Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume I, London, HMSO, 1947

[Some sections have been highlighted provisionally until hyperlinks can be added to appropriate files. Page numbers precede text.]

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UNITED STATES LAW AND PRACTICE CONCERNING TRIALS OF WAR CRIMINALS BY MILITARY COMMISSIONS AND MILITARY GOVERNMENT COURTS

I. The Different Types of United States Military and Military Government Tribunals

Part I: United States Military Commissions

II. The Basic Provisions
III. Regulations for the Trial of War Criminals by Military Commissions

IV. The Definition of War Crime in the Regulations for the Trial of War Criminals in the Different United States Theatres of Operation
V. Composition of Military Commissions
VI. The Judge Advocate

VII. Rules of Procedures

VIII. Rules of Evidence

IX. Crimes Committed by Units or Groups

XI. Punishment of War Crimes

XII. Appeal and Confirmation

XIII. The United States Courts of Law in Relation to Military Commissions

XIV. The Authority of Decisions of Military Commissions

Part II: Military Government Courts

XV. The Establishment of Military Government Courts

XVI. Jurisdiction of Military Government Courts
XVII. The Composition of Military Government Courts
XVIII.  Rules of Procedure and Evidence
XIX. Powers of Sentence
XX. Review of Sentence

1. THE DIFFERENT TYPES OF: UNITED STATES MILITARY AND MILITARY GOVERNMENT TRIBUNALS

In United States Law there are three types of Military Tribunals, namely (a) Courts Martial, General, Special and Summary, (b) Military Commissions, and (c) Provost Courts. In addition to these Tribunals, based on internal United States law, both Common Law and Statutory Law, there exist, in territory occupied by United States Forces, (d) Military Government Courts. This Annex, which deals with the trial of war criminals by United States Courts, is not concerned with the type of Military Tribunals mentioned under (a) (Courts Martial). Although United States Law (Art. 12 of the Articles of War) provides that General Courts Martial " shall have power to try any person subject to Military Law ... and any other person who by the law of war is subject to trial by military tribunals " and although under this article the United States can at any time elect to try war criminals before General Courts Martial, this has, in practice, not been done.

Provost Courts (supra (c) ) are Tribunals of a summary nature. As there have not been trials of war criminals before United States Provost Courts, this type can also remain outside the scope of this introduction, which will therefore be restricted to Military Commissions (Part 1) and Military Government Courts (Part II).

PART 1: UNITED STATES MILITARY COMMISSIONS

II. THE BASIC PROVISIONS

The United States Military Commissions are an old institution which existed prior to the Constitution of the United States of America. They have been described as the American Common Law War Courts.

They were not created by statute, but recognised by statute law. In very recent decisions (the so-called Saboteur case ex parte Richard Quirin (1942), in re Yamashita (1946) and in re Homma (1946) ) the Supreme Court of the United States had occasion to consider at length the sources and nature of the authority to create Military Commissions. The Supreme Court stated that Congress and the President, like the courts, possess no power not derived from the Constitution of the United States. But one of the objects of the Constitution, as declared by its preamble, is to " provide for the common defence." As a means to that end the Constitution gives to Congress the power to " provide for the common Defence," " To raise and support Armies," " To provide and maintain a Navy," and " To make Rules for the Government and Regulations of the land and naval Forces." Congress is

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 given authority " to declare War ... and make Rules concerning Captures on Land and Water," and " To define and punish Piracies and Felonies committed on the high seas and Offences against the Law of Nations." In the exercise of the power conferred upon it by the constitution to " define and punish ... offences against the Law of Nations," of which the law of war is a part, the United States Congress has by a statute, the Articles of War, recognised the " Military Commission " appointed by military command, as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offences against the law of war. The Supreme Court pointed out that Congress by sanctioning the trial by Military Commission of enemy combatants for violations of the law of war had not attempted to codify the law of war or to mark its precise boundaries. Instead it had incorporated, by reference, as within the pre-existing jurisdiction of Military Commissions created by appropriate military command, all offences which are defined as such by the law of war, and which may constitutionally be included within the jurisdiction.

