division. We have seen it here at this table. I would not want to insist on going ahead with something that no one of my colleagues would agree to. But we have basic differences of viewpoint with regard to certain points in this case. For instance, I personally am much more concerned about the possible disagreements over the documents to be submitted, in view of the views expressed here, than I am about the particular defendants to be prosecuted. I think we would have little difficulty on that. But in the coordination of work of the chiefs of prosecution and their staffs, if that must be submitted to a majority vote, we cannot have a majority for anything, at least for some weeks, because we haven't the other prosecutors. I think we are in a state of stall that makes this plan unworkable. I do not think giving the vote to a rotating chairman, so that adoption of a proposal might depend on which day you brought it up, would be a workable plan. I don't know how you intend to rotate-I've never understood it—but I am wondering what result you would get. It seems to me that the only suggestion that meets our needs would be that the same arrangement that the Attorney-General suggests as to the determination of defendants applies to the determination of policies on which they shall be prosecuted. In other words, if there is an equal division, the side which has the possession of the prisoner may go ahead. I would not see any workable plan other than that, and I think we must provide it. It does not derogate at all from the international character of this agreement. It must provide what will occur in case of an equal division in prosecutors if we are going to have things determined by formal vote of the prosecutors.

GENERAL NIKITCHENKO. Regarding the problem of coordination, the Soviet Delegation imagines that there is no real necessity for every single step of each single prosecutor to be coordinated. Coordination should occur, but coordination to the general plan of prosecution, and in execution of the plan each should be entitled to independent action. When all the Chief Prosecutors have been appointed, they should get together and decide and advise one another who is going to deal with a particular case and who is going to investigate a particular accusation. That is considered essential. Each could then have freedom to deal with that particular case. Until the other countries have appointed prosecutors, the Chief Prosecutors appointed and who are ready should be entitled to carry on their work. Perhaps it would satisfy Mr. Justice Jackson if a single word or two were added to subparagraph (a), in coordination with the general plan and with the work of each of the Chief Frosecutors and his staff."

66

SIR DAVID MAXWELL FYFE. What I would suggest is that we redraft this more fully, including what General Nikitchenko suggests. The drafting committee could elaborate on this.

MR. JUSTICE JACKSON. Well, I think General Nikitchenko's suggestion meets my problem as to (a), and I agree with him fully that in those things there must be a common plan. My problem is this— and I think it is a very real one and very fundamental-what happens when two of us favor one plan and two of us another, as for example, what should go into the indictment and what should go in at the trial? We approach this from different systems of law and practice and different traditions. Now, my view is, if it is an American prisoner and I want to charge him and one of my associates agrees, I should be entitled to do so. I would not want to do it unless one of my associates did agree. In other words, the absence of an agreement should not stall our case. I think every agreement which is intended to function by majority rule where an equal division is possible should make provision as to what happens in case of a tie vote. My difficulty in the question of applying the principle that the chairman shall cast two votes in case of a tie is that we have settled nothing as to who shall be the chairman. Does rotation mean by the week, by the day, or by the trial? You have the possibility of equal division as to choice of a chairman, and, if the selection of a chairman is revolving, other questions arise. I think it would be most unfortunate if the way a thing was decided depended upon when it was brought up and who happened to be in the chair at the moment. Where we chiefly use the casting vote is in the case of a person who has no vote in bringing about the tie, like the Vice President, who votes in the Senate if there is a tie, but who does not vote in producing a tie. He has no vote other than a deciding one. So I don't think it is workable in this situation, and I would not be able to agree to an arrangegment that I think might not work.

SIR DAVID MAXWELL FYFE. I still feel that the only way of dealing with this is to get out a compromise on paper to try to make the different points and discuss that with the heads of delegations tomorrow. If I may assume the task myself, I will try to get out what I consider a fair compromise, and then we could deal with it tomorrow afternoon. I firmly believe that four reasonable men, animated by the same keen desire, could break down and find a way. Then shall we adjourn now on the understanding that the drafting committee meets tomorrow morning at 10:30 to clean up the draft and the heads of delegations meet at 2:30?

MR. JUSTICE JACKSON. One other thing is suggested on this. I think there should be an arrangement whereby a nation may appoint a successor to its Chief Prosecutor because, candidly, it is suggested by my personal situation. The American plan contemplated cleaning this thing up in one trial or, at the very most, a very few trials. I shall not be able to remain for the life of this agreement and shall not be

able to go through a number of trials. I shall submit to the President the question of whether he should choose my successor before a trial or after one. But I would want no misunderstanding-if we desire to change prosecutors, it is not a question of my own or my country's bad faith or receding from the agreement.

The Conference adjourned.

XXXIV. Report of American Member of Drafting Subcommittee, July 19, 1945

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:

"(ƒ). 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 M. 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