PROPOSED AMENDMENTS BY THE UNITED KINGDOM DELEGATION TO THE UNITED STATES DRAFT PROTOCOL

1. Article 5: The opening words of this Article should be amended to read as follows:

"There shall be set up by the signatories after consultation with the Control Council for Germany one or more international military tribunals etc."

While the Control Council must, of course, be consulted as to the setting up of the Tribunal within Germany, the responsibility for the appointment of its members must rest with the Allied Governments concerned. It is important to emphasize the independence of the Tribunal and it would be a mistake to place it under the Control Commission.

2. Article 8: It is suggested that Article 8, which gives power to the International Tribunal to establish its own rules, should be deleted and an obligation should be placed upon the Chiefs of Counsel representing the four Allied Governments to prepare and submit to the Tribunal rules for their approval. It is thought that the initiative with regard to the rules ought to come from the signatory Governments through their Counsel. If this is accepted, it would seem that the proper place to insert the new provision would be at the end of Article 11 and it is suggested that the following subparagraph be added to the end of that Article:

"(c) Recommending rules of procedure for adoption by the International Military Tribunal. Any rules so adopted by the Tribunal shall not be inconsistent with the provisions of this Agreement."

3. Article 12: The United Kingdom Delegation submit the following re-draft of this Article.

"12. The Tribunal shall be bound by this declaration of the signatories that the following acts are criminal violations of international laws:

(a) Violations of the laws, rules and customs of war and such acts 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.

(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 aggression against, or 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 subparagraphs (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 the 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.

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."

NOTE: It may be assumed that a common plan to carry out the crimes set out in (a), (b) and (c) is, under most legal systems, in itself a crime, but it is suggested that it is not safe to rely on this assumption. It is doubtful whether this Tribunal will administer any law other than that set out in its constitution and for that reason alone it seems necessary to include a sub-paragraph on the lines of sub-paragraph (d). Unless a charge can be made upon the lines of sub-paragraph (d), there may be some danger that some of the conspirators may escape, as it may not be possible to fix each and every one of them with the actual perpetration of any of the specific crimes set out in sub-paragraphs (a), (b) and (c). The chief crime of which it is alleged that the leaders in Germany are guilty is the common plan or conspiracy to dominate Europe and it is therefore most desirable to include this crime specifically in the statutes of the Court. Moreover, the protocol will become a public document of the first importance and for this reason it is essential that the main charge to be made against the major criminals should appear in it. The lay public will not understand its omission.

4. Articles 17 and 18: These Articles should be deleted in their present form and the following Articles substituted therefor:

"17. An International Military Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest. possible extent expeditious and non-technical 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 affidavits or 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 or military tribunals.

18. An International Military Tribunal shall (a) confine trials 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 any irrelevant issues including attempts to introduce irrelevant political propaganda, (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."

19. Article 20: This Article should be deleted and the following Article substituted.

20. The sentences shall be carried out in accordance with orders of the Control Council for Germany and the Control Counsel may at any time reduce or otherwise alter the sentence but may not increase its severity."