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of a man about whose guilt there is substantial doubt. The purpose of the information given below about the results of the trials is, accordingly, informative only, and is in no way intended as a measure of the success or failure of the Nuernberg program.216

Of the 185 individuals who were indicted in the 12 trials under Law No. 10, only 177 were finally adjudged guilty or innocent. Following service of the indictments, four defendants committed suicide: one each in the "Justice," "Hostage," "Einsatz," and "High Command" cases (Carl Westphal, Lt. Gen. Franz Boehme, SS Maj. Emil Haussman, and Gen. Johannes Blaskowitz, respectively). Four other defendants were physically unable by reason of illness to present their defense, and were severed from the proceedings: one each in the "Justice," "Farben," "Hostage," and "Einsatz" cases (Karl Engert, Max Brueggemann, Field Marshall Maximilian von Weichs, and SS Brig. Gen. Otto Rasch, respectively). Of the 177 who actually stood trial, 35 were acquitted and 142 were convicted on one or more counts of the indictments.

Of the 142 convicted, 26 were originally sentenced to death-7 in the "Medical case" (Case No. 1), 4 in the "Pohl case" (Case No. 4) and 14 in the "Einsatz case" (Case No. 9). In a supplemental judgment, the tribunal (No. II) which heard the "Pohl case" (Case No. 4) reduced the sentence of one defendant (SS Maj. Gen. Georg Loerner) to life imprisonment, and on review of the sentence the Military Governor (General Clay) reduced still another death sentence (that of SS Maj. Karl Sommer) to life imprisonment. Accordingly, in the final outcome 24 death sentences were pronounced and confirmed. Of these, the seven pronounced in the "Medical case" were carried out (following the denial by the United States Supreme Court of a petition for habeas corpus filed there on behalf of the defendants) in 1948. The 16 other condemned men are still awaiting execution at Landsberg Prison.217

Of the 118 defendants convicted but not condemned to death, 20 were sentenced to imprisonment for life.218 Of the other 98, 16 were given sentences of less than 4 years. Eleven of the sixteen were deliberately given sentences equal to or less than the time they had already spent in confinement awaiting trial, and were released immediately after the rendition of judgment. The other five received sentences of 22 years or less which, with credit for time already served awaiting trial, meant that they had less or little more than a year still to serve at Landsberg, and this was also true of the two defendants who received 4-year terms.

216 See Appendix B, chart titled "Statistical Table of the Nuremberg Trials," p. 371. 217 See Infra, pp. 97-98.

218 This figure includes the life sentence of Karl Sommer in Case No. 4 (reduced from death), but does not include the life sentence originally imposed in the same case on SS Lt. Col. Max Kiefer, which by supplemental judgment the tribunal reduced to 15 years.

Accordingly, 80 defendants in all received prison terms of from 5 to 25 years duration, as shown by the following table:

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It will be seen that three-quarters of the defendants received sentences of 7, 10, 15, or 20 years, and that the average sentence was approximately 10 years in length.

On the whole, it was apparent to anyone connected with the entire series of trials under Law No. 10 that the sentences became progressively lighter as time went on. Defendants such as Darre, Dietrich, and Stuckart in the "Ministries case" (Case No. 11) who, although convicted under two or more counts of the indictment of serious crimes, received very light sentences in April 1949, would surely have been much more severely punished in 1946 or 1947. No doubt a number of factors played a part in this trend toward leniency, including waning interest on the part of the general public and the shift in the focus of public attention resulting from international events and circumstances.

The great majority of the convictions in the trials under Law No. 10 were based upon charges relating to war crimes and crimes against humanity, involving atrocities and offenses such as slave labor, economic spoliation, the killing of hostages, and persecution and extermination of Jews, and other racial, religious, or national groups. No defendant was convicted of conspiracy, and only 5 of the 52 defendants tried for war-making were convicted. In the "Farben," "Krupp," and "High Command" cases all the defendants had been charged with crimes against peace, and all were acquitted. In the "Ministries case" 17 defendants were so charged, of whom 5 only were convicted. Clearly, it was in connection with the charge of crimes against peace that the prosecution's views met with the least measure of acceptance by the tribunals. In this connection, in retrospect it appears to me that I committed a serious tactical error in not including the charge of war-making in the "Milch case" (Case No. 2).219 In view of Milch's close association with Goering and his attendance at important Hitler war conferences, the proof in support of such a charge against Milch

219 Supra, p. 67.

could have been quite simply and expeditiously offered and a clear-cut issue presented for decision in the very first judgment under Law No. 10. It is possible (though by no means certain) that Milch's conviction on such a charge (had it been obtained) would have been an influential precedent in the subsequent trials.

As explained heretofore,220 the charge of membership in organizations declared criminal by the IMT played a relatively minor part in the Nuernberg proceedings under Law No. 10. In four of the cases (the "Milch," "Hostage," "Krupp," and "High Command" cases) none of the defendants were members of such organizations. In the other 8 cases, a total of 87 defendants were charged and tried on this ground.221 Seventy-four were convicted. As to the 13 who were acquitted, the tribunals held either that the fact of membership had not been sufficiently established, or that the membership proved did not fall within the categories specified by the IMT. Of the 74 defendants convicted on the membership charge, 10 were convicted on this charge alone, 1 each in the "Medical," "Justice," and "Ministries" cases (SS Senior Colonels Helmut Poppendick, Josef Altstoetter, and SS Lt. Gen. Ernst Bohle, respectively), two in the "Einsatz case" (SS Captain Ruehl and SS Lieutenant Graf), and five in the "RuSHA case" (SS Senior Colonels Meyer-Hetling, Schwarzenberger, Ebner, Tesch, and SS Colonel Sollmann). The sentences imposed in these 10 cases show little consistency; Poppendick and Ruehl were sentenced to ten and Altstoetter and Bohle to five years imprisonment, each, but Graf and all five of the SS colonels in the "RuSHA case" were released immediately on the basis that the time they had spent in confinement awaiting and during trial was a sufficient punishment.

