JUSTICE JACKSON. We would take it that (b) covers launching a war of aggression. If there were conviction on that, (e) and (d) might become somewhat superfluous. But (e) is launching a war of aggression in violation of treaties, et cetera, and (d) is launching it by a combination of terrorism and means which they have used, et cetera, so that those three are read together to make a complete picture.

JUDGE FALCO. On the question which has been raised by article 12, we have seen the proposal which had been made at San Francisco. It is very near our point and except for some details bearing on (b) and (c) we could very easily agree on the same line.

SIR DAVID MAXWELL FYFE. Now the fourth point deals with the basic principles of the operation of the Tribunal [articles 17 and 18], and, if I might, I'll just give a word of explanation of each of the subheads of its contents. "An International Military Tribunal shall not be bound by technical rules of evidence," that is, by the rules of evidence which each country demands in its own courts. It shall "adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value." That makes clear that it is f or the Tribunal to decide whether the evidence has value in the direction of proof even though a national code might not allow proof by that form. Next, "it shall employ with all possible liberality simplifications of proof, such as, but not limited to: requiring defendants to make written proffers of proof." That is, the defendants maybe compelled to put in writing the purpose for which evidence is going to be called in order to prevent mere political speeches being put in under the guise of evidence. Otherwise a witness may suddenly be called into the box, We do not know what he is going to say, and he starts making political speeches in defense of German activities. Then, "making extensive use of judicial notice." That is, the Tribunal can take into account matters that are well known. "Receiving affidavits or statements for witnesses, depositions, recorded examinations before or findings of military or other tribunals, copies of official reports, publications and documents or other evidentiary materials and all such other evidence as is customarily received by international or military tribunals." That is, if there has been taken up an inquiry with a reasonable official basis in certain matters, then that can be put in evidence without the formality of proof.

I think it would be convenient if I dealt with 18, which is supplementary, before any further comments. Paragraph 18 emphasizes our desire that there will not be delay or interruption or the misuse of the hearing for political purposes. Subparagraph (a) deals with confining the trials to expeditious hearing of the issues raised by the charges; (b) takes strict measures to prevent any action which will cause any delay and rules out irrelevant issues, including attempts to bringing political propaganda. That is what we envisage. There are two possibilities: the defendants themselves may try and make a noise or interrupt the court or interrupt the witnesses and proceeding. With defendants who are likely to be sentenced to death, in the face of the court sending them to prison for a few weeks-the ordinary penalty for contempt of court-it would only be playing their game and interrupting the trial. The only sanction to be effective would be to exclude their counsel or themselves from further right to put forward their defense. If they treat the court with contempt, then they will be taken as desiring not to continue their defense, and the court will determine their defense in the absence of counsel where necessary.

PROFESSOR TRAININ. The general principle laid out and explained is quite clear, and the only question which might possibly arise is whether some of the points which are outlined should really be agreed upon in the principles of establishment of the Tribunal or whether they should not appear better in the regulations governing the procedure of the Tribunal.

JUDGE FALCO. [Not translated.]

SIR DAVID MAXWELL FYFE. Of course, we are ready to consider any suggestions for taking anything out of the main document and putting it into regulations. We thought these were worthy of being basic principles but will consider with great care and regard any suggestions of the Soviet Delegation.

MR. JUSTICE JACKSON. The words here, "including attempts to introduce irrelevant political propaganda" are words with which I have difficulty. If an offer of proof is irrelevant, it should be excluded merely because it is irrelevant. If it is relevant to the defense, -would it be conceivable to exclude it because it might have unpleasant political implications? I suspect that critics will point at this phrase as indicating that there is something in our own positions that we are fearful of having exposed, if, even though it is relevant, we are proposing to exclude lines of inquiry which would be inconvenient for ourselves politically. I suggest that a formula might be found which would be adequate to admonish judges who, after all, are nationals of our own countries and equally interested with ourselves in keeping the trials on the level that would not quite so brazenly invite accusations against us all. In the United States I know it would be asked, "Who got that in and why, and who is afraid and why?" Those unfriendly to Britain will say, "I told you so", and those unfriendly to Russia will say, "I knew it all the time." I think it is a phrase in danger of political misuse.

JUDGE FALCO. As an informal suggestion, could we say, "To prevent all attempts to use any political propaganda which the major war criminals would put before the trial"? This is only an informal suggestion.

