740.00116 European War 1939/1459

The First Secretary of the British Embassy (Gore-Booth) to the Legal Adviser (Hackworth)

Dear Mr. Hackworth: Following our conversation on May 20th, when I left with you a paraphrase of a message received from the Foreign Office55 on the subject of the procedure to be followed in dealing with war criminals, the Embassy telegraphed to the Foreign Office asking for their comments on the following two points.

We had understood from you that the Department of State were opposed to any limitation of the “powers” of military commanders, but might be willing to consider the issuing of a directive which, while not derogating from the powers of commanders, would instruct them in practice to adopt certain procedures: Would some such formula be acceptable to the Foreign Office?
We further said that you had pointed out that the United Nations Commission have no power to try cases, and that no tribunal has as yet been set up to try cases on their behalf. We asked whether the Foreign Office had any observations to contribute to a possible discussion on what would happen if delay in setting up such courts became indefinitely protracted. In other words, that the State Department would like to be sure that, if cases are referred to the United Nations Commission by the military commanders, there can be a fair certainty of legal action being taken, in spite of the non-existence at present of special machinery for such action.

A reply has now been received from the Foreign Office, a copy of which is enclosed herewith.

If the War and Navy Dpartments have accepted the suggestion for a meeting to discuss this matter, and prepare a draft, I think this Embassy is now sufficiently informed of the Foreign Office’s views, to be able to go ahead with only the minimum amount of telegraphic reference to London. May I know if the desirability of holding a meeting has yet been agreed?

Yours very sincerely,

Paul Gore-Booth

Paraphrase of Telegram Received from Foreign Office, London, Dated May 30th, 1944

Your point (1)

We would agree, if the directive to be issued to the Allied Commanders is in general conformity with the subject of paragraph 4 of Foreign Office telegram of May 12.

[Page 1324]

Your point (2)

We have always hoped that it will not prove necessary to attempt to devise special machinery for the trial of war criminals. The Moscow Declaration on German atrocities contemplated that they should be tried by national courts and this principle will presumably be followed wherever possible. We do not think it likely, however, that cases dealt with by the United Nations Commission will be brought to trial either by national courts or otherwise before the end of hostilities with the enemy country concerned. Indeed in our view it would be undesirable that they should, particularly in view of the danger of reprisals against Allied Prisoners of War in enemy hands. It was largely in order to ensure that the Allies acted on the same lines in this respect that the Commission was set up and it is for this reason desirable that cases (other than those arising in the course of operations with which Allied Commanders can properly deal at once) should wherever possible be handled through the Commission. If cases arise in which the United States Government have a direct interest and which they consider should for exceptional reasons be tried before the end of hostilities it would in our view be better that such cases should not go to the Commission.

  1. See telegram of May 12 transmitted to the Department in British memorandum of May 20, p. 1316.