The Constitution confers on the President the " executive Power " and imposes upon him the duty to "take care that the Laws be faithfully executed." It makes him the Commander in Chief of the Army and Navy. The Constitution thus invests the President as Commander in Chief with the power to wage war and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations including those which pertain to the conduct of war.

The President of the United States, as the Commander in Chief of the Armed Forces, and the Commanders in the Field have the power to appoint Military Commissions and to prescribe the rules and regulations under which they have to operate.

It should be added that Military Commissions may be appointed not only by the President or any Field Commander but also by any Commander competent to appoint a General Court Martial. The Commander in the Field has this right because of his general power as a Military Commander.

III. REGULATIONS FOR THE TRIAL OF WAR CRIMINALS BY MILITARY COMMISSIONS

The British Royal Warrant of 14th June 1945 (see Annex I of this Volume) has made regulations for the trial of war criminals for all British Military Courts in all theatres of operations and in all territories under the jurisdiction of the United Kingdom Government and armed forces.

The United States authorities, on the other hand, have made different provisions for different territories. The President, as President and Commander in Chief of the Army and Navy, by Order of July 2nd, 1942 (7 Federal Register 5103), appointed a Military Commission and directed it to try Richard Quirin and seven other German saboteurs for offences against the law of war and the Articles of War and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. At the same time, by Proclamation (7 Federal Register 5 10 1), the President declared that "all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation,

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and who during time of war enter or attempt to enter the United States ... through coastal or boundary defences, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the laws of war, shall be subject to the law of war and to the jurisdiction of military tribunals." The Supreme Court of the United States in its decision ex parte Richard Quirin, 317 U.S. 1 (1942), sustained the validity of this procedure against various contentions based upon the Constitution of the United States.

Similarly, by command of General McNarney, Regulations for the Trial of War Crimes for the Mediterranean theatre of operations were made on the 23rd September 1945 by circular No. 114 ; these Regulations (in the following pages called the Mediterranean Regulations), formed the basis of the proceedings against General Dostler (see Case 2 of this Volume).

By command of General Eisenhower, a directive regarding Military Commissions in the European theatre of operations was made by an Order of 25th August 1945 (to be called the European directive hereafter). These rules applied, e.g., to the Hadamar trial (Case No. 4 of this Volume).

On 26th June 1946, a directive was issued by Headquarters, United States Forces, European Theatre, which contained certain new provisions as to the trial of persons accused of being participants in mass atrocities when the principal participants in such atrocities had already been convicted. Reference will be made to these provisions below in paragraph ix.

For the United States Armed Forces, Pacific, Regulations governing the trial of war criminals were made by General MacArthur on 24th September 1945. These regulations of 24th September 1945 formed the basis of the trial, inter alia, of the Japanese General Yamashita and of the Jaluit Atoll Case, No. 6 of this Volume. These regulations were superseded almost immediately after the Yamashita trial by the " Regulations Governing the Trials of Accused War Criminals" of 5th December 1945, generally called " SCAP Regulations " or " SCAP Rules. " Whenever, in this Annex, " SCAP " Rules are quoted, the reference is to the Regulations made on 5th December 1945. The earlier Regulations of 24th September 1945, which sometimes, in the parlance of the officers of the courts, were also cited as " SCAP " Rules, will, to distinguish them from the Document dated 5th December 1945, here be called the "Pacific September Regulations."

Another set of Regulations similar to the Pacific September Regulations were issued for the China Theatre on 21st January, 1946, and are referred to hereafter as the China Regulations.

IV. THE DEFINITION OF WAR CRIME IN THE REGULATIONS FOR THE TRIAL OF WAR CRIMINALS IN THE DIFFERENT UNITED STATES THEATRES OF OPERATIONS

The definition of " war crime " and consequently the scope of the offences falling under the jurisdiction of Military Commissions is different according to the different Regulations and Directives dealt with in the preceding paragraph of this Annex.

The narrowest jurisdiction is that vested in the Military Commissions appointed in the Mediterranean Theatre of Operations. In the Mediterranean Regulations (Regulation 1) the expression " war crime " means a violation of the laws or customs of war.

