The Procedural And Evidentiary Rules of the Post World War II War Crimes Trials:

Did They Provide An Outline For International Legal Procedure?

By

Evan J. Wallach¹

...it is of the first importance that the task of planning and developing permanent judicial machinery for the interpretation and application of international penal law be tackled immediately and effectively. The war crimes trials, at least in Western Europe, have been held on the basis that the law applied and enforced in these trials is international law of general application which everyone in the world is generally bound to observe. On no other basis can the trials be regarded as judicial proceedings, as distinguished from political inquisitions.²

There is a general consensus among international lawyers that "The proceedings [at Nuremberg] were ... generally viewed as providing the defendants with the essentials of due process and a fair trial.³ The Tokyo Trial and the related "Far Eastern" cases are considered by

some to be less authoritative.⁴

The purpose of this article is to generally examine, compare and contrast the rules of evidence and procedure applied in the trials of major war criminals at Nuremberg and Tokyo, and in a representative sampling⁵ of the subsequent trials which followed.⁶ As for the reason to study those trials other than the sheer academic pleasure, since this article appears in a journal honoring Telford Taylor, perhaps it is best to rely on his wise counsel:

A particularly fruitful field for research and publication is that of legal procedure. Almost all the war crimes trials have presented procedural questions to which different answers might be given depending upon what system of law the court chose to follow. The evidentiary weight to be given hearsay evidence of affidavits is a common example of this type of problem. Furthermore, the unsettled state of the world and the unusual nature of the trials precipitated many novel procedural matters which the tribunals had to determine without much in the way of past practice to guide them. Based upon the records of the Nurnberg trials alone a most useful study could be made, but a full treatment would require examination of the records of many other trials in order to make a comparative study. From such a study, the outlines of international legal procedure should emerge.⁷

From the results of this study, if not an outline, at least certain conclusions have emerged. The first is that the rules of procedure and evidence used at the post World War Two war crimes trials were essentially American devised and based on American law. The second is that given the intentionally amorphous nature of those rules they could be, and were, applied to produce fair or unfair trials, just or unjust results. Finally, Taylor is correct that the study of the past has much to offer the lawyer of the future. The application of those rules to actual courts and tribunals teaches lessons readily applicable to legal proceedings which might result from whatever international conflicts lie in shrouded the fog of war.

I

The Evolutionary History Of The World War II Trials

The general historical consensus accepts the thesis that the Nuremberg Charter⁸, its resulting rules of procedure and evidence, and those of the courts which followed in its wake, were the result of a compromise "blending and balancing ... elements from the Continental European inquisitorial system and the Anglo-American adversarial system."⁹ The belief was largely fostered by United States Supreme Court Justice Robert H. Jackson, the Chief American prosecutor at the first Nuremberg Trial, who repeatedly said that the four major Allied powers at the conference "[a]ll agreed in principle that no country reasonably could insist that an international trial should be conducted under its own system and that we must borrow from all and devise an amalgamated procedure that would be workable, expeditious and fair."¹⁰

In fact, while the rules do blend aspects of both practices, they were largely based on American practice before military commissions, ¹¹ as applied in the trial of Nazi saboteurs in Ex parte Quirin in 1942.¹² While the United States was concerned that the trials be perceived as and fair, the American emphasis ( at least internally) was on workability and expedition.¹³

A

The Genesis Of The International Tribunals

On October 7, 1942, President Roosevelt and the British Lord Chancellor (Sir John Simon) proposed establishment of a United Nations Commission for the Investigation of War Crimes. Taylor, Anatomy, supra p.26. The next year, the U.S., U.K. U.S.S.R, and China issued a

Statement on Atrocities which provided that after the war "...those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in ... atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein...." That declaration was "...without prejudice to the case of German criminals whose offenses have no particular geographical localization and who will be punished by joint decision of the Allies."¹⁴

In furtherance of those goals, and at the particular urging of the United States¹⁵, the Allies convened¹⁶ the London Conference in June, 1945¹⁷. Justice Jackson, who had been appointed Chief United States prosecutor in May,¹⁸ became deeply immersed in those negotiations. His interim Report¹⁹ which proved immensely influential²⁰, provided, in part, that "[t]he legal position which [we] will maintain, ... is relatively simple and non-technical."²¹ Accordingly, he said "...the procedure of these hearings may properly bar obstructive and dilatory tactics resorted to by defendants in our ordinary criminal trials."²²

In fact, the American position had been developing²³ for some time²⁴, and it was indeed designed to provide a summary procedure, similar to the Quirin Commission, which would deny defendants charged in war crimes trials the advantages of Anglo-American evidentiary and procedural ²⁵ rules. ²⁶

On a parallel course, the United States was developing its proposed rules for use in war crimes trials other than the International Military Tribunal. In an undated Memo²⁷ M.G. Myron Cramer²⁸, The Judge Advocate General of The Army, Cramer noted:

You have asked my opinion whether the Articles of War constitute a limitation on the procedure of military commissions appointed by authority of United states army commanders in occupied territory for the trial of war criminals. The question is important for the reason that if applicable, alleged war criminals would be entitled to assert a privilege against self-incrimination under Article of War 24, testimony by deposition could not be adduced against their consent under Article of War 25 and the reviewing or confirming authority would be required to refer the record of trial to his staff judge advocate or The Judge Advocate General before acting thereon under Article of War 46.

His conclusion is telling. After a review of applicable law, Cramer stated that:

Carried to its logical extent, the claim that the Articles of War apply to trials of war criminals results in the conclusion that Congress intended, as a matter of public policy, to extend the protection of the Articles of War to such offenders. This in turn would outlaw American participation in international tribunals convened for such trials unless the protections of the Articles of War were observed by those tribunals. I cannot bring myself to reach any such conclusion.

(Emphasis added).

The London Conference was not, from the American view, entirely a smooth undertaking.²⁹ On August 6, 1945, however, just before the Charter was issued, the State Department Political Officer to the U.S. Commander in Europe was able to report:

According to information received from the Department of State, Justice Jackson reports that he has reached complete agreement with the U.K., Soviet and French representatives on all terms regarding war crimes and that the agreement accepts all the essential terms of the U.S. proposal.³⁰

It was from those "essential terms", based on U.S. military commissions, and set out in the internal memoranda previously discussed that there developed the rules of procedure and evidence applied at Nuremberg, Tokyo and their progeny.

II

The Rules Of Procedure And Evidence Which

Evolved From The London Conference

There were numerous variations in the rules of post World War II rules of procedure and evidence but all were the progeny of the London Charter. The Charter was, in itself, facially applicable only in Germany, but it proved to be a model for all that followed.

A

The Creation Of A Tribunal For Germany

The London Charter,³¹ enunciated the simple evidentiary rule repeatedly propounded in the U.S. internal position papers:

The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value.

Article 19

It could also, "require to be informed of the nature of any evidence before it is offered so that it may rule upon the relevance thereof,³² and it was not to "require proof of facts of common knowledge... official government documents and reports of the United Nations, including the acts and documents of the committees set up in the various Allied countries for the investigation of war crimes, and the records and findings of military or other tribunals of the United Nations."³³

The other procedural rules were somewhat more complex. They created a tribunal with four members and four alternates,³⁴ none of whom were subject to challenge.³⁵ The presence of all four members or a substituting alternate was necessary to constitute a quorum, with decisions by majority vote and convictions and sentences by a super-majority.³⁶

The Tribunal had normal coercive of courts including subpoena and interrogatory powers,³⁷ and it was required to "...confine the trial strictly to an expeditious hearing of the issues raised by the charges, take strict measures to prevent any action which will cause unreasonable delay and rule out irrelevant issues and statements of any kind whatsoever, [and] deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any defendant or his counsel from some or all further proceedings but without prejudice to the determination of the charges."³⁸

In a nod to continental practice Article 16 provided in part that:

In order to insure fair trial for the defendants the following procedures shall be followed:

(a) The indictment shall include full particulars specifying in detail the charges against the defendants. A copy of the indictment and of all the documents lodged with the indictment, translated into a language which he understands, shall be furnished to the defendant at a reasonable time before the trial.

(b) During any preliminary examination or trial of a defendant he shall have the right to give any explanation relevant to the charges made against him.

