could not be conceded. In other words, we are past that point. Our representative is named and is representative of the President of the United States and not of the Control Council.

GENERAL LORD BRIDGEMAN. I think we should say at this point that that is our view, too. The Attorney-General has likewise been appointed to represent our Government. It brings me back to article 8 where the same position arises. We took the view the other way around as our representative could be appointed by the Government just the same way the Chief of Counsel is appointed. Perhaps those two points stand together.

PROFESSOR TRAININ. Just one consideration. In the American draft, article 10, apparently the Chiefs of Counsel are regarded as a sort of commission since they would take decisions by a majority vote.

MR. JUSTICE JACKSON. It was not intended to be a commission in the formal sense but rather that the representatives or Chiefs of Counsel should meet together and decide these things by informal conversation. But, of course, a majority would govern in most situations although we have reserved the right of each counsel to present his case even though other counsel might not agree with him. That is to say, each counsel would have the right to bring forward evidence on behalf of his country even though no other country would be interested in that part of the case.

GENERAL DONOVAN. As we look at it, each Chief of Counsel is sitting here separately and independently representing his government, but each Chief of Counsel works with the others in cooperation to advance the trials of these people. It is not a formal auxiliary board but simply a group of lawyers working together.

GENERAL NIKITCHENKO. Would they then act together or would each one act independently?

GENERAL DONOVAN. No, they would act together. I would use the word "collaboration" if it had not fallen into such bad use now. But not in any formal way.

PROFESSOR TRAININ. But to turn a case over to the Tribunal they would have to decide upon that together, would they not?

GENERAL DONOVAN. Yes.

MR. JUSTICE JACKSON. Will you refer to the American draft under the heading, "Provisions for bringing defendants to trial"? We state that the normal way of functioning would, of course, be by agreement. Ordinarily, I suppose, there will be no disagreement, but it is also necessary to protect the position of each one of the governments to some extent because each one wants to be sure that its own case is presented. Therefore, it is provided in the American draft that any Chief of Counsel may bring to trial any person in the custody of his own Government, et cetera. [Quoting]. In other words, four members proceeding by agreement would be the normal procedure, but no

government could be prevented from proceeding against its own prisoners and making its own case against its prisoners by any number of counsel who would not want to proceed. You see, in that way a certain measure of independence is preserved, while at the same time there is provision for normally acting together.

GENERAL NIKITCHENKO. I beg your pardon. To which document do you refer?

MR. JUSTICE JACKSON. Paragraph 8 of the last document that was passed to you the annex to the draft.

GENERAL NIKITCHENKO. In the Soviet draft it is stated that proceedings should be carried out by the whole commission, but it also provides that investigations may be carried out by the whole commission on request by the individual members. In this respect we try to provide for an independent action by the individual members of the commission, but as a rule it considers that decisions should be taken by majority vote of the representatives because the commission or the Chiefs of Counsel is a representative body of the four Governments.

MR. JUSTICE JACKSON. The probability is that the difficulty or difference arises from the fact that you regard, under your system, the investigation as embracing many of the things which we regard as the function of the trial. I notice in your article 15 that you provide that the indictment shall be accompanied by all of the evidence pertaining to the case. Now you see, we do not do that, and therefore what we have reserved is the right to act independently in the trial of the case if necessary, as well as in the investigation, while you have reserved the right to act independently only in the investigation. I do not see how we could act on the basis that all evidence pertaining to the case must accompany the indictment because that leaves nothing for the trial but to read the evidence, whereas we call witnesses and frequently give a great deal of evidence that is not in the indictment. The indictment in our practice is intended to state an outline of the charges rather than all the evidence. We are quite willing in this case to put in a great deal of evidence for the indictment or as supplementary to it in some form, but do not think we could deprive the trial of all functions of taking the evidence.

GENERAL NIKITCHENKO. In order to insure on the one hand the impartiality and justice of the trial and at the same time speed up the procedure, the Soviet Delegation considers that it would be best to divide the procedure in two stages as set forth in the annex-first, the collection of evidence by the commission acting as a whole or independently at the request of the commission. As for what constitutes evidence, that is set forth in the American draft and those details could be put in the final draft in the final annex.

This first stage of the proceedings includes the examination of the

defendants and witnesses and the collection of documents, and if a defendant denies his guilt he can refer to other evidence. It would be the duty of the commission, the Chiefs of Counsel, to look through that additional evidence which the defendant has pointed out. After the collection of evidence an indictment is drawn up in which the protocols of examination of defendants and witnesses and documents, as for instance the documents of various national investigation commissions, are included. Thus, during the preliminary investigation the defendant has every chance of refuting his guilt, and the commission of investigators or the Chiefs of Counsel would be bound to take that into consideration and to look to any additional evidence to which the defendant might refer.

After the collection of evidence has taken place, the commission does not take a decision on whether the person is guilty or not. It just decides on whether there is sufficient evidence to warrant starting court proceedings, to warrant turning the case over to the court, and at the same time the defendants are furnished with all the evidence the commission had collected in the case so that they know exactly with what they are charged.

