That Ordinance No. 7 intended the development of Uniform Rules of Procedure after several tribunals were active in the trial of cases is indicated by provisions from three of its various articles. Article V, dealing with the powers of the Tribunals, provides in subdivision (f) that the Tribunals shall have the power "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 Tribunal or by the committee of presiding judges as provided in Article XIII."
Article XIII, after stating that the Secretary General shall organize and direct the work of the Central Secretariat of the Tribunals, provides that this Secretary General "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."
Article XIV (c) provides that the Secretariat shall "prepare and recommend uniform rules of procedure, not inconsistent with the provisions of this Ordinance."
The Committee of Presiding Judges (sec. XXIII) was organized on 17 February 1947, when three Military Tribunals were engaged in the trial of three different cases. The-three Tribunals and the cases they were assigned to try are shown by the following table:
| Military Tribunal | Popular Name of Case | Case No. |
| I | Medical | 1 |
| II | Milch | 2 |
| III | Justice | 3 |
The minutes of the organizational meeting of the Committee of Presiding Judges (sec. XXIII C) make no mention of any formal consideration of the rules of procedure. However, on the next day, 18 February 1947, Military Tribunal I issued codified and renumbered "Rules of Procedure for Military Tribunal I" (sec. III F), and on 18 and 24 February 1947, Military Tribunals III and II respectively, issued rules of procedure which were identical in substance with those adopted by Tribunal I (sec. IV B). Although these rules were not yet specifically called "uniform rules," the effect of uniform rules was achieved by this parallel action of the first three Tribunals in adopting the same rules. As Military Tribunal III stated in a note on the cover sheet of the rules it adopted on 19 February 1947:
"The following Rules are in substance the same as those promulgated by Tribunal I. For convenience of Court and Counsel the rules adopted by Tribunal I on 2 November 1946, 9 December 1946, 9 January 1947, and 10 February 1947 have been codified and are renumbered herein as rules 1 to 25 inclusive."
The next two amendments in the rules of procedure of the Nuernberg Military Tribunals were accomplished by executive sessions of the members and alternate judges of all the Tribunals constituted at the time in question. On 25 March 1947, Rule 26 - a new rule- was adopted at an executive session of all the members and alternate members, 12 judges in all, of Military Tribunals I, II, and III. The minutes of the executive session record that the meeting adopted an "amendment to the Rules of Procedure of the Military Tribunals," thus further treating the rules of procedure as uniform rules of common practice in all the trials. The minutes of this executive meeting are reproduced in subsection C. A few days later, on 1 April 1947, the Secretary General of the Tribunals issued a mimeographed compilation of Rules 1 to 26 inclusive, entitled "Uniform Rules of Procedure, Military Tribunals, Nuernberg, Revised to 1 April 1947." This is, so far as is known, the first use of the words "uniform rules" in the official papers of the Nuernberg trials apart from their use in Article XIV (c) of Ordinance No. 7.
The next amendment to the uniform rules of procedure was a revision of Rule 23 on 3 June 1947. It was accomplished at an executive session of four military tribunals, Tribunal IV having been established in the meantime and assigned the trial of the Flick case (Case 5). Altogether, 11 members and four alternate members of the four tribunals participated in the executive session which adopted this amendment. Judge Marshall of Tribunal III was absent due to illness. The minutes of this executive meeting are reproduced in subsection D. On this same date the Secretary General issued and circulated a second mimeographed edition of the uniform rules of procedure, entitled "Uniform Rules of Procedure, Military Tribunals, Nuernberg, Revised to 3 June 1947."
The last two changes in the uniform rules of procedure were accomplished by action of the Committee of Presiding Judges. Rule 10 was amended on 2 December 1947. The relevant extract from the Minutes of the Conference of Presiding Judges on that date is reproduced in subsection E. At that time there were seven military tribunals engaged in as many cases, which were at various stages of trial. The seven Military Tribunals and the cases then being tried are shown by the following table:
| Military Tribunal | Popular Name of Case | Case No. |
| III | Justice | 3 |
| IV | Flick | 5 |
| VI | Farben | 6 |
| V | Hostage | 7 |
| I | RuSHA | 8 |
| II | Einsatzgruppen | 9 |
| III A | Krupp | 10 |
Rule 23 was revised on 8 January 1948 by the Committee of Presiding Judges. The relevant extract from the minutes of the Conference of Presiding Judges is reproduced in subsection F. Since the last previous amendment to the uniform rules, judgments had been rendered in the Justice and Flick cases, and tribunals had been assigned to try the two last cases heard in Nuernberg, the Ministries and High Command cases (Case 11 and Case 12 respectively). Hence seven Tribunals were again represented on the Committee of Presiding Judges which effected the last change in the uniform rules of procedure. The third and last edition of the uniform rules was then published and circulated by the Secretary under the title "Uniform Rules of Procedure, Military Tribunals, Nuernberg, Revised to 8 January 1948." This last edition of the uniform rules is reproduced in section V. On 5 February 1948 the Committee of Presiding Judges adopted by order the uniform rules as revised to 8 January 1948, and recommended that the several tribunals likewise adopt and approve them. This order is reproduced in subsec. G. Between 6 February and 10 February 1948, each of the seven Tribunals adopted these uniform rules subsec. H. Materials in this section have been grouped to show the history of the general rules of procedure developed by concerted action of the Tribunals. Materials in a number of the later sections will deal with the application and further development of many of these general rules in the day-to-day practice before the individual tribunals.
