740.00116 European War/1344

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

No. 14144

Sir: I have the honor to report that at the meeting of the War Crimes Commission’s Committee on Means of Enforcement, held on Friday, February 25, the subject of an international enforcement organization was taken up in general debate.

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Lord Atkin, a British Law Lord representing Australia, said that he considered a court to be necessary to provide jurisdiction over cases which cannot be appropriately dealt with by national tribunals, and especially over Germans, for crimes committed against Jews, etc. He suggested as a subject for future discussion the questions of what law such an organization will administer, what crimes it will try and what will be its constitution. He thinks that all trials should be conducted by legal standards and suggested a group of trained judges with some lay members, especially soldiers. He also suggested that any tribunal should have on its bench a judge of the offended country. It would be manifest that a single agency would not be sufficient to try all cases and that the judicial body must be divided into separate groups. He was definitely opposed to juries.

We must also decide on how judges are to be selected. The question of evidence, he considered, should be left to the third committee of the War Crimes Commission on Legal Questions.

Ambassador Colban, of Norway, said that the Norwegian officials of justice believe that a court of some sort will be necessary.

General de Baer, representing Belgium, said that the Belgian Minister of Justice also believes in the necessity of a court. He mentioned that the court should have jurisdiction over those accused by one or more nations; over crimes committed in Germany and the crimes against stateless persons, or those persecuted for religion or race. He also advocated the division of the court into groups and opposed the idea of a jury. His most novel suggestion was that the court should have jurisdiction over nationals of the United Nations if their national government for any reason preferred that they should be so tried. He suggested the possibility in Belgium of political repercussions among the Flemish element if too many of them came before Belgian courts.

Mr. Ecer, of Czechoslovakia, believed that the Czech Minister wanted a court. He mentioned that it had been suggested that the more important of the members of the Axis Government should be punished by executive act and not tried in a court. He believed that the court should try all types of war criminals, irrespective of rank, and expressed the fear that unless adequate machinery of justice were provided the result would be the universal application of indiscriminate lynch law.

Mr. Gros, of France, said that we must have a court to cover gaps in national laws. Some crimes on the list of war crimes suggested sometime ago to the Commission, are not, he said, punishable under French law. He also thought we were not attempting to set up an international criminal court but a special court for the trial of crimes arising from the war, which need not be a permanent organization.

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Dr. de Moor, representing the Netherlands, said that the Dutch Foreign Ministry believes that a court is necessary. He thought that it should have limited jurisdiction and be organized primarily to fill gaps in national legislation and decide questions of a dual or concurrent jurisdiction. He wanted the punishable crimes to be accurately defined on the list of war crimes. He said that plundering was the only one that was clearly covered by Dutch law, although about twenty were indirectly covered. For example, massacre can be tried as murder. He also thought that we should have a big blanket clause to cover new offenses. He feared the propaganda effect of a public trial of Hitler, and other more important members of the Axis Government. Ambassador Colban here interposed an iteration of the suggestion of Mr. Gros, that the court should be temporary and ad hoc.

Mr. Preuss, the last to speak, made a masterly summing up of the situation. He was much impressed by the evident unity on important matters expressed by members of the Committee, and was convinced that a court is necessary. He feared that in certain countries there would be a rapid softening up of feeling after the war which would make trial by national courts exclusively either a farce or extremely un-uniform. He reminded the Committee that in 1919 the Commissioners of the United States had desired a joint Military Commission, and had not opposed the establishment of judicial machinery by the Allied and Associated Powers. He believed that general public opinion in the United States was in favor of trial by an international court and was opposed to merely political action. He suggested the proposal prepared by the United States Government25 to cover gaps in the legislation of the various nations. He pointed out that persons extradited from neutral countries should be exclusively tried by the international court, basing this suggestion on the perfectly tenable point that neutral governments would be much more likely to surrender refugees to an international organization than to national courts. He suggested that no list of crimes could be exhaustive, and that there was need for an omnibus clause to cover new manifestations of war crimes. He continued with the thought that there should be a fairly large number of judges which could be increased and could be divided into chambers, and proposed that each country should nominate three judges from whom the court would be selected.

Dr. Liang, speaking for the Chinese Representative, believed that a court would be necessary.

It will be noted that I, as Chairman of the Committee, was the only member who did not take an active part in the discussion. I confined myself to directing the course of debate and occasional suggestions, which prevented it from leaving the subject.

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It must be realized that all through this discussion the members of the Committee have used the word “international court” simply as a convenient phrase referring to some sort of an organization for the trial of those accused of war crimes. No opinion has crystallized either in favor or against a body composed exclusively of jurists or some sort of a military tribunal. Most of the Commission seem to prefer a combination of both. My own opinion is that there must be a judicial body, however composed, preferably of jurists, soldiers and laymen. The reason I suggest laymen on such a body is that they would be less likely to consider the immediate case before them quite alone and regardless of future consequences to the peace of the world. Such a body must recognize itself to be primarily a part of the machinery organized to make the outbreak of future wars less probable. For this reason I am opposed to the idea of direct political action in the case of the more important members of the Axis Government.


Herbert Pell
  1. Not found in Department files; but see Document II/11, 14 April, p. 1299.