Charter, and accordingly I decided to charge the defendants in three of the early Law No. 10 cases (the "Medical," "Justice," and "Pohl" cases) with conspiracy to commit the war crimes and atrocities specified in other counts of the indictment. The defense counsel in all three of these cases thereafter moved to strike the conspiracy charge, and on 9 July 1947 the judges of all the tribunals then constituted held a joint session to hear argument on the point. The prosecution's statement of its position did not prove persuasive, and shortly thereafter the tribunals hearing the "Medical," "Justice," and "Pohl" cases issued identical orders dismissing the conspiracy charges.

After these rulings, the conspiracy charge was included in the prosecution's indictments only in connection with "crimes against peace." Such conspiracies were expressly made punishable in both the London Charter and Law No. 10. But in all four of the cases where the defendants were accused of conspiracy to commit crimes against peace they were acquitted of this charge, on the ground that the evidence was insufficient to warrant convictions.

Form of the Indictments

The indictments were signed by me as Chief of Counsel for War Crimes,189 and were brought in the name of the United States of America. The question whether or not the charges should be laid in the name of the United States presented some difficulties. The definition of the crimes to be punished and the authority to constitute tribunals to try persons so charged were contained in quadripartite enactment partaking of the nature of both statute and treaty. Accordingly, should not the charges have been brought in the name of the Control Council or of the four occupying powers? On the other hand, Control Council Law No. 10 (Art. III) delegated to each of the occupying authorities, within their respective zones, the right to arrest war crimes suspects and to determine who should be brought to trial.190 Since an indictment is in essence a statement of charges against a designated person or group of persons, and since the selection of defendants was made under the authority of the American Zone Commander, it appeared appropriate to bring the charges in the name of the United States of America.191

The defendants were charged, however, with crimes "as defined in Control Council Law No. 10, duly enacted by the Allied Control Council on 20 December 1945" 192 The alleged connection of the accused

189 Military Government Ordinance No. 7, Art. III, provided that the Chief of Counsel should "determine the persons to be tried by the tribunals and he or his designated representative shall file the indictments with the Secretary General."

190 Subject to certain qualifications with respect to individuals wanted for trial in more than one zone or by more than one country.

191 The indictments in the French Zone under Law No. 10 were, for parallel reasons, brought in the name of the French authorities.

193 This was standard language in all 12 indictments.

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with the crimes described in the indictments was invariably stated in the precise language of paragraph 2 of Article II of Law No. 10, e. g., in the "Flick case" it was charged in count one that the defendants were principals in, accessories to, ordered, abetted, took a consenting part in, were connected with plans and enterprises involving, and were members of organizations or groups connected with the crimes charged therein.193 For reasons of law and policy, however, no defendant was ever charged with the commission of crime under the wording of clause (f) of that paragraph which, read literally, seemed to make it criminal to have held "high political, civil or military positions in Germany or in the financial, industrial or economic life" of Germany.19 This clause applied only to "crimes against peace," and for this and other reasons it appeared to me improbable that it had been the actual intention of the Control Council to make the holding of a high position criminal per se. Much more probably, I believed, this clause was included in order to make it clear that the position held by a defendant should be given full consideration in determining the extent of his knowledge of, and participation in, the making and execution of policies, political, military, or economic as the case might be. Accordingly, the language of clause (f) of paragraph 2 was utilized in the indictments in the "Farben," "Krupp," "Ministries," and "High Command" cases (these being the only four cases in which crimes against peace were charged) only as descriptive of the status of the defendants, and not as part of the "chargy language."

In some cases, the indictments were divided into counts corresponding to the categories of crime defined in Law No. 10. Thus, the "Medical," "Justice," and "Pohl" cases each contained four counts, of which the first charged conspiracy, the second war crimes, the third crimes against humanity, and the fourth membership in criminal organizations. In other cases the counts were based upon the nature of the acts charged. Thus, in the "Flick case" count one dealt with slave labor, count two with plunder and spoliation, count three with the "Aryanization" of Jewish property, count four with complicity in the crimes of the SS, and count five with "membership."

In most of the cases under Law No. 10 the defendants held important positions in the political, military, or economic field, and their responsibility was not that of direct participants in particular atrocities; rather they were accused of having prepared or distributed orders, or otherwise participated in the formulation or execution of general policies, which led to a large number of atrocities. For this reason, the indictments were specific with respect to the conduct of the defendants, but general with respect to the murders or other atro

183 This, likewise, was standard language in the indictments generally.

194 As described above, this phrase was derived from J. C. S. 1023/10, supra, pp. 4-6. See also footnote 25, p. 5.

cities resulting therefrom. As was stated in the judgment in the "Justice case" (United States v. Josef Altstoetter, Case No. 3):

195

No defendant is specifically charged in the indictment with the murder or abuse of any particular person. If he were, the indictment would, no doubt, have named the alleged victim. Simple murder and isolated instances of atrocities do not constitute the gravamen of the charge. Defendants are charged with crimes of such immensity that mere specific instances of criminality appear insignificant by comparison. The charge, in brief, is that of conscious participation in a nation-wide governmentally organized system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist. The record is replete with evidence of specific criminal acts, but they are not the crimes charged in the indictment. They constitute evidence of the intentional participation of the defendants and serve as illustrations of the nature and effect of the greater crimes charged in the indictment. Thus it is that apparent generality of the indictment was not only necessary but proper. No indictment couched in specific term and in the manner of the common law could have encompassed within practical limits the generality of the offense with which these defendants stand charged.

