masters and other officers, to hold hearings and generally to exercise in a manner not inconsistent with the provisions of this Agreement plenary authority with respect to the trial of charges brought pursuant to this Agreement. 8. An International Military Tribunal shall have the power to establish its own rules of procedure, which shall be not inconsistent with the provisions of this Agreement. 9. This Agreement shall not in any way prejudice the creation of other tribunals by the parties to this Agreement or any of them for the trial of persons who are not prosecuted before an International Military Tribunal established hereunder. PREPARATION OF CHARGES AND PROSECUTION 10. The parties to this agreement agree to bring to trial before an International Military Tribunal, in the names of their respective peoples, the major criminals, including organizations, referred to in Article 1. To this end, the Soviet Union, the United States, the United Kingdom and France shall each designate at the earliest possible time a representative to act as its chief of counsel. Such chiefs of counsel, acting by majority vote, shall determine the persons and organizations to be brought to trial before an International Military Tribunal, and they shall prepare the charges and institute and conduct the prosecution. 11. The chiefs of counsel shall also be charged with: (a) recommending to appropriate governmental authorities agreements and measures supplemental to or in addition to this agreement, necessary or appropriate to accomplish the objectives thereof, and (b) the maintenance of liaison among and with the appropriate military and civil agencies, authorities and commissions of or representing any of the United Nations with respect to the matters dealt with in this Agreement. DECLARATION OF LEGAL PRINCIPLES 12. In any trial before an International Military Tribunal, the tribunal shall be bound by this declaration of the parties to this Agreement that the following acts are criminal: a. Atrocities and offenses against persons or property constituting violations of international law, including the laws, rules and customs of land and naval warfare. b. Atrocities and offenses, including atrocities and persecutions on racial or religious grounds, committed since 1 January 1933 in violation of any applicable provision of the domestic law of the country in which committed. c. Invasion of another country by force or threat of force, or the initiation of war, in violation of international law. d. Launching a war of aggression. "International law" shall be taken to include treaties between nations and the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. 13. In any trial before an International Military Tribunal, the tribunal shall apply the general rule of liability that those who participate in the formulation or execution of a criminal plan involving multiple crimes are liable for each of the offenses committed and responsible for the acts of each other. 14. In any trial before an International Military Tribunal any defense based upon the fact that the accused is or was the head or purported head or other principal official of a state is legally inadmissible and will not be entertained. 15. In any trial before an International Military Tribunal the fact that a defendant acted pursuant to order of a superior or government sanction shall not constitute a defense per se, but may be considered either in defense or in mitigation of punishment if the tribunal determines that justice so requires. FAIR TRIAL FOR DEFENDANTS 16. In order to insure fair trial for defendants charged with crime pursuant to this Agreement, it is declared that the following procedure is required: a. Reasonable notice shall be given to the defendants of the charges against them and of the opportunity to defend. Such notice may be actual or constructive. An International Military Tribunal shall determine what constitutes reasonable notice in any given instance. b. The defendants physically present before an International Military Tribunal (a) will be furnished with copies translated into their own language, of any indictment, statement of charges or other document of arraignment upon which they are being tried, (b) will be given fair opportunity to be heard in their defense and to have the assistance of counsel. The tribunal shall determine to what extent and for what reasons proceedings against defendants may be taken without their presence. c. Organizations, official or unofficial, may be charged before an International Military Tribunal with criminal acts or with complicity therein by producing before the tribunal and putting on trial such of their number as the tribunal may determine to be fairly representative of the group or organization in question. Upon conviction of an organization hereunder, the tribunal shall make written findings and enter written judgment on the charges against such organization and the representative members on trial. EVIDENCE AND PROCEDURE 17. An International Military Tribunal shall adopt and apply to the greatest extent possible expeditious and nontechnical procedures. 