World War II
The United States entered World War II in December 1941 and became fully engaged in the war, both in the European and Mediterranean Theater as well as the Pacific Theater. This collection focuses on military legal documents and trials in the aftermath of the war, including the Nuremberg Trials, the World War II Board of Review Decisions, the Malmedy Massacre Report, and the trial of General Yamashita, in roughly chronological order.
Martial Law in Hawaii: the Papers of Major General Thomas H. Green, Judge Advocate General's Corps, U.S. Army
On December 7, 1941, Lieutenant Colonel Thomas H. Green was Staff Judge Advocate, Hawaiian Department. After the Japanese attack on Pearl Harbor, he became executive to the military governor and was responsible for countless daily operations of the American military government in the Territory of Hawaii. His personal papers—spanning his entire career from 1917 through his retirement in 1949—include notes, speeches and newspaper clippings, as well as correspondence with such historic figures as the secretaries of War, Navy, and Interior, President Franklin Delano Roosevelt, Generals Walter Short and Delos Emmons, and Admirals William D. Leahy and Chester Nimitz.
Martial Law in Hawaii: December 7, 1941 – April 4, 1943. Major General Green's complete, unpublished manuscript.
Nazi Saboteurs Trial
In mid-June 1942, eight German saboteurs — Ernest Peter Burger, George John Dasch, Herbert Hans Haupt, Henry Harm Heinck, Edward John Kerling, Hermann Otto Neubauer, Richard Quirin, and Werner Thiel — entered the United States by submarine in two groups, one landing on the coast of Long Island, New York, and the other at Ponte Vedra, near Jacksonville, Florida. Per the instructions of the German High Command, both groups of men carried a supply of explosives, fuses and incendiary and timing devices, to be used to destroy vital infrastructure, war-related industries, and various commercial locations in the United States. Within two weeks, George John Dasch turned himself in to the Federal Bureau of Investigation and divulged critical information that led to the arrest of the other seven saboteurs in New York City and Chicago. On July 2, 1942, President Franklin D. Roosevelt, as commander in chief of the army and navy, issued two orders that empowered a military commission to prosecute the eight saboteurs. The first, Proclamation No. 2561 — “Denying Certain Enemies Access to the Courts of the United States” — states at the outset that all enemies of the United States who commit certain acts “should be promptly tried in accordance with the law of war.” Specifically, citizens and residents of nations at war with the United States “who during time of war enter or attempt to enter the United States … through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war,” were to be “subject to the law of war and to the jurisdiction of military tribunals” and prohibited from seeking remedy in the federal or state courts. The second order, issued by President Roosevelt under authority of Article of War 38, appointed a military commission to try the eight Germans “for offenses against the law of war and the Articles of War.” The commission was given “power to make such rules for the conduct of the proceeding, 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.” The order also prescribed regulations for review of the record of the trial and of any judgment or sentence of the commission.
The commission was convened on July 8, 1942. The eight saboteurs sought to file a writ of habeas corpus with the U.S District Court for the District of Columbia, but their motion was denied. In late July, while the military commission was in session, defense counsel persuaded the U.S. Supreme Court to hear oral arguments on defense challenges to the commission. The Supreme Court’s decision, Ex parte Quirin, issued on July 31, 1942, considered the petitioners’ “contention that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged” — violation of the law of war, violation of Articles 81 and 82 of the Articles of War, and conspiracy to commit these violations — and that they are consequently entitled to be tried in civil courts. The Court rejected these arguments, and ruled that the German saboteurs were “plainly within the ultimate boundaries of the jurisdiction of military tribunals, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform — an offense against the law of war. Those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.” The military tribunal concluded on August 1, with a guilty verdict for all eight defendants. On August 8, 1942 Haupt, Heinck, Kerling, Neubauer, Quirin, and Thiel were executed. Burger and Dasch received prison sentences. The full text of Ex parte Quirin, linked below, is the electronic version of the final, official opinion of the Supreme Court, which is printed in the bound volumes of the United States Reports. As other documents related to the Nazi saboteurs case are converted to digital format, they will be added to this site.
