Final Report Appendix L: Ordinance
The purpose of this Ordinance is to provide for the
establishment of military tribunals which shall have power to try and
punish persons charged with offenses recognized as crimes in Article
II of Control Council Law No. 10, including conspiracies to commit
any such crimes. Nothing herein shall prejudice the jurisdiction or
the powers of: other courts established or which may be established
for the trial of any such offenses.
a) Pursuant to the powers of the Military Governor
for the United States Zone of Occupation within Germany and further
pursuant to the powers conferred upon the Zone Commander by Control
Council Law No. 10 and Articles 10 and 11 of the Charter of the
International Military Tribunal annexed to the London Agreement of 8
August 1945 certain tribunals to be known as "Military Tribunals" shall
be established hereunder.
b) Each such tribunal shall consist of three or more
members to be designated by the Military Governor. One alternate member
may be designated to any tribunal if deemed advisable by the Military
Governor. Except as provided in subsection (c) of this Article, all
members and alternates shall be lawyers who have been admitted to practice,
for at least five years, in the highest courts of one of the United
States or its territories or of the District of Columbia, or who have
been admitted to practice in the United States Supreme Court.
c) The Military Governor may in his discretion enter
into an agreement with one or more other zone commanders of the member
nations of the Allied Control Authority providing for the Joint trial
of any case or cases. In such cases the tribunals shall consist of three
or more members us may be provided in the agreement. In such cases the
tribunals may include properly qualified lawyers designated by the other
d) The Military Governor shall designate one of the
members of the tribunal to serve as the presiding judge.
e) Neither the tribunals nor the members of the tribunals
or the alternates may be challenged by the prosecution or by the defendants
or their counsel.
f) In case of illness of any member of a tribunal or
his incapacity for some other reason, the alternate, if one has been
designated, shall take his place as a member in the pending trial. Members
may be replaced for reasons of health or for other good reasons, except
that no replacement of a member may take place, during a trial, other
than by the alternate. If no alternate has been designated, the trial
shall be continued to conclusion by the remaining members.
g) The presence of three members of the tribunal or
of two members when authorized pursuant to subsection (f) supra shall
be necessary to constitute a quorum. In the case of tribunals designated
under (c) above the agreement shall determine the requirements for a
h) Decisions and Judgments, including convictions and
sentences, shall be by majority vote of the members. If the votes of
the members are equally divided, the presiding member shall declare
a) Charges against persons to be tried in the tribunals
established hereunder shall originate in the Office of the Chief of
Counsel for War Crimes, appointed by the Military Governor pursuant
to Paragraph 3 of Executive Order Numbered
9679 of the President of the United States dated 16 January 1946.
The Chief of Counsel for War Crimes shall determine the persons to be
tried by the tribunals and he or his designated representative shall
file the indictments with the Secretary General of the tribunals (See Article XIV, infra) and shall conduct the prosecution.
b) The Chief of Counsel for War Crimes, when in his
judgment it is advisable, may invite one or more United Nations to designate
representatives to participate in the prosecution of any case.
In order to ensure fair trial for the defendants, the
following procedure shall be followed:
a) A defendant shall be furnished, at a reasonable
time before his trial, a copy of the indictment and of all documents
lodged with the indictment, translated into a language which he understands.
The indictment shall state the charges plainly, concisely and with sufflcient
particulars to inform defendant of the offenses charged.
b) The trial shall be conducted in, or translated into,
a language which the defendant understands.
c) A defendant shall have the right to be represented
by counsel of his own selection, provided such counsel shall be a person
qualified under existing regulations to conduct cases before the courts
of defendant's country, or any other person who may be specially authorized
by the tribunal. The tribunal shall appoint qualified counsel to represent
a defendant who is not represented by counsel of his own selection.
d) Every defendant shall be entitled to be present
at his trial except that a defendant may be proceeded against during
temporary absences if in the opinion of the tribunal defendant's interests
will not thereby be impaired, and except further as provided in Article
VI (c). The tribunal may also proceed in the absence of any defendant
who has applied for and has been granted permission to be absent.
e) A defendant shall have the right through his counsel
to present evidence at the trial in support of his defense, and to cross-examine
any witness called by the prosecution.
f) A defendant may apply in writing to the tribunal
for the production of witnesses or of documents. The application shall
state where the witness or document is thought to be located and shall
also state the facts to be proved by the witness or the document and
the relevancy of such facts to the defense. If the tribunal grants the
application, the defendant shall be given such aid in obtaining production
of evidence as the tribunal may order.
The tribunals shall have the power----
(a) to summon witnesses to the trial, to require their
attendance and testimony and to put questions to them;
(b) to interrogate any defendant who takes the stand
to testify in his own behalf, or who is called to testify regarding
c) to require the production of documents and other
d) to administer oaths;
e) to appoint officers for the carrying out of any
task designated by the tribunals including the taking of evidence on
f) to adopt rules of procedure not inconsistent with
this Ordinance. Such rules shall be adopted, and from time to time as
necessary, revised by the members of the tribunals or by the committee
of presiding judges as provided in Article XIII.
The tribunals shall---
a) confine the trial strictly to an expeditious hearing
of the issues raised by of the charges;
b) take strict measures to prevent any action which
will cause unreasonable delay, and rule out irrelevant issues and statements
of any kind whatsoever;
c) deal summarily with any contumacy, imposing appropriate
punishment, including the exclusion of any defendant or his counsel
from some or all further proceedings, but without prejudice to the determination
of the charges.
