SIR DAVID MAXWELL FYFE. I should be glad to accept that as a compromise between the two views.

GENERAL NIKITCHENKO. I wish to repeat it is not part of our task to try to work out a definition of aggression because, however perfect or good our definition would be, it would not be binding to the defendants, and they might question it. If such an argument does crop up, it would be up to the Chief Prosecutors, who would be very competent to parry any arguments that the defendants or counsel might put up. As far as I know, although I have not studied in detail the United Nations Charter adopted in San Francisco, even there there was no attempt to define aggression as such. If the San Francisco Conference did not do that, the more reason I think that this commission, or I personally, am not competent to work out a definition.

SIR DAVID MAXWELL FYFE. I wonder whether it would meet that point and give us the assistance we want if we were to put in quite briefly as the policy of aggression the policy defined, for example, by the Kellogg-Briand pact and the declaration of the United Nations. That would give a pointer without defining it. That would not be tying us to defining it but would be showing us the sort of aggression at which we were aiming.

PROFESSOR GROS. I cannot see any difficulty. It is only the position of the treaties, and it should be said that it is only an example, because there are other treaties.

GENERAL NIKITCHENKO. Wouldn't it be rather disrespectful to the members of the Tribunal to point out to them the treaties which we should expect them to know or at least to study?

MR. JUSTICE JACKSON. I do not think so. We don't usually assume that a judge knows any specific laws in my country and require counsel to file a brief on nearly every point.

SIR DAVID MAXWELL FYFE. I do suggest that that would really give us reasonable basis of compromise; it would indicate to the Tribunal where they ought to look and what they ought to see, which, though I haven't been in Mr. Justice Jackson's high judicial position, I think would help without offense. On the other hand, we would not be falling into the position which General Nikitchenko and Professor Gros have envisaged of trying to decide a problem which the United Nations organization has not yet tackled.

PROFESSOR GROS. It was implied that-if Mr. Justice Jackson thinks it will give satisfaction, particularly to public opinion-materially it is in the text of the treaties.

MR. JUSTICE JACKSON. Really I do not think it concerns me very much. That is probably one thing we Americans would not get in at all at the trial. It concerns European powers rather than ourselves. I should hate to see a political controversy at this trial, which will be

widely reported, and the suggestion really comes to mind because of the Soviet suggestion that we should eliminate propaganda. I do not think we can eliminate what may be propaganda if it also is relevant to issues we ourselves raise in the case. But I should think we could so limit the crime charged in this case that it would not be necessary to worry about propaganda. It is an entirely different thing trying to define aggression for the United Nations organization as a future policy and solving it as a juridical policy. This Tribunal will have to act on the subject, and the United Nations organization does not. Political definition seems to me much more difficult than judicial definition. Either we or the court have got to define this concept on which we predicate a charge of crime.

SIR DAVID MAXWELL FYFE. Then I revert to my original suggestion: If we take the French draft as the basis, perhaps Professor Gros could discuss it with Mr. Clyde and Mr. Troyanovsky on the question of wording, and we might meet tomorrow afternoon after our pleasant interlude as guests of General Nikitchenko [see note following] and see whether we have the form to suit us. GENERAL NIKITCHENKO. As for this reference, would it not be better to refer to some more recent declarations—say, for instance, the policy of aggression condemned by the United Nations organization?

PROFESSOR GROS. The reason for referring to the Kellogg-Briand pact is that it was signed by Germany.

SIR DAVID MAXWELL FYFE. Perhaps, if you could find a good modern one to add to them, it would do no harm. Perhaps you could turn that over in your mind-a very short one, but I think it would be necessary.

The draft of article 15 [XXXVIII] was circulated, and the Conference adjourned.

Note: On Friday, July 20, 1945, all delegations were guests of the Soviet Delegation at a luncheon at the Savoy Hotel in London. At that time the Soviet Delegation advised that they would not be able to go on the trip to Nürnberg on the following day. Justice Jackson offered to change the date to any time that would be agreeable to them. They said, however, that a change of date would not make any difference to them. On consultation with the Attorney-General and Judge Falco it was decided that the remaining delegations should proceed to Nürnberg nevertheless.

