and punished according to the laws of these liberated countries and of the free governments which will be created therein"; and (2) that the above declaration "is without prejudice to the case of the major criminals, whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies."

II. United Nations War Crimes Commission

The United Nations War Crimes Commission is located in London, and consists of representatives of some fifteen of the United Nations. The Soviet Government is not a member.

This Commission has been charged with the collection of lists of the criminals referred to, the recording of the available supporting proof, and the making of recommendations as to the tribunals to try and the procedure for trying such criminals. The Commission has no investigative or prosecuting authority or personnel. It has no authority to try offenders of any kind.

The War Crimes Commission receives its lists of war criminals from the investigating authorities, if any, set up by the respective United Nations. The first unofficial meeting of the Commission was held in London on October 26, 1943, and the first official meeting was held there on January 18, 1944. Up to this time, the cases of approximately 1,000 offenders have been docketed with the Commission. The labors of the Commission have not resulted in any governmental agreement as to the tribunals to try or the procedures for trying war criminals. The Commission has been widely and publicly criticized for the paucity of the results of its work. In recent months its activities have been marked by dissensions. The British representative, who was also Chairman of the Commission, and the Norwegian member, have resigned.

III. Scope and Dimensions of the War Crimes Problem

The crimes to be punished. The criminality of the German leaders and their associates does not consist solely of individual outrages, but represents the result of a systematic and planned reign of terror within Germany, in the satellite Axis countries, and in the occupied countries of Europe. This conduct goes back at least as far as 1933, when Hitler was first appointed Chancellor of the Reich. It has been marked by mass murders, imprisonments, expulsions and deportations of populations; the starvation, torture and inhuman treatment of civilians; the wholesale looting of public and private property on a scale unparalleled in history; and, after initiation of "total" war, its prosecution with utter and ruthless disregard for the laws and customs of war.

We are satisfied that these atrocities were perpetrated in pursuance of a premeditated criminal plan or enterprise which either contemplated or necessarily involved their commission.

The criminals to be punished. The outstanding offenders are, of course, those leaders of the Nazi Party and German Reich who since January 30, 1933, have been in control of formulating and executing Nazi policies.

In addition, the Nazi leaders created and utilized a numerous organization for carrying out the acts of oppression and terrorism which their program involved. Chief among the instrumentalities used by them are the SS, from the personnel of which the Gestapo is constituted, and the SA. These organizations consist of exactingly screened volunteers who are pledged to absolute obedience. The members of these organizations are also the personnel primarily relied upon to carry on postwar guerilla and underground operations.

IV. Difficulties of an Effective War Crimes Program

Difficulties of identification and proof. The names of the chief German leaders are well known, and the proof of their guilt will not offer great difficulties. However, the crimes to be punished have been committed upon such a large scale that the problem of identification, trial and punishment of their perpetrators presents a situation without parallel in the administration of criminal justice. In thousands of cases, it will be impossible to establish the offender's identity or to connect him with the particular act charged. Witnesses will be dead, otherwise incapacitated and scattered. The gathering of proof will be laborious and costly, and the mechanical problems involved in uncovering and preparing proof of particular offenses one of appalling dimensions. It is evident that only a negligible minority of the offenders will be reached by attempting to try them on the basis of separate prosecutions for their individual offenses. It is not unlikely, in fact, that the Nazis have been counting on just such considerations, together with delay and war weariness, to protect them against punishment for their crimes if they lost the war.

Legal Difficulties. The attempt to punish the Nazi leaders and their associates for all of the atrocities committed by them also involves serious legal difficulties. Many of these atrocities, as noted in your statement on the subject of persecution dated 24 March 1944, were "begun by the Nazis in the days of peace and multiplied by them a hundred times in time of war." These pre-war atrocities are neither "war crimes" in the technical sense, nor offenses against international law; and the extent to which they may have been in violation of German law, as changed by the Nazis, is doubtful. Nevertheless, the declared

policy of the United Nations is that these crimes, too, shall be punished; and the interests of postwar security and a necessary rehabilitation of German peoples, as well as the demands of justice, require that this be done.

