Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

740.00116 European War 1939/1422

The American Representative on the United Nations War Crimes Commission (Pell) to the Secretary of State

[Extract]

No. 15345

London, May 2, 1944.
[Received May 10.]

Sir: I have the honor to report that at the meeting of Committee II of the War Crimes Commission, held on Friday, April 28, we discussed the possibility of an international court, taking as a basis for the discussion the enclosed plan which was prepared by Mr. Preuss and Dr. de Moor, the representative of the Netherlands. It is very like the one originally prepared in the State Department.

. . . . . . . . . . . . . .

Herbert Pell

[Enclosure]

Document II/11, 14 April, 1944: Draft Convention on the Trial and Punishment of War Criminals

Chapter I

Scope of War Crimes

article 1

offences

The offences listed hereinafter, committed in violation of the laws of war, by members of the armed forces, the civilian authorities, or other persons acting under the authority of, or claim or colour of authority of, or in concert with, a state or other political entity engaged in war or armed hostilities with, or in hostile occupation of territory of, the United Nations, or any one of them at any time since July 7, 1937, shall be punishable as war crimes, in accordance with the provisions of this Convention:

(1) Murder or massacre.

(2) Execution of hostages.

(3) Rape.

(4) Abduction of women for the purpose of enforced prostitution.

(5) Segregation, internment or deportation of civilians under degrading or inhuman conditions, or under conditions unrelated to bona fide military necessity.

(6) Forcing civilians to take part in military operations or preparations, in a manner calculated to endanger their lives.

(7) Wilful deprivation of localities or districts of foodstuffs, shelter, clothing or other means of sustenance, in a manner calculated to cause unnecessary suffering.

(8) Deliberate attack upon defenceless persons or upon centres of civilian population for the purpose of terrorisation.

(9) Attack upon survivors of merchant vessels or aircraft which have been abandoned or destroyed.

(10) Looting or pillage.

(11) Wanton devastation or destruction of property.

(12) Killing or maltreatment of wounded or prisoners of war.

(13) Refusal to give quarter.

(14) Deliberate attacks on hospitals or hospital ships, and other offences against sanitary personnel or the Red Cross.

(15) Other similar acts, which by reason of their atrocious character, their ruthless disregard of the sanctity of human life and personality or their wanton reference with rights of property, are unrelated to reasonably conceived requirements of military necessity.

article 2

persons liable

All persons, irrespective of their rank or position, who have committed, or have ordered, caused, aided, abetted or incited another person to commit, a crime specified in Article 1, shall be punishable, as principals or accessories, in accordance with the provisions of this Convention: Provided, that the application of this Article shall be subject to the provisions of Article 30.

[Chapter I

(Alternative Articles)

Scope of War Crimes

article 1

definition of war crimes

War crimes, within the meaning of this Convention, are acts, committed in violation of the laws of war, by members of the armed forces, the civilian authorities, or other persons acting under the authority of, or claim or colour of authority of, or in concert with, a state or other political entity engaged in war or armed hostilities with, or in hostile occupation of territory of, the United Nations, or any one of them at any time since July 7, 1937.

article 2

persons liable

All persons, irrespective of their rank or position, who have committed, or have ordered, caused, aided, abetted or incited another person to commit, a crime specified in Article 1, shall be punishable, as principals or accessories, in accordance with the provisions of this Convention: Provided, that the application of this Article shall be subject to the provisions of Article 30.

article 3

offences

The following offences shall be deemed to be war crimes within the meaning of this Convention:

(1) Murder or massacre.

(2) Execution of hostages.

(3) Rape.

(4) Abduction of women for the purpose of enforced prostitution.

(5) Segregation, internment or deportation of civilians under degrading or unhuman conditions, or under conditions unrelated to bona fide military necessity.

(6) Forcing civilians to take part in military operations or preparations, in a manner calculated to endanger their lives.

(7) Wilful deprivation of localities or districts of foodstuffs, shelter, clothing or other means of sustenance, in a manner calculated to cause unnecessary suffering.

(8) Deliberate attack upon defenceless persons or upon centres of civilian population for the purpose of terrorisation.

(9) Attack upon survivors of merchant vessels or aircraft which have been abandoned or destroyed.

(10) Looting or pillage.

