Subject:Final Report of American Representative on the Four-Power Drafting Sub-committee.

1. The undersigned makes this Final Report as the American Representative on the Four-Power Drafting Sub-committee for the drafting of the Executive Agreement and Annex, or Charter, as we no-%v call it.

2. Meetings have been held beginning on Thursday, 5 July, and on continuing on successive days thereafter, with the exception of Saturday and Sunday. The final meeting was held and concluded this forenoon. [Mr. Alderman's notes of the meetings are appended hereto.]

3. I attach hereto a copy, and I am distributing to the entire Staff copies, of a mimeographed reproduction of the documents as the Drafting Sub-committee finally revised them this morning [XXV]. Matters within square brackets are reserved especially to be raised before the plenary sessions. In addition, it is understood that all of the work of the Drafting Sub-committee is tentative, in the sense that it is all subject to approval or disapproval of the plenary sessions. However, the drafts as hereto attached, with the exception of the matters in square brackets, represent agreement by the four conferees: for the Russians, Prof. Trainin; for the French, M. Falco; for the British, Sir Thomas Barnes - for the Americans, Mr. Alderman.

4. I am well enough satisfied with these drafts to recommend their substantial adoption, with reservation of the reserved matters.

5. I transmitted to the Drafting Sub-committee your suggestion that a free day be allowed to intervene before the next plenary session, whereupon it was understood that the next plenary session would be held at 10: 30 a.m. on Friday, 13 July 1945 at Church House.

Notes of American Representative on Drafting Subcommittee

After discussion it was agreed to take the preamble from our earlier draft, which quoted exactly the provisions of the Moscow declaration, adding a reference to "other statements that have been made by the United Nations, with reference to the punishment of war criminals".

The Russians agreed to consider my suggestion for writing into their article 1, "including groups and organizations fairly represented by their individual members brought before the Court". They would not commit themselves but reserved the question.

I objected to calling the annex the "statute", on our constitutional grounds. Professor Trainin objected to "annex" because it does not fit in with the idea that the annex is an integral part of the agreement. At the suggestion of Sir Thomas Barnes we compromised on "charter" as the name for the statute or annex.

Russian article 3 was changed so as to make it read, "Each of the Signatories undertakes to make available at the trial all the major war criminals who are under the jurisdiction of the Tribunal."

I presented Mr. Justice Jackson's objections to Russian article 4, arguing that it is beyond our function to commit our governments to diplomatic negotiations with other governments, not parties, regarding handing over of criminals in their possession. That is for regular diplomatic handling. The British suggested that we confine it to "will use their best efforts" and, as so amended, the whole article was reserved for further discussion.

Russian article 5 was amended so as to make it read substantially, "Each of the Signatories will establish policies and procedures governing the return of persons who under the Moscow Declaration are to be returned for trial to the scene of their crimes." Mr. Clyde has the exact wording.

Russian article 6 was amended so as to read substantially, "All Governments of the United Nations may accede to this Agreement by notice given through the diplomatic channel to the Government of the United Kingdom, who shall inform the other parties of each such accession."

The British did not wish to be put under the burden of issuing formal invitations to some 50 governments to accede to the agreement.

Russian article 7 was changed to read, "This agreement becomes valid immediately on the day of signing. It shall run for the term of one year and thereafter, subject to the right of any party to terminate it upon one month's notice." This is substantially the provision agreed on. Mr. Clyde has it exactly.

It was decided that our article 6 of the agreement is unnecessary.

Mr. Clyde will have a complete redraft of the Agreement ready for the meeting at 3 o'clock.

All this is tentative and subject to confirmation in plenary sessions.

CHARTER

We changed Soviet article 1 to read:

"In pursuance of the Agreement dated ------------- an International Military Tribunal (henceforth called the Tribunal) shall be established for the just and prompt trial and punishment of the major war criminals of the European Axis Powers."

It was tentatively agreed to omit our articles 1, 2 and 3.

