right on the trial as well as on the preliminary examination to make any explanation "relevant to the charges made against him."

Article 17 (e). We support the draft suggested by the Secretary. Article 22. The place of the first trial should be settled in accordance with previous discussions.

Article 24 makes no provision as to when the prosecution shall offer its evidence, or the defendant its evidence, or the prosecution shall offer rebuttal evidence. This omission may be taken to mean that no evidence is to be offered on the trial and appropriate additions should be made.

Article 26. The language is not clear to me and probably should read that the judgment shall be accompanied by the reasons supporting its findings.

These matters are in addition to the settlement of definition of the crimes to be adopted in Article 6.

As I have previously said if we do not succeed in agreeing upon a procedure for joint trial, I am authorized to offer to agree upon substantive law provisions and that each party may try its own. prisoners for such part of the defined crimes as it sees fit to charge, and each conduct its trials according to its own procedures. This would not only eliminate disagreements as to procedures but would shorten the trials greatly and shorten the preparation. I am advised that simultaneous translation into several languages has not been successful and was, therefore, not employed at San Francisco or other recent international conferences. The translation of each step of a trial into four languages would be an extremely time-consuming and tedious matter which would be avoided by separate trials. I will be glad to submit an outline of an agreement to this end. Respectfully submitted,

SIDNEY S. ALDERMAN

781985-49-27

LVIII. Summary Record of Conference Between the Lord Chancellor and Mr. Justice Jackson, August 1, 1945

On August 1, 1945, Sir William Jowitt, who had been announced as the Lord Chancellor in the new Labor government of the United Kingdom, invited Mr. Justice Jackson to a conference at his chambers in the House of Lords. He stated that he had been given responsibility for the further conduct of negotiations on behalf of the new government and by conference with the British representatives had informed himself of the points upon which agreement had been reached and of the points of disagreement.

Lord Jowitt desired to be acquainted with the American point of view as to the unsettled questions. He expressed general agreement with Mr. Justice Jackson on all except one of the points, namely, the right to terminate the agreement if any of the signatories failed promptly to name prosecutors, which he suggested might be taken to imply a distrust in some signatory. He also said it was his intention to continue Sir David Maxwell Fyfe on the British staff, although the new Attorney-General, Sir Hartley Shawcross, would be Chief Prosecutor on behalf of the British with Sir David as his first deputy.

The Lord Chancellor called for August 2, 1945, a meeting of the delegations for the purpose of making a final effort to compose differences.

398

LIX. Minutes of Conference Session of

August 2, 1945

The Lord Chancellor greeted each member of the delegations and called the meeting to order. Professor Gros had been called to Paris for consultation and was not present at the meeting.

LORD CHANCELLOR. The only claim I can make is that I bring a fresh mind to bear upon a very difficult problem. I confess that I am very anxious that we shall succeed in carrying out the Moscow declaration that the major war criminals shall be punished by joint decision of the governments of the Allies, but I think we shall all agree that the time has now come when we must finalize the thing or realize that we shall have to adopt some other procedure. So I am very anxious to see this morning whether or not we can come to some conclusion satisfactory to all. Would it be convenient to take first of all the agreement and thereafter the charter?

Mr. Justice Jackson, who has given great time and attention to this matter, has made certain suggestions which we might proceed to consider. I think nothing arises on articles 1, 2, and 3 of the agreement, but with regard to article 4 a question does arise, and that question concerns the use of the English word "obligation".

I understand that we all desire to honor to the fullest extent possible the policy which has come into being at Moscow. But the use of the word "obligation" to us Anglo-Saxon lawyers does create some slight difficulty. We should never use the word about something which is merely binding in good morals, but only about something which is binding in a court of law, and therefore I would suggest to you phrasing something like this: "Nothing in this agreement shall prejudice the Moscow declaration concerning the return of persons to be tried at the scenes of their crimes." Would that suit you, Mr. Justice Jackson?

MR. JUSTICE JACKSON. That would meet the point I had in mind and would be acceptable.

GENERAL NIKITCHENKO. We are quite prepared to do without the word "obligation", and we suggest that "Nothing in this agreement shall prejudice the provisions established by the Moscow declaration concerning the return of war criminals to the countries where they had committed their crimes."

