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Volume VI · Page 1232
| tribunals to try such cases and to determine the rules and procedure
for such tribunals. It also provided that nothing therein should impair the
jurisdiction of the International Military Tribunal established under the
London Agreement. In connection with this proviso we should note that the
declared purpose of Control Council Law No. 10 was to give effect to the London
Agreement and "to establish a uniform legal basis in Germany for the
prosecution of war criminals * * * other than those dealt with by the
International Military Tribunal, * * *." * So we think there is no conflict
between the two enactments. Rather do they complement each other. If,
perchance, there be any point of conflict, it would seem that the terms of Law
No. 10 should prevail, not only because it was enacted later, but by reason of
these supporting circumstances: First, the President's Directive of October 17,
1945, (supra), issued through his Joint Chiefs of Staff to the
Commanding General of the American Forces, recognizing the Control Council as
the "supreme organ of control over Germany," and the American Commanding
General as "clothed with supreme legislative, executive, and judicial
authority" in the area occupied by his command, and Second, the President',
nomination of the jurists who were designated by the Commanding General as
members of Military Tribunal IV. (Executive Order, May 31, 1947, supra.) Those
acts of the Executive, in the exercise of his war powers, furnish strong
support to the series of events culminating in the establishment of Military
Tribunal IV. Concededly, the International Military Tribunal, established under the London Agreement, was a court of international character. How, then, can it be said that Military Tribunal IV was not of the same character, with its existence and jurisdiction rooted in the sovereignty of the Four Powers, exercised jointly through the supreme governing authority of the Control Council? We think, therefore, that the tribunals established under its authority were legitimate and appropriate instruments of judicial power for the trial of war criminals. (See 39 Am. J. Int'1. Law, 1945, at p. 525. ) Accordingly, we are led to the final conclusion that the tribunal which tried and sentenced Flick was not a tribunal of the United States. Hence the District Court was without power to review its judgment and sentence. (Hirota case, supra.) Therefore, the order of the District Court dismissing the petition for the writ is |
|
| Affirmed. |
* Italics supplied.
