These observations are based upon the study of voluminous records of German Civil and Criminal Courts made by the author in the course of his work as a Criminal Investigator, Legal Officer, Chief of the German Courts Branch, and chief of the Military Government Courts Branch, Legal Division, Office of Military Government for Bavaria.

² Ebenstein, W., The Nazi State, New York, 1943, Chap. V, p. 69 Google Scholar.

³ The author made these observations during almost a year’s service as member of various Military Government Courts. The reason for the average defendant’s attitude becomes quite clear in view of the conditions existing in the courts under the Nazi regime. If a non-Party member commenced any type of litigation, against a Party member the Party member generally prevailed regardless of the merits. If he did not prevail the judge was generally disciplined and/or removed.

⁴ Military Government—Germany, Supreme Commander’s Area of Control, Proclamation No. 1, Military Government Regulations 23-200. Hereafter, Military Government Regulations will be cited as MGR. The Military Government Regulations supersede all other directives and manuals and constitute the governing law for the occupation of the United States Zone of Germany: MGR 1-103.

⁵ Military Government—Germany, Supreme Commander’s Area of Control, Law No. 1, “Abrogation of Nazi Law,” MGR 23-201.

⁶ Military Government—Germany, Supreme Commander’s Area of Control, Law No. 2, “German Courts,” MGR 23-202.

⁷ Military Government—Germany, Supreme Commander’s Area of Control, Ordinance No. 1, “Crimes and Offenses,” MGR 23-214.

⁸ Military Government—Germany, Supreme Commander’s Area of Control, Ordinance No. 2, “Military Government Courts,” MGR 23-215.

⁹ “The Allied Forces serving under my command have now entered Germany. We come as conquerors but not as oppressors. In the area of Germany occupied by the forces under my command we shall obliterate Nazism and German Militarism. We shall overthrow the Nazi rule, dissolve the Nazi Party and abolish the cruel, oppressive, and discriminatory laws and institutions which the Party has created. We shall eradicate that German Militarism which has so often disrupted the peace of the world. Military and Party Leaders, the Gestapo, and others suspected of crimes and atrocities will be tried and, if guilty, punished as they deserve.”

¹⁰ “* * * Military Government Courts will be established for the punishment of off enders. ... All German courts * * * within the occupied territory are suspended. The Volksgerichthof, the Sondergerichte, the SS Police Courts and other special courts are deprived of authority throughout the occupied territory. Reopening of the criminal and civil courts * * * will be authorized when conditions permit.”

¹¹ Above, note 5.

¹² Above, note 6.

¹³ Above, note 7. This Ordinance is divided into two Articles. Article I deals with capital offenses and includes such crimes as espionage, sabotage, armed attack on or resistance to the Allied Forces, unlawful or unauthorized possession or use of firearms, ammunition, or explosives, plunder, pillage or looting, and others. Most of the prosecutions under this Article have been for unlawful possession of firearms.

Article II lists the offenses which are punishable by any penalty other than death. They include disobedience of any proclamation, law, ordinance, notice or order of the Military Government, circulation without a permit, failure to be in possession of a valid identity card, bribery, corruption or intimidation of members of or persons acting on behalf of the Military Government, unauthorized possession or control of property of the Allied Forces, knowingly making any false statements to any member of the Allied Forces in a matter of official concern, false assumption of authority from the Allied Forces or wrongful possession or control of an Allied uniform, resisting arrest, etc.

¹⁴ There have actually been very few death penalties imposed by Military Government Courts. More serious offenders have been sentenced to prison terms of from ten to twenty years.

¹⁵ Above, note 8.

¹⁶ Above, note 7.

¹⁷ Above, note 8, Art. III.

¹⁸ Above, note 8, Art. III, par. 3(d); MGR 5-331c.

¹⁹ Above, note 8, Art. III, par. 3(e); MGR 5-331d(l).

²⁰ Above, note 8, par. 3(f) ; MGR 5-331e. Thus where a German citizen is tried by a Military Government Court for violation of a section of the German Criminal Code, such as theft from another German, or black market activities, and the German Code provides for punishment of one year for that offense, the Military Government Court is not bound by the limitation contained in the German Code, but may impose any sentence within the limits of its own powers.

²¹ MGR 5-324.1.

²² MGR 5-325.

²³ Above, note 22, par. b.

²⁴ MGR 5-326b, c. The court, even if it decides to report the case for reference to a higher court, may receive evidence for the record if there is doubt of the future availability of witnesses. This provision is important, since there is often a considerable lapse of time between the preliminary hearing in the Summary Court and the trial in the higher court. Having perpetuated the testimony in the Summary Court, the higher court can proceed with the trial of the accused before it, even though important witnesses are no longer available. MGR 5-328 provides that the record of any evidence taken in the Summary Court will be made available to the Intermediate or General Court, and if any witness is unavailable, the Intermediate or General Court may, after hearing the prosecution and defense, receive in evidence the record of his testimony in the lower court.

²⁵ Above, note 8.