(11) Wanton devastation or destruction of property.

(12) Killing or maltreatment of wounded or prisoners of war.

(13) Refusal to give quarter.

(14) Deliberate attacks on hospitals or hospital ships, and other offences against sanitary personnel or the Red Cross.

(15) Other similar acts, which by reason of their atrocious character, their ruthless disregard of the sanctity of human life and personality or their wanton interference with rights of property, are unrelated to reasonably conceived requirements of military necessity.]⁴¹

Chapter II

Election and Organization

article 3

establishment of the tribunal

There shall be established for the trial of persons charged with the commission of offences specified in Article 1, a United Nations War Crimes Tribunal and such Divisions thereof as may be constituted in accordance with the provisions of Articles 6 and 7.

article 4

seat of the tribunal

The seat of the Tribunal shall be at London. The Tribunal may decide to meet elsewhere for the trial of any particular case or group of cases.

article 5

qualifications of judges and members of the tribunal

The Judge and Members of the Tribunal shall be chosen regardless of their nationality from among persons who possess the qualifications required in their respective countries for appointment to high judicial office, or are experts in international law, in criminal law or in military law. They shall be competent to read both, and to speak one, of the official languages of the Tribunal.

article 6

composition of the tribunal

1. The Tribunal shall be composed of fifteen [eleven, nine]^41a Judges, who shall be elected in accordance with the provisions of Article 8.

2. Nine [seven, five]^41a Judges of the Tribunal shall constitute a quorum.

article 7

composition of the divisions of the tribunal

1. The Divisions of the Tribunal shall be drawn from the panel of Members of the Tribunal, who shall be chosen in accordance with the provisions of Article 8.

2. Each Division shall consist of not less than five judges who shall be designated from time to time by the Tribunal. The Divisions shall sit at such places, and shall continue to exist for such periods, as the Tribunal may direct.

3. A Member of the Tribunal shall have the rank and dignity of a Judge of the Tribunal, and during any period in which he shall sit as a judge of a Division he shall be entitled to the privileges and emoluments of a Judge of the Tribunal.

4. Two-thirds of the judges of a Division shall constitute a quorum.

article 8

election of judges and members of the tribunal

The Judges of the Tribunal and Members of the panel of the Tribunal shall be elected in accordance with the following provisions:

a) Within thirty days after the date on which this Convention becomes effective, each member of the United Nations shall appoint as Members of the Tribunal, three persons [four],^41a at least one of whom shall not be a national. The names of the persons so appointed shall be transmitted to the Chairman of the United Nations Commission for the Investigation of War Crimes, who shall forthwith communicate them to the members of the United Nations.

b) Within fifteen days following the notification of the above list, the Chairman of the United Nations Commission for the Investigation of War Crimes shall call a conference of the heads of diplomatic missions of the United Nations, accredited to the Court of St. James’s, to meet at London at such time as he may direct. Members of the United Nations which are not represented at the Court of St. James’s may appoint a special representative.

c) The conference shall proceed to the election of Judges of the Tribunal. The representatives of the members of the United Nations shall, by secret ballot and by such method of voting as they may determine, elect the Judges of the Tribunal from among the Members of the Tribunal.

d) Any state which becomes a party to this convention subsequent to the date on which it becomes effective shall appoint Members of the Tribunal as provided in Paragraph (a) of this Article.

article 9

term of office

1. Judges and Members of the Tribunal shall be chosen for a term of three years, unless the Tribunal has ceased to exist before the expiration of that period.

2. Judges and Members of the Tribunal shall be eligible for re-election.

3. Judges and Members of the Tribunal shall continue to discharge their duties until their place has been filled.

article 10

vacancies

1. In the event of a vacancy among the Judges of the Tribunal, whether resulting from resignation or from any other cause, the Tribunal shall proceed to the election of a Judge from among the Members of the Tribunal. A Judge so elected shall hold office for the remainder of his predecessor’s term.

