740.00116 European War 1939/1459
The Legal Adviser (Hackworth) to the
First Secretary of the British Embassy (Gore-Booth)
Washington, June 9,
1944.
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
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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,
[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.
