Foreign Relations of the United States: Diplomatic Papers, Conferences at Malta and Yalta, 1945

740.00116 EW/1–2245

The Legal Adviser (Hackworth) to the Secretary of State ¹

top secret

[Washington,] January 22, 1945.

The Secretary: There are attached two memoranda, marked A and B, regarding War Crimes.

Memorandum A is the one which you, Secretary Stimson, and the Attorney General have signed. It states the problem and suggests possible procedure.

Memorandum B is a suggested draft in which the basic ideas of the first-mentioned paper are brought together in a form which can be signed or initialed, if it is approved. It would constitute the first step toward putting machinery into operation. A copy has been delivered to Judge Rosenman.

The international tribunal referred to would be short-lived. It would try and adjudge the principal culprits and would lay the foundation for the subsequent trial of the other offenders. The latter would be tried in the occupation courts or tribunals and in the national courts—civil or military—of the different countries as might be decided.

The plan would implement the Moscow Declaration² and other Declarations on this subject by the United Nations.

You will see from my short memorandum to Judge Rosenman, dated January 20,³ that it was not thought desirable to try to cover certain questions at this time, principal among which is the question of the majority by which the tribunal should give decisions. A simple majority would be in keeping with the usual practice in such cases.

Green H. Hackworth

[Attachment 1—Memorandum A]

[Washington,] January 22, 1945.

Memorandum for the President⁴

Subject: Trial and Punishment of Nazi War Criminals.

This memorandum deals with ways and means for carrying out the policy regarding the trial and punishment of Nazi criminals, as established in the statements on that subject which are annexed (Tabs A to F⁵).

I. The Moscow Declaration

In the Moscow Declaration (Tab D) the United Kingdom, the United States, and the Soviet Union took note of the atrocities perpetrated by the Germans and laid down the policy: (1) that those German officers and men who have been responsible for or have taken a consenting part in these atrocities “will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein”: and (2) that the above declaration “is without prejudice to the case of the major criminals, whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies.”

II. United Nations War Crimes Commission

The United Nations War Crimes Commission is located in London, and consists of representatives of some fifteen of the United Nations. The Soviet Government is not a member.

This Commission has been charged with the collection of lists of the criminals referred to, the recording of the available supporting proof, and the making of recommendations as to the tribunals to try and the procedure for trying such criminals. The Commission has no investigative or prosecuting authority or personnel. It has no authority to try offenders of any kind.

The War Crimes Commission receives its lists of war criminals from the investigating authorities, if any, set up by the respective United Nations. The first unofficial meeting of the Commission was held in London on October 26, 1943, and the first official meeting was held there on January 18, 1944. Up to this time, the cases of approximately 1,000 offenders have been docketed with the Commission. The labors of the Commission have not resulted in any governmental agreement as to the tribunals to try or the procedures for trying war criminals.

The Commission has been widely and publicly criticized for the paucity of the results of its work. In recent months its activities have been marked by dissensions. The British representative, who was also Chairman of the Commission, and the Norwegian member, have resigned.

III. Scope and Dimensions of the War Crimes Problem

The crimes to be punished. The criminality of the German leaders and their associates does not consist solely of individual outrages, but represents the result of a systematic and planned reign of terror within Germany, in the satellite Axis countries, and in the occupied countries of Europe. This conduct goes back at least as far as 1933, when Hitler was first appointed Chancellor of the Reich. It has been marked by mass murders, imprisonments, expulsions and deportations of populations; the starvation, torture and inhuman treatment of civilians; the wholesale looting of public and private property on a scale unparalleled in history; and, after initiation of “total” war, its prosecution with utter and ruthless disregard for the laws and customs of war.

We are satisfied that these atrocities were perpetrated in pursuance of a premeditated criminal plan or enterprise which either contemplated or necessarily involved their commission.

The criminals to be punished. The outstanding offenders are, of course, those leaders of the Nazi Party and German Reich who since January 30, 1933, have been in control of formulating and executing Nazi policies.

In addition, the Nazi leaders created and utilized a numerous organization for carrying out the acts of oppression and terrorism which their program involved. Chief among the instrumentalities used by them are the SS, from the personnel of which the Gestapo is constituted, and the SA. These organizations consist of exactingly screened volunteers who are pledged to absolute obedience. The members of these organizations are also the personnel primarily relied upon to carry on postwar guerilla and underground operations.

