740.00116 European War 1839/1301
The British Embassy to the
Department of State
Aide-Mémoire
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.
Washington
, 3 February,
1944.
[Page 1277]
[Enclosure]
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.
- 2.
- 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.
- 3.
- 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.
- 4.
- 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.
