740.00117 PW/8–645

Memorandum by the Special War Problems Division to the Office of the Legal Adviser and the Division of Japanese Affairs

Reference is made to the underlying memorandum of August 4, 1945 from Captain Tonseth of the Navy Department.55 Captain Tonseth sets forth for the information of the Department of State certain facts with regard to the interception of the Japanese hospital ship Tachibana [Page 458] Maru (Tatibana Maru).56 It appears to have been ascertained by the interception authorities that the conduct of the vessel was not in accordance with the terms of the Hague Convention of 1907 regarding hospital ships and that in consequence thereof the crew and patients aboard the vessel will be disembarked and the ship held for prize court adjudication.

Subsequent to the receipt of Captain Tonseth’s memorandum, it was discussed by telephone between Captain Tonseth and Mr. Hibbard (of SWP).57 At that time Captain Tonseth indicated that he wanted to be informed regarding the first reaction of the Department of State to the interception of the vessel and its capture and then stated that he would appreciate an indication whether the Department, on the basis of facts made available, is of the view that the steps taken by the military authorities were improper. He indicated that in the event that they were construed to be improper the Navy Department should be informed immediately.

Mr. Hibbard reminded Captain Tonseth of the Department’s recent discussions with the British on the subject of the interception of hospital ships. On June 16, 1945 the Department informed the British in response to the latter’s inquiry regarding the policy of this Government with respect to the interception of hospital ships in the Pacific that it is the United States military policy to avoid any interference with hospital ships of the enemy unless there is prima facie evidence of flagrant violation of the international conventions. It was further pointed out to the British that it was considered unlikely by the United States Government that the Japanese would resort to interference with Allied hospital ships except in retaliation for attacks by Allied surface forces against Japanese hospital ships.

After informal discussion of the matter with Mr. Bishop of Le,58 Captain Tonseth was informed that in the event an investigation of the facts established the violation of the Convention with respect to the characteristics required for the immunity of hospital ships there would appear to be no legal objection to the procedure adopted by the military authorities with respect to the Tachibana Maru. In this connection Mr. Bishop cited volume 6, page 459 of Hackworth’s Digest of International Law and volume 3, page 2074 of Hyde’s International Law.

This memorandum is being addressed to Le and JA in order that they might arrange to register immediate objection with the Navy Department in the event that review of the few papers available indicates [Page 459] the action of the military authorities in connection with the Tachibana Maru to have been improper. Captain Tonseth expressed his wishes in approximately the following language: “We don’t want a polite letter saying that the Navy Department is doing well; we only want to know if there is objection.”59

  1. Not printed.
  2. Captain Tonseth’s communication, paraphrasing despatches of August 3 and 4 from the Commander of the 7th Fleet, stated that the vessel was “found to be carrying contraband munitions”. (811.043/8–445)
  3. Richard E. Hibbard of the Special War Problems Division.
  4. William W. Bishop, Jr., of the Office of the Legal Adviser.
  5. In a memorandum of August 7 to the Special War Problems Division, the Division of Japanese Affairs stated: “We see no reason for concluding that the Navy did not act in accordance with ‘the United States military policy to avoid any interference with the hospital ships of the enemy unless there is prima facie evidence of flagrant violation of international conventions’. In view of the Department’s note of June 16, 1945 to the British Embassy … we assume that the Navy Department would not depart from that policy without giving the State Department an opportunity to notify the British Government of any such change in policy. A definitive expression of the Department’s opinion appears unjustified without more detailed information from the Navy.” (740.00117 PW/8–645) No reply by the Office of the Legal Adviser to the memorandum of August 6 and no communication to the Navy Department on the matter found in Department files.