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]