Finally, the Charter permits the Tribunal to draw up its own Rules of Procedure³⁹ not inconsistent with the Charter.⁴⁰

On December 20, 1945, "[i]n order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal," the Control Council of the four major occupying powers enacted Control Council Law No. 10. It allowed each power, within its zone to arrest suspects, and bring them "...to trial before an appropriate tribunal." ⁴¹

The Control Council empowered follow-up tribunals⁴² with rules issued in Control Council Ordinance No.7 on 18 October, 1946. It authorized tribunals of three or more members who could not be challenged,⁴³ and for rules similar to the International Military Tribunal⁴⁴ governing indictments and inherent powers.⁴⁵ There were, however, certain substantive changes.⁴⁶

Of primary importance here⁴⁷, the evidentiary rule was expanded:

The tribunals shall not be bound by technical rules of evidence. They shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which they deem to have probative value. Without limiting the foregoing general rules, the following shall be deemed admissible if they appear to the tribunal to contain information of probative value relating to the charges; affidavits, depositions, interrogations and other statements, diaries, letters, the records, findings, statements and judgments of the military tribunals and the reviewing and confirming authorities of any of the United Nations, and copies of any document or secondary evidence of the contents of any document, if the original is not readily available or cannot be produced without delay. The tribunal shall afford the opposing party such opportunity to question the authenticity or probative value of such evidence as in the opinion of the tribunal the ends of justice require⁴⁸.

Clearly, the rule was enunciated to eliminate any question that all evidence useful to the Tribunal could come in without objection. Clearly also, there was cross-fertilization on the other side of the globe; very similar language appears in the Charter of the International Military Tribunal for the Far East.

B

Rules For The Tokyo Tribunals And Its Progeny

There were important differences between the Tokyo and Nuremberg Charters. The Tokyo Charter, was created on January 19, 1946, by order of General Douglas MacArthur.⁴⁹ The embodiment of sovereignly in MacArthur as Supreme Commander for the Allied Powers (SCAP), meant there was no need to negotiate. MacArthur could have issued rules similar to the U.S. Articles of War, those governing military commission in the United States, or an exact copy of the Nuremberg Charter. He did none of those⁵⁰.

The Charter of the International Military Tribunal for the Far East, as amended, provided that the Tribunal would "...consist of not less than six members nor more than eleven members appointed by the Supreme Commander for the Allied Powers from the names submitted by the Signatories of the Instrument of Surrender, India and the Commonwealth of the Philippines."⁵¹ It did not provide for appointment of alternates. Instead, "the presence of a majority of all members [was] necessary to constitute a quorum. All decisions and judgments including convictions and sentences, were by a majority vote of members present. If a member was absent later present, he could take part in all subsequent proceedings unless he declared "in open court that he [was] disqualified by reason of insufficient familiarity with the proceedings which took place in his absence."⁵²

The Tribunal was entitled to draft and amend rules of procedure, ⁵³and its had coercive powers similar to the Nuremberg Tribunal. The Tribunal’s evidentiary powers were a synthesis of those contained in the Nuremberg Charter and Rules and those found in the Royal Warrant issued for trial of war criminals by the United Kingdom⁵⁴:

(a) Admissibility. The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value. All purported admissions and statements of the accused are admissible.

* * * * * * * *

(c) Specific Evidence Admissible. In particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted:

(1) A document, regardless of its security classification and without proof of its issuance or signature, which appears to the Tribunal to have been signed or issued by any officer, department, agency or member of the armed forces of any government.

(2) A report which appears to the Tribunal to have been signed or issued by the International Red Cross or a member thereof, or by a doctor of medicine or any medical service personnel, or by an investigator or intelligence officer, or by any other person who appears to the Tribunal to have personal knowledge of the matters contained in the report.

(3) An affidavit, deposition or other signed statement.

(4) A diary, letter or other document, including sworn or unsworn statements which appear to the Tribunal to contain information relating to the charge.

(5) A copy of a document or other secondary evidence of its contents, if the original is not immediately available.

(d) Judicial Notice. The Tribunal shall neither require proof of facts of common knowledge, nor of the authenticity of official government documents and reports of any nation nor of the proceedings, records, and findings of military or other agencies of any of the United Nations.

(e) Records, Exhibits and Documents. The transcript of the proceedings, and exhibits and documents submitted to the Tribunal, will be filed with the General Secretary of the Tribunal and will constitute part of the Record.

It was clearly MacArthur’s intention that as much evidence as possible would be admitted against the Defendants. Analysis of SCAP’s internal documentation demonstrates that the admissibility of any and all evidence was directly based on the same synthesis of Quirin and the history of United States military commissions that was used in developing the London Charter.⁵⁵

Prior to the Japanese surrender, of course, plans had been undertaken for trials of minor⁵⁶ war criminals. A War Crimes branch was organized in March, 1945, in the office of the Theater Judge Advocate. ... On December 6, 1945, MacArthur directed General Eichelberger, to appoint military commissions for the conduct of trials, to commence immediately.⁵⁷ Like its sibling trials, those "minor" tribunals⁵⁸ were held under procedures derived from the Quirin commission. The internal memoranda of SCAP’s Legal Division⁵⁹ indicate an intention to directly apply the procedures of U.S. military commissions.⁶⁰ They were aided in that goal by Regulations Governing The Trial of War Criminals issued by MacArthur on 24 September, 1945⁶¹, which were the precursor to both the December minor trials order and the IMTFE Tribunal Order. Those regulations laid out the same rules of evidence and procedure discussed above.⁶² Their application by the tribunals, when compared with the application of the Nuremberg and Dachau Rules, provides a stark example of the potential for abuse when rules are so flexible as to be non-existent.

III

Application Of The Rules; Did Good Intentions Go Bad?

At the policy-making level, particularly at the London Conference, there were repeated expressions of an intention to provide war crimes defendants with a "fair trial." Many of those who sat on the tribunals, and of those who prosecuted have pointed to the fact that there were acquittals, both of German,⁶³ and Japanese⁶⁴ defendants to prove that point. Indeed, one of the participants in the Yokohama proceedings expressed a view common among prosecutors and judges when he said they "...furnished an eloquent example of the conscientious manner in which civilized democratic people jealously protect the rights of fellow human beings to fair trials no matter how black their offenses may have been."⁶⁵

That statement way well express the intent and beliefs of most of the procedural participants⁶⁶ (other than, perhaps the defendants). It does not, however, reflect the overriding reality that the rules of evidence and procedure which governed the trials were flexible beyond not just the norms of criminal trials in democratic systems, but beyond the bounds underlying of fairness as well. This is not to say that they could not be and were not applied fairly; they usually were. Rather, the underlying problem which becomes apparent from an examination of how these too malleable rules were applied, is that because they were so flexible they were open to abuse.

That flexibility of the rules, and their direct effect on fairness is often seen in evidentiary rulings.⁶⁷ But it well beyond evidence. A classic example is provided by the distinction between the number of judges at Nuremberg and that and Tokyo and the concomitant quorum rules. Their effect on what has to be the essence of any fair system of law, predictability, was startling.

Thus, at the Tokyo Tribunal, in explaining a clearly inconsistent ruling favoring the prosecution on the use of a document not yet in evidence for cross-examination – after the defense had twice been prohibited from doing so and the prosecution was then so permitted – President Webb said, with extraordinary candor:

I am not here to offer any apology on behalf of the Tribunal, but as you know the Charter says we are not bound by the technical rules of evidence. That not merely prevents us from following our own technical rules – we could hardly do that because there are eleven nations represented and in some particulars they all differ in these technical rules – but it has the effect of preventing us from substituting any other body of technical rules of our own. All we can do on each piece of evidence as it is presented is to say whether or not it has probative value, and the decision on that question may depend on the constitution of the court. Some

times we have eleven members; some times we have had as low as seven. And you cannot say, I cannot say, that on the question of whether any particular piece of evidence has probative value you always get the same decision from seven judges as you would get from eleven. I know that you would not ... You cannot be sure what decision the court is going to come to on any piece of evidence – not absolutely sure – because the constitution of the court would vary from day to day and I would be deceiving you if I said decisions did not turn on how the court was constituted from time to time. They do. On the other day in court on an important point I know the decision would have been different if a Judge who was not here was present. How are we to overcome that? We cannot lay down technical rules. We might spend months in trying to agree upon them and then fail to reach an agreement. The Charter does not allow us to adopt them in any event. It is contrary to the spirit of the Charter. The decision of the Court will vary with its constitution from day to day. There is no way of overcoming it.⁶⁸

Equally candid, was the testimony, before a Senate Subcommittee, of the Chief Prosecutor in the Malmedy Massacre⁶⁹ Case. An Administrative Review Board⁷⁰ (The "Raymond" Board) had investigated complaints by German suspects in the investigation of Malmedy, that they had been subjected to improper methods of investigation. The Board generally rejected as unfounded allegations of physical abuse, but it found that "in an attempt to "soften up" certain witnesses prosecutors used "mock trial" procedures.

