OBSERVATIONS OF THE FRENCH DELEGATION ON THE DRAFT AGREEMENT SUBMITTED BY THE AMERICAN DELEGATION

[Translation]

Without prejudice to the position adopted by the French Representative during the San Francisco conversations, the French Delegation agree to take the proposal of the American Delegation as a basis for discussion.

In order to facilitate the work of the Conference, they reserve their right to call for modifications during the course of the discussions and in the present Aide-Mémoire deal only with the problem of the prosecution of the accused before the International Military Tribunal.

After the preliminary exchange of viewpoints on the various national systems, the French Delegation maintain their conviction that the establishment of an International Prosecuting Commission should not merely be drawn from the legal systems of the four countries, but should take primarily into account the object in view.

The four Powers intend to prosecute the major criminals in order to satisfy the call for justice of public opinion, and in the name of all the United Nations. Our aim is therefore to draw up an international procedure for the punishment of the major criminals which would satisfy the expectations of all nations, the lack of precedents giving the greater flexibility to the procedure to be followed. If one takes as basic principle the view that the Prosecuting Body should present their cases against the major war criminals (including organizations) before the International Military Tribunal in order to ensure a speedy and impartial punishment, the following considerations must necessarily be taken into account:

1. First Stage of the Proceedings

The case of the accused must be prepared in such a way that the evidence collected be sufficient to ensure the conviction of the accused.

The four Prosecuting Officers would therefore be entrusted, as is proposed in the American Agreement, with the entire and sole responsibility of conducting the preliminary investigation, of preparing the bill of accusation and of preferring the charge before the International Military Tribunal. In actual fact, evidence is now in process of being collected by a large number of organizations, and in the detailed rules of procedure which are to be laid down for the preparation of the cases, it must be borne in mind that the object in view is to collect reliable information, and not to adhere strictly to certain rules of procedure followed in national Codes of law. If therefore the rules laid down by national legal systems for the collection of evidence are not always strictly complied with, the four Prosecuting Officers should nevertheless be able to make use of such evidence after having ascertained its reliability. The lack of formality should not be a cause for its dismissal.

This example is put forward in order to show how difficult it would be to lay down in definite and all-inclusive rules of procedure the detailed system by which cases should be prepared. The French Delegation are of opinion that only very broad and general rules of procedure should be drawn up for the Prosecuting Officers in the matter of the preparation of the charges.

Complete authenticity and veracity of the collected evidence would in our view be guaranteed by the fact that the Prosecuting Commission would be made up of four Officials who, since they would meet to pass judgment on the value of the evidence, would thereby exercise a mutual control over each other, in so far as would be necessary to ensure that the case rests upon a solid foundation of facts.

All the guarantees which might be borrowed from the internal systems of the four countries would in effect only embarrass the work of the Prosecuting Officers and would be irrelevant, since the object in view is to establish a new system of judicial inquiry with no limitations other than those imposed by its ultimate purpose, an impartial judgment.

Once the case has been prepared and accepted by the four Prosecuting Officers, it passes into the second stage of the proceedings.

2. At This Stage, Various Possibilities Can Be Considered:

a) The preparation of the case should be concluded by the framing of a bill of accusation, which, in the opinion of the French Delegation, should provide for the terms of the charge the evidence on which the indictment is based -an indication of the relevant provisions of law.

All the evidence which the Prosecuting Officers have seen fit to prepare is sent to the Tribunal at the same time as the bill of accusation. Once this has been done, one of the judges is appointed as rapporteur and entrusted with the study of the case and the subsequent presentation of a report before the Court.

b) The preparation of the case is concluded by the framing of a bill of accusation, which would be the only document transmitted to the Court, which would receive no other documentary evidence until the day of the trial and would only become acquainted with the case at the time of the trial itself.

3. Third Stage

The Court proceedings will differ according to whichever of the two solutions proposed in the preceding paragraph is adopted. In the example quoted in 2 (a), the Court are acquainted with the case before the trial and the trial is mainly devoted to clearing up certain matters on which discussion appears to be necessary. This solution naturally offers the advantage of a speedy procedure. This method is not, as might be argued, prejudicial to the impartiality of the Court, since the Counsel for the Defence will also have been able to study the case from the very day on which it was transmitted to the Court and will have been in a position to lodge observations with the Court before the opening of the trial.

Against this method may nevertheless be raised the argument that the Court must sit, with absolute impartiality, on the day of the trial. If this argument were to prevail, the second method outlined in 2 (b) would have to be followed.

In this case, the Court hear the proceedings dispassionately. One wonders if the Judges would be allowed to ask questions, and if it would not be better to entrust the four Prosecuting Officers with the duty of cross-examining the accused and of discussing with the Counsel for the Defence the contradictory evidence.

The French Delegation set forward these observations, merely in order to throw light on the problem raised by the constitution of an International Prosecuting Commission. They reaffirm their conviction that such an organism should be set up, not along the lines laid down by a theoretical reasoning, but in the light of the aim sought by the four Powers, in the interest of all the United Nations.

They believe it to be difficult, if not impossible, to establish the Statute of the Prosecuting Commission without taking into account at the same time the results which a decision arrived at in this matter would have on the development of the Court proceedings. The two problems are closely related.