The Search for World Peace
XXV. Draft of Agreement and Charter, Reported by Drafting Subcommittee, July 11, 1945
AGREEMENT by the Governments of the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, Of the UNITED STATES OF AMERICA, of the Provisional Government of the FRENCH REPUBLIC and of the UNION OF SOVIET SOCIALIST REPUBLICS for the Prosecution and Punishment of the Major EUROPEAN AXIS WAR CRIMINALS
Whereas the United Nations have from time to time made declarations of their intention that War Criminals shall be brought to justice;
And whereas the Moscow Declaration of the 30th October, 1943 on German atrocities in Occupied Europe stated that those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes "will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free Governments that will be created therein";
And whereas this Declaration was stated to be "without prejudice to the case of major criminals, whose offences have no particular geographical location and who will be punished by the joint decision of the Governments of the Allies";
Now therefor the Governments of the United Kingdom of Great Britain and Northern Ireland, of the United States of America, of the Provisional Government of the French Republic and of the Union of Soviet Socialist Republics (hereinafter called "the Signatories") acting in the interests of all the United Nations and by their representatives duly authorized thereto have concluded this following Agreement.
There shall be established after consultation with the Control Council of Germany an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or as representative members of organisations or groups or in both capacities.
The constitution, jurisdiction and functions of the International Military Tribunal shall be those set out in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement.
Each of the Signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal. The signatories shall also use their best endeavours to make available for investigation of the charges against and the trial before the International Military Tribunal such of the major war criminals as are not in the territories of any of the Signatories themselves.
Each of the Signatories shall establish procedure governing the return of persons charged with offences who, in accordance with the Moscow Declaration, are to be tried at the scenes of their crimes.
Any Government of the United Nations may accede to this Agreement by notice given through the diplomatic channel to the Government of the United Kingdom, who shall inform the other Signatory and acceding Governments of each such accession.
Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or Germany for the trial of war criminals.
This Agreement shall come into force on the day of signature and shall remain in force for the period of one year and shall continue thereafter, subject to the right of any Signatory or any acceding Government, to give, through the diplomatic channel, one month's notice of intention to terminate it.
In witness whereof the Undersigned Plenipotentiaries have signed the present agreement [and have affixed thereto their seals].
Done in quadruplicate in ............ this ............ day of ......... 1945 in English, French and Russian, each text to have equal authenticity.
For the Government of the United Kingdom of Great Britain and Northern Ireland
For the Government of the United States of America
For the Provisional Government of the French Republic
For the Government of the Union of Soviet Socialist Republics
Charter CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL
1. In pursuance of the Agreement dated .............. there shall be established an International Military Tribunal (hereinafter cailed "the Tribunal") for the just and prompt trial and punishment of the major war criminals of the European Axis Powers.
2. The Tribunal shall consist of four members, each with an alternate. One member and one alternate, shall be appointed by each of the Signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In case of illness of any member of the Tribunal or his incapacity for some other reason to fulfil his functions, his alternate shall take his place.
3. Neither the Tribunal, its members nor their alternates can be challenged by the prosecution or by the defendants or their counsel. Each Signatory may replace its member of the Tribunal or his alternate for reasons of health or for other good reasons.
4. The presence of all four members of the Tribunal or their alternates shall be necessary to constitute the quorum.
If a session of the Tribunal is taking place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside. In other cases, the members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a president, and the president shall hold office during that trial, or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed.
Save as aforesaid the Tribunal shall take decisions by a simple majority vote and in case the votes are evenly divided, the vote of the president shall be decisive; provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal.
5. The Tribunal may, in case of need and depending on the number of the matters to be tried, sit in one or more Chambers or Divisions, and the establishment, functions, and procedure of each Chamber or Division shall be identical, and shall be governed by this Charter.
JURISDICTION AND GENERAL PRINCIPLES
6. The following acts shall be considered criminal violations of International Law and shall come within the jurisdiction of the Tribunal:
(a) Violations of the laws, rules or customs of war. Such violations shall include murder and ill-treatment of prisoners of war; atrocities against and violence towards civil populations; the deportation of such populations for the purpose of slave labour; the wanton destruction of towns and villages; and plunder; as well as other violations of the laws, rules and the customs of war.
(b) Launching a war of aggression.
(c) [Invasion or threat of invasion of or] initiation of war against other countries in breach of treaties, agreements or assurances between nations or otherwise in violation of International Law.
(d) [Entering into a common plan or enterprise aimed at domination over other nations, which plan or enterprise involved or was reasonably calculated to involve or in its execution did involve the use of unlawful means for its accomplishment, including any or all of the acts set out in sub-paragraphs (a) to (c) above or the use of a combination of such unlawful means with other means.]
(e) Atrocities and persecutions and deportations on political, racial or religious grounds [in pursuance of a common plan or enterprise referred to in sub-paragraph (d) hereof, whether or not in violation of the domestic law of the country where perpetrated.]
7. The official position of defendants, whether as heads of State or responsible officials in various Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
8. The fact that the defendant acted pursuant to order of a superior or to Government sanction shall not free him from responsibility but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
9. Organizers, instigators and accomplices who participated in the formulation or execution of a common criminal plan or in the perpetration of individual crimes are equally responsible with other participants in the crimes.
10. At the trial of any individual member of any group or organization, the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.
11. In cases where a group or organization is declared criminal by the Tribunal, the competent national authorities of any Signatory have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.
12. Any person may be charged before a national, military or occupation court, referred to in Article 11, with a crime other than of membership in a criminal group or organization and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organization.
13. The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence if he should be in hiding or if the Tribunal, for other reasons, finds it necessary, in the interests ol justice, to conduct the hearing in his absence.
14. The Tribunal shall draw up rules for its procedure. These rules shall not be inconsistent with the provisions of this Charter.
COMMITTEE FOR THE INVESTIGATION AND PROSECUTION OF MAJOR WAR CRIMINALS
15. Each Signatory shall appoint a Chief Prosecutor.
1. The Chief Prosecutors shall act as a committee for the following purposes:
(a) Co-ordination of the individual work of each of the Chief Prosecutors and his staff.
(b) The final designation of the defendants to be tried by the Tribunal.
(c) The approval of the indictment and of the documents to be submitted therewith.
(d) The lodgement of the indictment and the accompanying documents with the Tribunal.
(e) The drawing up and recommending to the Tribunal for their approval of draft rules of procedure contemplated by Article 14.
The Tribunal shall have power to accept, with or without amendments, or to reject the rules so recommended.
The committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation.
Source: Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945, International Organisation and Conference Series II, European and British Commonwealth 1, Department of State Publication 3080, Washington D.C.: Government Printing Office, 1949, pp. 194-198.
Editorial Note: This is a true copy of the "Draft of Agreement and Charter, Reported by Drafting Subcommittee, July 11, 1945" as referenced above. This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 18 (c).
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