2. In the event of a vacancy among the Members of the Tribunal, whether resulting from resignation or from any cause other than the election of a Member as a Judge of the Tribunal, the member of the United Nations which appointed the Member whose place is vacated shall designate his successor, who shall hold office for the remainder of his predecessor’s term.

article 11

increase in number of judges and members

In the event that the number of Judges or Members of the Tribunal is not, in the opinion of the Tribunal, adequate for the speedy despatch of its business or that of its Divisions, the President of the Tribunal shall call a conference of the heads of diplomatic missions of the United Nations accredited to the Court of St. James’s. This conference, after considering the recommendations of the Tribunal, and acting by such methods as it may determine, shall take such action as it may deem appropriate.

article 12

institution of the tribunal

1. The date of the first meeting of the Tribunal shall be set by the conference of representatives of members of the United Nations referred to in Paragraph b) of Article 8.

2. Within fifteen days following its convening, the Tribunal shall establish rules for regulating its administration and procedure, and that of its Divisions. The Tribunal shall have the authority to amend or to supplement these rules from time to time.

article 13

declaration on assuming office

Every Judge of the Tribunal or of its Divisions shall, before taking up his duties, make a solemn declaration in open court that he will exercise his functions impartially and conscientiously.

article 14

election of officers

1. The Tribunal shall elect its President and Vice-President, appoint its Registrar, and otherwise perfect its organization and that of its Divisions.

2. The President and Vice-President shall be elected for a term of one year, and shall be eligible for re-election.

article 15

privileges and immunities

Judges of the Tribunal, Members of the Tribunal serving as judges of one of its Divisions, and the Registrar of the Tribunal, when engaged in their official business or travelling to or from any place at which such business is performed, shall enjoy diplomatic privileges and immunities.

article 16

incompatible activities

1. Judges of the Tribunal may not exercise any political or administrative function, or engage in any activity of a professional nature during their term of office, save with the previous consent of the Tribunal. Any doubt upon this point shall be settled by the decision of the Tribunal.

2. Members of the Tribunal shall be subject to the provisions of the preceding Paragraph during the time that they are assigned to active duty as judges of a Division of the Tribunal.

article 17

sessions of the tribunal and its divisions

1. The Tribunal shall remain permanently in session. It may recess from time to time as the business before it may permit.

2. Members of the Tribunal shall hold themselves at the disposal of the Tribunal and shall at all times, be prepared, after suitable notice has been given, to assume the duties of a judge of a Division of the Tribunal.

article 18

withdrawal of judges

The Tribunal shall establish rules which shall determine the conditions under which a Judge of the Tribunal or one of its Divisions shall be authorized or required to withdraw from participation in any case.

article 19

dismissal from office

The Tribunal, with the concurrence of not less than twelve, nine, seven Judges thereof, may dismiss a judge of the Tribunal or one of its Divisions who has ceased adequately to perform the functions of his office.

article 20

assessors

The Tribunal and its Divisions shall have the power to appoint experts in international law, in criminal law, in military law, or in any other field of law, to sit with them as assessors, but without the right to vote, in the trial of any particular case or class of cases.

Chapter III

Auxiliaries of the Tribunal

article 21

united nations commission for the investigation of war crimes

1. The United Nations Commission for the Investigation of War Crimes, established at a meeting of United Nations and Dominions representatives held at London on October 20, 1943, shall continue its existence during the life of this Convention, or until such time as it may, with the consent of the parties to the said agreement, be merged with the United Nations Commission for the Prosecution of War Crimes.

2. The Commission for the Investigation of War Crimes shall exercise such functions as may have been conferred upon it by the parties to the agreement by which it was established, or by the terms of this Convention.

article 22

united nations commission for the prosecution of war crimes

1. The conference of representatives of members of the United Nations referred to in Article 8 shall elect a United Nations Commission for the Prosecution of War Crimes of seven members, one of whom shall be designated Chief Prosecutor.

2. Members of the Commission for the Prosecution of War Crimes shall be chosen for a term of three years, unless the Tribunal has ceased to exist before the expiration of that period.

3. In the event of a vacancy among the members of the Commission for the Prosecution of War Crimes, the Tribunal shall proceed to elect a member, who shall hold office for the remainder of his predecessor’s term.

4. In addition to exercising such functions as may be conferred upon it by the terms of this Convention, the Commission for the Prosecution of War Crimes shall:

a) Receive evidence of war crimes submitted to it by the Commission for the Investigation of War Crimes.

b) Select and prepare cases for trial by the Tribunal and its Divisions.

c) Conduct prosecutions before the Tribunal and its Divisions.

d) Ensure that the judgments and orders of the Tribunal and its Divisions are carried out.

