PREPARATION OF CHARGES AND PROSECUTION

22. At the earliest possible time the Soviet Union, the United States, the United Kingdom and France shall each designate a representative, and such representatives acting as a group shall prepare the charges pursuant to Article 6 hereof and shall institute and conduct the prosecution. Such representatives shall also prepare and recommend to the Control Council plans for the prosecution and trial of persons charged with liability pursuant to Article 12 (d) through membership in organizations found criminal by an International Military Tribunal.

23. The representatives 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.

EMOLUMENTS AND EXPENSES

24. The emoluments and expenses of those members of the International Military Tribunal designated by the respective Signatories as provided in Article 15 of this Agreement and of the representatives provided for in Article 22 of this Agreement, shall be borne by the respective Signatories by whom they have been appointed.

25. The emoluments and expenses of the staffs for the International Military Tribunal and the representatives and incidental expenses, such as rent, heat, light, stationery and printing shall be borne in equal shares by the Signatories.

26. The emoluments and expenses of those occupation courts and tribunals established as provided in Article 19 of this Agreement shall be justly apportioned between the Signatories concerned and any participating Adherents as may be agreed between them.

Done at

day of

1945.

this the

V. American Memorandum Presented at

San Francisco, April 30, 1945

Note: The following memorandum was prepared, as the date indicates, in reference to an earlier draft than the revision submitted at San Francisco. It was, however, considered equally applicable to the latter and was delivered to the Foreign Ministers at San Francisco. Copies were also later provided to the representatives at the London Conference.

MEMORADUM OF PROPOSALS FOR THE PROS ECUTION AND PUNISHMENT OF CERTAIN WAR CRIMINALS AND OTHER OFFENDERS

30 April 1945

I. The Moscow Declaration Did Not Cover the Whole Problem of the Trial and Punishment of War Criminals.

In the statement jointly issued by President Roosevelt, Premier Stalin and Prime Minister Churchill on 1 November 1943, usually referred to as the Moscow Declaration, it was announced that those members of the Hitlerite forces who have been responsible for, or have taken a consenting part in, atrocities and war crimes in territory occupied by the Axis forces, would be sent back to the countries in which their abominable deeds were done in order that they may be judged according to the laws of those countries. It is assumed for the purposes of this memorandum that the four principal Allies will cooperate in carrying out this policy set out in the Moscow Declaration and also that the several Allies will cooperate fully in arranging for the trial and punishment by the United Nations concerned (or before an Allied military tribunal) of those Hitlerite nationals who have committed war offenses anywhere against the civilians or soldiers of any United Nation.

No policy, however, was fixed in the Moscow Declaration covering a. the punishment of the major war criminals whose offenses have no particular geographical localization, beyond the announcement that they would be punished by joint decision of the Governments of the Allies; or

b. the methods of punishment of those members of the principal Nazi organizations, such as the Gestapo and S.S., who voluntarily

engaged in carrying out the ruthless policies of the Nazi regime but who cannot readily be proved to have participated personally in the execution of specific atrocities.

II. Summary of Proposals.

This memorandum proposes that the following policy be adopted by the Governments of the United States, the Soviet Union, and the United Kingdom, and the Provisional Government of France for the trial of

a. the major Nazi leaders and their principal accomplices in the broad program of war crimes and atrocities which have characterized the Nazi regime since 1933 and

b. the principal Nazi organizations and their members, through whom the most bestial of the Nazi cruelties have been put into effect. Considerations Taken Into Account

in Framing the Proposals

The proposals now advanced give recognition to the following facts: a. that 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 and within the areas occupied by German military forces, in connection with which the crimes and atrocities referred to were committed; b. that these crimes and atrocities were perpetrated pursuant to a premeditated criminal plan;

c. that for the carrying out of the acts of oppression and terrorism which their program involved, the Nazi leaders and their associates created and utilized a numerous organization, chief among which are the S.S., and the Gestapo, and

d. that there is necessity for establishing practical measures for bringing these criminals, their principal organizations, and their active leaders and members to justice on a basis which takes adequate account not only (1) of those offenses committed within and outside Germany, during the war or against the citizens of the United Nations, but also (2) of those atrocities, both before and after 1939, committed against members of Axis minorities.

