Изображения страниц
PDF
EPUB

as well as adaptable to the experience of both continental and common law practioners.

Ordinance No. 7 embodied identical language (Art. VII), and in addition specified that various types of documents-affidavits, depositions, diaries, etc.-should be admissible "if they appear to the tribunal to contain information of probative value relating to the charges * *." Needless to say, however, the opposing party was to have full opportunity to contest the authenticity or probative value of such documents.

*

Between the IMT and the Law No. 10 tribunals there was no relationship of "superior" and "inferior." Rulings of the IMT on points of law were, of course, entitled to great weight as precedents, but were not binding on the subsequently-constituted Nuernberg tribunals. However, there was obviously no benefit to be derived from trying over and over again such general and fundamental questions of historical fact-unrelated to the personal responsibility of an individual defendant-as the aggressive character of Germany's wars against Poland, Norway, etc. Accordingly, Ordinance No. 7 provided (Art. X) that "The determinations of the International Military Tribunal in the judgments in Case No. 1 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."

In addition to the tribunals themselves, Ordinance No. 7 also provided for the establishment of a Central Secretariat as the administrative and executive arm of the tribunals. The Secretariat was to be directed by a "Secretary General" who, although appointed by the Military Governor, would be subject to the supervision of and responsible to the judges of the tribunals.85 In addition to handling routine administrative and supply requirements of the tribunals, the Secretary General was to discharge the usual responsibilities of a clerk of court, furnish the necessary clerical, reporting, and interpretative services, and act for the tribunals in procuring and facilitating the work of the defense counsel.

One matter overlooked in preparing Ordinance No. 7 was the contingency that the several tribunals established under Law No. 10 might render inconsistent rulings or judgments on important procedural or substantive questions of law. By the end of 1946 two tribunals were already in simultaneous session. On 30 December I brought this matter to the attention of the presiding judges of the two tribunals and,

85 Arts. XII, XIII, XIV. At such times as three or more tribunals were functioning, the Secretary General reported to the presiding judges of the several tribunals, who constituted a "supervisory committee."

38 Military Tribunals I and II, which were hearing respectively the "Medical case" (Case No. 1) and the "Milch case" (Case No. 2).

with their advice and approval, an amendment to Ordinance No. 7 was prepared to cover this contingency. The amendment was submitted to the Deputy Military Governor (Lieutenant General Lucius D. Clay) on 6 January 1947, and was promulgated on 17 February 1947 as Military Government Ordinance No. 11.87 It provided that a joint session of all the military tribunals constituted and functioning at any given time might be held to review conflicting or inconsistent rulings or judgments on important legal questions, and that decisions rendered in such joint sessions should thereafter be binding upon all tribunals. Where final judgments were thus reviewed they could, if necessary, be remanded to the individual tribunal for further action consistent with the joint decision.&

88

87 Attached hereto as Appendix M.

88 Ordinance No. 11 also made two other minor changes in Ordinance No. 7. See Arts. I and III thereof, infra, pp. 292–293.

THE MILITARY TRIBUNALS, THE SECRETARY GENERAL, AND THE OFFICE, CHIEF OF COUNSEL FOR WAR CRIMES

On 24 October 1946, by order of the Military Governor (General McNarney), Mr. Justice Jackson's organization at Nuernberg (OCCPAC) became the Office, Chief of Counsel for War Crimes (OCCWC) and was established as a division of OMGUS.89 Military Government Ordinance No. 7 was published on the same day. On the following day, the first of the Law No. 10 tribunals-Military Tribunal I was constituted, and another order of even date appointed Mr. Charles E. Sands Secretary General. Also on 25 October, the first indictment under Law No. 10 was signed by me and filed with the Secretary General. Thereafter the Nuernberg war crimes organization rapidly took shape.

90

The Nuernberg organization actually comprised four distinct units, engaged in a common enterprise but separately responsible directly to OMGUS. Although the IMT trial had been concluded, a portion of the Secretariat of the IMT, headed by the General Secretary (Col. John E. Ray) remained in Nuernberg in order to supervise publication of the proceedings of the IMT. As General Secretary, Colonel Ray was "operationally" responsible to all four of the powers that had constituted the IMT, and his staff included personnel supplied by the other three nations.91

The other three units were all concerned with the trials held under Law No. 10. The tribunals themselves-independent and responsible only to themselves in their judicial actions but administratively subordinate to OMGUS-constituted one of the units. The second was the Central Secretariat under the Secretary General, which existed only to serve and assist the tribunals but which, likewise, was administratively subordinate to OMGUS. The third was the Office, Chief of Counsel for War Crimes (OCCWC), directed by me as Chief of Counsel, with the mission of drawing the charges against the individuals who were to be tried, and presenting before the tribunals the case for the prosecution.

As Chief of Counsel, I reported directly to the Deputy Military Governor (then Lt. Gen. Lucius D. Clay) and, at General Clay's

89 General Orders No. 301, attached hereto as Appendix N. The same order contained my appointment as Chief of Counsel for War Crimes and as Chief Prosecutor for the United States under the Charter of the International Military Tribunal.

