740.00119 Control (Japan)/8–1546
Memorandum by the State Department Member of the
State-War-Navy Coordinating Committee (Hilldring) to the Committee
confidential
[Washington, August 20, 1946.]
Subject: Directive Regarding Exercise of Criminal and
Civil Jurisdiction over Nationals of Members of the United Nations.
There is enclosed a draft directive prepared on the basis of a policy
decision unanimously approved at the 23rd meeting of the Far Eastern
Commission on August 15, 1946,77 under the provisions of
paragraph II, A, 1, of its terms of reference. It will be noted that the
policy decision is quoted verbatim in the enclosed draft directive.
It is requested that the enclosed directive be forwarded to the Joint
Chiefs of Staff for transmission to the Supreme Commander for his
guidance in accordance with paragraph III, 1, of the terms of reference
of the Commission. It is assumed that if the Joint Chiefs of Staff feel
that the draft directive does not satisfactorily express the policy
decision of the Far Eastern Commission they will refer the matter to the
State Department for clarification before transmitting a directive on
the subject.
The Secretary General of the Far Eastern Commission has requested that
the Joint Chiefs of Staff, in transmitting the enclosed draft directive
to SCAP, inform him that the Far
Eastern Commission agreed to release the policy decision on which the
enclosed directive is based to the press, but agreed to withhold such
release until the directive had reached the Supreme Commander.
[Page 297]
[Annex]
Draft Directive for General of the Army Douglas
MacArthur Regarding Exercise of Criminal and Civil Jurisdiction
Over Nationals of Members of the United Nations
The following directive, prepared by the State Department to
implement the policy adopted by the Far Eastern Commission on 15
August 1946 under the provisions of Paragraph II, A, 1, of its terms
of reference, has been received from the State, War, and Navy
Departments for transmission to you for your guidance in accordance
with Paragraph III, 1, of those terms of reference:
- “1. The Supreme Commander for the Allied Powers should
provide that no criminal jurisdiction of any sort will be
exercised by the Japanese courts with respect to nationals
of Members of the United Nations, but that such criminal
jurisdiction will be exercised by military courts of Members
of the United Nations as follows:
- “a. In the case of
military, naval or air force personnel and persons
attached to or accompanying the armed forces, by
courts of the nation of the forces of which they are
a part. A national of a Member of the United Nations
who is present in Japan on official business and for
the purpose of performing functions in the interest
of the occupation is to be regarded as ‘attached to
or accompanying the Armed Forces.’
- “b. In the case of a
national of one of the occupying powers, by a
military court of his nationality; and
- “c. In the case of other
nationals of Members of the United Nations, by the
Allied military court having jurisdiction in the
particular territory. Such courts should be composed
of three members appointed by the Supreme Commander
for the Allied Powers, one of whom should be a
representative of that nation whose national is held
for trial, provided that if, in the judgment of the
Supreme Commander, selection of such a
representative would obstruct or unnecessarily delay
the proceedings because of the non-availability of
qualified personnel, then a representative of some
other nation may be designated.
- “2. The authority of the Japanese to take into custody any
national of a Member of the United Nations should be
strictly limited:
- “a. To those areas of Japan
not actually in Allied military occupation,
and
- “b. In such areas, only to
those cases in which there is reasonable evidence
that a serious offense has been committed. The
Japanese authorities should be placed under specific
orders to hand over such a person forthwith to the
nearest Allied military authorities.
- “3. Provision should be made that no civil jurisdiction of
any sort will be exercised by the Japanese courts with
respect to nationals of Members of the United Nations
attached to or accompanying the
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armed forces. Civil jurisdiction in
these cases should be exercised in a manner determined by
the Supreme Commander.
- “4. Decisions in all civil cases affecting other nationals
of Members of the United Nations or in which such nationals
are or may become parties, should be reviewed by the Supreme
Commander or his representative, who may revise the decision
or take such other action as may be considered necessary for
the protection of their rights.
- “5. The Supreme Commander should take such steps as he
deems necessary, including suspension of proceedings, to
ensure that in the conduct of such civil cases the rights of
nationals of Members of the United Nations parties thereto
are adequately protected.
- “6. It is recognized that the available United States
legal officers will be barely sufficient to deal with such
cases as involve United States nationals. The Supreme
Commander may therefore advise the responsible commanders of
other Allied forces that assistance in such cases as involve
their nationals must be supplied by them.
- “7. The term, ‘nationals of Members of the United
Nations’, as used in this document includes, wherever
applicable, organizations and corporations of Members of the
United Nations as well as persons.”