Proposed Policy

1. The Axis leaders should be tried before Allied military tribunals composed of officers of the four principal Allies. Their guilt and punishment should be determined by judicial action of a military tribunal and not by political action of the Allied Governments. (See discussion below Part IV, page 33.)

2. Either in separate trials, or at the same time, the leaders of the principal Hitlerite organizations (e.g., the Gestapo and the S.S.) and

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the organizations themselves should also be tried before an Allied military tribunal. This tribunal should determine both the guilt of the individual leaders and the extent of the participation of each of these organizations and its members in the great Nazi criminal enterprise, of which the crimes and atrocities which have shocked the world were an integral part or at least the natural and probable consequence. (See discussion below, Part III, Section B, page 31.)

3. The extent of the guilt of the individual members of the Hitlerite organizations, which may be found to have participated in the Nazi enterprise, should be determined and the individual members should be punished in a manner based upon the extent of their guilt. (See discussion below, Part III, Section C, page 32.)

4. An Allied executive group, composed of representatives of the four principal Allies, should be established to prepare the charges against the Hitlerite leaders and the organizations, to collect and present the evidence in support of those charges and to conduct their prosecution. (See discussion below, Part V.)

The proposals now advanced contemplate that the four principal allies will enter into an executive or military agreement embodying the foregoing policies, to which the other United Nations will be invited to adhere after the agreement has been negotiated and signed. Prior participation by the other United Nations in the negotiation of the agreement is probably not appropriate because the agreement will be largely a matter affecting the four nations engaged in the occupation of Germany and because of the necessity for speed in reaching agreement.

III. The Trial and Punishment of the Hitlerite Leaders and the Major Hitlerite Organization Should be Based upon Their Voluntary Participation in a Common Criminal Enterprise of which the Axis Atrocities and War Crimes were an Integral Part and the Probable Consequence.

A. Method of Determining Guilt

After Germany's defeat or unconditional surrender, the Allies by joint action, pursuant to treaty or otherwise, could probably agree to put to death the most notorious Nazi criminal without trial. Such action, however, would be violative of concepts of justice, which the freedom loving United Nations accept and, on that account, would be distasteful and inappropriate. For reasons more fully stated in Part IV of this memorandum, it is felt that all reasonable efforts should be made to avoid such a purely political disposition of the Nazi leaders. Instead, it should be possible to determine upon a suitable judicial process more in accord with the common traditions of the principal United Nations.

It is believed that a military tribunal is the appropriate type of court for this judicial action for the following reasons:

a. The offenses of the Axis leaders and their organizations which will be the subject of judicial inquiry will be largely war crimes properly cognizable by a military tribunal.

b. The trials will take place as a part of or in connection with a military occupation of Germany and Austria.

c. The crimes to be punished are atrocities which should be dealt with by the swift justice of a military tribunal created by simple military or executive agreement. The prosecution should not be subject to the delays inherent in the formal setting up of an international treaty court.

B. Nature of Charges to be Made

For the systematic and planned policy of oppression and aggression both within Germany and against Germany's neighbors, the Nazi leaders and the whole membership of the principal Nazi organizations share responsibility. The leaders and their organizations must be made to pay the penalties which international law and the laws and customs of war exact for war crimes and atrocities contemplated by their program and perpetrated in its execution. It should be remembered that in this program members of the S.S. and the Gestapo, as volunteers pledged to absolute obedience, joined, with their leaders. Accordingly, the Government of the United States advances for consideration a plan which in no way would interfere with the punishment of individual Hitlerites at the scene of their crimes for specific atrocities which they have committed. Neither would it interfere with separate trials of the principal Nazi leaders before Allied military tribunals if that is considered desirable. Indeed such separate trials might have substantial advantage in that they can be conducted quickly and without awaiting final disposition of the trial of the charges of the common criminal enterprise of the whole Hitler hierarchy of criminals. The plan proposed, however, would ensure the punishment of the Nazi leaders and the active members of the principal Nazi organizations for the program in which they have played the major part. The German leaders and their associates and the organizations employed by them should be charged 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 should 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 pre-war atrocities and those committed against their own nationals, neutrals, and stateless persons, as well