SIR DAVID MAXWELL FYFE. I should be very pleased to consider the suggestion. I think there are two things to avoid-one is Nazi propaganda; the other is the trial of the actions of the countries of the prosecutors. We don't want the trial to be swung over by the defense in an attempt to attack and have a trial in the eyes of the public of the action of the prosecuting countries. I think in the second I am inclined to agree with Mr. Justice Jackson.

MR. JUSTICE JACKSON. I am not disagreeing with the idea but I think we should have a little more care as to how it is expressed. General Donovan has suggested that following "irrelevant issues" the phrase "of whatever kind or nature" would be sufficient to admonish our judges and not arouse our critics.

SIR DAVID MAXWELL FYFE. Then the next and last item is article 20, which states that sentences, when and as approved by the Control Council, should be carried into execution in accordance with orders of the Control Council for Germany.

We suggest that the approval of the Control Council should be cut out, that is, that the findings and sentences of the Tribunal should not be subject to approval but that, when the Tribunal has imposed sentence, it ought to be carried out. If it be death, the execution will be carried out, or, if it be imprisonment, that should be carried out in accordance with the orders of the Control Council, and the Control Council may reduce or otherwise alter. "Reduce" is to lessen the sentence, but keeping the same kind. "Alter" would be substituting a different kind of sentence but may not increase its severity.

GENERAL NIKITCHENKO. The Control Council could presumably cancel the sentence and demand a retrial of the case.

SIR DAVID MAXWELL FYFE. I am afraid that is a point that we don't see eye to eye. We think that the Tribunal ought to be left to say the final word as to the finding. That is, as to the conviction-we don't want any interference with the finding of the Tribunal. We hope that the Tribunal will be of sufficient standing that its conclusion on conviction or not should be sufficient. We also think with regard to sentence that all that should be given to the Control Council is the opportunity to lessen but not to cancel. That is a point which we will have to discuss because there is a difference of viewpoint there.

Judge Falco apparently agrees with us.

GENERAL NIKITCHENKO. The Soviet Delegation is raising the question of how we should act in case, for instance, at the time of the trial the Tribunal is not in possession of the whole of the material affecting the case and brings out its verdict and sentence with insufficient material in its possession, so that the sentence may appear to be inadequate to public opinion. The Control Council having discovered further material or it having been discovered elsewhere, it becomes evident that the sentence is quite inadequate to the crime committed. In those circumstances how would it be possible to secure that the whole case would come up for reconsideration and additional sentence be imposed?

SIR DAVID MAXWELL FYFE. If these circumstances occur-and I hope it will be prevented by our preparation and examination of the evidence-but assuming that it did occur, I should suggest that the better method would be a new trial on the more serious charge.

GENERAL NIKITCHENKO. In order to try the accused on more serious charges, the original sentence would have to be annulled to provide the opportunity of a new trial on the different charge.

SIR DAVID MAXWELL FYFE. Take for example how it -works in our law. If somebody attacks somebody else, then he may be tried for assault, but, if within a year death supervenes, he may be charged subsequently for murder, for which the sentence is death. The fact he had been tried for assault would not prevent it because it would be the new charge of death.

GENERAL NIKITCHENKO. In that case we could try them again without actually canceling the first sentence.

SIR DAVID MAXWELL FYFE. I do not think there is any difference between us as to what we want to do-that is to insure that the most serious charge we know about is brought against the accused. The only point that I am anxious to make is that the status of the Tribunal should be kept as high as possible, and it should not appear to be subject to an administrative body. That is my general point. I am in full sympathy for any serious charge and the most serious charges being brought against all the defendents we select.

That concludes the British memorandum. Would it be convenient to go around the table and have the French Delegation deal with its memorandum?

[EXPLANATION OF FRENCH MEMORANDUM] [XV]

PROFESSOR GROS. The first part of the French memorandum is only a reminder of the position which has been taken in San Francisco and, naturally, the proposal which has been put before us on the charges. As I have said, the British proposal is partly inspired by that proposal. So that reservation which we made in the first part is not so important as it would look at first sight.

As we said the other day, the Four Powers agree to press the cases against the major war criminals in the best way to insure a speedy punishment, whatever forms we use. We have given a note on the French procedure in criminal prosecutions, but it is only a recommendation and we would not think of insisting on adoption of the French procedure.

MR. JUSTICE JACKSON. How would you permit the defense to submit the case? Would you have him given a particular time after the prosecution has presented its entire case or have him answer each document as it is submitted?

PROFESSOR GROS. He would speak once only. He could call witnesses. He would arrange with the prosecutor beforehand for appearance of witnesses so that a refusal of such witness could be given before and not at the trial.

