up. It was the task of the Apprehension and Locator Branch 199 to keep a register showing the location of all war crimes suspects who had been apprehended, and to keep the occupation authorities advised concerning those who were still "wanted."

War crimes suspects under arrest in the American zone were not all necessarily available for trial at Nuernberg, and some who were held in the other zones were nevertheless available to us. Law No. 10 contained provisions governing the transfer of war crimes suspects among the several occupying powers, and these were extensively utilized as between the United States, United Kingdom, and France. The British and French authorities both transferred to Nuernberg a number of the individuals who were tried there and OCCWC, in turn, recommended the transfer of a number of individuals to the British and French for trial. There was also a certain amount of interchange between Nuernberg and other European countries, such as Holland, Denmark, and Poland.

Finally, the number of individuals to be tried at Nuernberg (and, to a lesser extent, the composition of the group of accused) was affected increasingly by over-all policy and administrative factorstime, staff, and money. Important as the war crimes trials were originally intended to be in the over-all occupation program, they could not be allowed to grow out of proportion to other activities. Furthermore, for both legal and policy reasons, it was desirable that they be completed without unnecessary delay. It was best to hold the trials while the evidence was still fresh, and public interest in the actual court proceedings was certain to diminish rather than increase. Within the time practically available, the general public would undoubtedly approve a speedy procedure and short trials, but a different point of view might be expected to develop among the lawyers and especially the judges actually responsible for the proceedings. As matters worked out, all of the trials took considerably longer than I or my colleagues had estimated and this, of course, meant that fewer individuals were brought to trial.

As our studies and the collection of evidence progressed, and the probable identity of many of the defendants emerged, the question arose as to how the defendants should be grouped for purposes of trial. The general principle upon which this question was usually settled was the defendants should be grouped according to the sphere of activity in which they were primarily engaged. This principle, which greatly reduced the factual scope of each trial, thus promoting expedition, was applied with entire consistency in eleven of the twelve Law No. 10 trials; the defendants in each case were all concerned with medical affairs or judicial affairs, or belonged to a particular branch of SS activities, or were affiliated with a particular industrial com199 Supra, pp. 40-41.

bine, or were leading military men. Only in the "Ministries case" (United States v. Ernst von Weizsaecker, Case No. 11) were there any departures, and even here there was a rational basis for the grouping, albeit affected by the administrative necessity of trying in a single proceeding a group of defendants whom we had originally planned to try in three proceedings.

The number of defendants in each of the cases was principally determined by the level of responsibility at which it was decided to draw the "bottom line." In some cases, however, the "level of responsibility" basis alone might have led to the inclusion of so many defendants that the proceeding would have become unwieldy; indeed, one governing consideration in several cases was the size of the defendants' dock in the particular courtroom which was to be used. Two of the six courtrooms could accommodate up to 24 defendants, and in these the "Medical," "Farben," "Einsatz," and "Ministries" cases were tried (in all of which there were 21 to 23 accused who actually stood trial), as well as the next largest case (the "Pohl case") in which there were 18 defendants. In the other four courtrooms, 15 or more defendants caused serious overcrowding in the well of the court (it should be borne in mind that an increase in the number of defendants automatically resulted in an increase in the number of defense counsel). Accordingly, in the cases which seemed to be destined for trial in one of the smaller courtrooms, the indictments named 16 defendants at most (in the "Justice case") and 12 or 14 as a rule, even though the available evidence might have justified the inclusion of others. Twelve or more defendants were, however, indicted in all but two cases; the reasons for the small number of defendants in the "Flick" and "Milch" cases were largely administrative.200

After the preparatory work had been thoroughly done, the final decisions as to who should be indicted presented relatively few diffi cult problems, except in the last two cases. The first Law No. 10 trial (the "Medical case"), for example, was built around the atrocious medical experiments in concentration camps, much evidence concerning which had come to light before the IMT. The surviving principal suspected perpetrators of these crimes were, for the most part, in American or British custody. By informal agreement with the British occupation authorities, it was decided that the medical suspects held by them would be transferred to Nuernberg, with a view to a single trial of all those who bore major responsibility, and this was done.

The same was done in the "Pohl case," with the purpose of trying in one group the chiefs and other leading officials of the economic and administrative division of the SS (the so-called "WVHA"), which constructed and supervised the operations of the concentration camps

200 Infra, p. 78.

and utilized concentration-camp labor in mines and factories owned and operated by the SS. The head of the WVHA, SS Lt. Gen. Oswald Pohl, had been captured in the British zone, and he and several of his associates were made available by the British for trial at Nuernberg.

In the course of these conversations with the British authorities, they indicated to me their desire to try several leading German generals and SS officials in Italy for the so-called "Ardeatine Caves" massacre and other atrocities committed during the German occupation of Italy. In response to their request, Field Marshal Albert Kesselring (a prisoner of the United States) was turned over to them by us, as well as Himmler's former personal adjutant, SS Lt. Gen. Karl Wolff, who headed the German SS and police organization in Italy during the latter part of the war. Kesselring was subsequently tried and convicted 201 by a British court martial sitting in Italy, but Wolff was not brought to trial; he was recently tried before a denazification tribunal in the British zone and, according to newspaper reports, was sentenced to only four years' imprisonment, with credit for time spent in confinement since the end of the war, and is now at liberty.

