nomenclature that comes from his book, and instead of calling it "crime of war", call it "crime against peace". I myself prefer to keep the nomenclature but to substitute for the "crime of war" the "crime against peace". GENERAL NIKITCHENKO. We have no objections to that. Take out the word "any" and the reference to the general treaty. LORD CHANCELLOR. That is all right with me. MR. JUSTICE JACKSON. I don't think that is very serious impairment of the definition. LORD CHANCELLOR. Then let us take (b). GENERAL NIKITCHENKO. In this paragraph the words "but not be limited to" in our translation are very strange. I think they should be dropped and we should add "or deportation". MR. JUSTICE JACKSON. The difficulty is in our rules for interpretation of statutes, and you will have at least one judge on the Tribunal who is accustomed to that interpretation. If you name a general category and then go on to specify, you are limited to your specifications. I would be quite willing to have it in translation in any way it makes sense to you, but I think it is quite important that you do make clear that the specifications are not the only things that you are reaching, because some of these crimes are quite unique and are not covered perhaps by general definition. Now, the deportation to slave labor-The reason I dropped "deportation to slave labor" was that there are other deportations that are just as objectionable as slave labor from my point of view, for example, deportations to compulsory prostitution, deportations just to get people out of the way to take their land, or deportations to concentration camps. It seemed to me that we limited the deportations. I would be quite willing to say "deportation to slave labor or for any other purpose". GENERAL NIKITCHENKO. The words "but not be limited to" are not very important really to us. If you don't mind, we could drop them and I would in our translation say "and other crimes". As for your suggestion, "to slave labor and for any other purposes", that is all right. LORD CHANCELLOR. I am afraid I must go to rehearse my part in the proceedings of the House of Lords at the opening of Parliament. Would you like to go on? You are so near agreement. If you want me to come again, I could be available this afternoon about 5:30 or tomorrow at 2:30; or perhaps, if the Attorney-General could go on representing us, you could get finished here. The Lord Chancellor left and Sir David Maxwell Fyfe took the chair. GENERAL NIKITCHENKO. We have just two more words here. SIR DAVID MAXWELL FYFE. "Deportations to slave labor or for any other purpose"--and that is article (b). Article (c). GENERAL NIKITCHENKO. Could we say "in order to accomplish" or something like that instead of "furtherance"? JUDGE FALCO. I suggest "in execution". Mr. JUSTICE JACKSON. Is there objection in connection with that? SIR DAVID MAXWELL FYFE. All agreed on "execution of"? What about the concluding paragraph? Mr. JUSTICE JACKSON. This concluding paragraph would take the place of article 9. SIR DAVID MAXWELL FYFE. Article 9 is "organizers", and we go further now and say that they are not merely equal and responsible but are responsible for the acts of other persons. MR. JUSTICE JACKSON. I think we shall have to do that in order to reach some of these things. SIR DAVID MAXWELL FYFE. The only difference between the new draft and the old is that the new draft makes the point which Mr. Justice Jackson raises in the end of the discussion in his paper that we want to get to the leaders as well as to the rank and file. GENERAL NIKITCHENKO. Could we say here also "execution" instead of "furtherance"? SIR DAVID MAXWELL FYFE. That only leaves article 22. It is the one for which the Soviet Delegation had told us they would recommend Nürnberg and were awaiting instructions. Is there any word? GENERAL NIKITCHENKO. We are prepared to agree to the first trial at Nürnberg, but we would like it considered that the administrative headquarters and the first meetings of the Tribunal and the prosecutors shall also take place in Berlin at a place to be designated by the Control Council. The first trial shall be held in Nürnberg and subsequent trials as we had it. MR. JUSTICE JACKSON. That is the language we did agree on. GENERAL NIKITCHENKO. "The Tribunal shall be located in Berlin-" MR. JUSTICE JACKSON. We don't see just what you mean, as it is interpreted, in saying that "the Tribunal shall be located in Berlin" when it is going to sit elsewhere. GENERAL NIKITCHENKO. We specify that the first trial would be in Nürnberg and subsequent trials in other places and that only the first meeting would take place in Berlin; so it does not limit us in any way. MR. JUSTICE JACKSON. I agree, but I don't understand just how we can use the words "located in Berlin" if the judges are sitting in Nürnberg and other places. Perhaps we have a different idea. PROFESSOR TRAININ. Because we do say that only the first meeting would take place there and we do say that the first trial