740.00116 E.W./4–745: Telegram

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

3564. For Hackworth from Rosenman. Please repeat to Secretary of War Stimson and Attorney General Biddle.

War crimes discussions have been proceeding with Lord Chancellor,68 the Attorney General (Sir Donald Somervell) and the Judge Advocate General (McGeagh). General agreement has been tentatively reached that

the United Nations War Crimes Commission plan for a grandiose international criminal court created by treaty is not practicable but some non-treaty tribunal must be provided and announced before any rejection of the War Crimes Commission proposal;
that individual offenders will so far as practicable be returned to the scenes of their crimes for trial in accordance with the Moscow Declaration;69
that trials of other offenders will be before military courts, such courts being mixed military tribunals of two or more Allies where for some legal or political reason a mixed tribunal is preferred by the Ally having primary jurisdiction.

Discussions are still proceeding on the problems of (a) the major war criminal and (b) the “common enterprise” approach outlined in memorandum of Secretaries Stettinius and Stimson and Attorney General, dated 22 January 1945.70 The Lord Chancellor and the Attorney General seem inclined to accept the general principles of the “common enterprise” theory (much in accordance with the substance of the 22 January memorandum which, of course, has not been shown to them). With respect to the six or seven principal Nazi leaders, the Lord Chancellor represents that there is substantial British support for a wholly political disposition of these leaders, possibly without any hearing whatsoever. The Lord Chancellor, however, suggests a middle or compromise ground of approach which is described by him in a letter of 6 April71 paraphrased in part at the end of this cable.

A copy of this letter is being sent by courier to you and to Mr. McCloy72 at SHAEF. He will be here next week. I would be interested in having at the earliest possible moment any comments you, Secretary Stimson or Attorney General Biddle may have.73

Personally I feel that much is to be said for the Lord Chancellor’s suggestion for a separate method of dealing with the top six or seven Nazi leaders. I would approve it if we can get British acceptance of the common enterprise proposal along lines of 22 January memorandum and subject to the following three comments

the court to try the six or seven leaders should be military;
the court should pass sentence and determine punishment, possibly subject to approval by the four major governments through the Control Council for Germany;
the document of arraignment must have such adequate and reasonable documentation that oral testimony will be unnecessary to prove the accused guilty.

Because of the risk to Allied nationals in German hands, complete secrecy is desired. The British representatives will promptly explore the matters outlined above with the War Cabinet. Question of best [Page 1160] method and appropriate time of approaching Russians and French is being further explored.

Follows abbreviated paraphrase of parts of Lord Simon’s letter:

I send you an outline of a method of dealing with Hitler, Mussolini and other arch criminals, designed to furnish an appropriate mode of dealing with them in a way which avoids summary execution without trial, on the one hand, and a long drawn out state trial with endless witnesses to be cross-examined on the other.

The Allies would draw up a “document of arraignment” in somewhat general terms and an inter-Allied judicial tribunal (possibly including some members not professional judges) would report upon the truth of this arraignment after Hitler and company had been given the opportunity to challenge before the tribunal the truth of its contents, the opportunity of being heard, and, of producing documents and witnesses. The function of the court would be to report to the Allies whether the arraignment or any part of it had been disproved. The Allies themselves (as the Moscow Declaration announced) would then determine the punishment.

Strongly I feel that no judicial tribunal can have the responsibility of the sentence, but that is different from saying that a special tribunal could not say impartially and judicially whether the arraignment is disproved. If the sentence is left to judges they must, of course, act on their own judgment without executive prompting. This is the Anglo-American tradition. I would never consent or allow British judges to carry out the orders of any combination of Governments. My plan puts the ultimate responsibility of deciding about Hitler and company upon the Allies themselves. This must be so for the ultimate fate of Hitler may influence world history for years. By calling on Hitler and company to disprove, if they can, a carefully drawn arraignment, the substance of trial before sentence will be secured.

The document of arraignment would set forth the real offense which the world feels these major criminals have committed, that is the Nazi policy of world conquest and the methods employed to achieve it. Mussolini’s share would also be alleged. One count would be the treatment of Jews in Germany and elsewhere. The arraignment would be supported by the principal documents, e.g. Mein Kampf, or passages of Hitler’s speeches, but the whole point would be that these men would be arraigned by broad descriptions of what they have done (as the whole world knows) and that they would be left to meet this arraignment, or any part of it, if they could.

The following considerations strongly support this plan in my view:

Trial would not be for “war crimes” in the technical sense and no discussion would take place as to whether what was charged was a crime by any law. The issue would be, can Hitler prove to an impartial court that the facts alleged are untrue.
The plan would include the Nazi infamies such as the attempted annihilation of the Jews. Hitler could not say that international law does not forbid a ruler to maltreat his own subjects.
If Hitler and company deny the jurisdiction of the court and refuse to take any part, they will have been charged with [Page 1161] facts known to the world as true. The fact that an impartial tribunal was prepared to hear him would justify any sentence to history.
If he challenges the arraignment in an interminable speech, this will not in the end affect approval of this judicial pronouncement. To deal with the man judicially you must offer to hear what he has to say, so far as it is relevant.
History may be distorted, and it would be helpful to have the Foreign Offices of the principal Allies and others prepare a document with considerable, but not excessive, documentation, making a record for all time of the grounds upon which we dealt with the man.

I have been much impressed by the word I have received of Mr. Stimson’s strong feeling that there should be a judicial proceeding before execution. However, I have been worried by the prospect of a long trial in which all sorts of things were discussed, legal or historical—leading to controversy and debate in the world at large, with unpredictable reaction. I regard it as the first condition for the success in this most difficult matter that there should be agreement between your Government and ours.

In sending this description of the plan, I do not write with authority of the War Cabinet, though the Government members with whom I have talked view with favor the suggestion.

The number of individuals dealt with under this plan would be quite limited; only those the public knows as principal leaders. Concerning the intermediate class of chiefs and members of the Gestapo and the SS, I appreciate the value of your suggestion based on an allegation of conspiracy in a common criminal endeavor. I will study the document which sets out this scheme in more detail.

(End of paraphrase.)

  1. Viscount John Allsebrook Simon.
  2. Anglo-Soviet-American communiqué, November 1, 1943, Foreign Relations, 1943, vol. i, p. 755.
  3. Printed in Report of Robert E. Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (Washington, 1049), p. 3.
  4. This letter, together with a letter from Mr. Rosenman to Lord Simon of April 6, and a memorandum of Mr. Rosenman’s of the same date, were enclosed in a letter from Mr. D. Sommers to Mr. Hackworth of April 10, none printed.
  5. John J. McCloy, Assistant Secretary of War.
  6. In telegram 2824 of April 11, Rosenman was informed that Mr. Stimson was out of town and Mr. Biddle not prepared to give his views at the moment. The Department was “therefore under the necessity of suggesting that you defer for the time being presentation of your counter proposals regarding the top leaders …”. (740.00116 EW/4–745)