840.48 Refugees/4921: Telegram
The Ambassador in the United Kingdom (Winant) to the Secretary of State
[Received December 29—9:20 a.m.]
9033. Following statement was prepared by Sir Herbert Emerson and forwarded to the Embassy yesterday (Department’s 8124, December 24). After receiving it I asked Lord Winterton to come on to London to discuss the question of mandate with me. He completely supports the interpretation of mandate as stated in the Emerson memorandum. Therefore I am cabling this document in order that it may reach you Wednesday morning Washington time.
In my conversation with Lord Winterton he told me he felt that the matter should be taken up with the Foreign Office as well as with him. Prior to his conversation with me he had not himself approached [Page 244] the Foreign Office. I am seeing Eden at noon today on this question and will telegraph the Department the results of our conversation.
Following is the text of Emerson’s memorandum:
“With reference to the talk you had yesterday with my colleagues and myself regarding the mandate of the Intergovernmental Committee, I am now writing to explain the position.
1. On the 17th December, the Jewish Telegraph Agency rang up saying that they had received the following message from their office in New York:
‘Washington authoritatively learned Intergovernmental Committee given mandate initiate discussions with Germany directly regarding release Jews other oppressed peoples. Doubted whether Germany will agree but attempt will be made. Russia and Turkey been invited join Committee.’
The agency asked for confirmation. My personal assistant communicated the message to me. For reasons which will appear later, I told her to ask the Jewish Telegraph Agency not to publish the portion regarding the initiation of direct discussions with Germany, since this was not covered by the mandate, but to confirm the part relating to Russia and Turkey. I assumed that, as has happened previously, the message from New York was not a correct report of facts. At the same time, I asked Mr. Malin, Vice-Director, to ascertain the basis of the report so that, if there were any misunderstanding, it might be cleared up. He took steps to do this.
A few days later, Mr. Schick, a representative of the Jewish Telegraph Agency office in London, saw Mr. Malin, when the latter gave him a copy of the communiqué issued by the Intergovernmental Committee, which contained the terms of the mandate.
You will see that the question in issue was whether the mandate of the Intergovernmental Committee included the powers to initiate discussions direct with Germany. Believing as I did then, and still believe, that the mandate does not contain such powers, it would not have been possible, even had we known that the statement to this effect had been made in Washington, for us to confirm the statement. The course we might have taken would have been to say that we had no statement to make, and this might have been the wiser course, but the results would have been the same, since the Jewish Telegraph Agency office in London would then have cabled back to say that the Director’s office in London had declined to confirm the statement. Much therefore, as I regret the situation that has arisen, and the inconveniences it has, and may, cause, I do not think that any action, or inaction, on our part could have prevented it, other than a confirmation of the statement that the mandate was as described in the message, and this we could not do.
2. The main reason for this view is the mandate itself. I may remind you that the procedure followed by the Executive Committee has been to ask the member Governments to confer on them certain powers, and they have been addressed in this sense. The relevant portion of the recommendation is the following:
‘With regard to persons coming within the mandate as extended, the Executive Committee is empowered by the member states to undertake negotiations with neutral or Allied states or with organizations, and to take such steps as may be necessary to preserve, maintain and transport them.’
So far as negotiation is concerned, the power is sought in regard to neutral or Allied states only. There is no mention of enemy states. According to the normal canons of interpretation the omission is conclusive. Since powers had been expressly sought in regard to Allied and neutral states, it seems inadmissible to make the assumption that these powers were also to extend to enemy states. This is the more so, since the inclusion of enemy states is a matter on which there may well be considerable difference of opinion among those member states who are at war.
As you know, the mandate, apart from verbal changes, was a formula agreed beforehand between the American and British Governments. I do not, therefore, know what they may have had in mind, but so far as the discussions previous to the executive meeting of the 4th August are concerned, and the discussions in that meeting itself nothing was said or suggested, to my knowledge, to indicate that the mandate did not mean what it said, and that negotiations with enemy states had not been deliberately omitted. Owing to the fact that the Chairman, Lord Winterton, is out of town, and the matter is urgent, I have been unable to consult him. But if he was aware of any reservation in the sense now suggested, he did not communicate it to me, as I believe he would certainly have done, had he been aware of it.
