Foreign Relations of the United States: Diplomatic Papers, The Conference of Berlin (The Potsdam Conference), 1945, Volume I

740.00119 (Potsdam)/5–2446

No. 394
Briefing Book Paper

top secret

Prosecution of War Criminals

Following preliminary discussion with British authorities in London in April,¹ Judge Rosenman, acting as personal representative of President Truman, presented to the British, French and Soviet representatives at San Francisco early in May a draft of a proposed agreement between the four governments containing this government’s suggested plan for the punishment of war criminals.² This draft was based on an earlier report submitted to President Roosevelt by the Secretaries of State and War and the Attorney General.³

nature of proposals

In brief, the proposed agreement contemplated:

(a) That in conformity with the Moscow Declaration (Roosevelt, Churchill and Stalin) of November 1, 1943,⁴ European Axis war criminals, against whom there is proof of personal participation in specific atrocities, be returned to the former occupied countries where their crimes were committed for prosecution and punishment by the authorities of such countries;

(b) That the major war criminals in Europe, whose crimes have no particular geographical localization, and organizations, official or unofficial, charged with crimes or complicity therein, be tried before one or more international military tribunals, such tribunals to be composed of a member (and alternate) each designated by the United States, France, Great Britain and U. S. S. R. respectively;

(c) That each of the four governments designate a representative who, acting as a group, shall prepare charges and conduct the prosecutions contemplated by (b) above; and

(d) That all members of the United Nations be invited to adhere to the agreement.

subsequent developments

On May 2 President Truman issued a press statement regarding the appointment of Mr. Justice Jackson as “Chief of Counsel for the United States in preparing and prosecuting the charges of atrocities and war crimes against such of the leaders of the European Axis powers, and their principal agents and accessories, as the United States may agree with any of the United Nations to bring to trial before an international military tribunal”⁵ The British and French governments have each recently announced the appointment of similar representatives. On June 7 [6], Mr. Justice Jackson submitted a report to the President summarizing developments since his designation as Chief of Counsel and outlining the basic features of the plan of prosecution.⁶

On June 26, at the invitation of the British Government, Mr. Justice Jackson and representatives of Great Britain, France and U. S. S. R. began conferences in London with a view to formulating a final agreement. Prior to that date the three interested governments were furnished for purposes of discussion at the conferences, with a draft agreement prepared by Mr. Justice Jackson revising, but not in any substantial way, the draft agreement submitted at San Francisco.⁷

attitude of other governments

It is understood that the British and French governments are in general agreement with the proposals advanced by this Government. On June 14 a representative of the Soviet Embassy called on Mr. Justice Jackson and left with him an Aide-Mémoire raising certain questions regarding this Government’s proposal.⁸ Mr. Justice Jackson indicates that, with few exceptions, they related to matters of inconsequential detail which would cause no difficulty whatever and that it was probable that the remaining questions raised could be ironed out at the London conference.

war crimes commission

Sixteen countries, including the United States, Great Britain and France, are represented on the United Nations War Crimes Commission. The U. S. S. R. is not represented on the Commission, and it has been the subject of a number of attacks by the Soviet press.

The terms of reference of the Commission are found in notes addressed in 1942 by the British Government to various other governments suggesting the establishment of the Commission, in which reference was made to the Lord Chancellor’s announcement in the House of Lords on October 7, 1942, that “The Commission will investigate war crimes committed against nationals of the United Nations recording the testimony available, and the Commission will report from time to time to the Governments of those nations cases in which such crimes appear to have been committed, naming and identifying wherever possible the persons responsible.”⁹ The Commission is also charged with making recommendations of a “politico-legal” nature to the governments.

Upon the basis of the cases presented to it, and also on its own initiative, the Commission prepares lists of war criminals, which it is authorized to communicate directly to the Theater Commanders. The latter have been authorized by the Combined Chiefs of Staff to take the persons on the lists into custody without requirement of further proof.

Since the Commission has no judicial or prosecuting functions, there would seem to be no conflict of jurisdiction between it and the proposed military tribunals to adjudicate cases against major war criminals or the joint prosecutors of such cases. It is understood to be the Department’s view that the Commission should be kept in existence, for the time being at least, as it serves a useful purpose as a clearing house for information on war criminals. Moreover its continued existence probably serves to make the small nations represented on it feel that, even though they may not have a direct part in the prosecution of major criminals under the plan discussed above, they nevertheless are participating in the over-all plan and determination of all of the United Nations to prosecute and punish all war criminals.

[ Washington ,] June 29, 1945.

1. See Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (Washington, Government Printing Office, 1949; Department of State publication No. 3080), pp. 18–20.
2. Text printed ibid., p. 22.
3. Edward R. Stettinius, Jr., Henry L. Stimson, and Francis Biddle, respectively. Text printed ibid., p. 3.
4. Text in Department of State Bulletin, vol. ix, p. 310.
5. See Department of State Bulletin, vol. xii, p. 866.
6. Text in Report of Robert H. Jackson , p. 42.
7. Text printed ibid., p. 55.
8. Text printed ibid., p. 61.
9. See the statement by Viscount Simon in Parliamentary Debates: House of Lords Official Report, 5th series, vol. 124, col. 582.