acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with crimes against peace or war crimes, whether or not in violation of domestic law of the country where perpetrated. The most significant results of applying these definitions as the law of nations are to outlaw wars of aggression and to lift to the level of an international offense the persecution of minorities for the purpose of clearing the road to war.

The charter also enacts the principle that individuals rather than states are responsible for criminal violations of international law and applies to such lawbreakers the principle of conspiracy by which one who joins in a common plan to commit crime becomes responsible for the acts of any other conspirator in executing the plan. In prohibiting the plea of "acts of state" as freeing defendants from legal responsibility, the charter refuses to recognize the immunity once enjoyed by criminal statesmanship. Finally, the charter provides that orders of a superior authority shall not free a defendant from responsibility, though they may be considered in mitigation of punishment if justice so requires. The codification of these principles and their adoption by so many nations would seem to close the chapter on that era when all wars were regarded as legally permissible even though morally reprehensible. It ushers international law into a new era where it is in accord with the common sense of mankind that a war of deliberate and unprovoked attack deserves universal condemnation and its authors condign penalties. It is quite evident that the law of the charter pierces national sovereignty and presupposes that statesmen of the several states have a responsibility for international peace and order, as well as responsibilities to their own states. It would be idle to deny that this concept carries far-reaching implications.

Nor will the ultimate influence of this doctrine of international responsibility depend on its merits alone. If the nations which command the great physical forces of the world want the society of nations to be governed by law, these principles may contribute to that end. If those who have the power of decision revert to the concept of unlimited and irresponsible sovereignty, neither this nor any charter will save the world from international lawlessness.

But if the ultimate influence of the charter's substantive law provisions will have to await the verdict of time, the significance of the charter as a procedural document has already been proved. The international trial procedure established in the charter was subjected to a practical test at Nürnberg. It won vindication when a long trial of complex issues, carried on jointly by lawyers of five nations, proceeded with a surprising absence of friction and controversy over procedure.

The significance of the charter's procedural provisions is emphasized by the fact that they represent the first tried and successful effort by lawyers from nations having profoundly different legal systems, philosophies, and traditions to amalgamate their ideas of fair procedure so as to permit a joint inquiry of judicial character into criminal charges. Legal systems exhibit disparities in their methods of procedure greater than in the principles of law they serve. Members of the legal profession acquire a rather emotional attachment to forms and customs to which they are accustomed and frequently entertain a passionate conviction that no unfamiliar procedure can be morally right. It has often been thought that because of these deep-seated differences of procedure the use of the judicial process by and among the community of nations is inherently limited. That these differences present grave difficulties in so adapting the judicial process, the minutes of these conferences amply attest. That the conference was able to reconcile these divergencies and prescribe on paper a procedure acceptable to all four nations was gratifying evidence that our fundamental concepts of fair procedure are not in hopeless conflict. That these paper provisions could be made to work in actual practice demonstrated that we had not achieved theoretical reconciliations in disregard of practical considerations. Hope for an effective world government, even of limited powers, has largely been predicated on internationalizing the processes of legislation and administration. It will also require equivalent internationalizing of the judicial process. The success of this multipartite effort in using trial procedures to find facts and to apply law offers grounds for the belief that the nations can employ the processes of judicial hearing more widely than has been done in the past when there is a will to do so.

It was recognized at the outset as fundamental that, whatever other criticisms might be made of any international trial, it would be fatal to its acceptance if the defendants were not provided with a full and fair opportunity to defend themselves on every charge. The only problem was that a procedure that is acceptable as a fair trial in countries accustomed to the Continental system of law may not be regarded as a fair trial in common-law countries. What is even harder for Americans to recognize is that trials which we regard as fair and just may be regarded in Continental countries as not only inadequate to protect society but also as inadequate to protect the accused individual. However, features of both systems were amalgamated to safeguard both the rights of the defendants and the interests of society.

While it obviously was indispensable to provide for an expeditious hearing of the issues, for prevention of all attempts at unreasonable delay and for elimination of every kind of irrelevancy, these necessary

measures were balanced by other provisions which assured to the defendants the fundamentals of procedural "due process of law." Although this famous phrase of the American Constitution bears an occasionally unfamiliar implication abroad, the Continental countries joined us in enacting its essence-guaranties securing the defendants every reasonable opportunity to make a full and free defense. Thus the charter gives the defendant the right to counsel, to present evidence, and to cross-examine prosecution witnesses. It requires the indictment to include full particulars specifying the charges in detail-more fully than in our own practice. It gives the defendant the right to make any explanation relevant to the charge against him and to have all proceedings conducted in or translated into his own language.

