740.00116 European War 1939/1434

The British Embassy to the Department of State

Memorandum

His Majesty’s Embassy have the honour, with reference to the Department of State’s memorandum of April 8th, (740.00116 European War/1301) to transmit to the Department herewith a paraphrase of a message received from the Foreign Office in regard to the distinction between war crimes to be dealt with by commanders in the field and those to be dealt with by the United Nations Commission for the investigation of war crimes.

[Enclosure]

Paraphrase of Telegram Received from Foreign Office, Dated May 12, 1944

We are not quite sure what the State Department have in mind in proposing that military commanders should retain the power to try and punish, at their discretion, all offenders subject to their jurisdiction.

2.
On the one hand we agree that in general as many trivial offences as possible should be dealt with on the spot. Experience in Italy seems to have shown that the directive contained in telegram No. Fan 260 of 29th October, 1943, from the Combined Chiefs of Staff to General Eisenhower, and the instructions based thereon in A.F.H.Q. circular No. A.P.O. 512 of 27th November, 1943,47a have proved unduly restrictive in practice; local military authorities are precluded from [Page 1317]dealing, for example, with minor cases such as the theft by Italians of parcels intended for Allied prisoners-of-war which took place before the Allied occupation. The proposal contained in my telegram No. 445 of 18th January48 may therefore need amending to give wider powers to those on the spot. We feel that the aim should be to avoid submission to the United Nations Commission for the Investigation of War Crimes of a mass of trivial cases which would only clog the machinery and prejudice the expeditious handling of important cases.
3.
On the other hand we feel that, so long as the United Nations Commission is in existence, and importance is attached to a uniform policy being followed in regard to the treatment of war criminals, the powers of the Allied military commanders must be clearly defined. The State Department’s present proposal might be interpreted as empowering military commanders to try and punish anyone falling into their hands. In the case of major war criminals and in cases in which other Allied Governments have a direct interest, this would not in our view be desirable.
4.
We therefore suggest that local commanders should be empowered to try and punish (a) offences committed against their own command during the course of operations (as proposed in my telegram No. 445), and (b) all minor offences where the important consideration is that they should be rapidly disposed of; but that all more important cases other than under (a), and particularly those raising questions of principle or directly concerning other Allied Governments, should be dealt with through the machinery of the United Nations Commission. It is probable that the State Department have something of this sort in mind. We feel, however, that some more precise definition of their formula on the above lines is desirable.
5.
As regards minor cases now arising in Italy, such as those referred to at end of second sentence of paragraph 2 above, we think trial by the Allied command preferable to trial by Italian authorities, since the latter might constitute an undesirable precedent for the treatment of other and more important war criminals later on.
  1. For text of the circular of November 27, 1943, see Foreign Relations, 1943, vol. i, p. 429.
  2. See telegram transmitted to the Department in the British aide-mémoire of February 3, p. 1277.