The Search for World Peace
XXXV. Draft Article on Definition of "Crimes", Submitted by French Delegation, July 19, 1945
Note: On July 19, 1945, the French Delegation submitted a draft of article 6 on the definition of "crimes", together with their own translation of it into English, as follows:
DRAFT ARTICLE ON THE DEFINITION OF CRIMES
The Tribunal will have jurisdiction to try any person who has, in any capacity whatsoever, directed the preparation and conduct of:
i) the policy of aggression against, and of domination over, other nations, carried out by the European Axis Powers in breach of treaties and in violation of international law;
ii) the policy of atrocities and persecutions against civilian populations;
iii) the war, launched and waged contrary to the laws and customs of international law;
and who is responsible for the violations of international law, the laws of humanity and the dictates of the public conscience, committed by the armed forces and civilian authorities in the service of those enemy Powers.
XXXVI. Definition of "Aggression," Suggested by American Delegation as Basis of Discussion, July 19, 1945
DEFINITION OF AGGRESSION SUGGESTED FOR CONSIDERATION WITH ARTICLE 6
An aggressor, for the purposes of this Article, is that state which is the first to commit any of the following actions:
(1) Declaration of war upon another state;
(2) Invasion by its armed forces, with or without a declaration of war, of the territory of another state;
(3) Attack by its land, naval, or air forces, with or without a declaration of war, on the territory, vessels, or aircraft of another state;
(4) Naval blockade of the coasts or ports of another state;
(5) Provision of support to armed bands formed in its territory which have invaded the territory of another state, or refusal, notwithstanding the request of the invaded state, to take in its own territory, all the measures in its power to deprive those bands of all assistance or protection.
No political, military, economic or other considerations shall serve as an excuse or justification for such actions; but exercise of the right of legitimate self-defense, that is to say, resistance to an act of aggression, or action to assist a state which has been subjected to aggression, shall not constitute a war of aggression.
XXXVII. Minutes of Conference Session of July 19, 1945
Sir David Maxwell Fyfe called the Conference to order and called attention to a draft article on the definition of crimes proposed by the French Delegation [XXXV], and a definition of aggression suggested by the American Delegation for consideration in connection with the definition of crimes [XXXVI].
Sir David Maxwell FYFE. Perhaps the French Delegation will be good enough to explain their suggestion of definitions.
Professor GROS. It is hard to add anything to the actual draft. The intention is the same as those of others who have proposed drafts of article 6. Our objections to the definitions so far proposed are that the statute of the International Tribunal will stand as a landmark which will be examined for many years to come, and we want to try to avoid any criticisms.
We do not consider as a criminal violation the launching of a war of aggression. If we declare war a criminal act of individuals, we are going farther than the actual law. We think that in the next years any state which will launch a war of aggression will bear criminal responsibility morally and politically; but on the basis of international law as it stands today, we do not believe these conclusions are right. Where a state would launch a war of aggression and not conduct that war according to rules of international law, it would be desirable to punish them as criminals, but it would not be criminal for only launching a war of aggression.
We do not want criticism in later years of punishing something that was not actually criminal, such as launching a war of aggression. The judges would be in a very difficult position if we insist on that fact. The subject was often up for discussion in the League of Nations. It is said very often that a war of aggression is an international crime, as a consequence of which it is the obligation of the aggressor to repair the damages caused by his actions. But there is no criminal sanction. It implies only an obligation to repair damage. We think it will turn out that nobody can say that launching a war of aggression is an international crime—you are actually inventing the sanction. The subject was studied by Professor Trainin in his book. He tries to construct the idea of an international crime. He recognized that international law, as it now stands, does not make it punishable. The effort to make war of aggression an international crime is still tentative.
If, instead of making a declaration of international law which is not certain, we use our draft, we will avoid that difficulty and get the same results. We are not declaring a new principle of international law. We are just declaring we are going to punish those responsible for criminal acts. We do not go beyond what is traditional with most lawyers as to acts that were crimes even before the effort to make a war of aggression a war crime. The judges that will sit on the Tribunal will be lawyers, and they will be watched by all countries and will try to judge fairly and impartially. We attempt to avoid any discussion between the judges on the subject that we are trying to put in the draft.
