Defining International Aggression
The Search for World Peace

Minutes of Conference

LIX. Minutes of Conference Session of August 2, 1945

LORD CHANCELLOR. Very well. Let that be altered. Now, gentlemen, we have got article 6. Shall we start it or leave off here? It would be very good if we could finish it. I shall have to leave in about 15 minutes.

Mr. Justice JACKSON. Perhaps in 15 minutes we might get something to think about.

LORD CHANCELLOR. All right. Mr. Justice Jackson, you might tell us the difficulties in regard to article 6 which you have set out.

Mr. Justice JACKSON. I think our difficulties were set forth in memoranda [LV]. Our difficulties with the draft which had been approved by the British and Soviet Delegations are before the delegates, and I have submitted an alternative which meets our criticism [LVI]. Perhaps it would save time, since everyone is probably familiar with those, if we would hear the criticisms of our counterproposal, or the criticisms of our criticisms.

LORD CHANCELLOR. May I suggest that we look at your draft and take the first sentence first of all ? So this is what the new draft says: "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 punishment on those found guilty."

General NIKITCHENKO. As for the body of this article, paragraphs (a), (b), and (c), we have only one or two very minor drafting objections. But as for the first paragraph, we think that it could be made more precise. It seems to us that these words, "acted in aid", are rather indefinite and liable to misunderstanding. We might not reach the actual persons who organized and carried out the crimes, and that is why we would propose to follow this formula for the first paragraph: "The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis Powers, whether as individuals or as members of organizations, committed any of the following crimes." Then we could repeat, "The following—"

LORD CHANCELLOR. I would be prepared to accept that.

Mr. Justice JACKSON. It sounds all right to me.

Judge FALCO. We agree.

LORD CHANCELLOR. Paragraphs (a), (b), and (c)—what alterations do you want?

General NIKITCHENKO. In all three articles we propose to leave out the headings, "The Crime of War" and other titles. The crime of war is, to be more precise, "the crime against peace", and we think the titles complicate things. We could just say "planning, initiating", et cetera, and then also say not of "any" international, but of "war in violation of international treaties".

LORD CHANCELLOR. Leave out "any" and—?

Mr. TROYANOVSKY. And leave the general treaty for the renunciation of war.

LORD CHANCELLOR. I thought it rather convenient to have it in, but I don't think it matters a bit.

General NIKITCHENKO. We don't think that of great importance either.

Professor TRAININ. We think that from a theoretical point of view these titles are welcome, but to put them in a law would perhaps make it too vague.

Mr. Justice JACKSON. I think it is a very convenient designation. I may say it was suggested to me by an eminent scholar of international law. It would be a very convenient classification, and I think it would help the public understanding of what the difference is.

LORD CHANCELLOR. I think Professor Trainin's book treats aggression not as the crime of war but as a crime against peace, and I do think that if you do have a nomenclature it would be well to have a nomenclature that comes from his book, and instead of calling it "crime of war", call it "crime against peace". I myself prefer to keep the nomenclature but to substitute for the "crime of war" the "crime against peace".

General NIKITCHENKO. We have no objections to that. Take out the word "any" and the reference to the general treaty.

LORD CHANCELLOR. That is all right with me.

Mr. Justice JACKSON. I don't think that is very serious impairment of the definition.

LORD CHANCELLOR. Then let us take (b).

General NIKITCHENKO. In this paragraph the words "but not be limited to" in our translation are very strange. I think they should be dropped and we should add "or deportation".

Mr. Justice JACKSON. The difficulty is in our rules for interpretation of statutes, and you will have at least one judge on the Tribunal who is accustomed to that interpretation. If you name a general category and then go on to specify, you are limited to your specifications. I would be quite willing to have it in translation in any way it makes sense to you, but I think it is quite important that you do make clear that the specifications are not the only things that you are reaching, because some of these crimes are quite unique and are not covered perhaps by general definition. Now, the deportation to slave labor—The reason I dropped "deportation to slave labor" was that there are other deportations that are just as objectionable as slave labor from my point of view, for example, deportations to compulsory prostitution, deportations just to get people out of the way to take their land, or deportations to concentration camps. It seemed to me that we limited the deportations. I would be quite willing to say "deportation to slave labor or for any other purpose".

General NIKITCHENKO. The words "but not be limited to" are not very important really to us. If you don't mind, we could drop them and I would in our translation say "and other crimes". As for your suggestion, "to slave labor and for any other purposes", that is all right.

LORD CHANCELLOR. I am afraid I must go to rehearse my part in the proceedings of the House of Lords at the opening of Parliament. Would you like to go on? You are so near agreement. If you want me to come again, I could be available this afternoon about 5:30 or tomorrow at 2:30; or perhaps, if the Attorney-General could go on representing us, you could get finished here.

The Lord Chancellor left and Sir David Maxwell Fyfe took the chair.

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. 415-417.
Editorial Note: This is a true copy of an extract (pp. 415-417) of the "Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials", as referenced above. This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 18 (i).

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