740.00116 European War/1299
The Acting Secretary of State to the American Representative on the United Nations War Grimes Commission (Pell)
Sir: Reference is made to your despatches nos. 13399 and 13419 of January 20 and 21,16 respectively, regarding the matter of allowing the Commission to perform the duties which it was originally thought might be performed by a Technical Committee and the nature of the evidence to be submitted to tribunals before which war criminals will be tried.
The Department has sent you a telegram17 stating that it has no objection to allowing the Commission to make recommendations regarding the nature of the tribunals and procedure to be followed, etc., which the British Government originally suggested should be left to a Technical Committee, provided the other Governments think that this would be a preferable procedure. The Department calls attention to the fact, however, that, as previously stated, the proposal was made by the British Government, and it would seem that if that Government desires to depart from that proposal it should make a statement in the same manner in which the proposal was made rather than have the matter discussed repeatedly by the Commission, as seems to have been the situation. However, the Department has no desire to stand on formalities but does desire that there should be a definite and clear understanding before the duties of the Commission are enlarged.
The Department does not consider that the nature of the evidence to be collected and submitted will be determined by the nature of the tribunals which may be called upon to consider it. While there may be some variation between tribunals as to the admissibility and sufficiency of evidence, it should be the purpose of the Commission—whose primary duty it is to make investigations and assemble the evidence—to obtain the best possible evidence under all the circumstances in each case, and this without regard to the question as to the tribunal which may eventually be called upon to appraise the evidence.
There has been an exchange of communications between you and the Department regarding the possible use by you of a draft agreement, prepared in the Department, regarding the punishment of war criminals,18 such possible use being premised upon the further possibility [Page 1279]that the Commission might be given the jurisdiction originally intended for the proposed Technical Committee. If such jurisdiction is conferred upon the Commission, you may cautiously use the draft in connection with discussions of the subject, on the understanding, as stated in the Department’s telegram no. 8229 of December 30, 1943,19 that the draft has not had the approval of the Department and has not been passed upon by other than the Committee which prepared it. It will be noted that the cardinal feature of the draft is an international tribunal to be composed of civilian jurists assisted by trial courts. In view of trends of thought which have since developed, and particularly in view of the Moscow Declaration,20 the Department is of the opinion that a simpler and more expeditious method of handling most of the cases may well be devised. It must be borne in mind that if these trials are not brought to a conclusion within a short period following the close of the war there will be every disposition to allow them to fade out with the lapse of time and the net result may be no more praiseworthy than that which followed the close of the first World War.
The Department’s present tentative view as to the procedure to be considered is as follows:
- As many cases as possible, consistent with orderly procedure, should be disposed of by the military or civil tribunals of the respective countries against whose nationals the offenses were committed;
- Where offenses have been committed against nationals of different countries consideration should be given to the possibility of mixed military tribunals, that is to say, if an offender has committed offenses against nationals of two or more of the United Nations, he might be tried before a military tribunal on which each nation would be represented. At this point you might well consider the memorandum prepared by the Office of the Judge Advocate General, which was transmitted to you with the Department’s instruction no. 2 of January 15, 1944;
- As a possible alternative to the procedure just suggested in paragraph 2, or possibly in addition to that procedure, consideration might be given to an international tribunal composed of civilian jurists to try mixed cases, i.e., those involving offenses against nationals of more than one country, or cases in which higher officials are charged with ultimate responsibility for policies and practices executed by subordinates.
It is to be borne in mind that while a tribunal of the character last-mentioned might in the long run command greater respect, it is likely to be more deliberate in its operations and hence lend itself in greater measure to dilatory tactics which would undoubtedly be resorted to by accused persons and their counsel. Here lies the danger, referred to above, of prolonging trials until the general interest in [Page 1280]the administration of international justice will have subsided and the culprits will have all the advantages resulting from a lapse of time.
These are but rough suggestions submitted for your guidance in order that you may know that the draft on the punishment of war criminals, referred to above, is not to be considered as the last word in the Department’s thinking.
Very truly yours,
- Neither printed; despatch 13390 was a confirmation of telegram 514, January 19, p. 1274; despatch No. 13419 transmitted the minutes of the January 18 meeting.↩
- Telegram 1077, February 11, to London, not printed.↩
- Not found in Department files; but see Document 11/11, 14 April 1944: Draft Convention on the Trial and Punishment of War Criminals, p. 1299.↩
- Foreign Relations, 1943, vol. i, p. 435.↩
- Declaration of German Atrocities, ibid., p. 768.↩