Foreign Relations of the United States, 1946, The Far East, Volume VIII

740.00116 PW/7–2546

Memorandum by the Legal Adviser (Fahy)⁸

[Washington,] August 5, 1946.

Subject: Appointment of General Cramer as Successor to Judge Higgins as United States Member of International Military Tribunal for the Far East

The question has been raised⁹ as to the propriety of the appointment of General Cramer to succeed Judge Higgins, General Cramer not having participated throughout the trial.

Article 4c of the Charter under which the Tribunal functions, as amended April 26, 1946, provides:

“c: Absence. If a member at any time is absent and afterwards is able to be present, he shall take part in all subsequent proceedings; unless he declares in open court that he is disqualified by reason of insufficient familiarity with the proceedings which took place in his absence.”

This provision of the Charter contemplates the possibility that a member of the Tribunal might be absent during a part of the proceedings. Nevertheless, he shall participate in all subsequent proceedings unless he himself declares in open court that he is disqualified by reason of insufficient familiarity with the proceedings which took place during his absence.

The case of Judge Cramer is no different in principle. He is in a position comparable as an original appointee who might be absent during a part of the proceedings.

There is attached a rough memorandum¹⁰ in which are accumulated laws and precedents which have more or less bearing on the subject. No determinative precedents are available in international legal learning to support such a substitution as has been made in the instant case. On the other hand, none opposes it. It is quite common for agreements under which arbitration tribunals are established to provide that when death or retirement of an arbitrator occurs the vacancy may be filled; and writers on international law express the view that intentional absence of a member of an arbitral tribunal might make it necessary to replace him or dissolve the tribunal. In the Black Tom case before the Mixed Claims Commission, the claims involved were considered at various stages by different commissioners and umpires, the original incumbents having died.¹¹

In the United States the California Penal Code (Section 1053) permits the completion of a criminal proceeding by another judge if after commencement of the trial the judge shall die, become ill, or for other reason is unable to proceed. The judge who takes over “shall have the same power, authority and jurisdiction as if the trial had been commenced before such judge.[”] In Arkansas, apparently without statute, a similar rule has been judicially established. (York v. State, 121 S.W. 1070–1909; 91 Ark. 582.) In commenting upon the fact that the accused could not have been prejudiced unless in decisions of questions of evidence, the Court said: “But this could not affect the legality of the exchange, as the witnesses whose testimony may be in question in such cases may be recalled,” etc. There is also authority that in the federal courts, after death of the trial judge, a motion for new trial after verdict may be denied by the succeeding judge. (U.S. v. Meldrum, 146 Fed. 390, 394.) The Court held there was the requisite power. As to its exercise the Court said: “…¹² the discretion is to be exercised as the exigencies of the case may suggest or require. If the judge cannot do justice except by awarding a new trial, he should not hesitate to do so; but if, on the other hand, he can see from the record that no wrong can or will be done the defendant by denying the motion, the due and regular administration of justice requires that it should be done.” The Court recognized that the judge who had not heard the witnesses might not in many cases be so well qualified as the judge who presided to pass upon a motion for a new trial.

It seems clear, especially in view of the provision of the Articles first above quoted, that there was no legal bar to the filling of the vacancy created by the resignation of Judge Higgins. The provision contemplates, however, that a judge who is not present throughout the proceedings may disqualify himself from participating in all subsequent proceedings because of insufficient familiarity with the proceedings which took place in his absence.

The situation seems as follows: General Cramer is not legally barred from sitting. If the prosecution or if any accused objects to his participation in any part of the proceedings, the question is one for the Tribunal to decide. If General Cramer feels that in any particular matter he is not sufficiently familiar with the whole proceedings to participate in the particular decision he should disqualify.

General Cramer would be well advised, in the event he participates in the final decisions, to have the record affirmatively show that he has familiarized himself with the whole record and is personally satisfied that he is qualified to participate in the decisions to the extent he does participate.¹³

Charles Fahy

8. Transmitted on August 6 to General Hilldring for use in discussion with Sir Carl Berendsen and Sir George Sansom.
9. See General Hilldring’s memorandum of July 25, p. 440.
10. Not attached to file copy of this document.
11. See Green H. Hackworth, Digest of International Law (Washington, Government Printing Office, 1943), vol. vi, pp. 90 ff.
12. Omission indicated in the original.
13. The Secretary of War (Patterson) was informed by letter of August 16, 1946, in regard to the Department’s views and advice to General Cramer (740.00116 PW/8–1646).