740.00116 E.W./8–544
The American Representative on the United Nations War
Grimes Commission (Pell) to the Secretary of State
No. 17295
London, August 5,
1944.
[Received August 9.]
Sir: I have the honor to report that your telegram
No. 6032 arrived Tuesday morning, August 1. I expressed to the Commission,
at its regular meeting Tuesday afternoon, August 1, the substance in
paraphrase as follows:
- 1.
- Duties of Commission mainly advisory to Government, therefore,
publicity unnecessary.
- 2.
- Statements should only be made with approval of highest Army and
Government people.
- 3.
- Persecutions in Germany should not be referred to as they might
inspire future excesses.
- 4.
- I must not take part in making statements except approved by
Government.
- 5.
- Greatest care must be exercised.
- 6.
- This point of view must be expressed to Commission.
The Chairman, Sir Cecil Hurst, said that any statement by the Committee would
be given to the British censor.
Ambassador Colban stated that he believed that any statement might start a
press controversy, and inquired of Sir Cecil whether the statement was one
for publication which might start agitation, or one which merely outlined
the work of the Commission and was to be treated as confidential.
Chairman Hurst said that critical articles about the Commission had been
published implying that its work might end in a fiasco. He considered it
advisable that a statement be issued. He further stated that a press
conference would be held on Thursday, August 3, at which time he would hand
to members of the press the statement which would outline the powers and the
work of the Commission. He believed that this should clarify the
situation.
Dr. de Moor asked if the United States Government meant that all statements
should be submitted to the military authorities? I said that that was my
understanding.
The existence of the Commission is, of course, universally known and its work
has been considerably discussed. Since its first meeting I have subscribed
to a clipping bureau in England and have received a great many items. I do
not know to what extent the activities of the Commission have been reported
in the American press or how much interest has been taken in its
proceedings.
I clearly explained to the members of the publicity committee the attitude of
the Department towards any reference to Axis nationals.
[Page 1344]
I expressed with great clearness the attitude of the Department to Sir Cecil
Hurst, who assured me that no statement would be made which could possibly
arouse retaliation, and that he would take full responsibility of any
statement put out announcing the limitations of the powers of the
Commission.
On Wednesday, August 2, accompanied by Colonel Hodgson,75 I saw Sir Cecil
Hurst privately and insisted that the press conference should be postponed,
and a statement, which had been sent to the United States and Argentine for
release, should be cancelled. This was done.
On the afternoon of August 3rd I received the following letter from Sir
Cecil:
“united nations war crimes
commission, royal courts of justice,
Strand, W. C. 2, August 3, 1944.
Dear Mr. Pell: In view of the urgent request which you have made to
me I have asked the Allied Information Office to postpone the Press
Conference arranged for August 3rd.
The request has put me in a most embarrassing position, and I fear
that the instructions sent to you by the State Department are due to
a misunderstanding of the position.
I have as you know ever since the Commission was instituted, done my
utmost to discourage the Press from taking any interest in our work,
because I felt it was better for the Commission not to be the
subject of too much attention until we have had time to ascertain
and fix the best lines on which to work. Recently, however, some
articles have been published in London which showed that this policy
must be varied. These articles would have led the public to assume
that nothing was being done by the Commission and that the policy of
the United Nations as regards war criminals after this war would be
as great a fiasco as it was after the last war.
Accordingly, on the advice of the Allied Information Office, I agreed
to receive the Press, and with the help of some of my colleagues I
drew up a statement explaining the lines on which the Commission
works. This statement was to have been given to the Press, not for
publication, but as a guide to the newspapers themselves in order
that they might understand the lines on which the Commission
proceeds. The British Press is quite trustworthy and given a chance
they will always do their best to keep the public straight.
I have asked the officials of the Allied Information Office when
telling the Press that the Conference must be postponed, to let them
know that this is not due to any crisis that has arisen, but due to
the fact that I thought it would be wise that Governments should get
the text of the statement before it was issued.
Believe me,
My dear colleague,
Very Sincerely yours,
Cecil J. B. Hurst.”
