THE PREFACE HE decision of the Department of State to publish the record of negotiations resulting in the London agreement of August 8, 1945, for the trial of major European war criminals and the accompanying charter of the International Military Tribunal makes appropriate some introductory information to help the reader integrate the separate documents and discussions into a general plan. The United States, at the close of World War II, found itself in possession of high-ranking prisoners. Many of them had been publicly branded with personal blame for precipitating the war and for incitement or perpetration of acts of barbarism in connection with its preparation and conduct. This country, through President Franklin D. Roosevelt, had joined in rather definite commitments to bring such men to justice, but no treaty, precedent, or custom determined by what method justice should be done. The latter problem seems to have been given little consideration by any of the Allied governments until discussion of possible procedures was initiated early in 1945 at the Yalta Conference. Thereafter, as the documents set forth herein show, the United States proposal was expanded and refined into a draft of a proposed agreement which the United States submitted to the Foreign Ministers of France, Great Britain, and the Union of Soviet Socialist Republics at the San Francisco Conference. This American draft was again revised and on June 14 was resubmitted to the other governments. On June 26 representatives of the four nations met in London to chart a common course of action. The four nations whose delegates sat down at London to reconcile their conflicting views represented the maximum divergence in legal concepts and traditions likely to be found among occidental nations. Great Britain and the United States, of course, are known as commonlaw countries and, with some variations between their procedures, they together exemplify the system of law peculiar to English-speaking peoples. On the other hand, France and the Soviet Union both use variations of what generally may be called the Continental system. But between French and Soviet practice there are significant variations, occasioned perhaps by the different derivations of the two systems, the French having its roots in Roman law of the Western Empire and the Russian having been influenced by Roman ideas chiefly from the Eastern Empire by way of Byzantium. It was to be ex pected that differences in origin, tradition, and philosophy among these legal systems would beget different approaches to the novel task of dealing with war criminals through the judicial process. A fundamental cleavage, which persisted throughout the negotiations, was caused by the difference between the Soviet practice, under which a judicial inquiry is carried on chiefly by the court and not by the parties, and the Anglo-American theory of a criminal trial, which the Soviet jurist rejects and stigmatizes as the "contest theory". The Soviets rely on the diligence of the tribunal rather than on the zeal and self-interest of adversaries to develop the facts. Another fundamental opposition concerns the function of a judiciary. The Soviet views a court as "one of the organs of government power, a weapon in the hands of the ruling class for the purpose of safeguarding its interests". It is not strange that those trained in that view should find it difficult to accept or to understand the Anglo-American idea of a court as an independent agency responsible only before the law. It will not be difficult to trace in the deliberations of the Conference the influence of these antagonistic concepts. While the Soviet authorities accept the reality and binding force of international law in general, they do not submit themselves to the general mass of customary law deduced from the practice of western states. With dissimilar backgrounds in both penal law and international law it is less surprising that clashes developed at the Conference than that they could be reconciled. That these discords were stubborn and deep, the minutes of the conferences adequately disclose. They do not and cannot disclose all the efforts at conciliation, for there were many personal conversations between members of differing delegations, outside the formal meetings, which aimed to gain knowledge of each other's viewpoints and clear up misunderstandings. Since the press was not admitted to the conferences there was no public exploitation of our divergencies and no temptation to differ merely for reasons of home politics; indeed, in no delegation was there any disposition to do so. Much of these conference minutes will impress the reader as embodying vain repetition. And much of the exposition of rival legal systems is too cryptic and general to be satisfying to the student of comparative law. How much of the obvious difficulty in reaching a real meeting of minds was due to the barrier of language and how much to underlying differences in juristic principles and concepts was not always easy to estimate. But when difference was evident, from whatever source, we insisted with tedious perseverance that it be reconciled as far as possible in the closed conferences and not be glossed over only to flare up again in the public trials. • On some points, however, no agreement was reached. An example is the oft-repeated American proposal to include in the charter a definition of "aggression", which was one of the most controversial crimes dealt with. This omission may well be regarded as a defect, at least in theory, in the charter. In practice it had no harmful consequences, largely because the evidence of Hitler's own conferences with his High Command showed the attacks which began with Poland to be so blatantly aggressive by any permissible definition that almost no denial of the aggressive character of the war was heard at the trial, and some of the defendants even characterized it as such. Much of the Conference was given to discussion of the American proposal for a procedure whereby the Tribunal in the main trial would declare certain Nazi organizations to be criminal as a basis for reaching the members in later trials of individuals at which the Tribunal's finding as to the criminal character of the organizations would be conclusive of that question. This was one of the essential features of the Yalta proposal put forth by Secretary of State Edward R. Stettinius, Jr., Secretary of War Henry L. Stimson, and Attorney General Francis J. Biddle. No other plan had been devised for reaching the multitudes who, as members of such organizations as the Gestapo and SS, promoted and executed the Nazi criminal program. At the time of the London Conference it was not known what, if any, steps the Allied Control Council would take to deal with these organizations. Therefore, this plan seemed to have an importance which somewhat diminished as the denazification program unfolded after the Nürnberg trial began. Another point on which there was a significant difference of viewpoint concerned the principles of conspiracy as developed in AngloAmerican law, which are not fully followed nor always well regarded by Continental jurists. Continental law recognizes the criminality of aiding and abetting but not all the aspects of the crime of conspiracy as we know it. But the French and Soviet Delegations agreed to its inclusion as appropriate to the kind of offenses the charter was designed to deal with. However, the language which expressed this agreement seems not to have conveyed to the minds of the judges the intention clearly expressed by the framers of the charter in conference, for, while the legal concept of conspiracy was accepted by the Tribunal, it was given a very limited construction in the judgment. The most serious disagreement, and one on which the United States declined to recede from its position even if it meant the failure of the Conference, concerned the definition of crimes. The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when com mitted by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct. At the final meeting the Soviet qualifications were dropped and agreement was reached on a generic definition acceptable to all. The agreement and charter of London, as finally signed by representatives of the four conferring powers on August 8, 1945, has been formally adhered to by 19 additional nations: Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, and Yugoslavia. The principles of the charter thus constitute the solemn judgment of 23 governments representing some 900 million people. In addition, the principles of the Nürnberg trial have been given general approval by the General Assembly of the United Nations. The principles of the charter, no less than its wide acceptance, establish its significance as a step in the evolution of a law-governed society of nations. The charter is something of a landmark, both as a substantive code defining crimes against the international community and also as an instrument establishing a procedure for prosecution and trial of such crimes before an international court. It carries the conception of crime against the society of nations far beyond its former state and to a point which probably will not be exceeded, either through revision in principle or through restatement, in the foreseeable future. There is debate as to whether its provisions introduce innovations or whether they merely make explicit and unambiguous what was previously implicit in international law. But whether the London Conference merely codified existing but inchoate principles of law, or whether it originated new doctrine, the charter, followed by the international trial, conviction, and punishment of the German leaders at Nürnberg, marks a transition in international law which calls for a full exposition of the negotiations which brought it forth. Three broad categories of acts are defined as criminal in this code. The first, crimes against peace, consists of planning, preparing, initiating, or waging a war of aggression or a war in violation of international undertakings, or participating in a common plan or conspiracy to accomplish any of the foregoing acts. The second category, war crimes, embraces violations of the laws and customs of land and sea warfare, including plunder, wanton destruction, and all forms of mistreatment of inhabitants of occupied territories and prisoners of war. The third class of offenses, crimes against humanity, consists of murder, extermination, enslavement, deportation, and other inhumane |