740.00116 E.W./9–2244

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

No. 18169

Sir: I have the honor to report that on August 29, 1944, it was decided by the United Nations Commission for the Investigation of War Crimes that the members of the Commission should transmit to their respective governments a copy of the draft Convention for the Surrender of War Criminals and a related explanatory memorandum. This document, C.47, 4 September 1944,93 was forwarded to the Department in Despatch No. 17938, September 8, 1944. The following comments are made by way of further explanation:

Article I: The phrase “war crimes, including offenses against the laws and customs of war” was inserted in this convention in committee by a close vote. The United States vote was cast in the negative. The effect of the proposed phrase—“War Crimes, including …”—is to leave the whole subject without a guiding definition in the practical application of the Surrender Convention.

This article does not contemplate trial in absentia.

Article II: This article is designed to aid in the transfer of a “Quisling” who would be tried nationally for treason or other similar crimes rather than for a war crime.

Article IV: Lieutenant Colonel Hodgson stated to the Commission that, in his opinion, the second sentence of Article IV was possibly incompatible with the Constitution of the United States, particularly if the Convention was to be effective after the conclusion of peace. Colonel Hodgson made it clear that he was expressing his personal opinion and not the official attitude of the United States. (See page 1 of the Minutes of 5 September 1944.)94

M. de Baer (Belgium) stated that his Government wished to see Article IV (1–A) amended by introducing therein the following safeguards, which had appeared in an earlier draft convention prepared by the five Ministers of Justice dealing with this same subject:

  • “3 The indictment or warrant for the arrest of the alleged offender in respect of the alleged offence;
  • 4 summary evidence of the alleged offence and of the alleged offender’s intent to further the cause of the enemy or of his having had recourse to the power, opportunity or means afforded by the state of war or the fact of the enemy occupation;
  • 5 the appropriate court before which the alleged offender will be tried.”

[Page 1364]

Lieutenant Colonel Hodgson expressed the view that he considered the language appearing in the mentioned earlier draft, when modified to take into account trials by military tribunals, to be preferable.

Article VI: Article VI of the Convention was adopted after an extended consideration, during which it was pointed out that the second paragraph might necessitate extensive legislation. The members believed nevertheless that it should be adopted. This was the unanimous opinion of the continental European countries who expressed the view that the provision was necessary for countries situated in their position, and that other countries which found it unacceptable might make suitable reservations.

Ambassador Colban (Norway) expressed the hope that the Chairman of the Commission would ask the British Foreign Secretary to convene a Diplomatic conference which would be necessary for negotiating and signing the Convention.

Respectfully,

Herbert Pell
  1. Ante, p. 1354.
  2. Minutes of the meetings not printed.