PR 10 Foreign Relations of U.S./8–20/71

Memorandum by the British Lord Chancellor (Simon)1

Major War Criminals

I was asked by the War Cabinet (W.M. (44) 83rd Conclusions2) to consider further, and to report upon, proposals for dealing with the major war criminals. The following appear to be some of the principal considerations to be borne in mind:

The Moscow Tri-partite Declaration (Nov. 1st, 1943)3 concluded with the statement that it was made “without prejudice to the case of the major criminals, whose offences have no particular geographical localisation, and who will be punished by the joint decision of the Governments of the Allies”. This statement has as yet never been amplified either by public announcement, or (as far as I know) by consultation between the Allies.
In view of the progress made towards final victory over Germany, has not the time arrived to raise—with President Roosevelt, at any rate—certain questions connected with the carrying out of this announcement of intended punishment? It is much to be hoped that the principal criminals may, before the end, be disposed of by the people whom they have led to destruction, or may take their own lives—but if they fall alive into the hands of the Allies, what is to be done with them?
I am strongly of opinion that the method by trial, conviction, and judicial sentence is quite inappropriate for notorious ringleaders such as Hitler, Himmler, Goering, Goebbels and Ribbentrop. Apart from the formidable difficulties of constituting the Court, formulating the charge, and assembling the evidence, the question of their fate is a political, not a judicial, question. It could not rest with judges, however eminent or learned, to decide finally a matter like this, which is of the widest and most vital public policy. The decision must be “the joint decision of the Governments of the Allies”. The Moscow Declaration, indeed, has already said so.
I am equally clear that these leading and notorious criminals cannot be left untouched, while lesser people who have committed atrocities and war-crimes under their orders and with their approval are tried and heavily punished. Such a course would be universally, and rightly, condemned. It may not be essential to make a precise public announcement of Allied intentions as regards the major criminals at present—the Moscow Declaration is itself a general indication, and a new statement might evoke reprisals against Allied individuals in German hands—but it seems to me most desirable to open confidential consultations on the subject with some of our Allies, and to get a decision now as to what is to be done. Otherwise, when the time comes, there may be a disastrous difference of view.
The list of war criminals who might be dealt with without trial, which was prepared by the Foreign Secretary4 (W.P.(44)330), was criticised in some quarters for its omissions (W.P.(44)345), but I am disposed to think that this method will only be considered appropriate and justified in the case of the small group of leaders who are known to have been responsible for the conduct of the war, and who have at headquarters authorised, approved or acquiesced in the horrible atrocities that have been committed.
A formula which might meet the Prime Minister’s suggested views would be as follows:—

“The Moscow Tri-partite Declaration of November 1st, 1943, announced that the Allies intended to arrange for the trial and punishment [Page 93] of enemy war criminals who had already been captured or who fell into their hands, but the Moscow Declaration was stated to be made ‘without prejudice to the case of the major criminals, whose offences have no particular geographical localisation, and who will be punished by the joint decision of the Governments of the Allies’. The time has come to announce that among these major criminals are Hitler, Himmler, Goering, Goebbels and Eibbentrop, but the Allies reserve the right to add to their number. Upon any of these major criminals falling into Allied hands, the Allies will decide how they are to be disposed of, and the execution of this decision will be carried out immediately.”

  1. This paper was apparently shown to Roosevelt during the Quebec Conference. See a minute on the subject of war criminals which Roosevelt and Churchill approved at Quebec on September 15, 1944, post, p. 467. Cf. a draft message to Stalin on the same subject, post, p. 489.
  2. The War Cabinet papers referred to in this memorandum are not available in United States files.
  3. See Foreign Relations, 1943, vol. i, pp. 768769.
  4. Anthony Eden.