740.00116 European War/1193

The Secretary of State to the American Representative on the United Nations War Crimes Commission (Pell)

No. 2

Sir: With reference to your telegram of December 15, 1943 (the Embassy’s no. 8726)7 stating that it is important for you to have all materials on war crimes prepared by the War Department, there is transmitted herewith a memorandum prepared in the Office of the Judge Advocate General on the subject. The War Department, in transmitting the memorandum to this Department, noted that it is classified as confidential. It stated that there is also presently in preparation in the Office of the Judge Advocate General a memorandum on cases before military commissions in which the accused were charged with violation of the laws of war and put forward the defense that they acted pursuant to orders from superior officers. When a copy of this memorandum is received from the War Department, it will be transmitted to you.

Very truly yours,

For the Secretary of State:
Breckinridge Long

Memorandum Prepared in the Office of the Judge Advocate General, War Department, October 30, 19438

Subject: Trial of War Criminals.

By memorandum dated 1 October 1943, accompanied, for my information, by a copy of a study on this subject prepared by the Office of Strategic Services, dated 10 August 1943, you informed me that the Secretary of War directs that I make recommendations for guidance in any discussions involving the possible trial of war criminals by military tribunals; that my consideration be limited to trials involving enemy nationals; and that particular attention be paid to the following matters:
Authority to establish such tribunals.
Enumeration of war crimes.
Personnel of courts.
Procedure (pre-trial, trial, and review).
Authorized sentences.
Punishment (nature and place of execution).
In view of the comprehensive nature of this reference and your statement that the matter should be expedited, I submit herewith a preliminary memorandum on the matter, discussing the enumerated matters in the order stated.
Authority to establish such tribunals. From the point of view of the constitutional law of the United States the authority to establish military tribunals by the Army of the United States is derived by implication from various provisions of the Constitution, which implement the international law of war—the laws and customs of war (Ex parte Quirin, 317 U.S. 1, 25–28 (1942)). International law is the fundamental source of the authority, which would exist to its full extent even in the absence of relevant constitutional provisions (United States v. Curtiss-Wright Corp., 299 U.S. 304, 318 (1936); Dig. Op. JAG, 1912, pp. 1066–1067; Rules of Land Warfare, FM 27–10, par. 7; MCM, 1928, par. 1). Thus General Washington, before the adoption of the Constitution, established a counterpart of a military commission to try Major John André during the Revolution. This was done, not by virtue of any provision of the Constitution, which did not then exist, but directly under the authority of the laws and customs of war. The constitutional powers of the President as Commander-in-Chief and of Congress have been implemented by Congress in such wise as to authorize, by expression or by necessary implication, the trial of war criminals by general courts-martial, military commissions, and provost courts (A.W. 12, 15, 23, 24, 25, 26, 27, 32, 38, 46, 80, 81, 82, 115). In the Army of the United States military commissions have ordinarily been convened by the same officers as are authorized by Article of War 8 to convene courts-martial (Dig. Ops. JAG, 1912, p. 1070 [I–C–8a(d) (d) (1)];9 Winthrop, Military Law (1920 reprint) p. 835). In addition to national military tribunals, the use of international tribunals is authorized by international law.
Question of Territorial Limitations: Although it has in the past been thought that the power of military commissions to hear and decide offenses against the laws of war was limited to such offenses as were alleged to have been committed within the territorial limits of the command of the convening authority (see Winthrop, Military Law (1920 reprint), p. 836), no such territorial limitation exists. The laws of war, being a part of international law, are governed by relevant customary practices of states, which have solidified into law, together with the general principles of law recognized by civilized [Page 1268] nations. For present purposes, the pertinent law is the customary practice of military tribunals to take jurisdiction of offenses committed beyond particular territorial commands (e.g., case of Henry Wirz (1865) House Ex. Doc. No. 23, 40th Cong., 2d Sess.; case of T. E. Hogg, et. al. (1865), referred to in Winthrop p. 837; and cf. Ex parte Quirin, supra. Reflecting the same practice, Lieber wrote: “A prisoner of war remains answerable for his crimes committed against the captor’s army or people, committed before he was captured, and for which he has not been punished by his own authorities.” (G.O. 100, 24 April 1865, par. 59) Instead of being territorial, the validity of this aspect of jurisdiction is determined by physical custody of the accused, or lack of it.
Limitations as to Persons: From the point of view of international law, all persons, military and civilian, charged with having committed offenses directed against the United States or our cooperating cobelligerents in violation of the laws of war are subject to the jurisdiction of military tribunals (Articles of War 12 and 15; Ex parte Quirin, supra, at 27; Dig. Ops. JAG, 1912, p. 1067; Winthrop, p. 838). Constitutional guaranties play a somewhat indefinite role in relation to those war crimes which are committed in the United States, and limit pro tanto the broad international rule. Thus the Supreme Court emphasized in Ex parte Quirin, supra, that military commissions had jurisdiction only “within constitutional limitations”. Though the Court has not defined this term, some limits are suggested by a comparison of the facts of Ex parte Milligan, 4 Wall. 2 (1867), with those of the Quirin case, and with Articles of War 81 and 82. Within the meaning of that phrase (“within constitutional limitations”), the jurisdiction of United States military tribunals over offenses against the laws of war committed in the United States extends to citizens and other nationals of the United States as well as aliens (Ex parte Quirin, supra, at 45–16). Members of our own forces are usually tried by court-martial, rather than by military commission, for war crimes alleged to have been committed by them.