LORD CHANCELLOR. What do you say to that, Mr. Justice Jackson?

MR. JUSTICE JACKSON. Entirely agreeable.

LORD CHANCELLOR. Nothing on 5, nothing-I think—on 6, and on article 7-Mr. Justice Jackson had some observation on that. Would you like to say something now?

MR. JUSTICE JACKSON. I had thought we would be in a rather awkward position if we were bound to hold our prisoners subject to production at this Tribunal for a year if for any reason the Tribunal should not be organized to proceed. None of the signatories has appointed its Tribunal members yet. Some of the signatories have not appointed their prosecutors. If there should be any failure to organize-and I may say it requires all four of the members of the Tribunal to constitute a quorum and at least a majority of the prosecutors-the delay would be very serious. What position would we be in if, through any of the things that sometimes happen with political bodies, particularly I speak with reference to things which happen in my country, to delay matters, there might be great delay in naming prosecutors or judges? We want to set up something here that we are quite sure can go ahead, for we all agree that not haste necessarily but expedition in this matter is necessary. That is my point.

LORD CHANCELLOR. Most feel, I am sure, that immediately after we reach agreement here the French prosecutor will be named, and at the first meeting of the prosecutors the French prosecutor will be present, and there will be no delay.

GENERAL NIKITCHENKO. The Soviet Delegation considers that it would not be quite fitting to put a provision of this sort in the agreement because, if there were delay, it certainly would not be because of persons being appointed with delay. In fact, it would be strange to appoint members of the Tribunal before this agreement we are now considering is signed, because, until then, there would be no Tribunal. Naturally, as soon as the agreement is signed, the Soviet Government will appoint both prosecutor and member.

LORD CHANCELLOR. I feel myself that speed in getting these trials going is very important and I rather feel this, that, if there is unreasonable delay-I hope and believe there won't be—but if there is delay, then, of course, the various powers might have to resort to their rights under article 6—that is, they might have to conduct their own trials. But I hope and believe that there will be no delay, and therefore, bearing in mind that there is that reserve power in case delay should arise. I rather suggest we might leave the article, Mr. Justice Jackson, as it stands. I think we might place ca record that we all sign this agreement in the expectation and on the understanding that proceedings will be expeditionsly carried through What do you say to that, Mr. Justice Jackson !

MR. JUSTICE JACKSON. I am satisfied to let the matter stand as it is. I question whether we ought not to add to this section that to terminate the proceedings will not prejudice proceedings already taken. I don't know the effect if one of the parties terminated the agreement before sentence. Some of these cases will drag on for a considerable time if we convict organizations and then bring in individuals. I just wonder whether we ought not, as a matter of good draftsmanship, to provide that the termination should be without prejudice to the proceedings already taken. I merely suggest it. It doesn't matter to me.

GENERAL NIKITCHENKO. It seems to me it is quite natural that anything done in accordance with this agreement would be enforced after the agreement has been terminated; so it seems to us that addition is really unnecessary. As for the trial of the organizations, we have article 6 in which it says, "Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation So, if an organization has been deemed criminal, the national military tribunal can try persons after that.

court. .

MR. JUSTICE JACKSON. But the point would be that the provision of this instrument is the only law that would make the findings of this Tribunal conclusive as to the criminal character of the organization. If that were terminated and you brought individuals into a national court organized under our system of law and you offered the conviction of organizations and said, "Here is a conclusive finding", defense counsel might bring forth the termination instrument. I don't imagine it would happen. It is a risk. I don't care what is done with it, but in an American court you might not get convictions under this system of individual trials based on the conclusive findings of this Tribunal after the document which makes them conclusive has been terminated.

LORD CHANCELLOR. May I say I understand the point. Supposing you have a finding by this international court that a certain organization is a criminal organization, and supposing thereafter, after that finding has been given, the court is terminated under article 7 and after that date some individual is tried by the American courts for belonging to that organization. What the judge is telling us—and I think it would be the same in English law-it would not be possible after the termination of the court to rely on the decision of the court that the organization in question was a criminal organization. Therefore, some words of this sort might have to be added: "Such termination shall not prejudice any findings or proceedings already taken in pursuance of this agreement."

JUDGE FALCO. We agree.