3:
Page 482 Parliament should not insist on its right to criticise, after the event, the advice tendered to His Majesty. In this connection my colleagues will remember that considerable difficulty arose during the Debate on the Criminal Justice Bill in 1948 over the Home Secretary's attempt to define the considerations on which he pro- ceeded in advising on the exercise of the Prerogative of mercy in capital cases in this country.
C.-How best co-ordination with United States and French Policies can
be secured
11. I do not recommend that we should address any reproaches to the Americans over their action in regard to the Landesberg prisoners, first, on the general principle that it is a bad thing to stir up muddy water, and second, on the ground that the Americans might consider themselves entitled to reply that in informing us (as they did) of their intention to institute a review based on certain principles, they had fulfilled their obligations under Chapter V of the Charter of the Allied High Commission. I propose rather to raise the matter with reference to the future.
12. Chapter V, which is concerned with the purely individual, i.e., non- tripartite responsibilities of the High Commissioners, reads in part: "Each High Commissioner shall be responsible to his Government with respect to the Länder of his Zone for the matters in fields reserved to Occupation Authorities listed below. Nevertheless, so far as possible he shall co-ordinate the general policies which he may pursue in these fields with those of the other High Commissioners and exercise these powers in accordance with such tripartite legislation or policies as the Council may adopt :-
(e) the disposition of war criminals .
(g) control of the care and treatment in German prisons of persons charged before or sentenced by courts or tribunals of the Occupation Authorities, over the carrying out of sentences imposed on them, and over questions on amnesty, pardon, or release in relation to them."
13. I think we are entitled to draw the attention of the Governments of the United States and France to the co-ordination called for in this agreement, to the lack, as yet, of any tripartite legislation or agreed policies, and to say that in present circumstances we consider such co-ordination more than ever desirable. It is true that such co-ordination with our United States and French allies may cut both ways and embarrass His Majesty's Government. Pressure, for instance, might be put upon us to carry clemency further than we otherwise might, but this is a lesser danger than the embarrassment which can be caused to His Majesty's Government and British public opinion, if there is no co-ordination, by a unilateral decision such as the recent United States one regarding Krupp. There is also the question of the extent to which the disposition of war criminals is a matter suitable for attention under the new phase of our relations with the Federal Government, involving placing the occupation on a basis akin to a treaty. I propose, therefore, that we should ask the United States Government (and, at the same time, the French) to join with us in instructing our High Commissioners to provide their Governments with a report and recommendations by a fixed date covering all aspects of the war criminals problem. A draft note is attached at Annex B.
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D.—What is to be said in Parliament
14. I suggest that for the present all we need tell the House of Commons is that the delegation of the power of clemency has been withdrawn from the High Commissioner and will, in future, be exercised on the advice of the Foreign Secre- tary. I would propose to say something on the following lines:-
"His Majesty's Government have decided that the delegation of the general power of clemency in regard to war criminals condemned by British Military Courts in Germany, which has during the past two years been exer- cised by the United Kingdom Military Governor or High Commissioner in Germany, should be withdrawn. In future this power will be exercised on the advice of the Foreign Secretary. Similar arrangements will be made in regard to Austria."
Foreign Office S.W. 1
21st May, 4195 pf 587
40602
H. M.
Page 482
B 2