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I am enclosing a copy of the proposed statement which was cancelled after
being given to the Allied Information Office, which I understand to be an
intergovernmental organization.
I am submitting the statement from the Commission for approval, and will
endeavour to achieve the suppression of such parts as the Department may
disapprove. It is possible that this question may come up before the
Commission on August 8th and almost certainly not later than the 15th.
It would manifestly be of great assistance to me if the Department were to
give me some indication to guide me in my efforts to tone down any future
statements which I may not be able to suppress.
Respectfully,
[Enclosure]
Draft Statement for the Press on Origin and
Composition of the United Nations War Crimes Commission
The United Nations War Crimes Commission—originally known as the
Commission for the Investigation of War Crimes—has now been in operation
for some nine months and its organisation and work have reached a stage
which makes it desirable to issue a statement concerning them.
The intention to set up the Commission was announced on 7th October,
1942, by the Lord Chancellor75a in a speech in the House of Lords and by President
Roosevelt in a declaration of the same date.76 Discussions
between the Governments followed and the Commission was brought into
being on 20th October, 1943, by a meeting of Government representatives
at the Foreign Office. Six days later it held its first meeting (26th
October, 1943).
The Commission is at present composed of representatives of the
Governments of the United States of America, Australia, Belgium, the
United Kingdom, China, Czechoslovakia, France, Greece, India,
Luxembourg, the Netherlands, New Zealand, Norway, Poland and Yugoslavia.
Its Chairman is the United Kingdom’s representative, Sir Cecil Hurst,
Vice-President of the Permanent Court of International Justice. Each
Government has a single representative on the Commission, but the
representative can be replaced by another government nominee, if he is
unable to act or for some other special reason. The Commission may also
hear experts.
[Page 1346]
Task of the Commission
investigation of evidence and compilation of lists
of persons wanted for trial as war criminals
The task originally assigned to the Commission was indicated in Lord
Simon’s speech of 7th October, 1942, in the following passage:
“The proposal is to set up with the least possible delay a United
Nations Commission for the Investigation of War Crimes. The
Commission will be composed of nationals of the United Nations,
selected by their Governments. The Commission will investigate
war crimes committed against nationals of the United Nations,
recording testimony available, and the Commission will report
from time to time to the Governments of those nations, cases in
which such crimes appear to have been committed, naming and
identifying wherever possible the persons responsible.…77 The investigation should cover war crimes
of offenders irrespective of rank, and the aim will be to
collect material, supported wherever possible by depositions or
other documents, to establish such crimes, especially where they
are systematically perpetrated, and to name and identify those
responsible for their perpetrations.”
In addition to “fixing these horrible crimes upon those enemy individuals
who are really responsible, and who ought to be dealt with as criminals
in respect of them”, the creation of the Commission was intended to
enable the Governments to obtain surrender of the guilty persons in good
time. On this Lord Simon said:
“The Treaty of Versailles failed to secure the effective
punishment of the principal criminals, partly owing to the fact
that provision for this purpose was only contained in the final
Treaty of Peace, negotiated and signed months and months after
the Armistice in June, 1919. …77 We do
not intend to make the same mistake as was made by postponing
this demand until the final treaty of peace has been signed.
Named criminals wanted for war crimes should be caught and
handed over at the time of, and as a condition of, the
Armistice, with the right to require the delivery of others as
soon as the supplementary investigations are complete.”
The first and primary task of the Commission is accordingly that of
investigating the evidence and drawing up lists of persons who, as the
result of such examination, are wanted for trial as war criminals.