Sir David Maxwell FYFE. Do we gather that what you are saying is objectionable is the words in the draft "shall be considered criminal violations of International Law" ?
Professor GROS. Yes. We start from something that is not in doubt—that the conduct of a war in violation of international law is a crime—and from that we build a case. The responsibility goes up to the perpetrator and instigator.
Sir David Maxwell FYFE. Just one other point. Is your number i), referring to "policy of aggression against, and of domination over", intended to be the equivalent of the common plan to wage a war of aggression in violation of international law? Had you in mind the common plan or great design?
Professor GROS. We tried to cover exactly the same ideas but to build from a different basis. The previous drafts of article 6 start from the top and say what will be a criminal violation of international law. On the contrary, we start from the bottom, say that there have been indisputable crimes and go up the line of responsibility to the instigator of the war. It is difficult for me to discuss this very delicate point in another language. It seems to me that the previous drafts amount only to a declaration by four people, while in our definition you have a reminder that this policy is criminal because it is carried out in violation of treaties and of international law.
Sir David Maxwell FYFE. We have a conception of conspiracy in our law and would like to know whether you have it too. Take arson, for which there is no criminal sanction and which has its only remedy in reparations, as you mention. But the conspiracy to commit such arson in English law is a criminal act.
Professor GROS. No, we do not have that conception of conspiracy. We would have to make new law.
Sir David Maxwell FYFE. For you in America, a conspiracy to commit a tort is a crime?
Mr. Justice JACKSON. Sometimes, but by virtue of statutes. Except in a very few States we do not have common-law crimes, but only statutory ones.
Sir David Maxwell FYFE. The question comes to this: whether it is right or desirable to accept the position that a war of aggression is a crime. It seems to be agreed that it is. The fundamental difficulty is the lack of sanction. More strictly it may be said that it is accepted as a crime without declared punishment or any declared sanction against it.
Professor GROS. It may be a crime to launch a war of aggression on the part of a state that does so, but that does not imply the commission of criminal acts by individual people who have launched a war. When you say that a state which launches a war has committed a crime, you do not imply that the members of that state are criminals.
Sir David Maxwell FYFE. Don't you imply that the people who have actually been personally responsible for launching the war have committed a crime?
Professor GROS. We think that would be morally and politically desirable but that it is not international law.
Sir David Maxwell FYFE. You see the distinction in my mind. To look at it as a crime of the state only may include people who have very little real responsibility for it. But, if you can show that the war has been the result of the actions of 15 or 20 people, it is a difficult conception that those people are not responsible for their own acts when it is admitted that they result in an international crime.
Professor GROS. That certainly is what we would wish. But I would like you to note one thing that is important because it will be used as a precedent. I refer to the report to the Peace Conference in 1919. It certainly was the state of the law in 1919 that the acts which brought about a war would not be charged against officers or made the subject of procedure before a tribunal. And the Germans will take for a precedent what is still worse for our object—the report of James Brown Scott and Robert Lansing to show that we have no legal basis to say that launching a war of aggression shows criminal responsibility of the people who launched that war.
But, if you define their crimes according to their practical results, if you show that the Germans have been breaking treaties and as a result of that have annexed populations, run concentration camps, and violated international law by criminal acts against people, what you will condemn are those acts which in fact are criminal in all legislation, and you will condemn them for having directed those acts. I would not object at all to those same words in the charter if they were designed as a precedent for any government for the future. My difficulty is that this charter is not made to declare new international law; it is made to punish war criminals and the basis must be a safe one. Naturally, we would be open to modifications of our draft.
