different methods.173 The members of the branch were not lawyers, but all spoke fluent German, and most had had considerable interrogation experience during and since the war. The interrogators were assigned to work with the various legal divisions and trial teams. who were preparing cases for trial, and became intimately familiar with the subject matter and documentation of the cases in which they specialized. They worked very closely with the lawyers and research associates, and became, for all practical purposes, an integral part of the "team". With the background of information thus obtained, the interrogators, even though they were not lawyers, were fully qualified to handle the necessary questioning, working under general instructions from the lawyers.

All the interrogators talked with the subjects in German, and a sound recording (on tape) was made of the entire conversation, so that there was no need for the presence of either an interpreter or a reporter. Translations of the important portions of these interviews were prepared in typewritten form for the lawyers immediately concerned, and mimeographed summaries (in English) of all interrogations conducted by the branch were circulated to all the legal divisions, so that the information obtained thereby would be generally available throughout OCCWC. From November 1946 to December 1947, over 200 such summaries were circulated each month, and during the spring and summer of 1947 over 300 per month.

When OCCWC came into existence in October 1946, the Interrogation Branch consisted of 17 interrogators; it increased in size thereafter and comprised 24 members from June to August 1947. By July 1948 the branch was only half its peak size, and thereafter dwindled very rapidly until it ceased to exist in October 1948. During its life, the branch conducted approximately 10,000 interrogations, of which over 7,000 took place during the year 1947. From April to August 1947 an average of over 700 interrogations per month were handled, with the peak of 790 being reached in July. During the "heavy" period, each interrogator conducted an average of one interrogation per day which, considering the necessary amount of preparatory and other work which the interrogators were required to do, to say nothing of time spent in travel, preparing summaries, checking translations, and conferring with the attorneys, was a very impressive rate of accomplishment.

Nevertheless, the Interrogation Branch was unable to fulfill all the requests for interrogations made by the legal divisions as OCCWC's over-all volume of work expanded. For this reason, and in the interests

173 Some of the methods described herein were first utilized at Nuernberg on the recommendation of Wing Commander Peter Calvocoressi, in preparing the evidence presented before the IMT with respect to the General Staff and High Command of the German armed forces, in which Mr. (then Captain) Walter H. Rapp, Major Paul Neuland, and several other experienced interrogators participated.

of flexibility, the rule that all questioning should be done by members of the Interrogation Branch was not hard and fast. A number of the German-speaking attorneys were allowed to participate, as well as a few of the highly trained research associates. On rare occasions, other attorneys conducted interrogations using interpreters. It was the firm rule, however, that all interrogations should be conducted in accordance with the standards and procedures prescribed for and followed by the Interrogation Branch.

Prior to the time that a given individual was definitely selected as a defendant by inclusion in an indictment, there was no requirement that he be formally warned that "anything he might say might be used against him." Such a formal warning would have had little real meaning under the circumstances; those who came to Nuernberg knew that documentary and other evidence was being assembled and examined in order to determine who should be tried and who would not be tried, and the prisoners, almost without exception and including even those who suffered from "bad consciences," were anxious to tell their stories in the hopes that the blame for what had occurred would be laid elsewhere. Categorical instructions were given from the very outset that interrogators should under no circumstances resort to threats, promises, or deceptive devices of any kind. The "Interrogator's Guide" circulated by Mr. Rapp on 8 July 1946 declared:

It is of primary importance that you are aware of the nature of the work you are engaged in now and the principles which should guide you in its performance. These are not wartime operational interrogations where any means that served to get the information were all right. You are now connected with a legal trial where you must let yourself be guided by professional, ethical standards. If you don't, you degrade yourself to shyster status. Any form of duress is out. Equally out are any loose promises to any prisoner for supplying you with evidence. Keep in mind that your report can only be used if at the end the prisoner signs it in affidavit form. You cannot force a man to sign anything. He must sign voluntarily. Anything else would be indefensible in court. Throughout the existence of the Subsequent Proceedings Division and OCCWC, it never came to my attention that any member of the Interrogation Branch departed from these instructions. I am satisfied that any such departures would have come to my knowledge, either through protests by defendants, witnesses, or defense counsel, or in some other fashion. In fact, in the handful of cases where interrogations conducted by lawyers or research associates were not in compliance with the prescribed standards, reports of the violations reached me with but little delay. These two or three infractions of the rule in the spring of 1947 were trivial in themselves, but resulted in the issuance by me of a memorandum restating the procedures and standards for interrogation, which is attached hereto as Appendix R.

INDICTMENTS

What crimes were to be charged in the trials under Control Council Law No. 10, and who was to be accused of their commission? This was the first and most fundamental question that confronted us when the Subsequent Proceedings Division began work in the spring of 1946. In broad outline, the first of these questions was governed by the express provisions of Law No. 10, itself. The crimes to be charged had to be those defined in Article II thereof, and these were the same categories of crimes described in slightly different language in Article 6 of the London Charter. However, within the ample limits of these broad categories there was a wide field for choice and decision. Should equal importance be attributed to all three categories and to the numerous specifications within each? And if not, where should the main emphasis be placed?