Limitations as to Subject Matter—Law Applicable Military tribunals in the trial of alleged war criminals, may apply:
General international treaties or conventions declaratory of the law of war, and particular treaties establishing rules of the law of war expressly recognized by the belligerent states;
International customs of war, as evidence of a general practice accepted as law;
Pertinent general principles of law, including criminal law, recognized by civilized nations;
Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of the law of war; and
Local law and military regulations and orders, during military occupation.
Limitations of Time: Military tribunals have jurisdiction of war criminals for offenses which take place both during time of actual hostilities and so long as a state of war continues. This includes the period of an armistice or military occupation, up to the effective date of a treaty of peace, and may extend beyond by treaty agreement.
Enumeration of War Crimes: A tentative, comprehensive, but not exhaustive, list of war crimes is attached hereto as Appendix A. In addition thereto attention is invited to the following Articles of War: 75, 78, 80, 81, and 82. No exhaustive list can be drawn up, inasmuch as some war crimes arise directly from violations of the broad general principles of the laws of war. This fact is important in view of the ingenuity shown by Nazi leaders in the treatment of the civilian population in countries occupied by them. The principles may be stated and illustrated as follows:
Outrages or unnecessary violence against persons or property, including action which amounts to a ruthless disregard of human life or its vital necessities, such as acts of brutality causing unnecessary suffering or suffering inflicted for spite or revenge;
deliberate deprivation of necessary food, shelter, or clothing beyond the proper military necessities;
cruelty generally;
acts of a treacherous or heinous nature;
acts of perfidy, including perfidious ruses;
acts or omissions causing direct and unnecessary bodily harm or such injury by calculated indirection;
dishonorable expedients, such as the degradation of persons;
wanton or unnecessary destruction or devastation of property by organized troops or marauders;
acts or omissions, recognized as crimes by all important systems of criminal law, which are committed in connection with the execution of the war.
It should be observed, however, that not all violations of treaty provisions concerning the laws of war are war crimes. An illustration will suffice: Article 6 of the Geneva Convention on Prisoners of War provides that, with certain exceptions, effects and objects of personal use of prisoners of war shall remain in their possession (FM 27–10, par. 79). During the transportation of prisoners of war or at other times, it may be necessary for the custodian of prisoners of war to store such objects. If, through the clear negligence of such a storekeeper, the property were lost or destroyed there might well be a violation of the treaty provision, but it would, in no sense, be a war crime.
Personnel of Courts: Lieber pointed out that the character of the courts which exercise jurisdiction under the laws of war “depends upon the local laws of each particular country” (G.O. 100, 24 April 1863, par. 13). It has been customary to try war criminals by military tribunals. In the United States, the personnel of military commissions and provost courts have usually been commissioned officers of the United States. There is, however, no legal objection to the use of qualified civilians or enlisted men (Winthrop, p. 835). Alleged German war criminals were tried by German civilian judges for offenses committed during World War I. The same point is implicit in paragraph 356 of Field Manual 27–10 of the Rules of Land Warfare, which states that no individual should be punished for a violation of the laws of war except by a military tribunal “or some other tribunal of competent jurisdiction”. A military tribunal with mixed inter-allied personnel may properly be established by the commanding officer of cooperating cobelligerent forces. Whether national or mixed international military tribunals are used to administer the laws of war is a question of policy only. The use of a national tribunal has the practical advantage that the members of such a tribunal are familiar with and may readily follow the established military law and procedure of their own country; whereas, before an international tribunal may function, during its sessions, and while its sentences are under execution, many novel, difficult, and time-consuming questions will arise and have to be solved as to its appointment, composition, procedure, and powers.
No particular number of members of a military tribunal is required for the trial of war crimes. In United States practice the number has varied from three to thirteen. Five was the usual number for military commissions established during the Civil War. Seven members were appointed to the commission which tried the saboteurs in 1942.
No law member is required to sit on a military tribunal, and no officer was so designated in the recent saboteur trial, but the appointment of a law member would be lawful and may be desirable. The prosecuting officer need not be a Judge Advocate or officer of the Army. The Attorney General, a civilian, was a member of the “prosecution” in the saboteur case. John A. Bingham, a civilian, was introduced as an “Assistant or Special Judge Advocate” in the trial, by military commission, of the conspirators in the assassination of President Lincoln (Pitman, The Assassination of President Lincoln and the Trial of the Conspirators, (1865) p. 18).
Procedure (pre-trial, trial, and review): A proposed code of procedure for trial by military commission is presently being prepared by this office. It will be submitted with the full reply of this office to the reference in this case or as soon thereafter as it is completed. In the meantime your attention is invited to the following [Page 1271] Articles of War, as they relate to the procedure of military tribunals designed to apply the laws of war: 24, 25, 26, 27, 38, 46, 115. See also Manual for Courts-Martial (1928), par. 2. With regard to possible variations in respect of the admissibility of evidence, the number of votes required to convict, and the mode of review, the following excerpt, from the order of the President establishing the military commission for the trial of the saboteurs, is informative:

