AGREEMENT by the Government of the UNITED KINGDOM OF GREAT BRITIAN AND NORTHERN IRELAND, the UNITED STATES OF AMERICA, the Provisional Government of the FRENCH REPUBLIC and the Government of the UNION OF SOVIET SOCIALIST REPUBLICS for the Prosecution and Punishment of the MAJOR WAR CRIMINALS of the EUROPEAN Axis
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 THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Provisional Government of the French Republic and the Government 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 authorised thereto have concluded this Agreement.
There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as 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.
Nothing in the Agreement shall prejudice or release the obligations of the parties to the Moscow Declaration for the return of persons to be tried at the scenes of their crimes.
Any Government of the United Nations may adhere to this Agreement by notice given through the diplomatic channel to the Government of the United Kingdom, who shall inform the other signatory and adhering Governments of each such adherence.
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 in 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 to give, through the diplomatic channel, one month's notice of intention to terminate it.
In pursuance of the Agreement dated entered into by the Government of the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics there shall be established an International Military Tribunal (hereinafter called "the Tribunal") for the just and prompt trial and punishment of the major war criminals of the European Axis.
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.
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, except that no replacement may take place during a Trial, other than by an alternate.
(a) The presence of all four members of the Tribunal or their alternates shall be necessary to constitute the quorum.
(b) 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. If however a session of the Tribunal takes place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside.
(c) 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.
In case of need and depending on the number of the matters to be tried, other Tribunals may be set up and the establishment, functions, and procedure of each Tribunal shall be identical, and shall be governed by this Charter.
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 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 (e)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.]
The official position of Defendants, whether as heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
Organisers, 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.
At the trial of any individual member of any group or organisation the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organisation of which the individual was a member was a criminal organisation.
After receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organisation will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organisation. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.
In cases where a group or organisation is declared criminal by the Tribunal, the competent national authority of any Signatory shall 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 organisation is considered proved and shall not be questioned.
Any person convicted by the Tribunal may be charged before a national, military or occupation court, referred to in Article 11 of this Charter, with a crime other than of membership in a criminal group or organisation 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 organisation.
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 has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence.
(1) The Chief Prosecutors shall act as a committee for the following purposes:
(a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff.
(b) to settle the final designation of major war criminals to be tried by the Tribunal.
(c) to approve the Indictment and the documents to be submitted therewith.
(d) to lodge the Indictment and the accompanying documents with the Tribunal.
(e) to draw up and recommend to the Tribunal for its approval draft rules of procedure, contemplated by Article 14 of this Charter. 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: Provided that if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried.
(2) The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties:
(a) Investigation collection and production before or at the Trial of all necessary evidence.
(b) The preparation of the Indictment for approval by the Committee in accordance with paragraph (1) (c) of this Article.
(c) The preliminary examination of all necessary witnesses and of the Defendants.
(d) To act as prosecutor at the Trial.
(e) To appoint representatives to carry out such duties as may be assigned to them.
To undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial.
It is understood that no witness or Defendant detained by any Signatory shall be taken out of the possession of that Signatory without its assent.
In order to ensure fair trial for the Defendants, the following procedure shall be followed:
(a) The indictment shall include full particulars specifying in detail the charge against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment translated into a language which he understands shall be furnished to the Defendant at a reasonable time before the trial.
(b) During any preliminary examination of a Defendant, be shall have the right to give any explanation relevant to the charges made against him.
(c) A preliminary examination of a Defendant and the Trial shall be conducted or translated in a language which the Defendant understands.
(d) A Defendant shall have the right to conduct his own defence before the Tribunal or to have the assistance of Counsel.
(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defence.
The Tribunal shall have the power
(a) to summon witnesses to the Trial and to require their attendance and testimony and to put questions to them
(b) to interrogate any Defendant
(c) to require the production of documents and other evidentiary material
(d) to administer oaths to witnesses.
Present draft
To appoint special officers of the Tribunal to take evidence and to make findings (except findings of guilt) and to certify summaries of evidence to the Tribunal whether before or during the Trial.
To appoint interpreters, reporters, clerks, marshals and other officials, either generally or for the Trial of a particular case. Persons so appointed shall, before assuming their duties, if required by the Tribunal, take an oath in a form approved by the Tribunal.
Amendment suggested by Secretary
To appoint interpreters, reporters, clerks and other officials, either generally or for a, particular case. In particular, if at any time during the trial, it shall be established before the Tribunal that (for a reason which the Tribunal finds sufficient) a witness cannot be brought to the place of trial, then the Tribunal shall have power to appoint a special officer to take the evidence of such witness and to report to the Tribunal. Persons so appointed shall, before assuming their duties, if required by the Tribunal, take an oath in a form approved by the Tribunal.
Suggestion of Professor Trainin
The Tribunal shall have the power to appoint officers (secretaries, interpreters, etc.) for the carrying out of tasks of a subsidiary nature. The functions and duties of those officers shall be set forth by the Tribunal in the Rules of Procedure.
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 and statements 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.
The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value.
The Tribunal may require to be informed of the nature of any evidence before it is offered so that it may rule upon the relevance thereof.
The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and the records and findings of military or other Tribunals of any of the United Nations.
One or more of the Chief Prosecutors may take part in the prosecution at each Trial. The function of any Chief Prosecutor may be discharged by him personally, or by any person or persons authorised by him.
The function of Counsel for a Defendant may be discharged at the Defendant's request by any Counsel professionally qualified to conduct cases before the Courts of his own country or by any other person who may be specially authorised thereto by the Tribunal.
The proceedings at the Trial shall take the following course:
(a) The Indictment shall be read in court.
(b) The Tribunal shall ask each Defendant whether he pleads "guilty" or "not guilty".
(c) The prosecution shall make an opening statement.
(d) The Tribunal shall ask the prosecution and the defence what evidence (if any) they wish to submit to the Tribunal and the Tribunal shall rule upon the admissibility of any such evidence.
(e) The Tribunal may put any question to any witness and to any Defendant, at any time.
The prosecution and the defence shall interrogate and may cross-examine any witnesses and any Defendant who gives testimony.
(g) The defence shall address the court.
(h) The prosecution shall address the court.
(i) Each Defendant may make a statement to the Tribunal.
(j) The Tribunal shall deliver judgment and pronounce sentence.
All official documents shall be produced, and all court proceedings conducted, in English, Russian and French, and in the language of the Defendant. So much of the record and of the proceedings may also be translated into the language of any country in which the Tribunal is sitting, as the Tribunal considers desirable in the interests of justice and public opinion.
The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall be motivated by the reasons supporting its findings and shall be final and not subject to review.
The Tribunal shall have the right to impose upon a Defendant on conviction, death or such other punishment (including imposition of a pecuniary fine) as shall be determined by it to be just.
In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany.
In case of guilt, sentences shall be carried out in accordance with the orders of the Control Council which may at any time reduce or otherwise alter the sentences but may not increase the severity thereof. If the Control Council, after any Defendant has been convicted and sentenced, discovers fresh evidence which 7 in its opinion, would found a fresh charge against him, the Council shall report accordingly to the Committee established under Article 15 of this Charter, for such action as they may consider proper, having regard to the interests of justice.
The expenses of the Tribunal and of the Trials shall be charged by the Signatories against the funds allotted for maintenance of the Control Council.
| Source: 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 |