²⁶ MGR 5-300.2. To clarify the chain of command, the Military Governor, who is also the Theater Commander, is the supreme authority in the United States Zone of Germany. His authority is delegated to the Directors of the Regional or State Offices of Military Government, of which there are three—Greater Hessen, Württemberg-Baden and Bavaria. Recovered military personnel of the United Nations are former prisoners of war of the German army. See below, note 34.

^26a MGW 5-300.2.

²⁷ MGR 5-383.1.

²⁸ In some instances, Repatriation Officers and UNRRA officials in charge of Displaced Persons Camps impose administrative penalties upon recalcitrant inmates, usually by way of depriving them of certain privileges, such as passes.

²⁹ Above, note 27. At the Yalta Conference it was agreed that Russia would relinquish its jurisdiction over American nationals in its zone and the United States would afford like treatment to Russian nationals in the United States zone.

³⁰ Above, note 27. Displaced Persons, other than Soviet Citizens who commit offenses, may be tried and punished by an appropriate Military Government Court. MGR 5-383.2.

Displaced Persons are defined as “civilians located outside the national boundaries of their own country by reasons of war who are: a) desirous but unable to return home or to ‘find homes without assistance; or b) to be returned to ex-enemy territory”: MGR 20-100. United Nations Displaced Persons are displaced persons of the United Nations and associated nations: MGR 20-100.1. Persecutees assimilated in status to United Nations Displaced Persons are 1. persons whose loyalty to the Allied cause is established; 2. neutral displaced persons as authorized; and 3. stateless persons, MGR 20-201a.

³¹ Military Government legislation consists of proclamations, laws, ordinances, notices, directives, orders, and regulations. MGR 5-100a-h.

³² MGR 5-300.3.

³³ “At his discretion, the theater commander may confer Jurisdiction upon military . . . courts to hear and determine civil cases or may establish separate courts for such cases . . . “, War Department Field Manual 27-5, December, 1943, “Military Government and Civil Affairs,” par. 42e, pp. 53, 54.

³⁴ On May, 21, 1946, the Military Government promulgated Ordinance No. 6, which set up a Military Government Court for Civil actions to adjudicate controversies arising out of the ownership or operation of automobiles by American nationals. This court, composed of three lawyers, will have headquarters at Stuttgart, but will sit in various places as the occasion demands. See “ Monthly Report of the Military Governor, Military Government of Germany, U. S. Zone,” 20 June 1946, No. 11, A. 6.

³⁵ The immediate problem involves currency and exchange difficulties.

³⁶ Above, note 8, Art. IV, par. 4.

³⁷ Above, note 8.

³⁸ Above, note 8.

³⁹ There is generally a Summary Court in each County in the United States Zone. Since all cases come before this court in the first instance for a preliminary hearing the work of the Summary Court is far greater in volume than that of the other two courts. Two or three Intermediate Courts and one General Court usually sit in the same area as twenty-five to thirty Summary Courts. The latter have a larger personnel but this advantage is reduced by the stricter evidentiary requirements and the necessity for formal records in the Intermediate and General Courts.

During the period from October 10, 1945, to January 31, 1946, 35,318 persons were tried by Summary Courts in the United States Zone, exclusive of Berlin. Of this number, 29,300, or 83 percent, were convicted. During the same period Intermediate Courts tried 921 persons, of whom 606 or 64 percent were convicted, and General Courts tried 229 persons, of whom 137, or 60 percent, were convicted. Monthly Report of the Military Governor, U. S. Zone, Legal and Judicial Affairs, 20 April 1946, No. 9, p. 4.

⁴⁰ Above MGR 5-304.

⁴¹ Above, note 8.

⁴² MGR 5-333.1.

⁴³ MGR 5-301.1.

⁴⁴ A Regierungsbezirk is an intermediate governmental district which, under German governmental procedures, enforces locally the State and National policy. Since no national government now exists in Germany, the State is the highest level of government. Military Government echelons were created at both State and Regierungsbezirk level.

⁴⁵ Effective June 30, 1946, Regierungsbezirk functional Military Government teams have ceased to exist and legal functions previously performed at that level were transferred to the Regional or State Offices or Military Government.

⁴⁶ Above, note 8.

⁴⁷ These rights are printed on the reverse side of the summons and charge sheet forms, copies of which are served upon the accused in advance of trial.

It is worthy of note that an accused is not permitted to be sworn, either during his preliminary hearing or when he takes the stand, if he elects to testify: MGR 5-327, 354.6. However, he has no privilege against self-incrimination and the Court is not permitted to warn him that he is not required to answer questions when put to him. He will not be compelled to answer questions nor may he be sentenced for contempt for refusing to answer. Upon a refusal to answer any questions the Court may draw an unfavorable inference : MGR 5-354.5.

⁴⁸ MGR 5-310.1.

⁴⁹ MGR 5-311.1. A permanent Clemency Board was set up in June, 1946, with authority throughout the U. 8. Zone to grant pardon, parole, or amnesty. See “Monthly Report of the Military Governor”, Military Government of Germany, U. S. Zone, 20 June 1946.

⁵⁰ MGR 5-311.2.

⁵¹ Above, note 50.

⁵² Above, note 50.

⁵³ Above, note 50; MGR 5-312.1, 312.2.