The very breadth of the offense, however, is not in itself an argument against judicial action. It is a most important reason for a trial, for it is highly desirable that there be established and declared by actual decision, after adequate hearing and determination of the facts, the principles of international law applicable to the broad, vicious Nazi enterprise. The application of this law may be novel because the scope of the Nazi activity has been broad and ruthless without precedent. The basic principles to be applied, however, are not novel and all that is needed is a wise application of those principles on a sufficiently comprehensive scale to meet the situation. International law must develop to meet the needs of the times just as the common law has grown, not by enunciating new principles but by adapting old ones. By including within the general area of punishable international crimes the violation of compacts, there will be world judicial condemnation of depredations so great and so violent that international security cannot exist if they should be permitted to continue unchecked. The law should be supple enough to cope with the totality of the offense and though the most solid basis for prosecution under existing law relates to the violations of actual and recognized rules of war, the full offense covers so obviously areas wider than this limited field that it is natural and proper in this day and age that we must deal with those too.

V. There is Immediate Need of an Allied Executive Prosecuting and Planning Organization to Deal with the Principal War Crimes Trials and Related Problems:

1. In the trial of the Hitlerite leaders no charges which cannot be proved should be presented and the theory of prosecution should rest upon ascertainable facts. The actual trial of cases must be planned and conducted by persons familiar with the techniques of the expeditious presentation of intricate causes. Accordingly, there should be created to take charge of preparations for the major trials, an Allied executive or planning group consisting of one representative each of the United States, the Soviet Union, the British Commonwealth and France. This group should be assisted by an adequate staff of attorneys and research personnel to compile and analyze data, prepare the charges in the principal case or cases to conform to the proof and arrange the evidence for presentation to the international military tribunal.

So far as the operations of this executive group are carried out within Germany or Austria, such operations might appropriately be subject to the administrative direction of the Control Council for Germany or for Austria as the case may be.

2. The presentation of the principal case or cases before the international tribunal should be made by persons designated by the United

States, the Soviet Union, the British Commonwealth and France, each of these countries being entitled to designate one person, who might be its member of the executive group referred to in the preceding paragraph.

3. The full time executive group might also be charged with: a. the recommendation to the appropriate governmental authorities of agreements and measures supplemental to or in addition to the agreement, necessary or appropriate to accomplish its objectives, and b. the maintenance of liaison among and with the appropriate military and civil agencies, authorities and commissions of or representing any of the United Nations which are or may be charged with responsibility for any matters dealt with in the agreement.

4. Expenses-Any military or executive agreement should make suitable provision for the payment of the expenses of the prosecutions and the executive group.

VI. British Memorandum of May 28, 1945

Note: On May 22, Mr. Justice Jackson, at the direction of President Truman, left for Europe to organize the gathering of evidence through American military and other channels, to confer as to progress toward an agreement for international trials, and to discuss trial preparations with American military authorities and with the French, British, and Soviet officials who would be concerned with such trials.

Discussion with French Foreign Minister Bidault en route to Paris resulted in assurances that the Provisional Government agreed in principle with the American plan and would promptly name a representative to engage in negotiation of a definitive plan and to conduct the prosecutions. In London Lord Chancellor John Viscount Simon stated that the United Kingdom Government had become convinced of the desirability of proceeding along the general lines outlined in the American proposal. At a meeting with Attorney-General Sir David Maxwell Fyfe, Treasury Solicitor Sir Thomas Barnes, and Patrick Dean of the Foreign Office on May 28, the following memorandum of British proposals for amending the agreement as proposed by the United States at San Francisco [IV] was handed to Mr. Justice Jackson.

A call made upon Soviet Ambassador Gusev in London gave no information as to the Soviet attitude.

WAR CRIMINALS: DRAFT AGREEMENT

Paragraphs 4 and 5:

Dated 3rd May 1945

DRAFTING AMENDMENTS

Omit paragraph 4.

Substitute for paragraph 5:

"5. The United Kingdom, the United States and the Soviet Union in the Declaration issued at Moscow November 1, 1943, after providing that those responsible for atrocities, massacres and cold-blooded mass executions in occupied countries should be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be erected therein, went on to provide

"that the above declaration was without prejudice to the case of major criminals, whose offences have no particular geographical localization and who will be punished by joint decision of the Governments of the Allies.

"This Agreement is entered into in order to establish the necessary measures for bringing to justice the major criminals referred to above, their principal agents and accessories, and all other offenders who are not sent back for trial to the countries in which their atrocities and erimes were eommitted."

I [Sir David Maxwell Fyfe] have omitted the last 22 lines as many "minor" criminals will be tried at any rate by the occupying powers in Germany and not sent back.

Substitute for Paragraph 6:

"6. The parties to this Agreement agree to bring to trial, in the names of their respective peoples, the persons referred to in Article 5 for their responsibility for the following criminal acts:

a. Violation of the customs and rules of warfare.

b. Pursuing a systematic policy for the purpose of dominating Europe by a war of aggression and in the carrying out of that policy.

(1) Initiating and making attacks on other countries in violation of International Law, treaties or assurances.

(2) Resorting to war as an instrument of national policy."

Paragraph 9: "held" for "deemed".

Paragraph 12:

(a) Omit "Such notice may be actual or constructive". (b) Omit "physically present before the tribunal". Refer in (b) to right to call evidence.

Add to Article 12:

e. Participating in the formulation or execution of a common plan or enterprise, including a plan or enterprise aimed at the domination of another country, which involves the commission of any of the foregoing criminal acts.

Paragraph 14:

Make clear what is meant by "proffers of proof".

Paragraph 15 and later paragraphs:

"Inter-Allied" for "International".

Paragraph 16:

Clear up the meaning of majority when the Court consists of four. Paragraph 17:

VII. Aide-Mémoire from the United

Kingdom, June 3, 1945

AIDE-MÉMOIRE

His Majesty's Embassy are instructed to inform the State Department that His Majesty's Government have now accepted in principle the United States draft as a basis for discussion by the representatives appointed by the Allied Governments to prepare for the prosecution of war criminals.

2. His Majesty's Government suggest that in the circumstances the United States Government may now care to follow up the approach which they made to the Three Powers at San Francisco by representing to His Majesty's Government, the Soviet Government and the French Government that it is urgently necessary to reach agreement on the main principle at least of the United States draft agreement, by inviting the two latter Powers to follow the example of the United States Government and of His Majesty's Government by appointing representatives for the prosecution of these criminals. His Majesty's Government hope that the United States Government might be willing to state that for various reasons and in view of the impending return to London of Judge Jackson, London appears to be the most suitable place for further discussions, both on the draft agreement and also on the organization of the proposed prosecuting authority, the preparation of charges, and the procedure for trials, and that they understand that His Majesty's Government would be prepared to issue invitations to the Three Powers concerned accordingly. The United States Government might wish to add that in view of the importance of working out the most satisfactory procedure possible in order that the trials should serve their full purpose, it would be desirable that these discussions should be conducted by the four prosecuting counsel. (This would incidentally give point to the invitation of the French and Soviet Governments to appoint their representatives without further delay).

BRITISH EMBASSY,

WASHINGTON, D. C.,

June 3, 1945.