740.00116 European War 1939/1182

The Second Secretary of the British Embassy (Gore-Booth) to the Legal Adviser (Hackworth)

Dear Mr. Hackworth: With reference to our conversation today, I have pleasure in sending you the substance of the telegram from London regarding the treatment of the Germans involved in the Caiazzo incident.

With reference to paragraph 3 of that telegram, you will recall that the main reasons for not trying the cases of atrocities immediately were: (1) that such a procedure would cut across attempts to agree on a common policy in regard to the type of courts to be employed for the trial of war criminals, the law to be applied, the procedure for custody and surrender of criminals, etc., and (2) that if we started trying such cases now there might be unfortunate reactions upon our own prisoners still in enemy hands.

I understand from Mr. Jones36 that the Department’s policy in this matter is not yet completely agreed, and I am accordingly awaiting further word from him before we report to the Foreign Office.37

Yours sincerely,

Paul Gore-Booth

Substance of Telegram From the British Foreign Office, Dated November 24th

Please refer to General Eisenhower’s telegram N.A.F. No. 522 to Joint Chiefs of Staff38 and J.S.M. telegrams Nos. 1322 and 1327 to [Page 429] War Cabinet Offices. Outrage in question consisted of massacre of Italian civilians by a German officer. It does not therefore strictly speaking come within the competence of the United Nations Commission since the latter’s investigations are restricted to war crimes committed by the enemy, against the United Nations’ nationals. Italy although co-belligerent cannot yet be classed as a United Nation and there would be obvious difficulties about associating her with the work of the commission.

This case is however covered by Moscow declaration on war crimes, which specifically referred to crimes being committed by “the recoiling Hitlerite Huns” on inter alia Italian territory. The declaration laid down that “those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in atrocities, etc. would be sent back to the countries in which their abominable deeds were done to be judged and published [punished] according to the laws of those liberated countries and of free governments which will be erected there.” Lists were to be compiled from all these countries including specifically Italy.
Under this procedure the Germans responsible for Caiazzo incident should eventually be tried in Italy by the Italians. Para. 3 of my telegram No. 7274 set out however the reasons why cases of atrocities should not be tried immediately and why suspected persons should continue for the present to be held by the Allied military command in accordance with general directive to General Eisenhower contained in Combined Chiefs of Staff telegram FAN 260.
Please discuss the matter with the State Department on the foregoing lines with a view to the issue of agreed instructions to General Eisenhower.
  1. J. Wesley Jones, of the Division of Southern European Affairs.
  2. Mr. Hackworth in a letter of December 3, 1943, merely expressed thanks for the communication of the telegram from London.
  3. Not found in Department files