However, there was no hard and fast rule in this respect. In the "Einsatz case" (United States v. Otto Ohlendorf, Case No. 9), for example, the defendants were charged with direct responsibility for a long list of particular atrocities, all of which were duly set forth in the indictment, showing the place and date and describing the crime charged. In the "Ministries case" (United States v. Ernst von Weizsaecker, Case No. 11) a particular murder of a captured Finch general was charged and described in detail (count three, par. 28d).

Selection of Defendants

The determination of who should be tried in the American zone of occupation under Law No. 10 was the exclusive responsibility of the Chief of Counsel for War Crimes.196 After the accused were brought to trial, their conviction or acquittal, and the severity of the sentences, were matters for the tribunal to decide. The Chief of Counsel had, needless to say, the responsibilities of an officer of the court, and was in somewhat the same position as a district attorney; but his role at the trial was that of an advocate, not a judge.

In determining whom to indict, however, I had to perform both investigative and semijudicial functions on my own responsibility. It was important not only that these decisions be informed, intelligent, and fair, but that they be made as expeditiously as possible. Legal considerations were, of course, dominant, but in addition one had to

195 Transcript of proceedings, p. 10649.

196 Acting, of course, under the authority and subject to command of the Military Governor.

act so as to avoid, so far as possible, even the appearance of either favoring or vengefully pursuing any individual or class, category, or group of individuals. To these ends I devoted a large share of my time and attention, up to the latter part of 1947.

It should be made perfectly clear that the individuals indicted under Law No. 10 were a small minority of those who, on the basis of the available evidence, appeared and probably could be proved to be guilty of criminal conduct. In the field of slave labor, for example, numerous private industrialists and government officials, in addition to those indicted and tried, were deeply implicated. Many government officials knew of, and participated to a greater or lesser degree in, the "final solution of the Jewish question," and many generals and other officers bore responsibility for the execution of commandos, commissars, Jews, and others, in addition to the handful who stood trial at Nuernberg. These statements are in no way related to the problem of "mass guilt” so-called; if—instead of the 161 who actually were convicted at Nuernberg-2,000 or even 20,000 could have been convicted, that is still a long way from 60 or 80 millions of Germans. But these circumstances do bring out the moral decay of German leadership, and show why the problems of distribution and emphasis were of such importance in discharging my responsibilities with respect to the selection of defendants. In my first report to the Deputy Military Governor (then Lieutenant General Clay) on 1 November 1946, I stated:

We are planning a balanced program of trials of defendants who will represent all the major segments of the Third Reich. For working purposes, they have been divided into four categories: government officials; SS, police, and Party officials; military leaders; and bankers and industrialists. This was in line with the IMT's finding that the responsibility for the wars and crimes of the Third Reich was not exclusively that of Hitler and the Nazi Party chieftains, but that: 197

Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats, and business men. When they, with knowledge of his aims, gave him their co-operation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing. That they were assigned to their tasks by a dictator does not absolve them from responsibility for their acts. The relation of leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organized domestic crime.

Looking at the 12 Law No. 10 trials as a whole, it seems to me that 4 factors were basic in making the final selections of the individuals to be accused. First and foremost, of course, was the collection and analysis of evidence (both oral and documentary), and what the evidence showed concerning the activities of particular individuals. This may 197 Trial of the Major War Criminals, op. cit. supra, Vol. I, p. 226.

be called the inductive process, in that the assemblage and study of the particulars shown by the evidence was the basis for general decisions as to what individuals and categories of individuals should be accused. Since it was a firm policy of OCCWC not to indict anyone unless there was substantial evidence available against him, the existence of such evidence was a sine qua non of the determination to include a particular name in an indictment. If such evidence had not been and apparently could not be found, the individual was not indicted; if such evidence was available, the individual was indicted unless a negative decision was indicated by virtue of some other factor, such as that the person was of minor importance and could or should be handled in the denazification proceedings or otherwise, or that the individual could more appropriately be tried in another zone or country, or that there were circumstances in mitigation so compelling that a trial would have served no useful purpose.

One might assume that the selection of defendants would be governed entirely by "what the evidence showed," but in fact the problem was not so simple as all that. The available "evidence" of all kinds was infinitely vast and varied, and we could not possibly scan more than a small fraction of it. It was necessary, therefore, to approach the problem of evidence collection with some preconceptions and according to a plan. In short, it was necessary to use deductive as well as inductive methods of investigation. Accordingly, all professional staff members were expected to familiarize themselves as rapidly as possible with the organization and functioning of the Reich and, especially, of that particular part of the Reich with which the staff member in question was most immediately concerned. In addition, a special section was set up to compile a sort of register or "Who's Who" of leading German politicians, civil servants, military men, business men, etc.198 From these studies one could draw tentative a priori conclusions with respect to the locus of responsibility for the crimes and atrocities known to have been committed. It goes without saying that these conclusions were subject to constant revision and check as more evidence came to light. The deductive and inductive methods supplemented and complemented each other. Tentative conclusions reached by deduction from a general knowledge of the structure of the Third Reich provided a guide in approaching the formidable mass of detailed evidence. As the evidence was collected and analyzed, new and more accurate light was shed upon the general organization of German government and business which, in turn enabled us to draw up new and more precise conclusions and inferences.

The third factor was, of course, availability. A fairly large number of important war crimes suspects were not located until a year or more after the end of hostilities, and some have not even yet turned 198 Supra, p. 15.