It was decided to follow with a revision of Soviet article S. We want direct appointment of court members by each Government, instead of appointment by the Control Council. Prof. Trainin said he would consider but could not pass finally on it.

We would not want to consult the Control Council about our appointment to the court; we would consult it about setting up the court. But, once it is set up, our appointment must be our own, subject to no consent or control by the Control Council.

It was tentatively agreed to follow Soviet article 8, as amended, with our article 6, out down to the following:

"The Tribunal shall consist of four members, each with an alternate, to be appointed as follows: one member and one alternate each by the Soviet Union, the United States, the United Kingdom and France."

Then we followed with Soviet article 9, amended to read as follows:

"The members of the Tribunal cannot be challenged by the defendants, the prosecution or the counsel for the defence. The respective Governments may replace a member or his alternate by other persons, by reasons of health or other good reasons."

We adjourned for lunch to reassemble at 3 p.m.

We next brought up among the general provisions the Soviet article 10, providing for quorum and voting, very substantially rewritten, after full discussion, as follows:

"Article 4. The presence of all four members of the Tribunal or their alternates shall be necessary to constitute the quorum.

"If a session of the Tribunal is taking place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside. In other cases, the members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a President, and the President shall hold office during that trial; or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed.

"Save as aforesaid the Tribunal shall take decisions by a simple majority vote and in case the votes are evenly divided, the vote of the President shall be decisive; provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal."

Articles 2 and 3 as redrafted this morning were again amended as shown by penciled corrections on the Clyde draft.

We will fit into proper place Soviet article 3 (chambers or branches of the Tribunal) amended to read as follows:

"The Tribunal may sit in one or more chambers or divisions, depending on the number of cases to be tried. The establishment, functions and procedure of all the chambers or divisions shall be identical and shall be governed by this Charter."

We are to bring up Soviet article 21 (alternates) and fit it into its proper place.

We merged the language of Soviet article 6 and our article 13, keeping the substance of both. Mr. Clyde made a redraft.

On Soviet article 4 ("Instructions", by which they mean rules of procedure) we had a long debate. The Soviets argued that the court ought to fix the rules of procedure and that it would demean the court to have Chiefs of Counsel recommend rules. M. Falco thought that the adoption of rules was distinctly the function of the court, not of the prosecutors. The British and I argued that it was not at all inconsistent to have the Chiefs of Counsel recommend rules but agreed that final fixing of the rules should be for the court unless the four Sovereigns, by this agreement and charter, legislatively fix the rules and impose them upon the court. There was no decision. We shall discuss this further tomorrow and in connection with the provisions regarding duties of Chiefs of Counsel. But tentatively we agreed to adopt among the early, general provisions Soviet article 4, amended so as to read:

"The Tribunal shall draw up rules of procedure which shall not be inconsistent with this Charter."

The next general provision discussed was Soviet article 8 (Surrender of Criminals). The French, British, and American representatives strongly agreed that it is no part of the function of the Tribunal to select the defendants to be tried and to call upon the signatories to produce them. That is the function of the Chiefs of Counsel. The only function of the Tribunal is to try those produced before it. It is the representatives of the executive who make the charges; the judiciary tries.

The Soviets asked us to reserve that question and to return to it when we come to the provisions as to the functions of the prosecutors. We agreed and adjourned to 10: 30 o'clock tomorrow morning.

9 July 1945

Since France was not a party to the Moscow declaration, Judge Falco suggested a two-line insert, preceding the opening paragraph of the agreement, which would merely refer generally to diverse statements by the United Nations regarding the punishment of war criminals.

I submitted a proposed redraft of the article on the powers and duties of the Chiefs of Counsel, calling them rather "Chief Prosecutors", combining most of the substance of Soviet articles 11 to 14 with the substance of American articles 8 and 9. The file copy of this inadvertently omitted subparagraph (d).

Professor Trainin objected to the reservation of the right of individual action by any one Chief Prosecutor. Sir Thomas Barnes suggested majority rule for the Chief Prosecutors as for the Tribunal. Professor Trainin agreed to that. He wanted to divide the provisions into two sections: first, functions as a committee acting by majority vote; second, powers of individual action by Chief Prosecutors. He outlined the suggestion in some detail. Mr. Clyde has the language and will produce the redraft for the afternoon meeting.