Moreover, so far as my own knowledge goes, and so far as public statements are concerned, the whole trend of policy since public attention became keenly interested in the matter towards the end of 1942, has been in the direction of rejecting any direct approach to Germany. It is necessary to give only one example of this. I would refer you to the relevant portion of the statement made by Mr. Peake in the House of Commons on behalf of the British Government, on the 19th May, 1943, during the debate on the Bermuda Conference. It will be found 1130 of Hansard of that date.23 It was, presumably, a statement of which the substance had been agreed between the American and British Governments. Giving an account of the Bermuda Conference he made the following statement:
‘At the outset they (the delegations) agreed in rejecting, as contrary to the settled policy of both Governments, and calculated to injure the United Nations war effort, any proposal for general negotiations with the German Government to release potential refugees.’
Until the present matter arose, I had no reason to suppose that there had been any change in this policy.
3. Yesterday you mentioned certain considerations supporting a contrary interpretation. Some of these had reference to the report of the Bermuda Conference. In this connection it is, I think, relevant to remember that that report has not been communicated to members of the Executive Committee other than Lord Winterton and Mr. Winant, and it has not been communicated to any other member Governments of the Intergovernmental Committee, or to the nonmember Governments who have been invited to join the Committee. While, therefore, it may be relevant as indicating what the delegations had in mind, it is not relevant as to the intentions of the Executive Committee, and still less as to the interpretation by the other Governments of those intentions as expressed in the recommendation.
4. So far as the original mandate of the Committee is concerned, the relevant position is the instruction to the Director ‘to undertake [Page 246] negotiations to improve the present conditions of exodus, and to replace them by conditions of orderly emigration’. Negotiations to this end were, in fact, in progress when hostilities began in September, 1939. The war brought them to an abrupt end, and there has been no suggestion that they should be renewed. They relate to a policy of orderly emigration which is no longer an issue, and in any case, they relate only to refugees, or potential refugees, in Germany and Austria.
5. For the above reasons, I still hold the view that if the question had been raised in Executive Committee, or is raised, as to the powers of that body to initiate direct discussions or negotiations with Germany, it would be my duty to give the following opinion: First, that the mandate does not include the conferment of such powers by the member states, and it would, therefore, be ultra vires for the Executive Committee to exercise them. Secondly, that if the contrary interpretation were adopted, since the matter is one on which some Governments may take a very keen interest, the right and proper course would be to communicate to them the extended mandate for their agreement. You will understand that since the matter has not arisen in Executive Committee, I am merely expressing a personal opinion, which might or might not be accepted by the Executive Committee, but since I am the servant of the Committee as a whole, I would be bound to give this advice in discharge of my obligations to all members. Although the responsibility is mine, I may add that the matter has been discussed fully with my colleagues Mr. Malin, Dr. Sillem and Dr. Kullmann, and that they agree. What I have said refers only to the issue of the mandate as it now stands, and not to the wider question of policy as to whether it should be expanded so as to include the power of direct negotiations with enemy states.
6. In regard to some other matters which you mentioned which fall outside the direct issue, it is undoubtedly the case that the mandate now includes persons, whoever they may be, in enemy or enemy-occupied territory, or elsewhere, who as a result of the events in Europe, have had to leave, or may have to leave, their countries of residence because of the danger to their lives or liberty, on account of their race, religion or political beliefs. The aim of the Intergovernmental Committee is to give them all assistance they can within the powers conferred on them. Even if it cannot, within its powers, enter into direct negotiations with enemy states, it can initiate and carry out measures for their assistance. The approach to Sweden is one example, although it may be noted that Sweden has been asked to move the German authorities as a neutral country, and not as a member of the Intergovernmental Committee, acting on its behalf. Similarly as regards the approaches that have been made, or are contemplated [with] regard to Switzerland. In fact, the question of a direct approach to Germany is, apart from questions of policy, largely academic, since there are no means by which such an approach can be made. Nor does the absence of the necessary powers, if this is in fact that position, detract from the practical measures that can be taken, at present. The situation may change as the war develops, and it may be necessary to seek wider powers. This is, perhaps, what the Bermuda delegation had in mind in framing their first recommendation, namely, ‘that no approach be made to Hitler for [Page 247] the release of potential refugees in Germany or German-occupied territory but that the question be borne in mind by the Intergovernmental Committee in case conditions altered at a later date’. In short, the lack of those particular powers is not an obstacle at present, since the powers which exist are sufficient to take advantage of such opportunities as occur. May I here take the opportunity of saying how very much we appreciate the great help the State Department has given during the past few months in initiating proposals and in referring them to the Intergovernmental Committee. This makes me regret the more that I have added unconsciously to its difficulties.”
- Parliamentary Debates, House of Commons, 5th series, vol. 389, col. 1130.↩