MR. JUSTICE JACKSON. May I say one word, Mr. Chairman, about the French memorandum? I think the spirit of it is admirable. The thought that we will compare our systems and try to use the best of each for this purpose is the spirit in which we want to work, and there is a great deal of good in both systems. Many things are not as troublesome in practice as we think in theory, and I agree fully with your suggestion that what we want is to get a practical procedure rather than an adaptation of any nation's procedure. I think it is a very helpful memorandum.

[EXPLANATION OF SOVIET MEMORANDUM] [XVI)

GENERAL NIKITCHENKO. The first is with regard to the character of the trial. We are not dealing here with the usual type of case where it is a question of robbery, or murder, or petty offenses. We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea declarations by the heads of the governments, and those declarations both declare to carry out immediately just punishment for the offenses which have been committed.

Second, the procedure that we want to work out should be such as to insure the speediest possible execution of the decisions of the United Nations, and the regulations that we set down for this Tribunal must be worked out with that in view. In this connection the Soviet Delegation is in complete agreement with statements made by the French Delegation with regard to the formulation of rules and regulations to achieve maximum speed. The object should not be to select any individual national system of trial. All these systems have good points. In, the British arid American there is probably too much latitude allowing the possibility to the accused of dragging out the process of the trial and causing unnecessary delay. As we now have to deal with something completely new, it is necessary for us to select the best of the different systems with a view to achieving speed in arriving at a decision.

Third, with regard to the position of the judge-the Soviet Delegation. considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case. The declaration of the Crimea Conference is quite clear that the objective is to bring these criminals to a just and speedy trial. Therefore, the judge, before he takes his seat in court, already knows what has been quoted in the press of all countries, and it is well known, about the criminal as accused and the general outline of the case against him. The case f or the prosecution is undoubtedly known to the judge before the trial starts and there is, therefore, no necessity to create a sort of fiction that the judge is a disinterested person who has no legal knowledge of what has happened before. If such procedure is adopted that the judge is supposed to be impartial, it would only lead to unnecessary delays and offer opportunity for the accused to bring delays in the action of the trial.

Fourth, the Soviet Delegation points out that, at the time when the declaration was made by the leaders of the United Nations on the question that the chief criminals should be tried, it was not certain whether these criminals would actually be tried by a court or would be punished by some purely political action. That is to say, they might have been dealt with by means other than, a trial. Since then it has been decided that they shall go through a process of trial, but the object of that trial is, of course, the punishment of the criminals, and therefore the role of the prosecutor should be merely a role of assisting the court in the actual cases. That is the role of either the investigation committee or Chiefs of Counsel as proposed in these drafts. The difference is that the prosecution would assist the judge, and there would be no question that the judge has the character of an impartial person. Only rules of fair trial must, of course, apply because years and centuries will pass and it will be to posterity to examine these trials and to decide whether the persons who drew up the rules of the court and carried out the trials did execute their task with fairness and with justice but subject to giving the accused an 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 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 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 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 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.

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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 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 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 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 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. 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 and sometimes miscarriage by delay. Nevertheless, each of us has the problem of making the results here acceptable in the sight of his people, and we shall have to consider procedure in that light. Our interest in the matter is to see that the representations that have been made to our people that this was a criminal war and was carried out in criminal fashion are followed by the procedure that is appropriate to trial of that kind of offense, and we want to do everything we can to cooperate in doing it. But we do not want to have a result which in the light of history will fail to justify the procedures which we have taken. We think of this as rather more than trying certain persons for some specific offenses. There is involved in this the whole Nazi drive to dominate the world. There is involved in this the basis on which the United States engaged in its lend-lease operation, the belief that this war was illegal from its inception. So, in the light of all these things, we shall have to give consideration to many suggestions which transcend the function of a subcommittee. I think we shall want to prepare a memorandum in the light of what we now know, supplemental to the memorandum given you.

SIR DAVID MAXWELL FYFE. If I may add to that, General NIKITCHENKO said this morning at the conclusion of the first paper that the ordinary rules of fair trial must apply-that is, fairness and justice in the eyes of history subject to quick and just punishment. Now, as far as that is concerned, there would be little argument if effect could be given to what I have just quoted taken down from General Nikitchenko; and I wondered whether we could consider this method ' which is an adaptation of Professor Gros' suggestion, as being one on which we could find a synthesis of our different views-that the prosecuting body, those of us around this table, when we have prepared the indictment and got together the evidence on which the indictment is based, might forward that indictment and the evidence or a full summary

