Appendix I MINUTES OF CHIEF PROSECUTORS HELD IN ROOM 117, The Attorney-General said he had three points which he wished to discuss with his colleagues. The first two were 1) The time which the trial was taking, and 2) the question of the second trial. 2. SECOND TRIAL The Attorney-General pointed out that this could not start until the end of this trial since many issues would be rendered res judicata by these proceedings. They wished to take advantage of this whilst, in any event, shortage of manpower would make it impossible to run separate proceedings at the same time. He wondered what public opinion would think of a second trial if this had lasted a year and was inclined to think that the industrialists should be tried before national courts but if the majority of his colleagues felt that a second trial before an international tribunal should take place then he thought that preparations must be started now. He had got to bring in a new team, the personnel of which would not be easy to find and who would have to work in with the present team so as to take advantage of their experience. He felt, therefore, that a decision on the second trial ought to be taken now, one of the difficulties being, however, that the Agreement came to an end on the 8th August and it looked as if this trial would last at least until then. General Rudenko said he was in favor of a second trial by the International Military Tribunal but conclusion could not be reached until the finish of this trial was seen. If this trial ended before August they could discuss a second trial but if it went beyond the 8th August they would not have the power to do so. He entirely agreed that if there was to be a second trial the staff ought to be incor porated with the present staff during the preparatory stages. M. de Ribes said the French position remained the same and they were in favour of a second trial before the International Military Tribunal. It would be useful, however, only if two conditions were fulfilled 1) If its actual duration was shorter than that of this trial; 2) As a corollary to 1) if it was adequately prepared in advance. The great thing was to examine the evidence now to see whom they had got a case against and he had already set a section of his team to work on this. Mr. Justice Jackson said that he himself could not participate and that the nomination of Col. Taylor did not commit the United States to a second trial. He agreed generally with the French and Soviet Delegations that the ground work must be got on with but he could not commit the United States to a second trial until they had seen the result of this one. If the Tribunal held that there was no case against Schacht he did not see how they could hope to make a case against any industrialists. There were other considerations; for example, the cost. It would not be long before there was serious criticism of the cost of this trial. felt sure the industrialists should be tried but was not yet certain of the best method. He The Attorney-General agreed that the point with regard to Schacht had a great deal of force and suggested that they should go no further at present than to agree to get out briefs against, say, ten defendants, with a view to deciding later whether they should be indicted before national courts or the International Military Tribunal. This work should be done in collaboration between the four delegations by personnel specially detailed to prepare the ground work for the second trial. THIS WAS AGREED. Subject: Appendix J MEMORANDUM FOR THE SECRETARY OF WAR American Participation in a Second International Trial of Nazi War References: (1) Mr. Justice Jackson's Memorandum for the President of 13 May 1946 (Tab A) (2) Brig. Gen. Taylor's Memorandum for Mr. Benjamin Cohen of 18 June 1946 (Tab B) (3) Brig. Gen. Taylor's Memorandum for Mr. Justice Jackson of 27 June 1946 (Tab C) (4) Sir Hartley Shawcross' letter to Mr. Justice Jackson of 25 July 1946 (Tab D) 1. At Mr. Justice Jackson's request, I am submitting to you this report on American participation in a second international trial of Nazi war criminals. 2. It is my recommendation, based on all circumstances now known to us, that the United States should agree to participate in a second international trial. 3. This report and my recommendations are based upon discussions during the past three months with Mr. Justice Jackson, with the Counselor to the State Department (Mr. Benjamin Cohen) and (through Mr. Cohen) with the Secretary of State, upon committee meetings and informal discussions with the representatives of the other three interested nations,1 and upon my estimate of the prospects for an expeditious and successful international trial along the lines described hereinafter. BACKGROUND 4. The circumstances which have given rise to quadripartite discussion of a second international trial are set forth in Mr. Justice Jackson's memorandum to the President (Tab A) and my memorandum to Mr. Benjamin Cohen (Tab B). Summarized, these circumstances are as follows: (a) The Soviet Government has at all times favored a series of international trials; (b) Partly as a result of the Soviet attitude, the London Agreement (8 August 1945) envisages a series of trials; (c) As a result of and since the "Krupp episode" (Tab B), the French Government has actively favored a second international trial; and (d) Also as a result of the Krupp episode, discussion of a second international trial has centered around German private industrialists and financiers. ATTITUDE OF THE OTHER THREE GOVERNMENTS 5. The Soviet Government has at all times favored a series of trials, and has recently officially advised us that they favor and will participate in a second trial. The French government has repeatedly announced its desire to participate in a 1 I have transmitted to the Assistant Secretary of War (Mr. Petersen) the minutes of these committee meetings and various memoranda summarizing the discussions. second international trial, and is pressing us for an expression of our attitude. The British government has been lukewarm, but its Attorney-General has now advised us that he favors an early declaration for a second trial, and that he feels "little doubt that the British government will adopt this view." (Tab D) THE ALTERNATIVE-REFUSAL TO PARTICIPATE 6. The London Agreement remains in force indefinitely, subject to the right of any signatory to terminate after one month's notice of intention to do so. As long as the Agreement remains in force, any two of the chief prosecutors can designate "major war criminals to be tried by the Tribunal." (Article 14.)2 7. Accordingly, unless the London Agreement lapses by mutual consent and desuetude, we can refuse to participate in a second international trial only by giving notice of our intention to terminate the Agreement. In that event, the entire responsibility for terminating the international machinery will fall on the United States. The Soviets and French wish to continue the international process, and Sir Hartley Shawcross' letter (Tab D) indicates that the British would be reluctant to accept the "political opprobrium" of termination. It is possible, of course, that high level diplomatic negotiations might bring about a change in this situation; of this possibility I am in no position to judge. 