740.00116 E.W./10–944
Document No. C.59, 6 October, 1944: Suggestions to Accompany the Recommendation for the Establishment of Mixed Military Tribunals8
October 6, 1944
The Commission realises that if Inter-Allied Tribunals are set up by the Supreme Allied Military Commanders, the composition, power and procedure of such Tribunals must be prescribed in the orders to be issued by them.
The following suggestions are submitted by the Commission because it believes that, if adopted, they would help to carry out the policy of the Allied Nations.
- 1.
- The judges of the Inter-Allied Tribunals should be nationals of the United Nations, possessing adequate qualifications.
- 2.
- Each Tribunal should have mixed personnel, and, when qualified personnel is available and can be detailed without injury to the respective military services, representation should be afforded to the United Nations of which they are nationals in such proportion as may be advisable.
- 3.
- Each Tribunal should have jurisdiction to try any enemy national who is charged with having committed an offence in violation [Page 1383] of the laws and customs of war, subject, however, to the conditions contained in the recommendation of the Commission (Commission Document C.52(1), 22 [26] September 1944). The law to be applied by the Tribunals will be the laws of war, i.e., the international law to be found in treaties, in custom, and in the unwritten law of war.
- 4.
- For the trial of cases each Tribunal should consist of not less than five members.
- 5.
- The rules of procedure should be consistent with practices which are usual in civilised countries and should be framed by the Appointing Authority.
- 6.
- The prosecution of offenders before the Tribunals should in general be left to the individual United Nations concerned, but in cases where the latter cannot conveniently undertake the prosecution, the Convening authority may be requested by such nation to provide a suitable officer to prosecute upon the conditions recommended by the Commission in Doc. C.52(1).
- 7.
- The Tribunals should have power to oblige persons to give evidence and to produce documents; and also to obtain evidence from other sources.
- 8.
- Trial before an enemy court should not bar proceedings before an Inter-Allied Tribunal, but any penalty imposed by any enemy court in respect of the same offence should be taken into account by the Tribunal.
- 9.
- With regard to the question of “superior orders” the Commission desires to draw attention to what it has said in Doc. C.58.9