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

740.00116 E.W./9–844

Document No. C.47, 4 September, 1944: Convention for the Surrender of War Criminals and Other War Offenders and Explanatory Memorandum⁸⁸

September 4, 1944

Draft Explanatory Memorandum

The draft “Convention for the surrender of War Criminals and other War Offenders” which the United Nations War Crimes Commission presents to its member Governments is an adaptation of a draft made by the Ministers of Justice of some of those Governments,—notably those of Belgium, Luxembourg, the Netherlands, Norway and Poland.⁸⁹ This original draft was brought before the competent committee of the Commission (Committee II) by Dr. de Moor (Netherlands) and was accepted by it as a basis of discussion. The present draft differs from the older draft in certain points, both as regards its purpose and as regards its details.

purpose of the draft

The Ministers of Justice draft was intended to operate both between the United Nations themselves and between them and neutral states. The present draft is only intended to provide for the surrender by one of the United Nations to another, of persons accused or convicted of war crimes or other war offences. It is not considered that it would be possible to obtain, or wise to attempt to obtain, adherence of neutrals to any formal general agreement regarding surrender of such persons.

A second difference is that the present draft provides for surrender as the result of an executive or administrative procedure, not a judicial procedure as was the case under the Ministers of Justice draft.

Like the Ministers of Justice draft, the present draft covers nationals of the United Nations who have aided the enemy against their own countries—the so-called Quislings. It distinguishes their case from that of war criminals and deals with it in Article II. The term “other war offenders” in the title and in the preamble of the Convention refers to them.

The purpose in view is to make it certain that the United Nations will reciprocally transfer to one another persons in their power who are wanted for trial as war criminals or Quislings, or have already been convicted on such charges, and to secure this result in the simplest possible way, avoiding the complications and delays of normal extradition procedure and, in particular, excluding the possibility of refusing surrender on the ground that the acts charged have the character of political offences. Several, if not all, of the United Nations will require to enact legislation in order to accept the Convention. It was urged by one member of Committee II that, for practical purposes, since the persons wanted would be prisoners of war in the hands of the armed forces of the requested state or refugees present in its territory without legal authorisation, all that was required could be done by executive action and there was no need for complicated treaty provisions. This view was not accepted by the Committee. Moreover, even if not acceptable to, or not needed by some of the United Nations, the Convention can operate between the other United Nations, and, as stated above, it has been considered desirable by the Ministers of Justice of five of the Governments represented on the Commission.

provisions of the draft

Articles I and II provide respectively for the surrender of war criminals and of Quislings.

The description of the offences referred to in Article I as “war crimes, including offences against the laws and customs of war” implies that there are offences which are war crimes without being violations of those laws and customs.

The definition of Quislings in Article II is based on the Ministers of Justice draft.

The expression “execution of sentence or judgment” is a recognition that the offenders in question may be tried by military commissions as well as by civil courts (cf. Article IV, last paragraph).

Article III is intended to prevent surrender being denied on the ground that the offence was political.

Article IV specifies that surrender is to be effected by the executive or administrative authorities and prescribes how the request for surrender is to be made and the particulars to be given in the request.

Articles V and VI show the cases in which surrender may be refused or postponed; they also provide for the same offender being transferred successively to several states and punished successively by several states, and they regulate these processes.

Article VII regulates transit of surrendered persons through the territories of third states which are parties to the Convention.

Article VIII requires production at the time of surrender of documents etc. needed for the trial.

Article IX places all the costs on the requesting state.

The purpose of Article X is to meet in advance possible objections to the Convention on the ground that it may prejudicially affect the operation of extradition treaties. To mark the difference between the Convention and an extradition treaty, it was also at one time proposed to use the word “transfer” instead of the word “surrender” in the title and throughout the text, but the latter word was ultimately preferred, on the ground that its implications were well known.

Article XI It is proposed that a provision be inserted here under which the Convention will go out of force at a particular date.

Article XII and XIII need no comment.

opening of the draft for signature

The draft is the work of the Government representatives sitting as members of an advisory body, and not of persons empowered to negotiate an international convention and open it for signature. To bring it into operation (with or without amendments) this further process must be gone through and be followed by the deposit of ratifications. Before these steps can be taken, the competent departments of the Governments may require time to examine carefully the somewhat novel provisions of the draft.

It is for this reason that the Commission is sending the draft at the present time to the Governments represented on it, notwithstanding that it has not yet concluded its examination of the question of setting up a joint United Nations tribunal for the trial of war criminals and that it may be desirable for the same meeting of plenipotentiaries to deal with both schemes.

what states mat become parties to the convention?

It has been said above that the Convention is intended to operate only as between the United Nations, and not as between those states and neutral states. What precisely are the states which should be admitted to become parties to the Convention can only be decided by the meeting of plenipotentiaries which opens it for signature. The same question will arise in regard to any convention which may be drafted to provide some form of joint United Nations tribunal to try war criminals. The Commission reserves the right to make a recommendation regarding this matter at a later date.