When the prisoner was brought into the mock trial room sometimes other people were brought in who purported to testify against him. There is no evidence on which the board can find that the prisoner himself was forced to testify at such trial. One member of the prosecution team would play the part of prosecutor, and another would act as a friend of the defendant. While this latter may not have been held out affirmatively as defense counsel, the accused had every reason to believe he was taking that part. No sentence was pronounced but the accused was made to understand that it was his last chance to talk and undoubtedly in some cases understood he had been convicted.

Following the mock trial the man who had played the friend of the accused at the mock trial would talk to him confidentially and advise him to tell what he knew. This procedure met with varying success, but undoubtedly some defendants would confess at least part of their crimes under the influence of such procedures.⁷¹

The Chief Prosecutor for the Malmedy Case was Lt.Col, Burton Ellis. He testified before the Senate⁷² regarding the propriety of such methods⁷³:

Colonel Ellis: Sir. ... the rules of evidence under which the war crimes were tried were most liberal.

* * * * * * *

Senator McCarthy: Do you think this type of mock trial was proper or improper? ...

Colonel Ellis: I think the answer to that question would be – so long as I let the court who weighs the evidence know how I obtained that confession, that is the important thing. Then, the duty is on them...

Sen. McCarthy: In other words, you say it would be proper to get a confession in any way you saw fit, so long as you let the court know how you got the confession?

Colonel Ellis: I think under the rules of evidence it would be perfectly proper. There were some things that would be repulsive to one individual that would not be to another. I would certainly not allow a confession to be used where a man was beaten or forced under threats or compulsion to make a confession. I am definitely opposed to that.

* * * * * * *

Sen. McCarthy: .... You think it is proper then, to use the mock trial if the court were informed...

Colonel Ellis: Under the rules of evidence which we were practicing under over there, I think it would be....

Senator McCarthy: Do you feel ... using different rules of evidence ... is proper?

Colonel Ellis: Most certainly; they admitted hearsay there and you don’t here.⁷⁴

Ellis’ testimony is extraordinarily telling because it demonstrates the potentially corrosive effects unstructured rules may have on the approach of a prosecutor under pressure (external or internal) to produce. While his statements may be unusually candid, the attitude he expressed was not his alone.⁷⁵

In Yamashita⁷⁶ and Homma⁷⁷ the Supreme Court refused to apply constitutional protections to the war crimes trials. In his dissent in Homma, Mr. Justice Murphy objected to a trial which "...was conducted [under] a directive containing such obviously unconstitutional provisions as those approving the use of coerced confessions or evidence and findings of prior mass trials.⁷⁸ In Yamashita, Justice Rutledge raised similar objections, but he also specifically objected to Article 16 of the Tribunal’s Charter⁷⁹. He noted that:

A more complete abrogation of customary safeguards relating to the proof, whether in the usual rules of evidence or any reasonable substitute and whether for use in the trial of crime in the civil courts or military tribunals, hardly could have been made. So far as the admissibility and probative value of evidence was concerned, the directive made the commission a law unto itself.

It acted accordingly. As against insistent and persistent objection to the reception of all kinds of 'evidence,' oral, documentary and photographic, for nearly every kind of defect under any of the usual prevailing standards for

admissibility and probative value, the commission not only consistently ruled against the defense, but repeatedly stated it was bound by the directive to receive the kinds of evidence it specified, reprimanded counsel for continuing to make objection, declined to hear further objections, and in more than one instance during the course of the proceedings reversed its rulings favorable to the defense, where initially it had declined to receive what the prosecution offered. Every conceivable kind of statement, rumor, report, at first, second, third or further hand, written, printed, or oral, and one 'propaganda' film were allowed to come in... ⁸⁰

A few weeks later, MacArthur ordered the Homma sentence executed. He used the opportunity to excoriate the dissenting

Those who would oppose such an honest method can only be a minority, who either advocate arbitrariness of process above factual realism or who inherently shrink from the stern rigidity of capital punishment ... no sophistry can confine justice to any form. It is a quality. Its purity lies in its purpose, not in its detail. The rules of war, and military law resulting as an essential corollary therefrom, have always proved sufficiently flexible to accomplish justice within the strict limits of morality.⁸¹

Not only Justices of the United States found fault. Judge Pal, the Tokyo Tribunal’s Indian member, stated similar views:

The so-called trial held according to the definition of crime now given by the victors obliterates the centuries of civilization which stretch between us and the summary slaying of the defeated in war. A trial with law thus prescribed will only be a sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice. Such a trial may justly create the feeling that the setting up of a tribunal like the present is much more a political than a legal affair, an essentially political objective having thus been cloaked by a juridical appearance.⁸²

He complained that:

In prescribing the rules of evidence for this Trial the Charter practically disregarded all the procedural rules devised by the various national systems of law, based on litigious experience and tradition, to guard a tribunal against erroneous persuasion, and thus left us, in the matter of proof, to guide ourselves independently of any artificial rules of procedure.⁸³

There were any number of other evidentiary problems, essentially as a result of the extraordinarily loose language under which the tribunals operated.⁸⁴ They included routinely argumentative questions by counsel,⁸⁵ questions of judicial notice,⁸⁶ the admission of affidavits by witnesses whom there was no opportunity to cross-examine,⁸⁷ and the exclusion of evidence that was arguably relevant to the defense.⁸⁸ They resulted in inefficiency⁸⁹, uncertainty⁹⁰ and at least in the view of the judges quoted above, unfairness.⁹¹

Procedural issues⁹² in the trials went well beyond the evidentiary, especially in front of the IMTFE. Both included the indictments of senile or insane defendants.⁹³ At various times there were improper communications with judges,⁹⁴ inconsistent rulings favoring the prosecution,⁹⁵ vague and ambiguous indictments under the Tokyo rules,⁹⁶ questions regarding the applicability to defendants of the Geneva Conventions⁹⁷, the denial of motions to recuse very arguably biased judges.⁹⁸ In addition, there were, to an extent often confounding to counsel, any number of simply unresolved⁹⁹ questions.¹⁰⁰ Those problems recall to mind the warning of Sir Hersh Lauterpacht:

It is incumbent upon the victorious belligerent intent upon the maintenance and the restoration of international law, to make it abundantly clear by his actions that his claim to inflict punishment on war criminal is in accordance with established rules and principles of the law of nations and that it does not represent a vindictive measure of the victor resolved to apply retroactively to the defeated enemy the rigours of a newly created rule.¹⁰¹

It would be well for anyone reviewing these trials to compare the statement of Judge Hu Anderson in the Krupp Case¹⁰² with the manner in which the rules were actually applied, in all the tribunals both in Europe and Asia. His standard is certainly one to which those who created the tribunals paid lip service, and certainly one to which any fair system of justice should ascribe. But, was it applied?¹⁰³

IV

Conclusions

The rules in any civilized criminal trial must be designed to limit the passions of the times, to provide the defendant a fair opportunity to dispute the prosecution’s case and to prove affirmative defenses. By that standard, and as they were applied, the rules used in the post-World War II tribunals varied from relatively successful to abject failures. Clearly, the tribunals in Asia operated under rules which were less fair in their drafting and application than those in Europe. Can we, at this distance, discern the reason?

Perhaps Telford Taylor was correct when, discussing Yamashita, he said, "apparently, in old-line military circles yellow generals did not rank as high in the scale of virtue as Nordic White ones."¹⁰⁴ Perhaps also, the strong personality and influence of General MacArthur, and its clear impact on the Asian proceedings, teaches us, once again, that absolute power in the judicial process can never rest fairly in hands of one person, no matter how exalted.

What we can take from the entire process, however, are a number of lessons still applicable to current questions of international criminal justice.

Potential Problems In Criminal Trials Arising From Extensive War Crimes

The trials, (and the commissions and the Denazification program in Europe) show us that the problems facing international justice rise geometrically with the number of participants, defendants and incidents. It is a substantially different matter dealing with dozens of leaders, hundreds of subordinate commanders, and thousands of actors then it is trying one or two defendants at a time as they are apprehended. We see that distinction today between the Yugoslav and Rwandan tribunals; what lessons can we apply to them from Nuremberg and Tokyo?

Dealing Large Masses Of Defendants

The problem most apparent from the World War Two trials was the simple mass of defendants. Perhaps solutions may be found in the "common trials" approach where defendants were grouped by the time, place and content of their alleged acts. Perhaps the solution lies somewhere in the "Denazification" program which used the results of the organizational criminality findings at Nuremberg to handicap the return to power by lower level war criminals. In any case, in planning for war crimes trials in the future, the current generation of international lawyers should at least bear in mind that at some point the problem of mass trials will have to be faced.

The Need For Standard Rules

It is also apparent that there must be a set of standardized rules adopted by the world as a common ground for procedures in war crimes trials, wether international or by military tribunal. It doesn’t matter so much what those rules are as long as they are standardized, and fairly and predictably enforced to govern all parties and their counsel. It is clear, from the comments of the court and counsel, as well as from varying trial rulings and results that lack of predictability was a most troubling problem.

Dealing With Political And Military Pressures

There can be no question that Nuremberg, Tokyo, and their progeny were all, in some sense, "political" trials. That is not necessarily a bad thing, since a "political" intent may move a nation, as it may a person, tom demonstrate their good will and high moral standards. Unfortunately, however, in this case, there was also an overriding intention, on the part of the sponsoring nations, if not of all the judges, to presume guilt of the accused.

One rule which cries out for creation as a means of protecting the integrity of the system against such pressures , is a code of conduct for judges and lawyers. Justice Jackson’s ex parte contacts with a Nuremberg judge and Judge Webb’s comments from the bench both demonstrate the need for such rules. The good will of the victors is not enough; when a defendant is on trial for life, fairness requires scrupulous adherence to the highest standards of conduct.

The Need For A System Of Review And Appeal

Finally, there must be some sort of system for review (which there was for these trials) and of appeal and clemency. Creation of an appellate body would, of course, introduce yet another layer of complexity in the effort to create a workable and effective international criminal court. Yet justice seems to demand it, for the experiences of Yamashita and Homma demonstrate that when the hearts of nations are stirred by war, their institutions of justice are not immune. Can the world create such rules and courts?

Let Justice Jackson speak to that: "Courts try cases, but cases also try courts."¹⁰⁵ In this case, on the question of the ability of the international community to create a court which provides a fair trial to the losing side in a war of mass brutality, the jury perhaps, is still out.¹⁰⁶

^Endnotes

1. Judge, United States Court of International Trade, Adjunct Professor, Law of War, New York Law School. The author first took an interest in this subject when, as an Army National Guard Captain during the Persian Gulf War, he was assigned as an Attorney/Advisor in the International Affairs Division of the Office of The Judge Advocate General of the Army. As part of his duties he researched the question of precedents for possible war crimes trials against potential Iraqi defendants. The views expressed herein are, of course, purely his own, and do not represent any expression of official position by either the United States Court of International Trade or the United States Army.

The author wishes, as always, to thank his wife, Dr, Katherine C. Tobin for the forbearance she habitually shows when he is lost in his own world of research. A specific note of gratitude is also due the Yale University "Avalon" web site which has placed on line most of the transcripts and many of the basic documents relating to the first Nuremberg trial.

2. Taylor, Telford, An Outline Of The Research And Publication Possibilities Of The War Crimes Trials, 9 Louisiana Law Review 496, 507 (1949).

3. Morris and Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia (New York, Transnational Publishers, 1995) Vol. 1 at pp. 9-10. Virginia Morris participated in the preparation of the report of the Secretary-General, containing the draft statute of the International Tribunal, the Rules of Procedure and Evidence of the International Tribunal, and the Draft Statute For an International Criminal Court. As an Attorney-Advisor for United Nations Affairs at the State Department from 1989 to 1993, Michael Scharf was one of the drafters of the United States’ proposals for the Statute of the International Tribunal Ibid at xiv. See also, Woetzel, The Nuremberg Trials in International Law, p. 227, Praeger New York (1962). Note that the judgment in The Tadic Case, 7 May, 1997 Case No IT-94-1-T before the ICTFY at pp. 158-159, cites the Nuremberg and Tokyo Charters as part of customary law basis for justicibility of crimes against humanity. Some commentators have argued that Nuremberg and Tokyo were not truly international courts since they included neither neutral nor enemy nations. Schick, War Criminals And The Law Of The United Nations, 7 U. of Toronto Law Journal 27, 30 (1947).

4. Morris and Scharf, f.n. 3 at pp. 8-9, f.n. 42.

5. Other than the international tribunals, this article will examine only the trials held by American military commissions. As will be shown below, many of the procedural and especially the evidentiary rules were the result of American precedents, analysis, drafting and diplomacy. How they were applied by their chief proponents is, therefore, of particular interest.

6. According to Taylor there were four categories of relevant trials: 1) two conducted by four or more nations jointly; 2) more than a dozen through the auspices of a single nation but under international agreements; 3) war crimes trials before single nation tribunals under national laws; and 4) trials in the nature of treason trials of "Quislings." Those in Germany were held most often at Nuremberg or at Dachau. Taylor, Outline, supra at 496. Koessler, American War Crimes Trials in Europe, 39 Georgetown Law Journal 18, 25 (1950). The trials of Japanese defendants following Tokyo took place at Yokohama. There were relatively few American war crimes trials in Austria, Italy, the Philippines, China and the Pacific Islands respectively, with the trials in the Philippines ranging highest in number among these minor groups. Ibid. See generally, Piccigallo, The Japanese On Trial, University of Texas (Austin, 1979).

7. F.n. 2 supra at 501.

8. The Charter was drafted in its final form at the London Conference from June through August, 1945. See generally, Taylor, Telford, The Anatomy Of The Nuremberg Trials, Knopf (New York, 1992) pp. 56-79.

9. Morris and Scharf, supra, at pp. 7-8.

10. Jackson, Robert H. , Nürnberg in Retrospect, 27 The Canadian Bar Review 761, 765-66. (1949). See also generally, Jackson, International Conference on Military Trials, Washington, D.C., G.P.O. (1947).

11. In American practice a military commission was a military tribunal for the trial of persons who are not members of the armed forces of the United States. American military personnel were tried before courts-martial. A commission did not provide all the evidentiary and procedural rights accorded in a court martial by the Articles of War. See, Procedural Law Applied By Military Commissions, National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 46; Ex parte Quirin, 317 U.S. 1, 46 (1942); Cowles, Trial Of War Criminals By Military Tribunals, 30 American Bar Assoc. Journal 330 (1944); Glueck, By What Tribunal Shall War Offenders Be Tried? 24 Nebraska Law Review (1945); Lauer, The International War Criminal Trials And The Common Law Of War, 20 St. John’s Law Review, 18 (1945).

12. The Order from President Roosevelt establishing the military commission for the trial of the saboteurs provided:

The Commission shall have power to and shall, as occasion requires, make such rules for the conduct of the proceedings, consistent with the powers of Military Commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it. Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man. The concurrence of at least two-thirds of the members of the Commission present shall be necessary for a conviction or sentence...

Memorandum for the Chief, Civil Affairs Division, Office of the Chief of Staff WDGS

From (Acting) The Judge Advocate General B.G. T.H. Green October, 1943. Recommendations made at the direction of the Secretary of War for guidance in discussion involving possible trial of war criminals by military tribunals National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 12. Roosevelt’s Order has been cited as the "first ... expression" of the "basic position toward admission of evidence" in trials of war criminals. Piccigallo, The Japanese On Trial, supra at 13. It is an interesting, in light of the current concern with the international criminalization of sexual assault and forced prostitution to note that in Appendix A entitled "Tentative List of War Crimes" General Green lists "Abduction of girls and women with the object of prostitution," and notes that "Murder, rape and other felonies are also triable as war crimes."

13.

In a statement which might fairly be described as disingenuous, Justice Jackson implied that the United States reluctantly acceded to the abandonment of common law rules of evidence:

The rules of evidence which should govern the Tribunal might have caused serious disagreement if we had insisted on our own. Continental lawyers regard our common-law rules of evidence with abhorrence. Since they were evolved in response to the particularities of trial by jury, we saw no reason to urge their use in an international tribunal before professional judges. They have not generally been followed by international tribunals. We settled, therefore, upon one simple rule: that the Tribunal "shall admit any evidence that it deems to have probative value". ...

Jackson, Nürnberg in Retrospect, supra at 769.

14. Moscow Conference October, 1943, Joint Four-Nation Declaration. Department of State Bulletin, Vol ?, No. ? [date]

15. Churchill leaned toward summary execution of the Nazi leadership. Anatomy, supra p.30.

16. There had been intense preparatory work leading to that conference. Samuel Rosenman, a close advisor of Roosevelt, Anatomy, supra p.32, in a Memorandum to the Lord Chancellor suggested that there was "substantial agreement" between the U.S. and U.K. that any resulting agreement "...should include an undertaking to adopt and apply comprehensively in the trial of war criminals, to the greatest extent practicable, expeditious, fair, non-technical procedures which would ...a. provide each accused with notice of the charges against him and an opportunity to be heard reasonably on such charges; b. permit the court to admit any evidence which it considers would have probative value; ... [and] d. confine trials strictly to an expeditious hearing of the issues raised by the charges."

17. This article does not purport to present a detailed study of the negotiations leading to the London Charter. Rather, this limited historical material is provided here as background so the reader may understand the American impact on those negotiations and the resulting effect on the subsequent trials.

18. Executive Order 9547, May 2,

19. Report To The President On Atrocities And War Crimes, June 7, 1945 (hereinafter "Report".

20. Anatomy, supra p. 105. But see, Gault, Prosecution of War Criminals, 36 J. of Criminal Law 180, 183 (1946)

21. Report at paragraph IV.

22. Ibid at Paragraph III(2). At the time of his Report, Justice Jackson made it clear that he was not seeking a completely fair trial. He suggested that to free without trial or summarily execute those charged with war crimes would be unacceptable. "The only other course is to determine the guilt or innocence of the excused after a hearing as dispassionate as the times and horrors we deal with will permit, and upon a record that will leave our reasons and motives clear." Ibid at III(1). (Emphasis added).

23. CONFIDENTIAL ORDER On 24 Feb. 1945 in a Confidential order from Eisenhower to major European commands he noted a War Crimes Office had been established "...to collect evidence concerning cruelties, atrocities and acts of oppression against members of the armed forces of the United States or other United States nationals, including the people of any dependencies such as the Philippines. This office will collect from every available source all evidence of such crimes, examine and sift such evidence, and arrange for the apprehension and prompt trial of persons against whom a prima facie case is made out, and for the execution of sentences which may be imposed." National Archives, OMGUS AG File 1945-46 Record Group 260, Stack 390, Row 40, Compartment 17, Shelf 3, Box ?

24. In a Secret cable from Assistant Secretary of War John J. McCloy to General Dwight D. Eisenhower, the Allied Supreme Commander in Europe, on 9 May, 1945, McCloy noted the appointment of Jackson and that "Judge Rosenman as Special representative of the President is trying to negotiate in San Francisco 4 party executive agreement, providing for these prosecutions and stating principal aspects of procedure ...General United States policy is believed settled. Apparently there is tentative agreement on substance of proposals by the representatives of the other 3 powers in San Francisco, although problems of form and procedure remain unsettled." National Archives, OMGUS AG File 1945-46 Record Group 260, Stack 390, Row 40, Compartment 17, Shelf 3, Box 3, File 4

25. This is not to say there was not some flexibility on the part of the Anglo-Americans. The French and Russians found "shocking" the notice-pleading concept of indictment and the practice of requiring a defendant to testify only under oath. Anatomy at p.320. The Charter reflects those concerns in its modification of procedures from the initial American proposal.

26. The 1943 Green Memorandum, as noted earlier, relied heavily on Quirin. Taylor notes, in his Final Report to The Secretary of the Army, G.P.O. Washington, (1949) at p.1, that, [a]s early as August 1944 [the Joint Chiefs] considered a proposed draft of a directive [J.C.S. 1023] to theater commanders regarding the handling of war crimes matters."On 18 June, 1945, is response to a request from Justice Jackson "concerning the use of testimony by witnesses in the United States in the forthcoming trial of war criminals by the proposed international tribunal," The Chief of the International Law Division of the Office of The Judge Advocate General of the Army , provided a Memorandum suggesting that "[t]he most striking feature of proceedings before international tribunals is that technical rules of evidence, such as they have been developed in the Anglo-Saxon law, are not observed. Restrictive principles which might strait-jacket the quest for truth in a web of [formalistic] procedure have uniformly been ignored..." He concluded that " [t]estimony of witnesses for presentation before the proposed international tribunal may be perpetuated by the use of affidavits, by depositions ...and that "International Courts are not bound by national rules of evidence. The widest latitude has been enjoyed in the past in the adjudication of international differences. Similar liberality should be accorded to such tribunals in the trial of criminal causes to the extent compatible with general principles of criminal justice recognized by civilized States." National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 30

27. RESTRICTED Memorandum For B.G. John Weir Director, War Crimes Office from M.G. Myron Cramer, TJAG, National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 2A.

28. Cramer was later a Judge on the International Military Tribunal for the Far East. Minear, Victor’s Justice, Princeton University Press (Princeton, 1971) pp. 81-82. Judge B. V. A. Röling , one of the Judges (Netherlands) at Tokyo, Call’s Minear’s "[t]he most important book about the trial..." Hosoya, Ando, Ounuma and Minear Ed.s. The Tokyo War Crimes Trial, Kodansha ( 1985) at p. 15.

29. On 1 August, 1945, Rosenman cabled the Secretary of State that Jackson had concluded ..."it would be better not to have a joint tribunal because of the difficulty of working with the Russians in a trial. He feels that if the Russians, however, accept the various proposals which we have made, that he is committed to favor a joint tribunal and does not feel that he can back out of it ... "Foreign Relations Of The United States, U.S. Dept. of State, G.P.O., Washington, D.C., 194? at p. 987 (emphasis added).

30. National Archives, OMGUS AG File 1945-46 Record Group 260, Stack 390, Row 40, Compartment 17, Shelf 3, Box 3,

31. The Charter was an Annex to the London Agreement of August 8, 1945, which provided, in Article 2 that " The constitution, jurisdiction and functions of the International Military Tribunal shall be those set in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement."

32. Charter Of The International Military Tribunal, Article 20.

33. Ibid at 21.

34. Ibid at Article 2

35. Ibid at Article 3.

36. Ibid at Article 4. "...provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal."

37. Ibid at 17.

38. Ibid at 18. Clearly, the drafters were worried about use of the Tribunal as a vehicle for Nazi propaganda by the Defendants. The Charter effectively mandates against such statements.

39. Ibid at 13.

40. The International Military Tribunal did create additional Rules. The first set adopted on October 29, 1945, and later amended, provided for such basic procedural acts as the service of documents, (Rule 3), obtaining evidence (Rule4) and the making of motions (Rule 7).

41, Control Council Law No. 10, Article 3.

42. The United States conducted two sets of follow-up trials in Germany under Law No. 10. The first group trials were prosecuted under Telford Taylor at Nuremberg. See, Taylor, Final Report, supra. Most, though not all of the other trials, of individuals and groups were held at the former German concentration camp at Dachau. Koessler, American War Crimes Trials in Europe, 39 Georgetown Law Journal 18, 25 (1950). The "common trial" approach, (involving related acts, times and locales) was used in both Europe and Asia. Spurlock, The Yokohama War Crimes Trials: The Truth About A Misunderstood Subject, 36 ABA Journal 387, 389 (1950).

43. Control Council Ordinance No. 7, Article 3.

44. It also permitted the tribunals to promulgate their own supplemental rules of procedure. Ibid Article 5. Several sets were issued, providing for, inter alia, the specifics of representation by counsel, the filing of motions, and the production of evidence at trial. A uniform set of procedures was eventually issued by joint action of the tribunals. The final iteration may be found at Uniform Rules of Procedure Military Tribunals Nuernberg, Revised to 8 January 1948, http://www.yale.edu/lawweb/avalon/imt/rules5.htm.

45. Ibid, Articles 4 and 5.

46. One modification, with implications for resolution of the continuing problem of dealing with overwhelming numbers of defendants, was the appointment by the tribunals of commissioners. Upon the conclusion early in 1948 of the "RuSHA case", ...Judge Crawford (who had been a member of that tribunal) was appointed as the Chief of the Commissioners for the Tribunals. Judge Crawford, assisted by several associate commissioners, took testimony from then until the conclusion of the court proceedings in the "Ministries case" in the fall of 1948. The commissioners had no power to rule on questions of evidence, but certified the transcript of proceedings before them to the tribunals." Taylor, Final Report at p. 89.

47. Ordinance No. 7 made certain findings by the International Military Tribunal, for example, that invasions or atrocities occurred, binding on subsequent tribunals. Article 10. The rules was fair and reasonable given the vast amount of uncontroverted evidence provided in the first case.

48. Control Council Ordinance No. 7, Article 7.

49. Unlike the protracted London Charter negotiations, there was no need for any decision making other than by fiat. The Potsdam ultimatum issued by the Allies on July 26, 1945, provided that "... stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners." Potsdam Declaration Article 10. In the exchange of notes ending with the surrender of Japan and its acceptance of the Declaration, the United States informed Japan that "For the purposes of receiving [the] surrender and carrying it into effect, General of the Army Douglas MacArthur has been designated as the Supreme Commander for the Allied Powers..."Department of State Bulletin, Vol XII, No. 318 July 29, 1945. In the Instrument of Surrender signed on September 2, 1945, Japan undertook "...to carry out the provisions of the Potsdam Declaration in good faith, and to issue whatever orders and take whatever actions may be required by the Supreme Commander for the Allied Powers ...for the purpose of giving effect to that Declaration." MacArthur’s specific authority to appoint war crimes courts and prescribe their rules was promulgated by the Joint Chiefs of Staff in September, 1945. See Piccigallo, supra, at 40 citing Robert A. Wright, The History of the United Nations War Crimes Commission and the Development of the Laws of War (London, 1948)at 383.

50. The absence of the negotiating process had at least one telling effect. Article 9 which began the same words as Article 16 of the Nuremberg Charter, " In order to insure fair trial ..." contained not a requirement for a continental indictment including "full particulars which specified "in detail," the charges. Instead, following the American rule, the indictment was to "...consist of a plain, concise and adequate statement of each offense charged."

51. IMTFE Charter, Article 2. MacArthur appointed judges from eleven nations: India, the Netherlands, Canada, the United Kingdom, the United States, Australia, China, the USSR, France, New Zealand and the Philippines. McKenzie, The Japanese War Crimes Trial, 26 MI State Bar J. 16, 17 (1947).

52. Ibid, Article 4.

53. Ibid, Article 7.

54. The Royal Warrant 18, June 1945, Regulations For The Trial Of War Criminals. A copy of the Royal Warrant was found in the records of the SCAP legal division of the National Archives. National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1855, File 111.

55. The files contain, inter alia, memos and briefs on the following points: "Can the prosecution offer in evidence only what it considers to be the pertinent part of a report or affidavit or other document or must it offer it in its entirety? If a part alone is proper, may the defense offer the balance," National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 24; "The Admission in Evidence of the Affidavit of Naokata Utsunomiya and of Hear Say Evidence violates no Law or Rights of the Accused," Ibid at Box 1854, File 77; "Does the accused in a trial by military commission for a war crimes have a right to cross examine witnesses who do appear in person? Does he have a right to cross-examine affiants and to exclude their affidavits from evidence unless he is given the right of cross-examination and confrontation?," Ibid at Box 1853, File 40; "Military Commissions are not bound by Rigid Rules of Procedure of [sic] Evidence," Ibid at File 46(c); "Is a report by investigators, including their summaries of facts, admissible in evidence? Is a review by a reviewer, summarizing the facts (He has not talked to witnesses, etc., but only reads the report by the investigator)[admissible in evidence]?" The conclusion on that second question is worth quoting in full:

Even though the commission is expected to give unusual latitude in receiving of testimony, it will of necessity be compelled to adopt rules to promote order in their proceeding When this occasions, which is inevitable, comes about, we know of no rule of law or analogy that sanctions evidence of this nature.

Neither party would sustain injury as the originals from which the review is taken could be introduced.

It must be born [sic] in mind in a discussion of questions like the foregoing, the proceedings that we are undertaking, are new adventures in International Law.

 

56. "The word ‘minor’ is not used as a definition of the offenses involved, but merely to distinguish the persons they are trying from the ‘major war criminals’ being tried by the next division. ." McKenzie, supra f.n. 51 at p

57. Spurlock, supra f.n. 42.

58. Most of the "minor" trials were held at Yokohama. Ibid.

59. See Memoranda, supra f.n. 55.

60. That they were completely successful in doing so, See, e.g. Spurlock, supra at 388, may be explained by the complete control exercised by MacArthur as SCAP, and the pervasive influence which must exist when the power to appoint prosecution, defense and the judiciary, as well as all administrative services and powers, rest in the hands of one individual. MacArthur’s letter of 6 December, 1945 (supra f.n. 57) shows the sort of influence which could be exercised without direct orders. SCAP letter AG 000.5, dated December 6, 1945 to the Commanding General, Eighth Army, entitled "Detention, Interrogation and Trial of Suspected Japanese War Criminals stated "...the following special provisions will be applied to war criminal suspects ... a. They will not be treated as prisoners of war. B. Quarters, food and privileges will be accorded suspects in keeping with those customarily provided for ordinary criminals, charged with an equally revolting domestic crime." Miller, War Crimes Trials At Yokohama, 15 Brooklyn Law Review 191, 192 (1949). (Emphasis added).

61. National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1855, File 124

62. Including an Article 16 on evidence which was precisely the same as that issued for the Tokyo Tribunal.

63. Reuter, Nurnberg 1946 – The Trial, 23 Notre Dame Lawyer 75 (1947) first published in Reuter, Nuremberg 1946 – La Proces, (France, 1946) La Vie Intellectuelle; Taylor, Final Report, supra at 89.

64. Spurlock, supra f.n. 42.

65. Ibid at 437.

66.

The United States sponsored a total of approximately nine hundred war crimes trials involving over three thousand defendants. About half those cases were tried in Germany. The second largest group is represented by the trials in Japan. Koessler, supra f.n. 6. In Germany, because the Western Allies feared potential resurgence of National Socialism, there was an extensive "Denazification" system.

It was apparent that General Taylor’s organization at Nuremberg could not try all the members of the organizations which the International Military Tribunal declared criminal and the plan evolved ... contemplated that those who were not tried by the Nuremberg organization would be handled by the Denazification System, .... This Denazification System, which was put into effect by a uniform Law for Liberation from National Socialism and Militarism, enacted by the legislatures of the three lander in the American Zone on March 5, 1946, called for hearings before administrative tribunals composed of Germans acting under American military government supervision. In essence it [was] a system of quarantine, rather than of penal sanctions, designed to keep the leaders of the National Socialist movement in custody and limit the activities of its more active adherents long enough to permit the democratic forces to gain firm and effective control of the German political structure and economy.

Fratcher, American Organization For Prosecution Of German War Criminals, 13 Missouri Law Review 45, 69 (1948).

67. But see, Goodheart, The Legality Of the Nuremberg Trials, 58 Juridical Law Review 1, 4 (1946) "...no question can ever be raised concerning the fairness of the rules of evidence and procedure administered by the Nuremberg Tribunal."

68. The Tokyo Judgment, Opinion By Judge Pal Amsterdam Press, Amsterdam, 1977 Vol.2, Pp.654-655.

69. Malmedy was the site of the murder of American prisoners-of-war by S.S. troopers at the orders of their commander. After discovery of the massacre was revealed in the press there was considerable pressure, both in the American military and the public-at-large, to discovery and punish the perpetrators. See, Koessler, American War Crimes Trials in Europe, 39 Georgetown Law Journal 18, 26 (1950).

70. U.S. War Department 14 February, 1949, Final Report Of Proceedings Of Administration Of Justice Review Board, "The Raymond Report."

71. Ibid at ¶s 13 and 14. "This procedure has a further bearing on the preparation of the case when it really came to trial. Defense Counsel appointed for the accused found difficulty in getting the confidence of the defendants because of their experience with the mock trials..." Ibid at ¶ 15.

72. Hearings of a Subcommittee Of The Committee On Armed Services April-June, 1949.

73. Ibid, June 6, 1949, Vol. 1 at pp. 46-47

74. The interrogator is Sen. Joseph McCarthy (R) Wisconsin.

75. See, e.g., Hyder, The Tokyo Trial, 10 Texas Bar Journal (1947) "Considerable hearsay testimony was offered against the accused necessitated by the loss or destruction of original documents. Reason dictated its use."

76. Application of Yamashita, 327 U.S. 1 (1946). Piccigallo, supra, at 49 et seq, argues that Yamashita was chosen as the first defendant for trial to provide precedential guidance for the Tokyo and later trials. He cites, inter alia, reports that MacArthur had "urged ‘haste’ upon the military commission." Ibid at 56.

77. Application of Homma, 327 U.S. 759 (1946).

78. Ibid at 760. "Either we conduct such a trial as this in the noble spirit and atmosphere of our Constitution," he said, " or we abandon all pretense to justice, let the ages slip away and descend to the level of revengeful blood purges. Apparently the die has been cast in favor of the latter course. But I, for one, shall have no part in it, not even through silent acquiescence." Ibid.

79. 327 U.S. at 48-49.

80. Ibid at 49. See, Ganoe, The Yamashita Case And The Constitution, 25 Oregon Law Review 143, 148 (1946).

81. N.Y. Times, March 31, 1946, p.16, col.4, See, Daley, The Yamashita Case and Martial Courts, 21 Connecticut Bar Journal 136 (1947)

82. The Tokyo Judgment, Opinion By Judge Pal Amsterdam Press, Amsterdam, 1977 Vol.2 at p. __.

83. The Tokyo Judgment, Opinion By Judge Pal Amsterdam Press, Amsterdam, 1977 Vol.2 at p. 629.

84. The later Nuremberg tribunals did incorporate the character evidence rule [Evidence of bad character of the accused shall be admissible before finding only when the accused has introduced evidence as to his own good character or as to bad character of any witness for the prosecution] in Rule 12(3) Rules of Procedure in Military Government Courts.

85. Taylor says the "Soviet fashion" was to mix "questions with pejoratives." Taylor, Anatomy, at pp. 430-431.

86. The Soviets argued that the judicial notice provision of Article 21 required that binding weight should be given to their report blaming the Germans for a massacre of Polish officers in the Katyn Forest, and which considerable evidence indicated had been carried out by the Russians themselves. The tribunal refused to find the report irrebuttable. Ibid at 468-469.

87. The resolution of this affidavit admissibility question was different between Nuremberg and Tokyo. The Nuremberg Tribunal generally allowed a party to admit an affidavit subject to calling the witness for cross-examination, Ibid pp.241-242, but apparently the Soviets’ war crimes report, admitted under Article 21 as a government report, was based on some 54, 784 depositions of witnesses not subjected to cross-examination. Ibid at 313. The Tokyo Tribunal , and at Yokohama, "...A characteristic feature of the Yokohama trials was the large amount of documentary evidence that was introduced by the prosecution to support the charges and specifications and often by the defense to refute them.. The defense contested the introduction of affidavits in the first trial but was overruled by the commission, which pointed out that the protection of the United States Constitution and the Articles of War was not available to the accused as a Japanese citizen and a former belligerent." Spurlock, supra, f.n. 42, at p. 389. The difference probably arose because of the language of the SCAP regulation which allowed admission of "affidavits, depositions or other signed statements," as well as "any diary, letter or other document, including sworn or unsworn statements, appearing to the commission to contain information relating to the charge." See, p. 15, supra.

88.

Justice Pal, supra, pp. 641-642, at Tokyo dissented, in part, based on the refusal of the Tribunal to admit eleven categories of evidence:1) relating to the state of affairs in China prior to the time when the Japanese armed forces began to operate; 2) showing that the Japanese forces in China restored peace and tranquility there; 3) relating to the Chinese trouble with Great Britain; 4) showing the public opinion of the Japanese people that Manchuria was the life-line of Japan; 5) as to relations between the U.S.S.R. and Finland, Latvia, Estonia, Poland and Roumania and between the U.S. and Denmark vis-B-vis Greenland and Iceland; 6) relating to A-Bomb decision; 7) regarding the Reservation by the several States while signing the Pact of Paris; 8) The United Nations Charter and the Lansing-Scott Report; 9) statements by the then Japanese Government for the Press ("We have discarded these on the ground that these were prepared for the propaganda purposes and consequently have no probative value") and statements made by the then Japanese Foreign Office; 10) Evidence relating to Communism in China; and 11) evidence otherwise considered to have no probative value. He noted that, "We had, however, admitted in evidence press release of the prosecuting nations when offered in evidence by the prosecution." Ibid.

Those rulings of the Tokyo Tribunal must be compared with the decision at Nuremberg to permit Admiral Doenitz’s counsel, Kranzbuehler to submit an interrogatory to Admiral Nimitz of the United States Pacific Fleet, "...to establish that the American Admiralty in practice interpreted the London Agreement in exactly the same way as the German Admiralty, and thus prove that the German conduct of sea warfare was perfectly legal...." Nuremberg Trial Proceedings Vol. 8, 5 March, 1946 at p. 548. Indeed, Telford Taylor pointed out in his Final Report, supra, at 89, that:

In order to shorten the proceedings, the prosecution used affidavits instead of oral testimony whenever possible. Such matters as the curriculum vitae of the defendants, organization charts of the ministries and other governmental agencies, and explanations of the functioning of quasi-governmental industrial bodies were usually presented in affidavit form subject, of course, to the right of the defense to call the affiants for cross-examination. A comparatively small number of affidavits on more controversial matters were also introduced. The defense, however, utilized affidavits in great quantity on a wide variety of subjects, but in order that the court proceedings should not be unduly prolonged the prosecution waived cross-examination except in the most important instances.

89. Taylor notes that the admission of "an overwhelming" number of documents was slowed by requiring that the prosecution read them into the record. Taylor, Anatomy at p. 176. A better result, and a fairer one, might have been obtained by requiring the submission of a proper foundation for each document (even if, in most case that foundation would have been as governmental records). He also says that the Tribunal, "aghast at the slow pace," proposed a rule that only one prosecutor might cross-examine a witness, but that "No such rule was ever adopted, and drawn-out examinations and cross-examinations continued." Ibid at 324.

90. Taylor notes that "the Tribunal’s failure to lay down any general rule left us uncertain of its action on future affidavit presentations. Ibid at 242.

91. Others, of course, thought the proceedings eminently fair. Joseph Keenan, the United States’ Chief of Prosecution at Tokyo observed: "I have never observed a proceeding in our own country where the rights of the accused were more scrupulously protected by any court. And regardless of what must have been at times a disagreeable duty, the American counsel assigned to the defense manfully performed their duty." Keenan, Observations and Lessons From International Criminal Trials, 17 Univ. of Kansas City Law Review 117, 123 (1949).

92. One major substantive distinction between the major war crimes tribunals was that "The Tokyo Tribunal [under Article 5]... had jurisdiction over persons only if they were accused of having committed offenses which included crimes against peace, in contrast to the Nuremberg Tribunal which had no exclusive provision of this kind." Woetzel, supra f.n. 3.

93. Gustav Krupp at Nuremberg who was severed as a defendant by the Tribunal, Taylor, Anatomy, at 157, Rudolf Hess at Nuremberg who was probably insane but kept in and convicted, ibid at 177-180, and defendant Shumei Okawa at Tokyo who was adjudged insane May 17, 1946, but retained as a defendant. Ireland, Ex Post Facto From Rome To Tokyo, 21 Temple Law Quarterly 27, 51-52 (1947).

94. Taylor says that Justice Jackson himself engaged in ex parte communications with the Judge Biddle, and that in doing so he sent "the proprieties ‘by the way’ for fair." Taylor, Anatomy at 134.

95. Pal Opinion at pp. 633-634; Taylor, Anatomy at p. 321.

96. Miller, supra, f.n. 60 at p. 195, notes that:

SCAP regulations provided: "The accused shall be entitled to have in advance of trial a copy of the charges and specifications clearly worded so as to apprise the accused of each offense charged."

In actual practice it is doubtful if even these minimum requirements were always met. For example the specifications might specifically name two or three prisoners alleged to have been abused by the accused and the manner of abuse. Then might follow several wherein it was alleged that between January 15, 1942 and June 1, 1945, he did beat, wound, kick, abuse and otherwise torture an American prisoner of war known as "Whitey" or "Shorty" or some other nickname. The final or "catch-all" specification was that he, between the above-stated periods, abused numerous other American or Allied prisoners of war, no names or other data being stated. The affidavits would usually not identify the party whose nickname had been used. The "catch-all" specification was supported by affidavit statements that the accused was "always slapping and kicking" the prisoners, or "whenever he was around, there was always trouble."

Inasmuch as there was no standing commission to which a motion for a bill of particulars could be addressed prior to trial, such remedy was foreclosed until after trial [commenced]... [the name specification might be the same incident as the nick-name specification]. The attempt by way of motion, either for a bill of particulars or to strike, had scant chance for success."

The lack of specificity in indictments was one reason Judge Bernard of France dissented. "Though I am of the opinion that the Charter permitted granting to the Accused guarantees sufficient for their defense, I think that actually these were not granted to them." The Tokyo Judgment, Opinion By Judge Bernard, Amsterdam Press, Amsterdam, 1977 Vol.1, P. 494.

97. This question combined procedure and substance. On the one hand, could military prisoners assert their rights to housing, allowances and association under the existing Geneva Convention? Both in Japan and Germany the Allies denied those rights to war crimes defendants. See, Miller, supra, f.n. 60; Koessler, supra, f.n. 6, Yamashita, supra, 327 U.S. at 20. On the other, was an Axis defendant subject to prosecution for denying those same Geneva Convention rights to Allied prisoners charged with war crimes? The question was faced in

Each of those allegations could in some respect be made with considerable vigor against a number of the trials in Asia. The IMTFE and the Yamashita Commission, for example, accepted extremely questionable evidence, Sir William Webb had investigated Japanese war crimes, and he repeatedly stated that the Tribunal was bound by certain rules he thought questionable.

98.  Minear, supra, f.n. 28, at p. 80, points out that the Soviet delegate at the London Conference, and later judge at Nuremberg, General I. T. Nikitchenko, said "...with regard to the position of the judge the Soviet Delegation considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case. The case for the prosecution is undoubtedly known to the judge before the trial starts and there is, therefore, no necessity to create a sort of fiction that the judge is a disinterested person who has no legal knowledge of what has happened before."

The French Government appointed its London representative as alternate justice. The United States appointed as it justice Francis J. Biddle, Attorney General under Franklin D. Roosevelt and a co-author of [a] memorandum [which] expressed a preference for military justices, such justices "...being less likely to give undue weight to technical contentions and legalistic arguments." At Tokyo, the Philippine justice, Delfin Jaranilla, was a survivor of the Bataan death march; the second American justice, General Cramer, had submitted to President Roosevelt a legal brief on the responsibility for the attack on Pearl Harbor, and President Webb, had been Australian war crimes commissioner during the war. Ibid at 81-82.

After the Tokyo Tribunal rejected the challenge, on jurisdictional grounds, of any judge, Judge Webb stated "...that, before he accepted his appointment, he seriously considered what effect his reports would have on his position as a member of the Tribunal. He had come to the conclusion without difficulty that he was eligible, his views being supported by the best legal opinion available to him in Australia."Evans, The Trial of Major Japanese War Criminals, 23 New Zealand Law Journal 8, 23 (1947). This was the same judge, who at a later point in the trial, asked a Japanese witness if "... the purpose of the Imperial Rule Assistance Association was] to prepare the people for an inhumane and illegal war against Great Britain and America, a war which should not have been begun and a war which cannot be defended?" Tokyo Proceedings p. 1,684.

99.

One area in which the procedures can not be faulted at all is the provision of defense counsel. Indeed, the Court noted in Yamashita, supra, 327 U.S. at 5, that " In all cases it appears that defense counsel were competent and zealous in their representation.. Throughout the proceedings which followed, including those before this Court, defense counsel have demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged." Prof. Benjamin Ferencz, one of the chief prosecutors in the subsequent Nuremberg cases pointed out that:

...no German lawyer [was] ever... excluded if he was requested as counsel for a defendant. In fact most of the German counsel chosen [were] themselves subject to arrest or trial in German courts under German law for membership in the Nazi Party or the criminal SS. If tried, many of them would [have been] barred from legal practice but they [were], through the intervention of the American authorities, ... given immunity from prosecution in their own courts in order to ensure that accused war criminals [would] have a free choice of counsel from those Germans whom they consider best suited to defend them.

Ferencz, Nurnberg Trial Procedure And The Rights Of The Accused, 39 Journal of Criminal Law and Criminology 144, 146 (1948).

100. "[R]ules [of procedure] were drawn, but they were rather narrow in scope and left many important matters for decision by the Court as the trial progressed. Needless to say, this caused some confusion and much worry as to the proper means of procedure." McKenzie, supra, f.n. 51, at p. 17. One interesting question; how to obtain an authoritative translation? Attorneys, who often did not speak the language of the defendants, were at the mercy of the ability and integrity of their translator for vital document reviews and interrogations. See, Taylor, Anatomy at 176. MacArthur, ordered one case retried because of failure to translate a confidential document to the accused, though admitting it into evidence. Spurlock, supra f.n. 42 at p. 437. "Quibbling over the significance of words and phraseology is probably as old as criminal prosecutions. It is, at least, unusual when the controversy revolves around words in a language other than the lawyer’s own tongue." Stephens, Aspects Of The Nuremberg Trial, 8 Georgia Bar Journal 262, 266 (1946).

101. H. Lauterpacht, The Law of Nations and The Punishment of War Crimes, 21 British Year Book of International Law 58, 80 (1944).

102. There are certain matters of general application which must be stated at the outset of this investigation. The first is that this tribunal was created to administer the law. It is not a manifestation of the political power of the victorious belligerents which is quite a different thing. The second is that the fact that the defendants are alien enemies is to be resolutely kept out of mind. The third is that considerations of policy are not to influence a disposition of the questions presented. Of these there are but two: (a) what was the law at the time in question and, (b) does the evidence show prima facie that the defendants or any of them violated it? The fourth is that the defendants are presumed to be innocent ... It is true that the procedural ordinance of the Military Government for Germany (US) provides that "the tribunals" shall adopt and apply to the greatest possible extent ... non-technical procedure." But neither the members of this tribunal nor the people of the nation prosecuting this case regard the presumption of innocence as nothing more than a technical rule of procedure. ... The sixth is that it is a fundamental principle of criminal justice that criminal statutes are to be interpreted restrictively; that criminal responsibility is an individual matter; that criminal guilt must be personal. The seventh is that the application of ex post facto laws in criminal cases constitutes a denial of justice under international law... Hence, if it be conceded that Control Council Law No. 10 is binding on the Tribunal, it nevertheless must be construed and applied to the facts in a way which will not conflict with this view.

Hale, Nurenberg War Crimes Tribunals, 21 Tennessee Law Review 8 (1949).

103.  In at least one instance it appears fairly clear that relevant evidence was not provided to the defendants. Article 6(b) of the Nuremberg Charter and Control Council law No. 10, in paragraph 1(b) of Article II, both recognize without qualification the "killing of hostages" as a war crime. The defendants in the Hostages Trial were charged with violations of those provisions, although the Tribunal held that subject to a number of conditions, the killing of reprisal victims or hostages in order to guarantee the peaceful conduct in the future of the populations of occupied territories was legal. Brand, The War Crimes Trials And The Laws Of War, 26 British Yearbook of International Law 414, 426 (1949). The Defendants did not, apparently, have available a "Top Secret" appendix to a draft 1944 U.S. Army plan for the occupation of Germany entitled "Measures Which May Be Taken To Enforce The Terms Of Surrender Or In The Event Of No Surrender To Compel The Enemy To Comply With The Laws Of War." That plan provided for four categories of action which could be taken as sanctions or reprisals to enforce compliance with the terms of surrender or the rules of war. including 1) forced evacuation of communities, 2) destruction of communities (after an evacuation notice is given) by bombing, artillery fire or burning, 3) destruction of private property and 4) the taking of hostages. The hostages section reads as follows:

a. The taking of hostages is a further means of enforcing obedience to the terms of Surrender or compliance with the laws of War. It will in no case be resorted to without the prior authority of the Supreme Commander. The execution of hostages is not regarded with favor and will never be carried out in the absence of authority of the Supreme Commander.

b. One of the uses to which hostages may be put after the occupation of the area by Allied Forces is to force them to accompany military parties into buildings or areas which, after being cleared or inspected, are suspected of having been subsequently illegally mined or booby trapped, or to compel them to ride on trains or other forms of transportation liable to be damaged by illegal acts of sabotage in occupied territory.

c. In the event authority for taking hostages is granted, they will be selected in an equitable manner and notification of such selection given to the community. This notification will contain an announcement as to the proposed use of the hostages involved, and a statement that the consequences of any illegal acts will fall upon such hostages.

National Archives, Records of USGCC Record Group 260, Stack 390, Row 40, Compartment 17, Shelf 3, Box 17, Folder 4 (Emphasis added). No doubt the defendants in The Hostages Case would have welcomed Appendix F as evidence in the same vein as the Nimitz Interrogatory Answers, supra at f.n. 88.

104. Anatomy, supra at 241.