MEMORANDUM TO MR. JUSTICE JACKSON

19 July 1945

Subject: Report of Drafting Subcommittee Session of Thursday, 19 July 1945.

1. The Drafting Subcommittee spent the morning of Thursday 19 July 1945, working on the redraft of the agreement and of the charter. There was no trouble about the agreement; only a few slight verbal and punctuation changes were made.

2. In revising the charter we, of course, skipped over Article 6 and Article 15, which were to be dealt with by the heads of the delegations in the afternoon meeting of Thursday, 19 July. We made a number of verbal changes without particular difficulty until we reached Article 17 in which we were to merge subparagraphs (e) and (g). Sir Thomas Barnes and I had redrafted this merger of the two subparagraphs as follows:

"(f). to appoint interpreters, reporters, clerks and other officials, either generally or for a particular case. In particular, if at any time during the Trial it shall be established by the Tribunal that (for a reason which the Tribunal finds sufficient) a witness cannot be brought to the place of trial, then the Tribunal shall have power to appoint a special officer to take the evidence of such witness and to report to the Tribunal. Persons so appointed shall, before assuming their duties, if required by the Tribunal take an oath in a form provided by the Tribunal."

3. Professor Trainin objected to this and proposed a much more general formula to the following effect:

"The Tribunal shall have the power to appoint officers (secretaries, interpreters, etc.) for the carrying out of tasks of a subsidiary nature. The functions and duties of these officers shall be set forth by the Tribunal in the Rules of Procedure,"

4. Sir Thomas Barnes and I argued that the Tribunal has no inherent powers and will only have such powers as the signatories confer on it, and insisted that we put in expressly the power to appoint examiners or to issue letters rogatory. Professor Trainin thereupon agreed that the Tribunal would have the power to appoint officers and to decide what functions it would give them. After much discussion I smoked him out on whether he would agree now to insert the word "examiners" in his formula. He refused to do this and it finally became quite clear that he did not intend or wish the Tribunal to have the power to appoint examiners.

5. In our argument on this point Sir Thomas and I were fully seconded by K Falco, in spite of the fact that the French procedure does not provide for special masters or examiners. We were entirely unable to bring Professor Trainin around, and the whole question had to be reserved for discussion at the plenary sessions.

SIDNEY S. ALDERMAN