90 This was the indictment in the "Medical Case."

91 After 1946. however, the Soviet Union ceased to make personnel available.

request, I continued to report to him on all policy questions after his designation as Military Governor, although OCCWC remained officially subordinate to the Deputy Military Governor (Maj. Gen. Frank A. Keating and later Maj. Gen. George P. Hays). In addition, direct channels of communication between OCCWC and the War Department were authorized; recruitment of personnel and other assistance continued to be furnished by the War Crimes Branch of the Civil Affairs Division, and, so long as he remained in office as Assistant Secretary of War, Mr. Howard Petersen retained a close personal interest in the trials and gave invaluable advice and support.

Within the occupational administration, the two agencies most directly concerned with the Nuernberg trials were the Legal Division of OMGUS and the Office of the Theater Judge Advocate. The Director of the Legal Division of OMGUS (Mr. Alvin Rockwell) advised the Military Governor on all Nuernberg matters with which the Chief of Counsel was not, and could not appropriately be, concerned. These matters included the appointment of judges, the selection of presiding judges, the review of sentences imposed by the tribunals, and other purely judicial affairs. The Legal Division also participated in the drafting of Military Government Ordinance No. 7, and cooperated with the Nuernberg agencies in a variety of other important respects. Mr. Rockwell and his Division made a vital contribution to the success of the Nuernberg war crimes program. Since the Nuernberg agencies were a part of OMGUS rather than of USFET, the Theater Judge Advocate was less closely concerned. There was, however, constant and cordial cooperation between OCCWC and the War Crimes Branch of the Office of the Theater Judge Advocate.

At one time it was proposed that the logistic support of the Nuernberg trials should be provided by a special military detachment of OMGUS, but this plan was rejected in favor of arrangements worked out between the Commander of the Nuernberg Post (Brig. Gen. Leroy H. Watson) and myself whereby the Post undertook full responsibility for such support. The Post, in turn, reported through intermediate higher headquarters to HQ, USFET. Throughout his service as Commander of the Nuernberg Post, Brigadier General Watson gave consistent and effective support to the Nuernberg war crimes agencies.

The Military Tribunals

As stated above,92 it was decided during the summer of 1946 that the Nuernberg benches should be composed of trained lawyers and, for the most part, professional judges. Immediately thereafter, efforts were begun by the War Department to "recruit" judges for

92 Supra, pp. 28-29.

the Nuernberg trials. The names of judges who were invited to serve were submitted to the Military Governor for advance approval." Their actual appointment by the Military Governor was effected by the orders constituting the several tribunals. Ordinarily the judges arrived in Nuernberg by groups of three, so that each group comprised a tribunal. When they arrived in smaller or larger groups, the Military Governor (with the advice of the Director of the Legal Division) would determine which individuals should be appointed to particular tribunals, and would provide accordingly in his orders. These constituting orders also specified which of the judges should be the presiding judge.

In all, 32 individuals served as judges (or alternate judges) in the 12 Nuernberg trials held pursuant to Control Council Law No. 10. Five were appointed as alternate judges, and of these three later served as judges on tribunals subsequently constituted; accordingly, 30 individuals in all served as judges. Twenty-five were or had been State court judges; the others included a law school dean and prominent practicing attorneys. Of the 25 experienced judges, 14 had served on the highest court of a State, and the others in State intermediate appellate or trial courts. In the early stages of the Nuernberg trials several leading Federal judges accepted invitations to sit at Nuernberg, but Mr. Chief Justice Vinson shortly thereafter directed that no members of the Federal judiciary should serve there.

The first six Nuernberg tribunals were designated Military Tribunals I to VI in the order of the judges' arrival, and were constituted by orders issued between 25 October 1946 and 8 August 1947. These six tribunals tried the first seven Nuernberg cases. The five remaining cases were tried before tribunals the membership of which included a few judges who had served in earlier trials, but which were composed for the most part of judges newly arrived in Nuernberg. For example, upon the conclusion of the "Medical case" (Case No. 1), two of the members and the alternate departed for the United States. The third member (Judge Crawford), together with two newly arrived judges, were reconstituted as Tribunal I and heard the "RuSHA case" (Case No. 8). Upon the conclusion of the court proceedings in the "Pohl case" (Case No. 4) before Tribunal II, one member and the alternate of that tribunal, together with the alternate from another court (Tribunal IV), were constituted as Tribunal IIA to hear the

93 In this and other important phases of the war crimes program, the work of the War Department was furthered by the voluntary assistance of Mr. Charles A. Horsky, a leading Washington attorney who generously contributed much time and energy in support of the trials.

94 In this field the Military Governor relied for advice on the Director of the Legal Division of OMGUS. Needless to say, OCCWC played no part in the "recruitment" process.

95 Each of these tribunals tried one case except Tribunal II, which tried both the "Milch case" (Case No. 2) and the "Pohl case" (Case No. 4).

« ПредыдущаяПродолжить »