740.00119 Control (Japan)/9–645

Memorandum by the Director of the Office of Far Eastern Affairs (Ballantine)15

The Department’s representatives on the SWNCC16 subcommittee for the Far East find it necessary to take a position on the question of the policy which should be followed in the trial of war criminals. I feel that this is a matter which should be decided by the policy officers of the Department and I attach a memorandum prepared by Dr. Quincy Wright setting forth the issue before the committee and his recommendations in regard thereto, in which I concur. You will note that he states that it would be desirable to have a decision on this matter by Friday morning, September 7.

I would therefore appreciate your indicating whether you concur in the recommendation or whether you desire that some other position be taken.17

J[oseph] W. B[allantine]
Memorandum by the Consultant of the Office of Far Eastern Affairs (Wright), to the Director of the Office (Ballantine)

Subject: Directive Concerning Prosecution of War Criminals in Japan

The question has arisen in a special Sub-committee of SWNCC concerning the policy which should be followed in the trial of war [Page 920] criminals. Every one in the special Sub-committee has agreed upon the procedure to be followed in regard to war criminals other than major war criminals. There is, however, disagreement in regard to the prosecuting agency and tribunals to deal with major war criminals such as those charged with the initiation of aggressive war.
It has been suggested that a directive should be sent with approval of the Joint Chiefs of Staff to the Supreme Commander for the Allied powers to establish a prosecuting agency to prepare cases against such major war criminals and to establish international military tribunals consisting of officers or civilians from Allied countries as well as from the United States for the trial of such major war criminals.
In support of this suggestion it is contended that such a procedure would eliminate the delays and difficulties which have been encountered in Europe in establishing and conducting a prosecuting agency and a tribunal by international action. It is also contended that such a procedure would assist in establishing the authority of the Supreme Commander to act in all matters for the Allied powers.
On the other hand it is contended that our Allies might feel that when dealing with a matter of obvious international importance directives to the Supreme Commander for the Allied powers ought to be approved by all the powers for which he acts, and furthermore that it would be of great advantage if the tribunal which tries major war criminals acted directly under international authority. Such a tribunal would command greater respect in establishing precedents and in impressing the Japanese people, and would also take some of the onus, certain to attach to the trial of major war criminals, from the shoulders of the United States.
With the above considerations in mind the Department of State representatives on the special Sub-committee would like to take the following position:
No directive should be sent to the Supreme Commander in the matter of the international prosecuting agency and the international tribunal for major war crimes until cleared by our principal Allies.
The policy should be adopted of establishing a unified agency under the Supreme Commander for prosecuting war criminals. On the other hand the tribunal for the trial of such war criminals should be established by agreement among the principal Allies and should act under their authority.
A note stating these policies should at once be sent to Great Britain, China, the Soviet Union and perhaps other Allied countries asking for their approval of these policies.
As soon as that approval has been obtained a directive should be sent to the Supreme Commander to organize the prosecuting agency and steps should be taken to establish the tribunal.
We would appreciate knowing whether this procedure has your approval, if possible before the meeting of the special Sub-committee Friday morning, the 7th September.
  1. Addressed to the Under Secretary of State (Acheson) and the Legal Adviser (Hackworth).
  2. State-War-Navy Coordinating Committee.
  3. Notation by Mr. Hackworth: “Agree GHH.”