Lot 55D128: Black Book, Tab 20–B

Memorandum by the Deputy Director of the Office of Northeast Asian Affairs (McClurkin)1

top secret

Special Categories of Prisoners of War

categories singled out in the letter of november 23 from the secretary of defense 2

1. Enemy prisoners of war against whom documented cases have been prepared covering criminal acts committed prior to their capture.

2a. Enemy prisoners who have been convicted of post-capture offenses.

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2b. Enemy prisoners who are awaiting trial for post-capture offenses.

Comments:

1. As of October 10, 1951, the UN Command had 302 suspects and 43 witnesses in custody. These 302 persons are accused of having committed conventional war crimes in violation of the “Rules of Warfare” (Fourth Hague Convention). Class A war crimes (Nuremburg type) are not involved.

2. According to the Geneva Convention: “Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offense.”*

3. In view of our faithful adherence to the Geneva Conventions, the Communists know names and numbers of enemy prisoners in our custody. The UNC does not know how many UN-ROK prisoners are in enemy custody.

4. The UNC will attempt to secure a one-for-one prisoner of war exchange. In this event we would retain those prisoners whose continued retention would seem either desirable or warranted. This would include prisoners of the above categories. The following listing of factors for or against retention of these prisoners applies therefore only to the situation in which the UNC has been forced to accept the principle of an all-for-all exchange.

factors favoring the retention of prisoners of the above categories

1. We would continue to adhere to a principle of international law generally recognized within the comity of nations.

2. Continued adherence to this principle may act as a deterrent against offenders in the future. Conversely, its abandonment might encourage future offenses.

3. The punishment and continued retention of enemy war criminals, despite Communist threats to punish “UN war criminals” would show UN firmness in the face of enemy blackmail.

4. The continued retention of enemy war criminals would give us some protection against Communist bad faith regarding “UN-ROK war criminals”. (In the event we return all enemy war criminals, the Communists might secretly retain some prisoners of war and after the completion of the POW exchange punish them for war crimes.)

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factors opposing the retention of prisoners of the above categories

1. Retention and punishment of these categories would endanger the lives of prisoners of war held by the enemy. The retention of enemy criminals would expose to enemy reprisal UN prisoners in numbers much larger than the 302 enemy suspects held by us. An analysis of enemy radio intercepts reveals that in recent propaganda broadcasts the Communists have attempted to build up a case against UN atrocities and “UN war criminals.”

2. Although public opinion favors the punishment of Communist war criminals, it would react unfavorably to any action on our part which would in any way prejudice the lives of our prisoners of war. Safety of living prisoners would take precedence in the public mind over punishing the enemy prisoners for war crimes.

3. Unless we are prepared to make this question a breaking point of the negotiations, an adamant Communist position on the issue coupled with threats of reprisal to all our prisoners of war may eventually compel us to recede from our position. This would mean loss of prestige and UN weakness in the face of communist strength.

4. Under the particular circumstances of this armistice, a failure to exercise our right to punish war criminals does not constitute an abandonment of that right.

  1. The source text indicated that Walter Treumann of the Office of Northeast Asian Affairs was a codrafter of this document.
  2. Ante, p. 1167.
  3. Geneva Convention Relative to the Treatment of Prisoners of War, Article 119. Articles 99 to 108 of the same Convention apply to judicial proceedings and are also relevant. By implication there is provision for the death penalty. [Footnote in the source text.]