This period of uncertainty lasted five months-far longer than had been anticipated-inasmuch as the IMT judgment was not concluded until 1 October 1946. Throughout these months, quite naturally and properly, the Subsequent Proceedings Division occupied a very inconspicuous place in the scheme of things at Nuernberg. It was necessary above all that the IMT trial be concluded successfully and expeditiously, and Mr. Justice Jackson quite rightly gave priority-for recruitment of personnel, allocation of working facilities, etc.-to this primary mission.55 Some members of the Division who had been in Nuernberg since the outset, including myself, still had commitments in connection with the IMT trial, and were unable to give undivided attention to the work of the Division until the first trial was concluded. A few others, who had come from the United States to join the Division in May, became discouraged by the long wait for the conclusion of the IMT trial, and went home in October or November 1946 when OCCWC was just getting under way.

Despite these obstacles, considerable progress was made by the Division. The general outlines of the program of trials under Law No. 10 began to emerge. Plans were laid for the composition and workings of the Tribunals in the form of a Military Government Ordinance (No. 7) which was ready for promulgation upon the conclusion of the IMT trial. Preparations for trial of a number of cases were commenced, and one large and important case was made ready for actual presentation before a tribunal. The day after the formal creation of OCCWC, the indictment was filed in this first case under Law No. 10—the socalled "Medical Case," formerly titled United States v. Karl Brandt, et al.

55 See General Memorandum No. 15, par. 2, infra, p. 268.

A SECOND TRIAL UNDER THE LONDON CHARTER?

As indicated above, an uncertainty which hung over the Subsequent Proceedings Division throughout its existence was the question whether there would be additional trials under the London Charter before a quadripartite bench. The Charter gave the IMT the character of a semipermanent body, and envisaged that a series of trials under its aegis might be held. Designation of the defendants to be tried was a function of the four Chief Prosecutors, acting as a Committee.56

The proposition of a second quadripartite trial first arose a few weeks before the beginning of the first trial, in connection with the case of Gustav Krupp von Bohlen und Halbach, who had been named in the indictment as a defendant therein. The officer of the IMT 57 who undertook to serve the indictment upon Gustav Krupp von Bohlen und Halbach discovered that his mental and physical condition was such as to render highly unlikely the possibility of his ever standing trial, and subsequent medical examinations disclosed that he was indeed entirely incompetent. His attorney 58 thereupon (4 November) filed a motion before the IMT requesting "that the proceedings against this accused be deferred" and "that the accused be not tried in his absence.” 59

Thereafter, on 12 November, Mr. Justice Jackson as Chief of Counsel for the United States filed his answer, opposing the application on behalf of Gustav Krupp, and requesting that Krupp be tried in absentia or in the alternative that his son, Alfried Krupp von Bohlen, be designated as an additional defendant in the case. The same day the British Chief Prosecutor (Sir Hartley Shawcross) filed a memorandum urging that Gustav Krupp be tried in absentia, but making no reference to the possibility of designating Alfried Krupp and stressing the desirability of opening the trial as then planned on 20 November, which would presumably have been impossible had Alfried Krupp been added as a defendant. The following day a motion was filed (by M. Charles Dubost) on behalf of the French Chief Prosecutor joining in Justice Jackson's suggestion that Alfried Krupp be named, but opposing the suggestion that Gustav Krupp be tried in absentia.

56 London Charter, Art. 14.

57 Mr. James H. Rowe, Jr.

58 Dr. Theodor Klefisch.

59 By Art. 12 of the London Charter the IMT was authorized to proceed against an accused in his absence "if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence."

On 15 November the IMT granted the application of Gustav Krupp's counsel for a postponement of the proceedings, but directed "that the charges in the indictment against Gustav Krupp von Bohlen shall be retained upon the docket of the Tribunal for trial hereafter, if the physical and mental condition of the defendant should permit." This last clause of the Tribunal's order caused Justice Jackson to file a memorandum on the following day stating:

* * that the United States has not been, and is not by this order, committed to participate in any subsequent Four Power trial. It reserves freedom to determine that question after the capacity to handle one trial under difficult conditions has been tested.

And on the same day (16 November) the Committee of Chief Prosecutors filed a formal motion before the IMT asking that the indictment be amended by adding the name of Alfried Krupp von Bohlen as a defendant; this motion was signed by the representatives of the United States, France, and the Soviet Union, but not by the British Chief Prosecutor. It was denied by the Tribunal on the following day."

60

The sequence of motions and rulings described above left matters in a situation which was quite unsatisfactory to at least several of the participants. As Justice Jackson put it in his answer to Krupp's original motion,1 “it has at all times been the position of the United States that the great industrialists of Germany were guilty of the crimes charged in this Indictment quite as much as its politicians, diplomats, and soldiers." Extensive evidence was already available in Nuernberg tending to implicate Krupp and other prominent industrialists in the atrocious program for the employment in Germany of enslaved laborers, imported from the German-occupied countries. Postponement of the proceedings against Gustav Krupp, coupled with the failure of the motion to add Alfried Krupp to the dock, meant that the IMT trial would include none of these industrialists upon whose conduct the available evidence cast such grave suspicion. The situation was especially unpalatable to the French (who had ample warrant for distrusting the Krupp institution, where many Frenchman had been forced to work), and was perhaps especially embarrassing to the British, who had not joined in the motion to add Alfried Krupp to the dock. At all events on 20 November the representatives of Britain and France published a declaration reciting that: 62

* the French and British Delegations are now engaged in the examination of the cases of other leading German industrialists, as well as certain other major war criminals, with a view to their attachment with Alfried Krupp, in an indictment to be presented at a subsequent trial.

o The motions and memoranda referred to in connection with Gustav and Alfried Krupp are printed in Trial of the Major War Criminals, vol. I, Nuremberg 1947, pp. 118-147. 1 Op. cit. supra, p. 137.

