740.00119 Control (Austria)/8–1948: Telegram
The Minister in Austria (Erhardt) to the Secretary of State
1006. Question of legality of Marek arrest (Deptel 695, August 111) has two separate aspects:
- 1.
- Possible Soviet violation of British jurisdiction in international zone during month of June 1948.
- 2.
- Possible Soviet violation of Control Agreement by arrest of
government official.
- 1.
- Although indications exist Marek was called to Soviet office in international zone and there detained, no positive proof of this is available. Moreover, pressing this aspect is believed unprofitable, since by implication it might appear to concede Russians the right to arrest officials in international zone during month of Soviet chairmanship or in Soviet zone at any time.
- 2.
- No specific provision exists in Control Agreement which prohibits arrests of Austrian officials. Legal argument of Western Allies in ACC [ AC ] meeting June 25 centered essentially around Article 3 of Control Agreement which defined primary task of AC as “assisting freely-elected government to assume as quickly as possible full control of affairs of state in Austria.” Soviets in AC August 13, on other hand, pointed out that Articles 2 and 5 granted Commanders in Chief the right “to take necessary measures for protection and security of their forces.” This argument is, however, deficient since Article 2 allows action by individual high commissioners only “to maintain law and order” whereas Article 5 allows direct action for “protection and security of Allied Forces” to be taken by Allied Commanders collectively rather than individually.
Legal arguments are thus rather inconclusive though it is obvious frequent arrests of Austrian officials violate spirit of Moscow Declaration and Control Agreement. US position in AC therefore has been:
- (a)
- To emphasize violation of spirit rather than letter of international agreements;
- (b)
- To expose probable Soviet intention, through weakening morale of Austrian officials, to foster Communist subversive activities, and
- (c)
- To press proposals for a specific procedure on arrests of government officials.
Replying balance of specific question urtel:
- 1.
- Kiridus arrest2 took place at Soviet check point on demarcation line, but clearly inside Soviet Zone.
- 2.
- Minor government officials have in past been arrested by other occupation powers. For instance, US in June 1947 arrested Director [Page 1434] of Salzburg police on charges falsification of US denazification questionnaire and sentenced him seven years jail. Upon review sentence was reduced to 18 months suspended.
- 3.
- Possibility exists Soviets will use Marek testimony not only to incriminate others in Ministry of Interior but also to distort his relations with US officials to create impression of espionage. As pointed out Legtel 792, June 21,3 Marek could in no way be considered US agent although he maintained contact with USFA.
Vigorousness of western and particularly US reaction to Marek and kiridus arreste may have caused Soviets to reconsider or delay any further steps they contemplated against Ministry of Interior. Publication of evidence against Marek, for instance, which was forecast June 19, has not yet taken place. Possible Soviets may be awaiting anticipated developments in overall east-west relationships before deciding whether to utilize Marek case merely as warning to Austrian intelligence agencies or to exploit it as pretext for major attack on Interior Ministry. In any case Department will, of course, recognize that, while western representatives will exhaust every capability of quadripartite machinery to check Soviet kidnappings (French proposal for new procedure governing arrests by occupation power is still formally before AC and British are considering presenting additional proposal), AC is in last analysis powerless to prevent unilateral Soviet action of this kind. Soviets will always justify such action on basis security of forces as did Zheltov in AC August 13 (see PC–156663). Proposed new procedures are almost certain to be rejected by Soviets and any effectiveness which airing of subject in AC may have depends largely upon degree of Soviet susceptibility to public opinion.
In view of fact we have no effective means of preventing kidnapping Austrian officials in Soviet Zone or in international zone during months of Soviet AC chairmanship, we would favor presentation of matter to UN if it should prove that western protests in AC have been fruitless and if further arrests of Austrian officials such as Marek, as distinguished from kidnapping of minor intelligence agents, should take place. It cannot be emphasized too strongly that continued kidnapping of high-ranking officials would be likely so to undermine morale of bureaucracy that Austrian administration in Soviet Zone, including their zone of Vienna, could become Marek shadow with substance of power resting in hands of Soviet authorities. Such development could go far toward effective partition of country without formal outward changes having taken place.
USFA and Legation will follow situation closely with view to submitting recommendation if and when we believe submission to UN [Page 1435] becomes advisable. There is little doubt full Austrian support of such move could be obtained.
USFA concurs.