8. It is probable, though not absolutely clear, that a termination of the London Agreement is a complete termination for all purposes, so that Articles 10 and 11, relating to zonal trials of members of organizations, would be terminated. Furthermore, the Article (6) which specifies the three categories of crimes, would probably likewise disappear. Although I have not fully examined the question, I believed that these consequences would be harmful to our zonal trials under Control Council Law No. 10 and embarrassing to the denazification program. Certainly the consequences would not be helpful. 9. What is more important, termination of the London Agreement by the United States alone, or at its instigation, would, it appears to me, be most unfortunate from the standpoint of general international jurisprudence. The United States, through Mr. Justice Jackson, was the source of the inspiration and energy which brought about the London Agreement. The United States has an enormous moral investment in the declarations of the London Agreement. If the United States now becomes the prime mover for termination of the Agreement, this cannot help but injure the prospects for universal acceptance of the principles embodied in the Agreement. A termination could, to be sure, be presented and explained as being, not a renunciation of those principles, but a mere decision that one international trial in Europe is enough. But I doubt that such explanation will completely satisfy the peoples of the other signatories and adherents who are still eager to put those principles into practical application. 10. If we decide not to participate in a second trial, despite the Soviet and French desires, that decision will no doubt have certain diplomatic consequences. It is not my responsibility to weigh the nature or importance of these consequences. The results of my inquiry to the Secretary of State are set forth in Tab C. The probable views of the British Government are suggested in Tab D. 11. The probable attitude of the American public toward a second international trial, or towards our refusal to participate in such a trial, I am in no position to gauge. Obviously, this is an important consideration. "In fact, Alfried Krupp has been so designated already, and the French have handed us a "note" making this point and arguing that the four nations are therefore bound to try Alfried Krupp before the International Military Tribunal. PROPOSED SCOPE OF A SECOND TRIAL 12. All four governments are agreed that the second trial should be much smaller in scope, both as to number of defendants and subject matter, than the present trial. The The defendants should not exceed six or eight in number. trial should be (and, it is believed, can be) so planned that it will not last over three months. 13. All four governments are agreed that the main emphasis of the trial should be on German industrialists and financiers. All four governments are agreed that the defendants should include Alfried Krupp, Hermann Schmitz and Georg von Schnitzler (both of I. G. Farben), Kurt von Schroeder, and Hermann Roechling. The Soviet government has reserved the right to suggest one or two additional banking or industrial defendants. 14. The American prosecution would be expected to take primary responsibility for preparing and presenting the case against the Farben defendants and Alfried Krupp. The British prosecution will take primary responsibility on Kurt von Schroeder and assist on Krupp. The French will take the main responsibility on Roechling, and the Soviets on the one or two additional defendants to be suggested by them. 15. The other three governments are agreed that a second trial should be concerned exclusively with private industrialists and bankers, both because this group is the only one not represented in the present trial (Tab B, paragraph 9), and because concentration on a single subject matter will greatly shorten the trial. I agree with the view of the other governments. I doubt that it could be effectively charged that private industrialists are being "singled out" in view of the circumstances that (a) the present trial does not include any true representative of this category at all, and (b) the second trial would run simultaneously with our "zonal" trials in which SS leaders, militarists, government officials, and other diverse types will be defendants. In any event, the addition of a number of defendants of other types to the second international trial would make the impact too diffuse, the list too large, and indubitably lengthen the proceeding. The addition of only one or two such defendants would still result in diffusion and would probably attract attention to the emphasis on private industry by making it appear that we were trying to conceal it. 16. In summary, I foresee no substantial difficulty in reaching a final agreement with the other governments on a list of six to eight leading Nazi industrialists and bankers (including the five mentioned in paragraph 13, above), or in agreeing with them upon a workable division of responsibility for preparing and presenting the case against them. 17. Our research to date satisfies me that we will be able to prove serious charges of war crimes (both in the traditional "Hague Convention" sense and under Article 6 of the Charter) against the defendants listed above. They, and other prominent industrialists, joined with German leaders in other walks of life (military, police, diplomatic, etc.) in assisting Hitler's rise to power, waging aggressive war, plundering occupied countries, and deporting civilians to slave labor under inhuman conditions. None of the listed defendants is in any posi tion to use the defense of "change of heart" which Schacht has capitalized on in the present proceeding. The following skeleton outline of the presently available evidence is conservative: 8 The United States has reserved the right to name Max Ilgner as an additional Farben defendant should his addition prove desirable from a legal standpoint. There have been doubts about Roechling's physical condition, but an American Army doctor and cardiac specialist, after thorough examination, has recently advised us that Roechling is physically able to stand trial. |