Nazi Saboteurs Trial, Washington, D.C., 1942
Enactments and Approved Papers of the Control Council and Coordinating Committee, Allied Control Authority, Germany (1945-1948)
The Control Council and Coordinating Committee of the Allied Control Authority in post-World War II-occupied Germany issued a series of enactments and approved papers. This nine-volume series, compiled and printed by the Legal Division of the Office of the U.S. Military Government for Germany, represents the effort to rule an occupied country by unanimous agreement of representatives of the four occupying powers: The United Kingdom, the U.S.S.R., France, and the United States. The collection is not only of historical value, but is an important resource for current military legal scholarship.
Nuremberg Trials
24 major political and military leaders of Nazi Germany, indicted for aggressive war, war crimes, and crimes against humanity, were brought to trial before the International Military Tribunal. More than 100 additional defendants, representing many sectors of German society, were tried before the United States Nuremberg Military Tribunals in a series of 12 trials known as “Subsequent Nuremberg Proceedings.” The four major publications linked below contain: the official proceedings of the trial of the major war criminals (The Blue Series), documentary evidence and guide materials from that trial (The Red Series), the official condensed record of the subsequent trials (The Green Series), and a final report on all the war crimes trials held in Nuremberg, Germany, from 1945 to 1949.
Nurnberg Military Tribunals: Indictments, Case No. 1-12
Trial of the Major War Criminals before the International Military Tribunal ("Blue Series")
Nuremberg, 14 November 1945 - 1 October 1946
This 42-volume series, also known as “The Blue Series,” is the official record of the trial of the major civilian and military leaders of Nazi Germany who were accused of war crimes. The accused were: Hermann Wilhelm Göring, Rudolf Hess, Joachim von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Gustav Krupp von Bohlen und Halbach, Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Martin Bormann, Franz von Papen, Arthur Seyss-Inquart, Albert Speer, Constantin von Neurath, and Hans Fritzsche. The International Military Tribunal, under the jurisdiction of the Allied Control Authority for Germany, directed the publication of this series. The London Agreement of 8 August 1945 established the tribunal, which was composed of one member and an alternate from each of the four Allied countries: the French Republic, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. English, French, German, and Russian were the languages used throughout the hearings. Documents entered into evidence were reproduced in this series only in the original language, but as the result of the absence of a Soviet editorial staff, none of the Russian-language documents were published.
- Volume I
- Volume II
- Volume III
- Volume IV
- Volume V
- Volume VI
- Volume VII
- Volume VIII
- Volume IX
- Volume X
- Volume XI
- Volume XII
- Volume XIII
- Volume XIV
- Volume XV
- Volume XVI
- Volume XVII
- Volume XVIII
- Volume XIX
- Volume XX
- Volume XXI
- Volume XXII
- Volume XXIII
- Volume XXIV
- Volume XXV
- Volume XXVI
- Volume XXVII
- Volume XXVIII
- Volume XXIX
- Volume XXX
- Volume XXXI
- Volume XXXII
- Volume XXXIII
- Volume XXXIV
- Volume XXXV
- Volume XXXVI
- Volume XXXVII
- Volume XXXVIII
- Volume XXXIX
- Volume XL
- Volume XLI
- Volume XLII
Nazi Conspiracy and Aggression, Office of the United States Chief of Counsel for Prosecution of Axis Criminality ("Red Series")
Nuremberg, Germany (1945-1946)
This eight-volume, 12-book series, also known as “The Red Series,” is a “Collection of Documentary Evidence and Guide Materials Prepared by the American and British Prosecuting Staffs for Presentation before the International Military Tribunal at Nurnberg, Germany.” The Red Series makes available an indexed sampling of the evidence used to support the charges made against the major Nazi war criminals in their trial at Nuremberg, Germany, 1945-1946. Volumes I and II serve as an overarching guide for the Red Series. They contain essays that summarize and link together the documents that follow. Volume II also contains a glossary along with short biographies of the German defendants, as well as summaries of the individual cases against them.
