national or occupation court established in any Allied territory or in Germany for the trial of war criminals. The annexed Charter dealt, inter alia, with the constitution of said International Military Tribunal; the crimes cognizable thereby; the rights of persons accused, and procedural methods in prosecution and trial of such persons before that Tribunal. This Charter became a pattern for Control Council Law No. 10, referred to above, under which was constituted the tribunal that tried and sentenced Flick. Ordinance No. 7, Military Government-Germany, was promulgated October 18, 1946, pursuant to the powers of the Military Governor for the United States Zone of Occupation and "pursuant to the powers conferred upon the Zone Commander by Control Council Law No. 10, ***." * Its declared purpose was "to provide for the establishment of military tribunals which shall have power to try and punish persons charged with offenses recognized as crimes in Article II of Control Council Law No. 10, ***.” (Mil. Gov. Gazette-Germany-U. S. Zone, Issue B., 1 Dec. 1946, p. 11.) Accordingly, it was provided that each such tribunal should consist of three or more members, to be designated by the Military Governor, and laid down rules for the prosecution and trial of cases coming before those tribunals. Pursuant to the ordinance, General Clay, then Military Governor and Zone Commander, on April 12, 1947, constituted "Military Tribunal IV," designated the members thereof, and directed them to convene at Nuremberg, Germany, to hear such cases as might be filed by the Chief of Counsel for War Crimes. (General Orders No. 21, Headquarters, European Command, April 12, 1947.) This was the tribunal before which Flick was tried, convicted and sentenced upon an indictment filed by said Counsel. The same persons, designated by the Military Governor as members of Military Tribunal IV, were later named by the President to be members "of one of the several military tribunals established by the Military Governor for the United States Zone of Occupation within Germany pursuant to the quadripartite agreement of the Control Council for Germany, enacted December 20, 1945, as Control Council Law No. 10, (Executive Order 9858, May 31, 1947, 12 Fed. Reg.

3555.)

We should, perhaps, advert to the fact that the Commander in Chief of the American Forces, who by virtue of that position served as a member of the Control Council and Zone Commander in the American Zone of Occupation, and the Military Governor of said Zone acting as such by virtue of his rank as the Commanding General, were combined in the person of a single general of the United States Army. This accounts for the fact that in some of

Italics supplied.

the documents referred to we may find these official titles, as they are used, confusing in relation to the subjects covered thereby. In these circumstances the nature of the act itself, rather than the title indicated by the document, will best serve to show the true capacity in which the officer was acting.

The foregoing summary brings out the salient facts bearing upon the status of Military Tribunal IV, which tried and sentenced Flick. He contends that it was not an international court, but an illegally constituted body, wrongfully exercising power as a military tribunal. The argument in support of this contention overlooks important facts. It pursues the form, rather than the substance of things. If the court was not a tribunal of the United States, its actions cannot be reviewed by any court. (Hirota v. MacArthur, supra.) If it was an international tribunal, that ends the matter. We think it was, in all essential respects, an international court. Its power and jurisdiction arose out of the joint sovereignty of the four victorious Powers. The exercise of their supreme authority became vested in the Control Council. That body enacted Law No. 10, for the prosecution of war crimes. It vested in the Commander for the American Zone the authority to determine and designate, for his zone, the tribunal by which accused persons should be tried and the rules and procedure to govern in such cases. Pursuant to that power, and agreeably to rules duly promulgated by Ordinance No. 7, the Zone Commander constituted Military Tribunal IV, under whose judgment Flick is now confined. Thus the power and jurisdiction of that Tribunal stemmed directly from the Control Council, the supreme governing body of Germany, exercising its authority in behalf of the Four Allied Powers.

It follows that we cannot accept the argument that the sole authority for establishment of international courts for the trial of Axis war criminals was the London Agreement. That Agreement only provided for a tribunal (and, if necessary, other identical tribunals,) to be established, after "consultation" with the Control Council, for the trial of a special class of war criminals. (Art. 1.) The Agreement was without prejudice to "the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or in Germany for the trial of war criminals." (Art. 6.) No similar tribunal was ever established under the London Agreement. We know that the only one which was established tried but the single case of Goering, et al

Control Council Law No. 10, the basic authority for Military Tribunal IV, was enacted after the London Agreement. As heretofore shown, that law, in addition to defining war crimes, empowered each Zone Commander, for his zone, to designate the

tribunals to try such cases and to determine the rules and procedure for such tribunals. It also provided that nothing therein should impair the jurisdiction of the International Military Tribunal established under the London Agreement. In connection with this proviso we should note that the declared purpose of Control Council Law No. 10 was to give effect to the London Agreement and "to establish a uniform legal basis in Germany for the prosecution of war criminals * * * other than those dealt with by the International Military Tribunal, * So we think there is no conflict between the two enactments. Rather do they complement each other. If, perchance, there be any point of conflict, it would seem that the terms of Law No. 10 should prevail, not only because it was enacted later, but by reason of these supporting circumstances: First, the President's Directive of October 17, 1945, (supra), issued through his Joint Chiefs of Staff to the Commanding General of the American Forces, recognizing the Control Council as the "supreme organ of control over Germany," and the American Commanding General as "clothed with supreme legislative, executive, and judicial authority" in the area occupied by his command, and Second, the President's nomination of the jurists who were designated by the Commanding General as members of Military Tribunal IV. (Executive Order, May 31, 1947, supra.) Those acts of the Executive, in the exercise of his war powers, furnish strong support to the series of events culminating in the establishment of Military Tribunal IV.

Concededly, the International Military Tribunal, established under the London Agreement, was a court of international character. How, then, can it be said that Military Tribunal IV was not of the same character, with its existence and jurisdiction rooted in the sovereignty of the Four Powers, exercised jointly through the supreme governing authority of the Control Council? We think, therefore, that the tribunals established under its authority were legitimate and appropriate instruments of judicial power for the trial of war criminals. (See 39 Am. J. Int'l. Law, 1945, at p. 525.)

Accordingly, we are led to the final conclusion that the tribunal which tried and sentenced Flick was not a tribunal of the United States. Hence the District Court was without power to review its judgment and sentence. (Hirota case, supra.) Therefore, the order of the District Court dismissing the petition for the writ is

Affirmed.

*Italics supplied.

XV. DECISION OF THE SUPREME COURT OF THE UNITED STATES, 14 NOVEMBER 1949, DENYING PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

SUPREME COURT OF THE UNITED STATES

Monday, November 14, 1949

Present: Mr. Chief Justice Vinson, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Jackson, Mr. Justice Burton, Mr. Justice Clark, and Mr. Justice Minton.

No. 317. Friedrich Flick, petitioner, v. Louis A. Johnson, Secretary of Defense, Gordon Gray, Secretary of the Army, et al. Petition for writ of certiorari to the Court of Appeals for the District of Columbia Circuit denied. Mr. Justice Black is of the opinion certiorari should be granted. Mr. Justice Jackson took no part in the consideration or decision of this application.*

* United States Reports, vol. 338, p. 879; rehearing denied, ibid., p. 940.

APPENDIX

Glossary of Terms and Abbreviations

Aktiengesellschaft (A.G.)

Allgemeine SS

Aufsichtsrat *

Braunkohle

Generaldirektor

Gau(e)

Gauleiter

Huettenwerke

Justizrat

Kleine Kreis

Kohlenwerke ...

Title of lawyers, attorneys, and notaries.

Small Circle-a group of industrialists which exercised great influence over the coal, iron, and steel industries. ... Coal works (mines).

Kommanditgesellschaft (K.G.) ..... Company partnership in which at least

For a further explanation of this term see section IV A, this volume.