On May 13, 1946, theCommittee for a Fair Trial for General Mihailovich announced that a Commission of Inquiry had been established in New York for the purpose of taking testimonies of American officers and airmen whose request to be heard as witnesses at the trial of General Draza Mihailovich in Belgrade had been refused by the Tito government.
The following is a transcript of the first day’s proceedings of the Commission of Inquiry.
COMMITTEE FOR A FAIR TRIAL
FOR DRAZA MIHAILOVICH
COMMISSION OF INQUIRY
In the Matter of Deposition
American and Allied Military Personnel.
New York Lawyers Association
May 13, 1946
Arthur Garfield Hays, Esq. (Chairman)
Theodore Kiendl, Esq. (leading Wall Street lawyer)
Hon. Charles Poletti, (former governor of New York), and
Adolph Berle, Esq. (former Assistant Secretary of State
for Latin-American Affairs)
Mr. Porter R. Chandler, former Assistant United States Solicitor-General, served as Counsel to the Commission, and supervised the examination of the witnesses who were under oath.
Commission of Inquiry
Porter R. Chandler, Esq., and
William H. Timbers, Esq.
Counsel for the presentation of evidence on behalf of American and Allied Military Personnel, Office and P.O. Address: 15 Broad Street, Borough of Manhattan, City of New York.
“This Commission, ladies and gentleman, was set up at the request of the Committee for a Fair Trial for Draza Mihailovich…
Our purpose is to call witnesses who have information about what happened in Yugoslavia. We want to make our proceedings as informal but as objective as possible. We are anxious to have witnesses not only examined but cross-examined, and to have any other witnesses who may be called at the request of any party, who has pertinent information about anything on this subject.
A few days ago I wrote a letter to the Charge d’Affairs of the Yugoslavian Embassy reading as follows:
May 8, 1946
Dr. Sergije Makiedo
1520 – 16th Street, N.W.
The Committee for a Fair Trial for Draza Mihailovich has set up a Commission of Inquiry. This Commission will take the testimony of witnesses in America who can throw light upon the activities of Draza Mihailovich at a time when these witnesses were in a position to observe the facts. As I understand it, under Yugoslavian law, hearsay evidence is admissible and the testimony of such witnesses might be considered by a Yugoslavian court. In pursuance of the above, a committee of lawyers, of which I have the honor to be provisional chairman, will undertake to examine witnesses at hearings to begin at 2:00 p.m. on Monday, May 13,1946. Such hearings will take place at the New York Country Lawyers Association, 20 Vesey Street, New York, New York.
We as lawyers have none but an objective point of view about the situation. We are anxious to have witnesses not only examined but cross-examined by those who are interested.
May we suggest that your Government be represented at these hearings? Any advocate (lawyer or not) appointed by you will receive every courtesy, have the right to call witnesses before the Commission, and to cross examine witnesses who may testify. If your Government does not wish to go this far, we suggest you send an observer who will be able to report upon our activities. We request your cooperation along any lines you may suggest.
We wish to point out that in our view these hearings and the taking of this testimony are in line with the apparent policy of our Government, which made a request to your Government that the court in Yugoslavia, before which the trial will take place, receive the testimony of American aviators, intelligence officers and others from America who have pertinent testimony to present.
(Signed) Arthur Garfield Hays
Provisional Chairman of the
Commission of Inquiry
In reply I received a letter dated May 9th:
Mr. Arthur Garfield Hays
Provisional Chairman of Commission of Inquiry
C/O Hays, St. John. Abramson & Schulman
New York 5, N.Y.
Dear Mr. Hays:
Your letter of May 8th to Dr. Sergije Makiedo arrived just after his departure from the city for the weekend. However, your letter will be called to his attention immediately upon his return Monday morning.
Very truly yours,
(Signed) Charlotte Muzar,
“We are now ready to proceed unless one of the other members of the Committee has anything he wants to present. Mr. Poletti? Mr. Kiendl?”
“No, I have not.”
“The general purpose of this hearing has been outlined by the chairman of the Commission. We are here today to obtain depositions of United States and Allied Military personnel who may have any knowledge that would be material bearing upon the charges against General Mihailovich.
Before going ahead with any of the testimony I should like to call to the Commission’s attention a few facts of background history in order that we may be oriented a little as to time and circumstances leading up to this session. In this portion of the opening I shall try not to touch upon anything that is in the least degree controversial, but merely to set out that General Mihailovich did not surrender, but went into resistance in June or July 1941. [Correct month is May of 1941.]
It was on June 22, 1941 that war broke out between Germany and Russia.
The rest of the war is still fresh enough, I think, in our minds so that we won’t have to go into the question of dates.
I have a tabulation of the particularly important dates, so that if any member of the Commission wants to ask any questions about it I will try to answer the best I can.
I think that is all.”
“Thank you. Before we proceed with the first witness I want Dorothy Thompson to make a statement about the Committee for a Fair Trial for Mihailovich and about the setting up of this Commission.”