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Under the European Directive (paragraph la), Military Commissions are appointed for the trial of persons who are charged with violations of the laws or customs of war, of the law of nations or of the laws of occupied territory, or any part thereof. The European Directive adds therefore to the jurisdiction of Military Commissions violations of the law of nations other than the laws or customs of war, and violations of the local law of the occupied territory. In Regulation 5 of the Pacific September Regulations the offences falling under the jurisdiction of the Military Commissions are described as follows :

" murder, torture or ill-treatment of prisoners of war or persons on the seas; killing or ill-treatment of hostages ; murder, torture or ill-treatment, or deportation to slave labour or for any other illegal purpose, of civilians of, or in, occupied territory ; plunder of public or private property ; wanton destruction of cities, towns or villages ; devastation, destruction or damage of public or private property not justified by military necessity ; planning, preparation, initiation or waging of a war of aggression, or an invasion or war in violation of international law, treaties, agreements or assurances; murder, extermination, enslavement, deportation or other inhumane acts committed against any civilian population, or persecution on political, racial, national or religious grounds, in execution of or in connection with any offence within the jurisdiction of the commission, whether or not in violation of the domestic law of the country where perpetrated ; and all other offences against the laws or customs of war ; participation in a common plan or conspiracy to accomplish any of the foregoing. Leaders, organizers, instigators, accessories and accomplices participating in the formulation or execution of any such common plan or conspiracy will be held responsible for all acts performed by any person in execution of that plan or conspiracy."

The SCAP Regulations of 5th December 1945, which have superseded the Regulations of 24th September 1945, define the offences to be tried by the Military Commissions in the following words (Regulation 2(b)) :

"(1) Military commissions established hereunder shall have jurisdiction over all offences including, not limited to, the following :

"(a) The planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

"(b) Violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory ; murder or ill-treatment of prisoners of war or internees or persons on the seas or elsewhere ; improper treatment of hostages ; plunder of public or private property ; wanton destruction of cities, towns or villages ; or devastation not justified by military necessity.

"(c) Murder, extermination, enslavement, deportation and other inhuman acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of, or in connection with, any crime defined

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herein, whether or not in violation of the domestic laws of the country where perpetrated.

"(2) The offence need not have been committed after a particular date to render the responsible party or parties subject to arrest, but in general should have been committed since or in the period immediately preceding the Mukden incident of September l8th 1931."

In the China Regulations the jurisdiction of the Commission is circumscribed as follows : " The military commissions established hereunder shall have jurisdiction over the following offences : Violations of the laws or customs of war, including but not limited to murder, torture, or ill-treatment of prisoners of war or persons on the seas ; killing or ill-treatment of hostages, murder, torture or ill-treatment, or deportation to slave labour or for any other illegal purposes, of civilians of, or in, occupied territory ; plunder of public or private property ; wanton destruction of cities, towns or villages , devastation, destruction or damage of public or private property not justified by military necessity ; murder, extermination, enslavement, deportation or other inhuman acts committed against any civilian population, or persecution on political, racial, national or religious grounds, in execution of or connection with any offence within the jurisdiction of the commission, whether or not in violation of the domestic law of the country where perpetrated ; and all other offences against the laws or customs of war; participation in a common plan or conspiracy to accomplish any of the foregoing. Leaders, organizers, Instigators, accessories and accomplices participating in the formulation or execution of any such common plan or conspiracy will be held responsible for all acts performed by any person in execution of that plan or conspiracy."

In describing the offences subject to trial by Military Tribunals, the Regulations used in the Pacific theatre and in China reflect the influence of the Four Power Agreement of 8th August 1945, and particularly of Article 6 of the Charter of the International Military Tribunal annexed to it. Under the Charter the International Military Tribunal has jurisdiction over

(a) Crimes against peace,

(b) War crimes, namely, violation of the laws or customs of war, and

(c) Crimes against humanity.

Military Commissions operating under the SCAP Regulations have jurisdiction over all offences, including, but not limited to, the three types of offences enumerated. It is also expressly stated there that the offences need not have been committed after a particular date, but in general should have been committed since or in the period immediately preceding the Mukden incident of I 8th September 1931.

