of an organization should not be subjected to punishment as soon as his connection has been discovered, and that as and when such individuals are found they must nevertheless be given an opportunity to bring forth a defense, and the punishment to be meted out to them will be according to the part taken. MR. JUSTICE JACKSON. I think we all agree. By Mr. Nikitchenko's reference to the conditions of paragraph 5 of our memorandum, I do not take it that he objects to including a statement of the acts which are considered criminal violations of international law, but it is a matter of draftsmanship as to the place it should go in the agreement. GENERAL NIKITCHENKO. No doubt at a later meeting we will be discussing the draft of this paragraph, but as to including such a paragraph in the document the Soviet Delegation has no objection whatsoever. This article must, in fact, become the point of international law on which the guilt of individuals or of organizations will eventually be based. MR. JUSTICE JACKSON. We agree. SIR DAVID MAXWELL FYFE. Would it be convenient to break off at this point? I would like to say how pleased I am that we have been able to reach an agreement on a great many points at this sitting. The Conference adjourned. XXI. Minutes of Conference Session of July 3, 1945 MR. ROBERTS [presiding]. Perhaps I might say that the AttorneyGeneral is sorry he cannot be here. He is in Liverpool electioneering until tomorrow evening. There are now before the Conference the Russian statute, which has not been discussed, and the American annex, which has not been discussed. Perhaps it would be convenient first for Mr. Justice Jackson to discuss the questions of principle arising on his document with reference, perhaps, to the Russian document [XIX]. MR. JUSTICE JACKSON. Mainly, I would like to be sure that we understand what some of the provisions of the Soviet draft contemplate. For example, paragraph 3 requires a turnover to the Tribunal upon its demand of all major war criminals. I do not quite understand how the Tribunal could be in a position to receive custody or take care of prisoners, and I was wondering what kind of organization for that purpose is contemplated. GENERAL NIKITCHENKO. In this draft agreement only the principal question is provided for, that is, that the criminals should be turned over. As to how they are to be kept under custody or otherwise would be established by the Tribunal itself with the Control Council. The fact is the Control Council for Germany has sufficient apparatus and facilities for keeping the necessary prisoners under guard. MR. JUSTICE JACKSON. Where does it have the facilities? MR. TROYANOVSKY. Do you mean the right, or the facilities? GENERAL NIKITCHENKO. The Control Council, being the supreme authority in Germany, would naturally have such facilities for placing custody guards, et cetera, especially since the permanent residence of the Tribunal is to be in Berlin, or may be in Berlin. Thus it would act in direct contact with the Control Council. If the prisoners should be on the territory of some other country than Germany, they would be kept in the custody of that governmentof the government of that country-and turned over for the trial. MR. ROBERTS. Do you mean any more than to provide that these criminals should be made available to the Tribunal? GENERAL NIKITCHENKO. In the opinion of the Soviet Delegation, criminals should be at the demand of the Tribunal, placed under its control. As for the technical consideration as to how that should be done GENERAL DONOVAN. But the Tribunal is a court and not a prison. The general forces are taking care of them now. If the court gets them when it calls for them, that should be enough. GENERAL NIKITCHENKO. The question is that the Tribunal might have the ability to try those criminals, that they should be available for the trial. GENERAL DONOVAN. Then the Soviet Delegation would be satisfied if on the day of trial the prisoner should be produced by the signatory that has that prisoner in custody and be made available during the period of the trial. Isn't that all you want! GENERAL NIKITCHENKO. Yes, that is right. GENERAL DONOVAN. To be sure we all understand, it is not pressed that the Tribunal should get control and custody of these prisoners but simply have them available when called for trial. PROFESSOR TRAININ. The main principle touched upon here is that prisoners should be available for trial. MR. JUSTICE JACKSON. And for sentence-to serve any sentence. GENERAL NIKITCHENKO. That is right. This article is set forth here in order to avoid a situation under which a tribunal might decide upon the recommendation of the investigation commission to try some criminal, and that criminal would not be made available by the signatory which has him in custody. To avoid that, this article is put into the agreement. MR. ROBERTS. It is merely a question of drafting, isn't it? The question being— GENERAL NIKITCHENKO. No, the signatory, the government concerned, should make available to the Tribunal anyone whom the Tribunal wants to try, anyone that government has in its hands. MR. ROBERTS. It really is the Chiefs of Counsel who want him tried and not the Tribunal. GENERAL DONOVAN. No, because the Chiefs of Counsel are in charge of the trial and not the Tribunal. That is a basic principle. MR. JUSTICE JACKSON. In the fifth paragraph of the same instrument reference is made to the surrender, upon the demand of any of the governments, of war criminals who have committed crimes on the territories of those countries. As I explained yesterday, what we have tried to do is to reserve that question for settlement by our