XVII. Minutes of Conference Session of

June 29, 1945

SIR DAVID MAXWELL FYFE [presiding]. It is suggested that each delegation explain its memorandum of proposed amendments to the American draft proposal [IX]. I shall proceed, if it is agreeable, with our draft of amendments.

[EXPLANATION OF UNITED KINGDOM MEMORANDUM] [XIV] The first point in the United Kingdom memorandum deals with article 5 of the United States draft. That is where the draft says that there should be set up by the Control Council for Germany one or more international military tribunals. We suggest that they should be set up by the signatories, that is, the governments of the Four Powers represented here, after consultation with the Control Council of Germany-I do not think I could improve upon the words of the memorandum. While the Control Council must be consulted, the responsibility for the tribunals must rest with the governments concerned. It is important to emphasize the independence of the Tribunal, and it would be a mistake to place it under the Control Council. It should be a government problem rather than a Control Council problem. Any comments?

GENERAL NIKITCHENKO. Perhaps it would be best to run through the memorandum.

SIR DAVID MAXWELL FYFE. The next point has to do with article 8. The draft reads: "An International Military Tribunal shall have the power to establish its own rules of procedure, which shall be not inconsistent with the provisions of this Agreement."

Our suggestion is that this body and the chiefs of the various delegations represented here should prepare and submit to the Tribunal rules for their approval. We considered that the initiative with regard to rules ought to come from the governments, and, if this is accepted, we suggest a new provision at the end of article 11 which would provide for recommending rules of procedure for adoption, and that any rule so adopted by the Tribunal shall not be inconsistent with this agreement. The purpose of this is to give a lead to the Tribunal as to the lines on which they should proceed. We give them the right to approve, but we envisage circumstances under which we may have to

make alterations to suit the evidence as it eventually comes on and think it would be useful if we suggested to the Tribunal lines on which to proceed.

MR. JUSTICE JACKSON. May I suggest that it may be desirable to retain in some place the substance of number 8, whereas your suggestion in your commentary might be understood to eliminate it?

SIR DAVID MAXWELL FYFE. We should retain the provision giving the power to adopt the rules after counsel suggests them.

GENERAL NIKITCHENKO. Why not, in deciding the statutes of the Tribunal, lay down the basic grounds on which the Tribunal is to operate.

SIR DAVID MAXWELL FYFE. I agree. We are in agreement with that. That is what is intended by the Tribunal. The rules so adopted by the Tribunal shall not be inconsistent with this agreement. The provisions would lay down certain rules.

PROFESSOR TRAININ. There is a distinction between the basic rules of the document and the question of actual procedure. In regard to the formulation of the basic rules on which the Tribunal will operate, that is undoubtedly the duty of the Four Powers in this agreement, but in addition to that there will be the question of establishing the methods of procedure to be adopted by the tribunals themselves, and the Soviet Delegation is of the opinion that that part of the regulation should be left to the Tribunal to work out on their own. There are basically two parts the basic rules and the rules of procedure which are based upon them.

SIR DAVID MAXWELL FYFE. I am in agreement with the division into the two parts. I ask the Soviet Delegation to reserve for consideration whether, while accepting this provision, we should not give a lead to the Tribunal on the question of detailed procedure. It might help the Tribunal because it has not got an existing code of procedure to work on.

We now pass to number 12. This is the declaration of legal principles and the United States draft can be summarized as (a) violation of international law; (b) violation of municipal law and domestic law; (c) invasion or threat of invasion, or initiation of war against other countries in breach of treaties, agreements, or assurances between nations or otherwise in violation of international law, et cetera. Now we suggest first of all that violations of the laws, rules, and customs of war and such acts shall include, but shall not be limited to, mass murder and ill-treatment of prisoners of war and civilian populations and the plunder of such populations. Then "launching a war of aggression" may involve a discussion of different schools of thought as to whether that is an existing offense against international law, and there is the further question whether we are breaking new ground. That we think ought to be discussed and is one of the matters which this Conference

should consider. Then we come to (c)-invasion or threat of invasion of, or initiation of war against, other countries in breach of treaties, agreements, or assurances between nations or otherwise in violation of international law. Then we introduce (d)-the common plan or enterprise aimed at aggression against or domination over other nations and calculated to involve the unlawful means of violation of international law. We think that it is important that that should be made clear in the declaration of legal principles because we think it is the gist of the offense which is believed by most of the people in the world.

Then (e) deals with atrocities and persecutions in pursuance of the plan and whether they are in violation of the domestic law of the country where perpetrated; that is, it would include atrocities and persecutions in Germany if they were legal by German law. I think you will find that that is set out in the note, and, if you will look about two thirds of the way down in the note, you will find we say, "The chief crime of which it is alleged that the leaders in Germany are guilty is the common plan or conspiracy to dominate Europe and it is therefore most desirable to include this crime specifically in the statutes of the Court. Moreover, the protocol will become a public document of the first importance and for this reason it is essential that the main charge to be made against the major criminals should appear in it. The lay public will not understand its omission." I think really that this last bit that I have read gives the gist of the argument I put forth.

