You make two offenses there. What I suggested was "aggression against other nations"; or "initiation of war in violation of treaties, agreements, or assurances". Mr. Justice Jackson presents his own phrase of launching a war of aggression.

MR. JUSTICE JACKSON. I don't want to stand on that. I think it would be better to say "initiating a war of aggression or initiation of war in violation of treaties, agreements, or assurances", and we had added "or otherwise in violation of international law". Going to war without a declaration is a violation and has been for many years, and we want to get all of these recognized violations in if possible; so we think we should not drop "or otherwise in violation of international law" in order to have available the repeated cases in which these people went to war without declaration, et cetera.

MR. TROYANOVSKY. Is there any difference between initiation and launching?

SIR DAVID MAXWELL FYFE. No, just a more colorful term.

GENERAL NIKITCHENKO. Is it supposed then to condemn aggression or initiation of war in general or to condemn specifically aggressions started by the Nazis in this war? If the attempt is to have a general definition, that would not be agreeable.

SIR DAVID MAXWELL FYFE. But it would be covered by the fact that the Tribunal would only be empowered to convict a person who committed the act of aggression on behalf of the European Axis powers. It would be limited. We are avoiding your difficulty by doing that. We are saying expressly that this Tribunal can only deal with the following crimes on behalf of the Axis; so it is limiting the trial as clearly as it could to those who were doing it on behalf of the Axis.

GENERAL NIKITCHENKO. If we leave it as it is in Mr. Justice Jackson's proposal, wouldn't that limit it more, that is, a person who had not acted on the part of the European Axis powers would not have committed the crime. Perhaps the translation is at fault, but, as it is, it seems to us that it refers not only to the past but to the future-so that in the future they shall be deemed criminal violations.

SIR DAVID MAXWELL FYFE. "Shall" in a document such as this is merely mandatory. In English it is obligation and not tense. We could use the present tense "are deemed and do come within powers". It is really only a legislative form.

Mr. Justice Jackson, if that point is met, don't we really meet your view?

MR. JUSTICE JACKSON. I think that takes care of that point. There are other points in connection with this. We avoided use of the word "conspiracy" in view of technical differences in the law of conspiracy in the Continental and the common-law countries and put in the words "common plan". I think you drop what is important in making the

proof if you omit joining in the common plan. It is likely to be much easier to prove that they became parties to the plan to expand Germany by force than to a plan to start a war. You will have some difficulty with that because Hitler always showed people up to the last moment that his plan would not involve war because his enemies would not fight. At the same time it was always understood that it might involve war and they were taking that chance, and I think careful words are necessary to avoid a handicap in proof.

SIR DAVID MAXWELL FYFE. Well, I cut these words out because I thought from the last captured documents I had seen that there would be no difficulty in showing the plan would involve war. This added complication for our Russian and French friends. These are legal phrases we are familiar with and they are not. The simpler form I like better. Will you forgive me if I leave? I must go and learn my fate at the polls. Sir Thomas will carry on.

SIR THOMAS BARNES. Do you attach great importance to those words?

MR. JUSTICE JACKSON. I don't attach great importance, and it has no more meaning to us than it has to anyone else.

GENERAL NIKITCHENKO. It has no real importance. It is hardly likely we could settle this on the spot. Perhaps, if Mr. Justice Jackson would find it possible to put his suggestion in writing as to alterations of this text, it could be taken as a basis for discussion.

SIR THOMAS BARNES. Would the best thing be for us of the drafting committee to prepare a document now along the lines of the compromise which we have suggested? In collaboration with our colleagues we shall consider documents which were circulated some time ago. In redrafting we shall bear in mind the discussion which has taken place this afternoon. We shall circulate that, and you can consider it.

GENERAL NIKITCHENKO. We cannot recommend that. We are afraid that, if the text turns out to be too new, we would go back to where we were before.

SIR THOMAS BARNES. We shall do our best to maintain our whole text as we have in this discussion. We have taken the compromise from both. We hope it won't be too far away.

Well then, does Mr. Justice Jackson object to the last paragraph of the Soviet draft--the question of responsibility?

MR. JUSTICE JACKSON. No, not if the common plan is clear. SIR THOMAS BARNES. The whole purpose of this, as I understand it, is to place personal responsibility on the major war criminals for all the criminal acts which have been committed by the armed forces, civilians, and otherwise, and I thought it a useful thing to put in. Whether we have got to the actual phraseology I do not know. Then we agree that that or something of that sort goes in. Then we come

to the definition of aggression, which is a rather difficult one. What do you feel about it?

