Foreign Relations of the United States, 1952–1954, Korea, Volume XV, Part 1

Matthews files, lot 53 D 413: Telegram

The Joint Chiefs of Staff to the Commander in Chief Far East (Clark)

secret
operational immediate

Washington, April 8, 1953—7:15 p.m.

JCS 936069. From JCS. References: A. JCS 935344¹ B. C 61723² C. CX 61799³

Part I:

1. Reference paragraph 4d, reference C. We concur that Communist reservations may indicate intent to seek to establish principle of accommodation in neutral countries for non-repatriated sick and wounded in accordance with first sentence, second paragraph, Article 109, Geneva Convention. They may then seek to use this as pattern for subsequent agreement on all other non-repatriates. While Article 109 is intended to apply during hostilities they may well be seeking to establish a pattern thereunder which could be extended to post-hostilities stage.

2. You should continue to seek agreement on immediate exchange of maximum number sick and wounded repatriates, avoiding injection of question of disposition of sick and wounded non-repatriates which can only result in hold-up of completion exchange sick and wounded. While failure to take issue with Communist reservation at this time may later be cited by them as evidence of our acquiescence in it, we believe it preferable not to mention this reservation in order avoid entanglement extended discussion non-repatriates. If in light of the negotiating situation it becomes necessary to comment on reservation, suggest that you state that UNC reserves its position with regard to this reservation. If further comment becomes necessary, state that UNC does not commit itself at this time as to what rights, if any, Communists have in this regard, or what position UNC will take on these issues in any future discussions of non-repatriates.

3. If the Communists insist on discussing and settling question of disposition of sick and wounded non-repatriates as condition for agreement on exchange of sick and wounded repatriates you should state that UNC sees no reason that this question cannot and should not be resolved following disposition question sick and wounded repatriates.

4. Although we are considering comments contained in reference B, part 1, paragraph a, we do not believe that real progress can be made or decisions reached concerning the question of sending non-repatriated to neutral countries until we receive specific and detailed proposal from the Communists as requested by your letter of April 5⁴ and by the UNC liaison group at the April 6 meeting.

Part II:

For your information and any comments you may wish to make, the following are preliminary State Department views on the legal aspects of the questions which thus far appear to have been raised by the Communist reservation at April 7 meeting liaison group:

A. The first paragraph of Article 109 creates an unconditional obligation to repatriate seriously wounded and seriously sick if they are fit to travel. The third paragraph of Article 109 provides that this obligation applies only to those willing to go and that the parties are forbidden to repatriate such sick and wounded against their will during hostilities.

B. Paragraph 2, Article 109, provides that throughout the duration of hostilities parties “shall endeavor … to make arrangements for the accommodation in neutral countries of the sick and wounded POWs referred to in-the-second paragraph of the following article”. As to these sick and wounded of lesser seriousness there is therefore in the nature of an obligation to seek in good faith an agreement for their accommodation with a neutral country during hostilities. There is no obligation to make any particular agreement. While Communists therefore may reserve the right to “ask” for an agreement in regard to internment in a neutral country of such sick and wounded POWs who are not repatriated, UNC will be in a position to insist on conditions (e.g. in regard to ultimate disposition, what country they shall go to, etc.).

C. The second sentence of paragraph 2 of Article 109 provides “They may, in addition, conclude agreements with a view to the direct repatriation of internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity”. The possibility exists that under this sentence the Communists may seek agreement for the internment of all non-repatriates in neutral countries. Under this sentence there is no obligation to seek agreement. In any agreement entered into, we could, of course, impose any conditions that we like.

D. Under Articles 6 and 118 both sides could enter into an agreement to permit prisoners not wishing to return to go to third countries after termination of active hostilities.

E. Nothing in Article 109 or in the succeeding related Articles or in Article 118 prevents UNC from refusing to repatriate any POWs against their will. The third paragraph of Article 109 adds a requirement that no seriously wounded or seriously sick POW may be repatriated against his will during hostilities; it leaves unimpaired the right of the detaining power to refuse to repatriate other categories of prisoners against their will. We would therefore have the right to make non-forcible repatriation a condition of any agreement to transfer sick and wounded or other POWs to neutral countries during or after hostilities.

1. Dated Mar. 31, p. 829.
2. Dated Apr. 3, p. 857.
3. Dated Apr. 7, p. 885.
4. An excerpt from this letter is printed in American Foreign Policy, 1950–1955: Basic Documents, vol. II, p. 2655. A full text is in telegram CX 61752, Clark to JCS, Apr. 4, 1953, not printed. (Matthews files, lot 53 D 413)