5. The Commission for the Prosecution of War Crimes shall appoint its staff and shall otherwise perfect its organization.

article 23

general provisions

The provisions of Articles 5, 9, 16, 18 and 19 shall apply, mutatis mutandis, to members of the Commission for the Investigation of War Crimes and of the Commission for the Prosecution of War Crimes.

Chapter IV

Surrender, Extradition and Transfer of Persons Accused of War Crimes

article 24

surrender

The Tribunal shall have the authority to require, upon the motion of the Commission for the Prosecution of War Crimes or upon that of any member of the United Nations, that an enemy or former enemy state surrender into the custody of the Tribunal any person within its jurisdiction who is charged with an offence specified in Article 1, either for trial by the Tribunal or one of its Divisions, as the case may be, or for delivery to one of the United Nations.

article 25

extradition

The Tribunal shall have the authority to request, upon the motion of the Commission for the Prosecution of War Crimes, or upon that of any member of the United Nations, that a neutral or former neutral state deliver into the custody of the Tribunal any person within its jurisdiction who is charged with an offence specified in Article 1, for trial by the Tribunal or one of its Divisions, as the case may be, or, if he is a national or former national of a member of the United Nations, for delivery to such state.

article 26

transfer

The Tribunal shall have the authority to require any member of the United Nations to transfer into the custody of the Tribunal any person in the custody or within the territorial jurisdiction of that nation, and with respect to whom the Tribunal has jurisdiction, subject to the right of any member of the United Nations to retain custody of, and to bring to trial, its own nationals or former nationals, as provided in Article 28.

Chapter V

Jurisdiction With Respect to War Crimes

article 27

jurisdiction of the tribunal

1. Except as otherwise hereinafter provided, the Tribunal shall have jurisdiction to try all persons surrendered by an enemy or former enemy state pursuant to the terms of Article 24; or extradited from a neutral or former neutral state pursuant to the terms of Article 25; or transferred to the Tribunal by any one of the United Nations pursuant to the terms of Article 26; or any other person accused of an offence specified in Article 1 whose trial by the Tribunal is requested by the member of the United Nations which has him in custody, or by the state or states upon whose motion his surrender or extradition was required or requested: Provided, that the Tribunal may direct that any person or group of persons over whom it has jurisdiction shall be tried by one of its Divisions.

2. Any person referred to in Paragraph 1 of this Article who is a national or former national of a member of the United Nations shall, unless the Tribunal has jurisdiction under the terms of Paragraph 4 of this Article and chooses to exercise such jurisdiction, be delivered by the Tribunal to that state for trial.

3. Any person referred to in Paragraph 1 of this Article, who is charged with the commission of an offence or offences within the territory of a member of the United Nations, or against the person or property of one or more of its nationals or former nationals, shall, upon demand by such state, be delivered to it by the Tribunal for trial.

4. Any person referred to in Paragraph 1 of this Article, who is charged with the commission, at any one time or at different times, of offences within the territory, or against the person or property of nationals or former nationals, of more than one of the United Nations, shall be tried by the Tribunal or by one of its Divisions: Provided, that if the members of the United Nations claiming jurisdiction under the provisions of this Article so agree, such person shall be tried by such state as they may designate.

5. Whenever the Tribunal or one of its Divisions initiates the trial of any person for two or more offences, in accordance with the terms of Paragraph 4 of this Article, the jurisdiction of the Tribunal or of the Division, as the case may be, shall not be divested by the fact that the accused is acquitted of all charges except those which would, in the absence of other charges, have made the accused subject to the jurisdiction of the state within whose territory or against the person or property of whose nationals or former nationals, the offence or offences were committed.

article 28

jurisdiction of national courts

1. The jurisdiction of the Tribunal and of its Divisions shall not extend in any event to a national or former national of a member of the United Nations which has custody of such person.

2. A member of the United Nations shall not be precluded from trying persons in its custody, other than its own nationals or former nationals, over whom the Tribunal has jurisdiction under the terms of this Convention, unless their transfer for trial is required by the Tribunal in accordance with the provisions of this Convention.

