justified, prior to our own entry into the war, its lend-lease and other policies of support for the anti-Nazi cause.

We have not envisaged this case as a trial of isolated criminal acts. We envisaged it as a trial of the master planners in which the criminality consists of making and executing the master plan to attack the international peace. We are, of course, interested in proving the many manifestations of that plan in local offenses and terrorisms, but in this main case we are interested in establishing them as proof of the design. We are of course interested in bringing all these individual criminals to justice in other appropriate proceedings.

The United States proposal, therefore, contemplates a single main trial of representative Nazi leaders and of the organizations which were the important instrumentalities of the Hitlerite movement. This is what we consider the function of the main international tribunal. It may be necessary, subsequently, to have other trials of individuals, but it will not be necessary to try again the questions decided by the main trial.

We are ready to consider appropriate procedures to this end drawn from Russian, British, French, American, or any other, experience. The United States would not welcome a situation in which I would be expected to participate in a large number of individual trials, held in various parts of Europe, to try particular outrages. My present organization is not set up for that work. My function is to get at the groups which have master-minded the attack, by such barbaric methods, on the peace of the world. Our occupation courts will of course handle appropriate individual cases.

It would seem that the primary reason for an International Tribunal is the fact that many local trials, while useful in themselves, will fail to disclose the general design which is back of the multitude of local offenses and that, therefore, the attention of the International trial must be focused on the broader aspects of the Hitlerite conspiracy.

We submit a redraft of our proposal attempting to retain its essential purposes and yet to meet as far as possible the suggestions of the Russian, French, and British memoranda.

I call attention to the official statement of the responsibility which the United States conceives it has for the trial of prisoners in its possession as outlined in my report to the President, a copy of which we have provided. By reason of the President's unqualified endorsement of it, the essentials it states represent the President's views as well as my own.

ROBERT H. JACKSON

Chief of Counsel for the United States of America.

30 June 1945.

XIX. Draft of Agreement Presented by Soviet Delegation, July 2, 1945

DRAFT AGREEMENT Between the Governments of the U.S.S.R., U.S.A. and the UNITED KINGDOM and the Provisional Government of the FRENCH REPUBLIC on the Punishment of WAR CRIMINALS, Submitted on JULY 2, 1945 In accordance with the Moscow Declaration of October 30, 1945 [1943], concerning the responsibility of the Hitlerites for their atrocities and in accordance with other statements of the United Nations regarding the punishment of war criminals, the Governments of the Union of Soviet Socialist Republics, the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Provisional Government of the French Republic acting in the interest of all the United Nations have concluded the following Agreement:

1. To establish for the trial of major war criminals, whose crimes are not restricted to a definite locality, an International Military Tribunal the jurisdiction and activity of which shall be determined by its Statute.

2. To approve the Statute of the International Military Tribunal which forms an integral part of this Agreement.

3. To turn over to the International Military Tribunal upon its demand all the major war criminals who are under the jurisdiction of the International Military Tribunal.

4. Each of the Signatories shall separately take the necessary measures to provide for the surrender to the International Military Tribunal of the war criminals who are to be found on the territory of countries who are not parties to this Agreement.

5. To surrender, upon the demand of the Governments of any of the countries which have signed this Agreement or adhered to it, the war criminals who have committed crimes on the territories of those countries.

6. All members of the United Nations shall be invited by the Government of the United Kingdom, acting on behalf of the other Signatories hereto, to adhere to this Agreement.

Such adherence shall in each case be notified to the Government of the United Kingdom, which shall promptly inform the other parties to this Agreement.

7. This Agreement becomes valid immediately on the day of its signing.

XX. Minutes of Conference Session of

July 2, 1945

At the opening of the Conference, General Nikitchenko handed the other delegates a draft agreement embodying Soviet proposals [XIX].

SIR DAVID MAXWELL FYFE [presiding]. Gentlemen, we have the redraft of the American agreement in the form of an agreement and an annex [XVIII], and we have just received the draft of the Soviet agreement [XIX]. If it would be convenient, I shall ask Mr. Justice Jackson to say something about his redraft.

GENERAL NIKITCHENKO. With regard to the second part of the Russian proposal, we shall be able to present that in Russian today, but, if the Conference prefers to wait until tomorrow, we can also present it with the English translation.

SIR DAVID MAXWELL FYFE. Would it be convenient to hear Mr. Justice Jackson on the American draft in the meantime?

MR. JUSTICE JACKSON. We made a redraft which was a rearrangement in the form which we understood was desired of all the essential features of our plan, and I have addressed to the delegations a short memorandum which is intended to be a plea that before you abandon or reject some parts of our proposal a little more consideration be given to it.

