740.00116 EW/7–1544
The Secretary of State to the American Representative on the United Nations War Crimes Commission (Pell)
Sir: Having in mind your several communications and discussions in the War Crimes Commission, it is deemed desirable that the position of this Government on some of the questions raised should be stated for your guidance.
These questions have to do with (1) the meaning of the term “war crimes” for the purposes of your Commission; (2) the period during which war crimes may be said to have been committed; (3) whether atrocities committed by Axis authorities prior to the actual outbreak of hostilities are to be included; and (4) whether punishment by an [Page 1334] Axis power of its own nationals may be comprehended within the meaning of “war crimes”.
(1) For present purposes of the United Nations, “war crimes” are those committed during the existing war, which for different countries began on different dates. Such crimes may be committed by members of the armed forces, civilian authorities, or other persons acting under the authority of, or claim or color of authority of, or in concert with, a state or other political entity engaged in war or armed hostilities with, or in hostile occupation of territory of any one of the United Nations.
(2) It is believed that the present war in the Far East may be said to have begun July 7, 1937, the date of the Loukouchiao incident.61 It is understood that the Chinese representative on the Commission may feel that it should date back to the Mukden incident of September 18, 1931,62 it being considered that the period since that date has not been genuinely a peace period but rather a period of de facto war interrupted by uneasy truces. It is thought, however, that so far as concerns employment of machinery of the United Nations, July 7, 1937 would more properly represent the beginning of the present war in the Far East.
The War in Europe may be said to have begun on September 1, 1939, when Germany attacked Poland.63
As between Germany and Czechoslovakia, it would probably be permissible to say that March 10, 1939, when German forces invaded Czechoslovakia,64 might be regarded as the beginning of war as between those two countries.
As to countries other than those mentioned, the beginning of the war might properly date from the time when they respectively became involved in the war, whether by declaration of war or otherwise.
(3) Punishment for war crimes and for atrocities committed against individuals or minority groups prior to the outbreak of war are believed to be separate problems. Arguments have been advanced that persecutions of Jews in Germany, for example, following the advent of the Hitler regime in 1933 and prior to the outbreak of war in Europe, should be treated as war crimes on the theory that they were steps looking to or in preparation of the war which followed, and hence could be deemed to be war crimes. As reprehensible as those acts were and as much as we all desire to see proper retribution in those cases, it is the view of this Government that to try to bring [Page 1335] such offenses into the category of war crimes and to treat them as such would be unwise. It would be difficult to justify such a classification in view of the fact that the laws of war apply only in time of war, and the term “war crimes” on its face refers to crimes committed during war.
The War Crimes Commission might be authorized by the participating governments to examine the question of the punishment of offenses committed in enemy territory against persons on account of their race, religion, or political opinions. In such case, the Commission’s action should be limited to the formulation of recommendations to the governments as to the ways and means of dealing with the subject. It has been pointed out in previous communications to you that many of the perpetrators of atrocities in the prewar period have also perpetrated atrocities and crimes during the war period and hence would be subject to be dealt with as war criminals. In fact it is believed that the arch offenders in these respects would be reached in this way.
(4) You have also raised the question as to whether the War Crimes Commission should assume jurisdiction over cases relating to punishment by Germany of German nationals during the war, as for example, punishment for acts of sabotage, it being possible that such acts were committed as a result of exhortation emanating from a United Nation.
As you have previously been instructed, all countries, including the United States, penalize acts of sabotage, and it would be going rather far to undertake to treat as war criminals officials of an enemy state for administering such penal laws regardless of the motivating influence by which the saboteur was actuated. As stated in the Department’s instruction no. 7 of March 13, the Department is of the opinion that to assume to punish officials of enemy governments for action taken against their own nationals pursuant to their own laws would constitute an assumption of jurisdiction probably unwarranted under international law.
Nothing herein contained is designed in anywise to interfere with the right of any state, acting on its own responsibility, to take such action as may be permissible under its laws with respect to such atrocities committed against it or its nationals as are not cognizable by the War Crimes Commission.
This instruction has been considered and approved by the War and Navy Departments and by the President.
Very truly yours,
- Outbreak of hostilities between Japanese and Chinese forces at the Marco Polo bridge near Peiping; see Foreign Relations, 1937, vol. iii, pp. 128 ff.↩
- See ibid., 1931, vol. iii, pp. 1 ff.↩
- See ibid., 1939, vol. i, pp. 402 ff.↩
- See ibid., pp. 34 ff.↩