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The Nuremberg Military Tribunals and the Origins of International Criminal Law$

Kevin Jon Heller

Print publication date: 2011

Print ISBN-13: 9780199554317

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199554317.001.0001

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(p.483) Appendix E: Rules of Procedure Adopted by Military Tribunal I

(p.483) Appendix E: Rules of Procedure Adopted by Military Tribunal I

Source:
The Nuremberg Military Tribunals and the Origins of International Criminal Law
Publisher:
Oxford University Press

Rule 1. Authority to Promulgate Rules

The present rules of procedure of the Military Tribunal constituted by General Order No. 68 of the Office of Military Government for Germany (US) (hereinafter called “Military Tribunal I” or “the Tribunal”) are hereby promulgated by the Tribunal in accordance with the provisions of Article V (f) of Military Government Ordinance No. 7 issued pursuant to the powers conferred by Control Council Law No. 10.

Rule 2. Languages in Which Pleadings, Documents, and Rules Shall Be Transcribed

When any rule of procedure adopted by Military Tribunal I directs or requires that a defendant in any prosecution before the Tribunal shall be furnished with a copy of any pleading, document, rule, or other instrument in writing, such rule shall be understood to mean that such defendant shall receive a true and correct copy of such pleading, document, rule, or other instrument, written in the English language, and also a written translation thereof in a language which the defendant understands.

Rule 3. Notice to Defendants

  1. (a) The Marshal of Military Tribunals, or his duly authorized deputy, shall make service of the indictment upon a defendant in any prosecution before the Tribunal by delivering to and leaving with him (1) a true and correct copy of the indictment and of all documents lodged with the indictment, (2) a copy of Military Government Ordinance No. 7, (3) a copy of Control Council Law No. 10, and (4) a copy of these Rules of Procedure.

  2. (b) When such service has been made as aforesaid, the Marshal shall make a written certificate of such fact, showing the day and place of service, and shall file the same with the Secretary General of Military Tribunal.

  3. (c) The certificate, when filed with the Secretary General, shall constitute a part of the record of the cause.

Rule 4. Time Intervening Between Service and Trial

A period of not less than 30 days shall intervene between the service of the indictment upon a defendant and the day of his trial pursuant to the indictment.

(p.484) Rule 5. Notice of Amendments or Additions to Original Indictment

  1. (a) If before the trial of any defendant the Chief of Counsel for War Crimes offers amendments or additions to the indictment, such amendments or additions, including any accompanying documents, shall be filed with the Secretary General of Military Tribunals and served upon such defendant in like manner as the original indictment.

Rule 6. Defendant to Receive Certain Additional Documents on Request.

  1. (a) A defendant shall receive a copy of such Rules of Procedure or amendments thereto as may be adopted by the Tribunal from time to time.

  2. (b) Upon written application by a defendant or his counsel lodged with the Secretary General for a copy of (1) the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945, or (2) the judgment of the International Military Tribunal of 30 September and 1 October 1946, the same shall be furnished to such defendant, without delay.

Rule 7. Right to Representation by Counsel

  1. (a) A defendant shall have the right to conduct his own defense or to be represented by counsel of his own selection, provided such counsel is a person qualified under existing regulations to conduct cases before the courts of defendant’s country, or is specially authorized by the Tribunal.

  2. (b) Application for particular counsel shall be filed with the Secretary General promptly after service of the indictment upon the defendant.

  3. (c) The Tribunal will designate counsel for any defendant who fails to apply for particular counsel, unless the defendant elects in writing to conduct his own defense.

  4. (d) Where particular counsel is requested by a defendant but is not available or cannot be found within 10 days after application therefor has been filed with the Secretary General, the Tribunal will designate counsel for such defendant, unless the defendant elects in writing to conduct his own defense. If thereafter, before trial, such particular counsel is found and is available, or if in the meanwhile a defendant selects a substitute counsel who is found to be available, such particular counsel, or substitute, may associated with or substituted for counsel designated by the Tribunal; provided that (1) only one counsel shall be permitted to appear at the trial for any defendant, except by special permission of the Tribunal, and (2) no delay will be allowed for making such substitution or association.

Rule 8. Order at the Trial

In conformity with and pursuant to the provisions of Articles IV and VI of Military Government Ordinance No. 7, the Tribunal will provide for maintenance of order at the trial.

(p.485) Rule 9. Oath; Witnesses

  1. (a) Before testifying before the Tribunal each witness shall take such oath or affirmation or make such declaration as is customary and lawful in his own country.

