. NMT05-T1231
Volume VI · Page 1231
| the documents referred to we may find these official titles, as they
are used, confusing in relation to the subjects covered thereby. In these
circumstances the nature of the act itself, rather than the title indicated by
the document, will best serve to show the true capacity in which the officer
was acting. The foregoing summary brings out the salient facts bearing upon the status of Military Tribunal IV, which tried and sentenced Flick. He contends that it was not an international court, but an illegally constituted body, wrongfully exercising power as a military tribunal. The argument in support of this contention overlooks important facts. It pursues the form, rather than the substance of things. If the court was not a tribunal of the United States, its actions cannot be reviewed by any court. (Hirota v. MacArthur, supra.) If it was an international tribunal, that ends the matter. We think it was, in all essential respects, an international court. Its power and jurisdiction arose out of the joint sovereignty of the four victorious Powers. The exercise of their supreme authority became vested in the Control Council. That body enacted Law No. 10, for the prosecution of war crimes. It vested in the Commander for the American Zone the authority to determine and designate, for his zone, the tribunal by which accused persons should be tried and the rules and procedure to govern in such cases. Pursuant to that power, and agreeably to rules duly promulgated by Ordinance No. 7, the Zone Commander constituted Military Tribunal IV, under whose judgment Flick is now confined. Thus the power and jurisdiction of that Tribunal stemmed directly from the Control Council, the supreme governing body of Germany, exercising its authority in behalf of the Four Allied Powers. It follows that we cannot accept the argument that the sole authority for establishment of international courts for the trial of Axis war criminals was the London Agreement. That Agreement only provided for a tribunal (and, if necessary, other identical tribunals,) to be established, after "consultation" with the Control Council, for the trial of a special class of war criminals. (Art. 1.) The Agreement was without prejudice to "the jurisdiction or the powers of any national or occupation court established or to be established in any Allied territory or in Germany for the trial of war criminals." (Art. 6.) No similar tribunal was ever established under the London Agreement. We know that the only one which was established tried but the single case of Goering, et al. Control Council Law No. 10, the basic authority for Military Tribunal IV, was enacted after the London Agreement. As heretofore shown, that law, in addition to defining war crimes, empowered each Zone Commander, for his zone, to designate the |