On July 21, 1945, the British Delegation and the French Delegation, together with the American Delegation and staff, flew to Nürnberg, inspected the Palace of Justice and the prison, as well as hotel facilities, billeting, and other features entering into the desirability of the selection of that city as the place for the trial.

XXXVIII. Proposed Revision of Article 15 of Draft Agreement, Submitted by British Delegation, July 19, 1945

COMMITTEE FOR THE INVESTIGATION AND DESIGNATION OF MAJOR WAR CRIMINALS AND THEIR PROSECUTION

19th July, 1945.

15. Each Signatory shall appoint a Chief Prosecutor for the investigating of the charges against and the prosecution of major war criminals.

The Chief Prosecutors shall act as a Committee for the following purposes:

(a) to make a general plan for the carrying out of any trial or trials: (i) Until all the Signatories have appointed Chief Prosecutors,

each of the Chief Prosecutors already appointed shall take such steps as, in his view, are best calculated to assist in the preparations for trial.

(ii) When the Chief Prosecutors have been appointed, they shall, as soon as possible, meet and arrange a general plan for the first trial and shall, so far as possible, adopt the steps taken under (i).

(iii) In the execution of that or any subsequent plan, each of the Chief Prosecutors shall be entitled to take such action as he thinks best calculated to carry it out and to decide how best the portion of the plan undertaken by him can be carried into effect.

(iv) If one Chief Prosecutor proposes that any subject-matter be included in any plan, such subject-matter shall be included unless, by a majority vote, the Chief Prosecutors decide otherwise.

(b) to settle the list of major war criminals to be tried by the Tribunal: If one Chief Prosecutor proposes that any Defendant be tried by the Tribunal, such Defendant shall be tried unless, by a majority vote, the Chief Prosecutors decide otherwise.

Unless otherwise agreed, there shall be submitted to the first trial before the Tribunal, only Defendants who have been unanimously designated by the Chief Prosecutors.

(c) to settle the draft of the Indictment and the documents to be submitted therewith, copies of which are to be furnished to the Defendants.

The documents to be submitted with the Indictment shall include:

(i) lists of treaties, agreements or assurances, to be referred to by the Prosecution, and copies of relevant clauses and parts thereof:

(ii) official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes and records or findings of military or other tribunals of any of the United Nations:

(iii) copies of the statement, deposition or affidavit of any wit

ness on which the Prosecution intends to rely save in cases where it is proposed that the witness shall testify before the Tribunal in person:

(iv) copies of any statements made by any Defendant.

No document of a class other than those mentioned shall be submitted with the Indictment unless the Chief Prosecutors, by a majority vote, decide otherwise: but nothing herein contained shall prejudice the right of the Chief Prosecutors to submit to the Tribunal (with the duty to serve copies thereof on the Defendants) at any time after the lodging of the Indictment or at the Trial, any other document (whether or not of the classes referred to in sub-paragraphs (i) to (iv) hereof) which was not available or convenient for lodging with the Indictment: or to call at the Trial any oral evidence.

(d) the lodgment of the Indictment and the accompanying documents with the Tribunal:

(e) the drawing up and recommending to the Tribunal for its approval draft rules of procedure contemplated by Article 14 of this Charter. The Tribunal shall have power to accept, with or without amendments, or to reject, the rules so recommended.

In the event of any difference of opinion as to matters (d) and (e) the Committee shall act on a majority vote, and any proposal which fails to secure more than two votes shall be deemed rejected.

XXXIX. Proposed Revision of Definition of "Crimes" (Article 6), Submitted by British Delegation, July 20, 1945

The Tribunal shall have power to try, convict and sentence any person who has, in any capacity whatever directed or participated in the planning, furtherance, or conduct of any or all of the following acts, designs, or attempts namely:

1. Domination over other nations or aggression against them in the manner condemned or foresworn in (inter alia) the following Pacts or Declarations

2. Systematic atrocities against or systematic terrorism or ill-treatment or murder of civilians

3. Launching or waging war in a manner contrary to the laws, usages and customs of warfare

and who is hereby declared therefore to be personally answerable for the violations of international law, of the laws of humanity, and of the dictates of the public conscience, committed in the course of carrying out the said acts, designs or attempts by the forces and authorities whether armed, civilian or otherwise, in the service of any of the European Axis Powers.