would have to submit to the decision of the majority. If, on the other hand, the vote is two to two, if the person is turned over to the Tribunal, he may be tried. In any case we would avoid the case of some criminal being passed over.

SIR DAVID MAXWELL FYFE. We are all agreed on that point. It seems to me the real point of difference between us is in the last words of Mr. Justice Jackson's suggested draft, "introduce any evidence which in his judgment has probative value relevant to the issues raised by the charges being tried." Suppose we applied the same principle to that. Wouldn't that give us the compromise in case anyone wished to introduce any evidence which in his judgment was of probative value? That would only be rejected if there were a three to one vote against it. The introducer would be entitled to add the evidence unless three of his colleagues were against it. We could introduce that and leave what we have agreed on (b) and the rest of 15 as it is. Would not that meet us all?

GENERAL NIKITCHENKO. Point (a) of the second part of article 15 [XXV], in which it is said that "investigation and collection" is part of the individual work of the Chief Prosecutors-in this respect there is no need for a majority vote really. But the question of whether a person concerning whom the prosecutor had collected evidence would be turned over to the Tribunal or not would be decided by the whole committee. Once a person has been designated for trial as a war criminal, each of the Chief Prosecutors is free to collect what he thinks fit for the trial of that person.

SIR DAVID MAXWELL FYFE. That seems to me to solve the difficulty of coordination. If it is understood that each individual is free, then we are really attacking an empty position in being worried about "coordination". We will let (i), (ii), and (iii) go, but if we have the wording we had for (a) "to make a general plan for the carrying out of any trial or trials" [XXXVIII], I do not think there is any difference between that and coordination of individual plan for prosecutors. There is no difference in ideas but just in words. To make or to agree upon a plan between the individual prosecutors as in (a) then-in view of what General Nikitchenko has said in 15 (2) (a), I do not think there is any real difference between us-to agree upon a plan of individual work or plan between the individual prosecutors. GENERAL NIKITCHENKO. That is acceptable.

SIR DAVID MAXWELL FYFE. To agree upon a plan of each. Then (b) is altered as in the new draft [XXXVIII]. We leave (c), (d), and (e) as they are and put in the committee, which act in all the above matters except (b) by a majority vote.

GENERAL NIKITCHENKO. In regard to (b), the rule should be by majority or unanimous vote. "If there is a division of votes concern

ing the designation of the defendants to be tried by the Tribunal, that proposal would be adopted which had been made by the party proposing the prosecution." We could leave the last paragraph that comes after (e) and just add this in reference to point (b).

MR. JUSTICE JACKSON. All that I care to be free about is the people we have in our possession. I don't care to prevent the other parties who want to try other people. We have these people and must soon release them or try them.

SIR DAVID MAXWELL FYFE. I think you are in the favorable position there. You have so many prisoners that this proposal is bound to clear your books.

MR. JUSTICE JACKSON. I wonder about the language which was being used here

SIR DAVID MAXWELL FYFE. We suggest this wording: "If there is a division of vote concerning the designation of defendants to be tried by the Tribunal, that proposal will be adopted which was made by the party proposing the prosecution."

The only point then that still remains is to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff. General Nikitchenko said that that implies that under 15 (2) (a), “Investigation and collection of all necessary evidence", each prosecutor can add the evidence. Mr. Justice Jackson raises the difficulty that that does not say "and offer at the trial". Couldn't we put into (2) (a) "investigation and collection and preparation for offering at the trial of all the necessary evidence"? Then there is no question of its having to be referred back to the four prosecutors as to when it comes in. He puts it in on his own responsibility.

GENERAL NIKITCHENKO. Isn't it clear that if they investigate and collect the evidence all that is done as preparation for the offering of that evidence at the trial?

SIR DAVID MAXWELL FYFE. It is, but the point that is worrying Mr. Justice Jackson is this: Suppose he has collected what he thinks is an effective piece of evidence. He doesn't want it to go back to the four prosecutors and have long discussions before he can use it. The four agree on the plan, and he works out his own way of carrying it out. MR. JUSTICE JACKSON. I should use "and offer at the trial" instead of "preparation and offer".

GENERAL NIKITCHENKO. Apparently we don't quite understand each other. Perhaps we mean the same thing. The Tribunal naturally cannot try the case of any defendant about whom no evidence has been collected beforehand. Perhaps it is wrong, but I understand Mr. Justice Jackson to mean that after the trial has started one of the Chief Prosecutors would be able to submit evidence which would enable the Tribunal to try additional persons?!

