740.00116 European War 1939/1301

The Department of State to the British Embassy

Memorandum

The British Embassy’s Aide-mémoire of February 3, 1944 raised the question 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 the Investigation of War Crimes. To the Aide-mémoire was attached a paraphrase of a telegram from the British Foreign Office on the subject.

The War and Navy Departments are of the opinion, and this Department agrees, that since under the laws of the United States the tribunals of the Army and Navy are the only ones empowered to try cases which involve violations of the laws of war committed in overseas theaters of operations, their jurisdiction should not be limited, and that the military commanders should retain the power to try and punish at their discretion all offenders subject to their jurisdiction. Should an international tribunal later be agreed upon [Page 1290]to try certain classes of war criminals who are also subject to military jurisdiction, appropriate instructions can always be issued by superior military authority that cases involving persons falling within such classes be not tried before military tribunals.

The second paragraph of the Aide-mémoire refers to the question of a procedure for bringing cases and evidence related thereto to the United Nations Commission for the Investigation of War Crimes and the suggestion that Circular APO 512 issued by Allied Force Headquarters at Algiers on November 27, 194331 be used as a model. The Department has this matter under consideration and another communication will be addressed to the Embassy at a later date on this subject.

It is the present view of the Department that as regards cases tried by the military courts of the United States, it should be sufficient for the purposes of the Commission to file with it a brief statement of the pertinent facts along the lines specified in the paragraph numbered 1 of document C 7 (1) adopted by the Commission at its meeting of February 22, 1944. A copy of this paragraph is enclosed.32 Such a procedure would avoid the unnecessary work involved in communicating all the evidence to the Commission.