I understand the Soviet memorandum to reject the possibility of trying organizations. The American proposal is that we utilize the conspiracy theory by which a common plan or understanding to accomplish an illegal end by any means, or to accomplish any end by illegal means, renders everyone who participated liable for the acts of every other and in connection with that to utilize these closely knit voluntary organizations as evidence of a conspiracy. That is a rough way of describing our proposal. That is the heart of our proposal. Without that it means many trials, which we are not set up to engage in. To my mind, rejection of this plan leaves nothing of our proposal as to organizations which is really worth considering. Therefore, it seems to me that we should give some consideration, before it is rejected, to its merits and to any possible alternative.

These organizations constitute the means through which, under the American proposal, a large number of people can be reached with a small number of long trials-perhaps one main trial. The difficulty

in our case is that we have in the neighborhood of perhaps 200,000 prisoners. We don't want to have 200,000 trials. Some of them perhaps ought to be tried individually on charges of individual criminal actions; but also they should be tried for their part in the planning of extermination of minorities, the aggressive warfare, the atrocities against occupied nationals, and offenses of that character. We think this should be done in a single effort so far as the collective guilt is concerned. Any other plan means moving about from place to place and in many territories, and going back, we think, substantially to the first part of the Moscow declaration rather than carrying out the second part, by which we hope to reach the principal Hitlerite planners. We see no way that we can unite in trial of these large numbers except on some basis such as we suggest, and we would be disappointed if some plan of that kind were not acceptable. If that were acceptable, the procedures by which the prosecution could be conducted, we think, could be worked out so that it would represent the best that is in our several procedures as adapted to military tribunals. We think use of the military tribunal relieves us all of trying to carry our ideas of ordinary court procedure into this trial.

We assumed from the negotiations before London that the American suggestion, including trial by conspiracy principles and the trial of organizations, was generally acceptable. We understood that there was objection by the Soviet Union to recognizing the legality of the existence of these organizations after the surrender. We are quite ready, of course, to agree that these organizations have no present legal existence, but that does not prevent effectiveness of a trial concerning their criminal character in the past when concededly they were in fact in existence, nor prevent use of membership as evidence of conspiracy. We think the objection that nothing should be done to give recognition to their present validity is a proper one that we can accede to without any impairment of our position that participating in them was a conspiracy. We would be ready to put in a provision expressly recognizing that they have been dissolved by virtue of the surrender and acts of the military government and that no recognition of their legal existence from now on is to be implied by the terms of the agreement. We are entirely willing to take up the discussion of any counterproposal, but our discussion of a counter proposal would, of course, proceed upon the basis that our draft is still before the Conference for consideration and has not been rejected. If that is so understood, we are ready to take up anybody's proposal.

PROFESSOR GROS. Actually, very divergent opinions have been expressed on the question of organizations. We studied the new American memorandum and again the Soviet objections and have endeavored to understand these divergent views, and we shall try to suggest ways to reconcile them.

First, what are the facts which we are discussing? Countless crimes have been committed by those organizations during the war-the Gestapo groups, S.S. Systematic criminal activities have been committed against the peoples of the occupied countries of which two of these delegations can speak from personal knowledge, and systematic criminal activities have been going on for years. These systematic criminal activities are no accident. The association of those groups was not accidental. These gangs in many localities were tied by one allegiance to a major organization-Gestapo, S.S., S.A., or others. If we want to reach the major war criminals, these major organizations must be our target. On that first point I cannot really see a divergence of views between the American and Soviet suggestions on the facts.

Now, as Mr. Justice Jackson said much better than I would be able to say, if we do not try these organizations as organizations, what will be the situation? I propose to suggest that it would not be satisfactory in the interest of the Four Powers nor in the interest of the United Nations to fail to try them. I submit that war criminals will not be punished merely under the declaration of Moscow or of Yalta. They should be punished even without those two declarations. They should be punished because they merit punishment of war criminals, and those two declarations are only reaffirmation of the principles of international law. But the question of application remains completely open and the declaration of Crimea, as I read it, has little significance by its own terms-"We are determined to bring all war criminals to just and swift punishment

I will insist again on those terms of the declaration. We are committed to bring all war criminals to justice, and we cannot take those words as a legal pronouncement but only as a declaration of intentions reserving all question of application.

Now that the political solution of the punishment of war criminals has been put aside and provision has been taken to punish them only after trial, we would like to have a situation before the Tribunal where the organizations would be duly exposed to the working of that plan and function and pronounced not merely "illegal" but "criminal". That could have been done by the heads of state, but, as it was not and will not be done by them, it must be done by the Tribunal. It is not enough to wipe out the Nazis from now on, but it must be proved and explained to the public opinion of many countries what has been going on in Germany and Europe for years. I don't suppose there can be any divergence of opinion in the four delegations on that second point. If we are not in accordance on the facts, we should be in accordance on that big objective. Now perhaps, if we are not in complete agreement, I will just indicate what would be the