3. A member of the United Nations shall in every case inform the Tribunal of the identity of the accused and of the nature of the charges against him before proceeding to the trial of any person for an offence specified in Article 1; [or for an offence committed with the intent to further the cause of the enemy or by means of the power or opportunity afforded by a state of war or armed hostilities, or by hostile occupation of the territory of the state which has custody of the accused.]⁴²

Chapter VI

Law and Procedure

article 29

law to be applied

In the trial of persons charged with the offences specified in Article 1, the Tribunal and its Divisions shall apply:

a) General international treaties or conventions declaratory of the laws of war, and particularly treaties or conventions establishing rules of the laws of war expressly recognized by the belligerent states;

b) International customs of war, as evidence of a general practice accepted as law;

c) General principles of criminal law recognized by civilized nations;

d) Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of the laws of war.

article 30

superior orders

1. The plea of superior orders shall not constitute a defence against a charge arising under Article 1 if the order was so manifestly contrary to the laws of war that a person of ordinary sense and understanding would know or should know, given his rank or position and the circumstances of the case, that such order was illegal.

2. It shall be for the Tribunal and its Divisions to consider to what extent irresistible compulsion shall be a ground for mitigation of the penalty or for acquittal.

4. [sic] A member of the United Nations shall not proceed with the trial of any person, other than its own national or former national, who is selected for trial before the Tribunal in accordance with the terms of this Convention and with respect of whom the Tribunal has jurisdiction, but shall permit such person to be dealt with as directed by the Tribunal. The fact that proceedings have been initiated or that sentence has been imposed by a national court shall not preclude the Tribunal from requiring the transfer of the accused.

5. The jurisdiction of the Tribunal, as provided in Article 27, shall not be affected by any agreement which has been concluded, or which may be concluded, by members of the United Nations for transfer to each other of persons accused of war crimes or other war offences.

article 31

official languages

1. The official languages of the Tribunal and other Divisions shall be English and French, but the Tribunal, or any one of its Divisions may direct that the proceedings shall be conducted in another language.

2. All documents submitted in any language other than one of the official languages shall be translated into one of the official languages. At the request of the accused, all documents shall be translated into a language with which he is conversant.

3. At the request of either party, oral proceedings may be conducted in whole or in part in a language other than one of the official languages, but in such case they shall be currently translated, at the request of the accused, into a language with which he is conversant.

article 32

production of evidence

The Tribunal or its Divisions shall, at the request of the accused, or of the Commission for the Prosecution of War Crimes:

(a) Order any witness to attend and be examined before the court.

(b) Summon any person with expert knowledge in legal, military, naval, aerial or other relevant matters to give evidence in any case where it appears to the court that such special knowledge is necessary to the proper determination of the case.

(c) Order the disclosure and production of any document, exhibit or any other thing connected with the proceedings, the production of which it may deem necessary to the proper determination of the case.

(d) Issue letters of request or appoint special commissioners for the taking of evidence out of court whenever it is not possible otherwise satisfactorily to dispose of the case. Such evidence shall be taken under such safeguards prescribed by the Tribunal as will protect the interests of the accused and promote the administration of justice.

article 33

rights of the accused

1. The accused shall be informed in writing of the nature of the charges against him, which shall be set forth in sufficient detail to give to the accused a reasonable opportunity to prepare his defence.

2. The accused shall have the benefit of qualified legal counsel, chosen by himself with the approval of the Tribunal or the Division before which he is to be tried. If the accused is not represented by counsel of own choice, the court shall assign qualified legal counsel for his defence.

3. The accused shall have the right to be present during the conduct of proceedings against him in the Tribunal or in a Division.

article 34

publicity of hearings

Hearings before the Tribunal or before one of its Divisions shall be public unless the court, by a reasoned judgment, shall direct that the hearing shall take place in camera.

article 35

intervention

Any member of the United Nations may intervene, submit a statement of its case and appear in the oral proceedings in any case in which the accused is charged with the commission of an offence within its territory or against the person or property of one or more of its nationals or former nationals.

article 36

revision of judgments

The Tribunal shall establish rules which shall determine the conditions under which questions may be certified by its Divisions, and under which judgments of the Tribunal or of its Divisions may be reopened or reviewed.

[alternate article 36

revision of judgments

1. Against convictions pronounced by the Tribunal or by one of its Divisions, no proceedings other than an application for revision shall be allowable.

