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(DEAR MR. JACKSON:)
I have the honor to send you the comments of the Soviet Delegation on the American draft entitled "Executive Agreement regarding the Judicial Prosecution of War Criminals of European Axis Countries" and the proposals of the Soviet Delegation on the basic questions for inclusion in the Statute on the International Military Tribunal.
Comments of the Soviet Delegation on the American Draft Entitled "Executive Agreement Regarding the Trial of War Criminals of the European Axis Countries"
The present comments are preliminary in character and do not exclude the possibility of amendments and additional proposals being presented in the course of discussion.
1. In the opinion of the Soviet Delegation the text of the American draft agreement should be divided into two parts.
One part should represent an agreement, in the proper sense of the word, concerning the punishment of the principal war criminals of the European Axis countries and the creation for this purpose of an International Military Tribunal, with appropriate expansion and presentation of the motives of the agreement.
In this case the text of the agreement could include in some form or other points 1, 2, and 3 of the American draft.
The other part of the American draft, in the opinion of the Soviet Delegation, should be developed as a "Statute of the International Military Tribunal" to be confirmed by the agreement.
The comments of the Soviet Delegation regarding the proposed structure and possible content of the "Statute of the International Military Tribunal" are presented separately.
The following articles of the American draft in appropriate wording could be included in the "Statute of the International Military Tribunal" with the additions and amendments which we propose below.
2. Article 5 of the draft agreement should be changed so that the presidency of the International Military Tribunal will be held by a representative of that one of the four countries signatory to the agreement on whose territory the trial takes place, and in all other cases should be held in rotation.
3. Article 6 of the draft is in need of the following addition: In case of a tie, the deciding vote is cast by the President.
4. Article 7 should be amended so that the sessions of the Tribunal may take place
on the territories of the various states (without referring to Germany, Austria, Italy) by decision of the Tribunal reached in agreement with those states. Under such arrangements preference should be given to the territory of that state toward which any given accused person has committed the most serious crimes.
This part of the draft agreement should include an article providing that all official documents concerning the trial of the principal -war criminals should be reproduced in English, Russian, and French, and also in the language of the country on whose territory the Tribunal is sitting.
The trial should also be conducted in the language of that one of the four signatory countries on whose territory the session of the court is taking place, and in all other cases in accordance with the decision of the Tribunal.
5. The reference to the possibility of arraigning organizations before the International Tribunal should be excluded from the first part of article 10.
The second part of this article should be amended to provide that representatives appointed by the Soviet Union, the United States of America, the United Kingdom, and the French Republic form the Investigating Commission.
6. The wording of article It of the draft should be amended to correspond to the definition of the functions of the Investigating Commission.
7. Article 12 should be supplemented by a reference to responsibility for murdering and torturing prisoners of war, and for carrying away civilian population into slavery in Germany.
8. Paragraph "ell of article 16 should be eliminated for the reasons set forth by the Soviet Delegation at the session of June 26.
9. The draft agreement should include provisions for criminal prosecutions to be instigated by the Investigating Commission upon the proposal of any one of the Governments which participate in the agreement, or on the initiative of the Tribunal or of the Investigating
Commission, and likewise a provision that arraignment should be effected on the basis of an act of accusation presented by the Investigating Commission.
10. Article 18 should be supplemented by providing that official acts and documents of commissions formed in the various Allied states for investigating Fascist crimes shall have the same legal significance as official acts drawn up by the Investigating Commission.
11. Article 19 of the draft should be supplemented by including a reference to the right of the Control Council in Germany to cancel a sentence and to hand over the case for further examination.
12. Articles 21 and 22 of the draft, concerning the criminal responsibility of organizations, should be eliminated for the reasons which were set forth by the Soviet Delegation at the session of June 26.
13. Articles 23 and 24 of the draft should be amended to provide that the expenses required for the support of the International Military Tribunal, of the Investigating Commission, and of their staffs should be paid for out of funds set aside by the Control Council in Germany.
14. Article 25 of the draft should be eliminated since it is not related to the organization of the International Military Tribunal.
15. Article 26, in the opinion of the Soviet Delegation, in its amended form, should be included, not in the statute of the Tribunal, but in the text of the agreement.
