would just state how they visualize the procedure at the trial. Sir Thomas and I agreed on such visualization as follows: 1. Reading of the indictment. 2. Arraignment of defendants by Tribunals, calling on each to plead "guilty" or "not guilty”. 3. Opening statements by the Prosecutors. 4. Presentation of the case by Prosecutors, defendants having the right to cross-examine. 5. Opening statements by defendants or their counsel. 6. Defendants' evidence, with cross-examination by Prosecutors. 7. Defendants' final arguments or summations. 8. Prosecutors' final arguments or summations. 9. Judgment. 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 the 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: 1. Indictment read. 2. Arraignment by the Tribunal. 3. Opening statements by Prosecutors. 4. Call upon Prosecutors and defendants by Tribunal to state whether they wish any additional witnesses called. 5. Whole evidence for the prosecution and then whole evidence for the defendants, without any interruption by arguments or statements of counsel. 6. Summation by Prosecutors. 7. Summation by defendants. 8. Last word by individual defendants. 9. Judgment by the Tribunal. 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 had 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. XXV. Draft of Agreement and Charter, AGREEMENT by the Governments of the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, of the UNITED STATES OF AMERICA, of the Provisional Government of the FRENCH REPUBLIC and of the UNION OF SOVIET SOCIALIST REPUBLICS for the Prosecution and Punishment of the Major EUROPEAN AXIS WAR CRIMINALS WHEREAS the United Nations have from time to time made declarations of their intention that War Criminals shall be brought to justice; AND WHEREAS the Moscow Declaration of the 30th October, 1943 on German atrocities in Occupied Europe stated that those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes "will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free Governments that will be created therein"; AND WHEREAS this Declaration was stated to be "without prejudice to the case of major criminals, whose offences have no particular geographical location and who will be punished by the joint decision of the Governments of the Allies"; NOW THEREFORE the Governments of the United Kingdom of Great Britain and Northern Ireland, of the United States of America, of the Provisional Government of the French Republic and of the Union of Soviet Socialist Republics (hereinafter called "the Signatories") acting in the interests of all the United Nations and by their representatives duly authorized thereto have concluded this following Agreement. Article 1. There shall be established after consultation with the Control Council of Germany an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or as representative members of organisations or groups or in both capacities. Article 2. The constitution, jurisdiction and functions of the International Military Tribunal shall be those set out in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement. Article 3. Each of the Signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal. The signatories shall also use their best endeavours to make available for investigation of the charges against and the trial before the International Military Tribunal such of the major war criminals as are not in the territories of any of the Signatories themselves. Article 4. Each of the Signatories shall establish procedure governing the return of persons charged with offences who, in accordance with the Moscow Declaration, are to be tried at the scenes of their crimes. Article 5. Any Government 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 Signatory and acceding Governments of each such accession. Article 6. Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or Germany for the trial of war criminals. Article 7. This Agreement shall come into force on the day of signature and shall remain in force for the period of one year and shall continue thereafter, subject to the right of any Signatory or any acceding Government, to give, through the diplomatic channel, one month's notice of intention to terminate it. IN WITNESS WHEREOF the Undersigned Plenipotentiaries have signed the present agreement [and have affixed thereto their seals]. DONE in quadruplicate in this day of 1945 in English, French and Russian, each text to have equal authenticity. For the Government of the United Kingdom of Great Britain and Northern Ireland For the Government of the United States of America For the Provisional Government of the French Republic For the Government of the Union of Soviet Socialist Republics Charter CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL 1. In pursuance of the Agreement dated there shall be established an International Military Tribunal (hereinafter called "the Tribunal") for the just and prompt trial and punishment of the major war criminals of the European Axis Powers. 2. The Tribunal shall consist of four members, each with an alternate. One member and one alternate shall be appointed by each of the Signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In case of illness of any member of the Tribunal or his incapacity for some other reason to fulfil his functions, his alternate shall take his place. 3. Neither the Tribunal, its members nor their alternates can be challenged by the prosecution or by the defendants or their counsel. Each Signatory may replace its member of the Tribunal or his alternate for reasons of health or for other good reasons. 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 |