MR. JUSTICE JACKSON. At considerable length-but I did not think we had met it squarely. However, I will look it over further. I don't want to leave any points that are arguable. SIR DAVID MAXWELL FYFE. We all intended to meet your difficulties on that fairly and squarely and thought we had in the alteration of 15. GENERAL NIKITCHENKO. We suggested that we divide article 15 into two parts. SIR DAVID MAXWELL FYFE. A separate article on what prosecutors can do individually-We shall try and have the amendments tomorrow by eleven o'clock and meet at two-thirty. The drafting committee is waiting on the heads of counsel. We meet tomorrow on the question of masters. MR. JUSTICE JACKSON. I think we should accept the committee's draft on it because it is clear that, if you have in the draft that you may appoint special masters and then leave it out, it is always open to the people who do not want masters appointed to say that it was in and later taken out and hence the power was withheld. I think it should be quite clear. In my entire lifetime we couldn't get all the evidence in this case if we did not use special masters. SIR DAVID MAXWELL FYFE. That point, quite frankly, is not one on which I have any great feeling. I suggested the alteration to Professor Trainin's draft which I thought would meet it, but might I make this appeal to the Conference? If, apart from article 6— which obviously is on a different plane because there we are discussing the law which we are going to create-if Mr. Justice Jackson could waive his difficulties as much as possible on 15 and 16, we would accept that, and I would make an equal appeal to General Nikitchenko to accept the intermediate on 17. I think then we could abide by the decision. I suggest that the delegations consider that point. I am most anxious to come to agreement this week and ask that both consider it in that light. GENERAL NIKITCHENKO. I share your hopes to wind up our work this week. The conference adjourned. XLVIII. Redraft of Definition of "Crimes", Submitted by Soviet Delegation, July 25, 1945 July 25, 1945. The following acts, designs or attempts at any of them shall be deemed crimes and shall come within the jurisdiction of the Tribunal: 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 murder and illtreatment of civilians and deportation of civilians to slave labour, and persecutions on racial or religious grounds 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 murder and ill-treatment of prisoners of war, atrocities, 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 above-mentioned acts 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. XLIX. Redraft of Definition of "Crimes", Submitted by American Delegation, July 25, 1945 DEFINITION OF CRIMES PROPOSED BY July 25, 1945 6. The following acts shall be deemed criminal violations of International Law, and the Tribunal shall have power and jurisdiction to convict any person who committed any of them on the part of the European Axis powers. (a) Violation of the laws, rules or customs of war. These include but are not limited to murder or ill-treatment of prisoners of war; atrocities against and violence towards civilian populations of conquered or occupied countries; deportation of civilians for slave labor; plunder or spoliation. (b) Persecutions, exterminations, or deportations on political, racial or religious grounds, whether or not in violation of domestic law of the country where perpetrated, when in pursuance of a common plan, enterprise or policy to prepare for or wage a war of aggression. (c) Invasion, attack or initiation of war against another state in breach of treaties, agreements or assurances, or otherwise in violation of International Law. (d) Launching a war of aggression. (e) Entering into a common plan or enterprise aimed at subjugation of other nations, which plan or enterprise did involve or was reasonably likely to involve in its execution any of the foregoing acts or a combination of such acts with lawful ones. No political, military, economic or other consideration may serve as an excuse or justification for any such action. Exercise of the right of legitimate self-defense, that is to say, resistance to armed invasion or attack, or action to assist a State which has been subjected to armed invasion or attack, shall not constitute a war of aggression. L. Proposed Definition of "Aggression", SUGGESTED TEXT FOR CONSIDERATION AS AN ADDITION TO ARTICLE 6 An aggressor, for the purposes of this article, means that state which is first to commit any of the following actions: 1. Declaration of war upon another State. 2. Invasion by its armed forces, with or without a declaration of war, of the territory of another State. 3. Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State. No political, military, economic or other considerations may serve as an excuse or justification for such actions, but exercise of the right of legitimate self-defense, that is to say, resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not constitute a war of aggression. LI. Minutes of Conference Session of SIR DAVID MAXWELL FYFE [presiding]. The drafts of the Soviet Union [XLVIII] and the United States [XLIX] on article 6 have not got together so well. Since we have gone over it in detail, there is really one point of supreme importance in the American draft, obviously important to them, which is the main stumbling block to agreement. That is (e)-the question of the common plan. As I understand the American draft, that is the vital point in it which is not included in that form in our draft. I would like the delegations to concentrate on that point first. Is that fair, Mr. Justice Jackson? MR. JUSTICE JACKSON. Well, that and our (d)-launching a war of aggression, and, of course, the corollary to it, which is limiting wars of aggression, as I have proposed in a short draft [L], so as to rule out economic justification—which I think is quite important. SIR DAVID MAXWELL FYFE. Could we deal with the common plan or enterprise first? It seems to me the other points will be dealt with by drafting, but I think that is a point on which we ought to see whether there is any difference in principle as to its inclusion before we go on to the other points. If Mr. Justice Jackson would be good enough just to explain the mission of that point MR. JUSTICE JACKSON. Well, we think it would be basic to our plan of conducting the case and basic to our interest in the case that the planning, whipping up, and carrying through of this plan of aggression against other nations be proved and judged as criminal. I think we have discussed it until I am quite sure there can be no misunderstanding of its importance to our plan of the case. I don't know that I can add very much more to it. SIR DAVID MAXWELL FYFE. Mr. Justice Jackson, just to clarify the discussion, could your point be fairly put this way: that you want the entering into the plan to be made a substantive crime? MR. JUSTICE JACKSON. Yes. The knowing incitement and planning is as criminal as the execution. SIR DAVID MAXWELL FYFE. I think that, if we dealt with that point to see whether there is any difference between us, it would be helpful. PROFESSOR GROS. It does quite agree with the views of Mr. Justice Jackson and the language of the other draft covering the question when to say, "to have directed or participated in the preparation". We could have said "planning"-that was the intention of the French |