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1.In accordance with the Moscow Declaration of October 30, 1943, concerning the responsibility of the Nazis and Hitlerites for atrocities and crimes in violation of International Law, and in accordance with other statements of the United Nations regarding the punishment of those who have committed, been responsible for, or taken a consenting part in, such atrocities and crimes, the Government of the Union of Soviet Socialist Republics, the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, acting by their duly authorized representatives, concluded the following agreement to which the adherence of all members of the United Nations is provided for, in order to provide the necessary practical measures for the prompt prosecution and trial of the major war criminals of the European Axis Powers, including the groups and organizations responsible for or taking a consenting part in the commission of such crimes and in the execution of criminal plans.
2. All members of the United Nations shall be invited by the Government of the United Kingdom, acting on behalf of the other Signatories hereto, to adhere to this Agreement. Such adherence shall in each case be notified to the Government of the United Kingdom, which shall promptly inform the other parties to this agreement.
3. The Signatories agree that the Control Council for Germany shall establish policies and procedures governing (a) the return to the scene of their crimes of persons in Germany charged with criminal offenses, in accordance with the Moscow Declaration, and (b) the surrender of persons within Germany in the custody of any of the Signatories who are demanded for prosecution by any party to this Agreement.
4. The parties to this Agreement agree to bring to trial before an International Military Tribunal, in the name, of their respective peoples, major criminals, including groups and organizations referred to in Article 1. To this end the Soviet Union, the United States, the United Kingdom, and France have each designated a representative to act as its Chief of Counsel. The Chiefs of Counsel shall be responsible for determining, preparing the charges against, and bringing to trial the persons and organizations so to be tried.
5. The Soviet Union, the United States, the United Kingdom, and France shall also promptly designate representatives to sit upon an International Military Tribunal which shall be charged with trying such persons, groups, and organizations.
6. There is hereby adopted the Annex to this instrument which (a) declares applicable International Law and specifies acts constituting criminal violations of International Law, (b) sets out the powers and duties of the Chiefs of Counsel, (c) provides for the establishment, jurisdiction, procedures, and powers of an International Military Tribunal, and (d) makes provision for the punishment of those convicted before such International Military Tribunal.
1. This Annex is adopted pursuant to the Executive Agreement made this day by the Union of Soviet Socialist Republics, the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, which Agreement provides for the adherence thereto of all members of the United Nations who may elect so to adhere.
2. The purpose of this Annex, in pursuance of the aforesaid Executive Agreement, is to make detailed provisions for the necessary practical means and measures to carry out the declaration issued at Moscow on October 30, 1943, and other statements of the United Nations on the question of punishment of war criminals insofar as they relate to the trial and punishment of major war criminals.
3. To this end this Annex (a) declares applicable International Law and specifies acts constituting criminal violations of International Law, (b) sets out the powers and duties of the Chiefs of Counsel for the purpose of bringing the major war criminals, including groups and organizations, to trial for their criminal violations of International Law, (c) provides for the establishment, the jurisdiction, procedures, and powers of the International Military Tribunal to be established for the purpose of trying such criminals for their crimes, and (d) makes provision for the punishment of those convicted before such International Military Tribunal.
4. For convenience, (a) the four Signatories will sometimes be referred to as "the Signatories," (b) the members of the United Nations adhering hereto as provided in the preceding Article will sometimes be referred to as "the Adherents," and (c) the Signatories and all Adherents will sometimes be collectively referred to as "the parties to this Agreement."
5. The Tribunal shall be bound by this declaration of the Signatories that the following acts are criminal violations of International Law:
(1) Violations of the laws, rules, and customs of war. Such violations shall include, but shall not be limited to, mass murder and ill-treatment of prisoners of war and civilian populations and the plunder of such populations.
(2) Launching a war of aggression.
(3) 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.
(4) Entering into a common plan or enterprise aimed at domination over other nations, which plan or enterprise included or intended, 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 (e)above or the use of a combination of such unlawful means with other means.
(5) Atrocities and persecutions and deportations on political, racial, or religious grounds, in pursuance of the common plan or enterprise referred to in subparagraph (d) hereof, whether or not in violation of the domestic law of the country where perpetrated.
"International law" shall be taken to include treaties, agreements, and assurances between nations and the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience.
6. There shall be set up by the Signatories an International Military Tribunal which shall have jurisdiction to hear and determine any charges presented pursuant to Article 10. Such International Military Tribunal shall consist of four members, each with an alternate, to be appointed as follows: one member and one alternate each by the Soviet Union, the United States, the United Kingdom and France. The alternate, so far as practicable, shall be present at the sessions of the Tribunal. The presiding officer shall be selected by vote of a majority of the members of the Tribunal, and if they are unable to agree, the respective appointees of each of the Signatories shall preside in rotation on successive days.
7. The parties to this Agreement agree to bring to trial before the International Military Tribunal at ------------------------------or such other place as the parties may unanimously agree in the names of their respective peoples, the major criminals, including groups and organizations, referred to in Article 2.
