740.00119 (Potsdam)/5–2446
No. 395
Briefing Book Paper
top secret
Report by Justice Jackson on War Crimes
Questions1
The Secretary: Reference is made to
the memorandum on “Prosecution of War Criminals” delivered to
the Central Secretariat on June 29.2
The British Government has suggested that “war criminals” be
discussed at the Big Three meeting.3
Justice Jackson states in
a telegram of July 4 (Annex 1)4 that the British and
French are in substantial agreement with the United States
proposals for the punishment of the Axis leaders, but that the
Soviets have presented a counterproposal5 which appears to reject the substance
of his proposals, and to substitute many trials under Soviet
procedure mostly in territory controlled by the U. S. S. R., and
following the surrender to (these?)6 tribunals of our prisoners, in
place of one main trial at Nuremberg. He is not sure that
agreement will be reached but considers it by no means hopeless.
Unless he can obtain the substance of his proposals, he says,
the only alternative will be agreement on general substantive
law principles regarding crimes and allowing each country to
establish its own courts and try its own prisoners under its own
procedural system.
He has been informed by the British Foreign Office that the
British did not intend to suggest detailed discussion of war
crimes at the Big Three meeting but wished to allay Soviet
suspicion of evasion of prosecution. He himself is “rather
appalled” at the thought of Big Three discussion of such an
involved, technical subject. He suggests that he should review
the subject with you and the President if such discussion is
undertaken, since significant differences lurk in small
phrases.
The U. S. S. R. has insisted that there be incorporated (in the
agreement regarding the major trial) an agreement concerning the
handing over of prisoners wanted for trial in other countries.
Justice Jackson has
taken the position that only cases for international trial are
within the scope of his authority.
[Page 579]
In a further telegram of July 6 (Annex 2)7
Justice Jackson says that
it is clear that the military and political authorities of the
United States should adopt a policy on demands for the surrender
of alleged war criminals not needed as witnesses or defendants
in the proposed international case. This should cover cases
where the same person is demanded by two or more countries, he
says. The U. S. S. R. wants the trial to be where the offense
was the worst. This involves weighing the evidence. Justice Jackson thinks the U.
S. should not pass on the merits of the claims. With reference
to the possibility of demands for purely political reasons,
which he emphasizes in both telegrams, he suggests that some
statement of charges and supporting evidence might be required.
He also suggests that some consideration might be given to the
type of trial likely to result after surrender.
The U. S. S. R. is also urging an article in the proposed
agreement for the trial of the Axis leaders which would bind the
signatories to take all necessary steps for the surrender of war
criminals by the neutrals. Justice
Jackson has agreed that the U. S. would join in
any request for surrender by a neutral of anyone needed for the
proposed international trial, but has taken the position that
any further commitment is beyond the scope of his commission to
negotiate.
The question of surrender has been covered in a draft directive
(Annex 3) which is expected shortly to come before the Informal
Policy Committee on Germany. If the draft is approved by the U.
S. authorities it will be circulated in the European Advisory
Commission. Upon approval by the United States authorities it
will also be issued to the Commander-in-Chief of the United
States forces of occupation in Germany.8 If agreement has not been
reached in the EAC with regard
to the draft directive, the U. S. Commander-in-Chief is also
instructed by the terms of the draft to urge in the Control
Council the adoption of its principles by the other occupying
powers in Germany.
Section 6 of the draft directive, on surrender, requires no
supporting evidence to be supplied by the demanding
government.
Paragraph a (2) of that section leaves the
question of who is to receive a criminal wanted by two or more
countries for determination by the Control Council without
guiding criteria.
Paragraph (d) is intended to cover cases
of possible political persecution (e. g. in the case of
dissident Yugoslavs and Poles) and it is intended that it should
be implemented by explanatory instructions to the U. S.
Commander-in-Chief.
