in our systems. In England no defendant need give evidence in a criminal charge. It is up to him. On the Continent he can make a statement without being cross-examined. I understand that under this code he must answer questions. JUDGE FALCO. He is interrogated like a witness. He can say what he wants. SIR DAVID MAXWELL FYFE. It is not really adding a great deal. It would actually be contrary to our ideas that a person should be forced to give evidence if he did not want to, and, in addition, he could stand mute if he liked. I would like to hear others' views on that. MR. JUSTICE JACKSON. Our system, like yours, would not permit us to force a defendant to testify against himself. The constitutional provision against compulsory self-incrimination would protect him. That privilege is not known to the German law, as I understand it, and not to some other systems we are using here. We would be willing to adopt the Continental practice of making them testify, but, like you, I do not think it would accomplish a great deal and would not insist upon it if the others disagree. PROFESSOR TRAININ. The right of the prosecution and the court to ask questions of the accused must be provided for, but there is nothing at all to compel him to answer. I do not know of any law by which it is possible to compel the defendant to answer questions, but the court should be allowed the right to ask. They have the right to question. JUDGE FALCO. We have the same view. MR. JUSTICE JACKSON. I feel that the possibility of a two to two division is greater than we anticipated. Here we are now divided two to two on a question of procedure. SIR DAVID MAXWELL FYFE. The Soviet would cover the Continental point. The defendant may be asked questions by the prosecution, the defense, or the court, but he is not bound to answer them. MR. TROYANOVSKY. But that is provided for in number 24. MR. ALDERMAN. The solution is to strike this clause out. SIR DAVID MAXWELL FYFE. I believe 24(f) covers the right to question them, and we could strike this out here. MR. ROBERTS. That would suit me if we left it to the court. PROFESSOR TRAININ. In article 24 it says that defendants and witnesses may be questioned by the Tribunal, but it does not say anything about the prosecutor questioning. SIR DAVID MAXWELL FYFE. If he does not give evidence, then the court can answer the question. PROFESSOR TRAININ. The point is that the duties of the prosecutor under the Tribunal are of such a nature that they differ entirely from the Continental system. The prosecutor has much greater powers and, therefore, the Soviet Delegation considers that the prosecutor and the defense should have the right to question a defendant, but the defendant would not be compelled to answer. MR. ALDERMAN. Why the defense? The defense could not represent him unless the defense does what he asks him to. us, SIR DAVID MAXWELL FYFE. I feel there is no real difference between but it is rather difficult to explain. MR. JUSTICE JACKSON. The question remains whether the defendant is prejudiced by his refusal to answer. That is the real underlying question-is silence like a confession? The Conference adjourned until Tuesday, July 17, 1945, at 2 p.m. XXXI. Illustrative Draft of Indictment, Submitted by British Delegation, July 17, 1945 DRAFT LIST OF DEFENDANTS AND INDICTMENT GÖRING, HESS, RIBBENTROP, LEY, KEITEL, KALTENBRUNNER, ROSENBERG, HANS FRANK, FRICK AND STREICHER. [For consideration: Von Schirach, Sauckel.] 1. That between the 30th day of January, 1933 and the 8th day of May, 1945 the defendants unlawfully conspired together and with other persons to devise and carry out a common plan aimed at the establishment of complete German domination of Europe and other countries, which plan included and was intended to include and was reasonably calculated to involve the use of unlawful means for its accomplishment: TO WIT 2. For the purpose and in pursuance of the common plan the defendants organised in Germany large forces for the terrorisation and elimination of dissent from or disagreement with the carrying out of the plan, and for the suppression of the Jews and in particular, the defendants established and maintained the Schutz Staffel, the Gestapo, the Hitler Youth Organisation and the system of concentration camps. 3. The defendants repudiated and broke Clause of the Treaty of Versailles by the establishment of a Luftwaffe of which establishment they gave official notice to foreign governments on the 9th March, 1935. 4. The defendants broke Clauses and of the said Treaty by reintroducing conscription in Germany and fixing the peacetime strength of the German Army at some 550,000 men by Reich Decree dated the 16th March, 1935. 5. That the defendants broke Clauses 42 to 44 of the said Treaty by sending Armed Forces marching into the demilitarised Rhineland zone of which notice was given to foreign Governments (namely, Belgium, France, Great Britain and Italy) on the said date. 6. That having entered into treaties, pacts and agreements and having given assurances in purported pursuance of the maintenance of peace with neighboring countries the defendants broke such treaties, pacts, agreements and assurances as hereinafter set out. Treaty etc. Breach (a) Agreement with Schusch- Invasion of Austria, 11/12th nigg, 11th July, 1936. (b) Four Power Agreement con cluded at Munich on the 8th September, 1938. March, 1938. Invasion of Czechoslovakia, 15th (c) Non-aggression pact with Invasion of Denmark, 9th April, Denmark, 31st May, 1939. 1940. (d) Non-aggression pact with Attack on Russia, 22nd June, 1941. Russia, 23rd August, 1939. (e) Assurance of neutrality given Attack on Yugoslavia, 6th April, (f) The Locarno Agreement of Invasion of Belgium, 10th May, 1925 and assurances given to Belgium on the 30th (g) Assurance given to Luxem- [(i) Poland] 1940. Invasion of Luxembourg, 10th Invasion of Holland, 10th May, 1940. 7. In breach of Article 1 of Hague Convention No. III of 1907, in pursuance of the common plan and otherwise in breach of International Law, the defendants launched a war of aggression against and invaded the countries mentioned in paragraph 5 of this indictment on the dates set out in the column headed "Breach". 8. In the course of the wars commenced by the invasions mentioned in the two preceding paragraphs hereof, the defendants committed violations of the laws and usages of war contrary to article and of the Land Warfare Regulations attached to Hague Convention No. IV of 190 and further carried on such wars in a manner which was necessarily calculated to involve wholesale and atrocious breaches of the said laws and usages of war by performing and doing acts of which the following are typical examples: (a) The defendants imprisoned nationals of occupied countries in concentration camps and prisons and there used them for forced labour, ill-treated them and annihilated them: and in particular, at the establishments set up at Belsen, [Ravensbruck] Buchenwald, Maidanek, Auschwitz [Wught] [G way] and Natzweiler. in Nor (b) The defendants used torture and in particular, at the establishments mentioned in the last preceding paragraph, and at Breendonck and at in Paris. (c) The defendants deported civilian nationals from every occupied country for the purpose of forced labour and for other illegal purposes. (d) The defendants ill-treated and murdered the civilian populations of occupied countries. (e) The defendants inflicted general penalties on the nationals of occupied countries, including the destruction of civilian communities, towns and villages: and in particular, Lidice, Oradoursur-Glane and Kraguevacs. (f) The defendants adopted a policy of murder and ill-treatment of prisoners of war. (g) The defendants adopted a policy of wholesale plunder of occupied countries. |