CONTROL COUNCIL LAW NO. 10: NUREMBERG MILITARY TRIBUNALS AND THE OFFICE, CHIEF OF COUNSEL FOR WAR CRIMES

WHILE the trial of Goering and his co-defendants before the IMT bore a definite relation to the quadripartite occupation of Germany under the Allied Control Council,60 it was not an integral part of the occupation machinery.61 The Nuremberg trials under Law No. 10, however, were carried out under the direct authority of the Control Council, as manifested in that law, and their judicial machinery was established by and was part of the occupational administration for the American zone, the Office of Military Government (OMGUS).62

In the American zone, the basis for the changeover was laid in January 1946, when President Truman amended the Executive Order under which Justice Jackson had been appointed.63 The amendment provided that, upon Jackson's resignation, he should be succeeded by "a Chief of Counsel for War Crimes to be appointed by the United States Military Governor for Germany.”64 Preparations for trials under Law No. 10 were begun in May 1946, while the IMT trial was still in process, and soon after its

60 Thus the IMT was established "after consultation with the Control Council for Germany" (London Agreement, Article 1), and the sentences imposed by the IMT could be (but were not) reduced by the Control Council (Charter, Article 29).

61 The Chief Prosecutors and Members of the IMT reported directly to their respective governments, not to the Control Council.

62 Similarly, the French zone war crimes trials at Rastatt under Law No. 10 were carried out under the aegis of the French occupational authorities (Gouvernement Militaire Zone Française d'Occupation-GMZFO).

63 Executive Order 9547, of 2 May 1945.

64 Executive Order 9679, of 16 January 1946. This Order also directed Jackson to appoint a Deputy Chief of Counsel to prepare for the prosecution of war criminals other than those then being prosecuted before the IMT. The writer was so appointed by Justice Jackson on 29 March 1946. The texts of the two Orders are printed in Report of Robert H. Jackson, op. cit., pp. 21 and 430-31.

conclusion, immediately upon Justice Jackson's resignation," the Office, Chief of Counsel for War Crimes was established (on 24 October 1946) as an organ of Military Government, and the writer was appointed Chief of Counsel for War Crimes. The first indictment under Law No. 10 was filed the following day."

As stated heretofore, Law No. 10 was adapted from the London Charter. In the definitions of the crimes, however, there were two significant differences: "crimes against peace" were defined to include "invasions" as well as "wars" (thus furnishing a basis for charging the Austrian and Czechoslovakian conquests as crimes against peace), and the definition of "crimes against humanity" omitted the wording relied on by the IMT67 in declining to take cognizance of atrocities perpetrated prior to the outbreak of the war. Likewise, “membership in categories of a criminal group or organization declared criminal by the International Military Tribunal" was made a punishable offense.

Law No. 10 authorized the four Zone Commanders to designate "tribunals" for the trial of offenses thereunder and to determine the "rules and procedure" of such tribunals. This was accomplished, in the American zone, by Military Government Ordinance No. 7, promulgated by the Military Governor on 18 October 1946. This ordinance established68 "Military Tribunals," each to consist of three or more qualified American lawyers,69 to be designated by the Military Governor. The Chief

65 In the meantime, discussions had been under way with respect to holding a second quadripartite trial under the London Agreement, in which leading German industrialists would be the defendants. Such a trial was favored by the French and Soviet prosecutors, but the British were lukewarm. In his final report to the President (7 October 1946), Justice Jackson recommended against any further proceedings before a quadripartite bench, and thereafter the idea fell into limbo.

66 United States v. Karl Brandt et al (the "Medical Case"), Case No. 1, filed 25 October 1946.

67 "... in execution of or in connection with any crime within the jurisdiction of the Tribunal." See pp. 265-66 and footnote 39, supra.

