462.11 L 5232/397
The German Chargé (Leitner) to the Acting Secretary of State
Mr. Under Secretary of State: By instruction from my Government I have the honor to advise Your Excellency of the following:
The Government of the Reich has thoroughly studied the American proposal to obtain a decision from the Umpire on the question of the admissibility of resuming the sabotage cases. It can not convince itself, however, either of the legal possibility or of the expediency of this procedure.
The Government of the Reich has contested the claims which were brought before the German-American Mixed Commission on account of the destruction of the so-called Black Tom ammunition magazine and the Kingsland plant, because it has been convinced, after the most thorough and careful investigation of the facts, that both occurrences were not caused by the work of German agents and that the claims made are therefore groundless. After examination of the extraordinarily extensive material submitted by both the Germans and the Americans, the Commission rejected the complaints on October 16, 193040 in a decision reached unanimously, the reasons for which were given in detail.
After certain objections which the American Agent had raised against this decision were rejected by a decision of the Commission of March 30, 1931, the American Agent submitted, on July 1, 1931, a proposal [Page 497] for resuming the case, which was based on allegedly just discovered evidence. The German Agent contested this proposal from the beginning as legally inadmissible but at the same time he conducted protracted time wasting, and expensive investigations as to the value of the American material as proof. In that way it was possible for the Commission, by laying aside the question of the admissibility of the proposals for resumption, to make another decision, based on the merits of the case, on the justification for the claims presented. In the decision of December 3, 1932, the Umpire decided that the documents on which the proposal for resuming the case chiefly rested are forgeries and not proper evidence, and that the newly submitted material also did not justify any other decision than that handed down in the fall of 1930. The Umpire stated explicitly that the German member of the Commission decidedly held a resumption to be inadmissible, but that a statement of opinion on that point was needless, in view of his decision.
To the very great surprise of the Government of the Reich, the American Agent has recently submitted a new resumption proposal, which aims at having the Commission enter upon a new investigation of the controversy, on the ground of new testimony of witnesses which the Agent claims to have just secured.
As against this, it is to be noted that both Governments have pledged themselves, in Article VI, Paragraph 3, of the Agreement of August 10, 1922, on the establishment of the Mixed Commission, to accept the decisions of the Commission and the Umpire as final and binding. Resumption proposals cannot be reconciled with this provision. This clear legal situation has been recognized by the Commission also in the basic decision in the matter of the Philadelphia Girard National Bank of April 21, 1930,41 in which it was stated that the collection of new evidence does not give either party the right to demand resumption. The question which is to be submitted to the Umpire has therefore already been decided by the Commission.
Experience shows that persons complaining of sabotage are not disposed, in case of adverse decisions of the Commission or the Umpire to acquiesce therein. It is therefore not to be expected that this will be the case, if the Umpire now again expressly sets forth the inadmissibility of the resumption proposal. The German Government would, if it agreed to a reference of the question of admissibility of a resumption of the question to the Umpire, call in question the basic preliminary decision in the above mentioned complaint of the Philadelphia Girard National Bank.[Page 498]
More than two years ago, the Commission practically concluded its task of judging the cases referred to it. Since that time, the formal conclusion of its work has been delayed only by the resumption proposals of the sabotage complainants. Moreover, other American complainants have made use of the interval, in order to make such proposals also. Since resumption of the sabotage cases was declined on December 3, 1932, the Government of the Reich, in the spirit of friendly accommodation, with which it has, from the beginning promoted the labors of the Commission, initiated a compromise procedure for settling all cases that were at that time still pending before the Commission. In doing so, it laid aside its objections to the material justification of the American claims in question, as well as the intrinsic fundamental objections against resumption, in order to take also into consideration, in particular, the repeatedly expressed desires of the American Government in the Sprunt cases.42 All the cases pending before the Commission were thereby again settled, as they already had been, at the close of 1930.
Now the same development as that subsequent to 1930, seems to be beginning once more: a proposal for resumption in the sabotage case and a similar one in another case are again pending before the Commission. The course of things up to the present plainly justifies the assumption that the Commission can not conclude its work with the means at its disposition. As a matter of fact the obligation expressed in the agreement, to recognize the decisions of the Commission as definitive and binding, is also an obligation resting on the Governments, and with regard to which the Commission is not competent to decide.
Taking this provision of the agreement as a basis, the Government of the Reich therefore, earnestly requests the American Government to take steps for the withdrawal of the proposals for resumption filed with the Commission. The Government of the Reich is not in position to allow its agencies with the Commission to participate in further steps relating to resumption. It has therefore instructed its agent in particular, not to express himself with regard to the pending resumption proposals, and not to participate in any hearings before American courts.
The Government of the Reich again demonstrated by the compromise procedure initiated in February, its willingness, to conclude the labors of the Commission in a friendly and conciliatory spirit. At the desire of the American Government it has also renounced the setting of a time limit for compromise offers. It is even now still prepared to put the compromises into effect, but, can not waive the condition that the Commission be dissolved at the same time. The Government of the Reich hopes that the American Government, in examining this situation [Page 499] will be convinced that the work of the Commission can be concluded only in the manner proposed by Germany and that the public unrest constantly renewed by the proceedings before the Commission may thereby be prevented.
Please accept [etc.]
- Mixed Claims Commission, United States and Germany, Administrative Decisions, etc., pp. 967–994.↩
- Mixed Claims Commission, United States and Germany, Administrative Decisions, etc., pp. 939–948.↩
- Claims brought before the Commission by Alexander Sprunt & Son See Mixed Claims Commission, United States and Germany, Administrative Decisions, etc., pp. 925–927.↩