740.00116 PW/11–148
Memorandum by the Assistant Secretary of State for Occupied Areas (Saltzman) to the United States Representative on the Far Eastern Commission (McCoy)
Subject: Trial of Japanese War Criminals (FEC–314 Series)
Superseding previous memoranda of October 11 and October 181 on this subject, you are advised and authorized as follows:
The U.S. Government is vitally interested in the expeditious conclusion of these trials, and is informed that SCAP is actively executing policy in this respect. Your Government therefore welcomes the proposal that the FEC take appropriate action on this matter. Specifically, the U.S. supports the French paper (C5–314/1) which was approved and referred by Committee No. 5 to the Steering Committee. This paper is particularly favored by the United States by reason of its character as a recommendation, which (1) establishes a firm principle of uniform application to all member countries concerned with the trials in question, (2) permits the minimum unavoidable variations of application, in consideration solely of the practical problems of administering [Page 883] national programs, and (3) appropriately respects the dignity of the judicial authorities concerned.
In supporting C5–314/1, you are requested to move again, as was moved by the U.S. Member in Committee No. 5, that the final paragraph be amended to read: “If possible, investigations in connection with offenses falling under paragraph 1 b and 1 c of the said policy decision should be completed before 31 December 1948, and all trials thereof should be concluded if possible before 30 June 1949,” and that the last phrase of the next to the last paragraph be amended to read “should be concluded if possible before 31 December 1948.” These amendments are desired by your Government on the ground that a “recommendation”, though not mandatory in character should (1) set a firm standard for implementing authorities to follow, and (2) specify clearly in its text the nature of the flexibility of implementation which is regarded as acceptable. If a motion to this effect is defeated, you are requested, nevertheless, to continue to support C5–314/1 as drafted.
Should the question previously raised in Committee No. 5 be further pressed as to the jurisdiction of the FEC over American or other national military tribunals in Japan, you are authorized to state that, in the opinion of your Government, SCAP in providing for the trial of (b) and (c) war criminals by American military tribunals in Japan has executed policy established by the FEC. Although the trials are actually conducted by American authorities, the jurisdiction of the tribunals in respect to subject matter and the duration of such jurisdiction is as established by the FEC.
Despite the preference of your Government for a recommendation, should the Steering Committee prefer a decision concerning trials in Japan and a recommendation regarding trials elsewhere, you are authorized to accept such a proposal. Should the Committee appear to favor a “decision” only, you are requested to propose, if no other member does so, that there be also included a recommendation regarding trials elsewhere. If such a motion is defeated, you may support a decision alone. The acceptance of either a decision and recommendation, or a decison alone, should be subject, however, to the qualification of terminal dates for investigation and trials of (b) and (c) war criminals by the phrase “if possible”, which qualification you are requested to propose as set forth above. Should the Committee appear reluctant thus to qualify the terminal dates for both investigations and trials, you are authorized to accept a proposal containing this qualification with respect to trials only. Your Government does not support the use of a literally mandatory date for the conclusion of such trials, and you are authorized to oppose any amendments to this effect.
Should a proposal be made to limit the application of the paper to SCAP’s jurisdiction, you are requested to oppose such a limitation, [Page 884] in the first instance. You are, however, authorized to accept such limitation provided that the discussion does not involve setting a precedent that the FEC cannot adopt a policy decision requiring implementation by authorities other than SCAP. You are further requested to take no position on any proposal not phrased as a “recommendation” which would purport to make the policy decision specifically applicable to trials outside SCAP’s jurisdiction.
Should any proposal be advanced to incorporate language specifically granting to or withholding from SCAP, or any member country, discretion with respect to investigations of crimes or the conclusion of trials, you are requested to oppose any such specific language other than what may be implied in a phrase equivalent to “if possible”.
If the question is raised as to whether SCAP should surrender to other countries at their request after the terminal date proposed for category (a) trials, persons charged with offenses of this category, you are requested to make no proposal regarding SCAP’s responsibility in this respect, to oppose any amendment which would require the surrender of such persons, and to support, though not to introduce, any amendment which would terminate SCAP’s responsibility for the surrender of such persons.
The Chinese Member may refer again, as previously in Committee No. 5, to Article 3 of SCAP’s proclamation of January 19, 1946 establishing the International Military Tribunal for the Far East which states: “Nothing in this Order shall prejudice the jurisdiction of any other international, national or occupation court, commission or other tribunal established or to be established in Japan or in any territory of a United Nation with which Japan has been at war, for the trial of war criminals”, and argue that this proclamation recognizes that (a) charges may be tried by a national tribunal. You are instructed to oppose such an argument, pointing out that the proclamation antedates the FEC policy decision of April 3, 1946, and that Paragraph 6 of the latter clearly provides that (a) charges are to be tried by an inter-national tribunal. You should also point out the negative character of Article 3 of the proclamation quoted above, and emphasize that SCAP at that time took no position on the jurisdiction of other tribunals, which jurisdiction has since been defined by the FEC policy decision.2
[Page 885]If a question is asked as to the number of (a) suspects still in custody, you should reply that you understand that there are approximately 19 class (a) suspects still in custody, whose investigation on (b) and (c) charges is virtually completed.
- Neither printed.↩
- In a memorandum of November 16. General McCoy was further instructed if questioned as to jurisdiction and status of military tribunals in Japan to explain as follows: “In the opinion of your Government, all functions involved in the investigation, apprehension and trial of suspected war criminals in Japan are the responsibility of SCAP. All occupation forces in Japan are under his; command. The jurisdiction of any military tribunals in respect to war crimes-trials in Japan is international, stemming from the international powers conferred on SCAP and from the Far Eastern Commission policy decision of April 23, 1946. The term ‘national’ as used in connection with the Eighth Army tribunals, is purely and solely a descriptive term indicating the composition of the courts, and not their legal nature.” (740.00116 PW/11–1648)↩