MR. JUSTICE JACKSON. The words here, "including attempts to introduce irrelevant political propaganda" are words with which I have difficulty. If an offer of proof is irrelevant, it should be excluded merely because it is irrelevant. If it is relevant to the defense, would it be conceivable to exclude it because it might have unpleasant political implications? I suspect that critics will point at this phrase as indicating that there is something in our own positions that we are fearful of having exposed, if, even though it is relevant, we are proposing to exclude lines of inquiry which would be inconvenient for ourselves politically. I suggest that a formula might be found which would be adequate to admonish judges who, after all, are nationals of our own countries and equally interested with ourselves in keeping the trials on the level that would not quite so brazenly invite accusations against us all. In the United States I know it would be asked, "Who got that in and why, and who is afraid and why?" Those unfriendly to Britain will say, "I told you so", and those unfriendly to Russia will say, "I knew it all the time." I think it is a phrase in danger of political misuse.

JUDGE FALCO. As an informal suggestion, could we say, "To prevent all attempts to use any political propaganda which the major war criminals would put before the trial"? This is only an informal suggestion.

SIR DAVID MAXWELL FYFE. I should be very pleased to consider the suggestion. I think there are two things to avoid-one is Nazi propaganda; the other is the trial of the actions of the countries of the prosecutors. We don't want the trial to be swung over by the defense in an attempt to attack and have a trial in the eyes of the public of the action of the prosecuting countries. I think in the second I am inclined to agree with Mr. Justice Jackson.

MR. JUSTICE JACKSON. I am not disagreeing with the idea but I think we should have a little more care as to how it is expressed. General Donovan has suggested that following "irrelevant issues" the phrase "of whatever kind or nature" would be sufficient to admonish our judges and not arouse our critics.

SIR DAVID MAXWELL FYFE. Then the next and last item is article 20, which states that sentences, when and as approved by the Control Council, should be carried into execution in accordance with orders of the Control Council for Germany.

We suggest that the approval of the Control Council should be cut out, that is, that the findings and sentences of the Tribunal should not be subject to approval but that, when the Tribunal has imposed sentence, it ought to be carried out. If it be death, the execution will be carried out, or, if it be imprisonment, that should be carried out in accordance with the orders of the Control Council, and the Control

Council may reduce or otherwise alter. "Reduce" is to lessen the sentence, but keeping the same kind. "Alter" would be substituting a different kind of sentence but may not increase its severity.

GENERAL NIKITCHENKO. The Control Council could presumably cancel the sentence and demand a retrial of the case.

SIR DAVID MAXWELL FYFE. I am afraid that is a point that we don't see eye to eye. We think that the Tribunal ought to be left to say the final word as to the finding. That is, as to the conviction-we don't want any interference with the finding of the Tribunal. We hope that the Tribunal will be of sufficient standing that its conclusion on conviction or not should be sufficient. We also think with regard to sentence that all that should be given to the Control Council is the opportunity to lessen but not to cancel. That is a point which we will have to discuss because there is a difference of viewpoint there. Judge Falco apparently agrees with us.

GENERAL NIKITCHENKO. The Soviet Delegation is raising the question of how we should act in case, for instance, at the time of the trial the Tribunal is not in possession of the whole of the material affecting the case and brings out its verdict and sentence with insufficient material in its possession, so that the sentence may appear to be inadequate to public opinion. The Control Council having discovered further material or it having been discovered elsewhere, it becomes evident that the sentence is quite inadequate to the crime committed. In those circumstances how would it be possible to secure that the whole case would come up for reconsideration and additional sentence be imposed?

SIR DAVID MAXWELL FYFE. If these circumstances occur-and I hope it will be prevented by our preparation and examination of the evidence-but assuming that it did occur, I should suggest that the better method would be a new trial on the more serious charge.

GENERAL NIKITCHENKO. In order to try the accused on more serious charges, the original sentence would have to be annulled to provide the opportunity of a new trial on the different charge.

SIR DAVID MAXWELL FYFE. Take for example how it works in our law. If somebody attacks somebody else, then he may be tried for assault, but, if within a year death supervenes, he may be charged subsequently for murder, for which the sentence is death. The fact he had been tried for assault would not prevent it because it would be the new charge of death.

GENERAL NIKITCHENKO. In that case we could try them again without actually canceling the first sentence.

SIR DAVID MAXWELL FYFE. I do not think there is any difference between us as to what we want to do that is to insure that the most serious charge we know about is brought against the accused. The only

point that I am anxious to make is that the status of the Tribunal should be kept as high as possible, and it should not appear to be subject to an administrative body. That is my general point. I am in full sympathy for any serious charge and the most serious charges being brought against all the defendents we select.

That concludes the British memorandum. Would it be convenient to go around the table and have the French Delegation deal with its memorandum?

[EXPLANATION OF FRENCH MEMORANDUM] [XV]

PROFESSOR GROS. The first part of the French memorandum is only a reminder of the position which has been taken in San Francisco and, naturally, the proposal which has been put before us on the charges. As I have said, the British proposal is partly inspired by that proposal. So that reservation which we made in the first part is not so important as it would look at first sight.

