MR. JUSTICE JACKSON: I think that this provision means just exactly what it says. If we call a witness, they have the right of cross-examination. If he is not called, they have the right to call him, if he is available, as their witness; but not, of course, the right of cross-examination. The provision itself, if Your Honor notices, reads that they have the right to cross-examine any witness called by the Prosecution; but that does not abrogate or affect Article 19, that we may obtain and produce any probative evidence in such manner as will expedite the Trial.
THE PRESIDENT: Then the next point to which I wish to draw your attention is Article 17(a). As I understood it, you were arguing that it was mandatory upon the Tribunal to consider any evidence which was relevant. Therefore, I draw your attention to Article 17(a) which gives the Tribunal power to summon witnesses to the Trial.
MR. JUSTICE JACKSON: That is right. I think there is no conflict in that whatever. The power of the Tribunal to summon witnesses and to put questions to them was introduced into this Charter through the continental systems of jurisprudence. Usually there are not Tribunal witnesses in our procedure in the States. Witnesses are called only by one of the parties; but it was suggested by the continental scholars that in this kind of case, since we were utilizing a mixture of the two procedures, the Tribunal itself should have the right to do several things. One is to summon witnesses, to require their attendance, and to put questions to them. I submit that this witness, whose affidavit has been received, can be called, if we can find him, by the Tribunal and questioned.
The next provision—and it bears, on the spirit of this—of Article 17 is that the Tribunal has the right to interrogate any defendant. Of course, under our system of jurisprudence the Tribunal would have no such right, because the defendant has the unqualified right to refrain from being a witness; but in deference again to the continental system, the Tribunal was given the right to interrogate any defendant, and his immunities, which he would have under the Constitution of the United States, if he were being tried under our system, were taken away.
I submit that the perfect consistency in those provisions empowers the Tribunal on its own motion (Article 17) to summon witnesses, to supplement anything that is offered, to put any questions to witnesses and to any defendant.
If any witness is called, the right of cross-examination cannot be denied; but that does not abrogate Article 19, which was intended to enable us to put our case before the Tribunal so that the issue would then be drawn by the defendants and the weight of what we offer determined on final submission.
THE PRESIDENT: Lastly, there is Article 17(e), which I suppose, in your submission, would entitle the Tribunal, if they thought right, after receiving the affidavit, to take the evidence of Pfaffenberger on commission.
MR. JUSTICE JACKSON: Yes, I think it would, Your Honor. I may say, in reference to that section—what, perhaps, may be surprising to those accustomed to our system of jurisprudence—that it was one of the most controversial issues we had in the framing of this Charter. We had in mind the authorization of what we call “masters” to go into various localities, perhaps, and take testimony, not knowing what might be necessary. Our practice, however, of sending “masters in equity” to take testimony and make recommendations was not acceptable to the continental system, and we finally compromised on this provision which authorizes the taking of testimony by commissions.
THE PRESIDENT: Thank you.
GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Your Honors, I have come forward after my colleague, Mr. Jackson, to make my own statement, inasmuch as I think that the petition of the Defense is fundamentally wrong and should not be complied with.