The "Justice case" (Case No. 3) was another which had been planned nearly from the beginning. The very nature of the Third Reich was totally incompatible with any "law" worthy of the name, and German jurists bore a heavy share of the blame, both for what they did and what they failed to oppose, for the excesses of the dictatorship. The "Milch" and "Flick" cases (Cases No. 2 and 5), however, were not envisaged in our original planning. Field Marshall Erhard Milch, to be sure, was a very important figure, both as second man to Goering in the Air Ministry and as Speer's colleague in the Central Planning Board, which played a leading part in the slave-labor program. But there was no legal necessity for trying Milch by himself, and this was done chiefly because a newly arrived tribunal (No. II) was ready to hear a case, and no other case was far enough advanced for trial at that time (December 1946).

The "Flick case" was a much more valid entity. The "Flick Konzern" became as large as or even slightly larger than the Krupp enterprises. Both combines were dominated and largely owned by the men whose names they bore, and they were by far the two largest proprietary concerns in the Ruhr. Furthermore, Flick provided an interesting contrast to Krupp, in that he was not a hereditary tycoon, and was much more of a promoter and manipulator than were the more conservative armourers of Essen. He skated on thinner ice financially and politically, and truckled openly to Goering and Himmler.

201 Kesselring was sentenced to death by the court martial, but on review the sentence was commuted to life imprisonment.

Nevertheless, a much more telling and significant proceeding would have resulted had the more important defendants in the "Flick” and "Krupp" cases 202 been grouped in a single case, together with other Ruhr iron-masters from the largest of the combines (such as Ernst Poensgen of the Vereinigte Stahlwerke) and other large concerns (such as Gutehoffnungshuette and Mannesmann). Evidence was available implicating these other firms in the "occupation offenses" (slave labor and economic spoliation), and several of the Ruhr leaders had assisted in Hitler's climb to power.

Such a case would have brought to the bar in a single judicial proceeding the masters of the Ruhr and leaders of German heavy industry. It was not done for two principal reasons. Because of the geographical location of the Ruhr, such a trial should logically have been held in the British Zone, and up to the spring of 1947 there was still some reason to anticipate the possibility that the British might try or participate in a trial of Krupp and other industrialists. More immediately, however, it would have taken many more months to prepare for a trial of such considerable scope. The "Flick case," in which no charge of war making was made, could be and was prepared for trial by the spring of 1947. The "Krupp case" was far more complicated, and did not get under way until the end of that year. By that time it had become clear that the British did not intend to proceed against the Krupps. However, the evidence against them in our possession appeared (and proved to be) compelling, and under all the circumstances it seemed to me wise to go ahead with the trial in Nuernberg.

The remaining industrial case—the "Farben case" (Case No. 6)— was part of our planned program from the outset. The I. G. Farben chemicals combine was not a proprietary company; like so many large American corporations, its stock was very widely distributed and there was no "controlling interest." It was a typical "management corporation," governed by the Vorstand (a management "cabinet” roughly equivalent to the executive committee of a board of directors and the principal corporate officers, rolled into one group). There were about twenty surviving Vorstand members and these, together with four other leading Farben officials, were all indicted on charges of war making, spoliation, and slave labor. Farben had had close relations, both commercially and in the field of industrial research and development, with the Standard Oil Company and other large American corporations, and the trial and judgment aroused great interest in the United States.

The "Race and Resettlement Division" ("RuSHA") and affiliated branches of the SS were a principal focus for practical application of

202 For example, Friedrich Flick and Otto Steinbrinck from the "Flick case" and Alfried Krupp, Ewald Loeser, Eduard Houdremont, Erich Mueller, and von Buelow from the "Krupp case."

the Nazi racial myths, and this trial (Case No. 8), too, was projected from the start. Not so the third SS trial-the "Einsatz case" (Case No. 9)-which was not envisaged in the form it finally took until the spring of 1947. The "Einsatzgruppen" were special task units (each about 400 strong) of SS and police officers and men who accompanied the German armies in the course of the invasion of the Soviet Union, with the mission of liquidating all Jews, gypsies, political officials, and other proscribed categories. The leader of one of these groups, SS Major General Otto Ohlendorf, was a witness in the trial before the IMT, and was held at Nuernberg. It had been planned to try Ohlendorf together with other high-ranking officials of the security, intelligence, and police branch of the SS (RSHA), but after investigation it developed that very few such top-ranking officials were physically available for trial.203 In the meantime, numerous other commanders and subordinate officers of the Einsatzgruppen were apprehended, more of their documentary reports were found, and it was decided to prepare for a trial dealing solely with the activities of these groups. From this plan the "Einsatz case" developed, with Ohlendorf and 23 others as the defendants.

The "Hostage case" (Case No. 7), on the other hand, developed rapidly from the revelations before the IMT. The German military policy of endeavoring to "pacify" occupied countries by the ruthless slaughter of thousands of hostages was applied with particular severity in the occupied Balkan countries-Yugoslavia, Albania, and Greece. Documentary proof that these killings were carried out pursuant to orders emanating from the highest levels of the Wehrmacht came readily to hand, and several of the responsible German military leaders-Field Marshals List and von Weichs and General Rendulic-were in American custody. These three and nine other German generals, all of whom held command or important staff assignments in the Balkans, were indicted for numerous and flagrant violations of the laws of war in the first of the two military cases tried at Nuernberg under Law No. 10.

The indictments in the cases described above-Cases No. 1 to 10, inclusive—were all filed during the first 10 months of OCCWC's existence.204 Each of these 10 cases was a part of a "program" or "schedule" of trials to be held under Law No. 10 which had been submitted by me to and approved by the Deputy Military Governor in the spring of 1947. A tentative plan for a series of 15 to 18 trials, in which approximately 225 individuals would be accused, had been submitted by me to General Clay on 14 March 1947. A modified program of 16 trials (involving approximately 220 defendants) was sub

203 Many of them were known to be dead and others could not be located.

204 The indictment in the "Krupp case" (Case No. 10) was the last of these filed, under date of 16 August 1947.