General NIKITCHENKO. The definition of "war criminals" was set forth in the Moscow and Crimea declarations, and it is our opinion we should act on those declarations. If we turn once again to the terms of the Moscow declaration, we see that apparently the conception of what is a war criminal is quite clear. But the difficulty is in trying to confine this definition to a legal formula which would form the basis of a trial of these war criminals. In my opinion we should not try to draw up this definition for the future. The critics will try to find any inconsistencies and any points that are not clear and to turn these points against those who draw up the definition in the charter. In my opinion our task should be to form the basis for the trial not of any criminals who may commit international crimes in the future but of those who have already done so. I refer to the beginning of the Moscow declaration in which it is stated that Great Britain, the United States, and the Soviet Union have received from various sources evidences of atrocities, murders, cold-blooded mass executions which are being committed by Hitler's armed forces in many countries captured by them. For these crimes the Nazis should be punished. By our formula we should not give those who committed criminal acts the possibility of considering themselves political criminals. If we were to try to set forth in detail the various crimes committed by the Nazis, we might very well make a mistake. It is quite impossible to give an exhaustive list of the crimes. If, on the other hand, we should confine ourselves to a few matters, that too would not be right. Therefore we should work out a formula which would make it possible to bring to trial and punish those who have committed all the various atrocities. At the same time we should not, of course, confine ourselves to persons who have actually committed the crimes but should also especially reach those who organized or conspired them. From our point of view the form of article 6, as it has been formulated by the direction of the committee, is not agreeable thus. It gives a very wide field of interpretation to acts which in one case might be an international crime and in another case might not be so. That is why from our point of view the formula proposed by the French Delegation is better—first of all, because it provides not for the responsibility of states or any social organisms but for the responsibility of persons; secondly, because the crimes are set forth in such a manner that they are turned only against those who have committed the crimes.
We did not submit a text of our own, not only not to provoke a fresh discussion, but in order to be able to come to an agreement quickly. We are ready to support the formula submitted by the French Delegation, that is, we would be in a position to recommend it to our Government.
Mr. Justice JACKSON. Well, I am in agreement with a great deal that Professor Gros and General Nikitchenko have said. This is a most difficult subject and a most important one, not only for today but for time to come. However, if we look only to the past with our action, it will be of little importance to the future. We have no interest in any particular formula so long as it accomplishes the purpose of giving some real moral meaning to the principles that underlie any prosecution. I agree entirely that the formula should look, as General Nikitchenko says, to the responsibility of persons, rather than of states, and think the formula as stated is defective in that respect.
We have given a great deal of thought—not only the men of my staff but other eminent American scholars—to this subject of the crime of making war. I must say that sentiment in the United States and the better world opinion have greatly changed since Mr. James Brown Scott and Secretary Lansing announced their views as to criminal responsibility for the first World War. I have no expectation that any rule we could formulate would avoid the criticism of some scholars of international law, for a good many of them since 1918—in language that was used about others—have learned nothing and have forgotten nothing. But I don't think we can take the 1918 view on matters of war and peace. At least in the United States we have moved far from it with such measures as lend-lease and neutrality. As I have understood Professor Trainin's book, which I have read carefully in the effort to understand the Soviet views, I gather that his view comes very close to the view which we entertain in the United States. Our attitude as a nation, in a number of transactions, was based on the proposition that this was an illegal war from the moment that it was started, and that therefore, without losing our rights as neutrals or nonbelligerents, it was our right to extend aid to the nations under illegal attack, and the lend-lease program, the exchange of bases for destroyers, and much of American policy was based squarely on the proposition that a war of aggression is outlawed.
I was obliged to pass on a good deal of American activity in the period just preceding the war, as Attorney General, and I stated the position quite clearly that our view was that this was an illegal war of aggression in violation of the Briand-Kellogg pact and other applicable treaties. And I notice that the latest issue of Oppenheim on International Law, just out, says that my Havana speech, which some of you have read, was a sound view of international law, although it was criticized in my own country at the time. Therefore, our view is that this isn't merely a case of showing that these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace, which to our mind is a criminal offense by common-law tests, at least, and the other atrocities were all preparatory to it or done in execution of it.
Now the difficulty, as I see it, is that there is no prescribed sanction, no criminal penalty, provided for that kind of what we may call "common law" crime of violation of international law. Neither is there a criminal sanction or penalty prescribed for the other violations of international law which the French draft considers to be punishable. In other words, we have no statute which states any penalties or individual responsibilities for any offenses under whatever formula we attempt to arraign them.
To be specific: The language of the French draft, I am fearful, does not cover just the same things that our draft covers. If it did, I should be quite happy to accept the formula. In subparagraph (1) for example, to be punishable the policy of aggression must be carried out, as I read the statement, both in breach of treaties and in violation of international law. That we think would leave open to argument before the court whether this policy of aggression is in violation of present international law, and brings up at the trial all of the questions that our statute ought to settle. If that read "in breach of treaties or violation" of international law, we would have much less difficulty with it.