would be in Nürnberg and subsequent trials in other cities, it seems to us that in Russian it would be quite clear that its permanent seat-its addresswould be Berlin. MR. JUSTICE JACKSON. If you use "permanent seat", that would make clear that that is equivalent in our understanding to "headquarters”. GENERAL NIKITCHENKO. Yes, the permanent seat of the Tribunal shall be at Berlin. MR. JUSTICE JACKSON. We seem to have cleared up all points of difference now, and we need, next, to get the agreement in three languages so that we can execute it. SIR THOMAS BARNES. Would it be best to have it run out as altered and checked by each delegation before it is translated? GENERAL NIKITCHENKO. We have the technical work to do, and also in article 6 we took it upon our own personal responsibility to agree to Mr. Justice Jackson's proposal. We still have to receive instructions on that score. Until we get the instructions, we could get going with the technical work of looking through the text. MR. JUSTICE JACKSON. May I ask when you would expect instructions? I have been called to France and would not get back until Sunday night. Would you expect to be in a position to sign before Monday? If so, I shall forego the trip. GENERAL NIKITCHENKO. We think we could get the text complete today and probably take a day to compare and have instructions tomorrow or the day after, Saturday. MR. JUSTICE JACKSON. Since I have no Russian translator on my own staff, I would want our Embassy to check the translation. SIR DAVID MAXWELL FYFE. Then we shall wait until Monday for signature. Sir David then thanked his colleagues for their cooperation and friendship throughout the Conference while he was presiding officer and said that his connection with the work had been a very great pleasure. The Conference was adjourned. LX. Agreement and Charter, August 8, 1945 AGREEMENT by the Government of the UNITED STATES of AMERICA, the Provisional Government of the FRENCH REPUBLIC, the Government of the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND and the Government of the UNION of SOVIET SOCIALIST REPUPLICS for the Prosecution and Punishment of the MAJOR WAR CRIMINALS of the EUROPEAN Axis WHEREAS the United Nations have from time to time made declarations of their intention that War Criminals shall be brought to justice; AND WHEREAS the Moscow Declaration of the 30th October 1943 on German atrocities in Occupied Europe stated that those German Officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes will 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 that will be created therein; AND WHEREAS this Declaration was stated to be without prejudice to the case of major criminals whose offenses have no particular geographical location and who will be punished by the joint decision of the Governments of the Allies; NOW THEREFORE the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics (hereinafter called "the Signatories") acting in the interests of all the United Nations and by their representatives duly authorized thereto have concluded this Agreement. Article 1. There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities. Article 2. The constitution, jurisdiction and functions of the International Military Tribunal shall be those set out in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement. Article 3. Each of the Signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal. The Signatories shall also use their best endeavors to make available for investigation of the charges against and the trial before the International Military Tribunal such of the major war criminals as are not in the territories of any of the Signatories. Article 4. Nothing in this Agreement shall prejudice the provisions established by the Moscow Declaration concerning the return of war criminals to the countries where they committed their crimes. Article 5. Any Government of the United Nations may adhere to this Agreement by notice given through the diplomatic channel to the Government of the United Kingdom, who shall inform the other signatory and adhering Governments of each such adherence. Article 6. Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals. Article 7. This Agreement shall come into force on the day of signature and shall remain in force for the period of one year and shall continue thereafter, subject to the right of any Signatory to give, through the diplomatic channel, one month's notice of intention to terminate it. Such termination shall not prejudice any proceedings already taken or any findings already made in pursuance of this Agreement. IN WITNESS WHEREOF the Undersigned have signed the present Agreement. DONE in quadruplicate in London this 8th day of August 1945 each in English, French and Russian, and each text to have equal authenticity. For the Government of the United States of America For the Government of the United Kingdom of Great Britain JOWITT C. For the Government of the Union of Soviet Socialist Re publics I. NIKITCHENKO A. TRAININ |