IV Difficulties of an Effective War Crimes Program

Difficulties of identification and proof. The names of the chief German leaders are well known, and the proof of their guilt will not offer great difficulties. However, the crimes to be punished have been committed upon such a large scale that the problem of identification, trial and punishment of their perpetrators presents a situation without parallel in the administration of criminal justice. In thousands of cases, it will be impossible to establish the offender’s identity or to connect him with the particular act charged. Witnesses will be dead, otherwise incapacitated and scattered. The gathering of proof will be laborious and costly, and the mechanical problems involved in uncovering and preparing proof of particular offenses one of appalling dimensions. It is evident that only a negligible minority of the offenders will be reached by attempting to try them on the basis of separate prosecutions for their individual offenses. It is not unlikely, in fact, that the Nazis have been counting on just such considerations, together with delay and war weariness, to protect them against punishment for their crimes if they lost the war.

Legal Difficulties. The attempt to punish the Nazi leaders and their associates for all of the atrocities committed by them also involves serious legal difficulties. Many of these atrocities, as noted in your statement on the subject of persecution dated 24 March 1944 (Tab E), were “begun by the Nazis in the days of peace and multiplied by them a hundred times in time of war.” These pre-war atrocities are neither “war crimes” in the technical sense, nor offenses against international law; and the extent to which they may have been in violation of German law, as changed by the Nazis, is doubtful. Nevertheless, the declared policy of the United Nations is that these crimes, too, shall be punished; and the interests of postwar security and a necessary rehabilitation of German peoples, as well as the demands of justice, require that this be done.

V. Recommended Program

After Germany’s unconditional surrender the United Nations could, if they elected, put to death the most notorious Nazi criminals, such as Hitler or Himmler, without trial or hearing. We do not favor this method. While it has the advantages of a sure and swift disposition, it would be violative of the most fundamental principles of justice, common to all the United Nations. This would encourage the Germans to turn these criminals into martyrs, and, in any event, only a few individuals could be reached in this way.

We think that the just and effective solution lies in the use of the judicial method. Condemnation of these criminals after a trial, moreover, would command maximum public support in our own times and receive the respect of history. The use of the judicial method will, in addition, make available for all mankind to study in future years an authentic record of Nazi crimes and criminality.

We recommend the following:

The German leaders and the organizations employed by them, such as those referred to above (SA, SS, Gestapo), should be charged both with the commission of their atrocious crimes, and also with joint participation in a broad criminal enterprise which included and intended these crimes, or was reasonably calculated to bring them about. The allegation of the criminal enterprise would be so couched as to permit full proof of the entire Nazi plan from its inception and the means used in its furtherance and execution, including the prewar atrocities and those committed against their own nationals, neutrals, and stateless persons, as well as the waging of an illegal war of aggression with ruthless disregard for international law and the rules of war. Such a charge would be firmly founded upon the rule of liability, common to all penal systems and included in the general doctrines of the laws of war, that those who participate in the formulation and execution of a criminal plan involving multiple crimes are jointly liable for each of the offenses committed and jointly responsible for the acts of each other. Under such a charge there are admissible in evidence the acts of any of the conspirators done in furtherance of the conspiracy, whether or not these acts were in themselves criminal and subject to separate prosecution as such.

The trial of this charge and the determination of the guilty parties would be carried out in two stages:

The United Nations would, in the first instance, bring before an international tribunal created by Executive Agreement, the highest ranking German leaders to a number fairly representative of the groups and organizations charged with complicity in the basic criminal plan. Adjudication would be sought not only of the guilt of those individuals physically before the court, but also of the complicity of the members of the organizations included within the charge. The court would make findings adjudicating the facts established, including the nature and purposes of the criminal plan, the identity of the groups and organizations guilty of complicity in it, and the acts committed in its execution. The court would also sentence those individual defendants physically before it who are convicted.

The above would complete the mission of this international tribunal.

Thereafter, there would be brought before occupation courts the individuals not sent back for trial under the provisions of the Moscow Declaration, and members of the organizations who are charged with complicity through such membership, but against whom there is not sufficient proof of specific atrocities. In view of the nature of the charges and the representative character of the defendants who were before the court in the first trial, the findings of that court should justly be taken to constitute a general adjudication of the criminal character of the groups and organizations referred to, binding upon all the members thereof in their subsequent trials in occupation courts. In these subsequent trials, therefore, the only necessary proof of guilt of any particular defendant would be his membership in one of these organizations. Proof would also be taken of the nature and extent of the individual’s participation. The punishment of each defendant would be made appropriate to the facts of his particular case. In appropriate cases, the penalty might be imprisonment at hard labor instead of the death penalty, and the offenders could be worked in restoring the devastated areas.

Individual defendants who can be connected with specific atrocities will be tried and punished in the national courts of the countries concerned, as contemplated in the Moscow Declaration.