Professor GROS. If you will read the French text, which I am afraid was somewhat difficult to translate into English, that covers your point. We say in violation of international law and treaties, but international law is composed of treaties. To violate a treaty is to violate international law. So if you want to say "or" instead of "and", we do not object at all. Aggression is certainly the same if you breach a special treaty or if you just invade your neighbor—it is the same condemnable policy.
Mr. Justice JACKSON. The other doubt that I have is whether this draft sufficiently and explicitly embodies the common plan or conspiracy idea which is necessary to reach a great many of the equally guilty persons against whom evidence of specific violent acts may be lacking although there is ample proof that they participated in the common plan or enterprise or conspiracy. I think that if those points could be clarified, so that we don't leave them in doubt, we might be able to work out from this an acceptable basis. I do like the brevity of the French version. But I again repeat that in connection with this we should attempt to make some provision as to what constitutes aggression, in which I think all of the American proposals were defective. Otherwise we may get into litigation over whether what we call a policy of aggression was in fact a policy of long-range self-defense. That is the point which I suggested the other day and is one on which I would like to present this written proposal to this group [XXXVI]. Would it be a good thing to consider that now or later?
Professor GROS. I think to embody the common-plan theory would be easy. It is only a question of drafting. We thought of putting the word "planned", but it is difficult. It would have "or the plan of", but as it refers to conduct—
Sir David Maxwell FYFE. It occurred to me you could do it in either of two ways. In the beginning "and took part in a plan to further", or the policy of aggression could be put in a more concrete form by "conduct of a plan to achieve aggression against". What is in my mind is getting a man like Ribbentrop or Ley. It would be a great pity if we failed to get Ribbentrop or Ley or Streicher. Now I want words that will leave no doubt that men who have originated the plan or taken part in the early stages of the plan are going to be within the jurisdiction of the Tribunal. I do not want any argument that Ribbentrop did not direct the preparation because he merely was overborne by Hitler, or any nonsense of that kind.
General NIKITCHENKO. Will Professor Gros excuse me if I try to amend his draft? In my opinion, in the Russian the word "policy" is not quite enough to mean actually the carrying out of a wide plan of aggression or domination over other nations, and in my opinion Ribbentrop, Ley, and others can say that they do not come under that.
Professor GROS. "Policy" is the widest term we can use.
Sir David Maxwell FYFE. Our difficulty is that "policy" is rather a loose word in English and is inclined to be used by people when they want to get out of expressing a concrete meaning. I should have to consider that a little. With the idea which Professor Gros initiated and General Nikitchenko supported I am in entire agreement. That is what we want to draft in order to do as inclusive a job as we can.
MR. JUSTICE JACKSON. May I ask one question more on the French draft? Could the "and" in the last paragraph be "or"? You could drop both "and who" and thus eliminate the issue that seems to lurk in the definition.
Professor GROS. In fact we put under that responsibility everything that has been committed in detail, and they are responsible because they are the instigators of the plan. It puts the charge of every detail on them.
Mr. Justice JACKSON. If you are embodying our concept of conspiracy in that language, my difficulty is that an American judge would not be certain to recognize it in that dress.
Professor GROS. We imply that all people who have planned invasions and atrocities are responsible for all the atrocities which have been committed in execution of that plan. They are the instigators of the crimes.
Mr. Justice JACKSON. Well, I think that clarifies a point that was troublesome in my mind, and I think in the Attorney General's mind, about this, and we do seem close together in our ultimate meaning.
Professor GROS. Mrs. Mackenzie suggests we might put "and who is therefore responsible". That would be acceptable. Shall we return to Mr. Justice Jackson's proposal to define aggression?