Professor Trainin also wanted a majority vote of the committee of prosecutors, with chairmanship to rotate weekly. He admitted that this rotation is not very important. Judge Falco stated that rotation for the Tribunal is one thing, since it holds public sessions, but the prosecutors will hold private sessions and I*t can well be left to them to agree upon a chairman. It was decided that it is such a detail as may well be left to them and that the four Governments hardly need to deal with it specifically in this charter.

Professor Trainin stated that the American article 11 is acceptable, striking out the words, "No proof shall be lodged with the Court except at the trial", and making the second sentence read, "Copies of the indictment and of all documents submitted therewith to the Tribunal shall be furnished to the defendants." The provisions about the indictment were covered and Mr. Clyde will draft them.

Professor Trainin had no objection in principle to the American article 14 (a) and (b) (Fair Trial for Defendants). He would like to take this as a basis and redraft it so as to make it even somewhat broader than the American draft.

In the discussion on the powers of the Tribunal Professor Trainin boggled at the words "witnesses, including defendants". He could not understand calling defendants as witnesses. He says it could not be done under Russian practice. And if they were called and refused to answer, the Tribunal could not force them to answer. Judge Falco said a person is either a witness or a defendant-he can't be both. Under French practice the court could not force a defendant to give evidence. Sir Thomas agreed that that -was true under English practice also, and I said the same was true in American practice. I think it is a very grave policy question to be resubmitted to the plenary sessions, whether we do wish to undertake to abolish the privilege against self -incrimination.

Professor Trainin questioned the provision in article 10 of the American draft for special masters. He did not understand it and confused functions of prosecutors and functions of the court. Sir Thomas Barnes and I made elaborate explanations of our use of commissions and special masters to assist the court in taking evidence and making recommended findings. Professor Trainin still did not understand it, and the whole question was reserved.

Professor Trainin agreed to article 19 of the American draft provided we write in the Soviet provision against Nazi propaganda and attacks on the United Nations. I stated that I thought it unwise to spell that out specifically. It is all covered much more broadly by the power to exclude "any irrelevant issues of any kind whatsoever". Sir Thomas doubted the wisdom of mentioning propaganda. General discussions developed the idea that Soviets do not consider all propaganda bad propaganda. To us it is always a derogatory word but not so with them. The question was reserved.

Professor Trainin agreed to the American article 7 on conduct of trial except that he did not want the reference to "groups and organizations" and wanted to put in the Soviet provision for "preference for territory of the country where most serious crimes were committed". The difficulty with that, I mentioned, is that it cannot be known in what country the most serious crimes were committed until the end of the trial, when defendants are convicted. It is an impracticable provision. It was agreed that a simple provision be used: "The Tribunal shall sit at ----------------------------- or such other place as the Signatories may agree."

Professor Trainin raised the question of arraignment, and he wanted to know what an arraignment is. I explained it.

An objection to American article 20 (e) as impairing the power of the Tribunal to adopt rules of procedure was entered by Professor Trainin since it implies that the Tribunal must adopt such rules as are presented to it by the prosecutors. The subparagraph was redrafted to cure this objection and as such was agreed upon.

American article 21 was agreed upon but was put in the next article. American article 22 was renumbered 21 and agreed upon. American article 23, now 22, was agreed upon.

American articles 18 and 19 were discussed in great detail. Professor Trainin had no objection in principle but thought we ought to leave out the heart of it about proffers of proof and judicial notice and wanted to add the Soviet corresponding articles. Sir Thomas asked if they couldn't go along with the way the Americans had drafted it, since they agreed to the principle and this was an attempt to reconcile the different views of the four nations. No conclusion was reached.

Mr. Clyde agreed to have the revisions through article 23 prepared for the 10: 30 a.m. meeting tomorrow.