of the evidence to the court, who would then transmit it to the defendants. That is, the court would get it, and that would meet General Nikitchenko's point that the court should be fully informed of the prosecution. On the other hand, if it is passed to the defendants, it would mean the defendants had had fair notice of what they had to meet; they would then be compelled to say which part of it they accepted and which part they disputed, and these matters could come before the court. I put that forward as being a method of trying to find a synthesis between the different systems of prosecution. I am very anxious, as I think we all are, that we should not fall apart because of our different approach to our work and, at the risk of pressing all my colleagues, I should ask them to consider whether a committee, however informal and noncommittal it need be, could not try to find in fair detail what are the points of agreement and what are the points that need further discussion-a subcommittee. All delegations would be entitled to put in any memoranda criticizing my suggestions or anything else. It seems to me that, if we bad just four of our number and a secretary trying to find out points we want to direct our mind to, it would be helpful.

PROFESSOR GROS. We think that the subcommittee would be useful if we could send some parts of those problems to them as a drafting committee. However, I do not think the discussion has been sufficient in the Conference, notably on the question of trial of the organizations. We would like to have those questions discussed in the full Conference because we think it is one of the most important, if not the most important, and I do not see any point in sending, that back to a drafting committee until it has been sufficiently discussed here. Also the substantive law and the other questions of aggression. There is no use sending the drafting of that article to any subcommittee if we have not discussed exactly what we mean or want to mean. So I would suggest we send back to the drafting committee the question of prosecuting, that one question only, and discuss the other in the Conference.

GENERAL DONOVAN. Can the subject be separated? Doesn't it all have to be considered together? Here is the question of your prosecuting group and the function they will perform.

PROFESSOR TRAININ. As it has been pointed out by the representative of the American Delegation, there are quite a number of questions on which we have already reached an agreement. I can add one more assuring authoritative and very prompt dealing with the Nazi criminals. That is to say, to work out such a procedure would not be an easy matter at all because we must justify absolute authority and at the same time apply it extremely quickly because the quickness of dealing with the criminals is of great importance. It seems to me that all those points on which an agreement has already been reached could be very usefully submitted to that subcommittee, which could work out the details and overcome the practical difficulties.

SIR DAVID MAXWELL FYFE. Would it be practical, Mr. Justice, Jackson, to ask the committee to select the points that agreement has been reached on, while we retain for the Conference, the discussion of the outstanding points such as mentioned by Professor Gros?

MR. JUSTICE JACKSON. I think we are in a philosophical difference that lies at the root of a great many technical differences and will continue to lie at the root of differences unless we can reconcile our basic viewpoints. As the statement of our Soviet colleague said, they proceed on the assumption that the declarations of Crimea and Moscow already convict these parties and that the charges need not be tried before independent judges empowered to render an independent decision on guilt. Now that underlies a great deal of their position, and we don't make that assumption. In the first place, the President of the United States has no power to convict anybody. He can only accuse. He cannot arrest inmost cases without judicial authority. Therefore, the accusation made carries no weight in an American trial whatever. These declarations are an accusation and not a conviction. That requires a judicial finding. Now we could not be parties to setting up a mere formal judicial body to ratify a political decision to convict. The judges will have to inquire into the evidence and reach an independent decision. There is a great deal of realism in Mr. Nikitchenko's statement. There could be but one decision in this case-that we are bound to concede. But the reason is the evidence and not the statements made by heads of state with reference to these cases. That is the reason why, at the very beginning, the position of the United States was that there must be trials rather than political executions. The United States feels we could not make political executions. I took that position publicly. I have no sympathy with these men, but, if we are going to have a trial, then it must be an actual trial. That is the position of the American Government, and it troubles me a bit to think of trying to solve by a subcommittee so fundamental a, disagreement as to trial. It raises the question of whether procedural differences are not so great that the idea of separate tribunals for each nation for the trial of its separate groups of prisoners may not be the easiest and most satisfactory way of reconciling it. I do not know, but just put that forward.

GENERAL NIKITCHENKO. Perhaps I am mistaken, but I understood that our purpose is not to discuss the philosophy of law but try and work out an agreement, the purpose of which would be the carrying on of justice in the naming of the. war criminals. I cannot deny that in

various countries there are various systems of carrying out the justice and some of them may have preferences, but I am quite sure that the aim of those systems, whatever they may be, is always the same, namely, the carrying out of justice. It seems to me that our purpose and task here is exactly that very task, that is to say, to work out a system by which this justice could be carried out quickly and fairly. We could see what is in all the systems that could be taken out from them and applied for our purpose. In other words, we should work out on the basis of those systems a new system, a practical system, to deal with the cases which are before us.