Mr. Justice JACKSON. On the aggression point, what we did was to look at some of the treaties which have been made on that subject and try to draft something in line with what has been accepted before. I have here a draft of a proposed provision. That is a draft from what was used in one treaty to which the Soviet Union was a party. There is another treaty of nonaggression that was the subject of a great deal of consideration, and I call attention to the other treaty, the London nonaggression treaty of July 4, 1933, the language of which is followed closely. The point is that we take the actual attack, actual invasion, as constituting the aggression, and we cut off arguments that there wasn't an "attack" because invasion really was in defense against political or economic measures. Now Germany will undoubtedly contend, if we don't put this in, that this wasn't a war of aggression although it looked like it. They will say that in reality they were defending against encirclement or other remote menaces. Then you are in the whole political argument of who was doing what to whom in Europe before 1939.
I think we should not litigate the cause of the war but should hold this case within the issue as to who first made an attack, without allowing trial as to any motive that involved only economic or political considerations.
This language is not suggested as perfect, but I think the idea of defining "aggressor" is very important and that we shall have to face it at some point in this prosecution. We either have to define it now, in which case it will end argument at the trial, or define it at the trial, in which case it will be the subject of an argument in which the Germans will participate; and it seems to me that it is much better that we face it now and preclude all of that argument.
Sir David Maxwell FYFE. I wonder whether it would meet our purposes if, on the explanation of Professor Gros, the French draft is accepted as a basis in essentials covering our purpose. Then I think I would be happier myself if after "directed" is inserted a combination of some such words as "or took part in a plan to further". I would suggest that, if we accept that as a basis, including some such words again referring to the substance of a plan, Professor Gros and Mr. Clyde and Mr. Troyanovsky could act as an unofficial drafting committee on that point, and they might present us with a final copy which we would consider.
General NIKITCHENKO. On the point of the Jackson proposal as to the definition of "aggressor", this question has been frequently discussed at various conferences and meetings, and it seems to us it does not enter into the competence of this commission to do so; in trying to punish persons guilty, we should base ourselves on the definitions entered in the various previous documents.
I do not quite share the fears expressed by Mr. Justice Jackson that this would provoke an argument in court between prosecutors and defense because the Tribunal would always be in a position to put a stop to irrelevant matters. The Tribunal would not be competent to judge really what kind of war was launched by the defendants; neither would it go into the question of the causes of war. If we try to enter a definition of aggression into the charter, that we would not be competent to do, as the Tribunal would not be competent to do so. It would really be up to the United Nations or the security organization which has already been established to go into questions of that sort. There is an international court forming part of the U.N.'s organization which would pass judgment on conflicts and arguments between the different states. The task of the Tribunal is to try war criminals who have committed certain criminal acts.
Sir David Maxwell FYFE. I would like General Nikitchenko to help me on this. If we accept the French draft, that one of the crimes which the Tribunal will try is directing the preparation and policy of aggression, would not the Tribunal have to decide whether and why the policy charged is a policy of aggression? I would like to know how he would envision this being carried out.
General NIKITCHENKO. The policy which has been carried out by the Axis powers has been defined as an aggressive policy in the various documents of the Allied nations and of all the United Nations, and the Tribunal would really not need to go into that.
Mr. Justice JACKSON. If we are to proceed on that basis, why do we need a trial at all?
General NIKITCHENKO. The fact that the Nazi leaders are criminals has already been establislaed The task of the Tribunal is only to determine the measure of guilt of each particular person and mete out the necessary punishment—the sentences.
Sir David Maxwell FYFE. To take an actual case, one that involves my country and one in which the Soviet Union and the United States are not involved at all—take Norway for example—you see there you have a clear aggressive attack by the Germans on Norway. But we have information that they are going to say that it was done in anticipation of measures which they claim we were about to take to prevent the Norwegians from assisting the Germans by the supply of iron—that is the sort of point. If we are going to introduce Norway—and we might want to for the atrocities in Norway—I think we are rather opening the door for trouble if there is no definition. That is a concrete point about which I am worried.
General NIKITCHENKO. Would a question of that sort really come up before the Tribunal? The Tribunal would not concern itself with questions like that—why Germany attacked Norway—but take it as granted.
Sir David Maxwell FYFE. I don't think the defense will take it as granted. It is going to be difficult. If you charge Ribbentrop as having "directed the conducting of the policy of aggression" against other nations, one of them probably Norway, and he says there was no policy of aggression, can you keep that issue away from the Tribunal?