- Volume I
- Volume II
- Volume III
- Volume IV
- Volume V
- Volume VI
- Volume VII
- Volume VIII
- Opinion and Judgment
- Supplement A
- Supplement B
Trials of War Criminals Before the Nurenberg Military Tribunals Under
Control Council Law No. 10 ("Green Series")
October 1946 - April 1949
This 15-volume series, also known as “The Green Series,” focuses on the 12 trials of almost 200 defendants. The defendants included: diplomats, politicians and jurists, such as Ernst von Weizsaecker, the State Secretary of the Foreign Office, cabinet ministers Schwerin von Krosigk and Hans Lammers, and the Acting Minister of Justice Franz Schlegelberger; military leaders, including Field Marshals Wilhelm von Leeb, Wilhelm List, and Georg von Küchler; SS (Schutzstaffel) leaders, such as Otto Ohlendorf and Oswald Pohl; leading industrialists, such as Friedrich Flick, Alfred Krupp, and the directors of I. G. Farben; and physicians, such as Gerhard Rose. The trial proceedings, conducted in English and German, were carried out under the direct authority of the Allied Control Council, Law No. 10, the text of which is included in Volume I of “the Green Series.” The trials lasted two and a half years, and produced more than 300,000 pages of testimony and evidence. This publication by the United States Government Printing Office is the official abridged record of the individual indictments and judgments, as well as the administrative materials that were common to all the trials.
- Volume I
- Volume II
- Volume III
- Volume IV
- Volume V
- Volume VI
- Volume VII
- Volume VIII
- Volume IX
- Volume X
- Volume XI
- Volume XII
- Volume XIII
- Volume XIV
- Volume XV
The OCCWC (Office, Chief of Counsel for War Crimes) was officially established on October 24, 1946 and formally deactivated on June 20, 1949. The OCCWC was established in the Office of Military Government for Germany (U.S.) [OMGUS], by General Order 301, Headquarters U.S. Forces in Europe, and was the successor to the Subsequent Proceedings Division of the Office of the U.S. Chief of Counsel for the Prosecution of Axis Criminality. In this report on the Nuremberg war crimes trials, which were conducted under the authority of Control Council Law No. 10, Brigadier General Telford Taylor, Chief of Counsel for War Crimes, also describes the creation, organization, and functioning of the OCCWC. His report covers the period from the beginnings of the OCCWC in October 1945 to its deactivation in 1949.
Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10
Telford Taylor, Brigadier General, Chief of Counsel for War Crimes
Washington, D.C., 15 August 1949
World War II Board of Review Decisions
European Theatre: includes Volumes 1-34, index digests 1-2, and Index Supplement Digest 1
North African/Mediterranean Theatre of Operations: includes Volumes 1-7 and Digest of Opinions
Pacific Ocean Areas: includes Volume 1
Southwest Pacific Asia/Pacific: includes Volumes 1-4, Appendix, and Index
China, Burma, India/India-Burma Theater: includes Volumes 1-3
Malmedy Massacre Investigation and Record of Trial
Malmedy Massacre Investigation and Report, Malmedy, Belgium, 17 December 1944
On December 16, 1944, the German Army began the Ardennes offensive known as the Battle of the Bulge. On December 17, 113 American soldiers surrendered to a German armored column under the command of SS Colonel Joachim Peiper [variant: Piper]. After the American prisoners were disarmed, they were assembled in a field near Malmedy, Belgium, and shot. The German soldiers involved in this massacre of the American prisoners were later prosecuted by the U.S. Army for war crimes in 1946 in what is known as the Malmedy Massacre Trial.
In March 1949, in response to charges concerning the unfair conduct of the prosecution in the Malmedy cases, the U.S. Senate Committee on Armed Services appointed a subcommittee to review the Army’s investigative and trial procedures. The Hon. Raymond E. Baldwin, chairman, presided over the subcommittee hearings, which were held in April, May, June, and September 1949. The subcommittee report was released by the full committee on October 13, 1949. The full text of these hearings as well as the subcommittee report are linked below.
Hearings Before a Subcommittee of the Committee on Armed Services
includes:
- Part 1: April 18, 20, 22, 29; May 4, 5, 6 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24; June 1, 2, 3, and 6, 1949
- Part 2: September 5, 6, 7, 8, 13, and 28, 1949
- Report, October 13, 1949
Malmedy Massacre Record of Trial: United States v. Valentin Bersin et al., Dachau, Germany, 16 May - 16 July 1946
Following the end of World War II, the attention of the entire world was focused on the proceedings of the International Military Tribunal, which had begun in Nuremberg, Germany, in November 1945, and the International Military Tribunal for the Far East, which had begun in Tokyo, Japan, in April 1946. Both trials saw the countries’ leaders charged with, among other things, war crimes and crimes against humanity.