The "Rules of Procedure for Military Tribunal I," as codified, numbered into 25 separate rules, and adopted on 18 February 1947, are reproduced in section III F. On the next day, 19 February 1947, Military Tribunal III adopted the same 25 rules of procedure as "Rules of Procedure for Military Tribunal I" (2 below). Several days later, on 24 February 1947, Military Tribunal II followed the example of Military Tribunal III in adopting these same 25 rules of procedure.
Note-The following Rules are in substance the same as those promulgated by Tribunal I. For convenience of Court and Counsel the rules adopted by Tribunal I on 2 November 1945, 9 December 1946, 9 January 1947, and 10 February 1947 have been codified and are renumbered herein as rules 1 to 25 inclusive.
[Here follows the text of rules 1 to 25 inclusive, which is identical with the text of the Rules of Procedure for Military Tribunal I, as codified on 18 February 1947 and as reproduced in section III F]
[Signed] CARRINGTON T. MARSHALLIt was moved, supported, and unanimously adopted that the following amendment to the Rules of Procedure of the Military Tribunals be declared effective as of 25 March 1947:
"26. Defense Counsel: Representing Multiple Defendants; Maximum Compensation
At no time shall defense counsel represent defendants, who have pleaded to the indictments, in more than two cases which are being tried concurrently in separate tribunals. It is permissible, however, for one counsel to represent two or more defendants in the same case.
No adjournment or delay shall be granted any defendant upon the ground that his counsel is engaged in the trial of another cause before a separate tribunal.
In no event shall a defense attorney receive as compensation for his services in one or more cases an amount in excess of seven thousand (7,000) reichsmarks per month."
[Signed] ROBERT M. TOMSIt was moved, supported, and adopted that Rule 23 of the Uniform Rules of Procedure of the Military Tribunals as Revised to I April 1947 be amended to read as follows:
"Rule 23. Interviewing of Defense Witnesses
In all cases where persons are detained in the Nuernberg jail either as witnesses or prospective witnesses for the defense, and counsel for the prosecution or the defense wish to interview or interrogate such witnesses, the following procedure shall be followed:
(1) Counsel desiring such interview or interrogation shall give at least forty-eight (48) hours' notice in writing to the opposite counsel, stating the title of the case, the name of the witness and the date and hour of the proposed interview or interrogation.
(2) In case the prosecution wishes to interview or interrogate such witness, counsel for the defendant or defendants involved shall have the right to be present. In case a defense counsel wishes to interview or interrogate such a witness, a representative of the prosecution shall be entitled to be present.
(3) Defense Information Center shall have the right to make rules or regulations not inconsistent herewith for the purpose of facilitating the operation of this rule. Written copies of such rules or regulations shall be served on the prosecution and posted in Defense Information Center.
(4) Any provisions of Rule 23 which are inconsistent with this amendment are hereby repealed, including all provisions therein concerning commissioners.
(5) This amendment shall be effective on and after the 3d day of June 1947.
Judge Beals, presiding, declared the motion carried 10 to 2.
[Signed] ROBERT M. TOMSIt was agreed that Rule 10 of the Uniform Rules of Procedure, Military Tribunals, Nuernberg, be revised to read as follows:
"Rule 10. Motions and Applications (except for witnesses and documents)
(a) All motions, applications (except applications for witnesses and documents) and other requests addressed to the Tribunal shall be filed with the Secretary General of Military Tribunals, at the Palace of Justice, Nuernberg, Germany.
(b) When any such motion, application, or other request is filed by the prosecution there shall be filed therewith five copies in English and two copies in German; when filed by the defense there shall be filed therewith one copy in German to which shall be added by the Secretary General eight copies in English.
(c) The Secretary General shall deliver a translated copy of such motion, application, or other request to the adverse party and note the fact of delivery, specifying the date, hour, and place, upon the original. The adverse party shall have 72 hours after delivery to file with the Secretary General his objections to the granting of such motion, application, or other request. If no objection is filed, 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.
(d) 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."
* * * * * * *Colonel Ray read a revision of Rule 23 of the Rules of Procedure.
Rule 23 was revised to read as follows:
"Rule 23. Interviewing of Witnesses
"In all cases where persons are detained in the Nuernberg jail either as witnesses or prospective witnesses, and counsel for the prosecution or the defense wish to interview or interrogate such witnesses, the following procedure shall be followed:
(1) Counsel desiring such interview or interrogation shall give at least forty-eight (48) hours' notice in writing to the opposite side, stating the title of the case, the name of the witness, and the date and hour of the proposed interview or interrogation, and no more. The proposed interview shall not involve; compensation for overtime. Prosecution shall give notice by filing such notice with the Defense Center. Defense counsel shall file such notice with Defense Center which shall give notice to the division of the prosecution concerned.