MR. JUSTICE JACKSON. I agree with that view of it.

SIR DAVID MAXWELL FYFE. So do I.

GENERAL NIKITCHENKO. The French Delegation put forward here a number of problems concerning the criminal prosecution and legal procedure. As regards the accusation, there is not much difference in essence and little from the point of view of our task. It is not so important who will put forward the actual accusation of the criminal, whether it would be the government, or the Control Council, or individuals, or on the basis of information received by individuals, or some other authority or person. The accusation must be properly considered and all the evidence collected. It maybe collected by the Chiefs of Counsel or whatever the name of the organization may be. It does not matter the name. It is for us to decide the composition and structure of procedure, and, when this evidence is collected, the accusation will be presented to the accused person so that he would be sufficiently guaranteed that he will have his defense. For example, a man is accused of having committed all kinds of crimes in concentration camps. All the evidence would be presented to him, and then it would be for the accused person to acknowledge or to protest against such accusation; and, if his evidence were sufficient to prove he had never committed those crimes, then there would be no case to be presented against him. Altogether, it seems that, although there may be various differences in the systems which exist in various countries, still the essence is always the same, and it is a question of various forms which lead to the same object.

When all the material is collected, all the evidence received, and the accused person is interrogated properly by the prosecutor or by the Chiefs of Counsel or by any other properly authorized person, then it is the business of that organization, like the Chiefs of Counsel for instance, to prepare the actual indictment, attach to it all the evidence, and hand it over to the Tribunal. And then the Tribunal's task will not be so terribly complicated because all the material is before it, the defendant will be called, the witnesses will be called, and the task of the Tribunal will be simply to check whether all the evidence against the accused person is sufficiently valid and valuable and whether the -witnesses are sufficiently trustworthy and in sufficient number. If the defendant asks to call further witnesses, it will be the business of the Tribunal to decide whether they should be called or not. The differences apparently are mainly in this, that in our court the president of the court does not actually conduct a case. He simply directs it and guides the other judges sitting with him in the court; the actual decision is taken by them by majority of votes. As far as the material is concerned, material for prosecution in the majority of courts, there are already national commissions investigating crimes. There is already a large amount of material. We do not know exactly all the names of the defendants but know what categories of persons are going to be tried, and that material will be of great help to the prosecution and to those who investigate into their crimes. Therefore, when all the material is collected, properly checked by the prosecutor or Chiefs of Counsel, and handed over to the Tribunal, probably the Tribunal will not take much time to try the criminals. It may take one week or may take several weeks. The main cases and complicated cases after such substantial and detailed preparation should take a very short time.

I am glad to make a proposal. Before we decide whether a subcommittee should be formed or not and which questions should be considered by it if formed, I think it is very important f or us to decide the fundamental question of whether we should work out one document comprising everything or two documents, one dealing with the actual agreement concerning particulars of principle and the other one, the terms of reference. If we decide this question, after that it would be easier for us to pick out from the questions which we are discussing those on which there is no diversity of opinion between us the questions of principle on which we have all agreed. And then that series of questions all agreed upon in principle could be passed to the subcommittee for drafting first. But first of all, it is essential from our point of view to decide whether it is going to be one agreement or two and then to select from each of those two the questions which are more or less all clear in order to pass others on to the subcommittee.

SIR DAVID MAXWELL FYFE. Mr. Justice Jackson, do you see any fundamental difficulty in having it in the form of an agreement?

MR. JUSTICE JACKSON. As far as we are concerned, we would be Willing to accept the Soviet Delegation's suggestion dividing the document into two parts. I think that would be acceptable to us, keeping in mind, however, that we want to keep it in the form of an executive agreement and not a treaty.

SIR DAVID MAXWELL FYFE. It seems we all agree that the document should be in two parts, the agreement and the terms of reference, the terms of reference being annexed or incorporated in the document., Mr. Justice Jackson points out that it is to be an executive agreement and not in the form of a treaty.

GENERAL NIKITCHENKO. Would it be necessary to use the exact words, "executive agreement," or would it be possible to say "in accordance with the principles laid down in the Moscow declaration the following governments conclude the following agreement"?

MR. JUSTICE JACKSON. We will have to keep it clear that it is an executive agreement on behalf of the President, as Commander-in-Chief; otherwise it would have to be ratified by the United States Senate, which would incur delay.

SIR DAVID MAXWELL FYFE. Then we are agreed on that point. Now the question is, what is the best method of providing that agreement? Mr. Justice Jackson, I can see you are not in full agreement on the question of the subcommittee. We have all been quite frank in this matter. I am trying to find the best method. Would it suit you better if you produced a further draft incorporating as much as you could of what has been put forward in these memoranda and pointing out where there was difficulty and discussing it in the full Conference? How much time would you like?

