Foreign Relations of the United States, 1950, The United Nations; The Western Hemisphere, Volume II

723.00/11–2450

Memorandum by the Deputy Assistant Secretary for Inter-American Affairs ( Mann ) to the Officer in Charge of North and West Coast Affairs ( Krieg )

[ Washington ,] November 24, 1950.

To summarize the tentative suggestions that I made day before yesterday concerning the Haya de la Torre controversy:¹

1. The US has an interest in bringing about a solution because a) we want tranquility in our own back yard at all times and especially now when we are engaged in military conflict in Korea; b) rightly or wrongly, Haya de la Torre personalizes for many people in the US and in Latin America the struggle in Latin America for orderly democratic growth and social justice and it would be lamentable if he were treated roughly by Peruvians because of what are essentially personal hatreds; c) the case will have importance throughout Latin America for the additional reason that it questions what has now become general Latin American practice in the right of asylum for political refugees.

2. It seems doubtful from the press accounts of the decision of the International Court that the Court will be able to bring about an acceptable solution.

3. Failing a judicial settlement, it seems unlikely that the OAS, which has very limited powers, has jurisdiction to deal with the issues of asylum. (Of course, it would have jurisdiction under the Rio Treaty² to prevent aggression if the controversy should deteriorate to that extent; but this would present different issues.)

4. This leaves only the possibility of bi-lateral agreement between Peru and Colombia. We have possibly the best opportunity of inducing such an agreement although admittedly we are under these handicaps: a) The International Court, whose prestige we are bound to support, has made certain pronouncements, b) We refuse to admit the validity of the Latin American asylum doctrine.

5. We could not afford to propose a setlement which would place Haya in the hands of the Peruvians because of the risk that, regardless of what promises are made by the Peruvian Government, once the Peruvians got their hands on him violence would be done.

6. Possibly a solution which would save face on both sides would be an agreement between Colombia and Peru which would permit Haya’s trial and conviction in absentia and his sentencing by Peruvian naval or civilian courts to a term equivalent to the length of time he has been deprived of his liberty in the Colombian Embassy; and the cancellation of the sentence by the “time already served”. Peru would then give a safe conduct.³ Presumably the Colombians would agree. The Peruvians could be appealed to on the grounds that a) unity of the free world is more important in the fight against communism than is the punishment of any one individual, and b) the punishment of Haya would make him a martyr both in Peru and throughout the hemisphere which would not be good for Peru.

7. The approach to both governments should be made orally and informally to the sole end of getting the two countries to agree between themselves without any commitments of guaranty on our part.

8. We would have to be sure that there is no objection in principle to our proposing a trial in absentia under these circumstances and consideration should also be given to timing. Perhaps we could ask the Hague to discover whether a new opinion will be handed down very soon;⁴ if not, perhaps we had better proceed without delay. We should also be sure Peruvian procedure permits trials in absentia in cases of this kind.

T[homas] C. M[ann]

1. On November 20, the ICJ had given judgment in the Asylum Case, which Peru and Colombia had agreed on August 31, 1949, to submit to it. In two of its judgments the Court in effect held Sr. Victor Raúl Haya de la Torre ineligible for the asylum extended him on January 3, 1949, by the Colombian Embassy in Lima; the Court stated also that Peru was not obliged to grant him a safe conduct. However, the Court rejected a Peruvian contention that Sr. Haya de la Torre was a common criminal, and it did not state whether Colombia was obliged to surrender him to the Peruvian authorities. For a legal summary of the case, see Marjorie M. Whiteman, Digest of International Law, vol. 6 (Washington: Government Printing Office, 1968), pp. 473–488. For earlier information, see memorandum by Mr. Mills to Mr. Miller of December 20, 1949, Foreign Relations, 1949, vol. ii, p. 772.
2. For text of the Inter-American Treaty of Reciprocal Assistance, which entered into force for the United States on December 3, 1948, see Department of State Treaties and Other International Acts Series (TIAS) No. 1838, or 62 Stat. (pt. 2) 1681.
3. In telegram 148 to Lima, November 28, 1950, the Department in part set forth the proposal contained in the first two sentences of numbered paragraph 6 and asked the Embassy for comment, in advance of any mention of the suggestion to the Peruvian Government. (723.00/11–2850)
4. On November 20 Colombia had asked the Court for “interpretation” of its judgment of that day. The Court replied on November 27 that the clarifications requested were in actuality new questions it was not empowered to answer by the terms of the submission made to it by the parties. (Whiteman, Digest, vol. 6, p. 484)