V. COMPOSITION OF MILITARY COMMISSIONS

Under all the Regulations mentioned Military Commissions must be composed of not fewer than three members. In the European and Mediterranean Theatres of Operations the members must be officers of the United States Army. (Para. l (c) of the European Directive and Regulation 3 of the Mediterranean Regulations.)

Under Regulation 8 of the China Regulations, a Commission may consist

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of Army and other service personnel or of both service personnel and civilians. The Pacific September Regulations, on the other hand, provide also for " international military commissions consisting of representatives of several nations or of each nation concerned, appointed to try cases involving offences against two or more nations or any other offences ; and commissions consisting of members of any one branch or of several branches of the army services of one or more nations." (Regulation 2.) The SCAP Regulations contain similar provisions (Regulation l (b)) with the difference that an International Commission may also try cases involving offences against one nation only.

The most outstanding instance of an American Military Tribunal consisting of representatives of several nations is the International Military Tribunal for the Far East which was established by Special Proclamation of General Douglas MacArthur of 19th January 1946 (as amended by a subsequent Order of 26th April 1946) " for the just and prompt trial and punishment of major war criminals in the Far East." The Pacific September Regulations (No. 5(b)) also provide that persons whose offences have a particular geographical location outside Japan may be returned to the scene of their crimes for trial by competent military or civil tribunals of local jurisdiction, which is an application of the Moscow Declaration of 30th October 1943 to the Pacific theatre of war.

The provision relating to the return of Japanese war criminals to the scene of their crimes is omitted in the SCAP Regulations. It is, however, retained in the China Regulations (Regulation 5(b) concerning persons whose offences have a geographical location outside the China Theatre of Operations).

V1. THE JUDGE ADVOCATE

In American law the function of the Judge Advocate is entirely different from that of the Judge Advocate in British Military Tribunals. Whereas the British Judge Advocate is an impartial adviser to the Tribunal (see Annex I of this Volume, paragraph vi) Article 17 of the American Articles of War provides that the trial judge advocate of a general or special Court Martial shall prosecute in the name of the United States, and shall, under the direction of the Court, prepare the record of its proceedings. The Mediterranean Regulations (No. 3) provide that for each Military Commission there shall be appointed a judge advocate and a defence Counsel with such assistants as may be required, whose duties shall be similar to those of like officers before General Courts Martial. Similar provisions apply to the European Theatre (paragraph l (c) of the Directive), and under the Pacific September Regulations (Regulation 11), the SCAP Rules (Regulation 4 (a)) and the China Regulations (Regulation 11). In the two Regulations relating to the Pacific, it is also provided that in prosecutions for offences involving more than one nation, each nation concerned may be represented among the prosecutors. In the SCAP Regulations, this is expressly left to the discretion of the convening authority.

VII. RULES OF PROCEDURE

The Mediterranean Regulations (No. 8) provide that Military Commissions shall conduct their proceedings as may be deemed necessary for full and fair

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trial, having regard for, but not being bound by, the rules of procedure prescribed for General Courts Martial. In the European directive it is stated (by paragraph 2) that Military Commissions shall have power to make, as occasion requires, such rules for the conduct of their proceedings consistent with the powers of such Commissions, and with the rules of procedure set forth in the directive, as are deemed necessary for a full and fair trial of the accused, having regard for, without being bound by, the rules of procedure and evidence prescribed for General Courts Martial.

In the Regulations applied in the Pacific Theatre it is provided, inter alia, that the Commission shall confine each trial strictly to a fair, expeditious hearing of the issues raised by the charges, exclude irrelevant issues or evidence and prevent any unnecessary delay or interference. (Regulation 13 (a) of the September Regulations and Regulation 5 (a) (1) of the SCAP Rules. In substance the same is provided in Regulation 13 (a) of the China Regulations.) The Sessions of the Commission shall be public except when otherwise directed by the Commission. (Regulation 13 (c) of the September Regulations ; Regulation (5a) (3) of the SCAP Rules.) The accused shall be entitled, inter alia, to be represented prior to, and during, trial by Counsel appointed by the convening authority or Counsel of his own choice, or to conduct his own defence. (Regulation 5(b) (2) of the, SCAP Rules; provisions substantially to the same effect are contained in Regulation 14 (b) of the September Regulations and Regulation 14 (b) of the China Regulations.) The accused shall be entitled to testify on his own behalf and have his Counsel present relevant evidence at the trial in support of his defence, and cross-examine each adverse witness who personally appears before the Commission; and to have the substance of the charges and specifications, the proceedings and any documentary evidence translated when he is unable otherwise to understand them. (Regulation 5 (b) (3) and (4) of the SCAP Rules; similarly: Regulation 14 (c) and 14 (d) of the September Regulations and Regulations 14 (c) and 14 (d) of the China Regulations.)

