MEMORANDUM OF SUGGESTIONS BY THE UNITED STATES OF ALTERATIONS IN THE DRAFT OF AGREEMENT AND CHARTER

SUBMITTED BY THE SUBCOMMITTEE

July 31, 1945

Article 4 of the Agreement as reported reads: "Nothing in the Agreement shall prejudice or release the obligations of the parties to the Moscow Declaration for the return of persons to be tried at the scenes of their crimes." The Moscow Declaration was not a legal document but was a broad statement of policy by the representatives of three nations. It did not, in my opinion, create legal obligations. 1 would not feel free, in the legal instrument now before us, to recognize as legal "obligations", in favor of unnamed obligees, this statement of policy. Of course, nothing that we do here should affect the Declaration. I would not object to the inclusion of the following or equivalent language: "Nothing in this Agreement shall affect the policy stated in the Moscow Declaration concerning the return of persons to be tried at the scenes of their crimes."

Article 7 provides that the Agreement for joint trials shall remain in force for a period of one year. Nothing in the Agreement releases the ready parties if one or more of them fails to appoint prosecutors or members of the Tribunal, or otherwise to take steps without which the Agreement could not function. I propose that a provision authorize withdrawal if any Signatory to the Agreement fails promptly to perform the undertakings of it.

Article 15 (1) of the Charter, in the last paragraph, we would like amended to read, "Provided that if there is an equal division of vote concerning the designation of the defendant to be tried by the Tribunal or the charges to be made that proposal will be adopted which was made by the party which proposed that the particular defendant be tried."

Article 16 of the Charter should allow the defendant to cross examine any witness called by the prosecution, and he should have the 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