There is also pending before the Combined Civil Affairs
Committee, a sub-committee of the Combined Chiefs of Staff, a
draft directive which has cleared the U. S. side of the
Committee and is now before
[Page 580]
the British side. If approved by the
latter, it will go before the Combined Chiefs of Staff for
issuance to the Supreme Commander, Allied Expeditionary
Force,9
and the Supreme Allied Commander, Mediterranean.10 (Annex 4) Exception number
(5) in the second paragraph is intended to protect against
demands for surrender of alleged “war criminals” for political
reasons. Cases of demands by two or more countries for surrender
are to be referred to the CCS.
It is understood that Mr. McCloy and Colonel Cutter of the War Department will be at the Big
Three meeting. They are familiar with the draft directives
referred to above.
In view of Justice
Jackson’s telegrams, it is suggested that, if the
question of war criminals does come up, you may wish to get in
touch with him as he suggests.
The meeting might afford an opportunity to clear up outstanding
important questions relating to war crimes.
[
Washington
,] July 7, 1945.
[Annex 3]
Directive on the Identification and
Apprehension of Persons Suspected of War Crimes or Other
Offenses and Trial of Certain Offenders11
top secret
- 1.
- This directive is issued to you as Commander-in-Chief
of the U. S. (U. K.), (U.
S. S. R.) (French) forces of occupation. As a member of
the Control Council, you will urge the adoption by the
other occupying powers of the principles and policies
set forth in this directive and, pending Control Council
agreement, you will follow them in your zone.
- 2.
- The crimes covered by this directive are:
-
a.
- Atrocities and offenses against persons or
property constituting violations of international
law, including the laws, rules and customs of
land and
naval warfare.
-
b.
- Initiation of invasions of other countries and
of wars of aggression in violation of
international laws and treaties.
-
c.
- Other atrocities and offenses, including
atrocities and persecutions on racial, religious
or political grounds, committed since 30 January
1933.
- 3.
- The term “criminal” as used herein includes all
persons, without regard to their nationality or capacity
in which they acted, who have committed any of the
crimes referred to in paragraph 2 above, including all
persons who (1) have been accessories to the commission
of such crimes, (2) have taken a consenting part
therein, (3) have been connected with plans or
enterprises involving their commission, or (4) have been
members of organizations or groups connected with the
commission of such crimes. With reference to paragraph 2
b, the term “criminal” is
intended to refer to persons who have held high
political, civil or military (including General Staff)
positions in Germany or in one of its allies,
cobelligerents or satellites or in the financial,
industrial or economic life of any of these
countries.
- 4.
- The Control Council should coordinate policies with
respect to the matters covered by this directive.
- 5.
- Subject to the coordination of such matters by the
Control Council and to its agreed policies:
-
a.
- In addition to the persons and classes of
persons referred to in paragraph 8 of the
Directive to the Commander-in-Chief of the U. S.
Forces of Occupation Regarding the Military
Government of Germany (J.
C. S. 1067/6)12 or in
other instructions, you will take all practicable
measures to identify, investigate, apprehend and
detain all persons whom you suspect to be
criminals as defined in paragraph 3 above and all
persons whom the Control Council, any one of the
United Nations, or Italy notifies to you as being charged
as criminals.
-
b.
- You will take under your control pending
decision by the Control Council or higher
authority as to its eventual disposition,
property, real and personal found in your zone and
owned or controlled by the persons referred to in
subparagraph a
above.
-
c.
- You will report to the Control Council the
names of suspected criminals, their places of
detention, the charges against them, the results
of investigations and the nature of the evidence,
the names and locations of witnesses, and the
nature and locations of the property so coming
under your control.
-
d.
- You will take such measures as you deem
necessary to insure that witnesses to the crimes
covered by this directive will be available when
required.
-
e.
- You may require the Germans to give you such
assistance as you deem necessary.
- 6.
- Subject to the coordination of such matters by the
Control Council and to its agreed policies:
-
a.
