740.00116 European War 1939/1315
The Secretary of State to the American Representative on the United Nations War Crimes Commission (Pell)
Sir: Reference is made to your despatch no. 13754 of February 8, 194426 requesting instructions on certain questions which you think are likely to arise in the forthcoming discussions in the War Crimes Commission.
- You raise the question as to the earliest date on which a war crime could have been committed. On this point the Department is willing that you refer for purposes of discussion to the view expressed by the Legal Subcommittee as set forth in Policy Summary, Document H2016, May 28, 1943,27 cited in your despatch under reference. As indicated in the Department’s instruction 3514 dated December 22, 1943,26 this document and the others transmitted to you on that date do not necessarily represent the final view of the Department. It is suggested that in the determination of the date as of which war crimes shall be made punishable the Commission might desire to consider the possibility of adopting different dates for the European and Far Eastern theaters of war. Perhaps the date suggested in the Policy Summary might be considered for the Far Eastern Theater and September 1, 1939 be considered for the war in Europe.
- You suggest that discussions will probably be held regarding the apprehension of war criminals demanded for trial, a problem which will include the question of extradition of war criminals from neutral countries. As you are aware, the British, Soviet and United States Governments last summer approached the governments of the principal neutral states on the question of asylum for war criminals.28 A summary of the replies received was enclosed in the Department’s instruction no. 1 dated January 15, 1944.26 The practical problem of the apprehension in and extradition from neutral countries of war [Page 1287]criminals will of course be determined by the attitude of the governments of those countries at the end of the war. Extradition treaties usually except from their provisions offenses denominated as political in character. Some of the countries may claim that war crimes fall within this category. However, the matter is receiving consideration.
- The third question raised in your despatch relates to the tribunal before which war criminals are to be tried. The Department’s tentative views on this subject have been indicated in its instruction no. 6 dated February 15, 1944.
- In regard to your question as to the rule to be applied in the case of a person who is demanded by two countries, it appears to be inadvisable to lay down a hard and fast rule. Generally speaking, it would seem that a criminal should be surrendered to the country making the more serious charge. The question of the available evidence would have to be taken into consideration, since it is conceivable that the country making the more serious charge would lack the evidence on which to base a prosecution.
- You inquire whether acts by German authorities against German nationals actively opposed to the existing German Government are to be considered as war crimes. The Department is of the opinion that to assume to punish officials of enemy governments for action taken against their own nationals pursuant to their own laws would constitute an assumption of jurisdiction probably unwarranted under international law. The Moscow Declaration refers specifically to “atrocities, massacres and cold-blooded mass executions which are being perpetrated by the Hitlerite forces in the many countries they have overrun”.
- Finally you call attention to the problem of the potentially large number of war criminals, pointing out that the people of the occupied countries will not be satisfied with the trial of only a few “supreme criminals”, as indicated by Mr. Terje Wold, the Norwegian Minister of Justice. The number of criminals brought to trial presumably will be dependent on the nature of the evidence assembled and the possibility of preparing individual cases.
Very truly yours,