impossible for the Soviet or French judge to be appointed and I have no doubt whatever that the effect would be that the French would support the appointment of an American or English president. I think myself that in view of the principle of rotation, which is expressly accepted in the Charter, the president should be an American. I am, therefore, recommending my Government to announce in the near future the names of the judges whom they will nominate for a second trial, and I have stressed the importance of appointing men of high judicial standing. I think, also, that the place of trial should not be made a condition of participation in further proceedings. At the same time there are not only political objections to transferring to Berlin, or to some town in the Russian zone, but there are for us almost overwhelming practical difficulties. We are assured by our people in Berlin that there simply is not the office and living accommodation which would be required, available in the British zone, and there is considerable doubt whether any suitable Court would be available. Moreover, the transfer of the court and office equipment, the translating apparatus and so on from Nuremberg would involve trouble and expense, and it appears to be quite clear that a transfer from Nuremberg might involve considerable delay in the commencement of proceedings which it ought otherwise be possible to start towards the end of October. I hope very much, therefore, that the United States Government may feel able to agree to the second trial taking place in Nuremberg. It has been an immense advantage to us all to have the facilities and resources which have been so generously placed at our disposal by the United States, and I see no prospect whatever of reproducing similar arrangements anywhere else. If we are to keep the existing staffs together and to maintain the present organization as a running machine it is most desirable that final decisions should be reached early in August so that the necessary further steps can be taken. I am urging on my Government, therefore, the importance of immediate action and no doubt on your own return to Washington you will pursue the matter there. Yours sincerely, Mr. Justice Jackson, Chief Prosecutor, [Signed] HARTLEY SHAWCROSS Appendix K SUBSTANCE OF NOTE ADDRESSED BY EMBASSIES LONDON, MOSCOW, AND PARIS TO BRITISH, FRENCH, AND SOVIET GOVERNMENTS The United States Government has received a note from the French Government suggesting that the Committee of Prosecutors established under Article 14 of the Charter of the International Military Tribunal should reconvene as soon as possible. It is understood that similar notes were addressed to the British and Soviet Governments. As a result of the historic international trial which has terminated at Nuernberg, the great principles of the London Agreement of August 8, 1945, have been established and applied. The American Delegation to the United Nations General Assembly sponsored a resolution reaffirming the principles of international law recognized by the Charter of the International Military Tribunal and of the Tribunal's judgment. This resolution has been adopted by the General Assembly, which has thus confirmed the permanent place of these principles in international law. It will be recalled that Article 6 of the Agreement signed at London provided that nothing therein should "prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or in Germany for the trial of war criminals." It would not appear necessary that all those who might be designated as "major war criminals" within the meaning of the London Agreement and the Charter of International Military Tribunal be tried before that tribunal nor that the list of major war criminals be declared closed in the manner suggested by the French Government. The United States authorities are proceeding now with the trial of various German war criminals in Occupation Tribunals established in the American Zone in Germany. The United States Military Governor has designated a Chief of Counsel for War Crimes in charge of the prosecution in these tribunals of offenses recognized as crimes in Control Council Law No. 10. The definition of crimes in that law is substantially the same as the definition of crimes in the Charter of the International Military Tribunal. Under this program the trial of various German doctors and scientists as well as of Field Marshal Milch is now in progress at Nuernberg. Other trials of war criminals, including industrialists, will follow. It is contemplated that as many as six tribunals may be functioning simultaneously. It is the view of this Government that further trials of German war criminals can be more expeditiously held in national or occupation courts and that additional proceedings before the International Military Tribunal itself are not required. This Government accordingly believes that there is no occasion for the Committee of Chief Prosecutors established under Article 14 of the Charter to reconvene as suggested by the French Government. A similar note setting forth the position of this Government is being addressed to the French and Soviet Governments. 22 JANUARY 1947. Appendix L MILITARY GOVERNMENT-GERMANY, UNITED STATES ZONE Ordinance No. 7 Organization and Powers of Certain Military Tribunals Article I The purpose of this Ordinance is to provide for the establishment of military tribunals which shall have power to try and punish persons charged with offenses recognized as crimes in Article II cf Control Council Law No. 10, including conspiracies to commit any such crimes. Nothing herein shall prejudice the jurisdiction or the powers of other courts established or which may be established for the trial of any such offenses. Article II a) Pursuant to the powers of the Military Governor for the United States Zone of Occupation within Germany and further pursuant to the powers conferred upon the Zone Commander by Control Council Law No. 10 and Articles 10 and 11 of the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945 certain tribunals to be known as "Military Tribunals” shall be established hereunder. b) Each such tribunal shall consist of three or more members to be designated by the Military Governor. One alternate member may be designated to any tribunal if deemed advisable by the Military Governor. Except as provided in subsection (c) of this Article, all members and alternates shall be lawyers who have been admitted to practice, for at least five years, in the highest courts of one of the United States or its territories or of the District of Columbia, or who have been admitted to practice in the United States Supreme Court. c) The Military Governor may in his discretion enter into an agreement with one or more other zone commanders of the member nations of the Allied Control Authority providing for the joint trial of any case or cases. In