Foreign Relations of the United States: Diplomatic Papers, The Conference of Berlin (The Potsdam Conference), 1945, Volume II

740.00116 EW/7–2745

The Assistant Secretary of War (McCloy) to the Secretary of State

confidential

Washington [Babelsberg], 27 July 1945.

Dear Mr. Secretary[:] I send you herewith a copy of our minutes of the conference held in your office yesterday evening on war crimes.

Sincerely yours,

John J McCloy

[Enclosure]

Memorandum of Conference in the Office of the Secretary of State, 2 Kaiser Strasse, Babelsberg, 26 July 1945 at 2100 Hours³

Present: The Secretary of State, Mr. Justice Robert Jackson, Mr. John J. McCloy (Assistant Secretary of War), Brigadier General Ed C. Betts (J. A., ETO), Miss Katherine Fite, State Department, Mr. Charles Fahy (USGCC Legal Adviser), Colonel R. Ammi Cutter (Office of The Assistant Secretary of War), and Mrs. Douglas (Mr. Justice Jackson’s secretary).

Mr. Justice Jackson reviewed the course of his negotiations with the Russians, French and British in an attempt to reach a protocol governing the trial of the principal war criminals.⁴ He also urged that there be established promptly a policy and procedure on the surrender of war criminals and renegades requested by any of the United Nations or by Italy. The substance of the pending IPCOG paper⁵ on the subject was reported by Mr. McCloy, Miss Fite and Colonel Cutter.

The following decisions of policy were made by the Secretary of State after full discussion:

1. With respect to the surrender of war criminals and renegades requested by the United Nations or by Italy, the Secretary of State took the position that this matter should be dealt with by the U. S. military commander having custody of the demanded prisoner. The U. S. commander should make surrender upon presentation of a request from such a government, accompanied by a reasonably full statement that charges were pending or had been made that the prisoner had committed acts constituting either a war crime or an offense constituting him a traitor or renegade. In cases of doubt the military commander should refer the matter to the Control Council to be disposed of without reference to Washington, unless political or other guidance was affirmatively desired by the U. S. representative on the Control Council. (It was understood that Mr. Justice Jackson, Mr. McCloy, General Betts, and the others would go over the pending IPCOG paper on war criminals and the pending EAC paper on United Nations Renegades and Quislings⁶ and determine whether these papers in all particulars complied with the policy mentioned above).

Mr. McCloy pointed out that this decision to leave the matter to the decision of the military commander was in some degree a departure from the United States’ traditional policy of affording asylum to political offenders. Despite this the Secretary of State expressed the opinion that the only practical place for the decision of these questions was in the field, where the military commander had full access to the facts, under a policy which left him free in cases of doubt to throw the request into the Control Council for decision.

2. With respect to the arrangements being negotiated by Mr. Justice Jackson, the Secretary of State expressed the view that Mr. Justice Jackson should not make any sacrifices of or deviations from principle, either as to the place of trial, procedure, or definition of the criminal offenses. He should not make any agreement which he felt in any way derogated from fundamental axioms of justice. He should make reasonable attempts to reach an agreement for complete Russian participation on a sound basis. If he found it impossible within a fairly short time to effect such an agreement, satisfactory to him, the Secretary of State would approve his reaching an agreement with the Russians and the others, or any of them, but preferably including the Russians, defining in general terms the criminal offenses to be tried and providing for the trial by each nation (or any group of one or more of the four nations) of the criminals in their own custody, in accordance with procedures satisfactory to the nations conducting the trials. Secretary Byrnes suggested that there was ample reason for adopting this view (which could be duly explained to the public at the proper time) in (1) the administrative difficulties (due to language, differences in the national jurisprudences, etc.) of a four party trial; (2) in the inevitable delays in reaching agreement; and (3) in the necessity for speedy trials on a basis which the United States would regard as fair.

3. With respect to the substance of the protocol for the trial of the principal war criminals, the Secretary of State expressed the view that this was in general a matter committed by the President to Mr. Justice Jackson and to be decided by him. In this respect he referred to such matters as the substantive law to be applied, definitions of crimes, provisions governing procedure, etc.

Following the meeting above-mentioned, a further meeting was held at #1 Dom Strasse with all of the above present, except Mr. Byrnes. In addition, there were present Colonel Gill, Colonel Gerhardt and Major Coleman.

It was agreed:

(1) That the IPCOG paper on War Criminals⁷ and the SWNCC paper on United Nations Renegades and Quislings⁸ conformed to the policy stated by the Secretary of State and could be carried out in detail by the U. S. Military Government, which properly under the directive could prescribe regulations as to the form of requests, the extent to which proof of the existence of charges of war crimes should be required, and the standards for determining when the request should be referred to the Control Council;

(2) that the matter of requests by former satellite nations should be considered further, but that probably they should be granted (in the absence of unusual circumstances) where concurred in by the U. S. representative on the Control Council of the former satellite; and

(3) that the regulations governing requests worked out by the Control Council or the U. S. Zone Commander should be communicated to the other United Nations through diplomatic channels.