Much preliminary study was devoted to these questions, and to the selection of defendants, during the life of the Subsequent Proceedings Division. It was quite impossible, however, to arrive at final decisions on most of these problems until the IMT's judgment had been rendered.174 How would the IMT treat the common plan and conspiracy charge? What sphere of personal responsibility for the planning and initiation of aggressive war would the judges mark out? Would the judgment insist on literal compliance with the Hague and Geneva Conventions in all respects, or would it declare that the common practice of civilized nations generally had already rendered some provisions of those treaties obsolete? Would crimes committed before the outbreak of war be noticed, or dismissed as beyond the Tribunal's jurisdiction? How would the effort to obtain declarations of criminality against the organizations work out? How far would the IMT go in allowing the fact of "superior orders" to operate in mitigation? Pending the treatment of these and other such questions in the judgment, the time could best be spent in assembling and sorting out the evidence so that we would "know what we had to go on" when the time came. In the course of this process, the outlines of one or two cases rapidly emerged which, it appeared, would rest on a solid foundation even if the IMT decision should prove far narrower than was the general expectation. Foremost among these was the so-called “Medical case” which, as will be seen below,175 was not only the first case to

174 Supra, pp. 15-21.

175 Infra, p. 71.

be brought under Law No. 10 but in many respects the prototype of others that were to follow.

The Charges

The London Charter and Control Council Law No. 10 both sought to point out four categories of acts or factual types of conduct (as distinguished from juridical concepts) and make them punishable under international law. The first and most important was warmaking itself. The acts constituting war-making were denominated "crimes against peace," and the description of these acts (both in the Charter and Law No. 10) consisted principally of a listing of the stages (in a temporal sense) at which punishable acts might be committed-i. e., in the initial stage of "planning," the secondary stage of "preparation," the stage of actual commencement described as "initiation," and finally that of "waging." Both the London Charter and Law No. 10 proscribed activity at any of these stages involving either a "war of aggression" or a "war in violation of treaties" and the wording of Law No. 10, but not that of the Charter, stated expressly that "invasions" were punishable as well as "wars."

The second type of conduct can perhaps be best characterized as foul play in combat or against combatants. These were described as "war crimes," and comprise the classic violations of the laws of war as set forth in the Hague and Geneva Conventions, such as the use of unnecessarily painful weapons (dum-dum bullets, poison gas, etc.), unwarrantably ruthless employment of new engines of warfare (e. g., submarines and airplanes), or the denial of quarter, the slaughter of prisoners of war, etc.

The third proscribed category I will denominate the suppression, decimation, or exploitation of the inhabitants and resources of territory under military occupation. These acts, too, fall within the definition of "war crimes" and involve conduct forbidden by the laws of war and the Hague Conventions. They are also within the scope of the definition of "crimes against humanity." These "occupation offenses" include such repressive measures as the execution of hostages, exploitation of the occupied region by plundering movables or expropriating fixed capital, and impressing workers and others to forced labor either in the occupied country or, after deportation, in other localities within or controlled by the occupying power.

Finally there were the crimes which the average man would think of as most characteristic of the Nazis, and which we may describe as degradation or extermination of national, political, racial, religious, or other groups. These crimes cover the vast and terrible world of the Nuernberg laws, yellow arm bands, "Aryanization," concentration camps, medical experiments, extermination squads, and so on. These were the sort of deeds and practices which the provisions of the defini

tion concerning "crimes against humanity" were intended to reach. Actually, when committed in the course of belligerent occupation (whether in the occupied country or elsewhere), these were also "war crimes." But the concept of "crimes against humanity" comprises atrocities which are part of a campaign of discrimination or persecution, and which are crimes against international law even when committed by nationals of one country against their fellow nationals or against those of other nations irrespective of belligerent status.

In the course of preparing the indictment for the first Nuernberg trial, it became apparent that the second category described above, i. e., "combat crimes," would prove of considerably less importance than the other three. Many of the provisions of the Hague Conventions regarding unlawful means of combat (such as those referring to poisoned arrows and the poisoning of wells) were antiquarian. Others had been observed only partially during the First World War and almost completely disregarded during the Second World War. Rules governing submarine warfare, which originated for the natural and laudable purpose of preventing unnecessary loss of life among crewmen and passengers of torpedoed vessels, could only rarely be honored under the new conditions of warfare brought about by modern aviation, radar, etc. If the first badly bombed cities-Warsaw, Rotterdam, Belgrade, and London-suffered at the hands of the Germans and not the Allies, nonetheless the ruins of German and Japanese cities were the results not of reprisal but of deliberate policy, and bore eloquent witness that aerial bombardment of cities and factories has become a recognized part of modern warfare as carried on by all nations.

The indictment in the first Nuernberg trial, accordingly, contained no charges against the defendants arising out of their conduct of the war in the air. Admirals Raeder and Doenitz were, to be sure, accused of war crimes "arising out of sea warfare," without further specification. In my opinion unwisely, the British prosecution staff at Nuernberg undertook to press home these general charges and sought conviction of the two admirals for war crimes committed by German submarine crews. These charges met with only technical

176

It seemed clear to me, therefore, that whatever questions of law and morals might be involved in aerial and submarine warfare, they could not be settled or helpfully treated by criminal process at Nuernberg. None of the 12 indictments touched these questions. Indeed, in all 12 of the trials under Law No. 10 taken together, charges

176 Trial of the Major War Criminals, op. cit. supra, Volume I, pp. 78-79.

177 Op. cit. supra, pp. 311-315, 316-317. The IMT judgment "censured" Doenitz and Raeder, but declared that their sentences were "not assessed on the ground of breaches of the international law of submarine warfare."