Potsdam Conference (TERMINAL)

381

Conversations among U.S. officials regarding war criminals, 9 p.m.

Present
Secretary Byrnes Colonel Cutter
Mr. Justice Jackson Mrs. Douglas
Mr. McCloy Colonel Gill
Brigadier General Betts Colonel Gerhardt
Miss Fite Major Coleman
Mr. Fahy 
740.00116 EW/7-2745

The Assistant Secretary of War to the Secretary of State

Washington [Babelsberg], 27 July 1945
Confidential

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 Hours

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. 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 paper 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 Quislings 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 Criminals and the SWNCC paper on United Nations Renegades and Quislings 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.