V. Recommende

After Germany's unconditional surr if they elected, put to death the most m Hitler or Himmler, without trial or 1 method. While it has the advantages it would be violative of the most fundal mon to all the United Nations. This to turn these criminals into martyrs, individuals could be reached in this wa

We think that the just and effectiv judicial method. Condemnation of the over, would command maximum publi receive the respect of history. The use addition, make available for all mank authentic record of Nazi crimes and cri We recommend the following:

The German leaders and the organiza those referred to above (SA, SS, Gestap the commission of their atrocious crime. tion in a broad criminal enterprise whi crimes, or was reasonably calculated to tion of the criminal enterprise would proof of the entire Nazi plan from its its furtherance and execution, including committed against their own nationals. as well as the waging of an illegal war regard for international law and the would be firmly founded upon the rule systems and included in the general de those who participate in the formulati plan involving multiple crimes are joint committed and jointly responsible for such a charge there are admissible in conspirators done in furtherance of the acts were in themselves criminal and subject to separate prosecution as such.

t

er or not these

The trial of this charge and the determination of the guilty parties would be carried out in two stages:

The United Nations would, in the first instance, bring before an international tribunal created by Executive Agreement, the highest ranking German leaders to a number fairly representative of the groups and organizations charged with complicity in the basic criminal plan. djudication would be sought not only of the guilt of those individuals hysically before the court, but also of the complicity of the members f the organizations included within the charge. The court would ake findings adjudicating the facts established, including the nature nd purposes of the criminal plan, the identity of the groups and organations guilty of complicity in it, and the acts committed in its execuon. The court would also sentence those individual defendants physally before it who are convicted.

The above would complete the mission of this international tribunal. Thereafter, there would be brought before occupation courts the Adividuals not sent back for trial under the provisions of the Mosw Declaration, and members of the organizations who are charged ith complicity through such membership, but against whom there is ot sufficient proof of specific atrocities. In view of the nature of the arges and the representative character of the defendants who were efore the court in the first trial, the findings of that court should stly be taken to constitute a general adjudication of the criminal aracter of the groups and organizations referred to, binding upon I the members thereof in their subsequent trials in occupation courts. In these subsequent trials, therefore, the only necessary proof of guilt any particular defendant would be his membership in one of those rganizations. Proof would also be taken of the nature and extent of the individual's participation. The punishment of each defendant Could be made appropriate to the facts of his particular case. In ppropriate cases, the penalty might be imprisonment at hard labor stead of the death penalty, and the offenders could be worked in estoring the devastated areas.

Individual defendants who can be connected with specific atrocities will be tried and punished in the national courts of the countries conerned, as contemplated in the Moscow Declaration.

VI. Nature and Composition of Tribunals

We favor the trial of the prime leaders by an international miliary commission or military court, established by Executive Agreement of the heads of State of the interested United Nations. This would require no enabling legislation or treaty. If deemed preferable the tribunal could be established by action of the Supreme Authority (Control Council for Germany).

The court might consist of seven members, one each to be appointed

policy of the United Nations is that these crimes, too, shall be punished; and the interests of postwar security and a necessary rehabilitation of German peoples, as well as the demands of justice, require that this be done.

V. Recommended Program

After Germany's unconditional surrender the United Nations could, if they elected, put to death the most notorious Nazi criminals, such as Hitler or Himmler, without trial or hearing. We do not favor this method. While it has the advantages of a sure and swift disposition, it would be violative of the most fundamental principles of justice, common to all the United Nations. This would encourage the Germans to turn these criminals into martyrs, and, in any event, only a few individuals could be reached in this way.

We think that the just and effective solution lies in the use of the judicial method. Condemnation of these criminals after a trial, moreover, would command maximum public support in our own times and receive the respect of history. The use of the judicial method will, in addition, make available for all mankind to study in future years an authentic record of Nazi crimes and criminality.

We recommend the following:

The German leaders and the organizations employed by them, such as those referred to above (SA, SS, Gestapo), should be charged both with the commission of their atrocious crimes, and also with joint participation in a broad criminal enterprise which included and intended these crimes, or was reasonably calculated to bring them about. The allegation of the criminal enterprise would be so couched as to permit full proof of the entire Nazi plan from its inception and the means used in its furtherance and execution, including the prewar atrocities and those committed against their own nationals, neutrals, and stateless persons, as well as the waging of an illegal war of aggression with ruthless disregard for international law and the rules of war. Such a charge would be firmly founded upon the rule of liability, common to all penal systems and included in the general doctrines of the laws of war, that those who participate in the formulation and execution of a criminal plan involving multiple crimes are jointly liable for each of the offenses committed and jointly responsible for the acts of each other. Under such a charge there are admissible in evidence the acts of any of the conspirators done in furtherance of the conspiracy, whether or not these acts were in themselves criminal and subject to separate prosecution as such.

The trial of this charge and the determination of the guilty parties would be carried out in two stages: