in view of the attitude of the other three governments," the United States should agree to participate in a second IMT trial with not more than six to eight defendants (including the five already agreed upon), and should make Nuernberg available as the seat of the trial. Mr. Justice Jackson returned to the United States at the end of July. He discussed the question with the Secretary of State (Mr. Byrnes) in Paris en route, and thereafter with Secretary of War Patterson and others in Washington. The War Department adhered to its view that a second London Charter trial was undesirable, but no official decision was made.

*

No further action was taken until after rendition of judgment by the IMT on 1 October 1946. Shortly thereafter Mr. Justice Jackson submitted his final report to President Truman 68 in which he stated: “ * The most expeditious method of trial and the one that will cost the United States the least in money and in manpower is that each of the occupying powers assume responsibility for the trial within its own zone of the prisoners in its own custody. Most of these defendants can be charged with single and specifie crimes which will not involve a repetition of the whole history of the Nazi conspiracy. The trials can be conducted in two languages instead of four, and since all of the judges in any one trial would be of a single legal system no time would be lost adjusting different systems of procedure.

A four-power, four-language international trial is inevitably the slowest and most costly method of procedure. The chief purposes of this extraordinary and difficult method of trial have been largely accomplished, as I shall later point out.

There is neither moral nor legal obligation on the United States to undertake another trial of this character. While the International Agreement makes provision for a second trial, minutes of the negotiations will show that I was at all times candid to the point of being blunt in telling the conference that the United States would expect one trial of the top criminals to suffice to document the war and to establish the principles for which we contended, and that we would make no commitment to engage in another.

It has been suggested by some of our Allies that another international trial of industrialists be held. The United States proposed to try in the first trial not only Alfried Krupp, but several other industrialists and cartel officials. Our proposal was defeated by the unanimous vote of our three Allies. After indictment, when it appeared that the elder Krupp was too ill to be tried, the

67 The French Government consistently and emphatically urged that a second London Charter trial be held. The Soviet Government did not officially announce its view during the first two meetings of the Committee, but at the meeting of 2 July Colonel Pokrovsky stated that: "the Soviet Government has decided that the delegates here present should work on the second trial. The Soviet Government believes that the international character of the trial should be stressed." The British attitude was cautious, but on 25 July 1946 Sir Hartley Shawcross wrote to Mr. Justice Jackson stating that "the British are to some extent publicly committed to a second trial ** in all the circumstances, therefore, I

think that we should make as early a declaration as possible that we are prepared to participate in a second trial involving the five defendants whose names have been agreed, and I feel little doubt that the British Government will adopt this view." There were informal indications, however, that some members of the British Government did not share Sir Hartley's views.

68 The report is dated 7 October, but was not released until 17 October 1946.

69 International Conference on Military Trials, op. cit. supra, pp. 435-436.

* * *

United States immediately moved that Alfried Krupp be added as a defendant and tried for the crimes which he had committed as chief owner and president of the Krupp armament works. This was likewise defeated by the combined vote of all our Allies. This is not recited in criticism of my associates * * *. However if they were unwilling to take the additional time necessary to try industrialists in this case, it does not create an obligation on the United States to assume the burdens of a second international trial.

The quickest and most satisfactory results will be obtained, in my opinion, from immediate commencement of our own cases according to plans which General Taylor has worked out in the event that such is your decision. Of course, appropriate notifications should be given to the nations associated with us in the first trial.

*

*

In acknowledging Mr. Justice Jackson's report and accepting his resignation as Chief of Counsel, President Truman noted the Justice's recommendations as set forth above, and observed that: "the recommendations which you make coming as they do out of your experience at Nuernberg, will be given careful consideration." No further official action was taken for several months thereafter. Toward the end of the year, however, the French government circulated a note to the United States, British, and Soviet Governments suggesting that the Committee of Prosecutors provided for in Article 14 of the London Charter "should reconvene as soon as possible" in order to give consideration to a second IMT trial. The reply to the French request was contained in a note which the American Embassies in London, Moscow, and Paris were instructed to address to the British, Soviet, and French Foreign Offices." This note stated, in conclusion:

70

It is the view of this Government that further trials of German war criminals can be more expeditiously held in national or occupation courts and that additional proceedings before the International Military Tribunal itself are not required. This Government accordingly believes that there is no occasion for the Committee of Chief Prosecutors established under Article 14 of the Charter to reconvene as suggested by the French Government. So far as I am aware, after the delivery of this note no further serious consideration was given to the holding of a second trial under the London Charter. In the meantime, the program of trials at Nuernberg under Law No. 10 had gotten under way, and two such trials were actually in process.

TO General Order No. 301 Headquarters, USFET, dated 24 October 1946, under which I was appointed as Chief of Counsel for War Crimes, also stated that I should serve as Chief Prosecutor for the United States under the Charter of the International Military Tribunal. See p. 294, infra.

71 The note is printed hereinafter as Appendix K.

MILITARY GOVERNMENT ORDINANCE NO. 7

An essential prerequisite to the initiation of any trials under Control Council Law No. 10 was the setting up of tribunals for this purpose. As noted above,72 Law No. 10 did not undertake to specify the nature or procedures of the tribunals which would be charged with its practical application.

73

The first draft of a Military Government "regulation” or “ordinance," under which these tribunals would be constituted, was prepared in July 1946. By the middle of August an improved draft was circulated to the War Crimes Branch of the Civil Affairs Division of the War Department and to OMGUS, but no attempt was made to write the final version until after the judgment of the IMT in October. The ordinance was promulgated by order of OMGUS effective 18 October 1946 (the day after Mr. Justice Jackson's resignation) as Military Government Ordinance No. 7.75

In the course of preparing this Ordinance, careful consideration was given to the question whether the judges of the Law No. 10 tribunals should be professional judges (or experienced lawyers qualified for judicial functions) or lay military officers (as in military courts martial, and as at the Dachau trials of German war criminals). I recommended the former course of action 76 for several reasons. Firstly, while the usual type of issues under the laws and customs of war (such as military courts martial are accustomed to deal with) would undoubtedly arise, the trials under Law No. 10 would also involve numerous other complicated issues of law and fact which could best be dealt with by professional jurists. Secondly, in trials of the scope and importance such as those under Law No. 10, it seemed to me desirable that the reasons for the Tribunals' decisions should be fully set forth in judicial opinions; military courts martial do not custom

12 Supra, p. 19.

73 The first draft was prepared by Miss Bessie Margolin, Assistant Solicitor of the Department of Labor, who had been temporarily "loaned" to Nuernberg by that Department. The draft was reviewed and revised under my supervision by Miss Margolin and other senior lawyers of the Subsequent Proceedings Division, and completed in collaboration with the Legal Division of OMGUS, then headed by Mr. Alvin Rockwell.

14 It was not published, however, until 24 October 1946.

75 Attached hereto as Appendix L.

76 My conclusion was reached after consultation wth Mr. Alvin Rockwell (Director of OMGUS Legal Division) and Colonel C. B. Mickelwait (who had become Theater Judge Advocate after the death of Brigadier General Betts in May 1946).

arily render opinions." Thirdly, excellent as the work of military courts martial usually is, it seems to me that judgments by professional, civilian judges would command more prestige both within Germany and abroad, in the legal profession and with the general public alike. Fourthly, in any event it would have been extremely difficult to procure enough senior military officers to furnish the necessary number of judges for the Nuernberg tribunals.78

Because of these considerations, Ordinance No. 7 provided (Art. ✓ IIb) that the members of the Tribunals should "be lawyers who have been admitted to practice, for at least five years, in the highest courts of one of the United States or * in the United States Supreme Court." 79 Each tribunal was to consist of three members, and an alternate member (similarly qualified) might also be designated "if deemed advisable by the Military Governor."

Ordinance No. 7 also envisaged the possibility that under certain circumstances it might be desirable to establish tribunals jointly with one or more of the other occupying powers. To this end, it was provided (Art. IIc) that, in the discretion of the Military Governor, such joint tribunals might be set up, in which case their membership might include "properly qualified lawyers designated by the other member nations." For similar purposes, the Chief of Counsel was authorized (Art. IIIb) to "invite one or more United Nations to designate representatives to participate in the prosecution of any case." As matters worked out, no joint tribunals were ever constituted, but a representative of France participated (upon due invitation) in the prosecution of one of the more important Nuernberg cases.80

Another matter carefully considered during the drafting of Ordinance No. 7 was the qualifications of defense counsel. The London Charter did not cover this matter. The Rules of Procedure of the International Military Tribunal 81 provided that each defendant had the right either to conduct his own defense or to be represented by counsel. Lists of available counsel were furnished to the defendants, and each might either pick a counsel on the list, or ask for some other counsel, or allow the tribunal to designate counsel for him. Quali

7 The

London Agreement provided (Art. 26) that "the judgment of the Tribunal as to the guilt or innocence of any defendant shall give the reasons on which it is based, This requirement was carried into Ordinance No. 7 (Art. XV). 78 The more important war crimes cases tried before military courts martial were usually heard by benches of seven or nine officers.

79 This provision did not, of course, bar military officers from acting as judges if they could fulfill these professional qualifications. In fact, all judges of the Nuernberg tribunals established under Law No. 10 were civilians except one who, although a judge of the Court of Common Pleas of Pennsylvania, was also a captain in the United States Naval Reserve and came to Nuernberg on a duty assignment in that capacity (Capt. Michael A. Musmanno).

80 The representative was M. Charles Gerthoffer, who participated in the prosecution of the so-called "Ministries case," officially designated United States v. Ernst von Weizsaecker et al. (Case No. 11).

1 Adopted 29 October 1945, and printed in Trial of the Major War Criminals, op. cit. supra. Volume I, pp 19-23.

fications for defense counsel were not set forth in the Rules, and the IMT never, so far as I am informed, laid down any formal requirements. In actual practice, all counsel on the lists furnished to defendants were German, as it was felt that German counsel could more effectively represent the defendants than those of any other nationality.82

In drafting the clauses of Ordinance No. 7 governing defense counsel, heed was given to the practical experience of the IMT. German counsel were best equipped-both linguistically and by virtue of their professional and social training and contacts-to represent German defendants. They could deal much more expeditiously and understandingly with the evidentiary materials (both documents and witnesses) and could more easily apprehend the organization of German government and society and the channels of authority which were so important in establishing the true extent of individual responsibility. A group of 50 or more German attorneys had become thoroughly experienced in the procedures developed by the IMT, and many of them remained available to represent the defendants charged under Law No. 10. Accordingly, it was provided 8 that each defendant should "have the right to be represented by counsel of his own selection, provided such counsel shall be a person qualified under existing regulations to conduct cases before the courts of defendant's country * * *" However, the Nuernberg tribunals could also specially authorize “any other person" to act as defense counsel.84 In case a defendant should fail or refuse to select counsel, the tribunals would appoint counsel to act in his behalf.

83

Likewise in the field of evidentiary rules, Ordinance No. 7 followed the precedent of the IMT. Nuernberg legal procedure, as outlined in the London Charter and Law No. 10 alike, was derived both from Anglo-Saxon common law and from continental law, and it was recognized that a slavish adherence to the evidentiary rules of either legal system alone would be out of keeping with the international character of the proceedings. To this end the London Charter provided (Art. 19) that the IMT should "not be bound by technical rules of evidence" but that it should admit "any evidence that it deems to have probative value" and should "adopt and apply * * * expeditious and nontechnical procedure * **"This broad directive was appropriate to a tribunal the members of which, rather than a lay jury, were themselves to pass on the issues of fact, and it laid the basis for the evolution of a procedure at once expeditious and fair to the defendants,

82 Only one defendant submitted a request for American counsel. He did not specify any particular individual, and the IMT rejected this application without prejudice to the defendant's right to ask for a particular American attorney.

83 Art. IVc.

84 Pursuant to this provision two American and one Swiss defense counsel were authorized. Infra, pp. 47-48.