is all available. Therefore, I do not see why there should be a separation between those two. After all, it is just a summary of the facts of the case and statement of the charge.

GENERAL DONOVAN. Perhaps I see the difficulty. I wonder if they think we propose that the indictment and the material could be separated by a great lapse of time. That is not what we propose. The indictment would be submitted to the court on a given day and perhaps on that very day the evidence would be taken by the court under oath, but separately.

GENERAL NIKITCHENKO. But before the trial begins.

GENERAL DONOVAN. We submit the indictment to the court and notify the defendants so that they can prepare for trial. The day for the trial is set and then all evidence on which the indictment is based, the evidence which will prove that charge, is submitted under oath, together with such documents as the court will receive.

MR. ROBERTS. That is what we on this side of the table visualize. The court is to try the case at the time set, not to try it before, but try it in court on the evidence which is presented.

GENERAL DONOVAN. And the evidence is submitted in the presence of the defendant and his counsel, to the admission of which the objection of the defense might be sustained, so that the court must sit as a referee.

GENERAL NIKITCHENKO. The details of this we could deal with later. The point at present would be for us to see whether there is any difference of opinion on the principles involved.

MR. JUSTICE JACKSON. I agree. Shall we take up the legal principles?

Number 12 has given us a great deal of difficulty, and we have redrafted and amended it a good many times. This was caused, I suppose, by the difficulty of stating an entire body of criminal law for international trial purposes in a single paragraph. It is a very important paragraph and deserves careful study, word by word, because every word will come back to plague us before we get through with the trial. What we have attempted to do is to reach the heart of these offenses. We think it would be very unfortunate if we were to go into this trial with an argument as to whether the acts were criminal, and it should not be left to the court to sift out from the various authorities what the law is. Following that thought, we provided that, "Atrocities and offenses against persons or property constituting violations of international law, including the laws, rules and customs of land and naval warfare."

We have been doing a great deal of studying on that, and I fancy everyone at the table will have some suggestions to make as to changes. GENERAL NIKITCHENKO. I do not think there is any need to go into

any discussion on this at the present moment but agree that an article of this nature is essential in the establishment of an international military tribunal in order to decide who will be tried. Obviously it will need thorough investigation, and there is no point in starting on that now.

MR. JUSTICE JACKSON. Numbers 13 and 14 are continuations of somewhat the same subject. [Here the Justice read paragraphs 13 and 14, ante, p. 58.]

GENERAL NIKITCHENKO. The Soviet delegates have no doubt whatsoever about including articles substantially of this character in the draft statute of the International Tribunal. It may, of course, be necessary to make amendment in the wording, et cetera, and the conditions under which it will proceed to pass judgment on leaders and organizations which we think ought to be regarded as equally responsible.

MR. JUSTICE JACKSON. There must also be provisions to assure that these trials will be fair trials, that defendants will have reasonable notice and opportunity to defend, and that those who are physically present before the Tribunal will be furnished with copies of the indictment, and given an opportunity to be heard in their defense, have counsel, et cetera.

GENERAL NIKITCHENKO. That is all perfectly clear.

MR. JUSTICE JACKSON. Then we come to the question of organizations, by which we intend to reach a great many people, in fact, with a very few people before the court. [Here the Justice read from paragraph 16, ante, p. 58.] This goes back to the proposition presented at Yalta of reaching the members of these organizations through the organizations. Unless we do that, the number of trials that would be necessary would be prohibitive. We think it can be done with proper safeguards so that it will be an instrument of justice and not injustice. We recognize it as a method which has to be guarded. If not, it would be a very unjust procedure, and therefore we have tried to provide for getting it done, but getting it done consistently with our ideas of what constitutes a fair trial.

GENERAL NIKITCHENKO. On that point we have exchanged views. MR. ROBERTS. It was covered at the beginning of this afternoon, was it?

MR. JUSTICE JACKSON. Now, numbers 17 and 18. We think we can improve these in draftsmanship, but the idea may have more significance to British and American lawyers than it does to Continental lawyers. We do not want technical rules of evidence designed for jury trials to be used in this case to cut down what is really and fairly of probative value, and so we propose to lay down as a part of the statute that utmost liberality shall be used. Most of those things are

really addressed to the judges, and perhaps the question doesn't trouble you who follow the Continental system as much as it does us. GENERAL NIKITCHENKO. That is quite understood. We think it is perhaps very advisable to remind the judges that there may be a possibility of attempts by the Fascists to use the courts as a sounding board for accusing the Allies of imperial designs.