General NIKITCHENKO. Of course a question like that might come up, but we should pass judgment on the whole policy of Germany and not on individual acts taken apart from the whole. There might be other acts in this war which were taken in self-defense, but here we should take it as the general policy of Germany.
Professor GROS. I think that is also our view of the question. I hope we get the inside story of the Nazis and are able to prove that they had maps in 1934 covering Norway as northern territory for German colonization. If so, it would shut the door to the German lawyers. The German plan should not be judged only in 1939 and 1940. It will be presented by the Chiefs of Counsel since 1933. I have no inside knowledge of the German archives but think we could find plenty to establish their intention much before the war. The question by Mr. Justice Jackson is, what aggression would be considered criminal by the Tribunal? I wonder whether we are in a position to choose the definition which should be up before the Tribunal. First, there are plenty of documents in actual international law defining aggression, and they will be used by the court; and second, if we put in an agreement on that text, it will be an anticipation of what will be adopted by the United Nations. Thus, if the new one differed from ours on this point, we would be in difficulty. Perhaps we could agree on a companion text which would be sent by us to our governments. We would make a note of this text or any text which may be adopted and say we consider this would be a useful definition for the court; but it would not be on the same level as the rest of the agreement, to try to avoid the difficulties mentioned by Mr. Nikitchenko. It might even be only one of the rules suggested to the Tribunal. The Tribunal will look into all those declarations and treaties.
Mr. Justice JACKSON. But the fear I have, and the fear which I take it is shared to some extent at least by the Attorney-General, is that this problem will come up at the trial as it seems certain to do. Some vague idea that Germany was defending herself against some remote menace is the line of defense taken by apologists for Germany in all countries. Certainly an American judge will then say, "Why did not you fellows define aggression when drawing up the agreement? It is not a clearly defined term of art—we find no body of law that clearly defines it." The treaties that I have cited use different language and sometimes with quite different meaning, and I am sure that an American judge would say that, if you charge a man with making aggressive war, it is his privilege to show that the war he made was not aggressive, and it is his privilege to show, in defense or in mitigation, provocation, threats, economic strangulation, and that sort of thing. It might be that from the point of view of the application of Continental law you would not have that difficulty. But, you see, you would have here two judges brought up in the common-law tradition, and I would be greatly surprised if they would not say that the charge of aggression could be met by any evidence showing that the purpose was ultimately defensive, if we do not define aggression in such a way that it excludes resort to war to redress economic or political disadvantages or threats of encirclement, et cetera.
Professor GROS. I may be overconfident, but it is confidence in you. If the prosecution presents its case on that policy of aggression, there will be no necessity of defining aggression. If you begin by making a definition of aggression in this agreement, you will have to define other things—launching of war contrary to international law—and you will have to define what you call the laws of humanity and the dictates of the public conscience. When you begin clarifying, if you go to the full length of it, you will have 340 articles. In contrast, if you will leave it in the American way of dealing with international law, you leave it to the judge to consult the sources. And even if you give that definition, it is controversial. It remains controversial because, if you give the definition which is now proposed, your judge may discuss and disagree with that definition; so you run the same danger.
Sir David Maxwell FYFE. Professor Gros, it comes to this: that your argument is bound to admit the possibility of an argument at the trial on what is aggression. We have three choices: first, leave aggression out, which does not appeal to us because it is the essence of our complaint against the Germans; second, have political argument; third, define aggression. I am merely trying to clarify it. You really would run the risk of having a long trial.
Professor GROS. We had a great trial at the end of the last century—the Dreyfus case. The French court's president said always when there was a difficulty that such a question could not be raised; you must settle our difficulty in the court.