222

For the future and for the development of international law, the conclusions and reasoning of the judgments are, of course, far more important than the sentences. In the booklet attached hereto as Appendix B, I have sketched the reasoning in each of the 12 judgments with substantial illustrative quotations from the opinions,2 and have set forth in summary form my views as to the significance of these decisions in the field of international jurisprudence.223 I have nothing further to add here to what is said therein, except for some general observations in the conclusion of this report.224

220 Supra, pp. 69-70.

221 In fact 89 were so charged, but two of these were the defendants named in the "Einsatz case" who were not finally judged (one suicide and one severed on account of illness).

222 Nuremberg Trials: War Crimes and International law, op. cit. supra, pp. 227 to 335. 223 Op. cit. supra, pp. 336-347 and 352-355.

224 Infra, pp. 103-112.

DEACTIVATION PROBLEMS

Court proceedings at Nuernberg were concluded on 14 April 1949, and the OCCWC was formally deactivated on 20 June 1949. The Central Secretariat, however, is still in existence in order to route and receive petitions and other papers relating to clemency pleas arising from the last Nuernberg judgment (in the "Ministries case," Case No. 11), as well as to handle the disposition of court archives, etc. Dr. Howard H. Russell is continuing to act as Secretary General (as well as General Secretary of the IMT), and will, no doubt, himself submit a final report when these activities are concluded.225

The mission of OCCWC as an agency for the indictment and prosecution of war crimes suspects has, accordingly, been completed. There are, nonetheless, several problems and situations arising out of OCCWC's activities which remain to be dealt with.

Unfinished Business

As has heretofore been stated,226 the individuals who were actually tried at Nuernberg were selected from among numerous other war crimes suspects against whom there was ample evidence to warrant indictment. For the most part, those who were not named as defendants occupied less important positions and bore a smaller share of the responsibility for the crimes and atrocities of the Third Reich than those who were put on trial. To this, however, there are certain exceptions. In the selection of defendants for the "Ministries case," for example,227 it was necessary to eliminate as defendants a number of former high-ranking Reich officials who were closely connected with the program for extermination of Jews known as the "final solution of the Jewish question." Furthermore, there were several individuals who would have been indicted at Nuernberg but for the fact that at the time the indictments were filed it was believed they would be transferred to the custody of and tried by one of the countries formerly occupied by Germany. Owing to developments in the international situation, a number of these transfers did not take place, and

225 [The Secretariat was terminated 15 November 1949. Residual functions were transferred to the Office of the United States High Commissioner for Germany.]

226 Supra, pp. 73-75.

327 Supra, pp. 81-85.

the individuals in question have never been brought to trial at all.228 Furthermore, five individuals were indicted at Nuernberg but never tried, of whom four survive.229 Of these four, however, Gustav Krupp von Bohlen (indicted in the first Nuernberg trial before the IMT) undoubtedly will never be physically fit to stand trial,229a and Max Brueggemann (indicted in the "Farben case") is not a war-crimes suspect of major importance. But Karl Engert (indicted in the "Justice case") and Field Marshal Maximilian von Weichs (indicted in the "Hostage case") should certainly stand trial if in the future their physical condition permits. Engert was Chief of the Penal Administration Division and the Prison Inmate Transfer Division of the Reich Ministry of Justice and a vice president of the notorious Peoples' Court, as well as a senior colonel in the SS. Von Weichs was the commander in chief of all German forces in the Balkans from 1943 to 1945, and in that capacity was the commanding officer of Generals Rendulic, Felmy, Lanz, Dehner, von Leyser, and Speidel, all of whom were convicted and sentenced to long prison terms for transgressions of the laws of war during the German occupation of Yugoslavia, Albania, and Greece, including in particular the indiscriminate slaughter of hostages.

It is my belief that such individuals should be brought to trial on criminal charges before German tribunals. The offenses with which they would be charged are not such as can be appropriately dealt with by the denazification tribunals. Nor would it be wise, at this late stage, to constitute additional tribunals under Control Council Law. No. 10. It is true that the prevailing trend and climate of political opinion in Germany makes it quite unlikely that the German authorities will eagerly pursue this course of action. But if the situation in Germany is indeed such that the Germans will not bring to trial men such as those who were deeply implicated in the extermination of European Jewry, the sooner that fact is apparent and generally understood the better it will be for all concerned.

Review and Clemency

Under the provisions of Military Government Ordinance No. 7, the judgments of the Nuernberg Military Tribunals are final and not subject to review (Art. XV). The sentences imposed by the tribunals, however, are subject to review by the Military Governor, who is empowered "to mitigate, reduce, or otherwise alter" the sentences, but not to "increase the severity thereof" (Art. XVII). The sentences

928 A good example is General Hans Felber, Military Commander in Serbia during 1943 and 1944, who would certainly have been named as a defendant in the "Hostage case" (Case No. 7).

229 SS Brig. Gen. Otto Rasch, indicted in the "Einsatz case" (Case No. 9), but not tried, has since died.

229 [Gustav Krupp died 16 January 1950.]

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