8. Chiefs of Counsel appointed by the Signatories shall be charged with:
(1) determining the persons, groups, and organizations against whom in their judgment there exists sufficient proof of criminal violations of International Law set out in Article 5 above to warrant their being brought to trial before the International Military Tribunal;
(2) preparing the charges against such persons and organizations;
(3) determining the proof which in their judgment has sufficient probative value to be offered in evidence against any or all such persons, groups and organizations;
(4) instituting and conducting before the International Military Tribunal prosecutions of such persons, groups and organizations.
Determination of the matters set out in sub-paragraphs (a) through (d) above shall be by agreement of the Chiefs of Counsel, provided that any Chief of Counsel may (1) bring to trial before such International Military Tribunal any person in the custody of his Government or of any Government which consents to the trial of such person, and any group or organization, representative members of which are in the custody of his Government, if, in his judgment such person, group, or organization has committed any criminal violation of International Law defined in Article 6 hereof; and (2) introduce any evidence which in his judgment has probative value relevant to the issues raised by the charges being tried.
9. The Chiefs of Counsel shall also be charged with recommending rules of procedure for adoption by the International Military Tribunal.
10. The International Military Tribunal shall have the power (a) after receiving recommendations of the Chiefs of Counsel, to establish its own rules of procedure, which shall not be inconsistent with the provisions of this Agreement; (b) to summon witnesses, including defendants, and to require their attendance and testimony; (c) to require the production of documents and other evidentiary material; (d) to administer oaths; (e) to appoint special masters and other officers to take evidence, and to make findings, except findings of guilt, or certify summaries of evidence to the International Military Tribunal whether before or during the trial, and (f) generally to exercise in a manner not inconsistent with the provisions of this Agreement plenary authority with respect to the trial of charges brought pursuant to this Agreement. Its judgment of guilt or innocence shall be final and not subject to revision.
11. There shall be lodged with the Court prior to, the commencement of the trial an indictment, supported by full particulars, specifying in detail the charges against the defendants being brought to trial. No proof shall be lodged with the Court except at the trial, and copies of any matters to be introduced in writing shall be furnished the defendant prior to their introduction.
12. In the event of the death or incapacity of any member of the International Military Tribunal, his alternate shall sit in his stead without interruption of the proceedings. All actions and decisions shall be taken by majority vote of the members.
13. In the conduct of the trial, questions may be put by each Chief of Counsel, or his representative, or by any member of the Tribunal, in his own language, and shall be translated and communicated to the witness, the defendants, and each member of the Tribunal in his own language. The witness may answer in his own language, and the answers will be translated in like manner. Written matter introduced in evidence shall be translated into the languages of the defendants and of each of the members of the Tribunal. A record of the trial will be kept in the language of each of the members of the Tribunal and in German, and each such record shall be an official record of the proceedings.
14. In order to insure fair trial for defendants the following procedure is established:
(1) Reasonable notice shall be given to the defendants of the charges against them and of the opportunity to defend. Such notice may be actual or constructive. The Tribunal shall determine what constitutes reasonable notice in any given instance.
(2) The defendants physically present before the Tribunal will (1) be furnished with copies translated into their own language, of any indictment, statement of charges, or other document of arraignment upon which they are being tried; (2) be given fair opportunity to be heard in their defence and to have the assistance of counsel. The Tribunal shall determine to what extent and for what reasons proceedings against defendants may be taken without their presence.
15. In the trial, the Tribunal shall apply the general rule of liability that those who participate in the formulation or execution of a criminal plan involving multiple crimes are liable for each of the offenses committed and responsible for the acts of each other.
16. Any defence based upon the fact that the accused is or was the head or purported head or other principal official of a State is legally inadmissible and will not be entertained.
17. The fact that a defendant acted pursuant to order of a superior or to government sanction shall not constitute a defense per se, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
18. The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedures and shall admit any evidence which it deems to have probative value. It shall employ with all possible liberality simplifications of proof, such as but not limited to: requiring defendants to make written proffers of proof; making extensive use of judicial notice; receiving sworn or unsworn statements of witnesses, depositions, recorded examinations before or findings of military or other tribunals, copies of official reports, publications and documents or other evidentiary materials and all such other evidence as is customarily received by international tribunals.
19. The Tribunal shall (a) confine the trial strictly to an expeditious hearing of the issues raised by the charges, (b) take strict measures to prevent any action which will cause unreasonable delay and rule out irrelevant issues of any kind whatsoever, (c) deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any defendant or his counsel from some or all further proceedings but without prejudice to the determination of the charges.
20. Defendants brought to trial before the Tribunal shall, upon conviction, suffer death or such other punishment as shall be determined by the Tribunal to be just.
21. The sentences shall be carried out in accordance with written orders of the Control Council, and the Control Council may at any time reduce or otherwise alter the sentences but may not increase the severity thereof.
22. Groups or organizations, official or unofficial may be charged before the Tribunal with criminal acts or with complicity therein by producing before the Tribunal and putting on trial such of their number as the Tribunal may determine to be fairly representative of the group or organization in question. Upon conviction of a group or an organization, the Tribunal shall make written findings and enter written judgment on the charges against such group or organization and the representative members on trial.