On May 16, 1946, an equally important, though lesser known, war crimes trial began in a courtroom at the former Dachau concentration camp. A general military government court of seven U.S. Army officers began to try members of Battle Group Pieper (so named after its commander, SS Colonel Joachim Pieper), former Waffen SS soldiers who were accused of murdering 84 American prisoners of war on December 17, 1944 at a road intersection near Malmedy, Belgium, during the Battle of the Bulge. As survivors of the massacre reached American lines, word of the killings quickly circulated among American troops and steeled their determination to halt the German offensive.
American newspapers and magazines immediately began calling these killings “the Malmedy Massacre,” the name by which these war crimes will forever be known. Army war crimes investigators immediately began collecting evidence, but it was not until mid-January 1945 that the bodies of those killed were recovered and given proper burials.
Following a two-month trial, during which survivors identified many of the accused in court and testified that many wounded Americans had been shot in the head at close range, all 73 of the accused SS soldiers were found guilty on July 11, 1946. For an excellent summary of the trial and its aftermath, see The Malmedy Massacre Trial: The Military Government Court Proceedings and the Controversial Legal Aftermath (page 22) by Fred L. Borch, III, Regimental Historian and Archivist for the U.S. Army Judge Advocate General’s Corps.
- Volume I | Volume II | Volume III
- Volume IV | Volume V | Volume VI
- Volume VII | Volume VIII | Volume IX
- Volume X | Volume XI | Volume XII
- Volume XIII | Volume XIV | Volume XV
- Volume VII includes Additional Content and appendices B-F, G-J, K-P, R-S, T-Z
*The additional content is a book presented to Ellis F. Burton, Assistant Army Judge Advocate and chief prosecutor on the Malmedy Massacre War Crimes Trial. This book is available in the Library of Congress Law Library Rare Book Room.
General Yamashita Trial and International Military Tribunal of the Far East
The Case of General Yamashita: A Memorandum
In September 1945, Tomoyuki Yamashita, in his capacity as commanding general of the Japanese Fourteenth Army Group in the Philippines, became a prisoner of war of the United States Army Forces and was charged with violations of the law of war. The official charge from the Judge Advocate General’s Department of the Army states that between October 9, 1944 and September 2, 1945, General Yamashita “unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines.” On December 7, 1945, a military commission found General Yamashita guilty as charged, and sentenced him to death. Yamashita filed a petition for a writ of habeas corpus to the United States Supreme Court, challenging the commission’s lawful authority and jurisdiction to try him. On February 4, 1946 the Court denied the general’s petition, and he was executed shortly thereafter.
The Case of General Yamashita: A Memorandum was written in November 1949 by U.S. Army Brigadier General Courtney Whitney to refute the arguments presented in a book written, but not at that time published, by one of Yamashita’s six defense counsels, Captain A. Frank Reel. In support of its rebuttals to Reel’s book, the memorandum cites as authorities the Supreme Court opinion, In re Yamashita, 327 U.S. 1 (1946); the United Nations War Crimes Commission Law Reports of Trials of War Criminals; and the Judge Advocate review of the record of trial, all of which are included as appendices to the memorandum.
The memorandum takes exception to Capt. Reel’s use of the dissenting opinions in the Yamashita decision to “support his post-judicial contention that Yamashita was irregularly tried and unjustly executed.” It affirms the three major findings of the Court: the military commission which tried and convicted Yamashita was lawfully created and lawfully convened; the allegations of the charge against Yamashita adequately alleged a violation of the laws of war; and the regulations governing the procedures to be followed by the commission were not in conflict with the Articles of War and did not deprive Yamashita of due process. The memorandum notes that General MacArthur, who served as the final reviewing authority prior to ordering the execution of sentence, supported the majority opinion of the Court. The memorandum includes in its entirety General MacArthur’s statement of record enumerating his reasons for approving the military commission’s judgment.
The commentary written by the United Nations War Crimes Commission discusses at length the Yamashita decision, focusing on the questions of international law which were involved in that case. Specifically, this document addresses “the legality of the trial of war criminals after the termination of hostilities; the finding that an alleged war criminal is not entitled to the protection of the Geneva Prisoner of War Convention relating to trial; the types of evidence admitted in war crime trial proceedings; the stress placed by the Commission on the need for expeditious procedure; and the responsibility of a commander for offences committed by his troops.” The Memorandum finds the commentary’s “discussion of the validity of that part of the regulations governing the procedure to be followed by the military commission in the admissibility of evidence” to be of particular interest.