- You will promptly comply with a request by any
one of the United Nations or Italy for the delivery
to it of any person who is stated in such request
to be charged with a crime to which this directive
is applicable, subject to the following
exceptions:
- (1)
- Persons who have held high political, civil
or military position in Germany or in one of its
allies, cobelligerents, or
[Page 582]
satellites will not be delivered
to any one of the United Nations or Italy, pending
consultation with the Control Council to ascertain
whether it is desired to try such persons before
an international military tribunal. Suspected
criminals desired for trial before international
military tribunals or persons desired as witnesses
at trials before such tribunals will not be turned
over to the nation requesting them so long as
their presence is desired in connection with such
trials.
- (2)
- Persons requested by two or more of the
United Nations or one or more of the United
Nations and Italy for trial for a crime will not
be delivered pending determination by the Control
Council of their disposition. The Control Council
should take all practicable measures to insure the
availability of such persons to the several United
Nations concerned or Italy, in such priority as the Control
Council shall determine. If in any case the
Control Council fails to make such determination
within a reasonable period of time, you will make
your own determination based on all the
circumstances including the relative seriousness
of the respective charges against such person and
will deliver the requested person to the United
Nation or Italy accordingly.
-
b.
- Compliance with any request for the delivery
of a person shall not be delayed on the ground
that other requests for the same person are
anticipated.
-
c.
- Delivery of a person to a requesting nation
shall be subject to the condition that if such
person is not brought to trial, tried and
convicted within six months from the date he is so
delivered, he will be returned to you upon request
for trial by any of the other United Nations or
Italy.
-
d.
- In exceptional cases in which you have a doubt
as to whether you should deliver a person demanded
under subparagraph a above,
you should refer the matter for decision to the
Control Council with your recommendations.
- The Control Council should determine promptly any
dispute as to the disposition of any person detained
within Germany in accordance with this directive.
- 7.
- Appropriate military courts may conduct trials of
suspected criminals in your custody. In general these
courts should be separate from the courts trying current
offenses against your occupation, and, to the greatest
practicable extent, should adopt fair, simple and
expeditious procedures designed to accomplish
substantial justice without technicality. You should
proceed with such trials and the execution of sentences
except in the following cases:
-
a.
- Trials should be deferred of suspected
criminals who have held high political, civil or
military positions in Germany or in one of its
allies, cobelligerents, or satellites, pending
consultation with the Control Council to ascertain
whether it is desired to try such persons before
an international military tribunal.
-
b.
- Where charges are pending13 in your zone
against a person also known to you to be wanted
elsewhere for trial, the trial in your zone should
be deferred for a reasonable period of time,
pending consultation with the Control Council as
to the disposition of such person for
trial.
-
c.
- Execution of death sentence should be deferred
when you have reason to believe that the testimony
of those convicted would be of value in the trial
of other criminals in any area whether within or
without your zone.
[Washington,]
June
26, 1945.
[Annex 4]
top secret
Draft
Cable to SCAEF and SACMed
Reference is to Scaf 406 and Naf 973.14
This directive applies to all persons held by forces under
your command suspected of having committed war crimes in a
country formerly occupied by the Germans or in Italy. It does not apply to
such renegades and quislings as are not war criminals.
You should deliver immediately to the requesting nation any
person requested by one of the United Nations or Italy for trial for a war
crime alleged to have been committed in the territory of
that nation, except:
- (1)
- Persons wanted for trial before courts under your
command.
- (2)
- Persons who held high political, civil or military
position in Germany or in one of its allies,
cobelligerents, or satellites, who may be desired
for trial before an international tribunal.
- (3)
- Persons wanted as witnesses in the trials referred
to in (1) or (2) above.
- (4)
- Persons requested by two or more such
nations.
- (6)
- Persons whose cases involve special political or
other unusual considerations, which cases should be
given careful study in consultation with your
political advisors before delivery is made.
In any case covered by subparagraph (4) above, you will
report the facts to the CCS
together with your recommendations as to its
disposition.
