Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

740.00116 European War 1939/1416

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

No. 15255

London , April 26, 1944.
[Received May 3.]

Sir: I have the honor to report that at the meeting of the War Crimes Commission held on Tuesday, April 25, it was decided to discuss at the next meeting of the Commission the enclosed proposals of General de Baer, representative of the Belgium Government. I should be obliged if the Department would give me its opinion of them.

Respectfully,

Herbert Pell

[Enclosure 1]

Document No. C.12, 21 April, 1944: Extension of the Commission’s Competence to War Crimes Not Committed Against United Nations Nationals

Proposal by the Chairman of Committee I

1. We have all been shocked by the deportations and shootings of hostages which have been carried out by the Nazis in neutral, co-belligerent, or enemy countries such as Denmark, Hungary, Roumania, Italy, etc. The fact that these people were the victims of Nazi measures goes to prove that they acted against the Germans; in all probability their activity was directed towards helping the Allies. Again, on March 27th, 320 Italians were shot as hostages because 32 Germans had been killed in Rome on the 23rd. Obviously, it is a German General who has signed the order to shoot these innocent people, and his name will be disclosed sooner or later. There is little doubt that this man should be considered as a war criminal.^*

The question then arises by what body measures for the punishment of these crimes will be designed. It is impracticable, for obvious reasons, to include representatives of enemy countries and even of “co-belligerents” in the War Crimes Commission. No National Office will bring these cases before our Commission, and therefore no voice will be raised to demand punishment for the guilty.

2. Some of the principal criminals have signed Orders or Decrees which are in themselves, criminal, but, because they have not acted within the territory of any one of the United Nations, no National Office will investigate their case. A study of the documentation available points out that there may be some possibility of indicting some of these persons for measures which they have taken in Germany. (E.g. Ministers, Chief of Gestapo, Generals who have signed orders or decrees allowing crimes to be committed in occupied countries.)

It is therefore proposed:

That any member of the War Crimes Commission shall be entitled to bring before Committee I the case of any person accused of a war crime irrespective of the nationality of the victim or the place where the crime was committed.

N.B.—It is needless to say that the War Crimes Commission will be entitled to reject any case submitted in this way.

Example:

Name of accused:	General von Hanneken.
Rank:	C. in C. German Forces of Occupation in Denmark.
Date of crime:	August to December 1943.
Charges:	(1) Murder, systematic terrorism,
	(2) Deportation of civilians,
	(3) Exactment of illegitimate contributions.

Short Statement of Facts

About August 30th, 1943, General von Hanneken took over complete control of Denmark, and assumed full powers, including the right to inflict all forms of punishment. He decided that offences such as sabotage would be tried by German Courts-Martial with death penalty provided. The system of hostages was also introduced. The order is signed: “Hanneken” Pursuant to these measures:

1. Executions took place among which on November 22nd two Danish labourers were executed by the Germans, and on December 3rd five Danes were executed. Notices of the execution giving the names of the victims were posted and appeared in the Press. In respect of these, Hanneken himself approved the execution by refusing to grant pardon;

2. Deportations were carried out: on October 1st one thousand Gestapo men rounded up Jews in Copenhagen: 1600 Jews were arrested, and on October 11th two (or perhaps three) deportation ships had already left Copenhagen for an unknown destination;

3. On December 5th Hanneken imposed upon the city of Copenhagen a fine of 2 million Kroner for the shooting of a German soldier. The order was posted on public buildings and published in the Press; it is signed: “Hanneken.”

[Enclosure 2]

Document No. C.14, 25 April, 1944: Proposal by the Chairman of Committee I

After an existence of 5 months during which the Commission has been actively engaged in its work—the main body and its divisions sometimes holding as many as five meetings a week—and during which Committee I has been formed with the specific object of “investigation” which was originally the purpose of the Commission itself, some facts appear and it is possible to draw some provisional conclusions.

The facts are the following:

1. The cases which have been brought by the National Offices to the Commission are comparatively few;

2. Most of the cases brought are relatively unimportant; they do not concern persons in a high position of responsibility or crimes of an outstandingly sensational nature;

3. The tempo at which the cases are being brought does not entourage us to hope that, in the near future, the Commission will be in a position to deal with a large number of cases. All this is likely to create some disappointment when the time comes for the Commission to give an account of its work.