The memorandum provides a lengthy recitation of the “specifications to the charge on which Yamashita was tried, convicted, and executed,” and states that it “established a pattern of the ... misconduct of the troops under Yamashita’s command.” The memorandum also quotes extensively from the Judge Advocate General’s review of the trial record to illustrate “the voluminous evidence before the military commission pointing to full knowledge by the high command of this reign of terror instituted against non-combatants and prisoners over a wide area.” The Judge Advocate’s review of the trial concluded that the military commission was legally constituted, and had jurisdiction of Yamashita and the offense with which he was charged. It also found that the evidence in that case supported the finding of guilty, that the trial record disclosed no errors in violation of the rights of the accused, and that the sentence was legal.
The Case of General Yamashita: A Memorandum, Brig. Gen. Courtney Whitney (1949).
See also "Trial of General Tomoyuki Yamashita" in volume 4 of the U.S. Crimes Commission's Law Reports of Trials of War Criminals (1948), Case No. 21 (Page 1).
United States of America v. Tomoyuki Yamashita: Record of Trial
Manila, Philipines
8 October - 7 December 1945
On October 8, 1945, a military commission—acting under authority from Gen. Douglas MacArthur—began the trial of Gen. Tomoyuki Yamashita on the charge that between October 9, 1944 and September 2, 1945,
at Manila and at other places in the Philippine Islands, while a commander of [the] armed forces of Japan at war with the United States of America and its allies, [he] unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he, General Tomoyuki Yamashita, thereby violated the laws of war.
Two bills of particulars, consisting of 123 distinct paragraphs alleging Yamashita’s violations of the laws of war, were introduced into evidence by the prosecution. The commission heard from 286 persons and received a total of 423 exhibits. The record of trial totaled 4,055 pages.
On December 7, 1945, the fourth anniversary of the surprise attack on Pearl Harbor, the military commission found Gen. Yamashita guilty as charged and sentenced him to death by hanging. Yamashita petitioned the Supreme Court of the United States for writs of habeas corpus and prohibition. The opinion of the court, which rejected Yamashita’s petition, was delivered by Chief Justice Harlan Fiske Stone on February 4, 1946 (327 U.S. 1). President Harry S. Truman likewise rejected Yamashita’s plea for clemency. Gen. MacArthur reviewed the record of trial and affirmed the death sentence recommended by the commission. Yamashita was executed by hanging on February 23, 1946.
Includes:
- Public Trial - 29 October 1945
- Public Trial - 30 October 1945
- Public Trial - 31 October 1945
- Public Trial - 1 November 1945
- Public Trial - 2 November 1945
- Public Trial - 3 November 1945
- Public Trial - 5 November 1945
- Public Trial - 6 November 1945
- Public Trial - 7 November 1945
- Public Trial - 8 November 1945
- Public Trial - 9 November 1945
- Public Trial - 12 November 1945
- Public Trial - 13 November 1945
- Public Trial - 14 November 1945
- Public Trial - 15 November 1945
- Public Trial - 16 November 1945
- Public Trial - 17 November 1945
- Public Trial - 19 November 1945
- Public Trial - 20 November 1945
- Public Trial - 21 November 1945
- Public Trial - 22 November 1945
- Public Trial - 23 November 1945
- Public Trial - 24 November 1945
- Public Trial - 26 November 1945
- Public Trial - 27 November 1945
- Public Trial - 28 November 1945
- Public Trial - 29 November 1945
- Public Trial - 30 November 1945
- Public Trial - 1 December 1945
- Public Trial - 3 December 1945
- Public Trial - 5 December 1945
- Public Trial - 7 December 1945
- Exhibits Volume 1 - Prosecution Exhibits
- Exhibits Volume 2 - Prosecution Exhibits
- Exhibits Volume 3 - Prosecution Exhibits
- Exhibits Volume 4 - Prosecution Exhibits
- Exhibits Volume 5 - Defense Exhibits
Judgment of the International Military Tribunal for the Far East
Tokyo, Japan; 1946-1948
The International Military Tribunal for the Far East (IMTFE) was established by a special proclamation issued January 19, 1946, by Gen. Douglas MacArthur, Supreme Commander for the Allied Powers. The first meeting of the IMTFE was held in Tokyo, Japan, on April 29, 1946. By the time the tribunal ended over two and a half years later, 419 witnesses had appeared in 818 court sessions and 779 affidavits and depositions had been presented. The IMTFE rendered its judgment November 4–12, 1948, in an opinion that took seven months to prepare and was 1,218 pages long. Maj. Gen. Myron C. Cramer, who served as Judge Advocate General of the Army during World War II, represented the United States at the tribunal.
