740.00116 EW/7–445 : Telegram

The Ambassador in the United Kingdom (Winant) to the Secretary of State

6729. From Justice Jackson. Your cable 5383, July 3.85 Negotiations of agreement trial principal war criminals progressing slowly clue difficulty Russian understanding our system of law and our difficulty comprehending theirs. British and French in substantial agreement with us. Russians, however, present complete counterproposal of dozen typed pages.86 On its face their proposal rejects substance of ours and substitutes many trials by Russian procedures largely in Russian-controlled territory and after surrender of our prisoners to tribunals instead one main trial at Nuremberg as suggested by Clay.87 Some difficulties have disappeared on negotiation after Russians understand our proposal. Today we reached stage of referring all to subcommittee for drafting.88

Deep difference in legal philosophy and attitude, however, is difficult to reconcile and even after words are agreed upon we find them understood to mean different things. We insist on trial by methods acceptable our people as fair but are trying to adopt enough of their proposals to result in a Four Power agreement. Too early to be sure we will get it but by no means hopeless to do so.

Unless we can get substance of our proposal shall want further instruction. Only alternative then will be to agree on general principles as to substantive law governing crimes and to let each set up own tribunals and try own prisoners by its own system of procedure. This would be easier for me and faster. But think desirable give example unity on crime problem if possible.

Am rather appalled at thought of Big Three trying to discuss subject so technical and involved and one where details so important. Mr. Dean of British Foreign Office explains British suggestions89 as not intending detailed discussion but rather as intended to allay Russian suspicion that prosecution is being evaded.

If Big Three undertake discussion seems important that I review matter in some detail President and you because important differences lurk in small phrases. Also problem complicated by Russian insistence [Page 1168] that we incorporate agreement concerning turnover of prisoners wanted in other countries for trial. I have taken position all except international cases are beyond terms of my authority and except to advise my own Govt whether we have objections in any case, the question of surrender prisoners is not before us. This is likely to become very delicate problem as demands probable for surrender persons who are not war criminals but politically objectionable. You will need to decide what terms to impose and what showing will be required of criminality. As suggested cable to Grew re Czechoslovakian demand for turn-over of Frank a uniform policy needed as to all prisoners and demands from all countries.90 Glad help on this any way experience thought useful and to receive instructions if I have construed my authority too narrowly.

Have kept Rosenman informed. Have consulted Clay on details concerning trial and matter affecting control commission work. Can cable to you whole Russian proposal if desired but in view the necessity to know interpretation in order understand it have not thought useful. [Jackson.]

Winant

[On August 8, 1945, representatives of the United States, Great Britain, France, and the Soviet Union signed an agreement in London for the prosecution and punishment of the major war criminals of the European Axis. For text, see Department of State Executive Agreement Series No. 472, or 59 Stat. (pt. 2) 1544.]

  1. Not printed.
  2. With regard to these negotiations and the Russian counterproposals, see Report of Justice Jackson, pp. 69–154.
  3. Lt. Gen. Lucius D. Clay, United States Army, Deputy Military Governor, United States Zone in Germany.
  4. See Report of Justice Jackson, pp. 155–163.
  5. This is apparently a reference to Ambassador Halifax’ suggestion of June 29 (printed in Conference of Berlin (Potsdam), vol. i, p. 198), that the subject “War Criminals” be put on the agenda of the Potsdam Conference.
  6. In a note of May 31, to the Department of State, the Ambassador of Czechoslovakia asked that Karl Hermann Frank, former State Secretary of the Reich Protectorate of Bohemia and Moravia, then in the custody of Allied military authorities, be turned over to the Government of Czechoslovakia for trial as a war criminal (740.00116 EW/5–3145). On July 25, Mr. Francis T. Williamson of the Division of Central European Affairs informed the Czech Ambassador that the Acting Secretary had asked the Secretary of War to release Frank and hand him over to Czech officials in accordance with procedures previously agreed upon (740.00116 EW/7–2545). In a letter to the Secretary of State of July 30, the Secretary of War stated that the War Department was taking the necessary steps to arrange for the prompt delivery of Frank to the Czechoslovak Government (740.00116EW/7–3045). Frank was handed over to the Czechoslovak Government by American authorities on August 7.