Foreign Relations of the United States, 1952–1954, Korea, Volume XV, Part 1

Matthews files, lot 53 D 413: Telegram

The Joint Chiefs of Staff to the Commander in Chief Far East (Clark)¹

top secret
priority

Washington, February 20, 1953—5:27 p.m.

JCS 931969. From JCS reur CX 61135.²

1. We recognize problems confronting you in maintaining discipline POWs and share fully your concern. As you know overall question of trials involves serious polit and legal implications which up to this time have not been resolved. It was felt that clear solution of problem might be effected if it were studied as part of overall review of POW problem. It is still our intention to proceed with this review and overall decn on trial of POWs must await its conclusion. However, we consider that recent flagrant attacks on mbrs UNC security forces such as that reported in ur CX 61076³ are of such serious import that immediate action is required. We consider that such cases can be considered distinct from cases involving riots, demonstrations, acts against other POWs, etc.

2. Accordingly, United States, in its capacity as unified cmd (pursuant to SC resolution of 7 Jul 50), authorizes you appoint UNC mil commission or commissions using to max extent practicable psnl from various natl contingents under your cmd, for purpose of bringing to trial those POWs in UNC custody charged with post-capture acts of violence against mbrs of UNC security forces of general character indicated in para 2B ur CX 61076 and EX 11636.⁴

3. Trials will be conducted in strict accord with humanitarian principles of Geneva Conv. As contemplated by Art 99 of conv there will be prosecution only for acts clearly recognized as crimes under laws of United States, of other nations participating in Korean action, or forbidden by international law. Trials will be conducted in accordance with highest standards of civilized nations; pertinent provisions of Geneva Conv will be observed. Since United States Govt has authy of unified cmd, by virtue of SC resolution of July 7, 50, procedures followed in trials will conform to high standards provided for trial of United States mil psnl for similar crimes.

4. You are authorized, therefore, to promulgate rules of procedure for conduct of proposed trials in accordance with principles set forth in previous para. For this you are authorized to adopt, with exception of sect 5, rules of procedure promulgated by CINCFE on 12 Oct 51 and rules of evidence prescribed by MCM 1951. In order that appellate provisions will constitute legally sufficient compliance with Art 106 of Geneva POW Conv of 1949, folg shld be incorporated in sect 5 of rules of procedure:

A. All records of trials conducted general mil commissions shld be sent by convening authy direct to JA UNC for reference to board of review to be convened by CINCUNC. Generally, boards of review shld have powers similar to those conferred under Art 66 (C) and (D) of Uniform Code of Mil Justice (UCMJ), as well as power to commute and mitigate. Action by board shld be final except where death penalty is involved. When death penalty is involved, confirmation by CINCUNC shld be required upon receipt of advice and recommendations JA UNC.

B. Boards of review shld be composed of not less than 3 mbrs who are legally qualified mil or civ lawyers, preferably selected from various countries represented in UNC. Qualified counsel shld be provided automatically for all accused persons during trial and appeal, and in so doing care shld be exercised not to impair rights of POWs under Art 105 of POW Conv. Boards shld be permitted to go outside record in decisions involving jurisdiction and sanity. Boards shld be empowered to affirm sentence without necessity of affirming finding of every specification.

C. Review of cases tried by spec mil commissions shld conform in general to review of special courts martial cases under UCMJ.

D. Records of trial shld indicate that proceedings and review were conducted under UNC auspices. Completed records of trial shld be filed at Hq UNC with info copy to DeptAr.

E. In view foregoing changes in appellate provs of rules of procedure, you shld amend rules of procedure concerning new trials to conform therewith.

5. Tenor this action shld be that of routine legal proceedings authorized by Geneva Conv. Efforts shld be made to avoid undue prominence or significance being attached to these trials in pub info media, while at same time not unduly restricting press activity or curbing otherwise worthwhile broad coverage and dissemination. Believe this can be accomplished in considerable degree through appropriate prior understanding between UNC and press. In view polit implications this action request you transmit to Wash prior to release text proposed publ announcement re these trials.

6. No objection to ur planned action with respect to ICRC as indicated in ur CX 52443.⁵

1. According to a covering memorandum by Johnson to Matthews, Feb. 16, 1953, attached to a draft of this telegram, both UNA and P had cleared it and suggestions made by L had been taken into consideration. Allison did not think that clearance by Dulles was necessary. (695A.00/2–1653)
2. Dated Feb. 4, p. 732.
3. This telegram, dated Jan. 20, 1953, not printed, reported on the premeditated murder of a member of the UNC security force by prisoners of war.
4. Dated Feb. 4, 1953, not printed.
5. In telegram CX 52443, Clark to Department of the Army, July 24, 1952, the Commander in Chief had suggested that the ICRC be invited to witness the trials and to participate in the proceedings in accordance with the Geneva Convention. (FE files, lot 55 D 128)