As we said the other day, the Four Powers agree to press the cases against the major war criminals in the best way to insure a speedy punishment, whatever forms we use. We have given a note on the French procedure in criminal prosecutions, but it is only a recommendation and we would not think of insisting on adoption of the French procedure.

MR. JUSTICE JACKSON. How would you permit the defense to submit the case? Would you have him given a particular time after the prosecution has presented its entire case or have him answer each document as it is submitted?

PROFESSOR GROS. He would speak once only. He could call witnesses. He would arrange with the prosecutor beforehand for appearance of witnesses so that a refusal of such witness could be given before and not at the trial.

MR. JUSTICE JACKSON. May I say one word, Mr. Chairman, about the French memorandum? I think the spirit of it is admirable. The thought that we will compare our systems and try to use the best of each for this purpose is the spirit in which we want to work, and there is a great deal of good in both systems. Many things are not as troublesome in practice as we think in theory, and I agree fully with your suggestion that what we want is to get a practical procedure rather than an adaptation of any nation's procedure. I think it is a very helpful memorandum.

[EXPLANATION OF SOVIET MEMORANDUM] [XVI]

GENERAL NIKITCHENKO. The first is with regard to the character of the trial. We are not dealing here with the usual type of case where it is a question of robbery, or murder, or petty offenses. We are dealing

here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea declarations by the heads of the governments, and those declarations both declare to carry out immediately just punishment for the offenses which have been committed.

Second, the procedure that we want to work out should be such as to insure the speediest possible execution of the decisions of the United Nations, and the regulations that we set down for this Tribunal must be worked out with that in view. In this connection the Soviet Delegation is in complete agreement with statements made by the French Delegation with regard to the formulation of rules and regulations to achieve maximum speed. The object should not be to select any individual national system of trial. All these systems have good points. In the British and American there is probably too much latitude allowing the possibility to the accused of dragging out the process of the trial and causing unnecessary delay. As we now have to deal with something completely new, it is necessary for us to select the best of the different systems with a view to achieving speed in arriving at a decision.

Third, with regard to the position of the judge-the Soviet Delegation considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case. The declaration of the Crimea Conference is quite clear that the objective is to bring these criminals to a just and speedy trial. Therefore, the judge, before he takes his seat in court, already knows what has been quoted in the press of all countries, and it is well known about the criminal as accused and the general outline of the case against him. The case for the prosecution is undoubtedly known to the judge before the trial starts and there is, therefore, no necessity to create a sort of fiction that the judge is a disinterested person who has no legal knowledge of what has happened before. If such procedure is adopted that the judge is supposed to be impartial, it would only lead to unnecessary delays and offer opportunity for the accused to bring delays in the action of the trial.

Fourth, the Soviet Delegation points out that, at the time when the declaration was made by the leaders of the United Nations on the question that the chief criminals should be tried, it was not certain whether these criminals would actually be tried by a court or would be punished by some purely political action. That is to say, they might have been dealt with by means other than a trial. Since then it has been decided that they shall go through a process of trial, but the object of that trial is, of course, the punishment of the criminals, and therefore the role of the prosecutor should be merely a role of assisting the

court in the actual cases. That is the role of either the investigation committee or Chiefs of Counsel as proposed in these drafts. The difference is that the prosecution would assist the judge, and there would be no question that the judge has the character of an impartial person. Only rules of fair trial must, of course, apply because years and centuries will pass and it will be to posterity to examine these trials and to decide whether the persons who drew up the rules of the court and carried out the trials did execute their task with fairness and with justice but subject to giving the accused an opportunity for defense to that extent. The whole idea is to secure quick and just punishment for the crime.

Those are the main considerations which the Soviet Delegation had in mind when it presented its views upon the draft of the American Delegation. The views now expressed are to be regarded as preliminary and do not exclude the possibility of alterations or additions which may arise in later discussion.

In the opinion of the Soviet Delegation, the American draft should be divided into two portions. One portion should contain the principles of an agreement for the punishment of the chief war criminals of the European countries and the establishment for this purpose of an International Military Tribunal with the corresponding motivations and reasons for the agreement arrived at. The text of the agreement could include points 1, 2, and 3 of the American draft in one form or another. The other part of the American draft, in the opinion of the Soviet Delegation, should be the terms of reference of the International Military Tribunal which will be confirmed in the agreement. The terms of reference of the International Military Tribunal should form an integral part of the agreement and should be attached to it.

The Soviet Delegation puts forth the example of the San Francisco agreement, where the International Court is established and where the constitution of that Court is definitely stated to be an integral part of the agreement of the whole organization; and this agreement would set out the motives and the aims of the court and would establish the rules and regulations under which to operate.

On the assumption that the agreement should be short and the regulations should form an integral part of the agreement, we proceed then to consider how the various points put forward in the American draft can be adapted to this purpose.

With regard to paragraph 5 of the American draft, the Soviet Delegation considers that this should be amended in the following sense: that the president of the International Military Tribunal should be the representative of the particular one of the powers which have signed the agreement on whose territory the trial is taking place, and, in all other cases, the presidency of the court should be taken in rotation.