3. i. e., 9 p.m.
4. See Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (Washington, Government Printing Office, 1949; Department of State publication No. 3080).
5. See vol. i, document No. 395, annex 3.

6. Circulated to the European Advisory Commission in February 1945, at the request of the British Representative on that Commission. On May 26 the State–War–Navy Coordinating Committee recommended certain changes in the EAC draft. The following consolidated text shows the original EAC draft together with the changes recommended by SWNCC, recommended deletions being indicated by canceled type, recommended additions by italics:

   Draft Directive on United Nations’ Renegades and Quislings

   • 1. This directive is issued to you as commander in chief of the U. S. (U. K.) (U. S. S. R.) (French) forces of occupation. As a member of the Control Council, you will urge the adoption by the other occupying powers of the principles and policies set forth in this directive and pending Control Council agreement, you will follow them in your zone.
   • 2. This directive is limited to concerned with United Nations’ renegades and quislings as such. and It does not apply to war criminals on which concerning whom a separate directive will be issued.
   • 2. 3. Appropriate measures must be taken against persons of United Nations’ nationality who have assisted or collaborated with the enemy. You will require the German authorities to give whatever assistance may be necessary to this end in all such ways as you may specify.
   • 3. 4. You will be furnished by each United Nations’ Government with a list of their nationals whose apprehension is desired. You will take all possible steps in your zone to apprehend the persons named is such lists and you will hand them over to the appropriate authority of the United Nations’ Government concerned as arranged with that Government. In the event of any Government being unable for any reason to accept delivery, you should nevertheless apprehend and detain any such persons if you consider such action desirable for security reasons. those persons:
   • a. Whose names are contained on lists furnished to you by any of the United Nations showing their nationals whose apprehension is desired, when accompanied by a specification of the offense with which the individual is charged;
   • 4. You should also apprehend any persons of United Nations’ nationality
   • b. Whom you have reason to believe are of the nationality of any one of the United Nations and whose names do not appear on any such list, if you have grounds for suspecting that they come within one of the following categories: have, following their country’s entry in the war:
     • (i) persons who have been prominently engaged during the war in conducting propaganda on behalf of the enemy;
     • (ii) (1) persons, whether prisoners of war or not, who, during the war, have voluntarily engaged in activities calculated to assist the enemy’s operations; enemy in any way whatsoever; or
     • (iii) (2) persons who have applied for and assumed or obtained, enemy nationality during the other than and are not members of communities who have been obliged to accept German nationality.
   • 5. Those whom you do not consider it necessary to detain on grounds of military security, you will, if you think fit, hold for such reasonable time as will enable the appropriate national authorities to be notified and, if they so desire, to interrogate the suspects. Upon the apprehension of any such persons you will notify the respective United Nations’ Governments of such apprehension. You will hold such persons pending decision by the respective governments as to their disposition and upon request you will hand them over to the appropriate authorities of the United Nations’ Governments concerned, unless they are required to be detained as war criminals or for other reasons. If, in the light of conditions which you encounter, you believe that certain persons within these categories, other than war criminals, should not be subjected immediately to this treatment, you may postpone action reporting to your government the facts and giving your recommendations and the reasons therefor.
   • 6. In the event of any Government being unable for any reason to accept delivery of any persons referred to in paragraph 4, you will nevertheless apprehend and detain such persons if you consider such action desirable for security or other reasons.
   • 6. 7. The possession claim of German nationality, in addition to the nationality of a United Nation, will not be a reason for failing to apprehend the persons concerned, if he is on one of the lists referred to in paragraph 3 above or comes under included within any of the categories of persons described in paragraph 4. It will be for the authorities of the appropriate United Nation to consider how far the possession of German nationality merely mitigates his offence or affords a defence in law to a charge of treason.
   • 7. 8. With a view to the prosecution of persons apprehended, it is important that all relevant evidence should be collected and, further, that both the evidence itself, the manner in which it is made available and the form in which it is presented shall conform to the requirements of the law and judicial procedure of the country in which it is to be used. Special arrangements to this end will be made with you by the various national authorities and you will take all possible steps to procure evidence of the kind, and in the manner and form required. In the event that information and physical evidence is immediately available, you will obtain and preserve the same for delivery to the authorities of the appropriate United Nation and will afford assistance to such authorities in their collection of evidence. You will cause the German authorities to afford you or the authorities of the appropriate United Nation the fullest assistance and all necessary facilities for this purpose, including the inspection of any books, documents, records, or archives, the provision of documentary evidence for use in court and of witnesses in a position to give oral evidence.
7. See vol. i, document No. 395 annex 3.
8. See footnote 6, ante.