VIII. RULES OF EVIDENCE

The President's order of 2nd July 1942, mentioned in paragraph III of this Annex, appointing a Military Commission for the trial of the alleged saboteurs, included the provision that " Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man." The provisions laid down in overseas theatres were clearly influenced by this drafting.

The Mediterranean Regulations (Regulation 10) provide expressly that the technical rules of evidence shall not be applied but any evidence shall be admitted which, in the opinion of the president of the Commission, has any probative value to a reasonable man. Similar provisions are contained in paragraph 3 of the European Directive, in Regulation 16 of the Pacific September Regulations, in Regulation 5(d) of the SCAP Rules and in Regulation 16 of the China Regulations.

In the Mediterranean Regulations it is added that without limiting the scope of this rule the following in particular will apply

"(a) If any witness is dead or is unable to attend or to give evidence or is, in the opinion of the president of the commission, unable to attend:

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without undue delay, the commission may receive secondary evidence of statements made by or attributed to such witness.

" (b) Any document purporting to have been signed or issued officially by any member of any allied or enemy force or by any official or agency of any allied, neutral or enemy government shall be admissible as evidence without proof of the issue or signature thereof.

" (c) Any report by any person when it appears to the president of the commission that the person in making the report was acting within the scope of his duty may be admitted in evidence.

" (d) Any deposition or record of any military tribunal may be admitted in evidence.

" (e) Any diary, letter or other document may be received in evidence as to the facts therein stated.

" (f) If any original document cannot be produced, or, in the opinion of the president of the commission, cannot be produced without undue delay, a copy or translated copy of such document or other secondary evidence of its contents may be received in evidence. A translation of any document will be presumed to be a correct translation until the contrary is shown.

" (g) Photographs, printed and mimeographed matter, and true copies of papers are admissible without proof.

" (h) Confessions are admissible without proof of circumstances or that they were voluntarily made. The circumstances surrounding the taking of a confession may be shown by the accused and such showing may be considered in respect of the weight to be accorded it, but not in respect of its admissibility."

Similar but not identical provisions are contained in the other instruments. In the SCAP Rules, for instance, it is also provided (Regulation 5 (d) (2)) that the Commission shall take judicial notice of facts of common knowledge, official government documents. of any nation and the proceedings, records and findings of Military or other Agencies of any of the United Nations, a provision which corresponds to Art. 21 of the Charter of the International Military Tribunal, annexed to the Four-Power Agreement of 8th August 1945.

Regulation 7 of the SCAP Rules states that all purported confessions or statements of the accused shall be admissible without prior proof that they were voluntarily given, it being for the Commission to determine only the truth or falsity of such confessions or statements.

IX. CRIMES COMMITTED BY UNITS OR GROUPS

The SCAP Rules contain, in Regulation 5 (d) (4), also the following provisions, the substance of which was also contained in the September Regulations :

" If the accused is charged with an offence involving concerted criminal action upon the part of a military or naval unit, or any group or organization, evidence which has been given previously at a trial resulting in the conviction of any other member of that unit, group or organization,  

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relative to that concerted offence, may be received as prima-facie evidence that the accused likewise is guilty of that offence."

This provision is similar to that of Regulation 8 (ii) of the British Royal Warrant (see Annex I of this Volume, paragraph ix).

The SCAP Rules, in Regulation 5(d) (5), further provide that :

" The findings and judgement of a commission in any trial of a unit, group, or organization with respect to the criminal character, purpose or activities thereof shall be given full faith and credit in any subsequent trial, by that or any other commission, of an individual person charged with criminal responsibility through membership in that unit, group or organization. Upon proof of membership in that unit, group or organization convicted by a commission, the burden shall be on the accused to establish by proof any mitigating circumstances relating to his membership or participation therein."

