740.00116 EW/2–646: Telegram

The Chargé in the Soviet Union (Kennan) to the Secretary of State

secret
priority

356. ReEmbs 306, January 31. Lozovski has written me long letter dated February 5, concerning trial of Jap war criminals, translation of which follows:

“During your conversation on January 31 with the Chief of the American Section of the People’s Commissariat for Foreign Affairs of the USSR, K. A. Mikhailov, you informed him that there was as yet no final text of the charter of the International Tribunal for the trial of principal war criminals of Japan but that there was only [Page 402]a preliminary text, which closely approximates the text of the Charter of the Nuremberg Tribunal.

“However, according to our information, Jap newspapers published on January 23 an order of General MacArthur on the creation of an International Military Tribunal in Tokyo, to which order was appended a Charter of the Tribunal, differing essentially in a number of points from the Charter of the Nuremberg Tribunal. If this text of the Charter published in Tokyo is the preliminary text of which you spoke, I consider it necessary to inform you of those comments which this text elicits from the Soviet side:

  • “1. In Article II of the Charter published in Tokyo, it is stated that the Tribunal shall consist of not less than five and not more than nine members, appointed by the Supreme Commander for the Allied Powers from among persons nominated by the countries which signed the document on Japan’s capitulation. Nothing is stated in this article concerning the deputies of the members of the Tribunal. However, in paragraph A, Article IV, of the Charter, it is stated that to obtain a necessary quorum the presence of a majority of the members of the Tribunal is sufficient.
  • “It follows from this that if during the trial the USSR member of the Tribunal were deprived for any reason of the opportunity to participate in a meeting of the Tribunal, this meeting would continue without the participation of the Soviet representative, which cannot be agreed to. In this connection we believe it necessary that there be present at the trial, in addition to the members of the Tribunal, their deputies, who could substitute for them if necessary.
  • “2. Point 8 of the above-mentioned Charter contains a provision that the responsibility for the investigation and indictment lies solely with the chief prosecutor appointed by the Supreme Commander. The prosecutors appointed by all the other United Nations are only his assistants and their role becomes merely that of helping the chief prosecutor in his work.
  • “There is no objection from the Soviet side to the appointment of the chief prosecutor by the Supreme Commander on the condition that the Soviet prosecutor (as well as the prosecutors of the other Allied powers) must be guaranteed the possibility of active participation in the conduct of the trial, and in particular:
    • a. The act of indictment must be ratified and signed by all the prosecutors. In the event of a division of the votes Article XIV of the Nuremberg Charter must be applied, namely: that upon a division of votes on the question of determining the persons subject to the judgement of the Tribunal or the crimes of which they will be accused, there shall be adopted the proposal of that party which has proposed to hand over the accused to the Court or to present to it definite accusations.
    • b. Each prosecutor must have the right to present to the Tribunal all the evidence which he finds necessary, notifying beforehand all the other prosecutors about this evidence.
    • c. Each prosecutor must have the right to preliminary interrogation of those witnesses and accused whom he finds it necessary to examine and the right to familiarize himself with the protocols of examinations conducted by the other prosecutors. [Page 403]
    • d. Each prosecutor must have the right to an introductory as well as to a concluding speech. Each prosecutor must have the right in those cases, where he finds it necessary, to be replaced by any one of his assistants.
  • “3. Paragraph (c) Article IX of the Charter published in Tokyo contains the provision that the Court proceedings will be conducted in the English language and in the language of the defendant. There is no objection from the Soviet side to this regulation, if the Soviet representatives will be given the opportunity to speak and to propose questions in the Russian language with simultaneous translation into the English language.
  • “4. It follows from Article XIV of the above-cited charter that not only a trial in Tokyo of the principal Jap war criminals is contemplated but also a series of other trials at other places.
  • “I believe it necessary to explain that the Soviet representatives, about whose appointment the Embassy of the US was informed in a note verbale of January 1819 were designated for participation in the first trial in which the principal war criminals of Japan are to be brought to justice.”

Not being in possession of text of either this or Nuremberg charters, I am in no position to discuss this further with Soviet FonOff and recommend that our position be explained in detail to Soviet Embassy in Washington. We would appreciate being kept informed of any discussions on this subject that may take place with Russians in Washington or elsewhere.

Kennan
  1. See telegram 173, January 18, 5 p.m., from Moscow, p. 390.