MR. JUSTICE JACKSON. We had thought they may attempt to break up the trial through some of their techniques of behavior and thought that another section should provide very strict control, even to the extent that they should be denied the privilege of defense if their conduct is consistently in violation of orders of the court. The question of propaganda may be a somewhat difficult one. I think the scope of our charges will have to be considered in the light of what we expect to be answered. We certainly do not want to permit this to be turned into a trial of anyone except those accused, and we shall have to look to our accusations and cut our indictment to what we expect to try. We shall have to hear them within the issues. It is one of the important things about defining carefully the acts which constitute crimes. So far as we are concerned, we have never thought there was any basis in this case for trying the remote causes for this war. Our definition of crime does not involve causes; it involves only actual aggressive war-the attack. It is one thing to attack for remote reasons. It is another thing to have a war of self-defense, which I suppose we all concede is permissible and not a crime. We shall have to consider these articles carefully as definitions of crime. We have no thought here, in charging them with launching an illegal war, to have a general trial of German grievances.

GENERAL NIKITCHENKO. Don't you think it reasonable that provisions must be made to stop all attempts to use the trial for propaganda?

MR. ROBERTS. Irrelevant propaganda.

MR. JUSTICE JACKSON. I think some admonition could be embodied. I think the draftsmanship needs to be skilful in order to avoid the implication that the nations conducting this trial are afraid of something. Number 19, on punishment, I think is fairly obvious. The only question was whether the extent to which the Control Council should have authority to control the sentence should be a continuing authority to reduce but no authority to increase.

MR. ROBERTS. Before we pass from 19, I think we on our side of the table are not in favor of the Control Council having the power of approval because, I suppose, if they have the power of approval, they have the power of disapproval, which means they could set the decision of the Tribunal aside. We personally would not like that.

MR. JUSTICE JACKSON. It was not intended to permit disapproval of a finding of guilt or innocence, but only modification of the sentence.

JUDGE FALCO. Can we really decide on this before knowing what the relations will be between the Allied Council and the International Military Tribunal?

GENERAL NIKITCHENKO. After all, we are not taking any decision now. We are merely discussing and clearing up various points in this draft. It will be done later when we shall decide what exact principle should be embodied.

MR. JUSTICE JACKSON. Number 20 leaves sentences to be directed under the Control Council. Number 21 has already been discussed. Number 22, I think, is obvious. Numbers 23, 24, and 25 deal with financial matters that are not very important to these defendants.

It was agreed that representatives of each nation other than the United States would prepare memoranda of objections and suggestions, and the Conference adjourned to meet Friday, June 29, 1945, at 10 a.m.

XIV. Amendments Proposed by the United

Kingdom, June 28, 1945

PROPOSED AMENDMENTS BY THE UNITED KINGDOM DELEGATION TO THE UNITED STATES DRAFT PROTOCOL

1. Article 5: The opening words of this Article should be amended to read as follows:

"There shall be set up by the signatories after consultation with the Control Council for Germany one or more international military tribunals etc."

While the Control Council must, of course, be consulted as to the setting up of the Tribunal within Germany, the responsibility for the appointment of its members must rest with the Allied Governments concerned. It is important to emphasize the independence of the Tribunal and it would be a mistake to place it under the Control Commission.

2. Article 8: It is suggested that Article 8, which gives power to the International Tribunal to establish its own rules, should be deleted and an obligation should be placed upon the Chiefs of Counsel representing the four Allied Governments to prepare and submit to the Tribunal rules for their approval. It is thought that the initiative with regard to the rules ought to come from the signatory Governments through their Counsel. If this is accepted, it would seem that the proper place to insert the new provision would be at the end of Article 11 and it is suggested that the following subparagraph be added to the end of that Article:

"(c) Recommending rules of procedure for adoption by the International Military Tribunal. Any rules so adopted by the Tribunal shall not be inconsistent with the provisions of this Agreement."

3. Article 12: The United Kingdom Delegation submit the following re-draft of this Article.

"12. The Tribunal shall be bound by this declaration of the signatories that the following acts are criminal violations of international laws:

(a) Violations of the laws, rules and customs of war and such acts shall include, but shall not be limited to, mass murder and ill