740.00116 PW/9–745

The Assistant Secretary of War ( McCloy ) to the Acting Secretary of State ( Acheson )

Dear Dean: I understand that there is some disagreement between your working group on the Far Eastern war criminals matter and the Army and Navy people. The War and Navy working members feel very strongly that General MacArthur should be given power

1.
to set up international military courts to try all Far Eastern war criminals (in cases where they should be tried by an international court as opposed to a military court of a single nation). This would include the major Far Eastern criminals as well as the lesser fry;
2.
to prescribe rules of procedure and to define the applicable principles of substantive law to be applied by the courts so created. In the case of the major war criminals these rules of procedure and applicable principles of law would be entirely harmonious with those in force in Europe as arranged by Mr. Justice Jackson;
3.
to appoint himself, the members of the court upon nominations obtained by him from members of participating nations.

The working members from the two service departments feel that the power of appointment should rest in General MacArthur upon nomination by the governments concerned (preferably through their local military commanders) rather than having it committed to the governments themselves. I understand that a memorandum of the reasons supporting this conclusion has been submitted to you. I attach an extra copy (Tab “A”), and I agree with the views so expressed.

I think the State Department working group, which seems to prefer having the members of the court appointed directly by the governments concerned, places entirely undue weight upon the importance of such direct appointment. A court appointed by General MacArthur as Supreme Allied Commander would be, and could be publicized as being, an international court in every sense. If well selected, its decisions would have just as much weight in establishing precedents and in impressing the Japanese people as a more cumbersome court appointed directly by the governments concerned. As an international court, it would be fully as effective in spreading over several nations the responsibility for trial of the major Japanese war criminals.

I hope you will go along with the War and Navy Department working groups’ recommendation in this respect.

Sincerely,

John J. McCloy

I think it will save us many of the delays and vexations which Jackson encountered in Germany.

[Page 923]
[Enclosure]
Memorandum for the Acting Secretary of State

The Service representatives believe that appointment of the judges by General MacArthur upon nominations received by him from the several nations, is advantageous for the following reasons:

a.
It will expedite appointment of courts. If nominations are not received, he may proceed without participation by a particular nation.
b.
It will permit negotiation on a military level for the appointment by the nations concerned of judges, having legal training and language abilities which will minimize the practical obstacles resulting from differences in language, juristic background and similar matters.
c.
It will enable General MacArthur to perform more effectively the functions with respect to war criminals as to which world opinion will charge him with responsibility.
d.
In the opinion of the Service representatives, a court, appointed by General MacArthur upon nominations of the several governments concerned (preferably acting through their local military commanders), will be an international military tribunal of the same quality, type and established to apply the same principles and in the same manner as the international Military Tribunal appointed to deal with the subject in Europe, as arranged by Mr. Justice Jackson. It is believed by the Service representatives that the proposed court so appointed by General MacArthur would in all respects act in a manner consistent with the European precedent.