151. Telegram From the Department of State to the Embassy in Japan1
2584. For MacArthur from Secretary. Reference your 2711, last paragraph.2 On reflection use of word “prerogative” was perhaps inexact. As I understand it the case is one where the right to exercise jurisdiction is concurrent and where, without any decision on the merits by the Joint Committee, the United States, while claiming the primary right under 3(a)ii of Article 17, decided under provisions of 3(a)c not to exercise jurisdiction and waived its right in favor of Japan.
However, the Defense Department considers that this waiver is revocable at least so long as it holds the person in question and it is therefore disposed to revoke its waiver and to claim the primary right which it asserted at the joint hearing but subsequently waived. The matter would then presumably revert to Joint Committee and if the Japanese then disagreed with United States, then the matter would revert to the Governments to settle.
However, it did seem to us that the essence of what the Japanese want and are entitled to is that the person in question should in fact be promptly tried and adequately punished, assuming the evidence at the trial bears out the preliminary indications. This could in fact be assured by a prompt court martial. This could take place without any waiver by the Japanese authorities of their right. We suggest this as a possible solution acceptable to Japan but leave it to your judgment whether to propose it at this juncture.
- Source: Department of State, Central Files, 711.551/5–2257. Secret; Niact.↩
- Document 149.↩