MR. TROYANOVSKY. The last draft of the Americans on definition of aggression

SIR THOMAS BARNES. Shall we put the last American draft defining aggression into the new draft for consideration? I should like myself to put it in and so would the Attorney-General.

GENERAL NIKITCHENKO. We have already had occasion to state our opinion, and we still think that it is outside of the competence of this committee and that it would not be any help at the trial.

JUDGE FALCO. I think it is also outside of consideration. I thought we agreed to take that proposed by the Soviet Delegation. If we take a new point, I am afraid we would be delayed.

GENERAL NIKITCHENKO. If we start discussion on that again, I am afraid the war criminals would die of old age.

SIR THOMAS BARNES. What would you like to do about that, Mr. Justice Jackson? Would you like to reconsider it?

MR. JUSTICE JACKSON. As I have said before, the thing concerns chiefly the European powers. I think nothing would be more unfortunate in relations with the United States than for us to get into the causes of war, and the risks are not mine but yours. I will not commit the United States to litigating the causes of the war. Maybe you will have judges who without such provision would rule such matter out, but, if I were sitting and you objected to their political or economic justification, I would say you were drawing the agreement. If you thought it an illegal defense, why did you not say so? GENERAL NIKITCHENKO. The judges perhaps would be experienced enough to consider that as irrelevant.

SIR THOMAS BARNES. This may put into the minds of the defense some arguments which otherwise would not occur to them.

GENERAL NIKITCHENKO. Yes, the defendants might very well make use of that paragraph by saying that they were acting in legitimate self-defense.

MR. JUSTICE JACKSON. That has been their position for a long time in propaganda in my country, and I don't think it will suggest anything to them that is new.

SIR THOMAS BARNES. Well, shall we have a redraft? We will go ahead and see what we can do.

The Conference adjourned until July 27, 1945.1

1 Because of Mr. Justice Jackson's absence in Potsdam and the change in the British Government, the Conference did not reconvene until Aug. 2, 1945.

LII. Revised Definition of "Crimes", Prepared by British Delegation and Accepted by French Delegation, July 28, 1945

Note: On July 26, 1945, Mr. Justice Jackson flew to Potsdam, where a conference of heads of state was in session, for consultation with Secretary of State Byrnes concerning the progress and prospects of the London Conference and its relation to questions that had arisen at Potsdam. While he was at Potsdam, the results of the British elections were announced. The Churchill government, in which Sir David Maxwell Fyfe was Attorney-General, was superseded. This foreshadowed changes in the British representation at the London Conference. Upon his return to London on July 28, 1945, Mr. Justice Jackson resumed informal conferences with Sir Thomas Barnes, Treasury-Solicitor, whose position would not be affected by the change of government. Sir Thomas delivered the following revised definition of "crimes", prepared by him, with the explanation that he had obtained French acceptance of it but that the Soviet Delegation had rejected it. The definition was as follows:

26th July, 1945.

4 p. m.

For the purpose of the trials before the Tribunal established by the Agreement referred to in Article 1 hereof, the following acts or designs or attempts at any of them shall be deemed to be crimes. coming within the jurisdiction of the Tribunal:

(a) Violations of the laws, rules and customs of war. Such violations shall include but shall not be limited to murder and illtreatment of prisoners of war, atrocities against civilian populations of occupied countries and the deportation of such populations to slave labour, wanton destruction of towns and villages, and plunder.

(b) Atrocities against civilian populations other than those referred to in paragraph (a). These include but are not limited to murder and ill-treatment of civilians and deportations of civilians to slave labour and persecution on political, racial or religious grounds committed in pursuance of the common plan or conspiracy referred to in paragraph (d) below.

(c) Initiation of war of aggression against other nations, or initia

tion of war in violation of treaties, agreements or assurances or otherwise in violation of international law.

(d) Entering into a common plan or conspiracy aimed at domination over other nations, which plan or conspiracy involved or was reasonably likely to involve in its execution all or any of the above crimes.

Any person who is proved to have in any capacity directed or participated in the initiation of war or in the said plan or conspiracy referred to in paragraphs (c) and (d) hereof shall be personally answerable for each and every violation or atrocity referred to in paragraphs (a) or (b) above committed in furtherance of such war as aforesaid, or in pursuance of the said plan or conspiracy.