740.00116 European War 1939/1459

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

My Dear Mr. Gore-Booth: I have your letter of June 2, 1944 enclosing a paraphrase of a message received from the Foreign Office on the subject of the jurisdiction of the military commanders in the field over war crimes, and inquiring whether a meeting of representatives of the Embassy and the Departments of War, Navy and State, which was suggested in your letter of May 20, has been agreed upon. I understand that you have been orally informed by a member of this office that the War and Navy Departments have indicated their willingness to take part in such a meeting.

Those Departments have asked the Department of State to procure from the Embassy particularized agenda of the points which the Embassy wishes to take up at such a meeting. I am enclosing a copy of the statement of this Department’s understanding of the British position which, in order to save time, was informally cleared with [Page 1326]you over the telephone, and which is now being forwarded to the War and Navy Departments in response to their requests for agenda. The last sentence in this statement was inserted at your suggestion. According to our understanding of the position of the War and Navy Departments, they will desire to see the draft directive referred to in advance of any conference.

Sincerely yours,

Green H. Hackworth
[Enclosure]

Memorandum Prepared in the Legal Adviser’s Office of the Department of State

Summary of the British Position

It is the Department’s understanding that the British concern regarding the jurisdiction of commanders in the field over war crimes results from the message from the Combined Chiefs of Staff to General Eisenhower of October 28, 1943. It appears to be the desire of the British to have an understanding between the British and American Governments so that a uniform policy may be followed in regard to the treatment of war criminals in British, American and Anglo-American theaters of operations. They suggest that (1) local commanders should have jurisdiction to try and punish offenses committed against their own command during the course of operations and all minor offenses and that (2) cases other than those mentioned above, particularly those raising questions of principle or directly concerning other Allied Governments, should be dealt with through the machinery of the United Nations Commission for the Investigation of War Crimes. The British apparently feel it necessary to have some understanding on the question in view of the fact that we informed them on April 8, 1944, after consultation with the War and Navy Departments, “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.” They feel that the matter can be adjusted by careful drafting of a directive to commanders in the field.

This statement of the British position which embodies the points which they wish to take up in conference with the Department of State and the War and Navy Departments has been cleared informally with the British Embassy. The Embassy has advised this Department that it will prepare in advance of a meeting with the three departments a draft of a directive for purposes of discussion.