Doc. No. 10 (G).
Memorandum on the Clauses of the Draft Peace Treaty Concerning the Criminals of War (Art. 38)
Article 38
1. According to the text of sub-paragraph 1 (a) of Article 38 Italy’s obligation to apprehend and surrender for trial persons accused of war crimes would extend not only to persons accused of having committed war crimes proper, but also to persons accused of crimes against peace or humanity and to their accomplices.
As regards crimes against peace and humanity, such a measure is hardly justifiable to-day with regard to Italy. Italian political leaders responsible for the Fascist war as well as their accomplices have all already been dealt with directly by the Italian people.
As regards the accomplices of war criminals, it must be pointed out that the provision of Article 38, is open to unforeseen extensions in its execution.
[Page 159]The first paragraph of this Article should therefore be limited to cover war criminals in the strict sense of the word.
2. Italy, according to Article 38 is obliged to apprehend and surrender for trial the above-mentioned persons, without any guarantees, at the simple request of the foreign country concerned. It would appear necessary that Italy’s obligation to apprehend and surrender persons accused of war crimes should be preceded by a screening of each request by the Council of four Ambassadors acting as provided under Article 75. This Council, after allowing the Italian Government to submit all pertinent information, could decide in each case if sufficient indications exist to warrant approval of the request.
3. Article 38 of the draft Peace Treaty fails to provide a clause defining the Court before which the war criminals must be tried. The Italian Government feels entitled to ask that this Court should be formed in such a way as to afford indispensable guarantees of impartiality. To this end an International Court should be established, whose composition and procedure should be the subject of an agreement between the four Big Powers and Italy.
4. The Moscow Conference of October 30, 1943, ordered, as regards Germany, the surrender of all war criminals to the Governments of the countries where they had committed their crimes for trial before local Courts. The Italian Government feels entitled to ask that Italian nationals accused of war crimes be given a different treatment than that provided for Germans. It would, in fact, be contrary to justice to confuse the conduct of Italian and German armed forces. Moreover, the Italian request for trial by an International Court is consistent with the spirit of the Moscow Declaration (October 30, 1943) which spoke of Italian war criminals in different terms from those used for the Germans, merely establishing that they would be “brought to trial” without any further indication.
The Italian request is based, above all, on the fact that Italy, even though qualified as a former enemy country, is also—as stated in the Preamble of the Draft Treaty—a co-belligerent with the Allied and Associated Powers against Germany.