governments and to provide that nothing we do prejudices or controls that arrangement. I would not be in a position to make a flat agreement that anyone demanded should be turned over, nor would I be in a position to negotiate about the questions which may be involved in turnovers since I am confined in my authority to the international case. GENERAL NIKITCHENKO. When the Soviet Delegation put this paragraph in the agreement, it based its reasoning on the fact that the working out of this is involved in the procedure on responsibility for criminals. In Mr. Justice Jackson's first draft of the agreement, [IV] it is stated that this agreement is worked out in accordance with the Moscow declaration and the part about the turning over of the criminals is quoted. In the second American draft of the agreement [XVIII], paragraph 3, it is stated that the signatories agree that the Control Council in Germany shall establish the principles and procedures governing the return of prisoners in Germany, et cetera. GENERAL DONOVAN. Would it meet the wishes of the Soviet Delegation if there were a recital that the signatories would arrange policies and procedure for that? GENERAL NIKITCHENKO. But recognizing the principle of surrender? GENERAL DONOVAN. That is right. GENERAL NIKITCHENKO. The principle of the surrender of criminal has already been established in the Moscow declaration, and the Soviet Delegation, in the execution and carrying out of this principle and taking into consideration the fact that the American Delegation also decided it necessary to mention it, decided to put that point in the agreement as an obligation for the signatories to turn over the prisoners. As for the procedure, that of course could be established later. This paragraph does not in itself establish the procedure. The procedure should be established by the governments themselves. JUDGE FALCO. [Not translated.] GENERAL DONOVAN. So your position is, Mr. Falco, that the major criminals in the custody of the major signatories would be turned over for trial but not for surrender, and, in the case of those not major criminals, policies and procedures would be set up to turn over and surrender them. SIR THOMAS BARNES. But why put that in this? GENERAL NIKITCHENKO. The investigation commission, or the Tribunal, however it may work out, would have to decide who are the major criminals and who are not. Therefore, in any case, it would have to do with the question of minor criminals, of criminals who are not major criminals, and it would seem to us natural to put that point in the agreement as was stated in the American draft, but we think that it is not necessary to restrict those prisoners only to those prisoners who are in Germany but state the principle of surrender as applied to all prisoners. MR. ROBERTS. I should prefer it if this paragraph were struck out because this agreement only deals with major war criminals. It seems covered by article 3, under which we have all undertaken to make available for trial major war criminals. PROFESSOR TRAININ. These two problems of major and minor criminals are, after all, closely related, and this relationship was set forth in a correct manner in the American revised draft agreement as well as in the first draft of the agreement [IX] in article 21, where it is stated that the person charged with responsibility, et cetera, should be turned over to the occupation courts. Of course, here we should not concern ourselves with the activities of the occupation courts, but the point of surrender should be set forth in order to set out more fully the provisions of the Moscow declaration. MR. JUSTICE JACKSON. The purpose of paragraph 26 of our annex and of the predecessor clauses in the previous draft is not to determine what shall be done about it but to reserve it so as to be clear we were not prejudicing the right of the Control Council to set up procedures governing the minor criminals. In other words, it is a reservation rather than a provision governing procedures. Shall we regard it as acceptable if we reserve the question in some manner for the governments to establish, making clear that we are not interfering in this agreement with the declaration of Moscow? GENERAL NIKITCHENKO. The right of national tribunals to try prisoners in their custody has not been infringed upon; so there would be no necessity to make a reservation on that point. But since we are drafting this agreement in accordance with the Moscow declaration, the principle of the Moscow declaration concerning the surrender of prisoners should be set forth-the principle itself. MR. JUSTICE JACKSON. Since it has been already set forth, do we need to repeat the Moscow declaration here? And doesn't the provision of the agreement as submitted by the Soviet Delegation go further than the Moscow declaration? In other words, here is the provision which says that, upon the mere demand of any government that it wants to try somebody, we must turn him over even though we may desire to try him. That, to my mind, would put us in the position where, if we want to try a person and any other government is demanding him, we might be charged with bad faith, and we do not want to make any commitments that we may not live up to. I would have no authority to commit my Government to a thing of that kind. GENERAL NIKITCHENKO. The question of the drafting of this provision might, of course, be set later, but in principle it reflects the first paragraph of the first amendment draft, in which it is stated that the German officers and members of the Nazi party who are responsible for atrocities, et cetera, would be sent back to the countries in which |