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

Matthews files, lot 53 D 413: Telegram

The Commander in Chief, United Nations Command (Clark) to the Department of the Army

top secret
priority

Tokyo, February 24, 1953—4:05 p.m.

CX 61323. Re DA [JCS] 931969.¹

1. I appreciate the auth granted by ref radio and ppsd initial action as indicated below. However, there is a possibility that the concluding para of my CX 61135² may have misleadingly focused attn on only a segment of the problem confronting me and have created a misconception of the auth I desired. I am vitally concerned with all crimes of violence and reference to the murder of a mbr of the UNC security forces was only to emphasize the growing seriousness of the problem of violence in its entirety as presented by my CX 52443,³ CX 53852, C 59981⁴ and CX 60821.⁵ I believe that the imposed restriction of trials, to postcapture acts of violence against mbrs of UNC security forces only, involves serious disadvantages hereinafter enumerated which should be considered before full implementation here.

2. In order to ascertain the max extent practicable to which pers from the various national contingents under my command may be utilized on the commission, I plan, unless otherwise directed by you to confer on or about 5 March with the senior liaison offs of all United Nations which have furn mil forces (excludes Norway, Sweden, Denmark and Italy which have furn only non mil hospital contingents). I shall acquaint them with the extent of auth granted me and rqst their nominations for appointments to the commission. Since prev assents and nominations mentioned in my CX 60821 and CX 52443 were predicated upon representations of unrestricted trials, I anticipate that each will desire to communicate with his government before replying. Under restricted trial auth it is possible that some of the UN nations having forces in Korea will not be willing to participate. As a matter of interest, we now have indications that the UK may be reluctant to join a commission under any conditions. I shall keep you informed of individual reactions.

3. Under auth of ref, CG KCOMZ, would be directed to appoint a UNC Mil Commission for the purpose of bringing to trial only those POWs in UNC custody charged with postcapture acts of violence against mbrs of UNC security forces. Auth to appoint has been heretofore delegated to CG KCOMZ, by para 6a, amended 29 Sept 52, of the Rules of Procedure of 12 Oct 51 mentioned in para 4 of ref. Since these rules were promulgated by CINCUNC in the first instance, no necessity is perceived for new promulgation. The rules of evidence prescribed by MCM, 1951, are prescribed by rule 33 of the mentioned rules. Rule 18 requires the proceedings of trial to conform generally to that prescribed for general courts-martial in the armed forces of the nation of the convening auth. As indicated in para 4, subparas A to E incl, of ref msg, rules will be amended to incorporate changes, but otherwise will remain unchanged.

4. A proposed press release is now in preparation and will be transmitted to you within the next few days.⁶

5. I can see the following disadvantages in the limited scope of prosecution auth:

a. As indicated by my original rad (CX 52443), in the majority of postcapture crimes of violence the victims have been fellow prisoners of war. These cases present no less flagrant defiance of disciplinary authority than the proportionately smaller number of incidents of acts of violence against members of the UNC forces. So long as the former are permitted to continue unpunished, they furn a stimulant for further challenge of auth.

b. In light of the 1949 Geneva Convention relative to treatment of prisoners of war, a distinction between acts of violence against mbrs of the UNC forces and the same type of acts against fellow prisoners of war appears extremely difficult to defend. To invoke the humanitarian principles of the Geneva Convention for the governance of trials inaugurated for the prosecution of prisoners for crimes of violence against mbrs of the UNC security forces, without concurrent extension of the same course of action to murder of any aggravated assaults upon, fellow prisoners of war, appears to risk placing the UNC (not only in the view of the ICRC but also in the eyes of the world) in the position of attaching only secondary importance to defending from violence those whom the convention is designed primarily to protect.

c. Omission to prosecute prisoners for murder and maiming of fellow prisoners cannot be reconciled with the obligations imposed by articles 13 and 121 of the Geneva Convention.

d. The numerical disproportion of cases involving crimes of violence against mbrs of the UNC security forces in relation to the vastly greater number of cases in which the victims have been fellow prisoners of war will emphasize the disparity of treatment. Of the 35 cases referred to in para 4, CX 60821, one case involved assault against mbr of the UNC security forces, in contrast to 27 cases of murder of, and 4 cases of assault upon, nonmembers of the UNC forces. Since that report, there are to be added 1 case of murder of, and 2 cases of assault upon mbrs of the UNC security forces, which are ready for trial, and one case presently under investigation which involves potential charges of assault upon UNC security personnel.

3 [e]. Non prosecution of crimes of violence against fellow prisoners will inevitably dishearten both the anti-Communists and the merely apathetic among the Communist prisoners of war.

6. It is recognized that cases involving riots, demonstrations, and other similar derelictions against discipline, chiefly of political significance and not involving acts of violence to persons, may be considered in a category for separate treatment and that consideration of prosecutions therefor may await overall review of POW problems. It is also recognized, however, that prosecutions restricted to perpetrators of acts of violence against mbrs of the UNC security forces may cause criticism by friendly powers and the ICRC, arouse a sense of betrayal among the anti-Communist and orderly elements of prisoners of war, and furnish fuel for the inevitable Communist propaganda agencies, which is likely to be provoked by conspicuous omission to give full effect to the humanitarian principles which we have invoked.

7. In spite of the above considerations, it is my intention, unless otherwise directed, to implement the auth which has been granted.

1. Dated Feb. 20, p. 790.
2. Dated Feb. 4, p. 732.
3. Not printed, but see footnote 5 p. 792.
4. These telegrams, dated Aug. 18 and Dec. 11, 1952, respectively, are not printed. (FE files, lot 55 D 128)
5. Dated Jan. 5, p. 722.
6. The text of the proposed press release was transmitted by Clark to the JCS in telegram CX 61394, Mar. 3, 1953, not printed. (Matthews files, lot 53 D 413)