wise alter the sentences but may not increase the severity thereof. If the Control Council, after any Defendant has been convicted and sentenced, discovers fresh evidence which, in its opinion, would found a fresh charge against him, the Council shall report accordingly to the Committee established under Article 15 of this Charter, for such action as they may consider proper, having regard to the interests of justice. EXPENSES

Article 30.

The expenses of the Tribunal and of the Trials shall be charged by the Signatories against the funds allotted for maintenance of the Control Council.

XLVI. Redraft of Soviet Definition of "Crimes" (Article 6), Submitted by British Delegation, July 23, 1945

23rd July 1945

9.45

The following acts or designs or attempts at any of them shall be deemed crimes on conviction of which punishment may be imposed by the Tribunal upon any person who is proved to have in any capacity whatever directed or participated in the preparation or planning for or carrying out of any or all of such acts designs or attempts: (a) Aggression against or domination over other nations carried out by the European Axis Powers in violation of treaties, agreements and assurances

(b) Atrocities against civilian populations including (inter alia) murder and ill-treatment of civilians and deportation of civilians to slave labour, and persecutions on racial or religious grounds where such persecutions were inflicted in pursuance of the aggression or domination referred to in paragraph (a) above (c) Violations of the laws rules and customs of war. Such violations shall include (inter alia) murder and ill-treatment of prisoners of war, the atrocities referred to in paragraph (b) above when committed against the civilian populations of conquered or occupied countries, the wanton destruction of towns and villages, and plunder.

Any person who is proved to have in any capacity whatever directed or participated in the preparation for or carrying out of any of the acts designs or attempts referred to in (a) (b) and (c) above shall be personally answerable therefor and for each and every 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 or any of them by the forces and authorities whether armed civilian or otherwise in the service of any of the European Axis Powers.

XLVII. Minutes of Conference Session of July 24, 1945

The Conference was called to order by the Attorney-General and at once took up the redraft submitted by the British of article 6 [XLVI].

PROFESSOR GROS. I have nothing to say on the material. It seems to me everything has been discussed. Now, as to drafting, naturally it is a question of general approach to the problem of drafting for an international conference. I don't know whether, when you put in for example, "murder and ill-treatment of civilians" it helps the difficulty. The fact that you are obliged to say "including (inter alia)" proves that it is only an illustration, and it makes the text a little heavy. But it is only a question of drafting. I do accept it with one or two verbal amendments.

I have one remark on (b), where we appear as wanting to prosecute because of racial or religious treatments only because they were connected with the war. I know it was very clearly explained at the last session by Mr. Justice Jackson that we are in fact prosecuting those crimes only for that reason, but for the last century there have been many interventions for humanitarian reasons. All countries have interfered in affairs of other countries to defend minorities who were being persecuted. Perhaps it is only a question of wordingperhaps if we could avoid to appear as making the principle that those interventions are only justified because of the connection with ag gressive war, it would not change your intention, Mr. Justice Jackson, and it would not be so exclusive of the other intervention that has taken place in the last century.

GENERAL NIKITCHENKO. The Soviet Delegation considers that in general this proposal of article 6 is quite acceptable. It takes into consideration views expressed by Mr. Justice Jackson that we should state such and such actions are considered crimes, and that at the same time in the end it gives a certain amount of prominence to individual responsibility and the responsibility not only of the persons who had carried out the crimes but also of the persons who had participated in those crimes. Of course there may be some alterations of drafting, as for instance in the first paragraph, where it is stated that "on conviction of which punishment may be" inflicted upon any

person who has been proved, et cetera, while at the end practically the same is repeated, "any person ". Perhaps it would be

better to cross it out in the first paragraph and just leave it as it is in the end. If we come to the question of drafting, then perhaps we could make some suggestions on that score.

MR. JUSTICE JACKSON. Well, I have not had the time that I would like to give to studying a thing that is as technical as this. We are trying to embody a great deal in a very small space, and accuracy is quite essential. Of course it leaves out entirely our (b) as it was reported by the drafting committee [XXV]. And it does seem to me that it leaves it very doubtful, at least arguable, whether we have included the "common plan" or "enterprise" idea. I think probably it was the intention to do so, but I think it makes it more doubtful than it ought to be.

