at Yale Law School at Yale Law SchoolThe new directive embodied the broader approach to the problem of war crimes which had originated in the conferences between Mr. Stimson and Judge Rosenman and had been systematically set forth in Mr. Justice Jackson's interim report. Indeed, the definitions in J. C. S. 1023/10 of the crimes which it covered were "lifted" almost verbatim from the report of Mr. Justice Jackson. (1) The scope of individual responsibility for these crimes was to include not only "accessories" and those who had taken "a consenting part" in crime, (2) but also "members of groups or organizations connected with the commission of such crimes" (3) and (as to the crime of aggressive war only) "persons who have held high political, civil, or military * * * positions in Germany or in one of its allies * * * or in the financial, industrial or economic life of any of these countries." (4)
To prepare for the carrying out of the directive by the initiation of criminal proceedings, the theater commander was directed "to identify, investigate, apprehend, and detain all persons whom you suspect to be criminals" under the foregoing definitions of the crimes and scope of responsibility, (5) and "all persons whom the Control Council, any one of the United Nations, or Italy notifies to you as being charged as criminals." The theater commander was ordered to report the names of suspected criminals to the Control Council, and there were additional detailed provisions governing the delivery or "extradition" of suspects from one country to another. The directive provided in very general terms "that appropriate military courts may conduct trials of suspected criminals in your custody" but specified that these courts should be "separate from the courts trying current offenses against your occupation," and that their procedures should be "fair, simple, and expeditious * * * designed to accomplish substantial justice without technicality." As theretofore, the theater commander was to postpone trials of high political, civil, or military officials until it was ascertained whether such persons would be tried before an international military tribunal, as well as trials of persons wanted elsewhere.
General Eisenhower's headquarters made the Theater Judge Advocate (the late Brigadier General Edward C. Betts) responsible for the "effective application" of J. C. S. I023/10, (6) and about a month later General Betts approved a memorandum by Colonel Charles Fairman (7) embodying recommendations for the execution of the directive.
Colonel Fairman stressed the enormous scope of the program required by J. C. S. 1023/10calling as it did for the prosecution of numerous atrocities committed since 30 January 1933 and pointed out the urgent need for immediate planning and recruitment of skilled personnel. He concluded that "considerations of continuity of effort, expert knowledge, and public responsibility already established point to the Office of the US Chief of Counsel [Mr. Justice Jackson's organization at Nuernberg] as the organization upon which reliance should be placed." Following out this suggestion, and by direction of General Eisenhower, J. C. S. 1023/10 and Colonel Fairman's memorandum were brought to Mr. Justice Jackson's attention, (8) and there ensued a series of conferences and interchange of correspondence among Mr. Justice Jackson, General Betts, Colonel Fairman, and the Legal Adviser to OMGUS (then Mr. Charles Fahy). All parties seemed to agree that, in planning for the execution of the directive, Mr. Justice Jackson's organization should be utilized as an administrative base of operations and a possible future source of personnel, and that there was immediate need for some individual to take charge of the project. I was first approached in this connection by Mr. Fahy on or about 20 November 1945, when the first Nuernberg trial (before the International Military Tribunal) opened.
In the meantime, under the direction of Mr. Fahy, J. C. S. 1023/10 had been used as the basis for a draft of a proposed law to be promulgated by the Allied Control Council on the subject of war crimes. Such a draft was approved by the Coordinating Committee of the Control Council on 1 November 1945, and on 20 December 1944, with some changes, it was enacted by the Control Council as Law No. 10.
(1) Compare the language in paragraph 2, Annex to Appendix to Enclosure B of J. C. S. 1023/10 (infra, pp. 244-245) with the concluding paragraphs of Part III of the Jackson report, in International Conference on Military Trials, op. cit. supra, pp. 50-51. Back
(2) These phrases apparently were derived from the original draft directive of 26 August 1944 (J. C. S. 1023), mentioned supra, p. 2. Back
(3) Presumably derived from Mr. Justice Jackson's proposal in his interim report "to establish the criminal character of several organizations such as the Gestapo and the SS. Back
(4) The origin of this very broad phrasing is unknown to me. See infra, p. 72. Back
(5) In the basic directive to the theater commander prescribing the general policies for the United States forces of occupation and the military government of Germany, the theater commander had been directed to arrest and hold numerous categories of "suspected war criminals" and other persons, such as Nazi Party and SS officials, general staff corps officers, and judges and other officials of the Peoples Courts. (See J. C. S. 1067/6, par. 8b, 26 April 1945.) The entire directive except for the definitions of these categories (which were withheld from publication in order to facilitate additional arrests) was published in The Department of State Bulletin for 21 October 1945, pp. 596607. Back
(6) This responsibility was imposed by USFET letter to the Theater Judge Advocate dated 20 September 1945. Back
(7) Chief, International Law Section of the Theater Judge Advocate's office. Back
(8) By letter from General Betts to Mr. Justice Jackson dated 19 October 1945. Back