0160/2498 A.O. 81/1945
WHEREAS WE deem it expedient to make provision for the trial and punishment of violations of the laws and usages of war committed during any war in which we have been or may be engaged at any time after the second day of September, nineteen hundred and thirty-nine;
Our WILL AND PLEASURE is that the custody, trial and punishment of persons charged with such violation of the laws and usages of war as aforesaid shall be governed by the Regulations attached to this Our Warrant.
Given at Our Court of St. James's this 14th day of June, 1945, in the 9th year of Our Reign
P. J. GRIGG.
1. In these Regulations if not inconsistent: with the context and subject to any express provision to the contrary the following expressions have the following meanings, namely:-
"War Crime" means a violation of the laws and usages of war committed during any war in which His Majesty has been or may be engaged at any time since the 2nd September, 1939. Any expression used in these Regulations has the same meaning as in the Army Act or the Rules of Procedure made pursuant thereto. "Military Court" means a Military Court constituted and held under these Regulations.
2. (a) The following officers shall have power to convene Military Courts for the trial of persons charged with having committed war crimes and to confirm the findings and sentences of such Courts, namely:-
(i) Any officers authorized so to do by His Majesty under His Warrant.
(ii) Any officers authorized so to do by delegation under the Warrant of any officer referred to under (i) above whom His Majesty has authorized to make such delegation by His Warrant.
(b) Any such Warrants may be addressed to an officer by name or by designation of an office and may be subject to such restrictions, reservations, exceptions and conditions as may seem meet to His Majesty or any such delegating officer as aforesaid.
(c) An officer having authority to confirm the finding and sentence of a Military Court may reserve confirmation of the finding and sentence or of the sentence to any superior authority competent to confirm the findings and sentences of the like kind of Military Court convened under these Regulations.
3. Except in so far as herein otherwise provided expressly or by implication the provisions of the Army Act and the Rules of Procedure made pursuant thereto so far as they relate to Field General Courts-Martial and to any matters preliminary or incidental thereto or consequential thereon shall apply so far as applicable to Military Courts under these Regulations and any matters preliminary or incidental thereto or consequential thereon in like manner as if the Military Courts were Field General Courts-Martial and the accused were persons subject to military law charged with having committed offences on active service.
Sections 49, 51, 54 (I) (d) and (7) and 57 (2) and (4) and 57A of the Army Act, and Rules of Procedure 3, 34, 56 110, 118 (A) and (B), 119 (B) and 120 (C), (D) and (E) made pursuant thereto shall not apply.
4. If it appears to an officer, authorized under, the Regulations to convene a Military Court that a person then within the limits of his command has, at any place whether within or without such limits, committed a war crime he may direct that such person if not already in military custody shall be taken into and kept in such custody pending trial in such manner and in the charge of such military unit as he may direct. The commanding officer of the unit having charge of the accused shall be deemed to be the commanding officer of the accused for the purposes of all matters preliminary and relating to trial and punishments. But such commanding officer shall have no power to dismiss the charge or deal with the accused summarily for a war crime. He shall without any such preliminary hearing as is referred to in Rule of Procedure 3 either cause a Summary of Evidence to be taken in accordance with Rule of Procedure 4 or an abstract of evidence to be prepared as the Convening Officer may direct. The accused shall not have the right to having a Summary taken or of demanding that the evidence at the Summary shall be taken on oath or that any witness shall attend for cross-examination at the taking of the Summary.
5. Military Court shall consist of not less than two officers in addition to the President, who shall be appointed by name, but no officer, whether sitting as President or as a member, need have held his commission for any special length of time. If the accused is an officer of the naval, military or air force of an enemy or ex-enemy Power the Convening Officer should, so far as practicable but shall be under no obligation so to do, appoint or detail as many officers as possible of equal or superior relative rank to the accused. If the accused belongs to the naval or air force of an enemy or ex-enemy Power the Convening Officer should appoint or detail, if available, at least one naval officer or one air force officer as a member of the Court, as the case may be.
The Convening Officer should normally appoint at least one officer having one of the legal qualifications mentioned in Rule of Procedure 93 (B) as President or as a member of the Court. But if no such officer is appointed, and in default of a person deputed by H.M. Judge Advocate General to act as Judge Advocate, the Convening Officer shall by order appoint a person having one of the said legal qualifications to act as Judge Advocate, at the trial.
Notwithstanding anything in these Regulations the Convening Officer may, in a case where he considers it desirable so to do, appoint as a member of the Court, but not as President, one or more officers of an Allied Force serving under his command or placed at his disposal for the purpose, provided that the number of such officers so appointed shall not comprise more than half the members of the Court, excluding the President.
6. The accused shall not be entitled to object to the President or any member of the Court or the Judge Advocate or to offer any special plea to the jurisdiction of the Court.
7. Counsel may appear on behalf of the Prosecutor and accused in like manner as if the Military Court were a General Court-Martial, and Rules of Procedure 88-93 shall in such cases apply accordingly.
In addition to the persons deemed to be properly qualified as Counsel under Rule of Procedure 93. any person qualified to appear before the Courts of the Country of the accused and any person approved by the Convening Officer of the Court shall be deemed to be properly qualified as Counsel for the Defence.