The task of the Tribunal, after it had received the indictment with all the evidence, would not be to hear that evidence but to decide which of the witnesses should be called for examining in regard to the points raised by the charges, and, summing up all the evidence and the results of the examinations, to pass judgment.

The defendant should have the right to defend himself, to demand witnesses for examination, evidence which had not been refused by the commission, to call on witnesses and to act through the help of his counsel for the defense of himself personally. When everything has been cleared up, all the evidence necessary produced, then the prosecutor sums up the case for the prosecution followed by the counsel for defense, or the defendant himself if he wishes to defend himself without aid of counsel. After this the judges, in the absence of the defendant's prosecutor or counsel, pass judgment.

In the opinion of the Soviet Delegation this procedure would on the one hand insure a fair trial since the defendant would be given every chance to refute the evidence produced against him and would, on the other hand, insure him promptness of trial since most of the preliminary work would have been done before.

PROFESSOR TRAININ. It must be emphasized that before court proceedings start not only the court itself but the defendant and his counsel for defense would be furnished with the indictment and all the evidence.

The Conference adjourned until Wednesday, July 4, 1945, at 11 a.m.

XXII. Minutes of Conference Session of
July 4, 1945

SIR THOMAS BARNES [presiding]. When we stopped yesterday, we were discussing the functions of the Chiefs of Counsel or investigation commission, and I think we arrived at a common ground. We heard a helpful statement by Mr. Nikitchenko and do not know whether Mr. Justice Jackson would like to comment on what was said.

MR. JUSTICE JACKSON. There is nothing that I would think of adding at this time. I think it is a matter of trying to reconcile the draftsmanship largely. We may have differences that will develop in draftsmanship, but I think it is in readiness to be considered on the basis of draftsmanship.

There are one or two other subjects on which we would like a little discussion in order to make clear what we intend. In article 1 of the Soviet draft [XXIII], where the purpose of the Tribunal is set forth to be the just and prompt punishment of the major war criminals, we would like to see "trial" in place of "punishment" or "trial and punishment". At least we would like to make clear in the draft, or whatever draft comes out of this, that the function of the Tribunal is to try as well as to punish.

GENERAL NIKITCHENKO. Of course, in the draft we can produce the necessary corrections, and, therefore, the Tribunal is not only to punish but definitely to charge.

MR. JUSTICE JACKSON. In the fifth subdivision, article 16, we would not think it appropriate for the Tribunal to return the case to the commission for further investigation. In other words, our conception of the Tribunal is that it has no function in regard to the prosecution, but its function is to determine the merits of the case as presented. A similar observation would be in order as to article 17. We think that the Tribunal would not have the function of deciding what witnesses should be called nor the place of hearing, but that that function, so far as calling witnesses is concerned, is one for the prosecutors, and the place of trial is one which would have to be fixed by agreement, having in view the facilities available and the general desires of the military authorities in connection with it.

GENERAL NIKITCHENKO. It is the business of the commission to collect the material for prosecution while the business of the Tribunal is to judge on the material collected. The opinion is that in case the material is insufficient and the Tribunal thinks the case has not

been sufficiently investigated, it would be better to refer it back to the commission to collect additional material than to have the case come out that the material was insufficient to prosecute.

As far as the place or the time of the trial should be concerned, of course, it has to be in conjunction with the military authorities or the Control Council. It should suit and fit in with their requirements. Further, if the commission, when they investigate, find out they must call a number of witnesses, that should have some bearing on where the trial should take place.

MR. JUSTICE JACKSON. The provision of article 18 as to the place of trial: it seems to us that the last sentence relates to local criminals under the other part of the Moscow declaration and that the international group of criminals should be tried at some one stated place. If the crimes are committed in the locality, it would then be appropriate that they be considered local criminals under the Moscow declaration rather than in our group, and we think great difficulties would follow trying to determine where one of the international criminals had been criminal at his worst. Therefore, we would omit this provision as to the international criminals.

GENERAL NIKITCHENKO. There is a similar paragraph in the American version, or a similar sentence. It is rather difficult without a concrete case in hand to decide whether the criminal should be charged in the place where he committed his worst crime or in a general sense, and it is not advisable to bind the court beforehand to the decision it should take. The paragraph is not binding but just a suggestion.

MR. JUSTICE JACKSON. I wonder what sentence in our draft General Nikitchenko thinks conveys this meaning. We did not intend such a meaning.

SIR THOMAS BARNES. Paragraph 7 deals with this question but not in the sense stated.

GENERAL NIKITCHENKO. The provision is slightly different in article 7.

SIR THOMAS BARNES. Do you accept the provision of article 7 of the American draft?

GENERAL NIKITCHENKO. We are prepared to change the Russian draft or the American draft.

SIR THOMAS BARNES. I was asking whether the Soviet Delegation was willing to accept article 7 as drafted by the United States.

GENERAL NIKITCHENKO. It is not a sufficiently serious question to have division of opinion and could be drafted to say the court should have the right to say where it should take place.

MR. JUSTICE JACKSON. We have some difficult problems in reference to the place of trial. We have problems which, as we see it, are not problems for the court but are problems for the governments involved.