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 THEREFORE 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].
1. In pursuance of the Agreement dated 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 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.
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 of 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.
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.
2. The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties:
(a) Investigation and collection of all necessary evidence.
(b) The preparation of the indictment for approval by the committee in accordance with paragraph (1) (c) of this Article.
(e) 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.
(f) 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 the Signatory without its assent.
16. 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 charges 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, and at the trial, he shall have the right to give any explanation which he may desire with regard 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.
17. 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 require any defendant to give testimony;
(e) to require the production of documents and other evidentiary material;
(d) to administer oaths;
(e) 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] ;
(f) generally to exercise in a manner not inconsistent with the provisions of this Charter, plenary authority with respect to the trial and the charges brought pursuant thereto;
(g) the Tribunal may 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.
18. 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 to rule out irrelevant issues of any kind whatsoever [and to prevent the use of the trial as a means of a dissemination of 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. 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.
20. The Tribunal shall require the defendants to satisfy it of the relevance of any evidence before the evidence is offered.
21. The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.
22. The acts and documents of the committees set up in the various Allied countries for the investigation of war crimes shall have the same probative value as the acts and documents drawn up by the committee established pursuant to Article 15 of this Charter.
23. The Tribunal shall sit at or at such other place as the Signatories may agree.
24. 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 be 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 witnesses for the prosecution and for the defence shall be examined and may be cross-examined in each case by the other side.
(f) The Tribunal may put any question to any witness or to any defendant.
(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.
25. 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.
26. 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.
27. The Tribunal shall have the right to impose upon a defendant on conviction death or such other punishment as shall be determined by it to be just.
28. In addition to any punishment imposed by it, the Tribunal shall have the right to decide on the confiscation of property of the [sentenced] [convicted] person.
29. In case of guilt, sentence shall be carried out in accordance with the 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. If the Council, after any defendant has been convicted and sentenced, discovers fresh evidence which, 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.
30. The expenses of the Tribunal [and shall be charged by the Signatories against the funds allotted for maintenance of the Control Council [and the expenses of the Chief Prosecutors shall be borne by the respective Signatories].
| 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 |