Briefing Book Paper
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.
- 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.↩
- Document No. 394.↩
- See document No. 176.↩
- Not included in the Briefing Book. Cf. document No. 183.↩
- Text in Report of Robert H. Jackson, p. 128.↩
- As in the original.↩
- Not included in the Briefing Book.↩
- General of the Army Dwight D. Eisenhower.↩
- Field Marshal Sir Harold Alexander.↩
- 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.”↩
- See Department of State Bulletin, vol. xiii. p. 596.↩
- 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.↩
- Neither printed.↩