Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

740.00116 EW/9–3044

Document No. C.52(1), 26 September, 1944: Recommendation in Favour of the Establishment by Supreme Military Commanders of Mixed Military Tribunals for the Trial of War Criminals⁹⁶

September 26, 1944

Consonant with the Moscow Declaration, 1st November, 1943, the principle is accepted by the United Nations War Crimes Commission that, with the exception of major war criminals, whose offences have no particular geographical localization, war criminals, upon apprehension, will be sent back to the countries in which their crimes were committed in order that they may be judged by the courts of such countries. The mentioned countries thus have a paramount right to such criminals and their courts have primary jurisdiction. The recommendation contained herein is made in full recognition of these principles.

It is recognised that a military commander of an army in campaign has full power to constitute military tribunals and to try all offences against or affecting such army or arising out of or incident to the operations of the enemy or persons aiding or assisting the enemy. It is recognised also that a military commander of an army in occupation of enemy territory has full power to constitute military tribunals and to try all cases involving the safety of his army or the maintenance of law and order. Accordingly, such offences and cases are not within the purview of the recommendation contained herein and the recommendation is not to be considered as a limitation of these principles or as a restriction upon the mentioned powers of such military commanders.

The United Nations War Crimes Commission will recommend to the United Nations the creation by convention of a United Nations War Crimes Court or Tribunal, for the trial of war criminals. However, it recognises that delay may occur while its recommendation and the proposed convention are being considered by the United Nations thereby affecting the expeditious trial of cases. Accordingly, it is deemed necessary that some tribunal or tribunals be established in interim to try certain war criminals.

In case a United Nations War Crimes Court or Tribunal is established by convention it is considered desirable that, in addition thereto, other tribunals be established to try such war criminals as any United Nation may so request, to the end, that every means for the effective prosecution of war criminals are established and maintained, and that no war criminal escapes trial and punishment by reason of the inability to effect a speedy trial.

It appears that the Supreme Commander of co-operating United Nations military forces in each theatre of operations has the power and is entitled to establish military tribunals and prescribe their composition, power and procedure.

It is believed that such military tribunals provide a just and expeditious means for the trial of war criminals pending the establishment of a United Nations War Crimes Court or Tribunal, and thereafter in addition to such court or tribunal.

It is recommended, therefore, that the United Nations Governments request that the Supreme Commander of co-operating United Nations military forces in each theatre of operations appoint military tribunals for the trial of enemy nationals who are charged with having committed offences in violation of the laws and customs of war, upon the following conditions:

(a) That, in accordance with the first paragraph hereof, a United Nations Government request in writing that such enemy nationals be tried by such a tribunal.

(b) That, in accordance with the first paragraph hereof and consistent with the jurisdiction of such tribunals, the United Nation so requesting such a trial surrender custody of the accused to the convening authority of the tribunal.

(c) That the United Nation so requesting such a trial produce substantial evidence of the guilt of the accused and fully co-operate with the convening authority or his designee in the preparation and trial of the case, including the attendance of witnesses and the production of documentary and other evidence.

(d) That the tribunal does not sit in the territory of any United Nation, excepting, however, when necessary the territory of the United Nation requesting such a trial.

96. Transmitted to the Department by the American Representative on the United Nations War Crimes Commission, in despatch 18311, September 30, 1944; received October 7.