It is not that Committee I has not loyally tried to carry out its mission as set up in the various speeches and statements which we consider to be our terms of reference. It is not either that the National Offices are indifferent to the progress of our work (some have forwarded a number of cases, whereas others have forwarded fewer charges, but they are more complete).

The great obstacle is the difficulty of obtaining circumstantial evidence from abroad: it is easy to understand that, as the elements of each case have to be forwarded to this country by underground methods and as there are so many other more pressing matters, evidence upon war crimes is slow to come over.

The question then is: what remedies are there to this situation?

As has been said many times, it is impossible for this Commission to undertake the “investigation” of all the war crimes which have been committed: apart from the fact that the Commission has neither the machinery, the equipment nor the staff, there is no body which has the legal means to do this at present. We therefore depend entirely upon the National Offices for all that concerns the preliminary “fact finding.”

The dossiers which we have now at hand can be grouped into two categories:

(1) The dossiers in which we have, together with some evidence about the crime, the reasonably complete identity of the accused, and (2) the dossiers in which we have little or no indication of his identity.

As to the first category: there is not the slightest doubt that the dossiers which have been submitted are only a small proportion of those which could be submitted. It seems that hitherto the National Offices have restricted themselves to sending us only “crimes” in the popular conception of that word, and the consequence is that (although in some cases not only the actual perpetrator but also the immediate superior who ordered the crime is the object of a dossier), the person in whom the crime really originated is not mentioned. We are referring specially to those German lawyers who, in the tranquility of their study, have conceived those measures which have afforded others the possibility to unleash their savage instincts with impunity and covered in advance those unspeakable acts under a cloak of legality.

There are many accused in respect of whom a dossier could be easily constituted by means of one single document which would be a complete proof in itself. We shall give a few examples taken among many:

(a) decree providing excessive penalties for unimportant or inexistent transgressions;

(b) decrees providing the death penalty for acts of sabotage;

(c) decrees making the criminal nature of an act depend upon the nationality, race or religion of the person who did the act (e.g. decrees upon the pollution of the “Herrenvolk,” etc.);

(d) a decree providing capital punishment for mere omissions, such as failing to report to the Police the existence of arms or weapons of which one may have had no knowledge;

(e) decrees providing capital punishment for the relatives of persons such as fugitives, or saboteurs, when the Germans have been incapable of laying hands on the accused themselves;

(f) the signature of a decree by which all artistic property belonging either to the State or to churches or to private persons is subject to confiscation;

(g) a person in authority who after having threatened to execute hostages has carried out his threat and publishes the names of those he has had executed;

(h) notices signed by a commanding officer or an administrator announcing that he has imposed a collective fine upon a city in punishment for the shooting of a German;

(i) decrees or notices ordering deportations;

(j) decrees ordering compulsory enlistment of Allied nationals in the German army (cfr. in Alsace—according to a B.B.C. broadcast on 17 April 1944); and so on.

If the United Nations fail to indict those who have signed these decrees or orders, which are at the root of the evil, then it can again be said that justice strikes “according to whether you are powerful or wretched …”³⁵ A parody of justice of that kind should be avoided at all costs.

There is little doubt that if some research work is conducted on these lines a quantity of dossiers can be made available for the Commission in the near future. The attention of the National Offices should be once more drawn in this direction.

However, as the punishment of crime is the concern of the United Nations as a whole, it may be proper for us, if the National Offices fail to send us those cases, to examine whether the Commission should not itself assume this part of the work. (N.B.—This will obviously mean, as well as an increase of our staff, that for some members or persons their work on this Commission may become a whole time job.)

In the second category of dossiers the identity of the accused is either completely or partly unknown and there is often no indication of his rank, unit or position. In some cases the perpetrators have been provided with assumed names, in others (torturers in Gestapo chambers) they were masked. If the number of dossiers of this kind sent in is not much larger this is merely because some National Offices do not think it worth while to send us dossiers when little or nothing is known about the accused and the chances of laying hands on him are so slight. The massacre of Lidice is believed to come under this category and also the lethal chambers of Eastern Poland.

In view of the difficulties involved it has been proposed in cases such as these to apply the law of Moses, reprisals,—or alternately collective responsibility, and to execute in cold blood, after the war, so many Germans as they have executed Allies.