VI. Nature and Composition of Tribunals

We favor the trial of the prime leaders by an international military commission or military court, established by Executive Agreement of the heads of State of the interested United Nations. This would require no enabling legislation or treaty. If deemed preferable the tribunal could be established by action of the Supreme Authority (Control Council for Germany).

The court might consist of seven members, one each to be appointed by The British Commonwealth, the United States, the Soviet Union and France, and three to be appointed by agreement among the other United Nations who become parties to the proposed procedure.

The court may consist of civilian or military personnel, or both. We would prefer a court of military personnel, as being less likely to give undue weight to technical contentions and legalistic arguments.

The subsequent trials would be had, as noted, in occupation courts; or in the national courts of the country concerned or in their own military courts; or, if desired, by international military courts.

VII. Preparation of Case

A successful prosecution of the basic charge will manifestly depend upon early, careful, and thorough compilation of the necessary evidence. This is particularly important with regard to so much of the case as involves the basic criminal plan. Success will depend, further, upon cooperative action in this regard among the interested United Nations, and the early establishment of a competent executive and technical staff to carry out the project.

In our opinion, the United Nations War Crimes Commission cannot be satisfactorily employed for this purpose, and having performed its mission, may now be dissolved.

We recommend that there be set up a full time executive group consisting of one military representative each of the British Commonwealth, the United States, the Soviet Union, and France. This group should have under it an adequate staff of attorneys and research personnel to search out the available data, analyze them, prepare the charges to conform to the proof, and arrange the evidence for presentation to the international military tribunal.

VIII. Soviet Attitude

The Soviet attitude, we believe, is indicated in the Note of M. Molotov attached hereto as Tab F. The position taken therein is that the Soviet Union is ready to support all practical measures on the part of the Allied and friendly governments in bringing the Hitlerites and their accomplices to justice, and favors their trial before “the courts of the special international tribunal” and their punishment in accordance with applicable criminal law.

IX. British Attitude

In an Aide-Mémoire from the British Embassy to the Department of State dated October 30, 1944,⁶ the British Foreign Office indicates that it is prepared to agree and to cooperate in establishing Mixed Military Tribunals to deal with cases which for one reason or another could not be tried in national courts. This would appear, according to the Aide-Mémoire, to include those cases where a person is accused of having committed war crimes against the nationals of several of the United Nations.

[Attachment 2]

The Legal Adviser (Hackworth) to the Special Counsel to the President (Rosenman)

[Washington,] January 20, 1945.

Memorandum for Judge Rosenman

The White House

There is attached the implementing instrument which you asked the Attorney General to have me draw up and send to you.

In my opinion the effect of thus putting together in one paper the implementing provisions without discussion or explanatory matter, is to clarify the nature of the project and how it will work out.

You will observe that the enclosed does not go into questions such as the procedure to be followed by the tribunals, or by what majority decisions should be reached. If the basic plan is approved by the interested parties, such questions will naturally arise. However, in my opinion, their introduction here might tend to bog down the project on details. While fully realizing the importance of such questions and the extent to which differences of opinion may arise about them, I am in favor of not trying to cover them at this time.

[Attachment 3—Memorandum B]

Punishment of War Criminals

The United Nations have on various occasions expressed their abhorrence for the unspeakable crimes and atrocities of which the German leaders and their associates are guilty, and have pledged themselves that those responsible for such crimes and atrocities shall not escape retribution.

The United Kingdom, the United States, and the Soviet Union in the Declaration issued at Moscow November 1, 1943 stated:

(1) that those German officers and men who have been responsible for or have taken a consenting part in these atrocities “will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein”; and

(2) that the above declaration was “without prejudice to the case of the major criminals, whose offenses have no particular geographical localization and who will be punished by the joint declaration of the Governments of the Allies.”

The criminality of the German leaders and their associates does not consist solely of individual outrages, but represents the result of a systematic and planned reign of terror within Germany and within the areas occupied by German military forces, in connection with which the crimes and atrocities referred to were committed. We are satisfied that these crimes and atrocities were perpetrated pursuant to a premeditated criminal plan.

For the carrying out of the acts of oppression and terrorism which their program involved, the Nazi leaders and their associates created and utilized a numerous organization, chief among which are the SS, the Gestapo, and the SA.

