Foreign Relations of the United States, 1946, General; the United Nations, Volume I

IO Files: US/A/C.6/25

United States Delegation Working Paper

confidential

[New York,] November 14, 1946.

Proposal Regarding Draft Resolution On Codification of International Law

the problem

The recent exchange of letters between the President and Judge Francis Biddle regarding the reaffirmation of the principles of the Nuremberg charter in the context of a general codification of offenses against the peace and security of mankind,²⁵ leads to a proposal that the United States Delegation submit to the General Assembly, under the subject of the Codification of International Law, a draft resolution reaffirming those principles of international law and encouraging their codification.

recommendation

It is recommended that the United States propose the following resolution for adoption by the General Assembly:

The General Assembly,

recognizing the obligation laid upon it by Article 13, paragraph 1, sub-paragraph (a) of the Charter to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification; and

taking note of the London agreement of August 8, 1945 for the establishment of an international military tribunal for the prosecution and punishment of the major war criminals;²⁶

1. approves the principles of international law established by the judgment of the Nuremberg Tribunal²⁷ under the London agreement.

2. directs the Assembly Committee on the Codification of International Law created by the Assembly’s resolution of ___________ to treat as a matter of primary importance the formulation of the principles of the London agreement and of the judgment of the Nuremberg Tribunal in the context of a general codification of offenses against the peace and security of mankind or in an International Criminal Code.

discussion

Judge Biddle, in a letter to the President dated November 9, 1946 reporting on the Nuremberg trials, recommended that “immediate consideration be given to drafting such a code (code of international criminal law), to be adopted, after the most careful study and consideration by the governments of the United Nations.” The President in his letter of reply to Judge Biddle said, “The setting up of such a code as that which you recommend is indeed an enormous undertaking, but it deserves to be studied and weighed by the best legal minds the world over. It is a fitting task to be undertaken by the governments of the United Nations. I hope that the United Nations, in line with your proposal, will reaffirm the principles of the Nuremberg charter in the context of a general codification of offenses against the peace and security of mankind.”

It seems appropriate for the United States to take the lead in recommending to the United Nations that the General Assembly not only instruct a committee to study the procedures to be followed in codifying international law (as is being done in a resolution being proposed jointly by the United States and the Chinese Delegations) but that the General Assembly itself approve the principles of international law established by the International Military Tribunal under the judgments which it rendered.

25. Judge Biddle, formerly Attorney General of the United States, was the United States Member of the International Military Tribunal for the prosecution of the major Nazi war criminals. For text of his report of November 9 to President Truman on the Nuremberg trial and judgment and recommendations for further action, see Department of State Bulletin, November 24, 1946, pp. 954 ff.; for President Truman’s reply on November 12, see ibid., p. 954.
26. For documentation concerning the discussions in London in 1945 for the setting up of the Nuremberg Tribunal, see Foreign Relations, 1945, vol. iii, pp. 1151 ff.
27. The bulk of the documentation of the International Military Tribunal, and the proceedings at Nuremberg, are printed in The Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, 42 vols. (Nuremberg 1947–49); for bracketed note on the interest of the United States in the prosecution of the German war criminals, see Foreign Relations, 1946, vol. v, p. 823.