“The Commission shall have power to and shall, as occasion requires, make such rules for the conduct of the proceedings, consistent with the powers of Military Commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it. Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man. The concurrence of at least two-thirds of the Members of the Commission present shall be necessary for a conviction or sentence. The record of the trial including any judgment or sentence shall be transmitted directly to me for my action thereon.” (7 F.R. 5103)

During trial, pleas in bar on the ground of superior orders and that alleged offenses were committed as a matter of reprisal may be expected. The nature of these defenses, which is fundamental, will be dealt with comprehensively in the full memorandum in reply to this reference. In the meantime your attention is invited to a discussion of the same problem, though specifically related to martial law, set forth in Chapter IX of Wiener, A Practical Manual of Martial Law.
Authorized Sentences: The law on this point is well summed up as follows in the Field Manual on the Rules of Land Warfare: “All war crimes are subject to the death penalty, although a lesser penalty may be imposed. The punishment should be deterrent, and in imposing a sentence of imprisonment it is not necessary to take into consideration the end of the war, which does not necessarily limit the imprisonment to be imposed.” (FM 27–10, par. 357; to the same effect see British Manual (Ch. 14) par. 450 and G.O. 100, 24 April 1863, par. 44). The following is a good statement of authorized sentences, summarizing United States practice:

“Except in a case of a spy whose sentence must be death (sec. 1343, R.S.), the discretion of the military commission in the imposition of sentence is not in terms restricted or defined by the existing law. R. 7, 62, Jan., 1864. The sentence, however, should award a criminal punishment; a judgment of debt or damages, on conviction of a criminal offense, would be irregular and property disapproved. R. 3,190, July, 1863. Where a military commission was acting under the reconstruction laws, practically as a substitute for a state criminal court, held that it should, in general, in determining the proper measure of punishment to be inflicted, take into consideration the State statute law, if any, prescribing the penalty or penalties for the offense. R. [Page 1272] 29,406, Nov. 1869; C. 12397, Apr. 10, 1902” (Dig. Ops. JAG, 1912, p. 1072).