18. An International Military Tribunal shall (a) admit any evidence which it deems to have probative value; (b) confine trials strictly to an expeditious hearing of the issues raised by the charges; (c) disallow action by defendants which will cause unreasonable delay or the introduction of irrelevant issues or evidence; and (d) employ with all possible liberality simplifications of proof, such as but not limited to: requiring defendants to make proffers of proof; taking judicial notice of facts of common knowledge; and utilizing reasonable presumptions. PUNISHMENT 19. Defendants brought to trial before an International Military Tribunal as provided in this Agreement shall, upon conviction, suffer death or such other punishment as shall be determined by the tribunal to be just and approved by the Control Council acting by majority vote. The Control Council, by such vote, may approve, reduce or otherwise alter the sentences determined by the tribunal, but may not increase the severity thereof. 20. The sentences, when and as approved by the Control Council, shall be carried into execution in accordance with the written orders of the Control Council. PROSECUTION OF MEMBERS OF CRIMINAL ORGANIZATIONS 21. Upon conviction of an organization before an International Military Tribunal, persons charged with criminal liability by reason of membership therein may be prosecuted in occupation courts or other military tribunals established by the parties or any of them. In the trial of such prosecutions the legal principles declared in Articles 12, 13, 14, and 15 shall be binding upon the court or tribunal and the findings and judgment of an International Military Tribunal shall be conclusive with respect to the criminal purposes and activities of the organization. Upon proof of membership in such an organization, the burden shall be upon the defendant to establish any circumstances relating to his membership or participation therein which are relevant either in defense or in mitigation. 22. The chiefs of counsel designated pursuant to Article 10 shall prepare and recommend to the Control Council plans for the prosecution and trial of persons charged pursuant to Article 21 with liability by reason of membership in organizations found criminal by an International Military Tribunal. EMOLUMENTS AND EXPENSES 23. The emoluments and expenses of the members of an International Military Tribunal and their alternates designated as provided in Article 5 of this Agreement and of the chiefs of counsel designated as provided in Article 10 of this Agreement, shall be borne by the respective Signatories by whom they have been designated. 24. The emoluments and expenses of the staffs for the International Military Tribunal and the chiefs of counsel and incidental expenses, such as rent, heat, light, stationery and printing shall be borne in equal share by the Signatories. 25. The emoluments and expenses of those occupation courts or other military tribunals which may be established for the trial of prosecutions instituted in accordance with Article 21 of this Agreement shall be justly apportioned between the Signatories concerned and any participating Adherents as may be agreed between them. RETURN OF OFFENDERS TO THE SCENE OF THEIR CRIMES 26. The Signatories agree that the Control Council for Germany shall establish policies and procedures governing (a) the return of persons in Germany charged with criminal offenses to the scene of their crimes in accordance with the Moscow Declaration and (b) the surrender of persons within Germany in the custody of any of the Signatories who are demanded for prosecution by any party to this Agreement. X. Aide-Mémoire from the Soviet Government June 14, 1945 Note: On June 14, 1945, Nikolai V. Novikov, Minister Counselor of the Soviet Embassy at Washington, called on Mr. Justice Jackson and delivered an aide-mémoire in the Russian language along with the following translation. Its references are to the draft submitted to the Foreign Ministers at San Francisco [IV] and not to the later draft submitted to the embassies. AIDE-MÉMOIRE [Translation] The Soviet Government considering it extremely important that the punishment of war criminals be realised as soon as possible agrees with the proposal of the Government of the United States about the necessity of an urgent establishment of an international tribunal for trial of principal war criminals-leaders of the Hitlerite Government, the Fascist German army and their agents and accomplices and expresses its readiness to sign without delay an appropriate agreement. As regards the draft of the very agreement submitted by the Government of the United States the Soviet Government agrees with the outline in its principles and considers it possible to accept it as a basis. The Soviet Government considers it necessary, however, to make the following amendments and supplements to this draft: 1. The introductory part of the agreement (article 1) to be worded as follows: "In accordance with the Moscow Declaration of October 30, 1943 ‘About the responsibility of the Hitlerites for the atrocities committed' and other statements of the United Nations on the question of punishment of war criminals, the Governments of the USSR, the United States, the United Kingdom of Great Britain and Northern Ireland and the Provisional Government of France, acting in the interests of all United Nations, have concluded the following agreement:" 2. In article 4 instead of the words "committed by the Axis powers" to say: "committed by the European Axis powers" and further in accordance with the text. 781985-49- -6 |