Foreign Relations of the United States: Diplomatic Papers, 1944, General, Volume I

740.00116 E.W./10–1944

The American Representative on the United Nations War Crimes Commission (Pell) to the Secretary of State

No. 18576

London, October 19, 1944.
[Received October 24.]

Sir: I have the honor to submit herewith some further commentaries on the Draft Convention for the Establishment of a United Nations War Crimes Court (Commission Document 50(1) 30 September 1944), forwarded by Dispatch No. 18334.¹⁶

Preamble: The first paragraph of the Preamble relates to the jurisdiction of the Court. Its jurisdiction is only over war crimes committed by the enemy. The second paragraph recognises that the trial and punishment of most such crimes will be by national courts, either military or civilian. The fourth paragraph indicates that the jurisdiction of the Court can be exercised only upon the request or application of one or more United Nations Governments. Such a request or application is a prerequisite.

• Article 1:

  1. This article is the principal jurisdictional article of the Convention. While it was recognised that war crimes properly so called do not include all offences against the laws and customs of war, it was decided to retain the phrase “offence against the laws and customs of war” because any exact definition of war crimes would require the Court, as a jurisdictional matter, to decide in each case whether or not it was an offence against the laws and customs of war properly to be designated a “war crime”. In the drafting committee it was generally recognised that the prosecutors before the Court would bring only cases of serious offences before it which would clearly be “war crimes”, and that they would not bring before it minor offences or offences such as that of sabotage or spying.

  2. The phrase “irrespective of rank or position” is intended to include any arch-criminal however high in rank if he is charged with an offence against the laws and customs of war, such as where an illegal order is traceable directly to him, and has been carried out by the commission of war crimes at lower levels.

  3. Under this paragraph it is possible to conceive that a national of a United Nation could be subject to the jurisdiction of the Court, if, acting for the enemy, he committed a war crime against another United Nation. Because of this fact, this provision was carefully considered before its adoption. However, it was felt that the broad definition was necessary in order to cover all the principal classes of offenders it is designed to cover, and that it would be better to have a provision which was too broad rather than one too narrow. The fourth paragraph of the Preamble should be considered in connection with this paragraph. Presumably such a case would be referred to the Court only after consultation with the Government of which the accused was a national.

• Article 2:
• c. The number of judges to be elected was left to the Conference, because it was felt that when the Conference met there would be more information than at present concerning how many judges would be needed.
• Article 10: Considerable discussion took place in the committee (II) on the question whether the draft convention should contain detailed rules of procedure. The problem was complicated because of the many different countries represented and the varying ideas of procedure with which those representatives were familiar in their own countries. Earlier drafts of the convention contained certain suggested rules of procedure but there was great difficulty in obtaining agreement on details. However, it was generally agreed that it would be better to let the Court set its own rules of procedure under a rule-making power, and to modify them as might become advisable under the actual experience of the Court itself. Accordingly, Article 10, as it now stands, was drafted in its present sense.
• Article 11:
• 2. This paragraph was inserted primarily at the request of the Belgian Government which felt that, for constitutional reasons, it needed to have such a prosecuting officer. Other continental European countries strongly supported its request.
• Article 15: The rights of the accused as set forth in this article have been substantially increased over and above those which appear in previous drafts. It is generally believed that the protections given accused persons will inure only to the benefit of innocent persons and will not preclude appropriate punishment of any person guilty of the commission of a war crime.
• Article 17:
• 2. This provision was included because it is notorious that courts in such cases are not likely to impose an adequate penalty. It follows the precedent set in Article 228 of the Versailles Treaty.¹⁷
• Article 18: The provisions of this article, with the exception of paragraph (c) are derived from Article 38 of the Statute of the Permanent Court of International Justice.¹⁸ Paragraph (c) is taken from the Preamble of the 4th Hague Convention of 1907 respecting the laws and customs of war on land.¹⁹
• Article 20: It was assumed that judges of the caliber who will sit on this Court will not adjudge cruel or unusual penalties. However, banishment was considered to be a “lesser punishment” and not one of a cruel or unusual nature.

This Draft Convention has been the subject of the most careful attention by Committee II of the Commission over a long period of time. It has been through several preliminary drafts. I indorse it entirely and hope that you will see fit to encourage the British Foreign Office not only to take immediate steps to convene the conference proposed in Commission Document 60, forwarded by Dispatch No. 18475,²⁰ but to urge that it not only consider but conclude a convention for the establishment of such a Court.

Respectfully,

Herbert Pell

16. Despatch not printed; for text of Document No. C.50(1), see p. 1370.
17. Foreign Relations, The Paris Peace Conference, 1919, vol. xiii, p. 376.
18. Foreign Relations, 1920, vol. i, p. 17.
19. Ibid., 1907, pt. 2, p. 1204.
20. Despatch not printed; for text of Document No. C.60, see p. 1383.