Substantially the same provision was contained in the September Regulations, which also provided, in Regulation 4 (b), that :

"Any military or naval unit or any official or unofficial group or organization, whether or not still in existence, may be charged with criminal acts or complicity therein and tried by a military commission."

The China Regulations have similar provisions in Regulations 16 (d) and (e).

It will be seen that these provisions are based on a principle similar to that expressed in Articles 9 and 10 of the Charter of the (European) International Military Tribunal.

The Directive of 26th June 1946, applicable primarily to Military Government Courts in the European Theatre of Operations, contains in its paragraph 11 detailed provisions under the heading " Mass Atrocities, Subsequent Proceedings." It is recalled there that certain mass atrocity cases have heretofore been tried, i.e. the Hadamar (see Case 4 of this Volume), Dachau and Mauthausen cases, " wherein the principal participants of the respective mass atrocities were charged with violating the laws and usages of war, under particulars alleging that they acted in pursuance of common design to subject persons to killings, beatings, torture, starvation, abuses or indignities, or particulars substantially to the same effect. The courts pronounced sentences in those cases involving imprisonment and death and of necessity, in view of the issues involved therein, found that the mass atrocity operation involved in each was criminal in nature and that those involved in the mass atrocities acting in pursuance of a common design did subject persons to killings, beatings, tortures, etc." The Directive now provides, with regard to subsequent proceedings against accused other than those involved in initial or " parent " mass atrocity cases, inter alia, that : " In such trial of additional participants in the mass atrocity, the prosecuting officer will furnish the court certified copies of the charge and particulars, the findings and the sentence pronounced in the parent case." Thereupon the court " will take judicial notice of the decision rendered in the parent case, including the finding of the court (in the parent case) that the mass atrocity operation was criminal in nature and that the participants therein, acting in pursuance of a common design, did subject persons to killings, beating, tortures, etc., and no examination of the record in such parent case need be made for this purpose.

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In such trials of additional participants in the mass atrocity, the court will presume, subject to being rebutted by appropriate evidence, that those shown by competent evidence to have participated in the mass atrocity knew of the criminal nature thereof."

X. THE DEFENCE OF SUPERIOR ORDERS

The Mediterranean Regulations provide in Regulation 9 :

" The fact that an accused acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the commission determines that justice so requires."

The corresponding provisions of Regulation 16 (f) of the Pacific Regulations of September 1945, of Regulation 5 (d) (6) of the SCAP Rules and of Regulation 16 (f) of the China Regulations provide as follows

" The official position of the accused shall not absolve him from responsibility, nor be considered in mitigation of punishment. Further, action pursuant to order of the accused's superior, or of his government, shall not constitute a defence, but may be considered in mitigation of punishment if the commission determines that justice so requires."

As to the development of the law regarding this plea see the notes on the Peleus and Dostler cases, supra, pages 18-20 and 31-33.

The Supreme Court of the United States decided in the Yamashita case that under the Laws of War a commanding officer may be charged with a violation of those laws solely because of his failure to control his troops.

XI. PUNISHMENT OF WAR CRIMES

For the Commissions operating in the European theatre it is provided that they may be guided by, but are not limited to, the penalties authorised by the Manual for Courts Martial, and by the laws of the United States, and of the territory in which the offence was committed or the trial is held. The Manual for Courts Martial and the Articles of War prohibit cruel and unusual punishments of every kind and otherwise provide for different crimes different punishments, from fines and imprisonment to the death sentence. The Mediterranean Regulations (No. 13) state that appropriate sentences imposed. by a Military Commission are (a) Death (by hanging or shooting), (b) Confinement for life or a lesser term, (c) Fine.

In Regulation 20 of the Pacific Regulations of September 1945, in Regulation 5 (b) of the SCAP Rules and in Regulation 20 of the China Theatre it is added that the Commission may also impose such other punishment as it shall determine to be proper. The Commission may also order confiscation of any property of the convicted accused, deprive the accused of any stolen property, or order its delivery to the Commander-in- for disposition as he shall find to be proper, or may order restitution with appropriate penalty in cases of default. In all Regulations it is provided that concurrence of at least two-thirds of the members of the Commission present at the time of voting shall be necessary for the conviction and for the sentence.