MR. JUSTICE JACKSON. We would endeavor to have it ready to bring here by Monday. We shall try to have it ready far enough in advance to be translated.

After further discussion regarding time necessary for translation Sir David Maxwell Fyfe announced he would arrange the next meeting when the document was ready for the Conference.rules and regulations to achieve maximum speed. The object should not be to select any individual national system of trial. All these systems have good points. In, the British arid American there is probably too much latitude allowing the possibility to the accused of dragging out the process of the trial and causing unnecessary delay. As we now have to deal with something completely new, it is necessary for us to select the best of the different systems with a view to achieving speed in arriving at a decision.

Third, with regard to the position of the judge-the Soviet Delegation. considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case. The declaration of the Crimea Conference is quite clear that the objective is to bring these criminals to a just and speedy trial. Therefore, the judge, before he takes his seat in court, already knows what has been quoted in the press of all countries, and it is well known, about the criminal as accused and the general outline of the case against him. The case f or the prosecution is undoubtedly known to the judge before the trial starts and there is, therefore, no necessity to create a sort of fiction that the judge is a disinterested person who has no legal knowledge of what has happened before. If such procedure is adopted that the judge is supposed to be impartial, it would only lead to unnecessary delays and offer opportunity for the accused to bring delays in the action of the trial.

Fourth, the Soviet Delegation points out that, at the time when the declaration was made by the leaders of the United Nations on the question that the chief criminals should be tried, it was not certain whether these criminals would actually be tried by a court or would be punished by some purely political action. That is to say, they might have been dealt with by means other than, a trial. Since then it has been decided that they shall go through a process of trial, but the object of that trial is, of course, the punishment of the criminals, and therefore the role of the prosecutor should be merely a role of assisting the court in the actual cases. That is the role of either the investigation committee or Chiefs of Counsel as proposed in these drafts. The difference is that the prosecution would assist the judge, and there would be no question that the judge has the character of an impartial person. Only rules of fair trial must, of course, apply because years and centuries will pass and it will be to posterity to examine these trials and to decide whether the persons who drew up the rules of the court and carried out the trials did execute their task with fairness and with justice but subject to giving the accused an 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 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 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 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 redu

ce 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 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 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 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 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 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. 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 and sometimes miscarriage by delay. Nevertheless, each of us has the problem of making the results here acceptable in the sight of his people, and we shall have to consider procedure in that light. Our interest in the matter is to see that the representations that have been made to our people that this was a criminal war and was carried out in criminal fashion are followed by the procedure that is appropriate to trial of that kind of offense, and we want to do everything we can to cooperate in doing it. But we do not want to have a result which in the light of history will fail to justify the procedures which we have taken. We think of this as rather more than trying certain persons for some specific offenses. There is involved in this the whole Nazi drive to dominate the world. There is involved in this the basis on which the United States engaged in its lend-lease operation, the belief that this war was illegal from its inception. So, in the light of all these things, we shall have to give consideration to many suggestions which transcend the function of a subcommittee. I think we shall want to prepare a memorandum in the light of what we now know, supplemental to the memorandum given you.

SIR DAVID MAXWELL FYFE. If I may add to that, General NIKITCHENKO said this morning at the conclusion of the first paper that the ordinary rules of fair trial must apply-that is, fairness and justice in the eyes of history subject to quick and just punishment. Now, as far as that is concerned, there would be little argument if effect could be given to what I have just quoted taken down from General Nikitchenko; and I wondered whether we could consider this method ' which is an adaptation of Professor Gros' suggestion, as being one on which we could find a synthesis of our different views-that the prosecuting body, those of us around this table, when we have prepared the indictment and got together the evidence on which the indictment is based, might forward that indictment and the evidence or a full summary

of the evidence to the court, who would then transmit it to the defendants. That is, the court would get it, and that would meet General Nikitchenko's point that the court should be fully informed of the prosecution. On the other hand, if it is passed to the defendants, it would mean the defendants had had fair notice of what they had to meet; they would then be compelled to say which part of it they accepted and which part they disputed, and these matters could come before the court. I put that forward as being a method of trying to find a synthesis between the different systems of prosecution. I am very anxious, as I think we all are, that we should not fall apart because of our different approach to our work and, at the risk of pressing all my colleagues, I should ask them to consider whether a committee, however informal and noncommittal it need be, could not try to find in fair detail what are the points of agreement and what are the points that need further discussion-a subcommittee. All delegations would be entitled to put in any memoranda criticizing my suggestions or anything else. It seems to me that, if we bad just four of our number and a secretary trying to find out points we want to direct our mind to, it would be helpful.

