740.00119 (Potsdam)/5–2446

No. 395
Briefing Book Paper
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Report by Justice Jackson on War Crimes Questions1

The Secretary: Reference is made to the memorandum on “Prosecution of War Criminals” delivered to the Central Secretariat on June 29.2

The British Government has suggested that “war criminals” be discussed at the Big Three meeting.3

Justice Jackson states in a telegram of July 4 (Annex 1)4 that the British and French are in substantial agreement with the United States proposals for the punishment of the Axis leaders, but that the Soviets have presented a counterproposal5 which appears to reject the substance of his proposals, and to substitute many trials under Soviet procedure mostly in territory controlled by the U. S. S. R., and following the surrender to (these?)6 tribunals of our prisoners, in place of one main trial at Nuremberg. He is not sure that agreement will be reached but considers it by no means hopeless. Unless he can obtain the substance of his proposals, he says, the only alternative will be agreement on general substantive law principles regarding crimes and allowing each country to establish its own courts and try its own prisoners under its own procedural system.

He has been informed by the British Foreign Office that the British did not intend to suggest detailed discussion of war crimes at the Big Three meeting but wished to allay Soviet suspicion of evasion of prosecution. He himself is “rather appalled” at the thought of Big Three discussion of such an involved, technical subject. He suggests that he should review the subject with you and the President if such discussion is undertaken, since significant differences lurk in small phrases.

The U. S. S. R. has insisted that there be incorporated (in the agreement regarding the major trial) an agreement concerning the handing over of prisoners wanted for trial in other countries. Justice Jackson has taken the position that only cases for international trial are within the scope of his authority.

[Page 579]

In a further telegram of July 6 (Annex 2)7 Justice Jackson says that it is clear that the military and political authorities of the United States should adopt a policy on demands for the surrender of alleged war criminals not needed as witnesses or defendants in the proposed international case. This should cover cases where the same person is demanded by two or more countries, he says. The U. S. S. R. wants the trial to be where the offense was the worst. This involves weighing the evidence. Justice Jackson thinks the U. S. should not pass on the merits of the claims. With reference to the possibility of demands for purely political reasons, which he emphasizes in both telegrams, he suggests that some statement of charges and supporting evidence might be required. He also suggests that some consideration might be given to the type of trial likely to result after surrender.

The U. S. S. R. is also urging an article in the proposed agreement for the trial of the Axis leaders which would bind the signatories to take all necessary steps for the surrender of war criminals by the neutrals. Justice Jackson has agreed that the U. S. would join in any request for surrender by a neutral of anyone needed for the proposed international trial, but has taken the position that any further commitment is beyond the scope of his commission to negotiate.

The question of surrender has been covered in a draft directive (Annex 3) which is expected shortly to come before the Informal Policy Committee on Germany. If the draft is approved by the U. S. authorities it will be circulated in the European Advisory Commission. Upon approval by the United States authorities it will also be issued to the Commander-in-Chief of the United States forces of occupation in Germany.8 If agreement has not been reached in the EAC with regard to the draft directive, the U. S. Commander-in-Chief is also instructed by the terms of the draft to urge in the Control Council the adoption of its principles by the other occupying powers in Germany.

Section 6 of the draft directive, on surrender, requires no supporting evidence to be supplied by the demanding government.

Paragraph a (2) of that section leaves the question of who is to receive a criminal wanted by two or more countries for determination by the Control Council without guiding criteria.

Paragraph (d) is intended to cover cases of possible political persecution (e. g. in the case of dissident Yugoslavs and Poles) and it is intended that it should be implemented by explanatory instructions to the U. S. Commander-in-Chief.

