Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

740.00119 EAC/9–544

Memorandum by the Legal Adviser (Hackworth) to the Chief of the Division of Central European Affairs (Riddleberger)

[Washington,] October 17, 1944.

Mr. Riddleberger: I have received your memorandum⁶⁵ to which is attached a copy of despatch no. 17881⁶⁶ (“European Advisory Commission: Policy with respect to enemy diplomatic and consular property”).

It is understood that the policy to be followed in the matter relates only to the post-surrender period. The suggested policy to be followed in the pre-surrender period was outlined in a letter from Admiral Leahy to the Secretary of State of September 26, 1944, in which the concurrence of the Department to the adoption of that policy was requested. Such concurrence was furnished in a letter of September 29, 1944 to Admiral Leahy.⁶⁷

It would seem that the measures to be taken must depend primarily upon the terms of the surrender instruments. There would not appear to be any rule of international law which would prohibit the inclusion in the surrender terms, by specific language or necessary implication, of an obligation to turn over to the United Nations or to the representatives of such nations, diplomatic and consular archives wheresoever located, which would include the repatriation of archives located abroad. In the alternative, the surrender instruments could obligate the enemy states to render the archives available for inspection, even though they are not physically placed in the custody of the representatives of the United Nations. Such a power could be made broad enough to authorize the examination of diplomatic and consular archives in neutral countries, a matter that will be discussed more fully in the concluding part of this memorandum.

The record indicates that surrender terms have been imposed upon and accepted by Italy⁶⁸ and Rumania;⁶⁹ that the terms of surrender to be imposed upon Germany⁷⁰ have been drafted in final form by the European Advisory Commission and that no agreement has as yet been reached as to the terms to be imposed upon Bulgaria,^* Hungary,^* and Japan.⁷¹

In the case of Italy, Article 35 of the long surrender terms provides:

“The Italian Government will supply all information and provide all documents required by the United Nations. There shall be no destruction or concealment of archives, records, plans or any other documents or information.”

The above language is somewhat ambiguous, but its intent and tenor seem to be that the Italian Government should retain control over its archives, and should supply individual documents to the United Nations. As a practical matter, since Italy is a co-belligerent, the likelihood of the United Nations requiring or demanding complete possession of the Italian archives would appear to be remote.

The Rumanian armistice terms contain no provision with regard to the custody of archives or the furnishing of information, which leads to the inference that the Rumanian Government is to keep control and custody of its archives wherever located, including, of course, diplomatic and consular archives. Nevertheless, it is fair to assume that if the United Nations require information with regard to any matter covered by the armistice terms, as, for example, war crimes (Article 14 of the Armistice provides that: “The Rumanian Government and High Command undertake to collaborate with the Allied (Soviet) High Command in the apprehension and trial of persons accused of war crimes”), the Rumanian Government would be obligated to furnish that information.

In the case of Germany, the surrender terms have not as yet been imposed on that country. However, the terms have been agreed upon by representatives of the United States, the United Kingdom, and the Soviet Union, so it is unlikely that the terms as they will be imposed upon Germany wall differ from the proposed terms now embodied in the definitive draft.

As indicated in the Embassy’s despatch no. 17881 of September 5, 1944, Articles 5b (ii), 7, 8, and 10 of the surrender terms provide authority to take over German information and records in Germany. However, these clauses relate primarily to the furnishing of information of a military nature and do not mention diplomatic and consular archives specifically. Nevertheless, by Article 12 of the surrender terms the United Kingdom, the United States of America, and the Union of Soviet Socialist Republics are given very broad powers over Germany. It would seem that a directive issued under authority of Article 12 calling upon the German authority to repatriate their diplomatic and consular archives and turn them over to the Allied representatives would be entirely consonant with the meaning and purport of that clause. In the alternative, a directive obligating the German authorities to agree to an examination of their archives wheresoever situated would seem to be equally permissive, though such a procedure might encounter some of the difficulties noted below.

In view of the fact that diplomatic and consular archives of an enemy country located outside that country present a more difficult problem, that such archives may contain information of extreme value to the military occupant and the Allied Powers, and that countries in which these archives are located, particularly neutral countries and protecting powers in countries of the Allies, may well decline to turn them over or permit their inspection by the Allied representatives in the absence of specific authorization from the enemy country, it would seem that this matter deserves special consideration.

Regardless of whether it may be found to be desirable to examine such archives, it is suggested that the terms of surrender should make this possible. They might provide that all official archives and records of the enemy country wherever located, whether within or without that country, shall remain intact and shall be available to the Allied representatives upon request directed to the custodian of such archives and records.

It is not suggested that the terms of surrender already agreed upon should be reopened for this purpose but rather that this should be borne in mind with respect to terms not already agreed upon. In the case of Germany it may be possible, as already indicated, to accomplish the purpose under Article 12 of the terms of surrender providing for the issuance by the Allied representatives of proclamations, orders, ordinances and instructions laying down additional requirements concerning political, administrative, economic, financial, military and other matters arising from the surrender of Germany. Whether neutral countries would honor such proclamations, orders, etc., so far as concerns diplomatic and consular records in those countries, cannot be foreseen.

It is to be supposed that records of value in neutral countries and in the satellite countries will have been destroyed or removed before the departure of the enemy diplomatic and consular officers but this may not always be true. Consequently, provisions such as have been indicated above might lend something of value to the Allied Powers, particularly as to the over-all aims and purposes of the enemy countries, war crimes, and kindred subjects. In any event the matter would seem to be worthy of consideration.

G[reen] H. H[ackworth]

65. Not printed.
66. Dated September 5, p. 1493.
67. See footnote 62, above.
68. For text of the Italian Armistice signed September 3, 1943, see Department of State, United States and Italy, 1936–1946: Documentary Record, p. 51; for text of Additional Conditions of the Armistice with Italy, signed September 29, 1943, see ibid., p. 55.
69. For text of the Rumanian Armistice signed at Moscow on September 13 (as of September 12), 1944, see Department of State Executive Agreement Series No. 490, or 59 Stat. (pt. 2) 1712; for correspondence relating to the Rumanian Armistice, see vol. iv, pp. 133 ff.
70. For text of the Draft Instrument for the Unconditional Surrender of Germany, see p. 256.
71. The proposed Bulgarian and Hungarian terms of surrender are quite similar to the present Rumanian terms, discussed later. [Footnote in the original. For text of the Bulgarian Armistice signed at Moscow on October 28, 1944, see Executive Agreement Series, No. 437, or 58 Stat. (pt. 2) 1498; for correspondence, see vol. iii, pp. 300 ff. For text of the Hungarian Armistice signed at Moscow on January 20, 1945, see Executive Agreement Series No. 456, or 59 Stat. (pt. 2) 1321; for correspondence, see vol. iii, pp. 847 ff.]
72. The proposed Bulgarian and Hungarian terms of surrender are quite similar to the present Rumanian terms, discussed later. [Footnote in the original. For text of the Bulgarian Armistice signed at Moscow on October 28, 1944, see Executive Agreement Series, No. 437, or 58 Stat. (pt. 2) 1498; for correspondence, see vol. iii, pp. 300 ff. For text of the Hungarian Armistice signed at Moscow on January 20, 1945, see Executive Agreement Series No. 456, or 59 Stat. (pt. 2) 1321; for correspondence, see vol. iii, pp. 847 ff.]
71. For text of the “Terms between the United States of America and the Other Allied Powers and Japan, signed at Tokyo Bay, September 2, 1945,” see Executive Agreement Series No. 493, or 59 Stat. (pt. 2) 1733.