Solutions which are so far removed from democratic conceptions may, however, not carry much weight or be the best suited to bring us a lasting peace. Moreover, it is impossible to visualize the United Nations putting such a policy into actual practice.

On the other hand it is imperative that the responsible people be punished and therefore some other means should be suggested. To this effect the following suggestion is tentatively proposed. It is impossible that major crimes (such as Lidice, etc.) have been perpetrated without the knowledge and consent of responsible persons who are in charge or in command. One of the first things we should do is therefore to obtain as clear as possible a view of the civil and military organisation in each one of the occupied countries, since the beginning of the war, together with the names and identity of the persons who are responsible for each sector or district. Moreover, in view of the fact that when the Germans retreat from the Western European countries they are likely to carry out the same policy of scorched-earth as they have done in Russia and in Italy, it is necessary that we be provided also with the names of officers who will be in command in the various army groups at least as far down as the commandants of regiments. The measure which is suggested is placing into custody immediately after the armistice all persons (civil and military) who are susceptible of carrying some responsibility in the atrocities which have been committed. After their arrest their names should be broadcast and, possibly, their photos widely published in all the occupied countries in order to allow possible victims to lodge complaints against them. Those against whom, after a reasonable time, no complaints have been lodged should be released whereas the charges brought against the others should be immediately investigated. Thus without resorting to the repellent notion of collective responsibility we can achieve the purpose of justice by a perfectly admissible “mesure de sûreté.” Any refusal to co-operate with the investigation officials, by making complementary investigation necessary, would automatically provoke a prolongation of the “mesure de sûreté.”

This may be a bold and unprecedented measure. Far from depriving the Germans from natural guides who might help them into obtaining a more healthy outlook, this measure will allow the healthy part of the German population to find their own way more easily, under allied guidance. Moreover, it is in the interest of the safety of the occupying forces: those who will resist any allied endeavour to pacify the country will be found less among the ordinary public than among the leading classes; it is these people who will find it most difficult to accept the defeat; by segregating them for a time we may make our own task of occupation easier.^†

Does this mean that from now on National Offices should be discouraged from sending incomplete cases to the Commission? No, on the contrary. We believe that it should be for this Commission to obtain and centralise such information as would allow us to locate responsibility where National Offices are individually unable to do so.^‡

We will then have a number of dossiers which will be half-ready, and which can be completed either as the liberation of occupied countries proceeds, or else soon after the Armistice (see hereafter no. 4).

There are other suggestions which could be usefully discussed.

1. We are at this moment working in a watertight compartment. The necessity for us to know what kind of occupation the United Nations are visualizing for Germany has already been stressed in our meetings. There may be a United Nations’ Occupation Board but there may also be a division of Germany into zones of occupation. If we are to prepare a scheme we should have some idea of the general framework within which it will have to fit.

2. In the same way when we make suggestions for the inclusion into the Armistice of some terms concerning retribution for war crimes it would be most valuable for our Commission to obtain some indication, either of the lines upon which we could usefully work (together with what has been already done) or else, that our collaboration in this field is not needed or desired.

3. Some sort of liaison with the supreme command may also be necessary, for the first measures will surely be taken by the military and it is upon those measures that may depend the ultimate success or fiasco of the whole scheme. (Perhaps a United Nations’ Adviser on criminal matters to the High Command.) Failing this, some military advice or discussions with the military as to the practical possibility of carrying out any scheme which we may have in view would also be of the greatest value for us.

The lack of success with which “Amgot”³⁷ has met in Italy in respect of the punishment of war criminals, and the criticisms which have been directed in the Press against the lack of policy of that organisation incline us to hope that the apprehension of war criminals will not be one of its activities.

Incidentally the muddle to which has led the question of punishment in Italy and which has already caused much disappointment is a lesson that a policy on entirely different lines should be followed when it comes to dealing with the Germans.

4. It may be necessary, in the near future, to suggest the creation of another body charged with new duties, more directly concerned with prosecution.

In 1918 the Allies were expressly prevented by Article 6 of the Armistice³⁸ from prosecuting anyone. This time we will not be prevented, but, as we have no prosecuting machinery ready, the result is likely to be exactly the same: valuable time will be lost which the Germans will use to build up obstacles. Therefore we must have some machinery ready to operate, at the moment of the Armistice, and the necessary men ready to step in and take charge.

