The policies adopted in occupied Germany for the arrest and confinement of suspected war criminals and others reflected the wide variety of agencies and interests that participated in the formulation of these policies. In this combination of circumstances, Nuernberg played a very subordinate role, and the policies of OCCPAC and OCCWC had to be formulated so as to harmonize with the over-all occupational pattern.

Incarceration

In the American zone of occupation, the instructions bearing on the arrest and confinement of suspected war criminals (and other individuals thought dangerous to the security of the occupation) were embodied in the basic directive regarding the military government of Germany, known as J. C. S. 1067/6 and approved on 26 April 1945. The portion of this directive devoted to governmental and political matters included, in addition to a statement of "basic objectives," other sections covering denazification, demilitarization, political activities, education, etc. In this context paragraph 8, titled "Suspected War Criminals and Security Arrests," contained (subparagraph a) a general directive to the Commander in Chief of the United States forces of occupation that he should

search out, arrest, and hold, pending receipt by you of further instructions as to their disposition, Adolf Hitler, his chief Nazi associates, other war criminals and all persons who have participated in planning or carrying out Nazi enterprises involving or resulting in atrocities or war crimes. In addition, however, the following subparagraph (b) provided that all persons who, "if permitted to remain at large would endanger the accomplishment of your objectives," should also be arrested and held in custody "until trial by an appropriate semijudicial body to be established by you." The directive went on to specify a "partial list" of the categories of persons who should be arrested in accordance with this policy.158 These categories included the following, among others: (1) Officials of the Nazi party and its formations, affiliated associations, and supervised organizations, down to and including local group leaders

and officials of equivalent rank;

(2) All members of the political police, including the Gestapo

*

(3) The officers and non-commissioned officers of the Waffen SS and all members of the other branches of the SS;

(4) All General Staff officers;

(5) Officials of the police holding a rank, or equivalent positions of authority, above that of lieutenant;

(6) Officers of the SA holding commissioned rank;

(7) The leading officials of all ministries and other high political officials down to and including urban and rural buergermeister and officials of equiv

159 With respect to the publication of this portion of Enclosure to J. C. S. 1067/6, see supra, p. 5, footnote 26.

alent rank, and those persons who have held similar positions, either civil or military, in the administration of countries occupied by Germany;

*

(8) Nazis and Nazi sympathizers holding important and key positions in (a) civic and economic organizations; (c) industry, commerce, agriculture, and finance; (d) education; (e) the judiciary; and (f) the press, publishing houses and other agencies disseminating news and propaganda

(9) All judges, prosecutors and officials of the People's Court other extraordinary courts created by the Nazi regime

and

Insofar as war criminals were concerned, these provisions were supplemented, when J. C. S. 1023/10 was issued,159 by instructions that "in addition to the persons * * referred to in paragraph 8 of * * * J. C. S. 1067/6" the Commander in Chief of the occupation forces should also arrest "all persons whom you suspect to be criminals" within the definition of crimes embodied in J. C. S. 1023/10. In fact, with relatively few exceptions the so-called "automatic arrest categories" in J. C. S. 1067/6 were broad enough to include all or very nearly all suspected war criminals.

The question remained whether or not war crimes suspects were to be treated as ordinary prisoners of war and civilian internees, and accorded the type of treatment appropriate for prisoners and internees under customary international practice. This point was settled by Mr. Justice Jackson in the course of his first trip to Europe following his appointment as Chief of Counsel. In his preliminary report to the President of 7 June 1945, the Justice stated: 160

The custody and treatment of war criminals and suspects appeared to require immediate attention. I asked the War Department to deny those prisoners who are suspected war criminals the privileges which would appertain to their rank if they were merely prisoners of war; to assemble them at convenient and secure locations for interrogation by our staff; to deny them access to the press; and to hold them in the close confinement ordinarily given suspected criminals. The War Department has been subjected to some criticism from the press for these measures, for which it is fair that I should acknowledge responsibility. The most elementary considerations for insuring a fair trial and for the success of our case suggest the imprudence of permitting these prisoners to be interviewed indiscriminately or to use the facilities of the press to convey information to each other and to criminals yet uncaptured. Our choice is between treating them as honorable prisoners of war with the privileges of their ranks, or to classify them as war criminals, in which case they should be treated as such. I have assurances from the War Department that those likely to be accused as war criminals will be kept in close confinement and stern control.

These directives and arrest categories reflected the extraordinary situation which prevailed in Germany at the end of the war. It would have been, of course, a normal incident of the termination of hostilities that large numbers of prisoners of war should have remained in confinement while being screened for suspected war criminals and

159 15 July 1945. See supra, pp. 4-6.

160 International Conference on Military Trials, op. cit. supra, p. 45.

while preparations for their demilitarization and release from confinement were being perfected. But in the chaotic ruins of Nazi Germany in 1945, soldiers were not the only ones who had to be temporarily confined. The prime objectives of the occupation-shared, indeed, by the democratic elements of the German population itself— were "the elimination of nazism and militarism in all their forms" 161 from the German political and social structure. The government of the Third Reich had disintegrated and completely disappeared, no means were at hand for the re-establishment, short of a period of several years, of a democratic German central government, and the entire task of central administration thus had to be assumed by the occupying authorities. The former high-ranking officials of the Reich government and the SS, the leading Party officials, and hundreds of other Nazis and Nazi supporters or collaborators had to be arrested and confined without delay. Quite apart from the fact that there was ample evidence to warrant criminal charges against many of them, these groups would have been a grave threat to the security of the occupation and an insuperable obstacle to the development of democratic, social, and political institutions in Germany. Furthermore, most of them would have become fugitives from justice or the retribution of those whom they had once oppressed so terribly; Gauleiters and Nazi government ministers wandering at large throughout Germany would have been a target for acts of private vengeance and a stimulus to political violence on a large scale.

