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

740.00116 European War 1939/1257

The British Embassy to the Department of State ⁸

Paraphrase of a Telegram from the Foreign Office, Dated January 11th, 1944

We agree that we should not allow ourselves to be drawn by German provocation into friction with the Russians. We also agree that, while publicity for the present should be played down, the position will have to be reconsidered if the Germans proceed to trials.⁹

2. We have been considering whether any public statement could usefully be issued, but have reached the conclusion that, short of expressly abandoning our right to try German war criminals, there is nothing we could say that would not involve the danger of driving the Germans who appear to be still hesitating into a position from which they might find it difficult to withdraw. In reaching this conclusion, we have been influenced by the fact that under the Geneva Convention we cannot object to trials in Germany provided they are properly conducted.

3. In this latter connexion position is that the Geneva Convention, to which His Majesty’s Government, United States Government and the German Government but not the Soviet Government are parties, does not prohibit the trial of prisoners of war for any war crimes they may have committed. What it does is to lay down certain procedures and provisions which must be applied, specific obligation to give due notification through the Protecting Power of trial and of the nature of the offence charged and not to carry out any death sentence until three months after the sentence has been communicated to the Protecting Power.

4. The United States Embassy in London have brought to our notice instructions telegraphed by the State Department to the United States Minister at Berne at [on] December 24th¹⁰ in which he was authorized to assure the Swiss Government that the United States Government are not proceeding against German prisoners of war along lines similar to reports of German intentions but are observing strictly the provisions of the Geneva Convention. While the State Department no doubt merely have in mind the point that bombardment of enemy towns should not be treated as a war crime, there seems to be some danger that these instructions might be interpreted as implying that the United States Government regard any trial of prisoners of war as incompatible with strict observance of Convention and might therefore give rise to misunderstanding.

Washington , 15 January, 1944.

8. Transmitted in a letter of January 15, 1944, from Mr. Paul Gore-Booth, Second Secretary of the British Embassy, to Mr. Bernard Gufler, Assistant Chief, Special War Problems Division.
9. i.e., trials of British and American airmen.
10. Telegram 3222, December 24, 1943, to Bern, Foreign Relations, 1943, vol. i, p. 434.