Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

740.00116 European War/10–244

Document No. C.50(1), 30 September, 1944: Draft Convention for the Establishment of a United Nations War Crimes Court⁹⁹

September 30, 1944

(Names of the High Contracting Parties . . . . . desirous of ensuring that the perpetrators of war crimes committed by the enemy shall be brought to justice.

Recognising that in general the appropriate tribunals for the trial and punishment of such crimes will be national courts of the United Nations,

Mindful of the possibility that cases may occur in which such crimes cannot be conveniently or effectively punished by a national court,

Have decided to set up an Inter-Allied Court before which the Governments of the United Nations may at their discretion bring to trial persons accused of an offence to which the Convention applies in preference to bringing them before a national court, and

For this purpose have appointed as their plenipotentiaries:—

(names of the plenipotentiaries)

who—having communicated their full powers found in good and due form—

Have agreed as follows:—

Article 1

1. There shall be established a United Nations War Crimes Court for the trial and punishment of persons charged with the commission of an offence against the laws and customs of war.

2. The jurisdiction of the Court shall extend to the trial and punishment of any person—irrespective of rank or position—who has committed, or attempted to commit, or has ordered, caused, aided, abetted or incited another person to commit, or by his failure to fulfil a duty incumbent upon him has himself committed, an offence against the laws and customs of war.

3. The jurisdiction of the Court as defined above shall extend to offences committed by the members of the armed forces, the civilian authorities or other persons acting under the authority of, or claim or colour of authority of, or in concert with a state or other political entity engaged in war or armed hostilities with any of the High Contracting Parties, or in hostile occupation of territory of any of the High Contracting Parties.

Article 2

The judges of the Court and Members of the Court shall be chosen in accordance with the following provisions:

(a) Within thirty days after the coming into force of the Convention, each of the High Contracting Parties shall appoint three persons as members of the Court. The names of the persons so appointed shall be transmitted to His Britannic Majesty’s Principal Secretary of State for Foreign Affairs in the United Kingdom, who shall communicate them forthwith to the other High Contracting Parties.

(b) Within fifteen days after the communication of the said names to the High Contracting Parties, His Britannic Majesty’s Principal Secretary of State for Foreign Affairs shall call a conference of representatives of the High Contracting Parties to meet in London at such time and place as he may direct.

(c) The conference shall proceed to the election of the judges of the Court from among the members of the Court. The election shall take place by secret ballot and by such method of voting as the conference may determine. The number of judges to be elected shall be determined by the conference.

(d) Any state which becomes a party to the convention after it has come into force, shall appoint three members of the Court as provided in para. (a). These names shall in the same manner be communicated to the other High Contracting Parties.

Article 3

The members of the Court shall be nationals of the High Contracting Parties and shall possess the highest legal qualifications. They shall be conversant with either English or French.

Article 4

The date of the first meeting of the Court shall be set by the conference referred to in Article 2, para, (b)—this first meeting shall be in London. The Court shall thereupon decide upon its seat, which it may change at any time. The Court may decide to meet elsewhere than at its seat.

Article 5

1. In the event of a vacancy among the judges, the Court shall proceed to the election of a judge from among the members of the Court.

2. In the event of a vacancy among the members of the Court the High Contracting Party who appointed the member whose place is vacated shall designate his successor.

Article 6

Judges of the Court may not exercise any political or administrative function, or engage in any activity of a professional nature so long as they are judges of the Court.

Article 7

The Court shall elect its President and Vice-President, appoint its Registrar and otherwise perfect its organisation and that of its Divisions.

Article 8

Judges of the Court as well as the Registrar of the Court and the Officer appointed under Art. 11, para. 2 to conduct prosecutions, shall enjoy diplomatic privileges and immunities.

Article 9

1. A judge of the Court who desires to resign his post shall arrange with the President as to the date on which his resignation shall take effect.

2. The Court, with the concurrence of not less than three-fourths of the judges, may retire a judge who has ceased to be able adequately to perform the functions of his office.

Article 10

The Court shall establish rules for the administration and procedure of the Court and its Divisions. The Court shall have authority to amend or to supplement these rules from time to time.

Article 11

1. The responsibility for the conduct of prosecutions before the Court will in general rest with the Government of the United Nation by which the case is brought before the Court.

2. The conference referred to in Art. 2, para. (b) shall appoint an officer to whom may be entrusted the conduct of the prosecution in any case in which the Government of the United Nation primarily concerned prefers that the prosecution should not be undertaken by its own representatives.

3. This officer shall be assisted by such staff as the Court may think necessary.

4. The expenses incurred in connection with the prosecution of cases entrusted to the officer appointed by the Court shall be borne by the State which has transmitted the case to the Court.

Article 12

1. For the trial of cases the Court shall sit in Divisions. Each of the Divisions shall in the trial of cases assigned to it exercise the powers conferred upon the Court.

2. Each Division shall consist of not less than five judges who shall be designated from time to time by the President of the Court. The Divisions shall sit at such places, and shall continue to exist for such periods, as the President may determine.