8. (i) At any hearing before a Military Court convened under these Regulations the Court may take into consideration any oral statement or any document appearing on the face of it to be authentic, provided the statement or document appears to the Court to be of assistance in proving or disproving the charge, notwithstanding that such statement or document would not be admissible as evidence in proceedings before a Field General Court-Martial, and without prejudice to the generality of the foregoing in particular:-
(a) If any witness is dead or is unable to attend or to give evidence or is, in the opinion of the Court, unable so to attend without undue delay, the Court may receive secondary evidence of statements made by or attributable to such witness;
(b) any document purporting to have been signed or issued officially by any member of any Allied or enemy force or by any official or agency of any Allied, neutral or enemy government shall be admissible as evidence without proof of the issue or signature thereof;
(c) the Court may receive as evidence of the facts therein stated any report of the "Comité International de la Croix Rouge" or by any representative thereof, by any member of the medical profession or of any medical service, by any person acting as a "man of confidence" (homme de confiance), or by any other person whom the Court may consider was acting in the course of his duty when making the report;
(d) the Court may receive as evidence of the facts therein stated any depositions or any record of any Military Court of Inquiry (any Summary) of any examination made by any officer detailed for the purpose by any military authority;
(e) the Court may receive as evidence of the facts therein stated any diary, letter or other document appearing to contain information related to the charge;
(f) if any original document cannot be produced or, in the opinion of the Court, cannot be produced without undue delay, a copy of such document or other secondary evidence of its Contents may be received in evidence;
It shall be the duty of the Court to judge of the weight to be attached to any evidence given in pursuance of this Regulation which would not otherwise be admissible.
(ii) Where there is evidence that a war crime has been the result of concerned action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group may be received as prima facie evidence of the responsibility of each member of that unit or group for that Crime.
(iii) The Court shall take judicial notice of the laws and usages of war.
(iv) Unless the Convening Officer otherwise directs a finding of guilty and the sentence shall be announced in Open Court by the President, who shall at the same time state that such finding and sentence are subject to confirmation. If such announcement is not made in Open Court the President shall notify the accused of the finding and sentence under sealed cover at the termination of the Proceedings and record in the Proceedings that this has been done. A finding of acquittal, whether on all or some of the offences with which the accused is charged, shall not require confirmation or be subject to be revised and shall be pronounced at once in Open Court, but the Court shall not thereupon release the accused, unless otherwise entitled to be released.
(v) The sittings of Military Courts will ordinarily be open to the public so far as accommodation permits. But the Court may, on the ground that it is expedient so to do in the national interest or in the interests of justice, or for the effective prosecution of war crimes generally, or otherwise, by order prohibit the publication of any evidence to be given or of any statement to be made in the course of the proceedings before it, or direct that all or any portion of the public shall be excluded during any part of such proceedings as normally take place in Open Court, except during the announcement of the finding and sentence pursuant to paragraph (iv) above.
(vi) A record shall be made of the Proceedings of every Military Court.
9. A person found guilty by a Military Court of a war crime may be sentenced to and shall be liable to suffer any one or more of the following punishments, namely:-
(i) Death (either by hanging or by shooting);
(ii) Imprisonment for life or for any less term;
(iv) A fine.
In a case where the war crime consists wholly or partly of the taking, distribution or destruction of money or other property the Court may, as part of the sentence, order the restitution of such money or other property, and in default of complete restitution award a penalty equal in value to that which has been so taken, distributed, or destroyed or not restored.
Sentence of death shall not be passed on any person by a Military Court without the concurrence of all those serving on the court if the Court consists of not more than three members, including the President, or without the concurrence of at least two-thirds of those serving on the Court if the Court consists of more than three members, including the President.
10. The accused may within 14 days of the termination of the Proceedings in Court submit a petition to the Confirming Officer against the finding or sentence or both provided that he gives notice to the Confirming Officer within 48 hours of such termination of his intention to submit such a petition. The accused shall have no right to submit any Petition otherwise than as aforesaid.
Provided that if such Petition is against the finding it shall be referred by the Confirming Officer, together with the Proceedings of the trial, to His Majesty's Judge Advocate General or to any Deputy of his approval by him for that purpose in the Command overseas where the trial took place for advice and report thereon.
11. The finding and any sentence which the Court has jurisdiction to pass may be confirmed and, if confirmed, shall be valid, notwithstanding any deviation from these Regulations, or the Rules of Procedure or any defect or objection, technical or other, unless it appears that a substantial miscarriage of justice has actually occurred.
12. When a sentence passed by a Military Court has been confirmed the Secretary of State, or any officer not below the rank of Major-General authorized by him, shall have power to mitigate or remit the punishment thereby awarded or to commute such punishment for any less punishment or punishments to which the offender might have been sentenced by the said Court: Provided that this power shall not be exercised by an officer holding a Command or rank inferior to that of the officer who confirmed the sentence.
13. In any case not provided for in these Regulations such course will be adopted as appears best calculated to do justice.
By Command of the Army Council.