Convention for the Surrender of War Criminals and Other War Offenders

(Enumeration of the Heads of States)

Having resolved to conclude a Convention with the object of achieving the surrender of war criminals and other war offenders,

have appointed as their Plenipotentiaries the following:

(list of Plenipotentiaries)

Who, having communicated their full powers, found in good and due form, have agreed on the following provisions:

Article I

The High Contracting Parties mutually agree to surrender to each other according to the procedure hereinafter provided, for the purposes of trial or of execution of sentence or judgment, persons found within their jurisdiction who are charged with or convicted of war crimes, including offences against the laws and customs of war, which were committed either within the jurisdiction of the requesting state or against that state or its nationals or the armed forces of the state.

Article II

The High Contracting Parties further mutually agree to surrender to each other according to the procedure provided hereinafter, for the purposes of trial or of execution of sentence or judgment, all persons, nationals or former nationals, of the requesting state who are within their jurisdiction and are charged with or convicted of giving aid or comfort to the enemy or of an offence committed with the intent to further the cause of the enemy or of an offence committed by means of the power or opportunity afforded by a state of war or armed hostilities or by hostile occupation of territory of the requesting state.

Article III

The surrender provided for by Articles I and II shall be effected notwithstanding any contention that the offence was of a political character.

Article IV

The request for surrender shall be transmitted through the diplomatic channel, and shall be executed by the appropriate executive or administrative authorities of the requested state. The person whose surrender is requested under the terms of this Convention shall in no case have recourse to any form of judicial procedure provided in the extradition treaties, laws or regulations of the requested state. The request shall contain in any event:

1. In the case of an alleged offender:

A. (1) the identity, nationality (if known) and description of the alleged offender;

(2) the description of the alleged offence and the maximum penalty which can be inflicted for that offence.

B. The Government requesting surrender shall in every case give written assurances to the Government from whom the surrender is requested to the effect:

(1) that the trial will be conducted in accordance with legal procedure;

(2) that judgment or findings and sentence will be pronounced in open court;

(3) that the alleged offender will be afforded the assistance of counsel both before and during the trial.

2. In the case of a convicted offender:

(1) the identity, nationality (if known), and description of the convicted offender;

(2) the description of the offence and the penalty imposed;

(3) the original or an authenticated copy of the judgment or findings and sentence given by the appropriate court in respect of the offence and in the presence of the offender.

The term “court” as used in this article shall include a military commission or other military tribunal.

Article V

The High Contracting Parties may decline to surrender to each other their own nationals and former nationals.

A High Contracting Party may refuse to surrender an alleged offender, if the offence for which his surrender is requested was committed within that Party’s jurisdiction.

In all cases where two or more High Contracting Parties request the surrender of the same alleged offender, such person shall be surrendered first to the Government of the State whose national legislation contains the heaviest maximum penalty in respect of the alleged offence regarding which surrender is requested.

Where the maximum penalties in respect of the offences for which surrender is requested are the same, surrender shall first be effected to the Government which first requested the surrender.

Article VI

If at the time when the request is made the alleged offender is undergoing investigation or is on trial in the courts of the requested state for a crime, whether a war crime or not, which is punishable with a higher maximum penalty than that for which the surrender is requested, that state may decline to surrender him until the proceedings are terminated.

In the event of sentence of detention in a penal institution having been pronounced, the execution of the sentence shall be suspended, if the surrender of the convicted person is requested in accordance with Articles I or II.

A sentence of death shall however be executed notwithstanding that one or more of the High Contracting Parties have requested the surrender of the offender.

When an alleged offender whose surrender has been requested by two or more High Contracting Parties has been tried and sentenced by their courts, the sentences shall be executed in the states concerned in the order of their dates; provided that, if the offender has been sentenced to death in one of the requesting states, he shall be surrendered to that state for execution.

Article VII

The Governments of the High Contracting Parties agree to allow the transit through their territories of persons who are being surrendered by one of the Parties to the present Convention to another Party, on production of a certificate emanating from the Government of the State from whom the surrender is obtained. During the passage through such territories the person who is being surrendered and his escort may be accompanied by officials designated by the Governments concerned.

Article VIII

The High Contracting Parties agree to produce at the time of surrender all documents, exhibits, or any other thing which may serve as proof of the alleged offence.

Article IX

The requesting state shall bear all costs arising out of a surrender made at its request under the terms of this Convention.

Article X

The present Convention constitutes an exceptional measure and shall not affect the operation of any treaty of extradition between or among the High Contracting Parties except as may be expressly provided by the terms of this Convention.

Article XI

(Denunciation and termination: Text provisionally reserved).

Article XII

The present Convention shall be ratified and the ratifications shall be deposited as soon as possible with . . . . . who will notify such deposit to all the signatories.

Article XIII

The present Convention shall come into force one month after the date on which it shall have been ratified on behalf of two of the High Contracting Parties. Thereafter it shall take effect in the case of each High Contracting Party one month after the date of the deposit of the ratification on its behalf with . . . . .

In faith whereof etc.

88. Transmitted to the Department by the American Representative on the United Nations War Crimes Commission in despatch 17938, September 8, 1944; received September 13.
89. Draft convention by the Ministers of Justice not found in Department files. For summary of the draft, see History of the United Nations War Crimes Commission, pp. 394–395.