3. Not less than five judges shall sit to hear and determine each case.

Article 13

Every judge of the Court shall, at the commencement of the first public session of the Court which he attends, make a solemn declaration in open Court that he will exercise his functions, and duly administer justice without partiality or favour, according to law.

Article 14

The Court may:

(a) Order any witness to attend and be examined before the Court;

(b) Summon any person with expert knowledge to give evidence in any case;

(c) Order the disclosure and production of any document, exhibit or any other thing connected with the case;

(d) Issue letters of request;

(e) Appoint commissioners for the taking of evidence.

Article 15

Subject to the provisions of this Convention, an accused person appearing for trial before the Court shall, in addition to any specific rights which he may enjoy under the convention or under the rules be entitled:

1. To be informed in writing of the charges against him, which shall be set forth in sufficient detail to give him a reasonable opportunity to prepare his defence.

2. To have a reasonable opportunity to prepare his defence.

3. To have the benefit of qualified legal counsel chosen by himself. If the accused is not represented by counsel of his own choice, the Court shall assign qualified legal counsel for his defence.

4. To be present during the conduct of the proceedings.

5. To make such pleas and defences as are generally recognised by civilised nations.

6. To produce evidence upon his behalf.

7. To decline to give evidence against himself.

Article 16

Hearings shall be public unless the Court for reasons which it states directs that the hearing shall take place in camera.

Article 17

1. No person shall be prosecuted before the Court if he has already been convicted or acquitted of the same offence before a Court of one of the High Contracting Parties.

2. No trial or sentence by a Court of an enemy or former enemy state shall bar trial or sentence by the Court. If a sentence has been imposed by a Court of an enemy or former enemy state, the penalty already undergone shall be taken into account in fixing any sentence which may be imposed.

Article 18

The Court shall apply:

(a) General international treaties or conventions declaratory of the laws of war, and particular treaties or conventions establishing laws of war between the parties thereto;

(b) International customs of war, as evidence of a general practice accepted as law;

(c) The principles of the law of nations, derived from the usages established among civilised peoples, from the laws of humanity, and from the dictates of the public conscience;

(d) The principles of criminal law generally recognized by civilised nations;

(e) Judicial decisions as subsidiary means for the determination of the rules of the laws of war.

Article 19

1. The Court shall sit in private to consider its judgment. The judges shall observe secrecy as to the nature of their deliberations.

2. Every judgment or order shall be pronounced at a public session and shall state the reasons on which it is based.

3. The decisions shall be by a majority of the judges participating.

Article 20

The Court shall have power to adjudge appropriate punishments including death or any lesser punishment.

Article 21

Sentences shall be executed as directed by the Court.

Article 22

The expenses incurred in connection with the establishment and functioning of the Court, the salaries and expenses of the judges and officials of the Court and of their staff, and by the execution of sentences imposed by the Court, shall be defrayed in such manner as the High Contracting Parties may determine.

Article 23

The High Contracting Parties undertake severally to adopt such measures as may be necessary to give effect to the provisions of the Convention.

Article 24

The Convention shall be ratified.

The ratifications shall be deposited in London with the Government of the United Kingdom of Great Britain and Northern Ireland.

A procès-verbal shall be drawn up recording the receipt of each ratification and a copy duly certified shall be sent through the diplomatic channel to each of the High Contracting Parties.

Article 25

As soon as the number of ratifications deposited with the Government of the United Kingdom is deemed by that Government sufficient to justify the establishment of the Court, His Britannic Majesty’s Principal Secretary of State for Foreign Affairs shall address a communication to that effect to the other High Contracting Parties, and the Convention shall enter into force on the tenth day after the dispatch of such communication.

Article 26

Members of the United Nations who are not signatories of the Convention are allowed to adhere to it.

For this purpose they must make their adhesions known to the High Contracting Parties by means of a written notification addressed to the Government of the United Kingdom, and by it communicated to all the other Contracting Parties.

Article 27

As soon as the President of the Court can fix a date by which the Court will have completed the trial of persons who are brought before it for offences within its jurisdiction, he shall address a notification to His Britannic Majesty’s Principal Secretary of State for Foreign Affairs to that effect.

Copies of his notification shall be communicated by him through the diplomatic channel to all the other High Contracting Parties, and he shall propose a date on which the Court shall be wound up and the Convention shall cease to operate.

Article 28

Unless an agreement is arrived at between the High Contracting Parties for the variation of the date referred to in the last paragraph of Article 27, the said date shall be communicated to the President and arrangements shall be made by him for winding up the Court by the said date.

Article 29

Without prejudice to the validity and the completion of any sentences imposed by the Court which may not have expired at the date fixed for the winding up of the Court, and without prejudice to the distribution between the High Contracting Parties of such expenditure as it may be necessary to incur after the date fixed for the winding up of the Court in connection with uncompleted sentences imposed by the Court, or in connection with the winding up of its affairs or the preservation of its archives or with other matters and subject to any further agreement which may be concluded between the High Contracting Parties, the Convention shall cease to have effect on the date fixed for the winding up of the Court.

99. Transmitted to the Department by the American Representative on the United Nations War Crimes Commission in despatch 18334, October 2, 1944; received October 7.