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XII. APPEAL AND CONFIRMATION

The sentence of a Military Commission must not be carried into execution until it has been approved by the appointing authority. Death sentences must, in addition, be also confirmed by the Theatre Commander. The approving and confirming authorities have before them, in acting, a review and recommendation by the Staff Judge Advocate. Thus, while there is no " appeal " as that term is used in judicial proceedings, every record of trial is scrutinised as to the facts and points of law, and the Commanding General has trained legal advice as to what, in right and justice, should be done.

XIII. THE UNITED STATES COURTS OF LAW IN RELATION TO MILITARY COMMISSIONS

Notwithstanding the absence of a right of appeal Military Commissions are in United States law, to a certain extent, subject to control and supervision by the American courts. A Military Commission is not, any more than a Court Martial, a " Court " whose rules and judgments are subject to review by the judicial courts. The judicial courts will, however, in a proper case enquire whether the Military Tribunal has jurisdiction of the. person and of the offence, and whether the sentence imposed was within the power of the Tribunal. But if the Military Tribunal had lawful authority to hear, decide and condemn, its action is not subject to judicial review merely because it is contended that it made a wrong decision on disputed facts. Correction of errors of decision belongs to the superior military authorities on their review of the case, not to the judicial courts. The most usual way for testing the validity of trials and sentences by a Military Commission is by writ of Habeas Corpus. The purpose of the writ of Habeas Corpus is to bring the person seeking the benefit of it before the court or judge to determine whether or not he is legally restrained of his liberty. It is a summary remedy for unlawful restraint of liberty. Where it is decided that the restraint is unlawful the court orders the release of the applicant, but if the restraint is lawful the writ is dismissed. The Supreme Court of the United States has emphasised in ex parte Quirin and in re Yamashita that on application for Habeas Corpus the court is not concerned with the guilt or innocence of the petitioners. The court considers only the lawful power of the Commission to try the petitioner for the offence charged. 

In determining this question, the court will consider the following points

(a) Was the Commission created by lawful military command ?
(b) Is the defendant charged with a violation of the Laws of War ?

(c) Is any provision of the Constitution or United States statutes or any treaty or lawful military command violated by the trial ?

A broad review necessarily results from the determination of these three questions.

The Supreme Court of the United States examined the judgments of the Military Commissions in the cases ex parte Quirin, in re Yamashita and in re Homma and sustained the jurisdiction of the Military Commission, in the Quirin case unanimously, in the two other cases by majority judgments.

XIV. THE AUTHORITY OF DECISIONS OF MILITARY COMMISSIONS

Like the British Military Courts, the United States Military Commissions

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are not superior courts and what has been said on the authority of British Military Courts in Annex I of this Volume applies mutatis mutandis to decisions of United States Military Commissions.

The decisions of the Supreme Court of the United States in the three cases mentioned and the decisions of the other courts which have been or may be seised of cases of war criminals, in connection with a writ of Habeas Corpus or other similar remedies, have, of course, that binding authority which attaches to their decisions under the general law of the United States.

PART II: MILITARY GOVERNMENT COURTS

XV. THE ESTABLISHMENT OF MILITARY GOVERNMENT COURTS

It has been stated in the first part of this Annex that the United States Forces, European Theatre, have used two separate sets of Tribunals for the trial of war criminals, namely, Military Commissions, which have been dealt with in Part I of this Annex, and Military Government Courts. These Tribunals are distinct and have a different historical origin. The origin and jurisdiction of Military Commissions have been treated in the first part of this paper. Military Government Courts are generally based upon the occupant's customary and conventional duty to govern occupied territory and to maintain law and order,

Military Government Courts were established for the occupied parts of Germany by Ordinance No. 2 made by General Eisenhower, as Supreme Commander of the Allied Expeditionary Force. The Supreme Commander also issued the Rules of Military Government Courts.

