XLV. Redraft of Charter, Submitted by AGREEMENT by the Government of the UNITED KINGDOM OF GREAT BRITIAN AND NORTHERN IRELAND, the UNITED STATES OF AMERICA, the Provisional Government of the FRENCH REPUBLIC and the Government of the UNION OF SOVIET SOCIALIST REPUBLICS for the Prosecution and Punishment of the MAJOR WAR CRIMINALS of the EUROPEAN AXIS WHEREAS the United Nations have from time to time made declarations of their intention that War Criminals shall be brought to justice; AND WHEREAS the Moscow Declaration of the 30th October 1943 on German atrocities in Occupied Europe stated that those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in atrocities and crimes will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free Governments that will be created therein; AND WHEREAS this Declaration was stated to be without prejudice to the case of major criminals, whose offences have no particular geographical location and who will be punished by the joint decision of the Governments of the Allies; NOW THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics (hereinafter called "the Signatories") acting in the interests of all the United Nations and by their representatives duly authorised thereto have concluded this Agree ment. Article 1. There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of organisations or groups or in both capacities. Article 2. The constitution, jurisdiction and functions of the International Military Tribunal shall be those set out in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement. Article 3. Each of the Signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal. The Signatories shall also use their best endeavours to make available for investigation of the charges against and the trial before the International Military Tribunal such of the major war criminals as are not in the territories of any of the Signatories. Article 4. Nothing in the Agreement shall prejudice or release the obligations of the parties to the Moscow Declaration for the return of persons to be tried at the scenes of their crimes. Article 5. Any Government of the United Nations may adhere to this Agreement by notice given through the diplomatic channel to the Government of the United Kingdom, who shall inform the other signatory and adhering Governments of each such adherence. Article 6. Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals. Article 7. This Agreement shall come into force on the day of signature and shall remain in force for the period of one year and shall continue thereafter, subject to the right of any Signatory to give, through the diplomatic channel, one month's notice of intention to terminate it. 781985-49-24 IN WITNESS WHEREOF the Undersigned have signed the present agreement. DONE in quadruplicate in this day of 1945 each in English, French and Russian, and each text to have equal authenticity. For the Government of the United Kingdom of Great Britain and Northern Ireland For the United States of America For the Provisional Government of the French Republic For the Government of the Union of Soviet Socialist Republics Charter CONSTITUTION OF THE INTERNATIONAL MILITARY Article 1. TRIBUNAL In pursuance of the Agreement dated entered into by the Government of the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics there shall be established an International Military Tribunal (hereinafter called "the Tribunal") for the just and prompt trial and punishment of the major war criminals of the European Axis. Article 2. The Tribunal shall consist of four members, each with an alternate. One member and one alternate shall be appointed by each of the Signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In case of illness of any member of the Tribunal or his incapacity for some other reason to fulfil his functions, his alternate shall take his place. Article 3. Neither the Tribunal, its members nor their alternates can be challenged by the prosecution, or by the Defendants or their Counsel. Each Signatory may replace its member of the Tribunal or his alternate for reasons of health or for other good reasons, except that no replacement may take place during a Trial, other than by an alternate. Article 4. (a) The presence of all four members of the Tribunal or their alternates shall be necessary to constitute the quorum. (b) The members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a President, and the President shall hold office during that trial, or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed. If however a session of the Tribunal takes place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside. (c) Save as aforesaid the Tribunal shall take decisions by a simple majority vote and in case the votes are evenly divided, the vote of the President shall be decisive; provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal. Article 5. In case of need and depending on the number of the matters to be tried, other Tribunals may be set up and the establishment, functions, and procedure of each Tribunal shall be identical, and shall be governed by this Charter. Article 6. JURISDICTION AND GENERAL PRINCIPLES The following acts shall be considered criminal violations of International Law and shall come within the jurisdiction of the Tribunal. (a) Violations of the laws, rules or customs of war. Such violations shall include murder and ill-treatment of prisoners of war: atrocities against and violence towards civil populations: the deportation of such populations for the purpose of slave labour: the wanton destruction of towns and villages: and plunder: as well as other violations of the laws, rules and customs of war. (b) Launching a war of aggression. (c) [Invasion or threat of invasion of or] initiation of war against other countries in breach of treaties, agreements or assurances between nations or otherwise in violation of International Law. [(d) Entering into a common plan or enterprise aimed at domination over other nations, which plan or enterprise involved or was reasonably calculated to involve or in its execution did involve the use of unlawful means for its accomplishment, including any or all of the acts set out in sub-paragraphs (a) to (c) above or the use of a combination of such unlawful means with other means.] (e) Atrocities and persecutions and deportations on political, racial or religious grounds [in pursuance of a common plan or enterprise referred to in sub-paragraph (d) hereof, whether or not in violation of the domestic law of the country where perpetrated.] Article 7. The official position of Defendants, whether as heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. Article 9. Organisers, instigators, and accomplices who participated in the formulation or execution of a common criminal plan or in the perpetration of individual crimes are equally responsible with other participants in the crimes. Article 10. At the trial of any individual member of any group or organisation the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organisation of which the individual was a member was a criminal organisation. After receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organisation will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organisation. The Tribunal shall have power to allow or reject the application. If the |