68 Ordinance No. 7, Article II.

69 In paragraph (c) of Article II it was provided that the Military Governor might enter into agreements with one or more of the other three Zone Commanders for a joint trial, in which case the tribunals could include properly qualified lawyers designated by the other nation or nations. This provision was never utilized.

of Counsel for War Crimes was empowered to determine who should be tried before these tribunals and to file the indictments. The procedural provisions were drawn from the London Charter, with some modifications suggested by experience under the IMT. In order to avoid the futile and time-wasting procedure of trying over and over again such general questions as whether Germany's attack on Poland was an "aggressive war," and to confine the issues at the proceedings to the individual responsibility of the defendants, it was provided (Article X) that—

The determinations of the International Military Tribunal in the judgments... that invasions, aggressive acts, aggressive wars, crimes, atrocities or inhumane acts were planned or occurred, shall be binding on the tribunals established hereunder and shall not be questioned except insofar as the participation therein or knowledge thereof by any particular person may be concerned. Statements of the International Military Tribunal in the judgment constitute proof of the facts stated, in the absence of substantial new evidence to the contrary.

70

The judgments of the tribunals as to guilt or innocence were "final and not subject to review," but the Military Governor was empowered to reduce the sentences. By subsequent amendment”1 to the ordinance, provision was made for sittings of all the tribunals en banc to resolve conflicts between rulings of the several tribunals.

Pursuant to these laws, ordinances, and other documents, the Nuremberg trials under Law No. 10 were carried on by two administratively distinct organizations, each of which was a division of Military Government. One was composed of the "Military Tribunals"-the judges themselves, functioning administratively through a Secretariat, headed by a Secretary General. The other was the prosecution staff-the Office, Chief of Counsel for War Crimes.

The judges were "recruited" in the United States by the De70 Ordinance No. 7, Article X.

71 The amendment was made by Military Government Ordinance No. 11, of 17 February 1947.

partment of the Army, which submitted the names to the Military Governor for advance clearance. Thereafter the judges were officially appointed, and the several tribunals constituted, by order of the Military Governor. In all, 32 individuals served as judges (or alternate judges) 72 in the twelve cases, of whom 25 were or had been state court judges;73 the others included a law school dean and prominent practicing attorneys. As the tribunals were constituted, they were numbered from one to six,74 and during the winter of 1947-48 there were actually six trials (involving over one hundred defendants) simultaneously in process.

The Chief of Counsel's responsibilities, therefore, were by no means confined to the actual trial of cases. It had to be determined who should be tried, and what disposition should be made of individuals who were not to be tried; this required a vast amount of apprehension and location work, interrogation, and examination of documents without end. To fulfill its varied and unusual mission,75 the Office, Chief of Counsel was divided into a legal division (lawyers, with linguistically qualified research assistants), evidence division (document files, location and interrogation of suspects, witnesses, etc.), language division (court reporting and interpreting, and translating), reproduction division (photostating and mimeographing of documents), and administrative division (general administrative services). Approximately one hundred prosecution lawyers were employed (not all at one time), or about one lawyer for two defendants; each defendant, however, was represented by at least one, gen72 Five individuals were appointed as alternates, of whom three ultimately served as judges on later tribunals.

73 Fourteen had served on the highest court of a state, and the others on intermediate appellate benches or at nisi prius. Several federal judges had accepted invitations to sit at Nuremberg, but Chief Justice Vinson shortly thereafter directed that no members of the federal judiciary should serve there.

74 Thereafter, new tribunals were constituted with the number of one of the earlier tribunals which had completed its case and adjourned sine die.

75 Because the Office, Chief of Counsel was established before there were any tribunals or Secretariat, it had to undertake many matters (such as court reporting and translation) which otherwise would have been handled by the Secretariat. Later, when the Secretariat was established, the Chief of Counsel's office continued to handle these matters in order to avoid the delays of an administrative changeover.

erally two, and often three or more lawyers, so the defense bar far outnumbered the prosecution bar.76 At peak strength (JulyNovember 1947), the Nuremberg trials required the services of nearly nine hundred American and allied employees and about an equal number of Germans. Some idea of the magnitude of the undertaking may be gathered from the fact that in one twelve-month period (1 September 1947-1 September 1948) the language division translated and stencilled 133,262 pages of material,77 or about 520 pages per day.

76 The language and reproduction divisions served both the prosecution and the defense.

77 Divided between prosecution and defense in the amounts of 45,387 and 87,875, respectively. In addition, of course, the language division was interpreting and reporting all of the court proceedings.