Judgment of the International Military Tribunal for the Far East
Includes:
- Volume I, Part A: Chapter I | Chapter II | Chapter III
- Volume I, Part B: Chapter IV | Chapter V
- Volume II, Part B, continued: Chapter VI | Chapter VII | Chapter VIII
- Volume II, Part C: Chapter IX | Chapter X | Annexes and Appendices
Law Reports of Trials of War Criminals
Law Reports of Trials of War Criminals
Selected and prepared by the United Nations War Crimes Commission (1947-1949)
This 15-volume series summarizes the course of the more important proceedings taken against individuals accused of war crimes during World War II, excluding the major war criminals tried by the Nuremberg and Tokyo International Military Tribunals. These representative trials of war criminals were selected for this series based on the major points of municipal and international law that were raised and settled during the trials as well as the potential for the greatest legal interest. Each volume begins with a unique introduction by the Right Honorable Lord Wright of Durley, Chairman of the United Nations War Crimes Commission.
Law Reports of Trials of War Criminals, Volumes 1-15
Nazi War Crimes & Japanese Imperial Government Records
In October 1998, President Clinton signed into law the Nazi War Crimes Disclosure Act (NWCDA), which required the U.S. Government to locate, declassify, and release in their entirety, with few exceptions, remaining classified records about war crimes committed by Nazi Germany and its allies. The act required the President to establish an Interagency Working Group to oversee its implementation, which became the largest congressionally mandated, single-subject declassification effort in history, resulting in over 8 million pages of records being opened. This report is concerned with the process of implementing the Disclosure Acts and with the effectiveness of the acts, including the extent to which the acts resulted in the release of relevant records, the extent to which records were not released, and why. The report does not attempt to assess the historical value of the documentation covered by the acts; nor does it describe or present historical analyses or interpretations of declassified documentation. These interpretive tasks are appropriately left to historians and others with the expertise to study the raw sources made available by the Disclosure Acts. (excerpted from the introduction)
Nazi War Crimes & Japanese Imperial Government Records (April 2007)
Report of the Deputy Judge Advocate Report on War Crimes, European Command
This report was submitted by Lieutenant Colonel Clio Edwin Straight, Deputy Judge Advocate for War Crimes, European Command, to Colonel James L. Harbaugh, Jr., Judge Advocate, European Command. It covers pre-trial and trial phases of the war crimes program that dealt with so-called conventional war crimes cases, which were conducted by the United States Military Forces in Europe, from June 1944 to July 1948.
Report of the Deputy Judge Advocate Report on War Crimes, European Command
June 1944 to July 1948
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials
In December 1947 Justice Robert H. Jackson submitted a “documentary record of negotiations,” which he had conducted from June to August 1945 as U.S. representative to the International Conference on Military Trials with representatives of the United Kingdom, France, and the USSR. The purpose of this conference, held in London, was to establish “methods of procedure for the prosecution and trial of the major European war criminals,” and resulted in the adoption of an agreement and charter of London, signed by representatives of the four conferring powers on August 8, 1945.
The Jackson report includes numerous preparatory documents for the 1945 conference: minutes of conference sessions; reports of the drafting committee regarding the agreement and charter; redrafts of the definitions of key terms; and amendments and other proposals submitted by the American, British, French, and Soviet delegations.
In his preface to this report, Justice Jackson highlights the difficulties in reconciling the “divergence in legal concepts and traditions” among the four delegate nations. A consistent point of separation was the difference between the Soviet practice of judicial inquiry, and the Anglo-American theory of criminal trials, coupled with opposite views of the function of the judiciary. Jackson describes these discords as “stubborn and deep,” noting the failure to include in the final charter the American proposal to define “aggression.” There was a significant “difference of viewpoint concerning the principles of conspiracy as developed in Anglo-American law,” and the most serious disagreement concerned the definition of crimes.