PROFESSOR GROS. We think that the subcommittee would be useful if we could send some parts of those problems to them as a drafting committee. However, I do not think the discussion has been sufficient in the Conference, notably on the question of trial of the organizations. We would like to have those questions discussed in the full Conference because we think it is one of the most important, if not the most important, and I do not see any point in sending, that back to a drafting committee until it has been sufficiently discussed here. Also the substantive law and the other questions of aggression. There is no use sending the drafting of that article to any subcommittee if we have not discussed exactly what

we mean or want to mean. So I would suggest we send back to the drafting committee the question of prosecuting, that one question only, and discuss the other in the Conference.

GENERAL DONOVAN. Can the subject be separated? Doesn't it all have to be considered together? Here is the question of your prosecuting group and the function they will perform.

PROFESSOR TRAININ. As it has been pointed out by the representative of the American Delegation, there are quite a number of questions on which we have already reached an agreement. I can add one more assuring authoritative and very prompt dealing with the Nazi criminals. That is to say, to work out such a procedure would not be an easy matter at all because we must justify absolute authority and at the same time apply it extremely quickly because the quickness of dealing with the criminals is of great importance. It seems to me that all those points on which an agreement has already been reached could be very usefully submitted to that subcommittee, which could work out the details and overcome the practical difficulties.

SIR DAVID MAXWELL FYFE. Would it be practical, Mr. Justice, Jackson, to ask the committee to select the points that agreement has been reached on, while we retain for the Conference, the discussion of the outstanding points such as mentioned by Professor Gros?

MR. JUSTICE JACKSON. I think we are in a philosophical difference that lies at the root of a great many technical differences and will continue to lie at the root of differences unless we can reconcile our basic viewpoints. As the statement of our Soviet colleague said, they proceed on the assumption that the declarations of Crimea and Moscow already convict these parties and that the charges need not be tried before independent judges empowered to render an independent decision on guilt. Now that underlies a great deal of their position, and we don't make that assumption. In the first place, the President of the United States has no power to convict anybody. He can only accuse. He cannot arrest inmost cases without judicial authority. Therefore, the accusation made carries no weight in an American trial whatever. These declarations are an accusation and not a conviction. That requires a judicial finding. Now we could not be parties to setting up a mere formal judicial body to ratify a political decision to convict. The judges will have to inquire into the evidence and reach an independent decision. There is a great deal of realism in Mr. Nikitchenko's statement. There could be but one decision in this case-that we are bound to concede. But the reason is the evidence and not the statements made by heads of state with reference to these cases. That is the reason why, at the very beginning, the position of the United States was that there must be trials rather than political executions. The United States feels we could not make political executions. I took that position publicly. I have no sympathy with these men, but, if we are going to have a trial, then it must be an actual trial. That is the position of the American Government, and it troubles me a bit to think of trying to solve by a subcommittee so fundamental a, disagreement as to trial. It raises the question of whether procedural differences are not so great that the idea of separate tribunals for each nation for the trial of its separate groups of prisoners may not be the easiest and most satisfactory way of reconciling it. I do not know, but just put that forward.

GENERAL NIKITCHENKO. Perhaps I am mistaken, but I understood that our purpose is not to discuss the philosophy of law but try and work out an agreement, the purpose of which would be the carrying on of justice in the naming of the. war criminals. I cannot deny that in various countries there are various systems of carrying out the justice and some of them may have preferences, but I am quite sure that the aim of those systems, whatever they may be, is always the same, namely, the carrying out of justice. It seems to me that our purpose and task here is exactly that very task, that is to say, to work out a system by which this justice could be carried out quickly and fairly. We could see what is in all the systems that could be taken out from them and applied for our purpose. In other words, we should work out on the basis of those systems a new system, a practical system, to deal with the cases which are before us.

MR. JUSTICE JACKSON. I agree with that view of it.

SIR DAVID MAXWELL FYFE. So do I.