In paragraph (a) it seems to me that the words "carried out by the European Axis Powers" should come out of the definition because, as I said yesterday, if it is a crime for Germany to do this, it would be a crime for the United States to do it. I don't think we can define crimes to be such because of the particular parties who committed the acts, but for the purpose of meeting General Nikitchenko's suggestion that we are only supposed to deal with the Axis powers, we could in the opening paragraph state that this Tribunal has jurisdiction only over those who carried out these crimes on behalf of the Axis powers so that we could keep the idea of a limitation, but not in the definition. Other than that I should like to reserve comment until I have studied it a little further.

SIR DAVID MAXWELL FYFE. With regard to Professor Gros' point about the prosecution on racial and religious grounds, I thought that this was the general view that we had accepted yesterday, that they were to be limited to those carried out in pursuance of aggression and domination mentioned in point (a). The heads of delegations remember that I took the contrast between a Nazi chastising a Jew before the war and the systematic persecution of the Jews in order to carry out the Nazi plan, and that is the sort of contrast that I tried to get in the draft, but I am very pleased to consider any improvement.

PROFESSOR GROS. I think that it puts on us an obligation to prove that those persecutions were inflicted in pursuit of aggression and that is a difficult burden because, even in the Nazi plan against the Jews, there is no apparent aggression against other nations. Paragraph (a) speaks of aggression over other nations; so it would be easy for German counsel to submit to the court that the Nazis' plan against the Jews is a purely internal matter without any relation whatsoever to aggression as the text stands.

SIR DAVID MAXWELL FYFE. From what I have heard I think we shall

be able to prove that. Take the anti-Jewish measures as an example. The anti-Jewish measures were a result of the orders of the Nazi leaders and not only the Nazi leaders but the Nazi government. It will not be very difficult for anyone to associate them with the general plan of aggression, but if Professor Gros will consider that point and suggest an improvement in the words I should be pleased to consider it. With regard to what General Nikitchenko said, I would be grateful for his general agreement and would appreciate suggestions. With regard to Mr. Justice Jackson's point, I had hoped that the "common plan" which was in the old 6 (d) was covered by the words "who is proved to have in any capacity whatever directed or participated in the preparation or planning for or carrying out of any acts," and then in the last half of the last paragraph, which is Professor Gros' words-and to be responsible "for each and every violation of international law", et cetera, committed by the Axis powers. That means that, if anyone is shown to have participated in a plan to do (a), (b), or (c), or any of them, he is responsible for all acts in carrying it out. I hoped it had got the "common plan" idea adapted to this form.

With regard to the second point, I think the answer to Mr. Justice Jackson's anxiety is the Moscow declaration. And so long as we make clear that we are following the heads of state at Moscow, then I think it only a matter of words as to how we put it in. I think we should make it clear that we are carrying that out as given us by the heads of three states and in which the French are good enough to collaborate. Now what is the best step for dealing with this?

MR. JUSTICE JACKSON. Well, I am willing to do most anything. We are still at several points of difference. If we are within drafting distance of each other, perhaps the next step is drafting. I would like to point out, on this common plan or enterprise, what I think is substantial difference between the American draft and your redraft. And with characteristic stubbornness I submit that ours is superior, if I may do so without offense. Under your draft, the last paragraph, any person who is proved to have participated in any capacity whatever in the carrying out of any of these acts shall be personally answerable therefor. Now that literally reaches millions of people whom our definition wasn't intended to reach. That would reach the private soldier who had no choice but to go where he was ordered; it would reach the farmer who may have accepted some slave labor on his farm at the height of the harvest; it would reach a great many people of that kind. If you notice, the emphasis in the American (d) is not that he did something that helped the government but that he entered in a common plan or enterprise aimed at these forbidden acts. Now that to my mind was the crime to reach. I think the difference