Could I add one point? I apologize. I should have drawn attention to the introduction at the beginning of number 12: "The Tribunal shall be bound by this declaration of the signatories that the following acts are criminal violations of international laws . . . ." What we want to abolish at the trial is a discussion as to whether the acts are violations of international law or not. We declare what the international law is so that there won't be any discussion on whether it is international law or not. We hope that is in line with Professor Trainin's book.

GENERAL NIKITCHENKO. May I ask a question? This list of crimes which has been outlined here-Is that to be taken to apply only to those crimes which have been committed during the process or duration of the war, or may we take it it equally applies to any crimes since then? For instance, any activities which the Germans might undertake now. Would they be included under this provision?

SIR DAVID MAXWELL FYFE. I don't think we had considered that point. We should be prepared to and try to face it. I have no objection to it. There is still, of course, a state of war existing, and therefore it would seem probably to be covered.

GENERAL NIKITCHENKO. We might understand that this list is not exhaustive in regard to crimes which may be tried by the International

Military Tribunal, that there may be other violations which are not actually listed.

SIR DAVID MAXWELL FYFE. We might consider the redrafting of (a) so that it should "include but not be limited to . . . ."

JUDGE FALCO. This question should certainly be discussed a little further for the moment. I suggest that the Four Powers have taken supreme command in Germany, actually commanding Germany, and, if there are infractions of law, it is for the Control Council of Germany to establish their tribunals and try those new perpetrators. For the moment I do not see any object in mixing the two things and having Germany's criminals brought before the Tribunal for trial of war criminals. I want to put this before the Conference.

SIR DAVID MAXWELL FYFE. One word for consideration here. We are dealing with major war criminals. We cannot have two trials of the major war criminals. There will be nothing to prevent the Control Council and the various national commissions from dealing with the infractions of the law they are administering apart from this. We are rather considering this as limited to the major criminals.

GENERAL NIKITCHENKO. We do not make it as a suggestion. It was merely for elucidation on the point.

MR. JUSTICE JACKSON. We would take it that (b) covers launching a war of aggression. If there were conviction on that, (c) and (d) might become somewhat superfluous. But (c) is launching a war of aggression in violation of treaties, et cetera, and (d) is launching it by a combination of terrorism and means which they have used, et cetera, so that those three are read together to make a complete picture. JUDGE FALCO. On the question which has been raised by article 12, we have seen the proposal which had been made at San Francisco. It is very near our point and except for some details bearing on (b) and (c) we could very easily agree on the same line.

SIR DAVID MAXWELL FYFE. Now the fourth point deals with the basic principles of the operation of the Tribunal [articles 17 and 18], and, if I might, I'll just give a word of explanation of each of the subheads of its contents. "An International Military Tribunal shall not be bound by technical rules of evidence," that is, by the rules of evidence which each country demands in its own courts. It shall "adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value." That makes clear that it is for the Tribunal to decide whether the evidence has value in the direction of proof even though a national code might not allow proof by that form. Next, "it shall employ with all possible liberality simplifications of proof, such as, but not limited to: requiring defendants to make written proffers of proof." That is, the defendants may be compelled to put in writing

the purpose for which evidence is going to be called in order to prevent mere political speeches being put in under the guise of evidence. Otherwise a witness may suddenly be called into the box; we do not know what he is going to say, and he starts making political speeches in defense of German activities. Then, "making extensive use of judicial notice." That is, the Tribunal can take into account matters that are well known. "Receiving affidavits or statements for witnesses, depositions, recorded examinations before or findings of military or other tribunals, copies of official reports, publications and documents or other evidentiary materials and all such other evidence as is customarily received by international or military tribunals." That is, if there has been taken up an inquiry with a reasonable official basis in certain matters, then that can be put in evidence without the formality of proof.

I think it would be convenient if I dealt with 18, which is supplementary, before any further comments. Paragraph 18 emphasizes our desire that there will not be delay or interruption or the misuse of the hearing for political purposes. Subparagraph (a) deals with confining the trials to expeditious hearing of the issues raised by the charges; (b) takes strict measures to prevent any action which will cause any delay and rules out irrelevant issues, including attempts to bring in political propaganda. That is what we envisage. There are two possibilities: the defendants themselves may try and make a noise or interrupt the court or interrupt the witnesses and proceeding. With defendants who are likely to be sentenced to death, in the face of the court sending them to prison for a few weeks-the ordinary penalty for contempt of court-it would only be playing their game and interrupting the trial. The only sanction to be effective would be to exclude their counsel or themselves from further right to put forward their defense. If they treat the court with contempt, then they will be taken as desiring not to continue their defense, and the court will determine their defense in the absence of counsel where necessary. PROFESSOR TRAININ. The general principle laid out and explained is quite clear, and the only question which might possibly arise is whether some of the points which are outlined should really be agreed upon in the principles of establishment of the Tribunal or whether they should not appear better in the regulations governing the procedure of the Tribunal.

JUDGE FALCO. [Not translated.]

SIR DAVID MAXWELL FYFE. Of course, we are ready to consider any suggestions for taking anything out of the main document and putting it into regulations. We thought these were worthy of being basic principles but will consider with great care and regard any suggestions of the Soviet Delegation.