such cases the tribunals shall consist of three or more members as may be provided in the agreement. In such cases the tribunals may include properly qualified lawyers designated by the other member nations. d) The Military Governor shall designate one of the members of the tribunal to serve as the presiding judge. e) Neither the tribunals nor the members of the tribunals or the alternates may be challenged by the prosecution or by the defendants or their counsel. f) In case of illness of any member of a tribunal or his incapacity for some other reason, the alternate, if one has been designated, shall take his place as a member in the pending trial. Members may be replaced for reasons of health or for other good reasons, except that no replacement of a member may take place, during a trial, other than by the alternate. If no alternate has been designated, the trial shall be continued to conclusion by the remaining members. g) The presence of three members of the tribunal or of two members when authorized pursuant to subsection (f) supra shall be necessary to constitute a quorum. In the case of tribunals designated under (c) above the agreement shall determine the requirements for a quorum. h) Decisions and judgments, including convictions and sentences, shall be by majority vote of the members. If the votes of the members are equally divided, the presiding member shall declare a mistrial. Article III a) Charges against persons to be tried in the tribunals established hereunder shall originate in the Office of the Chief of Counsel for War Crimes, appointed by the Military Governor pursuant to Paragraph 3 of Executive Order Numbered 9679 of the President of the United States dated 16 January 1946. The Chief of Counsel for War Crimes shall determine the persons to be tried by the tribunals and he or his designated representative shall file the indictments with the Secre tary General of the tribunals (See Article XIV, infra) and shall conduct the prosecution. b) The Chief of Counsel for War Crimes, when in his judgment it is advisable, may invite one or more United Nations to designate representatives to participate in the prosecution of any case. Article IV In order to ensure fair trial for the defendants, the following procedure shall be followed: a) A defendant shall be furnished, at a reasonable time before his trial, a copy of the indictment and of all documents lodged with the indictment, translated into a language which he understands. The indictment shall state the charges plainly, concisely and with sufficient particulars to inform defendant of the offenses charged. b) The trial shall be conducted in, or translated into, a language which the defendant understands. c) A defendant shall have the right to be represented by counsel of his own selection, provided such counsel shall be a person qualified under existing regulations to conduct cases before the courts of defendant's country, or any other person who may be specially authorized by the tribunal. The tribunal shall appoint qualified counsel to represent a defendant who is not represented by counsel of his own selection. d) Every defendant shall be entitled to be present at his trial except that a defendant may be proceeded against during temporary absences if in the opinion of the tribunal defendant's interests will not thereby be impaired, and except further as provided in Article VI (c). The tribunal may also proceed in the absence of any defendant who has applied for and has been granted permission to be absent. e) A defendant shall have the right through his counsel to present evidence at the trial in support of his defense, and to cross-examine any witness called by the prosecution. f) A defendant may apply in writing to the tribunal for the production of witnesses or of documents. The application shall state where the witness or document is thought to be located and shall also state the facts to be proved by the witness or the document and the relevancy of such facts to the defense. If the tribunal grants the application, the defendant shall be given such aid in obtaining production of evidence as the tribunal may order. Article V The tribunals shall have the power a) to summon witnesses to the trial, to require their attendance and testimony and to put questions to them; b) to interrogate any defendant who takes the stand to testify in his own behalf, or who is called to testify regarding another defendant; c) to require the production of documents and other evidentiary material; d) to administer oaths; e) to appoint officers for the carrying out of any task designated by the tribunals including the taking of evidence on commission; f) to adopt rules of procedure not inconsistent with this Ordinance. Such rules shall be adopted, and from time to time as necessary, revised by the members of the tribunals or by the committee of presiding judges as provided in Article XIII. The tribunals shall Article VI a) confine the trial strictly to an expeditious hearing of the issues raised by the charges; b) take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of any kind whatsoever; c) deal summarily with any contumacy, imposing appropriate punishment, including the exclusion of any defendant or his counsel from some or all further proceedings, but without prejudice to the determination of the charges. Article VII The tribunals shall not be bound by technical rules of evidence. They shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which they deem to have probative value. Without limiting the foregoing general rules, the following shall be deemed admissible if they appear to the tribunal to contain information of probative value relating to the charges: affidavits, depositions, interrogations, and other statements, diaries, letters, the records, findings, statements and judgments of the military tribunals and the reviewing and confirming authorities of any of the United Nations, and copies of any document or other secondary evidence of the contents of any document, if the original is not readily available or cannot be produced without delay. The tribunal shall afford the opposing party such opportunity to question the authenticity or probative value of such evidence as in the opinion of the tribunal the ends of justice require. Article VIII The tribunals may require that they be informed of the nature of any evidence before it is offered so that they may rule upon the relevance thereof. Article IX The tribunals shall not require proof of facts of common knowledge but shall take judicial notice thereof. They shall also take judicial notice of official governmental documents and reports of any of the United Nations, including the acts and documents of the committees set up in the various Allied countries for the investigation of war crimes, and the records and findings of military or other tribunals of any of the United Nations. |