If, when the Armistice comes, chaos, thanks to which most criminals will escape, is to be avoided, some United Nations organisation must be instituted in Germany (United Nations Criminal Justice Office—or; United Nations War Crimes Prosecuting Office) charged with the following duties: (a) finding the war criminals, (b) arresting them and keeping them in preventive custody, (c) taking down their statements (denial or admission of guilt, indication of perpetrator or partners in crime, line of defence, names of witnesses for the defence, etc.), (d) eventually maybe making a summary investigation on those statements, and finding the witnesses, (e) forwarding the accused together with his dossier to the place or country where the trial is to be held, (f) maybe: completing the half-ready cases mentioned above on page 4.

The Office would act as a sort of judicial agency to which the Courts of all Allied countries could apply to obtain persons accused, witness evidence, or any information on war crimes. It goes without saying that the Office, although working in conjunction with the various armies of occupation, should have its own staff, agents, etc., and that the necessary executive powers should be vested in it. One man should be at its head, fully responsible. If necessary he might work under the authority of the War Crimes Commission, but it should be his show, and if anything goes wrong, the blame should be his. If, in 1920 some individual (instead of various anonymous diplomatic commissions) had been responsible for the punishment of war crimes, it might not have ended in a fiasco.

The suggestions in this paper should, in the idea of the Committee, apply not only to Germany but also to the liberated territories of the Allies. In respect of these territories however this regime should be restricted to the transitional period only, i.e. until the governments of those countries have resumed the actual administration of the land.^§

5. May we be allowed once more to point out that any scheme for the punishment of war criminals is unlikely to succeed without the sincere co-operation of all the great Allies, and namely U.S.S.R., and that new efforts should be made to secure the co-operation of the U.S.S.R.

6. It should also be borne in mind that after the Armistice changes of nationality of war criminals should not be recognised. The Commission has been told that some preparations have been made to confer a neutral nationality upon some enemy persons, and upon allied persons who have worked for the enemy; counter-measures should be framed in time.

7. Political action. Caution should be used in dealing with criminals politically:

If it is contemplated to punish some enemy leaders by political rather than judicial action, the consequences of such action should be carefully measured: if such punishment is death, and is inflicted soon after the Armistice,^║ there is less objection than if it is mere exile (cfr. Napoleon). But if the main criminals, who are responsible for the waging of war as well as for having taken part in the most heinous crimes (annihilation of the Jewish race, deportations, policy of terrorism) are merely to be exiled, it will be morally impossible for any court to inflict a more severe punishment (death) upon persons accused of lesser atrocities or who have merely acted upon order of those major criminals. Many of us consider political action as undesirable altogether, and would prefer judicial action, but, if for reasons of expediency it is impossible to do otherwise, political action should be exceptional, and restricted to cases such as Hitler, Hirohito, and others such as Mussolini who are in fact, if not in name, heads of states.

1. Likewise, on 17 April 1944 the B.B.C. announced that 605 hostages had been shot at Trieste for having blown up a cinema for German troops. [Footnote in the original.]
35. Omission indicated in the original.
36. It is also possible that if, when the time comes, the German army in full retreat on all fronts are warned that any scorched-earth policy will meet with drastic punishment, this warning may have a preventive action (cfr. the warning which was issued by President Wilson in October 1918 to the Germans against devastating the industries, the coal mines and even the orchards in the North of France.) [Footnote in the original.]
37. Obtaining such information may become even more important when the United Nations are occupying Germany; it may then become necessary to institute a body of persons to collect and investigate German records. Such persons should of course be familiar with the German language. [Footnote in the original.]
37. Allied Military Government, Occupied Territory.
38. For terms of the Armistice with Germany, signed November 11, 1918, see Foreign Relations, The Paris Peace Conference, 1919, vol. ii, p. 1.
39. It is likely that the transitional period will be very short; it is also likely that there will be little scope for any such Office to operate in Allied countries, for German war criminals, rather than remain in liberated countries to face the wrath of their victims, will almost certainly flee to their homeland together with their retreating armies. [Footnote in the original.]
40. In an unspectacular way, preferably by hanging: there is no reason to make the execution of these people other than ignominious. Moreover it is more difficult to make a hero out of a man who was obscurely hanged than out of a man who was shot and who may even have been allowed to give the theatrical order of “Fire” at his own execution. [Footnote in the original.]