to this Agreement may bring charges against any person for participation in its criminal activities pursuant to the provisions of Article 15 hereof before any occupation or other Tribunal established by it. In any such trial, the findings of the International Military Tribunal as to the criminality of the group or organization shall be binding upon the occupation or other Tribunal. Upon proof of membership in such group or organization, such person shall be deemed to have participated in and be guilty of its criminal activities unless he proves the absence of voluntary participation. A person so convicted shall suffer death or such other punishment as the Tribunal may deem just in light of the degree of his culpability.

24. Any party to this agreement may, either in a proceeding described in Paragraph 23 or in an independent proceeding, charge any person, before an occupation or other Tribunal, with any crime other than the crimes referred to in Paragraph 23, and such Tribunal may, upon his conviction, impose upon him for such crime punishment independent of and additional to the punishment imposed for participation in the criminal activities of such group or organization.

X. PUNISHMENT

Article 31

Forms of Punishment

The Tribunal shall have the

PUNISHMENT

20. Defendants brought to trial

right to impose the sentence of before the Tribunal shall, upon

death or some other punishment conviction, suffer death or such on the defendants-the perpetra- other punishment as shall be detor and his accomplices. termined by the Tribunal to be just.

21. The sentences shall be carried out in accordance with written orders of the Control Council, and the Control Council may at

The Control Council may approve, alter or annul a sentence or return the case to the Tribunal for a retrial. The Control Council shall have the right to mitigate any time reduce or otherwise alter the punishment imposed by the the sentences but may not increase Tribunal but not to increase the the severity thereof.

severity thereof.

XXIV. Report of American Member of
Drafting Subcommittee, July 11, 1945

MEMORANDUM FOR MR. JUSTICE JACKSON 11 July 1945 Subject: Final Report of American Representative on the Four-Power Drafting Sub-committee.

1. The undersigned makes this Final Report as the American Representative on the Four-Power Drafting Sub-committee for the drafting of the Executive Agreement and Annex, or Charter, as we now call it.

2. Meetings have been held beginning on Thursday, 5 July, and continuing on successive days thereafter, with the exception of Saturday and Sunday. The final meeting was held and concluded this forenoon. [Mr. Alderman's notes of the meetings are appended hereto.]

3. I attach hereto a copy, and I am distributing to the entire Staff copies, of a mimeographed reproduction of the documents as the Drafting Sub-committee finally revised them this morning [XXV]. Matters within square brackets are reserved especially to be raised before the plenary sessions. In addition, it is understood that all of the work of the Drafting Sub-committee is tentative, in the sense that it is all subject to approval or disapproval of the plenary sessions. However, the drafts as hereto attached, with the exception of the matters in square brackets, represent agreement by the four conferees: for the Russians, Prof. Trainin; for the French, M. Falco; for the British, Sir Thomas Barnes; for the Americans, Mr. Alderman.

4. I am well enough satisfied with these drafts to recommend their substantial adoption, with reservation of the reserved matters.

5. I transmitted to the Drafting Sub-committee your suggestion that a free day be allowed to intervene before the next plenary session, whereupon it was understood that the next plenary session would be held at 10:30 a.m. on Friday, 13 July 1945 at Church House. SIDNEY S. ALDERMAN

Distribution

Mr. Justice Jackson (2)

The entire Staff

Notes of American Representative on Drafting Subcommittee

5 July 1945

AGREEMENT

After discussion it was agreed to take the preamble from our earlier draft, which quoted exactly the provisions of the Moscow declaration, adding a reference to "other statements that have been made by the United Nations, with reference to the punishment of war criminals".

The Russians agreed to consider my suggestion for writing into their article 1, "including groups and organizations fairly represented by their individual members brought before the Court". They would not commit themselves but reserved the question.

I objected to calling the annex the "statute", on our constitutional grounds. Professor Trainin objected to "annex" because it does not fit in with the idea that the annex is an integral part of the agreement. At the suggestion of Sir Thomas Barnes we compromised on "charter" as the name for the statute or annex.

Russian article 3 was changed so as to make it read, "Each of the Signatories undertakes to make available at the trial all the major war criminals who are under the jurisdiction of the Tribunal."

I presented Mr. Justice Jackson's objections to Russian article 4, arguing that it is beyond our function to commit our governments to diplomatic negotiations with other governments, not parties, regarding handing over of criminals in their possession. That is for regular diplomatic handling. The British suggested that we confine it to "will use their best efforts" and, as so amended, the whole article was reserved for further discussion.

Russian article 5 was amended so as to make it read substantially, "Each of the Signatories will establish policies and procedures governing the return of persons who under the Moscow Declaration are to be returned for trial to the scene of their crimes." Mr. Clyde has the exact wording.

Russian article 6 was amended so as to read substantially, "All Governments 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 parties of each such accession."

The British did not wish to be put under the burden of issuing formal invitations to some 50 governments to accede to the agreement.

Russian article 7 was changed to read, "This agreement becomes valid immediately on the day of signing. It shall run for the term of one year and thereafter, subject to the right of any party to ter