Of necessity, therefore, a number of civilian-internment enclosures, as well as prisoner-of-war camps, were established by the occupation authorities. Suspected war criminals, were, for the most part, incarcerated at Nuernberg or at Dachau, where the war crimes trials conducted by the Theater Judge Advocate were to be held. With few if any exceptions, however, the suspects imprisoned at Nuernberg fell in the "automatic arrest" categories, and would, therefore, have been confined elsewhere even if released from Nuernberg.

If the need for these measures was abundantly manifest, it was no less apparent that they should be of as short duration as possible. The sooner that the denazification program and the war crimes trials at Nuernberg and Dachau could be mapped out and gotten under way, the sooner it would be possible to release those who were not to be charged with war crimes and those whose Nazi records were not so glaring as to require confinement pending their appearance before a Spruchkammer. At the same time, progress could be made with the review of the thousands of requests for "extradition" of individuals or groups of civilian and military internees to the countries formerly occupied by Germany to answer charges of atrocities committed there during the period of German occupation.

161 J. C. S. 1067/6, Par. 4c of Enclosure.

These circumstances confronted me with a number of very difficut questions when I returned to Nuernberg in May 1946 and began to plan for the trials to be held under Law No. 10. The categories specified in J. C. S. 1067/6 undoubtedly comprehended over a million persons in all Germany, of whom several hundred thousand at least were in the American zone of occupation. Yet it had never been my thought that more than a few hundred individuals could or should be tried before the Nuernberg tribunals.162 These few hundred, obviously, should be those highly placed individuals who bore the greatest responsibility for formulating and ordering the execution of the criminal policies which directly led to and instigated the aggressive wars and mass atrocities launched and committed under the authority of the Third Reich.

Who were those individuals? Obviously it would have been a never-ending process to examine the records, one by one, of those who were confined pursuant to J. C. S. 1067/6. Every humanitarian and practical political consideration dictated the utmost expedition in developing the general scope and framework of the Nuernberg program. But this was a formidable task which, in May 1946, had not yet even been begun. Mr. Justice Jackson's staff, quite rightly, was almost wholly concerned with establishing the guilt of the 22 individuals on trial before the IMT and the "organizational guilt" of the SS, the Gestapo, and the other indicted organizations.

Accordingly, immediately after my return to Nuernberg a branch of the Subsequent Proceedings Division was established for the purpose of making an over-all study of Germany's political, military, economic, and social organization so that the principal channels of responsibility and authority in the Reich government and industry could be determined, and the most responsible individuals in each field of enterprise or government activity identified. On the basis of the study made by this section, supplemented by evidence and information developed by the other sections of the Division, as early as August 1946 it was possible to produce and distribute to the various prisonerof-war camps and civilian internment enclosures a list of individuals. who were tentatively identified as war crimes suspects for purposes of the Nuernberg trials and who should not be released from confinement until further notice. This list contained less than 5,000 names and represented a reduction to workable size of the group of suspects whose records it was the function of the Subsequent Proceedings Division (and later of OCCWC) to scrutinize.

Many of the individuals named in this list had not yet been found, and all or substantially all who were then in confinement were prisoners of war or members of "automatic arrest" categories. Practically all of the listed individuals, therefore, would have remained in confine162 Supra, pp. 15-17.

ment had the list never been circulated, and certainly not more than a handful (if any) new arrests were made on the basis of the list. Nevertheless, intensive efforts continued to be made throughout my staff to cut down the number of people whose continued confinement Nuernberg was requesting.

The method by which the defendants in the 12 cases were eventually selected is described below.163 By 10 May 1947, the first seven indictments (naming 100 individual defendants) had been filed, and the scope of the entire program substantially determined. As I reported to General Clay on 20 May 1947, the number of individuals held in confinement at the request of OCCWC 164 had by then been cut to 570, including those actually under indictment, and the great majority of those imprisoned but not indicted were high-ranking government officials or SS officers who would have been confined in German enclosures awaiting denazification had they been released by Nuernberg. Between May 1947 and the end of that year, all five of the remaining indictments were filed, naming 85 additional defendants (thus 185 in all 12 cases). Likewise, the first five cases (in which 64 were indicted and 62 actually tried) were concluded, and the defendants imprisoned under sentence if convicted, or set free if acquitted. By January 1948, accordingly, the number of individuals (other than convicts) held for OCCWC had dwindled to about 240, of whom 117 (about one-half) were indicted and in the course of trial. All but six of the others (about 110 in all) were prospective witnesses (mostly for the defense) who were in automatic arrest categories, and who were transferred to German custody (awaiting denazification proceedings) when subsequently released from Nuernberg. The six "special cases" were individuals not in automatic arrest categories but who were held under serious charges of criminality pending transfer to German authorities for trial before German tribunals.

The German witnesses who appeared before the Nuernberg tribunals—whether for prosecution or defense-fell into two general categories. Those who were not subject to automatic arrest came to and departed from Nuernberg "under their own steam," their transportation paid for through the Defense Information Center. While in Nuernberg they were billeted and fed at the so-called "Voluntary Witness House" and were, of course, completely at liberty. A large number of other witnesses, however, were leading Nazis subject to automatic arrest; some of them indeed, had themselves been tried or were awaiting trial as war criminals. Such witnesses were brought to Nuernberg under guard and were held in the jail during the time they spent in Nuernberg being interrogated or giving testimony; when they were no longer needed as witnesses they were returned to their former

168 Infra, pp. 73-85.

104 Over 400 of these were in the Nuernberg jail, and the remainder were held at Dachau.