LIII. Revised Definition of "Crimes", Prepared by British Delegation To Meet Views of Soviet Delegation, July 28, 1945 Note: On July 28, 1945, Sir Thomas Barnes delivered to Justice Jackson a further redraft which he had prepared in an endeavor to meet the Soviet views. He explained that the Soviet Delegation had agreed to this definition and had insisted on this form. The document follows: 27th July, 1945. 12:15 p. m. For the purpose of the trials of the major war criminals of the European Axis Powers before the Tribunal established by the Agreement referred to in Article 1 hereof, the following acts or designs or attempts at any of them shall be deemed to be crimes coming within the jurisdiction of the Tribunal: (a) Initiation of a war of aggression or participating in the waging of war or preparing for war in violation of treaties, agreements or assurances or participating in a common plan or conspiracy aimed at the domination of one nation over other nations and carried out by the European Axis Powers. (b) Violations of the laws, rules and customs of war. Such violations shall include murder and ill-treatment of prisoners of war, atrocities against civilian populations of occupied countries and the deportation of such populations to slave labour, wanton destruction of towns and villages, and plunder. (c) Atrocities against civilian populations other than those referred to in paragraph (b). These include murder and ill-treatment of civilians and deportations of civilians to slave labour and persecution on political, racial or religious grounds committed in pursuance of the common plan or conspiracy referred to in paragraph (a) above. Any person who is proved to have in any capacity directed or participated in the war or in the plan or conspiracy referred to in paragraph (a) above shall be personally answerable for each and every violation or atrocity referred to in paragraphs (b) or (c) above committed in furtherance of such war, or in pursuance of such plan or conspiracy, by the forces and authorities, whether armed, civilian or otherwise, in the service of any of the European Axis Powers. LIV. Revised Definition of "Crimes", The Tribunal established by the Agreement referred to in Article 1 hereof shall have power and jurisdiction to hear, try and determine charges of crime against only those who acted in aid of the European Axis Powers. The following acts, designs, or attempts at any of them, shall be deemed to be crimes coming within its jurisdiction: (a) Initiation of a war of aggression; or initiation of a war in violation of treaties, agreements or assurances, or otherwise in violation of International Law; or participating in a common plan or conspiracy aimed at the domination of one nation over other nations to be carried out by means of any such war. (b) Violations of the laws, rules or customs of war. Such violations shall include but are not limited to murder and ill-treatment of prisoners of war; atrocities against civilian populations of occupied countries; the deportation of such populations to slave labour; wanton destruction of towns and villages; and plunder or spoliation. (c) Atrocities against civilian populations other than those referred to in paragraph (b). These include but are not limited to murder and ill-treatment of civilians and deportations of civilians to slave labour or persecution on political, racial or religious grounds committed in any country, at any time, in pursuance of the common plan or conspiracy referred to in paragraph (a) above. Any person who is proved to have in any capacity directed or participated in the plan or conspiracy referred to in paragraph (a) above shall be personally answerable for each and every violation or atrocity referred to in paragraphs (6) or (c) above committed in furtherance of such plan or conspiracy, by forces and authorities, whether armed, civilian or otherwise. LV. Notes on Proposed Definition of "Crimes", Submitted by American Delegation, July 31, 1945 1. The jurisdiction of this Tribunal, of course, is limited to trial of those of the European Axis Powers. The definition of a crime cannot, however, be made to depend on which nation commits the act. I am not willing to charge as a crime against a German official acts which would not be crimes if committed by officials of the United States. I think no one will respect any conviction that rests on such a legal foundation. The draft attached suggests changes which would meet those objections. 2. In (a) "participating in the waging of the war" makes one guilty of the crime. This would make the entire soldiery, conscript and volunteer, and numerous civilians guilty. It comes close to making the entire German people guilty by definition. As I have explained, the guilt we should reach is not that of numberless little people of no consequence or influence, but of those who planned and whipped up the war. I suggest words which would accomplish this change. 3. Both (b) and (c) begin with general statements and go on to more specific items. It should be made clear that these specific statements do not limit the general ones. Destruction, as well as plunder, should be specified or we fail to reach such conduct as opening dykes to flood lands with salt water, etc. 4. In (c) we should insert words to make clear that we are reaching persecution, etc. of Jews and others in Germany as well as outside of it, and before as well as after commencement of the war. 5. The objection of Note 1 applies to "participated in the war" in the last paragraph in that as it stands at present it seems to render the entire draft meaningless. It may be interpreted as meaning that a person guilty under (a) shall not be answerable unless he is also guilty under (b) and (c), and that a person guilty of crimes under (b) and (c) shall not be answerable unless the crimes are committed in connection with the planning or the initiation of aggressive war. This, of course, would largely render all three paragraphs futile. I attach a draft intended to overcome what we regard as defects. Respectfully submitted, ROBERT H. JACKSON LVI. Revision of Definition of "Crimes", Submitted by American Delegation, July 31, 1945 ARTICLE 6. DEFINITION OF CRIMES The Tribunal established by the Agreement referred to in Article 1 hereof shall have power and jurisdiction to try and determine charges of crime against individuals who and organizations which acted in aid of the European Axis Powers and to impose punishments on those found guilty. The following acts, or any of them, are crimes coming within its jurisdiction for which there shall be individual responsibility: (a) THE CRIME OF WAR, namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of any international treaty, agreement, or assurance, or in particular, of the General Treaty for the Renunciation of War, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES, namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; sinking of merchant vessels in disregard of international law; attack upon hospital ships; plunder of public or private property; wanton destruction of cities, towns or villages; devastation not justified by military necessity. (c) CRIMES AGAINST HUMANITY, namely, murder extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, religious grounds, in furtherance of or in connection with any crime within the jurisdiction of the International Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leader's, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in furtherance of such plan. International law shall include treaties, agreements, and assurances between nations, and the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience. LVII. Memorandum on Changes in Subcommittee Draft Desired by American Delegation, July 31, 1945 MEMORANDUM or SUGGESTIONS BY THE UNITED STATES OF ALTERATIONS IN THE DRAFT OF AGREEMENT AND CHARTER SUBMITTED BY THE SUBCOMMITTEE July 31, 1945 Article 4 of the Agreement as reported reads: "Nothing in the Agreement shall prejudice or release the obligations of the parties to the Moscow Declaration for the return of persons to be tried at the scenes of their crimes." The Moscow Declaration was not a legal document but was a broad statement of policy by the representatives of three nations. It did not, in my opinion, create legal obligations. I would not feel free, in the legal instrument now before us, to recognize as legal "obligations", in favor of unnamed obligees, this statement of policy. Of course, nothing that we do here should affect the Declaration. I would not object to the inclusion of the following or equivalent language: "Nothing in this Agreement shall affect the policy stated in the Moscow Declaration concerning the return of persons to be tried at the scenes of their crimes." Article 7 provides that the Agreement for joint trials shall remain in force for a period of one year. Nothing in the Agreement releases the ready parties if one or more of them fails to appoint prosecutors or members of the Tribunal, or otherwise to take steps without which the Agreement could not function. I propose that a provision authorize withdrawal if any Signatory to the Agreement fails promptly to perform the undertakings of it. Article 15 (1) of the Charter, in the last paragraph, we would like amended to read, "Provided that if there is an equal division of vote concerning the designation of the defendant to be tried by the Tribunal or the charges to be made that proposal will be adopted which was made by the party which proposed that the particular defendant be tried." Article 16 of the Charter should allow the defendant to cross examine any witness called by the prosecution, and he should have the |