Having in view the foregoing, and in order to press on with the necessary practical measures to bring to justice the criminals referred to, the President of the United States of America, the Prime Minister of Great Britain, and the Premier of the Soviet Union have agreed upon the following:

I

The German leaders and their associates, and the organizations employed by them, such as those referred to above, will be charged with both the commission of their atrocious crimes, and also with joint participation in a broad criminal enterprise which included and intended these crimes, or was reasonably calculated to bring them about. The allegation of the criminal enterprise will be so couched as to permit full proof of the entire Nazi plan from its inception and the means used in its furtherance and execution, including the pre-war atrocities and those committed against their own nationals, neutrals, and stateless persons, as well as the waging of an illegal war of aggression with ruthless disregard for international law and the rules of war. There will be invoked the rule of liability, common to all penal systems and included in the general doctrines of the laws of war, that those who participate in the formulation and execution of a criminal plan involving multiple crimes are jointly liable for each of the offenses committed and jointly responsible for the acts of each other. In support of this charge there will be admitted in evidence the acts of any of the conspirators done in furtherance of the conspiracy, whether or not these acts were in themselves criminal and subject to separate prosecution as such.

II

The trial of the charge described in Article I and the determination of the guilty parties will be carried out in two stages:

(a) There will be brought before an international tribunal to be created the highest ranking German leaders to a number fairly representative of the groups and organizations charged with complicity in the basic criminal plan. Adjudication will be sought not only of the guilt of those individuals physically before the tribunal, but also of the complicity of the members of the organizations included within the charge. The tribunal will make findings adjudicating the facts established, including the nature and purposes of the criminal plan, the identity of the groups and organizations guilty of complicity in it, and the acts committed in its execution. The tribunal will sentence those individual defendants physically before it who are convicted.

The above will complete the mission of this international tribunal.

(b) Thereafter, other individuals charged with specific atrocities and members of the organizations who are charged with complicity through such membership in the basic criminal plan but against whom there is not sufficient proof of specific atrocities shall, unless held for trial by one of the United Nations or sent back for trial under the provisions of the Moscow Declaration, be brought before occupation or other appropriate tribunals. The findings of the tribunal in the trial provided for in paragraph (a) of this Article will be taken to constitute a general adjudication of the criminal character of the groups and organizations referred to, binding upon all the members thereof in their subsequent trials in occupation tribunals or in other tribunals established under this instrument. In these subsequent trials the only necessary proof of guilt of any particular defendant, as regards the charge of complicity, will be his membership in one of those organizations. Proof will also be taken of the nature and extent of the individual’s participation.

(c) The defendant in each case shall, upon conviction, suffer death or such other punishment as the tribunal may direct, depending upon the gravity of the offense and the degree of culpability of the defendant.

III

The tribunal for the trial of the basic crime referred to in Article II (a) shall consist of seven members, to be appointed as follows: one each by the British Commonwealth, the United States, the Soviet Union, and France, and three by agreement among the other United Nations who become parties to this instrument.

The members of the tribunal may be civilian or military as the appointing authority in each case may prefer.

IV

(a) There shall be created a full time executive group consisting of one military representative each of the British Commonwealth, the United States, the Soviet Union, and France. This group shall be assisted by an adequate staff of attorneys and research personnel to compile and analyze data, prepare the charges to conform to the proof and arrange the evidence for presentation to the international tribunal.

(b) The presentation of the case before the international tribunal shall be made by persons designated by the British Commonwealth, the United States, the Soviet Union, and France, each of these countries being entitled to designate one person, who may be its member of the executive group referred to in paragraph (a) of this Article.

V

(a) The emoluments and expenses of those members of the tribunal provided for in Article III, designated by the British Commonwealth, the United States, the Soviet Union, and France, and of the executive group provided for in Article IV (a), shall be borne by the respective Governments just mentioned.

(b) The emoluments and expenses of the other three members of the tribunal shall be borne by the Governments of the other United Nations parties to this instrument.

(c) The emoluments and expenses of the staff assisting the executive group, and of secretarial staffs for the tribunal and the executive group, and incidental expenses, such as rent, heat, light, stationery and printing, shall be borne by the parties to this instrument in equal shares.

VI

All members of the United Nations shall be invited by the Government of the United Kingdom, acting on behalf of the other signatories hereto, to adhere to this instrument. Such adherence shall in each case be notified to the Government of the United Kingdom which shall promptly inform the other parties to this instrument.

Done at _____________ this the _____________ day of _____________, 1945.

1. A notation on the file, written by Katherine B. Fite, of the Office of the Legal Adviser, and dated March 21, 1949, states: “The attached is the Secretary’s copy of the memo of Jan. 22, 1945, on Nazi war criminals sent to the President. This is the copy which went with the Secretary to Yalta.”
2. Printed in Decade, pp. 13–14; also in Department of State Bulletin, November 6, 1943, vol. ix, pp. 310–311.
3. Post, p. 408.
4. This memorandum is printed in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Department of State Publication 3080 (London, 1945), pp. 3–9.
5. Not printed herein, but published in the Jackson Report referred to in the preceding footnote. Each of the tabs was a statement denouncing German atrocities.
6. Not printed.