Basic Questions for Inclusion in the Statute on the International Military Tribunal (Proposals of the Soviet Delegation)
The Commission for the conclusion of an agreement on the punishment of the principal war criminals of the European Axis Powers is confronted with the question of developing the American draft into a statute on the International Military Tribunal which would serve as a basis for the organization and activity of the Tribunal and would, by that fact, assure the earliest possible beginning of the trials of the principal war criminals.
In the present first stage the Soviet Delegation considers it timely and appropriate to present for consideration by the Commission the range of the basic questions which must find their solution in the statute on the International Military Tribunal for the purpose of fulfilling the principle of the swift and just punishment of military criminals as proclaimed in the Crimea declaration.
It seems necessary that the statute on the IMT should first of all refer to the general principles of the structure and activity of the IMT. This includes the definition of the tasks of the IMT and the range of crimes subject to its jurisdiction. It should also cover the questions concerning the divisions of IMT, the language of its documents, and also the. question of giving the IMT the right to work out an instruction regulating in more detail the procedure of its activity.
In the following, second section of the statute, it is necessary to decide questions connected with the personnel of the IMT. Such are the questions concerning the method of appointing judges and their surrogrates, of the disqualification and recall of judges, and of the quorum of the IMT. The third section should regulate the questions connected with the orgranization and activity of the International Investigating Commission attached to the IMT: the functions of the International Investigating Commission, its composition and method of activity. Further, the statute on the IMT should contain sections setting forth the procedural norms, regulating the handling of investigating and judicial trials of war criminals subject to the jurisdiction of the IMT. This includes provisions concerning the instigation of a criminal prosecution (the initiative in instigating an accusation, activities of investigation, the act of accusation), concerning the method of bringing accused criminals to the court, concerning the sessions of the court (the place of session of the IMT, the presidency at the sessions of the IMT, the participation of substitute members of the IMT, the langauge of the court sessions), concerning the organization of the process of trial (participation of the party or parties bringing the accusation and of the defense, guarantees to the rights of the accused and assuring swiftness of trial, the question of evidence in cases under the jurisdiction of the IMT).
Further questions arise logically concerning substantive law, including questions of the basic principles of the responsibility of war criminals (significance of official position, significance of orders, responsibility of abettors) and their punishment (form of punishment, question of confiscation of property).
The concluding section of the statute of the IMT should regulate questions connected with appeals against the sentences passed by the IMT, modification of such sentences, question of the carrying out of sentences passed by the IMT.
As is obvious from the short listing of questions, presented above, which should be regulated by the statute of the IMT, a considerable majority of them have not only been foreseen by the Americans, but the concrete solutions set forth in the American draft are fully acceptable as a basis for elaborating the provisions of the statute of the IMT.
Among them are the following proposals set forth in the American draft: Definitions of the functions of the IMT and of the range of crimes subject to its jurisdiction (Articles 1 and 12 of Justice Jackson's draft), the references to the position of the IMT and of its divisions (Article 5 of Justice Jackson's draft), provisions regarding substitutes (Article 6), concerning instructions (Article 8), concerning procedural guarantees for the rights of the accused and expeditious procedure of the court (Article 16), concerning evidence (Articles 17 and 18), concerning responsibility of abettors (Article 13), concerning the significance of the official position and superior orders (Articles 14 and 15), concerning punishment, concerning modification and execution of sentence (Articles 19 and 20), concerning expenditures (Articles 23-25).
The statute on the IMT includes provisions regulating the organization and activity of the International Investigating Commission. The Investigating Commission is not referred to in Justice Jackson's draft; however one must note that the functions of the proposed Investigating Commission and the functions which are set forth in Justice Jackson's draft or the Office of Prosecuting Attorneys (Article 10 of the draft) are very similar.
On the other hand, in the list of questions to be regulated by the statute on the IMT there is no special reference to the responsibility of organizations, as set forth in Justice Jackson's draft; however, the provisions regarding the responsibility of abettors embraces the responsibility of the members of the criminal organizations.
The present considerations are preliminary in character. Their purpose is to make more precise the positions of the delegations, and to contribute to the systematic and rapid development of the work of the Commission.
International Conference on Military Trials : London, 1945
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials : London, 1945
International organization and conference series; II
European and British Commonwealth 1
Department of State Publication 3080
Washington, DC : Government Printing Office, 1949