MISS DOROTHY THOMPSON:
“Mr. Hays and ladies and gentleman…
We are opening today a Commission of Inquiry in the Case of Draza Mihailovich, who has been arrested by the Yugoslav government, established by Marshal Tito and his Partisans, and is, we are informed, about to face trial on charges of treason, and collaborating with the German occupation forces in Yugoslavia.
This Commission, which is composed of eminent lawyers and jurists, headed by the liberal attorney and champion of civil rights and liberties, Mr. Arthur Garfield Hays, also has the support of many eminent and responsible men of public affairs, including governors, senators, journalists, the former Undersecretary of State, Mr. Sumner Welles, and others, who joined in an appeal to the Department of State for a fair trial for General Mihailovich. It is a voluntary action, but it has precedents. Mr. Hays, the chairman of this Commission, presided over the inquiry into the case of the persons charged by the Nazi government with having set fire to the German Reichstag. The inquiry, which was made by individuals caring forjustice, was instigated by the possibility that the accused, being tried by their political opponents, would not be allowed the prerogative commonly allowed to the most obviously guilty and even self-confessed criminals, before the courts of civilized nations.
In the case of General Mihailovich, this inquiry is the result of a refusal on the part of the Yugoslav government and its courts, to accept the evidence of some 500 flyers who were rescued by General Mihailovich during the very period in which he is accused of having collaborated with the Germans. It is also made, in our eyes, imperative by the fact that General Mihailovich has been condemned in advance, by an official statement that, and I quote:
‘His crimes are far too horrible to allow discussion of whether he is guilty or not.’
And, finally, in the case of General Mihailovich, American honor is involved, for during part of the time in which he is presumed to have been dealing with the Germans, American officers were in liaison with him, and acting as his advisors.
General Mihailovich has signed, according to news dispatches, a confession. But our law does not admit confessions alone as satisfactory evidence. Even before courts where there is no political or other prejudice, experience has too often demonstrated that confessions alone, made voluntarily or under possible pressures, are insufficient evidence of guilt, and must therefore be backed by definite or circumstantial evidence.
This Commission of Inquiry is not prejudiced for or against the guilt of General Mihailovich. It is our intention, however, to see that evidence of substantial fact, barred from the trial in Yugoslavia, is brought to the attention of the public. This is necessary in the interests of justice to a man who was once, at least, and certainly, a brave ally of our people and our country in this war. It is also necessary for greater historic accuracy.
…Even after Teheran – in 1944 – Mihailovich continued to rescue American fliers, who parachuted into territory held by his Chetniks, from the bombing raids on the Rumanian oil fields – raids, which despite the distance and consequent hazards, were carried out by our forces and not by the Russians.
It was obvious, furthermore, that these rescues were not made for a prize from us, for we continued to recognize Tito and recognize his government to this day.
Although we are opposed to meddling in the internal affairs of other nations, it is clear in this case that Americans have been directly concerned. The charges involve a former ally, who during periods when he was accused by the Yugoslav Partisans in Yugoslavia and abroad of collaborating with the Germans, was actually being advised by American officers. He served for many months directly under the Allied High Command in the Eastern Mediterranean theater. It would be infinitely preferable if the evidence to be presented here were to be heard before the court in Belgrade. It is because this has been ruled out that this Commission is conducting its inquiry here. It is our hope that the evidence submitted here, all of which will be evidence of fact, may become part of the historic record. It is further our hope that the fact that this inquiry is taking place may persuade the Yugoslav government to reverse its decision, and permit American officers to enter their evidence in the Belgrade trial and foreign observers to be present, and thus contribute to the promotion of mutual respect, trust and good will between the Yugoslav nation and the United States, who so greatly contributed to the liberation of Yugoslavia from the hated German yoke.
With this thought, I turn this session over the honorable members of the Commission of Inquiry in the case of Draza Mihailovich.”
“Thank you, Miss Thompson.
Colonel Chandler, before you proceed I would like to say that if there are any people here representing the Yugoslav government, either the Embassy or the Consul, who wish to announce themselves, I would be very glad to have them take part in the proceedings as any of them wishes and to examine witnesses if they desire.”
Note from Aleksandra: The Yugoslav Embassy charged that the establishment of the Commission of Inquiry was an ‘affront to the integrity and independence of the Yugoslav Courts’. Chairman Hays responded to the Yugoslav Embassy charge in the following letter sent to Yugoslav Charge d’Affairs, Dr. Sergije Makiedo in Washington: [Published in the New York Sun, May 17, 1946]
“With all deference to your expressed feeling, we must inform you at once that the activities of the commission of inquiry in no way question the integrity or independence of the Yugoslavian courts. Your government declined the request of our State Department to permit American servicemen to present evidence to your courts of facts within their knowledge. This request has been renewed within the last few days. If this testimony is not to be heard in your courts, we propose to hear the evidence under appropriate safeguards and report it to your courts in the hope that it will be received andconsidered.”
Outside the hearing room at the County Lawyers Association is a plaque which contains the following statement by Elihu Root, a distinguished former Secretary of State of the United States:
‘Justice is above all governments, above all
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