740.00116 E.W./9–2744
The American Representative on the United Nations War Crimes Commission (Pell) to the Secretary of State
[Received October 4.]
Sir: I have the honor to report that I shall, as soon as the mimeographed copies are delivered to me, send to you two schemes for international tribunals which have been adopted by the Commission.97
When it was decided not to call into existence the so-called Experts or Technical Commission, and to give its duties to the War Crimes Commission, the tasks planned for this commission were placed in [Page 1368] the charge of a committee of the existing War Crimes Commission, of which I was made Chairman.
In spite of the general agreement to turn over for trial as many cases as possible to the offended countries, the majority, and at last all of this committee, believed that there would remain an indeterminate number of cases other than those of the arch criminals, which would have to be tried by some international authority. We then proceeded to discuss the formulation of a constitution for such a court with the understanding that its jurisdiction would be limited to war crimes. At first the discussion centered around a plan which with considerable detail prescribed the proceedings and law to be adopted by such a court. It was finally decided to leave as much freedom as possible to the court, which will control its own procedure, places of meeting, and make its own rules. This plan passed the Commission yesterday, and will be immediately forwarded to the Department.
It also seemed obvious to the Committee that this court, which we are accustomed to referring to among ourselves as the “treaty court”, might very well take a long time to set up. Meanwhile, cases would accumulate. For this reason the Commission also recommends military courts to be set up by the Commander in Chief in each theater of operation, which would be able to begin their functions as soon as cases arise, and will be able to work wherever needed.
It is impossible to say how many cases may appear which require international rather than national treatment. Military courts which can be indefinitely multiplied may become necessary if cases are very numerous.
There is no intention on the part of the Commission to suggest that these courts are mutually exclusive. They are intended to supplement each other.
Some of the Representatives, conspicuously those of France and Belgium, prefer the treaty court and suggest that most of their cases would be brought before it. Others, including all the Pacific Powers, especially Lord Wright, a British Lord of Appeals, who as a Judge of the highest court now sitting in Europe, carries a great deal of weight, prefer the military courts.
It has seemed wisest to the Commission to offer both so that each nation may at any time and for any case choose which court it shall use. It is expected, however, that the military court will have to bear the whole burden for some time—until the treaty court can be got through. The best calculations we can make are that the military court could be set up and begin work in a little over a month, and that the treaty court could hardly expect to begin in much less than a year.
Respectfully,