740.00116 E.W./10–944
Document No. C.58, 6 October, 1944: Explanatory Memorandum to Accompany the Draft Convention for the Establishment of a United Nations War Crimes Court6
October 6, 1944
The draft of the Convention is self-explanatory.7 But, during the discussion of the Draft there emerged from time to time certain points which, in the opinion of the Commission, would require elaboration. A number of these have been settled or clarified in the text of the draft Convention as it gradually took its definite shape. There remain, however, certain matters which, as they have not found their way into the final text, have to be specifically dealt with in this memorandum.
- (a)
- During the preparatory work on the Convention certain drafts were submitted in which a detailed list of war crimes was included in Article 1. The list was not meant to be exhaustive and, after considerable discussion, the Commission found it appropriate not to include a detailed list but to confine itself to the terms of the first paragraph of Article 1—“an offence against the laws and customs of war”. It is considered that this will give the Court the necessary latitude of action to carry out the intention of the Allied Governments as expressed in numerous public statements, notably the Declaration in Moscow dated the 1st November, 1943.
- (b)
- The Commission has considered the question of “Superior Orders”. It finally decided to leave out any provision on the subject for the same reason as that for which it left out the detailed list of war crimes. The Commission considers that it is better to leave it to the Court itself in each case to decide what weight should be attached to a plea of superior orders. But the Commission wants to make it clear that its members unanimously agree that in principle this plea does not of itself exonerate the offender.
- (c)
- It will be noted that the only clause in the Convention which deals with the question of languages is Article 3 of the Draft, where it is stated that the members of the Court “shall be conversant with either English or French”. The Commission fully realises, however, that in the Far East, for instance, it is to be assumed that the Chinese language will be the one used by witnesses and perhaps by other persons participating in the work of the Court. It is also probable that the Russian language or other Slavonic languages may have to be used in some of the divisions of the Court. In addition, the German language will certainly be the one used in numerous documents and also in pleading before the Court. Obviously, the language question implies the necessity of quite considerable interpreting and translating work. The accused persons will be entitled to have documents translated into a language which they understand and will likewise be entitled to have oral statements interpreted into such language. The Commission has therefore considered it desirable that the Court itself should be left free to establish under Article 10 the necessary rules with regard to the language or languages in the sense that the official languages of the Court shall be English and French and/or any other language of the country in which the Court may sit.