While general courts-martial may, under A.W. 12, try any person subject to the laws of war, they may not give the death penalty except in cases where the Articles of War specifically so provide (A.W. 43).
Punishment (nature and place of execution): There are no limits on the nature of the punishment, except that they must not be of a cruel or unusual nature. Banishment, however, would not be an unusual punishment for a war crime. A death sentence may be executed by means of shooting, hanging, electrocution, or other means not involving unnecessary cruelty. For sentences less than death, the choice of a place of incarceration is not limited, except that such a place must comply with the minimum international standards for such institutions. For types of sentences and punishments which have been imposed, see Winthrop, pp. 842–844.
As noted in paragraph 2 hereof, one or more supplementary memoranda will hereafter be submitted to you.
Thomas H. Green

Brigadier General, U.S. Army Acting The Judge Advocate General.

Appendix A

Tentative List of War Crimes

  • Use of civilian clothing by troops to conceal their military character during battle.
  • Disguised poisoning of wells or streams.
  • Making use of poisoned or otherwise forbidden arms or ammunition, such as explosive or expanding bullets.
  • Firing on the flag of truce.
  • Misuses or abuse of the flag of truce.
  • Refusal of quarter, or directions to give no quarter.
  • Treacherous request for quarter.
  • Deliberate destruction of religious, charitable, educational, and historic buildings and monuments.
  • Deliberate firing on or bombardment of undefended places.
  • Maltreatment of dead bodies on the battlefield.
  • Employment of prisoners of war on unauthorized work.
  • Unnecessarily harsh treatment of women and children.
  • Abduction of children.
  • Abduction of girls and women with the object of prostitution.
  • Mass deportation, unrelated to bona fide military necessity.
  • Systematic terrorism.
  • Attempts to denationalize the inhabitants of occupied territory.
  • Deportation of civil population in occupied territories and forced labor.
  • Compulsory enlistment of civilians in enemy forces, or of soldiers among the inhabitants of occupied territory, or their use in dangerous or unhealthful war work.
  • Forced labor of civilians in connection with the military operations of the enemy, such as use of civilians as a screen for troops, or for clearing mine fields or removing mines, or for any other work immediately connected with actual fighting.
  • Causing death by wilful starvation of populations by excessive removal of foodstuffs or by depriving persons of shelter, clothing or other means of sustenance.
  • Killing or ill-treatment of wounded or prisoners of war.
  • Causing death of civilians or prisoners of war by compelling the sick and wounded to work.
  • Inhuman internment or unnecessary segregation.
  • Torture of troops or civilians in any form.
  • Ill-treatment of inhabitants in occupied territory.
  • Wanton devastation or destruction of property.
  • Pillage and plunder.
  • Confiscation of property.
  • Imposition of collective penalties, except as legitimate reprisal.
  • Exaction of illegitimate or of exhorbitant contributions and requisitions.
  • Breach of parole by prisoners of war.
  • Attack on or destruction of hospital ships.
  • Causing death of survivors by giving orders destined to prevent the saving of their lives, when such saving was possible.
  • Destruction of relief ships.
  • Wilful or reckless bombardment of hospitals and other privileged buildings.
  • Improper use of privileged buildings for military purposes.
  • Misuse of the Red Cross flag and emblem and other violations of the Geneva Convention of a criminal nature, including failure to respect the status of protected personnel.
  • Destruction of merchant ships and passenger vessels without warning and without provision for the safety of passengers or crew.
  • Destruction of fishing boats.
  • Omission of a superior officer to prevent war crimes when he is aware of their commission and is in a position to prevent them.
  • Individuals engaging in guerrilla warfare, sabotage, and spying are subject to the death penalty.
  • The laying of delayed-action mines, at the time of retreat, in places which will presumptively be used largely by the civilian population.
  • Murder, rape, and other felonies are also triable as war crimes.
  1. Not printed.
  2. Filed separately under 740.00116 European War/1227.
  3. Brackets appear in the original.