GENERAL NIKITCHENKO. The French Delegation put forward here a number of problems concerning the criminal prosecution and legal procedure. As regards the accusation, there is not much difference in essence and little from the point of view of our task. It is not so important who will put forward the actual accusation of the criminal, whether it would be the government, or the Control Council, or individuals, or on the basis of information received by individuals, or some other authority or person. The accusation must be properly considered and all the evidence collected. It maybe collected by the Chiefs of Counsel or whatever the name of the organization may be. It does not matter the name. It is for us to decide the composition and structure of procedure, and, when this evidence is collected, the accusation will be presented to the accused person so that he would be sufficiently guaranteed that he will have his defense. For example, a man is accused of having committed all kinds of crimes in concentration camps. All the evidence would be presented to him, and then it would be for the accused person to acknowledge or to protest against such accusation; and, if his evidence were sufficient to prove he had never committed those crimes, then there would be no case to be presented against him. Altogether, it seems that, although there may be various differences in the systems which exist in various countries, still the essence is always the same, and it is a question of various forms which lead to the same object.

When all the material is collected, all the evidence received, and the accused person is interrogated properly by the prosecutor or by the Chiefs of Counsel or by any other properly authorized person, then it is the business of that organization, like the Chiefs of Counsel for instance, to prepare the actual indictment, attach to it all the evidence, and hand it over to the Tribunal. And then the Tribunal's task will not be so terribly complicated because all the material is before it, the defendant will be called, the witnesses will be called, and the task of the Tribunal will be simply to check whether all the evidence against the accused person is sufficiently valid and valuable and whether the -witnesses are sufficiently trustworthy and in sufficient number. If the defendant asks to call further witnesses, it will be the business of the Tribunal to decide whether they should be called or not. The differences apparently are mainly in this, that in our court the president of the court does not actually conduct a case. He simply directs it and guides the other judges sitting with him in the court; the actual decision is taken by them by majority of votes. As far as the material is concerned, material for prosecution in the majority of courts, there are already national commissions investigating crimes. There is already a large amount of material. We do not know exactly all the names of the defendants but know what categories of persons are going to be tried, and that material will be of great help to the prosecution and to those who investigate into their crimes. Therefore, when all the material is collected, properly checked by the prosecutor or Chiefs of Counsel, and handed over to the Tribunal, probably the Tribunal will not take much time to try the criminals. It may take one week or may take several weeks. The main cases and complicated cases after such substantial and detailed preparation should take a very short time.

I am glad to make a proposal. Before we decide whether a subcommittee should be formed or not and which questions should be considered by it if formed, I think it is very important f or us to decide the fundamental question of whether we should work out one document comprising everything or two documents, one dealing with the actual agreement concerning particulars of principle and the other one, the terms of reference. If we decide this question, after that it would be easier for us to pick out from the questions which we are discussing those on which there is no diversity of opinion between us the questions of principle on which we have all agreed. And then that series of questions all agreed upon in principle could be passed to the subcommittee for drafting first. But first of all, it is essential from our point of view to decide whether it is going to be one agreement or two and then to select from each of those two the questions which are more or less all clear in order to pass others on to the subcommittee.

SIR DAVID MAXWELL FYFE. Mr. Justice Jackson, do you see any fundamental difficulty in having it in the form of an agreement?

MR. JUSTICE JACKSON. As far as we are concerned, we would be Willing to accept the Soviet Delegation's suggestion dividing the document into two parts. I think that would be acceptable to us, keeping in mind, however, that we want to keep it in the form of an executive agreement and not a treaty.

SIR DAVID MAXWELL FYFE. It seems we all agree that the document should be in two parts, the agreement and the terms of reference, the terms of reference being annexed or incorporated in the document., Mr. Justice Jackson points out that it is to be an executive agreement and not in the form of a treaty.

GENERAL NIKITCHENKO. Would it be necessary to use the exact words, "executive agreement," or would it be possible to say "in accordance with the principles laid down in the Moscow declaration the following governments conclude the following agreement"?

MR. JUSTICE JACKSON. We will have to keep it clear that it is an executive agreement on behalf of the President, as Commander-in-Chief; otherwise it would have to be ratified by the United States Senate, which would incur delay.

SIR DAVID MAXWELL FYFE. Then we are agreed on that point. Now the question is, what is the best method of providing that agreement? Mr. Justice Jackson, I can see you are not in full agreement on the question of the subcommittee. We have all been quite frank in this matter. I am trying to find the best method. Would it suit you better if you produced a further draft incorporating as much as you could of what has been put forward in these memoranda and pointing out where there was difficulty and discussing it in the full Conference? How much time would you like?

MR. JUSTICE JACKSON. We would endeavor to have it ready to bring here by Monday. We shall try to have it ready far enough in advance to be translated.

After further discussion regarding time necessary for translation Sir David Maxwell Fyfe announced he would arrange the next meeting when the document was ready for the Conference.