There is also pending before the Combined Civil Affairs Committee, a sub-committee of the Combined Chiefs of Staff, a draft directive which has cleared the U. S. side of the Committee and is now before [Page 580] the British side. If approved by the latter, it will go before the Combined Chiefs of Staff for issuance to the Supreme Commander, Allied Expeditionary Force,9 and the Supreme Allied Commander, Mediterranean.10 (Annex 4) Exception number (5) in the second paragraph is intended to protect against demands for surrender of alleged “war criminals” for political reasons. Cases of demands by two or more countries for surrender are to be referred to the CCS.

It is understood that Mr. McCloy and Colonel Cutter of the War Department will be at the Big Three meeting. They are familiar with the draft directives referred to above.

In view of Justice Jackson’s telegrams, it is suggested that, if the question of war criminals does come up, you may wish to get in touch with him as he suggests.

The meeting might afford an opportunity to clear up outstanding important questions relating to war crimes.

[Annex 3]
Directive on the Identification and Apprehension of Persons Suspected of War Crimes or Other Offenses and Trial of Certain Offenders11
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This directive is issued to you as Commander-in-Chief of the U. S. (U. K.), (U. S. S. R.) (French) forces of occupation. As a member of the Control Council, you will urge the adoption by the other occupying powers of the principles and policies set forth in this directive and, pending Control Council agreement, you will follow them in your zone.
The crimes covered by this directive are:
Atrocities and offenses against persons or property constituting violations of international law, including the laws, rules and customs of land and naval warfare.
Initiation of invasions of other countries and of wars of aggression in violation of international laws and treaties.
Other atrocities and offenses, including atrocities and persecutions on racial, religious or political grounds, committed since 30 January 1933.
The term “criminal” as used herein includes all persons, without regard to their nationality or capacity in which they acted, who have committed any of the crimes referred to in paragraph 2 above, including all persons who (1) have been accessories to the commission of such crimes, (2) have taken a consenting part therein, (3) have been connected with plans or enterprises involving their commission, or (4) have been members of organizations or groups connected with the commission of such crimes. With reference to paragraph 2 b, the term “criminal” is intended to refer to persons who have held high political, civil or military (including General Staff) positions in Germany or in one of its allies, cobelligerents or satellites or in the financial, industrial or economic life of any of these countries.
The Control Council should coordinate policies with respect to the matters covered by this directive.
Subject to the coordination of such matters by the Control Council and to its agreed policies:
In addition to the persons and classes of persons referred to in paragraph 8 of the Directive to the Commander-in-Chief of the U. S. Forces of Occupation Regarding the Military Government of Germany (J. C. S. 1067/6)12 or in other instructions, you will take all practicable measures to identify, investigate, apprehend and detain all persons whom you suspect to be criminals as defined in paragraph 3 above and all persons whom the Control Council, any one of the United Nations, or Italy notifies to you as being charged as criminals.
You will take under your control pending decision by the Control Council or higher authority as to its eventual disposition, property, real and personal found in your zone and owned or controlled by the persons referred to in subparagraph a above.
You will report to the Control Council the names of suspected criminals, their places of detention, the charges against them, the results of investigations and the nature of the evidence, the names and locations of witnesses, and the nature and locations of the property so coming under your control.
You will take such measures as you deem necessary to insure that witnesses to the crimes covered by this directive will be available when required.
You may require the Germans to give you such assistance as you deem necessary.
Subject to the coordination of such matters by the Control Council and to its agreed policies:
You will promptly comply with a request by any one of the United Nations or Italy for the delivery to it of any person who is stated in such request to be charged with a crime to which this directive is applicable, subject to the following exceptions:
Persons who have held high political, civil or military position in Germany or in one of its allies, cobelligerents, or [Page 582] satellites will not be delivered to any one of the United Nations or Italy, pending consultation with the Control Council to ascertain whether it is desired to try such persons before an international military tribunal. Suspected criminals desired for trial before international military tribunals or persons desired as witnesses at trials before such tribunals will not be turned over to the nation requesting them so long as their presence is desired in connection with such trials.
Persons requested by two or more of the United Nations or one or more of the United Nations and Italy for trial for a crime will not be delivered pending determination by the Control Council of their disposition. The Control Council should take all practicable measures to insure the availability of such persons to the several United Nations concerned or Italy, in such priority as the Control Council shall determine. If in any case the Control Council fails to make such determination within a reasonable period of time, you will make your own determination based on all the circumstances including the relative seriousness of the respective charges against such person and will deliver the requested person to the United Nation or Italy accordingly.
Compliance with any request for the delivery of a person shall not be delayed on the ground that other requests for the same person are anticipated.
Delivery of a person to a requesting nation shall be subject to the condition that if such person is not brought to trial, tried and convicted within six months from the date he is so delivered, he will be returned to you upon request for trial by any of the other United Nations or Italy.
In exceptional cases in which you have a doubt as to whether you should deliver a person demanded under subparagraph a above, you should refer the matter for decision to the Control Council with your recommendations.
The Control Council should determine promptly any dispute as to the disposition of any person detained within Germany in accordance with this directive.
Appropriate military courts may conduct trials of suspected criminals in your custody. In general these courts should be separate from the courts trying current offenses against your occupation, and, to the greatest practicable extent, should adopt fair, simple and expeditious procedures designed to accomplish substantial justice without technicality. You should proceed with such trials and the execution of sentences except in the following cases:
Trials should be deferred of suspected criminals who have held high political, civil or military positions in Germany or in one of its allies, cobelligerents, or satellites, pending consultation with the Control Council to ascertain whether it is desired to try such persons before an international military tribunal.
Where charges are pending13 in your zone against a person also known to you to be wanted elsewhere for trial, the trial in your zone should be deferred for a reasonable period of time, pending consultation with the Control Council as to the disposition of such person for trial.
Execution of death sentence should be deferred when you have reason to believe that the testimony of those convicted would be of value in the trial of other criminals in any area whether within or without your zone.
[Annex 4]
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Cable to SCAEF and SACMed