23. Upon conviction of any group or organization, any party to this Agreement may bring charges against any person for participation in its criminal activities pursuant to the provisions of Article 15 hereof before any occupation or other Tribunal established by it. In any such trial the findings of the International Military Tribunal as to the criminality of the group or organization shall be binding upon the occupation or other Tribunal. Upon proof of membership in such group or organization, such person shall be deemed to have participated in and be guilty of its criminal activities unless he proves the absence of voluntary participation. A person so convicted shall suffer death or such other punishment as the Tribunal may deem just in light of the degree of his culpability.
24. Any party to this agreement may, either in a proceeding described in Paragraph 23 or in an independent proceeding, charge any person, before an occupation or other Tribunal, with any crime other than the crimes referred to in Paragraph 23, and such Tribunal may, upon his conviction, impose upon him for such crime punishment independent of and additional to the punishment imposed for participation in the criminal activities of such group or organization.
25. The expenses of the International Military Tribunal shall be charged by the Signatories against the funds allotted for maintenance of the Control Council, and the expenses of the Chiefs of Counsel shall be borne by the respective Signatories.
26. The Signatories agree that the Control Council for Germany shall establish policies and procedures governing (a) the return of persons in Germany charged with criminal offenses to the scene of their crimes in accordance with the Moscow Declaration and (b) the surrender of persons within Germany in the custody of any of the Signatories who are demanded for prosecution by any party to this Agreement.
Memorandum to Conference of Representatives of the Union of Soviet Socialist Republics, the United Kingdom, the United States of America and the Provisional Government of France, Submitted by the United States To Accompany
Redraft of Its Proposal
The Moscow Declaration left the higher German authorities whose crimes were not geographically localized to be punished by "joint decision" of the powers involved.
The United States proposal is based on the idea that the "joint decision" should be reached through hearings having the characteristics of a judicial inquiry rather than of a political fiat. Its underlying assumptions are that decisions should be reached through an Inter-Allied Tribunal, and that it should be done through a main trial of the principal individuals and the organizations which they represent. It is assumed that the trial could take place at a single fixed place, and that the trial would be by some procedure neither our own nor that of any one country but acceptable to our public as a fair judicial determination of the fact of guilt.
We do not propose adoption of our American Court procedure. One of the chief reasons for suggesting a Military Commission is that it affords opportunity for special procedures adapted to the unprecedented nature of our case.
The United States, as the memorandum submitted with the original proposal at San Francisco indicates, has conceived of this case as a broad one. It must be borne in mind that Russian, French, English, and other European peoples are familiar with the Hitlerite atrocities and oppressions at first-hand. Our country, three thousand miles away, has known of them chiefly through the press and radio and through the accusations of those who have suffered rather than through immediate experience. German atrocities in the last war were charged. The public of my country was disillusioned because most of these charges were never authenticated by trial and conviction. If there is to be continuing support in the United States f or international measures to prevent the regrowth of Naziism, it is necessary now to authenticate, by methods -which the American people will regard as of the highest accuracy, the whole history of this Nazi movement, including its extermination of minorities, its aggressions against neighbors, its treachery and its barbarism.
For this reason, the American representatives conceive of this case as more than the trial of many particular offenses and offenders. It involves our whole attitude towards the waging of aggressive war, which we think, as Professor Trainin has pointed out in his book, is an international crime. It is mainly oil this basis that our country justified, prior to our own entry into the war, its lend-lease and other policies of support for the anti-Nazi cause.
We have not envisaged this case as a trial of isolated criminal acts. We envisaged it as a trial of the master planners in which the criminality consists of making and executing the master plan to attack the international peace. We are, of course, interested in proving the many manifestations of that plan in local offenses and terrorisms, but in this main case we are interested in establishing them as proof of the design. We are of course interested in bringing all these individual criminals to justice in other appropriate proceeding.
The United States proposal, therefore, contemplates a single main trial of representative Nazi leaders and of the organizations which were the important instrumentalities of the Hitlerite movement. This is what we consider the function of the main international tribunal. It may be necessary, subsequently, to have other trials of individuals, but it will not be necessary to try again the questions decided by the main trial.
We are ready to consider appropriate procedures to this end drawn from Russian, British, French, American, or any other, experience. The United States would not welcome a situation in which I would be expected to participate in a large number of individual trials, held in various parts of Europe, to try particular outrages. My present organization is not set up for that work. My function is to get at the groups which have master-minded the attack, by such barbaric methods, on the peace of the world. Our occupation courts will of course handle appropriate individual cases.
It would seem that the primary reason for an International Tribunal is the fact that many local trials, while useful in themselves, will fail to disclose the general design which is back of the multitude of local offenses and that, therefore, the attention of the International trial must be focused on the broader aspects of the Hitlerite conspiracy.
We submit a, redraft of our proposal attempting to retain its essential purposes and yet to meet as far as possible the suggestions of the Russian, French, and British memoranda.
I call attention to the official statement of the responsibility which the United States conceives it has for the trial of prisoners in its possession as outlined in my report to the President, a copy of which we have provided. By reason of the President's unqualified endorsement of it, the essentials it states represent the President's views as well as my own.
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