CAB129-52 — Page 5

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(THIS DOCUMENT IS THE PROPERTY OF HER BRITANNIC MAJESTY'S GOVERNMENT)

CONFIDENTIAL

C. (52) 151

6th MAY, 1952.

CABINET OFFICE RECORD COPY

COPY NO.

70

CABINET

CONTRACTUAL SETTLEMENT WITH

THE GERMAN FEDERAL REPUBLIC.

WAR CRIMINALS

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Memorandum by the Secretary of State for Foreign Affairs.

Recent developments in Germany make it necessary to amend the contract on German war criminals, which forms part of the Acts and Interests Con- vention of the contractual settlement (see Section D of Annex I to C.(52)144. The contract, which was agreed when the German Federal Chancellor was in London in February, provided that the German Federal Republic would accept the custody of the war criminals in Federal territory. On 14th

February the Cabinet(C.C.(52) 17th Conclusions, Minute 5) reaffirmed their support for the handing over to German custody of war criminals in the three Allied Zones".

2. The Federal Government now hold that if, after the entry into force of such a Convention, a war criminal were to apply to the German Courts, German judges would almost certainly be bound, in the state of the Federal Republic's Basic Law, to order the petitioner's release. In that case, the Federal Government as the detaining authority, would have to comply. It there- fore seems that we are bound to keep responsibility for custody in our own hands.

3.

Accordingly, the allied representatives in Germany, in consultation with German representatives, have redrafted the contract. (see Annex A).

I consider it acceptable. It provides for the continuance by the Three Powers of their responsibility for the custody of war criminals. In paragraphs 4 and 5, the draft provides for an eventual handing over of custody to the Federal

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Republic. In fact, it seems unlikely that, in view of the constitutional difficulties (a two-thirds majority is required in the German Parliament

to amend the Basic Law), such a transfer of responsibility will ever be possible. But, in agreement with the Germans, we are providing for this possible transfer of responsibility and incidentally representing the continuance of our own responsibility as transitory. This should make the new arrangement more attractive to public opinion, especially in Germany.

4.

Apart from the point of custody, the main lines of the contract remain as agreed last February. In particular, the arrangement for clemency remains. It will be exercised by the convicting Power on the recommendation of a Mixed Board consisting of one representative of each of the Three Allied Powers and three German representatives. A unanimous recommendation will be binding on the convicting Power.

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