695A.0026/8—2652
Memorandum by the Director of the Office of Northeast Asian Affairs (Young) to the Deputy Assistant Secretary of State for Far Eastern Affairs (Johnson)
Subject:
- Trial of POWs for Crimes of Violence.
Conclusion
NA has reviewed CINCUNC’s telegram CX 52443, dated July 24,1 recommending that a military commission be appointed to try Communist POWs accused of crimes of violence. On balance, NA believes the disadvantages outweigh any possible reasons for holding such trials. NA shares CINCUNC’s concern, expressed in paragraph two of subject telegram, that the initiation of such trials might: (a) lead to further propaganda attacks which might have an adverse effect on the armistice talks at a crucial time; (b) since trials necessitate counsel of POWs choosing, they themselves would provide an additional propaganda forum; and most importantly, (c) result in reprisals against UNC prisoners.
Reprisal Inevitable
The latter possibility is of particular concern to NA as the safety of our own POWs has been one of the principal criteria governing our position with respect to the POW issue. It should be pointed out that the only thing deterring the Communists from initiating trials of POWs may be fear of retaliation by the UNC. The Communists do not know whether we have 100,000 or 5,000 POWs subject to trial, and there would seem little value in providing them with this information unless it appears absolutely necessary. Although it is recognized that the Communists [Page 450] can, at any time, act unilaterally against UNC POWs, initiation of trials by the UNC might well provoke them into taking similar action. It would appear also that, from a psychological and propaganda point of view, it would be more effective to utilize trials of Communist POWs as means of retaliation in case the Communists resort to such action than to permit trials by the UNC to serve as a reason for Communist retaliation.
In the event that the Communists do try our POWs, it is extremely unlikely that they will abide by the provisions of the Geneva Convention. They have already refused to accede to the request made by the U.N. Secretary-General in November 1951 that they appoint a Protecting Power acceptable to the UNC, preferably the Swiss Federation or the ICRC. At most, therefore, they would render nominal compliance with the Convention, perhaps naming some such “neutral state” as Poland as Protecting Power. In that case, the trials would be nothing more than a “slaughter of the innocents”. Without some means of retaliating against such action on their part, we would be in a most unenviable position both tactically and propagandawise.
Justification Needed
In light of the very strong likelihood of retaliation, NA believes that CINCUNC should provide greater justification for trying accused POWs at this time than that set forth in paragraph two [3] of the subject telegram, i.e., “the reinforcement and maintenance of discipline”. It is NA’s impression that discipline over the POWs has greatly improved since segregation of POWs and better control over enclosures have been instituted and that these measures have reduced crimes of violence. If this is so, it is doubtful whether the trial and punishments of some 100 POWs would have an important effect on further reducing the number of incidents. If, however, JCS and CINCUNC concur that POW discipline cannot adequately be maintained without the institution of trials and if this problem of discipline is greater than that which would be posed by the possible danger of reprisal against UNC POWs, and if there is no possibility that the trials could be prevented or impeded by legal technicalities the considerations set forth above would be outweighed and trials could be begun.
Prior to final determination on the proposed courses of action it is suggested that the JCS be asked for their views and that CINCUNC be asked to explain more fully the importance of the trials as a disciplinary measure and to estimate the probable effect of these trials on the POWs, particularly with regard to the possibility of their resulting in further riots.
The Question of Justice and Punishment
As a general matter I am inclined to question the appropriateness of applying a natural and correct standard of punishing the perpetrators of [Page 451] serious crimes and violations of discipline under the provisions of the Geneva Convention in the case of Chinese and Korean prisoners of war. It seems to me that we would be stretching a judicial process beyond a practical point. I realize fully that the crime of murder or in effect an atrocity should be paid for. I recognize that such trials might help maintain future discipline in the prisoner-of-war camps. On the other hand two considerations make me pause. First, we are dealing with approximately 100 individuals who have never been exposed to Western concepts of justice and who have been brought up in brutal surroundings in which force and cruelty are standard. These POWs were not acting any differently than Koreans and Chinese ordinarily do in such circumstances. Secondly, the conditions in those camps were to a great extent responsible for those crimes and lack of discipline. I am not trying to absolve the 100 prisoners from whatever crimes they may have committed. Certainly the killings and beatings that previously went on in the prison camps were horrible, but the fact remains that such crimes and lack of discipline never would have occurred under competent administration. Open trials will only serve up the whole Koje mess that might become interminable.
Coordination
NA has discussed this fully with L which has no enthusiasm for the proposal. It is further suggested that a copy of CINCUNC’s message be pouched to Mr. Yingling2 at Toronto for his views in light of the possible legal complexities which may be involved. Mr. Yingling should be asked, for example, what effect a Communist demand that Poland, or some other neutral state, serve as Protecting Power in place of the ICRC would have on the trials. Would the UNC have to accept Poland? Does the appointment of a Protecting Power require the agreement of both Parties or may the UNC name the ICRC as Protecting Power despite Communist objections? If the latter is so the Communists would have the same privilege of appointment in trying UN POWs to their obvious disadvantage.
- The telegram under reference reported that preliminary evidence indicated that in addition to the Dodd incident, approximately 52 cases (almost evenly divided between Communist and anti-Communist POWs) would be tried, in most cases, for murder of fellow POWs. (FE files, lot 55 D 128)↩
- Raymund T. Yingling was Assistant Legal Adviser for European Affairs and had been vice-chairman of the U.S. Delegation to the diplomatic conference which established the Geneva Conventions in 1949.↩