740.00116 European War 1839/1301

The British Embassy to the Department of State


War Criminals

His Majesty’s Government in the United Kingdom have been considering the question of the definition of the distinction between war crimes to be dealt with by summary military jurisdiction by commanders in the field and war crimes to be dealt with by the machinery of the United Nations Commission for Investigation of War Crimes. A paraphrase of a telegram from the Foreign Office on this subject is attached.

2. The Foreign Office have also had under consideration the question of a procedure for bringing cases and evidence related thereto to the Commission, and the suggestion has been made that Circular APO 512 issued by Allied Force Headquarters, Algiers on November 27th, 1943,15 might provide a useful model for this purpose.

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Paraphrase of Telegram from the Foreign Office

We think it would be desirable to seek agreement with the United States authorities on the procedure for dealing with captured war criminals. The British Chiefs of Staff agree with us that an early attempt should be made to coordinate the British and American policy in this matter with a view to the issuing of common instructions to all commanders in British, American and Anglo-American theatre of operations to ensure that as far as possible the same principles are followed everywhere.

In our view the crux of the matter is to decide where a distinction should be drawn between crimes to be dealt with by summary military jurisdiction by commanders in the field on the one hand, and crimes to be dealt with by the machinery of the United Nations Commission for the investigation of war crimes on the other. It seems to us that this distinction should be drawn between war crimes committed in the course of operations which the commander is actually conducting and those not so committed. In the first case every commander possesses the right to try by appropriate military tribunal and punish on the spot such offences committed against his command. There can be no question of depriving commanders of the use of this right and we do not think it can in any way be considered to impinge upon the procedure of the United Nations Commission. In such cases the necessary evidence would presumably be available on the spot, and there is no need to refer cases to the Commission on this ground; the objective being speedy trial and punishment.
In cases where evidence was in no way connected with operations which the commander is conducting, and where his only concern arises from the fact that the accused happens to have fallen into his hands, it is probable that the necessary evidence would not be available on the spot. There would therefore inevitably be delay and there would seem no reason why such cases should not go before the Commission in the ordinary way.
An example may illustrate the distinction. If a commander captured a German who had committed offences against prisoners of war a short time before or during operations he would be tried on the spot. If, however, the German were accused of committing such offences a considerable time before, e.g. at a prison camp remote from the scene of operations the details of the case would be reported to the Commission in the normal way.