2. Proceedings for revision may be initiated by the Tribunal upon its own motion, upon the motion of the Commission for the Prosecution of War Crimes, upon the motion of the person convicted, or upon the motion of any member of the United Nations which has intervened in the case, and then only upon the discovery of some fact of such nature to be a decisive factor, which factor was, when judgement was given, unknown to the Tribunal, or a Division, or to the applicant.]⁴³

article 37

ne bis in idem

1. No person shall be prosecuted before the Tribunal, before one of its Divisions, or before a national court of a member of the United Nations if such person has already been prosecuted before the Tribunal, before one of its Divisions, or before a national court of a member of the United Nations and has been convicted or acquitted on the merits of an offence which is specified in Article 1 and requires proof of substantially the same acts.

2. No trial or sentence by a national court of an enemy or former enemy state shall bar trial or sentence by the Tribunal, by one of its Divisions, or by a national court of a member of the United Nations for an offence specified in Article 1: Provided, that if a sentence has been imposed by a national court of an enemy or former enemy state, the penalty already undergone shall be taken into account in fixing any sentence which may be imposed.

Chapter VII

The Judgment, Its Execution and Pardon

article 38

delivery of judgment

1. The Tribunal and its Divisions shall sit in private to consider their judgments.

2. Every judgment or order of the Tribunal or of its Divisions shall be pronounced at a public session and shall state the reasons on which it is based.

3. The decisions of the Tribunal and its Divisions shall be by a majority of the judges participating, and shall be deemed to be the opinion of the entire court. No dissenting opinion shall be published or divulged in any way.

article 39

detention of the accused

The State on whose territory the Tribunal or one of its Divisions is sitting shall, if so directed by the court, supply suitable facilities for the detention of the accused.

article 40

penalties

1. The offences specified in Article 1 shall be punishable by death or by lesser penalty.

2. The Tribunal and its Divisions may impose pecuniary penalties.

3. The Tribunal shall determine the way in which fines shall be dealt with.

article 41

execution of sentences

Sentences involving loss of liberty or death shall be executed by a member of the United Nations designated with its consent by the Tribunal or by a Division which has imposed the sentence: Provided, that such consent cannot be refused by the state which has requested the surrender, extradition, or trial of the person convicted, or which has intervened in his trial.

article 42

pardon and commutation

The right of pardon or commutation of sentences imposed by the Tribunal or by one of its Divisions shall be exercised by the state which has to execute the penalty, in the absence of objection by any state which has requested the surrender, extradition or trial of the person convicted, or which has intervened in his trial.

Chapter VIII

General Provisions

article 43

expenses

1. All expenses involved in the execution of this Convention, including costs arising from trial proceedings and from the execution of such sentences as may be imposed, shall be defrayed from a common fund created by contributions from the members of the United Nations according to a plan which shall be adopted by the conference of representatives of the United Nations referred to in Article 8, paragraph 5.

2. All emoluments of the Judges of the Tribunal, the Registrar of the Tribunal, the Judges of the Divisions and the members of the Commission for the Prosecution of War Crimes shall be determined by the conference of representatives of members of the United Nations referred to in Article 8, paragraph 5. The salaries of the clerical and other personnel of the Tribunal and of its Divisions and of the Commission for the Prosecution of War Crimes, shall be determined by the President of the Tribunal and by the Chief Prosecutor respectively.

3. Further conferences of representatives of the members of the United Nations shall be convened by the Registrar of the Tribunal at intervals which shall not exceed one year for the consideration of financial questions involved in the execution of this Convention.

article 44

enforcement of convention

The members of the United Nations undertake:

(a) To adopt such measures as may be necessary to give effect to the provisions of this Convention;

(b) To impose upon enemy states, as a part of the terms of surrender, an obligation to deliver up for trial any and all persons charged with an offence or offences specified in Article 1, and to take all other steps necessary to facilitate the execution of this Convention; and

(c) To secure the recognition by neutral or former neutral states of an obligation to deliver up for trial any and all persons within their territories charged with an offence or offences specified in Article 1, and to take all other steps necessary to facilitate the execution of this Convention.

Chapter IX

Ratification, Denunciation and Termination

(Reserved)

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