10 July 1945

The American article 18 was taken up and discussed at length. Professor Trainin still objected to our language in the passage, "It shall employ with all possible liberality simplifications of proof, such as but not limited to: requiring defendants to make written proffers of proof; making extensive use of judicial notice . . . ... His objection seemed more to language than to ideas. "Proffers of proof" still puzzled him, as did "judicial notice".

Professor Trainin agreed with everyone that the Tribunal would have the power to rule out evidence or testimony of witnesses if it found it irrelevant. I explained that our provision about "proffers of proof" is merely to simplify the exclusion of such irrelevant evidence by the Tribunal. Sir Thomas suggested a provision requiring the defendant to satisfy the Tribunal of the relevance of any evidence before it is offered. Professor Trainin agreed to this in substance and agreed that facts of common knowledge need not be proved. When we explained through Mr. Troyanovsky, the interpreter, that this would be the exact translation into Russian of "use of judicial knowledge", he seemed satisfied but liked his own formula better. Sir Thomas suggested, "The Tribunal will not require proof of facts of common knowledge but will take judicial notice thereof." That was agreed upon with the proviso that Soviet article 27 be added at the end of our article 18, changing the last word "Commission" to "Committee of Prosecutors".

Next we took up the procedure to be followed at the trial, using Soviet article 25 as basis for discussion. Professor Trainin suggested that perhaps it would clarify the situation if the British or Americans would just state how they visualize the procedure at the trial. Sir Thomas and I agreed on such visualization as follows:

Professor Trainin said that there was no such thing as an "opening statement" in their procedure. After Sir Thomas and I explained it, Judge Falco stated that they had no such "opening statement" either. Then Professor Trainin said he personally would be in favor of such an opening statement. He thought it would be useful but asked to reserve that question for discussion with his associates. He added, however, that he would not agree for defendants to have an opening statement after the prosecution's evidence is in and before the defendants' witnesses are called. That would interrupt the taking of evidence right in the middle for such a statement. By the same token then the defendants would have the last argument after all the evidence was in. Judge Falco agreed that the latter remark was true in French practice. I explained that in American practice the defendant has the last argument, the right to close, only if he introduces no evidence, but, if the defendant offers evidence in his defense, then the prosecution has the right to close. But the defendant has a right to make an opening statement before putting his case in if he elects to offer evidence. This puts him in balance of opportunity with the prosecution. Professors Falco and Trainin agreed that defendants should have no right to make an opening statement. Their concept seemed to be that, when the defendant has answered or pleaded to the indictment on the arraignment, he has thereby made the only preliminary statement to which he is entitled.

Professor Trainin set forth the procedure at the trial, as he visualized it, as follows:

Since they make provisions for final, personal statements by defendants, I asked if they would not agree with us to change the order of their articles 6 and 7 and let the Prosecutors have the final formal argument, followed by the personal statements by the defendants. It was agreed.

Professor Trainin brought up the question of Soviet article 37, and it was agreed upon.

The question of expenses was next considered and Professor Trainin expressed no objection to American article 25 except that he thought that the expenses of the Prosecutors, as well as those of the Tribunal, should be paid by Germany through the Control Council. I suggested the distinction that the Tribunal is set up presumably to act in Germany where the Control Council has the sovereignty, but the Prosecutors and their staffs directly represent their individual governments, which should, it seems, bear their expenses. We have been incurring expenses in America and England and elsewhere since May 2. Professor Trainin stated that they bad too but that he thought Germany should pay them. Judge Falco said that they had been skeptical, since 1919, of the formula, "L'Allemagne paiera" ["Germany will pay"]. Sir Thomas agreed with the American viewpoint that the Control Council should not bear any expenses except those incurred in Germany. Professor Trainin stated that they would consider that view.

In view of the work necessary to run off fresh redrafts to incorporate this morning's changes, it was decided not to have an afternoon meeting but to meet again tomorrow morning to go over again the complete redraft, so that, if desired, a further plenary session might be held on Thursday to consider the report of the drafting subcommittee.