Mr. Justice JACKSON. I really think that this trial, if it should get into an argument over the political and economic causes of this war, could do infinite harm, both in Europe, which I don't know well, and in America, which I know fairly well. If we should have a prolonged controversy over whether Germany invaded Norway a few jumps ahead of a British invasion of Norway, or whether France in declaring war was the real aggressor, this trial can do infinite harm for those countries with the people of the United States. And the same is true of our Russian relationships. The Germans will certainly accuse all three of our European Allies of adopting policies which forced them to war. The reason I say that is that captured documents which we have always made that claim—that Germany would be forced into war. They admit they were planning war, but the captured documents of the Foreign Office that I have examined all come down to the claim, "We have no way out; we must fight; we are encircled; we are being strangled to death." Now, if the question comes up, what is a judge to do about it? I would say that, before one is judged guilty of being an aggressor, we must not only let him deny it, but say we will hear his case. I am quite sure a British or American judge would say to a defendant, "You may prove your claim", unless we had something like this which says, "No political, military, or other considerations excuse going to war". In other words, states have got to settle their grievances peacefully. I am afraid there is great risk in omitting this, and I see no risk in putting it in. It may be criticized, but I see no such risk in putting it in as in leaving it out. We did not think it necessary originally, but more recently we have.
Sir David Maxwell FYFE. There is one point that Mr. Clyde suggested, and it is worth exploring because it is a difficult point. He points out that in the French draft after "aggression" you have the words "and of domination over". Now, in fact, every country that was the subject of aggression was the subject of domination. If I might just remind you, there were Austria, Czechoslovakia, Denmark, Russia—the plan was to dominate Russia—Yugoslavia, Belgium, and Holland. Aggression was succeeded by domination, and in the case of Russia there was an attempt to dominate which failed. Mr. Clyde suggests also that we limit it to "the domination of others"—that we say in the charter everything we wanted.
Professor GROS. I think ultimately we must face the facts that difficulty exists now and that we have to try to have a fair trial. The question is whether one deals with it as you suggest by putting it in writing now or by leaving it to the judges. I do not object to the idea of trying to find a solution, but what I mean is that the text in itself should not be equivalent to the charge, "No, you cannot say that." For public opinion there is always a certain difficulty in shutting out a defense.
Mr. Justice JACKSON. I had not thought of it in just that way. It seems to me that it is quite a proper thing to be said as a matter of law in advance of a trial that an attack by one upon another is not justified by political or economic considerations. Just as we would say in advance of a trial for assault that an attack of one person upon another would not be justified by the fact that there were political or economic advantages in doing it, that one must not pursue his political or economic aims by that method. And that is what I understand to be the substance of the Kellogg-Briand pact, the whole nonaggression policy, and of nonaggression treaties, that the states renounce the right to pursue those advantages by attack upon each other. And from the point of view of the sentiment of the world and the average man, I think that is a very important consideration and one that it is quite justifiable to embody in our statement of the law of the case to be applied by the court. I think that is the law; I think that ought to be the law; and I think that if we could make it clear in the instrument it would avoid a great deal of controversy.
Professor GROS. Could I make a suggestion? What is stopping us practically is that this is a definition of aggression and we do not see a possibility of adopting between our four delegations a definition of aggression. But if in that agreement we refer the Tribunal to the existing definition of aggression—which is a complete text—the declaration of the League of Nations of 1927, signed by Germany, Italy, and Japan, by way of denouncing war, we have a solid basis in international law defining war of aggression. If we say that the Tribunal will refer to those two pacts and to any other convention defining aggression that will give them the possibility of choosing their definition, they will have to do that. Do you not think that, if we just put in three lines referring the Tribunal to the definition of those texts, it would be enough? [Here Professor Gros read from the Kellogg-Briand pact.] It covers political, military, and economic situations; so there you have a part of your definition. The pact condemns international 'war, and the declaration of 1927, which they signed, condemns it too.
Mr. Justice JACKSON. You would prefer just a general reference to it, or would there be any objection to using language that the court should apply the principle of that treaty to which Germany was a party? Would you find any objection to that?
Professor GROS. No, none at all.
Mr. Justice JACKSON. That treaty was the pact of Paris of 1928 (Kellogg-Briand) and the 1927 resolution by the Assembly of the League of Nations. Germany, Italy, and Japan were there. Perhaps we could work out some reference covering what we have in mind. I think it is very important here.
Professor GROS. I do not see any harm in referring to pacts signed by Germany, because they will be referred to by the Tribunal.
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.
Source: Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945, International Organisation and Conference Series II, European and British Commonwealth 1, Department of State Publication 3080, Washington D.C.: Government Printing Office, 1949, pp. 293-309.
Editorial Note: This is a true copy of an extract (pp. 293-309) of the above-referenced original documents. These documents are reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 18 (f).
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