The tribunals shall not be bound by technical rules
of evidence. They shall adopt and apply to the greatest possible extent
expeditious and nontechnical procedure, and shall admit any evidence
which they deem to have probative value. Without limiting the foregoing
general rules, the following shall be deemed admissible if they appear
to the tribunal to contain information of probative value relating to
the charges: affidavits, depositions, interrogations and other statements,
diaries, letters, the records, findings, statements and judgments of
the military tribunals and the reviewing and conffrming authorities
of any of the United Nations, and copies of any document or other secondary
evidence of the contents of any document, if the original is not readily
available or cannot be produced without delay. The tribunal shall afford
the opposing party such opportunity to question the authenticity or
probative value of such evidence as in the opinion of the tribunal the
ends of justice require.
The tribunals may require that they be informed of
the nature of any evidence before it is offered so that they may rule
upon the relevance thereof.
The tribunals shall not require proof of facts of common
knowledge but shall take judicial notice thereof. They shall also take
judicial notice of official governmental documents and reports of any
of the United Nations, including the acts and documents of the committees
set up in the various Allied countries for the investigation of war
crimes, and the records and findings of military or or other tribunals
of any of the United Nations.
The determinations of the International Military Tribunal
in the judgments In Case No. 1 that invasions, aggressive acts, aggressive
wars, crimes, atrocities or inhumane acts were planned or occurred,
shall be binding on the tribunals established hereunder and shall not
be questioned except insofar as the participation therein or knowledge
thereof by any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No. 1 constitute
proof of the facts stated, in the absence of substantial new evidence
to the contrary.
The proceedings at the trial shall take the following
a) The tribunal shall inquire of each defendant whether
he has received and had an opportunity to read the indictment against
him and whether he pleads "guilty" or "not guilty."
b) The prosecution may make an opening statement.
c) The prosecution shall produce its evidence subject
to the cross examination of its witnesses.
d) The defense may make an opening statement.
e) The defense shall produce its evidence subject to
the cross examination of lts witnesses.
f ) Such rebutting evidence as may be held by the tribunal
to be material may be, produced by either the prosecution or the defense.
g) The defense shall address the court.
h) The prosecution shall address the court.
i) Each defendant may make a statement to the tribunal.
j) The tribunal shall deliver judgment and pronounce
A Central Secretariat to assist the tribunals to be
appointed hereunder shall be established as soon as practicable. The
main office of the Secretariat shall be located in Nuernberg. The Secretariat
shall consist of a Secretary General and such assistant secretaries,
military officers, clerks, interpreters and other personnel as may be
The Secretary General shall be appointed by the Military
Governor and shall organize and direct the work of the Secretariat.
He shall be subject to the supervision of the members of the tribunals,
except that when at least three tribunals shall be functioning, the
presiding judges of the several tribunals may form the supervisory committee.
The Secretariat shall:
a) Be responsible for the administrative and supply
needs of the Secretariat and of the several tribunals.
b) Receive all documents addressed to tribunals.
c) Prepare and recommend uniform rules of procedure,
not inconsistent with the provisions of this Ordinance.
d) Secure such information for the tribunals as may
be needed for the approval or appointment of defense counsel.
e) Serve as liaison between the prosecution and defense
f) Arrange for aid to be given defendants and the prosecution
in obtaining production of witnesses or evidence as authorized by the
g) Be responsible for the preparation of the records
of the proceedings before the tribunals.
h) Provide the necessary clerical, reporting and interpretative
services to the tribunals and its members, and perform such other duties
as may be required for the efficient conduct of the proceedings before
the tribunals, or as may be requested by any of the tribunals.
The judgments of the tribunals as to the guilt or the
innocence of any defendant shall give the reasons on which they are
based and shall be final and not subject to review. The sentences imposed
may be subject to review as provided in Article XVII,
The tribunal shall have the right to impose upon the
defendant, upon conviction, such punishment as shall be determined by
the tribunal to be just, which may consist of one or more of the penalties
provided in Article II, Section 3 of Control Council
Law No. 10.
a) Except as provided in (b) infra, the record of each
case shall be forwarded to the Military Governor who shall have the
power to mitigate, reduce or otherwise alter the sentence imposed by
the tribunal, but may not increase the severity thereof.
b) In cases tried before tribunals authorized by Article
II (c) the sentence shall be reviewed jointly by the zone commanders
of the nations involved, who may mitigate, reduce or otherwise alter
the sentence, by majority vote, but may not increase the severity thereof.
If only two nations are represented, the sentence may be altered only
by the consent of both zone commanders.
No sentence of death shall be carried into execution
unless and until confirmed in writing by the Military Governor. In accordance
with Article III, Section 5
of Law No. 10, execution of the death sentence may be deferred by
not to exceed one month after such confirmation if there is reason to
believe that the testimony of the convicted person may be of value in
the investigation and trial of other crimes.
Upon the pronouncement of a death sentence by a tribunal
established thereunder and pending confirmation thereof, the condemned
will be remanded to the prison or place where he was confined and there
be segregated from the other inmates, or be transferred to a more appropriate
place of confinement.
Upon the confirmation of a sentence of death the Military
Governor will issue the necessary orders for carrying out the execution.
Where sentence of confinement for a term of years has
been imposed the condemned shall be confined in the manner directed
by the tribunal imposing sentence. The place of confinement may be changed
from time to time by the Military Governor.
Any property declared to be forfeited or the restitution
of which is ordered by a tribunal shall be delivered to the Military
Governor, for disposal in accordance with Control
Council Law No. 10, Article II (3).
Any of the duties and functions of the Military Governor
provided for herein may be delegated to the Deputy Military Governor.
Any of the duties and functions of the Zone Commander provided for herein
may be exercised by and in the name of the Military Governor and may
be delegated to the Deputy Military Governor.
This Ordinance becomes effective 18 October 1946.
BY ORDER OF MILITARY GOVERMENT