2 Legation in Washington to Department of External Affairs

Cablegram 1213 WASHINGTON, 31 December 1945, 9.53 p.m.

MOST IMMEDIATE SECRET

Our 922 of 19th October and 1124 6th December and your 1191 11th December, 1945. [1] Japanese war crimes.

The following Note has now been received from the State Department. You will see that it follows the lines set out in our 1124 and thereby modifies the Note of the 18th October. Begins.

The Acting Secretary of State [2] refers to the Department's Note of 18th October, 1945 regarding the trial and punishment of Japanese war criminals. Inasmuch as this Government considers the constitution of an International Military Tribunal for the trial of individuals charged with crimes against peace a matter of immediate importance, the Department urgently requested the Supreme Commander's views on the subject and now sets forth the following clarification of certain points raised by several of the interested Governments. It is proposed that the International Military Tribunal to be appointed by the Supreme Commander for the trial of major war criminals will consist of not more than nine nor less than three judges. The Supreme Commander will designate not more than one judge of any one country from among the nominees of the signatories of the surrender instrument. The Supreme Commander has urged that there shall be no alternates in view of the problems of accommodation, transportation and the difficulties of local arrangements. The President of the Court will be designated by the Supreme Commander. It is suggested that the rank of the nominees approximate that of a Major General in the United States Army or higher. The jurisdiction of the Court will be the trial of individuals charged with 'planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing'. Those individuals so indicated who are not now under the control of the Supreme Commander will be requested from the Allied Commander concerned.

It is proposed that the Court and its rules of procedure will be established by the Supreme Commander. The rules, including those relating to the admissibility of evidence, will follow the Nuremburg pattern [3] so far as it is appropriate in the Far Eastern theatre. It is suggested that the prosecution stag will consist of Mr. Joseph B. Keenan, who has already been designated Chief of an International Prosecution Section at the Supreme Commander's Headquarters, and his present staff, with the addition of associate prosecutors and assistants to be designated by the Supreme Commander from nominations submitted by the participating Powers, the Philippines, and India.

The Supreme Commander has indicated that the earliest date for the return of the indictment has now been estimated for 1st February, 1946. Accordingly, the Government of the United States urgently requests the Australian Government to nominate a judge and an associate prosecutor by 5th January, 1946 because of the urgent necessity of proceeding with the trials at the earliest possible moment. Ends.

Please instruct as to the reply to be returned to the State Department. It will be noted that this is requested by 5th January.

Attention is particularly drawn to the passage reading 'It is proposed that the Court and its rules of procedure will be established by the Supreme Commander'. When in the course of an informal discussion Oldham pointed out to Garretson (State Department) that this passage might not be acceptable, Garretson stated that the United States proposal had been framed in this way in order to overcome protracted discussions and difficulties similar to those encountered by the four prosecuting teams in the preparation of the case against the major European war criminals.

He stressed that the foregoing sentence should not be separated from the following one which reads 'The rules including those relating to the admissibility of evidence will follow the Nuremburg pattern so far as it is appropriate in the Far Eastern theatre'.

Glad of immediate instructions if you require extension of time beyond 5th January for delivery of reply. [4]

1 Cablegram 922 reported a State Department note, asking, in accordance with a request by MacArthur, that China, the United Kingdom and the Soviet Union each designate five individuals for appointment to the international court to try Far Eastern war criminals, and that Australia, Canada, France, the Netherlands and New Zealand each designate three. Cablegram 1124 (actually dispatched 7 December) confirmed a subsequent change in State Department policy and transmitted the text of a proposed reply to the U.S. note, conveying the Australian Govt's understanding that each government concerned was now to be represented equally.

Cablegram 1191 approved this proposed text, promised to transmit shortly the names of five Australian nominees, and suggested continuing to press the State Department with the Australian view that MacArthur's responsibility for all phases of trials of major war criminals should be subject to inter-governmental agreement by all powers concerned.

2 Dean Acheson.

3 The Charter of the International Military Tribunal for the Far East, authorised by MacArthur on 19 January, provided that the Tribunal would not be bound by technical rules of evidence and would 'admit any evidence which it deems to have probative value'.

4 Cablegram 12 of 2 January asked for an extension of time until at least 12 January. Nomination of Sir William Webb as Judge was transmitted to Washington on 10 January, and of Mr Justice Alan James Mansfield as Associate Prosecutor on 12 January. MacArthur subsequently appointed Webb President of the Tribunal.

[AA:A1067, UN46/WC/15]