  2. (b) When not testifying, the witnesses shall be excluded from the courtroom. During the course of any trial, witnesses shall not confer among themselves before or after testifying.

Rule 10. Applications and Motions, Before Trial

  1. (a) All motions, applications, or other requests addressed to the Tribunal shall be made in writing and filed, together with a copy thereof, with the Secretary General of Military Tribunals, at the Palace of Justice, Nuernberg, Germany.

  2. (b) When any motion, application, or other request has been filed, the Secretary General shall deliver a copy thereof to the adverse party and note the fact of delivery, specifying date and place, upon the original. The adverse party shall have 2 days after delivery within which to file with the Secretary General his objections to the granting of such motion, application, or other request. If no objection is filed within the time allowed, the presiding judge of the Tribunal will make the appropriate order on behalf of the Tribunal. If objections are filed the Tribunal will consider the objections and determine the questions raised.

  3. (c) Delivery of a copy of any such motion, application, or other request to counsel of record for the adverse party, shall constitute delivery to such adverse party.

Rule 11. Rulings During the Trial

The Tribunal will rule upon all questions arising during the course of the trial. If such course is deemed expedient, the Tribunal will order the clearing or closing of the courtroom while considering such questions.

Rule 12. Production of Evidence for a Defendant

  1. (a) A defendant may apply to the Tribunal for the production of witnesses, or of documents on his behalf, by filing his application therefor with the Secretary General of Military Tribunals. Such application shall state where the witness or document is thought to be located, together with a statement of the last known location thereof. Such application shall also state the general nature of the evidence sought to be adduced thereby, and the reason such evidence is deemed relevant to the defendant’s case.

  2. (b) The Secretary General shall promptly submit any such application to the Tribunal, and the Tribunal will determine whether or not the application shall be granted.

  3. (c) If the application is granted by the Tribunal, the Secretary General shall promptly issue a summons for the attendance of such witness or the production of such documents, and inform the Tribunal of the action taken. Such summons shall be served in such manner as may be provided by the appropriate occupation authorities to ensure its enforcement, and the Secretary General shall inform the Tribunal of the steps taken.

  4. (p.486) (d) If the witness or the document is not within the area controlled by the United States Office of Military Government for Germany, the Tribunal will request through proper channels that the Allied Control Council arrange for the production of any such witness or document as the Tribunal may deem necessary to the proper presentation of the defense.

Rule 13. Records, Exhibits, and Documents

  1. (a) An accurate stenographic record of all oral proceedings shall be maintained. Exhibits shall be suitably identified and marked as the Tribunal may direct. All exhibits and transcripts of the proceedings, and such other material as the Tribunal may direct, shall be filed with the Secretary General and shall constitute a part of the record of the cause.

  2. (b) Documentary evidence or exhibits may be received in the language of the document, but a translation thereof into a language understood by the adverse party shall be furnished to such part:

  3. (c) Upon proper request, and approval by the Tribunal, copies of all exhibits and transcripts of proceedings, and such other matter as the Tribunal may direct to be filed with the Secretary General, and all official acts and documents of the Tribunal, may be certified by said Secretary General to any government, to and other tribunal, or to any agency or person as to whom it is appropriate that copies of such documents or representations as to such acts be supplied.

Rule 14. Withdrawal of Exhibits and Documents, and Substitution of Photostatic Copies Therefor

If it be made to appear to the Tribunal by written application that one of the government signatories to the Four Power Agreement of 8 August 1945, or any other government having received the consent of the said four Signators Powers, desires to withdraw from the records of any cause, and preserve, any original document of file with the Tribunal, and that no substantial injury will result thereby, the Tribunal may order any such original document to be delivered to the applicant, and a photostatic copy thereof, certified by the Secretary General, to be substituted in the record therefor.

Rule 15. Effective Date and Powers of Amendment and Addition

These rules shall take effect upon their approval by the Tribunal. Nothing herein contained shall be construed to prevent the Tribunal at any time in the interest of fair and expeditious procedure, from departing from, amending, or adding to these rules, either by general rules or special orders for particular cases, in such form and on such notice as the Tribunal may prescribe.

Promulgated and adopted by Military Tribunal I, this 2d day of November, A.D. 1946, at the Palace of Justice, Nuernberg, Germany.

[Signed] WALTER B. BEALS, Presiding Judge

[Signed] HAROLD L. SEBRING, Judge

[Signed] JOHNSON T. CRAWFORD, Judge

[Signed] VICTOR C. SWEARINGEN, Alternate Judge

ATTEST: [Signed] CHARLES E. SANDS

Acting Secretary General for

Military Tribunals