Prosecutor of the United States Military Commission v. Lothar Eisentrager et al.

Court	United States Military Commission, China
Case number	84
Decision title	Judgment
Decision date	14 January 1947
Parties	Lothar Eisentrager alias Ludwig Ehrhardt Franz Siebert Herbert Glietsch Johannes Otto Erich Heise Oswald Ulbricht Hanz Niemann Ingward Rudloff Bodo Habenicht Hans Dethleffs Wolf Schenke Heinz Peerschke Hans Mesberg Johannes Rathje Siegfried Fuellkrug Walther Heissig Jesco von Puttkamer Alfred Romain Ernst Woermann Wilhelm Stoller Elgar von Randow Walter Richter Hermann Jaeger Felix Altenburg Herbert Mueller August Stock Maria Muller Prosecutor of the United States Military Commission
Categories	War crimes
Links	Judgment
Other countries involved	Germany

Summary

Germany surrender World War II on 8 May 1945. The surrender mandated the cessation of military activities against the United States and its allies. The 27 Accused in the present case are all German nationals who were resided in China during the duration of the war. They were members of the German military intelligence agency, Bureau Ehrhardt, or the German propaganda agency, the German Information Bureau in China. Included amongst the accused were Ernst Woermann, German ambassador to occupied China, and Elgar von Randow, Counsellor of the Shanghai office of the German Embassy.

They were indicted by the Prosecutor of the United States Military Commission in China for war crimes, namely, for assisting the Japanese armed forces in the conduct of military activities against the United States and its allies. They were variously alleged to have collected and disseminated military information and distributed propaganda to the Japanese. The Military Commission convicted 21 of the 27 accused and handed down terms of imprisonment ranging from 5 years to life imprisonment for Lothar Eisentrager, the head of the Bureau Ehrhardt. The Military Commission was required to address a number of questions including the exercise of jurisdiction by the Court since the accused were all German nationals and the crimes were not committed on US territory, as well as whether the crimes with which the accused were charged amounted to war crimes under international law at the time of their commission.

Procedural history

The Prosecution indicted all 27 Accused, German nationals, for engaging in and continuing military activity against the United States and its allies in breach of the German surrender at the end of World War II on 8 May 1945 (p. 8). In particular, the Accused all resided in China and were either members of or controlled the activities of the military intelligence organisation, Bureau Ehrhardt and its press intelligence group, and the propaganda agency, the German Information Bureau (p. 10).

Related developments

Following their conviction by the United States Military Commission, the Accused were imprisoned in Germany in the custody of the United States Army.

They petitioned the District Court of the United States for the District of Columbia for a writ of habeas corpus alleging that their detention is in violation of Articles I and III of the US Constitution, of the Fifth Amendment to the Constitution, of other provisions of the Constitution and laws of the United States and of the 1929 Geneva Convention.

The District Court dismissed the action for lack of jurisdiction.

The Court of Appeal for the District of Columbia reversed the decision to hold that any individual has the right of habeas corpus where they have been deprived of their liberty by an action of the United States Government provided that their detention is in violation of a prohibition of the United States Constitution.

On appeal, the Supreme Court of the United States reversed the decision of the Court of Appeal to hold that Eisentrager et al were not entitled to a writ of habeas corpus as they were foreign nationals not resident in the United States.

Legally relevant facts

During 1940 and 1941, the German High Command established intelligence and propaganda agencies in China. The Accused are all German nationals who occupied various positions within these agencies (p. 10).

Lothar Eisentrager alias Ludwig Erhardt was allegedly the head of a German intelligence agency in Shanghai known as Bureau Ehrhardt. He allegedly collected military intelligence concerning the land, sea and air movements by the United States and its allied forces and transmitted them to the Japanese, either personally or through his contacts (p. 8).

His superiors, Ernst Woermann, German ambassador in occupied China, and Elgar von Randow, Counsellor of the Shanghai office of the German Embassy, are alleged to have ordered and failed to stop Eisentrager’s activities (p. 10).

Franz Siebert was the former German Consul-General. He is alleged to have ordered representatives of German business firms to submit to him essential war materials in their possession, which he then submitted to the Japanese (p. 9).

Herbert Glietsch was the secretary of the German Consulate at Canton. He is alleged to have decoded, approved and delivered to the chief of Bureau Ehrhardt at Canton a telegram which unlawfully ordered the continuation of military activities (p. 9).

Jesco von Puttkamer and Alfred Romain were the head of and a member respectively of the German Information Bureau at Shanghai, a military propaganda agency of the German Embassy. They allegedly engaged in psychological warfare by designing and furnishing to the Japanese armed forces propaganda material (p. 9).

The remaining Accused were allegedly members, agents or employees of Bureau Ehrhardt and allegedly collected, compiled and furnished military intelligence on the United States and its allies for the benefit of the Japanese armed forces (p. 9).

Core legal questions

Can the Military Commission exercise jurisdiction over the Accused in light of their German nationality and Chinese residence?
Did the acts charged by the Prosecution amount to war crimes at the time of their commission?
Does the civilian status of the Accused preclude their liability for war crimes?

Specific legal rules and provisions

Act of Military Surrender, 8 May 1945.
Declaration Regarding the Defeat of Germany, 5 June 1945.

The relevant provisions of both documents are contained in the decision of the Military Commission.

Court's holding and analysis

War crimes are crimes committed against all peoples; the laws and customs of war are of universal application and do not depend on the existence of any national law or frontier. As such, a departure from the principle of territoriality is justified and the Commission may exercise jurisdiction over foreign nationals for crimes committed outside the territory of the United States. Third, such jurisdiction cannot be defeated by the non-ratification by China of the agreement between the United States and China establishing the Commission as United Sates forces entered China as allied expeditionary forces with all the rights and privileges attached thereto. The agreement was no more than the implementation of joint military operations and does not condition the jurisdiction of the Commission (p. 15).

It is well established under international law that the violation of a surrender, whether conditional or unconditional as in the present instance, as well as the violation of an armistice agreement is an act of treachery and, if committed by an individual, is punishable as a war crime (p. 18).

The terms of surrender apply to all nationals of the surrendering State and not only to the armed forces of that State. Such nationals must wherever they may find themselves at the time of surrender refrain from activities which are either considered military or contrary to the terms of surrender (pp. 21-22).

All of the Accused were convicted with the exception of Glietsch, Otto, Schenke, Woermann, Steller and Randow. Those convicted received sentences of imprisonment between 5 years and life (for Eisentrager).

Further analysis

D.L. Herman, 'A Dish Not Served At All: How Foreign Military War Crimes Suspects Lack Protection Under United States and International Law', Military Law Review, 2002, Vol. 172, pp. 40-95;
R.G. Everett, 'Possible Use of American Military Tribunals to Punish Offenses Against the Law of Nations', Virginia Journal of International Law, 1994, Vol. 34, pp. 289-293;
American College of Trial Lawyers, 'Report on Military Commissions for the Trial of Terrorists', March 2003.

Instruments cited

Act of Military Surrender, 8 May 1945.
Declaration Regarding the Defeat of Germany, 5 June 1945.

Related cases

Court of Appeal of the District of Columbia, Johnson v. Forrestal, Appeal from the United States District Court for the District of Columbia, 15 April 1949;
Supreme Court of the United States, Johnson et al v. Eisentrager et al., Judgment, 5 June 1950.