63 Op. cit. supra, p. 147. This declaration was embodied in a memorandum filed with the IMT on the same day by the representative of France.

So the matter of a second London Charter trial rested until the spring of 1946. On 4 April a meeting of the Committee of Chief Prosecutors was held in Nuernberg at which Sir Hartley Shawcross (H. M. Attorney General and British Chief Prosecutor) again brought the matter up.63 Sir Hartley himself was lukewarm, but pointed out that if a second trial were to take place "preparations must be started now." Speaking for the Soviet Union, General Rudenko "said that he was in favour of a second trial by the International Military Tribunal but a conclusion could not be reached until the finish of this trial was seen." M. Champetier de Ribes, the French Prosecutor, "said the French position remained the same and they were in favour of a second trial before the International Military Tribunal." Mr. Justice Jackson, too, adhered to his previous position that he could not commit the United States to a second trial until they had seen the result of this one. Accordingly, no final conclusion was reached, but the conferees agreed that the collection and analysis of evidence against a small group of industrialists should be begun "in collaboration between the four delegations by personnel specially detailed to prepare the ground work for the second trial."

A few days later (8 April), Mr. Justice Jackson informed the War Department that discussion of a second IMT trial was reviving; he expressed the view that a second trial would involve certain disadvantages, but recommended that preparations should commence so that, if another trial proved necessary, it could be completed rapidly. On 24 April the Secretary of War (Mr. Patterson) replied, stating on behalf of the State and War Departments that a second IMT trial would be "highly undesirable" but approving the Justice's recommendation that preparations for the eventuality should be made.

Upon my return to Nuernberg at the end of April, Mr. Justice Jackson appointed me as his representative to consult and cooperate with the other three prosecution delegations with respect to a second IMT trial, and instructed me in accordance with the communications exchanged between himself and the War Department.*

The representatives so appointed by the four chief prosecutors 65 met

63 The minutes of this meeting, insofar as they concern the question of a second trial, are attached hereto as Appendix I.

64 Shortly thereafter (13 May 1946), Mr. Justice Jackson forwarded a memorandum to the President on this subject which set forth at some length his doubts concerning the advisability of a second London Charter trial and concluded: "While much may be said on both sides, the balance of my judgment at this time is against further international trials. It is not so strong that great insistence by other nations, refusal of which would create embarrassments in foreign relations, might not change it. But I see little to be gained, from our American point of view, and a good deal to be risked. At the present time I would not recommend United States participation in another trial."

6 Messrs. Patrick Dean and Elwyn Jones were designated to represent the United Kingdom, M. Charles Dubost for France, and Maj. Gen. N. D. Zorya for the Soviet Union. Between the time of the first meeting (15 May) and the second (6 June) General Zorya died as the result of a bullet wound in the head, and thereafter the Soviet Union was represented by Col. Y. V. Pokrovsky, the Deputy Chief Prosecutor for the Soviet Union.

on three occasions between 15 May and 2 July 1946. Primarily, consideration was given to the selection of defendants. All four delegates agreed that, in the interests of an expeditious trial, the number of defendants should be held to a minimum, and not exceed six to eight, including Alfried Krupp, who had already been designated as a defendant by the Committee of Chief Prosecutors in November 1945. By the time of these meetings, evidence had become available deeply implicating the principal directors of the I. G. Farben chemicals combine in slave labor and other criminal activities, and American interest in exposing the full scope of Farben activities was acute as a result of revelations by a special Senate Committee headed by Senator Harley Kilgore. Consequently, I recommended the inclusion of at least two leading directors of I. G. Farben, suggesting Hermann Schmitz (Chairman of the "Vorstand," or Managing Board of Directors) and Georg von Schnitzler (a leading member of the "Vorstand" and chairman of its Commercial Committee). Mr. Elwyn Jones of the United Kingdom requested the inclusion of the well-known Cologne private banker, Kurt von Schroeder (at whose home Hitler and von Papen had reached the understanding which ultimately led to Hitler's designation by von Hindenburg as Chancellor), and M. Dubost of France proposed Hermann Roechling (the leading coal and steel magnate of the Saar). The representative of the Soviet Union reserved the right to suggest one or two additional names, but never did so. Consequently, the five names agreed upon for inclusion in a second London Charter trial, should one take place, were those of Alfried Krupp, Schmitz and Schnitzler of I. G. Farben, Roechling, and Schroeder.

The delegates also gave some consideration to the question of where the trial should be held, and which judge should preside. All agreed that the trial should be held in Germany, either in Nuernberg or Berlin. The British and French delegates strongly favored Nuernberg, in order to preserve its efficiency and "going concern value," which could be counted on to expedite the proceedings considerably. The Soviet delegate favored Berlin, and I took no position on the matter. As to the presidency of the Tribunal, I expressed the view that the first trial had proceeded with remarkable smoothness under a British judge, and that there would be great advantages in "leaving well enough alone" and continuing in that situation.

At the close of the third meeting (2 July), it was agreed that the Committee had developed the situation far enough to report back to the Chief Prosecutors. Since the United States had not yet decided whether or not to participate in a second London Charter trial, the entire problem was then referred from Nuernberg back to Washington. At Mr. Justice Jackson's request, I submitted a report (dated 29 July 1946) to the Secretary of War.66 In this report I recommended that,

This report is attached hereto as Appendix J.