Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

740.00116 European War 1939/1479

Document No. C.31, 16 June, 1944: Surrender by the Axis Powers of Persons Wanted for Trial as War Criminals⁶⁰

June 16, 1944

Note by the Chairman to the Governments Represented on the Commission

It is the declared policy of the United Nations to require in the armistice granted to each Axis Power that persons wanted in connection with war crimes shall be surrendered to the United Nations by that Power.

The United Nations War Crimes Commission begs to submit herewith to the Governments represented on the Commission the text of a draft armistice article which it considers to contain the provisions necessary for this purpose.

The text now submitted is that of an article for insertion in the armistice with Germany.

In the Commission’s opinion the same text should be suitable for use in the armistice granted to each of Germany’s European satellites subject only to:

(1) substitution of the name of the State concerned for that of Germany, and

(2) insertion in section 2 at (d) of the names of the forces which in that State correspond to the Geheime Staatspolizei (Gestapo) and Schutzstaffel (SS).

Recommendations on these points will be made to the Governments by the Commission as soon as possible.

Different provisions may be necessary in the case of Japan, and the text will be submitted at a later date.

Draft Article for Insertion in the Armistice With Germany

1. The United Nations may, if they so decide, bring to trial before any Tribunal, national or international, any persons accused of crimes connected with, or incidental to, hostilities conducted by Germany against any one or more of the United Nations. This provision shall apply notwithstanding any procedure or prosecution before a court, military or civil, of Germany or of any State or political entity acting in alliance or in concert with Germany, irrespective of whether such proceedings have ended in a conviction or in an acquittal, provided that if a sentence has been imposed the penalty already undergone shall be taken into account in fixing any sentence which may be imposed;

2. To this effect Germany shall:

(a) take all necessary steps to hand over forthwith to the authorities of the United Nations any persons whose surrender is demanded either at the time when this instrument becomes effective or at some subsequent date;

(b) give such assistance as may be required to the authorities of the United Nations in all measures necessary to give effect to the obligations recognised in Section 1;

(c) forthwith take and keep under control all property, both moveable and immovable, belonging to persons whose surrender is demanded, and hold it at the disposal of the authorities of the United Nations;

(d) give such assistance as may be required to the authorities of the United Nations in interning forthwith and keeping in custody until such time as the authorities of the United Nations may otherwise direct, any or all members and former members of the Geheime Staatspolizei (Gestapo) and of the Schutzstaffel (SS);

3. The right to apprehend the persons referred to in Section 2 may be exercised by any Agency, military or civil, acting on behalf of some or all of the United Nations which may be in control of German territory, or which may be appointed to give effect to the present provisions.

4. Such German authorities as may be allowed by the United Nations to continue or to exercise their functions shall take all necessary steps:

(a) to comply forthwith with all requests of the said agencies and authorities relating to the identification, discovery, apprehension, arrest and delivery of accused persons without regard to their nationality and without any right to examine the case upon its merits. Such agencies and authorities shall be given every facility to supervise the way in which their orders are carried out;

(b) to disclose and produce any records or documents or any other things the production of which may be considered necessary to ensure the full knowledge of the acts with which the accused are charged and the just appreciation of responsibility, to obtain the presence of witnesses and to assist in any other way in which such assistance may be required;

5. Germany will on demand surrender to the civil or military authorities of the United Nations for trial before such tribunal as the United Nations may appoint for the purpose:

(a) any person accused of obstructing the execution of the foregoing provisions or failing to comply with any direction relating thereto. For this purpose the German authorities shall, when requested to do so, provide the United Nations with the names of the officials who are responsible for the execution of the provisions of this instrument;

(b) any person accused of aiding and abetting a person whose surrender has been demanded, in evading apprehension, arrest or surrender;

(c) any person accused of destroying or concealing documentary evidence, impeding or obstructing the calling or the examination of witnesses, or of attempting to do so;

(d) any person inciting another to resist in any way the provisions concerning the surrender and the punishment of criminals covered by these provisions;

(e) any German official accused of prosecuting or punishing or any individual accused of molesting anyone in any way for having reported to the authorities or agencies of the United Nations any evasion of—or resistance to—the foregoing provisions concerning the surrender or punishment of persons accused of crimes covered by these provisions;

6. The offences enumerated in Section 5 shall not be subject to the jurisdiction of German courts.

60. Transmitted to the Department by the American Representative on the United Nations War Crimes Commission in despatch 16378, June 19, 1944; received June 24.