SIR DAVID MAXWELL FYFE. No.

MR. JUSTICE JACKSON. No. The persons would be put on trial by the vote of the majority or of the proposer in case of a two to two vote, but under your system, if we did not have a piece of evidence in the indictment, we could not offer it. Under our system, if we did not have a certain piece of evidence in the indictment we could offer it nevertheless at the trial. We will have evidence in the form of documents which will not be translated and ready to put in the indictment, but it could be offered at the trial. That is, I don't want to be spending thousands of dollars on getting evidence which cannot be presented at the trial if some other system of law should prevail by having two votes.

SIR DAVID MAXWELL FYFE. I should have thought we could put it, "investigation and collection for production at the trial of all necessary evidence".

GENERAL NIKITCHENKO. The real point of paragraph (a) refers to collection of evidence before the trial starts, but we have another paragraph in article 24, paragraph (d), which provides that the prosecution may after the trial starts apply to the Tribunal for permission to submit any other evidence. This paragraph (d) of 24 gives the right to the prosecutors to submit additional evidence.

SIR DAVID MAXWELL FYFE. I don't think our minds are still really on the same point. The one Mr. Justice Jackson wants is this: Suppose he collects a piece of evidence. Whether it be in time for the indictment, or after the indictment, he should be entitled to put it to the Tribunal. Now, he does not want the other Chiefs of Counsel to have the right not to allow him to put that piece of evidence if they are equally divided. That would be covered if we put in "investigation and collection". There is no intention of bringing in new defendants. It is only to give the prosecutors opportunity to produce their own evidence.

GENERAL NIKITCHENKO. If we phrase it that way, would it not imply they should collect evidence for production only at the trial itself? If there is a provision that evidence should also be collectedonly for production at the trial—the obligation for collecting evidence before the trial would drop.

SIR DAVID MAXWELL FYFE. Before or at the trial. I quite agree. MR. JUSTICE JACKSON. The point is that the American people will not recognize as a trial a trial at which no evidence is produced in open court. There is no use of our going ahead with a trial that our people will not recognize as a fair trial. I can't do that. I am perfectly willing to go as far as we can in making this case complete in the indictment, presenting all that is available, but, if you present all the case in the indictment and have to stop at that point, then there will

be 30 days or so to enable these defendants to prepare for trial-three weeks at least, I should say. During that period we might find the most important evidence. You would be amazed at the documents we keep turning up all the time in Germany. There is a lot buried in your territory, the territory occupied by Russia, that we haven't seen yet. I think we ought to get an indictment filed against these people and make as much of a case in it as we can, but I think we should reserve the right to use at the trial as much evidence as we can get up to the time of trial. I cannot go beyond that point.

SIR DAVID MAXWELL FYFE. That is why I thought we would meet both points if we used the words "and production before or at the trial". If the evidence turns up in time for the indictment, it will be used to draft the indictment; if it turns up between the indictment and trial, it will be used at the trial.

GENERAL NIKITCHENKO. In the Soviet system it is very often practiced that evidence is produced at the trial, new evidence that has not been produced before, and the French system apparently also.

JUDGE FALCO. Evidence yes, but not a new judge.

SIR DAVID MAXWELL FYFE. I think we are agreed then on article 15, and it remains to perfect its drafting.

The Conference adjourned until July 22, 1945.

XLIII. Redraft of Definition of "Crimes", Submitted by Soviet Delegation, July 23, 1945

DRAFT ARTICLE 6 OF THE CHARTER
(As proposed by the Soviet Delegation)

The Tribunal shall have power to try any person who has in any capacity whatever directed or participated in the preparation or conduct of any or all of the following acts, designs or attempts namely:

a) Aggression against or domination over other nations carried out by the European Axis in violation of the principles of international law and treaties;

b) Atrocities against the civilian population including murder and ill-treatment of civilians, the deportation of civilians to slave labour and other violations of the laws and customs of warfare;

c) Waging war in a manner contrary to the laws and customs of warfare including murder and ill-treatment of prisoners of war, wanton destruction of towns and villages, plunder and other criminal acts;

and who is therefore personally answerable for the violation of international law, of the laws of humanity and of the dictates of the public conscience, committed in the course of carrying out the said acts, designs or attempts by the forces and authorities whether armed, civilian or otherwise, in the service of any of the European Axis Powers.