When, after the Berlin Declaration of 5th June 1945, General Eisenhower, in his capacity of Commander-in-Chief of the American  Forces in Europe, took over the administration of the American occupation zone, he made a Proclamation stating that, inter alia, all orders by the Military Government, including proclamations, laws, regulations and notices given by the Supreme Commander or on his instructions, remain in force in the American occupation zone unless repealed or altered by the Commander-in-Chief himself. The Military Government Ordinance No. 2 and the Rules of Procedure in Military Government Courts are, therefore, the basis of Military Government Courts established in the American zone of occupation.

Additional provisions regulating the trial of war crimes and related cases by United States Military Government Courts were made by a directive of General Eisenhower on 16th July 1945.

XVI. JURISDICTION OF MILITARY GOVERNMENT COURTS

Under Ordinance No. 2 there are three kinds of Military Government Courts : General Military Courts, Intermediate Military Courts and Summary Military Courts (Article I of Ordinance No. 2). The jurisdiction of these Courts is as follows :

Ratione personae : These Courts have jurisdiction over all persons in the occupied territory except allied military personnel.

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Ratione materiae : The Military Government Courts shall, under Article II (2), have jurisdiction over :

(i) all offences against the laws and usages of war ;

(ii) all offences under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces ;

(iii) all offences under the laws of the occupied territory or of any part thereof.

The directives of 16th July 1945 and of 26th June 1946 provide that as a matter of policy cases involving offences against laws and usages of war, or laws of the occupied territory, or any part thereof, commonly known as war crimes, together with such other related cases, within the jurisdiction of Military Government Courts, as may from time to time be determined by the Theatre Judge Advocate, committed prior to 9th May 1945, shall be tried before the specially appointed courts provided for in this directive.

XVII. THE COMPOSITION OF MILITARY GOVERNMENT COURTS

General Military Government Courts and Intermediate Military Government Courts consist of not fewer than five members and not fewer than three members respectively. Military Government Courts are appointed by Army/Military District Commanders ; the Orders appointing the Courts designate one or more Prosecutors or Defence Counsel. At least one officer with legal training is detailed as a member of such Courts.

XVIII. RULES OF PROCEDURE AND EVIDENCE

A Military Government Court shall in general admit oral, written or physical evidence having bearing on the issues before it, and may exclude any evidence which in its opinion is of no value as proof.

Every accused before a Military Government Court shall be entitled, inter alia, to be present at his trial, to give evidence and to examine or cross-examine any witness ; but the Court may proceed in the absence of the accused if the accused has applied for and been granted permission to be absent or if the accused is believed to be a fugitive from justice.

The Directive of 26th June 1946 (in para. 5 (c)) deals with " United Nations Observers." At the time of referring charges for trial " the Deputy Theatre Judge Advocate for War Crime's will determine those United Nations, if any, which in his judgement should be invited to send observers to the trial and will extend such invitations on behalf of the Theatre Commander."

As to the provisions of the Directive regarding " Mass Atrocity: Subsequent Proceedings," see supra, para. ix at pages 119-20.

XIX. POWERS OF SENTENCE

General Military Government Courts may impose any lawful sentence, including death.

p.124

XX. REVIEW OF SENTENCES

A person convicted by a Military Government Court has the right to petition for review of the finding or sentence. The petition must be filed with the Court within 10 days of conviction.

No sentence of a Military Government Court shall be carried into execution
until the case record shall have been examined by an Army/Military District
Judge Advocate and the sentence approved by the officer appointing the
Court or by the Officer Commanding for the time being. No sentence of
death shall be carried into execution until confirmed by higher authority.

The Reviewing authority may, upon review, inter alia : 

confirm or set aside any finding, 

substitute the finding of guilty by an amended charge, 

confirm, suspend, reduce, commute or modify any sentence or order, or increase any sentence, where a petition for review which is considered frivolous has been filed and the evidence in the case warrants such increase.

The reviewing authority may at any time remit or suspend any sentence or part thereof.

The proceedings shall riot be invalidated nor any findings or sentences disapproved for any error or omission, technical or otherwise, occurring at any such proceedings, unless in the opinion of the reviewing authority it shall appear that the error or omission has resulted in injustice to the accused.

Stuart.Stein@uwe.ac.uk
Last Updated 29/01/07 18:37:28
S D Stein
 
Faculty of Humanities, Languages and Social Science