The charter was, however, in many respects a success. It defines three broad categories of acts as criminal—crimes against peace, war crimes, and crimes against humanity. It also “enacts the principle that individuals rather than states are responsible for criminal violations of international law and applies to such lawbreakers the principle of conspiracy by which one who joins in a common plan to commit crime becomes responsible for the acts of any other conspirator in executing the plan.” The procedural provisions of the charter are significant because they “represent the first tried and successful effort by lawyers from nations having profoundly different legal systems, philosophies, and traditions to amalgamate their ideas of fair procedure so as to permit a joint inquiry of judicial character into criminal charges.”
This document also includes two reports to the President of the United States submitted by Justice Jackson in June 1945 and October 1946. The 1945 report, which was widely published in the United States and throughout Europe, “was accepted by other governments as an official statement of the position of the United States and as such was placed before all of the delegations to the London Conference.” In this report Jackson outlines the basic features of the plan of prosecution on which the United States was proceeding in preparing its case. The case would begin with the assumption that “an inescapable responsibility” rested on the U.S. “to conduct an inquiry, preferably in association with others, but alone if necessary, into the culpability of those whom there is a probable cause to accuse of atrocities and other crimes.” A fair hearing would be conducted to determine the guilt or innocence of the accused, employing procedures not necessarily consistent with those of a trial under the U.S. system of justice. The hearings would bar “obstructive and dilatory tactics” by the defense, and would disallow the defense from arguing the doctrines that “a head of state is immune from legal liability, and that orders from an official superior protect one who obeys them. It will be noticed that the combination of these two doctrines means that nobody is responsible.” The defendants would consist of a large number of persons who were in authority in the German government and the military establishment, as well as in the financial and industrial sectors, “who by all civilized standards are provable to be common criminals.” Voluntary organizations such as the Gestapo, whose criminal activities subjugated the German people and their neighbors, would be accused as well, with the intent of demonstrating “their declared and covert objectives, and methods of recruitment and effectuating their programs.” The report notes that the U.S. case would need to be “factually authentic and constitute a well-documented history of” what the U.S was convinced was “a grand, concerted pattern to commit aggressions and barbarities which have shocked the world.” The report enumerates the atrocities and offenses, and violations of international law, with which the top Nazi leaders and voluntary associations were being charged. The basic premise of liability would be that “all who participate in the formulation or execution of a criminal plan involving multiple crimes are liable for each of the offenses committed and responsible for the acts of each other.” The United States “proposes to charge that a war of aggression is a crime, and that modern International Law has abolished the defense that those who incite or wage it are engaged in legitimate business. Thus may the forces of the law be mobilized on the side of peace.”
The 1946 report to the President summarizes the judgments of the International Military Tribunal sitting at Nurnberg (Nuremberg), Germany that were rendered on September 30 and October 1, 1946. It also provides statistics regarding testimony and other evidentiary material presented at this lengthy trial, which began on November 20, 1945. The report notes the subsequent war crimes work that would be supervised by Brigadier General Telford Taylor, specifically the prosecution of “representatives of all the important segments of the Third Reich including a considerable number of industrialists and financiers, leading cabinet ministers, top SS and police officials, and militarists.” The core of this report is Justice Jackson’s summary of the accomplishments of the four delegate nations. He states that the Agreement negotiated and concluded by these parties “made explicit and unambiguous that to prepare, incite, or wage a war of aggression, or to conspire with others to do so, is a crime against international society, and that to persecute, oppress, or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war, or to exterminate, enslave, or deport civilian populations, is an international crime, and that for the commission of such crimes individuals are responsible.” This agreement “is a basic charter in the International Law of the future. Its principles have been incorporated into a judicial precedent,” because from this point forward no one would be able to “deny or fail to know that the principles on which the Nazi leaders” were adjudged to have committed capital offenses “constitute law—and law with a sanction.” The Agreement is also noteworthy because it “devised a workable procedure for the trial of crimes which reconciled the basic conflicts in Anglo-American, French, and Soviet procedures.” The documentation of Nazi aggressions, persecutions, and atrocities, documented from German sources “with such authenticity and in such detail,” would preclude any “responsible denial of these crimes in the future.” Jackson concludes by stating that the Agreement and the military tribunal together have “put International Law squarely on the side of peace as against aggressive warfare, and on the side of humanity as against persecution.”