Reference is to Scaf 406 and Naf 973.14

This directive applies to all persons held by forces under your command suspected of having committed war crimes in a country formerly occupied by the Germans or in Italy. It does not apply to such renegades and quislings as are not war criminals.

You should deliver immediately to the requesting nation any person requested by one of the United Nations or Italy for trial for a war crime alleged to have been committed in the territory of that nation, except:

Persons wanted for trial before courts under your command.
Persons who held high political, civil or military position in Germany or in one of its allies, cobelligerents, or satellites, who may be desired for trial before an international tribunal.
Persons wanted as witnesses in the trials referred to in (1) or (2) above.
Persons requested by two or more such nations.
Persons whose cases involve special political or other unusual considerations, which cases should be given careful study in consultation with your political advisors before delivery is made.

In any case covered by subparagraph (4) above, you will report the facts to the CCS together with your recommendations as to its disposition.

  1. This paper is not itself a report by Jackson; it is rather a memorandum addressed to the Secretary of State by the Legal Adviser of the Department or by one of his subordinates on the subject of recent messages from Jackson.
  2. Document No. 394.
  3. See document No. 176.
  4. Not included in the Briefing Book. Cf. document No. 183.
  5. Text in Report of Robert H. Jackson, p. 128.
  6. As in the original.
  7. Not included in the Briefing Book.
  8. General of the Army Dwight D. Eisenhower.
  9. Eisenhower.
  10. Field Marshal Sir Harold Alexander.
  11. The Informal Policy Committee on Germany notified the Secretary of State on July 25 that the Joint Chiefs of Staff had been requested to transmit this draft directive as revised (see footnote 13, post) to the Commander in Chief, United States Forces of Occupation in Germany, “as an interim directive pending its approval and issuance by the governments represented in the European Advisory Commission.”
  12. See Department of State Bulletin, vol. xiii. p. 596.
  13. The words “and the trial has not commenced” appear at this point in the draft directive as approved in July by the Informal Policy Committee on Germany.
  14. Neither printed.