(2) In case the prosecution wishes to interview or interrogate such witness, counsel for the defendant or defendants involved shall have the right to be present. In case a defense counsel wishes to interview or interrogate such a witness, a representative of the prosecution shall be entitled to be present, but if the prosecution does not elect to be present at the time requested then the defense counsel may interview the witness without the presence of a representative of the prosecution.
(3) Defense Information Center shall have the right to make rules or regulations not inconsistent herewith for the purpose of facilitating the operation of this rule. Written copies of such rules or regulations shall be served on the prosecution and posted in Defense Information Center.
(4) Original Rule 23 and Rule 23 as amended on 3 June 1947 are superseded hereby.
(6) This Rule shall be effective on and after the 14th day of January 1948."
* * * * * * *In the Matter of the Adoption of Uniform Rules of Practice and Procedure for the United States Military Tribunals
By virtue of authority granted by Article V (f) of Military Government Ordinance No. 7, the Committee of Presiding Judges of the United States Military Tribunals (Nuernberg), hereby approves and adopts the annexed and attached "Uniform Rules of Procedure, Military Tribunals, Nuernberg," dated 8 January 1948, which are made a part hereof by reference. (7)
The Committee further recommends that said rules of practice and procedure be also approved and adopted by the several Tribunals presently constituting said United States Military Tribunals. (8)
[Signed] CURTIS G. SHAKEWhen on 5 February 1948 the Committee of Presiding Judges made its order recommending that the several Tribunals approve and adopt the Uniform Rules of Procedure as revised to 8 January 1948 (sec. IV G), there were seven Tribunals assigned to try the last seven war crimes cases held in Nuernberg. Within 1 week these Tribunals issued orders approving and adopting the uniform rules as recommended. The first Tribunal to act was Military Tribunal VI, then engaged in the trial of the I.G. Farben case. The order of Tribunal VI, dated 6 February 1948, is reproduced immediately below. The remaining six Tribunals, using substantially the same language as Tribunal VI, approved and adopted these revised uniform rules as indicated in the following table:
| Military Tribunal | Case No. | Popular Name of Case | Date of Order Approving and Adopting |
| V | 7 | Southeast or Hostage | 8 February 1948 |
| IV | 11 | Ministries | 8 February 1948 |
| I | 8 | RuSHA | 9 February 1948 |
| V-A | 12 | High Command | 9 February 1948 |
| II | 9 | Einsatzgruppen | 10 February 1948 |
| III | 10 | Krupp | 10 February 1948 |
United States Military Tribunal VI and the judges constituting said Tribunal, pursuant to Military Government Ordinance No. 7, Article V (f), hereby approves and adopts the attached "Uniform Rules of Procedure, Military Tribunals, Nuernberg," dated 8 January 1948, which said rules of practice and procedure are made a part of this order by reference. (10)
[Signed] CURTIS G. SHAKE(1) Official Record. Tribunal Records, volume 4, pages 18-28. Return to the Text
(2) Official Record, Tribunal Records, volume 1, page 96.
Rule 26 and the 26 rules previously adopted by Military Tribunals I, II and III in February 1947 (secs. III F and IV B) were published in mimeographed form by the Secretary General on 1 April 1947 as "Uniform Rules of Procedure, Military Tribunals, Nuernberg, revised to 1 April 1947." Return to the Text
(3) Official Record, Tribunal Records, volume 1 pages 98 and 99. Return to the Text
(4) Official Record, Tribunal Records, volume I, pages 136 and 136a. Return to the Text
(5) Ibid., pages 138,139. Return to the Text
(6) Official Record, Tribunal Records. volume 4, page 77. Return to the Text
(7) Since these uniform rules were the last revision of the uniform rules published in Nuernberg, and were adopted by each of the seven last Tribunals setting in Nuernberg war crimes trials,: they are reproduced separately in section V. Return to the Text
(8) This order followed a decision taken by the Committee of Presiding Judges at a session on 4 February 1948. Concerning this matter the minutes of this meeting state: "3. Adoption of Rules of Procedure: It was moved by Judge Anderson, seconded by Judge Wyatt, and unanimously adopted, that the Committee of Presiding Judges ratify and approve the Rules of Procedure and Practice for the Tribunals distributed by the Secretary Generals Office on 8 January 1948; and that the committee recommend to the members of the several Tribunals that said rules be likewise approved and adopted by the seven Tribunals currently sitting and the members thereof. Return to the Text
(9) Official Record, Tribunal Records, volume 4, pace 78. Return to the Text
(10) The rules of procedure here referred to are reproduced in full in section V. Return to the Text
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Source: Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 Vol XV. Procedure, Practice and Administration Washington, DC : Government Printing Office, 1946-1949 |