740.00116 European War/1244: Telegram

The Ambassador in the United Kingdom ( Winant ) to the Secretary of State

269. This refers to Embassy’s 39 of January 3, 9 p.m. Bucknell34 has received the following communication from Sir Orme Sargent:35

“You will remember that at its meeting on 24 December36 the London Political Warfare Coordinating Committee recommended that the United States and British Governments should decide at once as to the relationship of the Kharkov trials to the Moscow Declaration.

We have been considering this point and have reached the following conclusion. The relevant passages of the Moscow Declaration seem to us clearly to mean that, at the time of any armistice with Germany, those Germans who have committed war crimes will be apprehended and sent to the places where the crimes have been committed for trial. This can only apply to those German war criminals who have not already fallen into the hands of, and been tried by, the [Page 1201] three powers making the Declaration or any of the other 32 United Nations. It does not impose an obligation upon either the three Allied powers or any of the other United Nations not to try, at any place or at any time where the legal powers to do so exist, German war criminals who may be captured before an Armistice is made with Germany. Thus the Declaration in our view only dealt with those German war criminals who will be handed over at the time of the Armistice with Germany, and is a solemn pronouncement of the intention of the powers concerned to try them and punish them in a certain manner.

Our conclusion therefore is that it is not possible to argue that the Kharkov trials are contrary to either the spirit or the wording of the Moscow Declaration. Conversely we doubt whether the Russians are entitled to claim that the trials are in accordance with the declaration since, as indicated above, it seems to us that two different sets of Germans are involved. None-the-less we are not in favor of raising the issue with the Soviet Government, not only because there seems no actual conflict between the Kharkov trials and the Declaration but also having regard to earlier arguments with the Russians about war crimes and to the present deadlock about their representation on the United Nations Commission on War Crimes.37

We are telegraphing on the above lines to His Majesty’s Embassy at Washington and instructing them to communicate our view to the State Department.

We are also instructing His Majesty’s Embassy to inform the State Department that we agree with their view, expressed just before Christmas,38 that we should not allow ourselves to be drawn by the Kharkov trials into friction with the Russians. We also agree with them that, while publicity should for the present be played down, the position will have to be reconsidered if the Germans actually proceed to trials or if the Russians show signs of staging new trials.

Mr. Winant spoke just after Christmas to Mr. Eden39 about a telegram which the State Department had sent to the United States Minister at Bern40 on 24 December41 instructing him to inform the Swiss Government that the United States Government were not proceeding against German prisoners of war along lines similar to reports of German intentions but were strictly observing the provisions of the Geneva Convention. There seems to us a danger that these instructions might be interpreted as implying that the United States Government regard the trial of prisoners of war as incompatible with strict observance of the Convention. According to our view, the position in this connection is as follows. The Geneva Convention to which His Majesty’s Government, United States Government and the German Government are parties, but not the Soviet Government, does not prohibit the trial of prisoners of war for any war crimes they [Page 1202] may have committed. What it does is to lay down certain procedural provisions which must be applied specifically the obligation to give due notification through the protecting power of the trial and of the nature of the offence charges, and the obligation not to carry out any death sentence until three months after the sentence has been communicated to the protecting power. His Majesty’s Embassy at Washington is being instructed to bring this point also to the attention of the State Department.[”]

The American members, pending such further instructions as the Department may consider necessary, will be guided by the Department’s instructions in its 249 of January 10, 10 p.m. and in its 8267 of December 31, 7 p.m.,42 and we will endeavor to see to it that in any propaganda directive which may be adopted in the event of further such trials any statement that the Kharkov trials either come within or without the Moscow Declaration will be avoided. We will also endeavor to see to it that comment on further trials will be held to a minimum.

  1. Howard Bucknell, Jr., Counselor of Embassy in the United Kingdom.
  2. British Deputy Under Secretary of State for Foreign Affairs.
  3. See telegram 8992, December 24, 1943, from London, Foreign Relations, 1943, vol. iii, p. 852.
  4. Concerning the establishment of the United Nations Commission for the Investigation of War Crimes, see Foreign Relations, 1943, vol. i, pp. 402 ff; for correspondence on discussions regarding procedures and scope of this Commission, see ibid., 1944, vol. i, pp. 1265 ff.
  5. See telegram 8101, December 23, 1943, to London, Foreign Relations, 1943, vol. iii, p. 849.
  6. Anthony Eden, British Secretary of State for Foreign Affairs.
  7. Leland Harrison.
  8. Telegram 3222, December 24, 1943, Foreign Relations, 1943, vol. i, p. 434.
  9. For latter telegram, see Foreign Relations, 1943, vol. iii, p. 853.