In practice the progress of this work of investigation depends primarily
upon the efforts of the individual Governments rather than upon those of
the Commission. Responsibility for deciding what alleged war crimes
shall be brought before the Commission and for communicating to it the
evidence on which they rely rests necessarily with the Governments. The
gradual accumulation in the Commission’s
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files of evidence regarding the persons who have
been responsible for the acts committed by the Axis armies and for the
Axis military rule in occupied countries is indeed of importance in
aiding identification of the individuals guilty of particular atrocities
but the Commission has no machinery for directly collecting evidence
itself. The procedure is as follows. The competent department of each
Government, known as the National Office, transmits to the Commission
those cases of war crimes for which it considers punishment should be
inflicted on the perpetrators, and communicates to it at the same time
the evidence on which it relies and its views of the case. This is done
in a form prescribed by the Commission and meant to facilitate
systematic examination and comparison of the cases and the application
of uniform principles. On reaching the Commission cases are first
examined by a “committee on facts and evidence”. The examination is
mainly directed to the following questions—Do the charges made disclose
a war crime or crimes? Is there sufficient material to identify the
perpetrator? Is there a prima facie case against
him? Each case is considered by the committee in the presence and with
the assistance of a representative of the National Office which
presented it and the Office may be asked to seek for additional
evidence. Where the committee feels that one or other of the above three
questions cannot safely be answered in the affirmative in regard to a
particular charge, it nevertheless keeps the case in its files for
further consideration if additional information is forthcoming. The
committee reports to the Commission with which rests the final
responsibility for deciding what persons should be put upon the lists of
persons who are wanted for trial as war criminals and whose surrender
should accordingly be enforced upon the Axis Powers.
The fact that the Commission is concerned with crimes committed in enemy
occupied territory or in Axis territory and sometimes, as in cases of
massacre of prisoners, on the field of battle itself, confronts the
National Offices and the Commission with peculiar difficulties. The
processes of normal criminal investigation are for the most part
inapplicable. This is true above all of the identification of the guilty
individual. The files contain a considerable number of cases in which
the crime is abundantly proved but the perpetrator can be identified
only as the holder of a particular post, a member of some unit of the
enemy army and so forth. This situation should change as, with the
expulsion of the Axis armies and the occupation of the Axis countries,
local enquiries can be held and enemy records become available. In any
event these possibilities will be utilised to the full before the cases
referred to are dropped.
The competence which the Governments have given to the Commission does
not extend to all the misdeeds and atrocities committed
[Page 1348]
by persons serving the cause of the
Axis. It is limited to war crimes. It does not cover the treasonable
behaviour of collaborators with the Axis, the so-called “Quislings”, nor
does it at present extend to the punishment of the atrocious acts which
have been committed by the Axis Powers on their own territories against
individuals of their own nationality on account of their race, religion
or political opinions—although United Nations statesmen have announced
the intention to exact retribution for these acts.
advisory functions of the commission
Some little time after its creation the functions of the Commission were
enlarged to include that of making recommendations to the Governments
upon such matters as the methods to be adopted to ensure surrender or
capture of the persons wanted for trial as war criminals and the
tribunals by which they should be tried. Such matters are dealt with in
the first instance by a “committee on enforcement” and by a “committee
on legal questions”. The legal committee also examines legal questions
arising in the course of the Commission’s work.
As regards surrender and capture, it is, for obvious reasons, only
possible to say here that recommendations which the Commission considers
to be efficacious and important are made to the Governments.
The position as regards tribunals was clarified by the Moscow Declaration
of German atrocities in Occupied Europe made by the United Kingdom, the
United States and the Union of Soviet Socialist Republics, and published
by the Moscow Conference on 1st November, 1943. It states that:
“At the time of the granting of any armistice to any Government
which may be set up in Germany, those German officers and men
and members of the Nazi Party who have been responsible for or
have taken a consenting part in the above atrocities, massacres,
and executions will be sent back to the countries in which their
abominable deeds were done in order that they may be judged and
punished according to the laws of these liberated countries and
of the Free Governments which will be erected therein.”
It will rest with each of the United Nations, not with the Commission, to
decide what type of tribunal, whether the ordinary criminal courts or
military tribunals or some new form of ad hoc
tribunal, will be employed for the trial of war criminals who
are brought to its territory for trial. The Commission is, on the other
hand, concerned with, and is at present examining, the question whether
some form of joint or interallied tribunal may not have to be created to
deal with cases which cannot conveniently or effectively be tried before
national courts.