At least one of the procedural divergencies among the conferring nations worked to the advantage of defendants. The Anglo-American system gives a defendant the right, which the Continental system usually does not grant, to give evidence in his own behalf under oath. However, Continental procedure allows a defendant the right, not accorded him under our practice, to make a final unsworn statement to the tribunal at the conclusion of all testimony and after summation by lawyers for both sides without subjecting himself to cross-examination. The charter resolved these differences by giving defendants both privileges, permitting them not only to testify in their own defense but also to make the final statement to the court.

Another feature of the charter is its simplification of evidentiary requirements. The peculiar and technical rules of evidence developed under the common-law system of jury trials to prevent the jury from being influenced by improper evidence constitute a complex and artificial science to the minds of Continental lawyers, whose trials usually are conducted before judges and do not accord the jury the high place it occupies in our system. We saw no occasion at the London Conference to insist upon jury rules for a trial where no jury would be used. Accordingly, the charter adopted the principle that the Tribunal should admit any evidence which it deemed to have probative value and should not be bound by technical rules of evidence. While this left a large and somewhat unpredictable discretion to the Tribunal, it enabled both prosecution and defense to select their evidence on the basis of what it was worth as proof rather than whether it complied with some technical requirement. The record of the trial would seem to vindicate the use of this principle.

Acknowledgment is due of the indispensable contributions made by conferees representing other nations to the difficult task of reconciling conflicts in legal concepts and procedures. Judge Robert Falco of the Cour de Cassation, the highest court of France, and Professor

André Gros, a distinguished scholar of French jurisprudence and international law, were eminently qualified to expound their own practice. The Soviet Union's representatives, General I. T. Nikitchenko, vice president of the Soviet Supreme Court and presiding officer of its criminal division, and Professor A. N. Trainin, author and teacher in fields of Soviet and international law, were authoritative exponents of Soviet legal practice and philosophy. At the beginning and during the greater part of the Conference Great Britain's chief representative, aided by an able staff, was the Attorney-General, Sir David Maxwell Fyfe. After the Churchill government was superseded, the final work of the Conference was conducted for the United Kingdom by the new Lord Chancellor, William Viscount Jowitt of Stevenage. The success of the negotiations was due no less to the patience and good will of these eminent lawyers than to their learning and vision.

Acknowledgment also is due to the contributions of members of the American staff, in addition to those whose names appear in the proceedings, who are too numerous to be here delivered from willing anonymity but who gave not only wise counsel but tireless support, whether with research, drafting, typing, or any of the other drudgery that sustains an effort of this kind.

The conference deliberations were stenographically recorded by Mrs. Elsie L. Douglas, whose minutes and notes constitute the core of this record; and she, together with Miss Alma Soller, has borne the chief burden of preparing these records for publication.

These negotiations are not offered for consideration in any hope that this or any other codification of international criminal law will be enough to prevent future aggressions when the stakes are so high that men will risk any sanction if they think their armadas will prevail. But all who have shared in this work have been united and inspired in the belief that at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right. And we are encouraged to believe that the achievement of this accord with representatives of the legal systems of continental Europe, from whose legal thought our profession has remained insulated, both because of the barriers of language and because of our nonparticipation in some of the international endeavors of the century, will do something toward overcoming our jurisprudential isolationism. ROBERT H. JACKSON

WASHINGTON, D.C.

December 29, 1947

S

FOREWORD

OME explanation concerning the minutes and documents of the London Conference for the establishment of the International Military Tribunal seems fitting.

The minutes set forth herein are transcriptions of my stenographic notes of what was spoken in English at all sessions except a preliminary one on the morning of June 26. The exact text of all statements by the Soviet Delegation and of many by members of the French Delegation is that of an interpreter, but in each instance in the minutes it is attributed to the person whose statements were being interpreted. Preliminary exchanges before taking up the business of the day and matters of transient interest, such as discussion of the time to which adjournment should be taken, were not recorded.

The Conference was informal throughout, and its sessions were private. It took place around a large square table, each nation's delegation being allotted one side. There were no prepared speeches, and the Conference took the form of general conversations in which sometimes a gesture or a nod of the head took the place of spoken words.

As the conferences were immediately followed, or in fact overlapped, by preparations for the Nürnberg trial, it was not possible at once to transcribe these notes, except such as were needed in the course of negotiation. The minutes have not been submitted to the French, Soviet, or British Delegations for verification or editing. Our own editing has been done only in the interest of accuracy as to statements by all delegations and not in any effort to polish informal modes of expression.

As the conversations make frequent reference to documents before the Conference, they would be scarcely intelligible if the documents were not also before the reader. The general rule has been to include only documents that were circulated among the delegations and to include all documents that were so circulated, regardless of which delegation originated them. It has not been thought advisable to reproduce the many and repetitious writings that did not get beyond the stage of being working papers of the American staff. Certain preliminary documents formed the background of the meeting. Although some of them, such as the Cabinet memorandum for President Roosevelt's guidance at Yalta, and Mr. Justice Jackson's report in June 1945 were American rather than international documents, their