arrived at its recommendation. It then adhered to the degree-ofparticipation theory and expressed disbelief of three prosecution witnesses.

Nor did Colonel Harbaugh, in making his recommendation to General Clay, illuminate his reasons for concurrence with the reviewers. Colonel Bresee, who supervised the review-board functioning, stated that: "The Buchenwald case is the only case in which I, as chief of the War Crimes Board of Review Branch, did not make a recommendation in writing to the Judge Advocate, EUCOM."

We do not attempt to draw a conclusion from this omission. Whether the lack of expounded reasoning was based on reluctance or inability to explain is not important. We do wish to point out the fact that the reviewing authority reduced the sentence of Ilse Koch apparently on the sole basis of the sketchy and incomplete written recommendation of Lieutenant Colonel Straight, concurred in by the other reviewing officers.

THE CHARGE AND THE FINDINGS

Ilse Koch and her 30 codefendants were charged with violating the laws and usages of war. The particulars of the charge read as follows:

Particulars: In that Josias Prince zu Waldeck, and divers other persons, German nationals, or persons acting with German nationals during various periods between the 1st of September 1939 and the 8th of May 1945, at or in the vicinity of Thuringia, Saxony, Hesse, the Rhineland, the Ruhr, and Westphalia, Germany, acting in pursuance of a common design to commit the acts hereinafter alleged, did, wrongfully and unlawfully, encourage, aid, abet, and participate in the operation of Concentration Camp Buchenwald and its subcamps and out-details, which operation included the wrongful and unlawful subjection of citizens of the United States of America, Poles, Frenchmen, citizens of the Grand Duchy of Luxemburg, Norwegians, British subjects, Greeks, Yugoslavs, citizens of the Soviet Union, Belgians, citizens of the Netherlands, stateless persons, Czechs, and other non-German nationals who were then and there in the custody of the then German Reich, and members of the armed forces of nations then at war with the then German Reich who were then and there surrendered, and unarmed prisoners of war in the custody of the then German Reich, to killings, beatings, tortures, starvation, abuses, and indignities, the exact names and numbers of such persons being unknown, but aggregating many thousands.

Each of the accused pleaded not guilty to both the charge and the particulars. The court found each of the accused, including Ilse Koch, guilty as charged. The court sentenced 22 of the accused to death; five, including Ilse Koch, to life imprisonment; one to 20 years' imprisonment; two to 15 years; and one to 10 years. General Clay, as the reviewing authority, approved the findings and the sentences of the court, but reduced the sentences of 12 of the accused. He reduced the sentence imposed on Ilse Koch from life imprisonment to 4 years. In taking this action, General Clay followed the recommendations of his staff reviewing officers.

It should be noted that the gravamen of the charge and particulars on which Ilse Koch and her codefendants were tried was that, acting in pursuance of a common design, they did wrongfully and unlawfully encourage, aid, abet, and participate in the operation of Concentration Camp Buchenwald, which operation included the wrongful and unlawful subjection of non-German nationals to killings, beatings, tortures, starvation, abuses, and indignities. The accused were

not charged with the specific crimes of murder, mayhem, assault, and so forth. In order to support a finding of guilty against any of the accused, it was not necessary for the court to find that the accused personally committed any specific act or acts of violence. It was only necessary to find that the accused encouraged, aided, abetted, and participated in the common criminal design. The court, in finding the accused guilty as charged, found that she was legally responsible for all acts committed by any of the accused in furtherance of the common design, including "killings, beatings, tortures, starvation, abuses, and indignities." The theory of law applicable to this case is that one. who joins in a common design to commit unlawful acts is responsible for all acts committed in furtherance of the common design. Any act committed by one participant in furtherance of a common design is, in law, the act of all, and all are equally guilty. This is the established common law, and the principle has been uniformly followed by the civil courts of this country.

The International Military Tribunal was bound by the same rule of law. Article 6 of the charter of the International Military Tribunal, contained in the London agreement, defines war crimes clearly to include the crime with which Ilse Koch was charged. Further, article 6 concludes:

Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

The London agreement prescribed the procedures and principles applicable only to the Nuremberg trials. It is not contended that the agreement is a mandate to the Dachau court. The reaffirmation, by quadrapartite agreement, of the substantive common law in regard to participation in a common criminal design should have carried substantial weight in other military tribunals created for the same

purpose.

Further, the Manual for the Trial of War Crimes and Related Cases prepared by the Deputy Theater Judge Advocate's Office, War Crimes Group, European Theater, contains the following pertinent extract from an opinion of the Deputy Theater Judge Advocate for War Crimes in the case of United States v. Josef Hartgen et al. (see page 305 of the manual):

Such evidence establishes conclusively that each of the five accused, herein considered, actively contributed to the death of the airmen. They were motivated by a common design and legally are all principals in the perpetration of the murders. It matters not that some assumed more brutal roles than others, or that the injuries inflicted by some were more severe than those inflicted by the others. All who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of or in furtherance of the common design, although not specifically contemplated by the parties, or even forbidden by defendant, or although the actual perpetrator is not identified (29 Corpus Juris, sec. 46, p. 1073). The findings of guilty are sustained, and the sentences justified, by the evidence. [Italics supplied ]

The case law in the United States courts, including both Federal and States cases, clearly supports this rule. In Bogy v. United States, 96 F. (2d) 734, certiorari denied, 305 U. S. 608, the Court held:

The acts of one in furtherance of a common criminal enterprise (are) in law the acts of all.

And again, in Patton v. United States (42 App. D. C. 239), it was held that:

Each is responsible for the acts of the others in furtherance of the common purpose, if the act done is either within the scope of that purpose or is the natural or probable consequence.

In fact, the principle of Federal law applicable to this case has been codified. Title 18, United States Code, section 550, provides as fol lows:

Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.

Under this section of the United States Criminal Code any person who aids, abets, or participates in a common unlawful design is responsible for all acts committeed in furtherance of the common design and is equally guilty along with the actual perpetrator of each of the unlawful substantive acts committed in furtherance of the common design.

The recommendations of the reviewing officers in the case of Ilse Koch were based primarily on the theory that the extent and nature of her participation in the common design was not sufficient to support the sentence of life imprisonment. There is evidence in the statements of the reviewing officers that the policy followed in reviewing the records of war crimes trials is to approve sentences of death or life imprisonment only in the case of top leaders and in the case of underlings against whom there is definite evidence of personal participation in killings or evidence that they ordered killings by others. Colonel Harbaugh, Judge Advocate of the European Command, based his recommendation for a reduction in the sentence of Ilse Koch on the ground that he "did not believe she was responsible for the deaths of any of the inmates."

If the evidence against Ilse Koch is sufficient to support a finding of guilty, there can be no degree of guilt as to participation in the common design. The trial court found Ilse Koch guilty as charged. The reviewing officers approved the findings. Therefore, they must have found that the evidence was sufficient to support the finding of guilty of participating in the common design. It follows necessarily that Ilse Koch and all of the other accused found guilty are equally guilty. The acts of each are, in law, attributable to all found guilty of the charge.

However, it is true that although an accused is found guilty of participating in a common criminal design, the extent of his participation may be taken into consideration as a mitigating factor in passing sentence. But this is a matter of mitigation, not degree of guilt. Of the 31 accused in connection with the operation of Concentration Camp Buchenwald, Ilse Koch is the only one who was not either a member of the German military organization or an inmate of the camp. Whatever she did in connection with the camp and its inmates she did as a volunteer. There were no mitigating circumstances in her case.

Further, it is erroneous to argue that in order to support a sentence of death or life imprisonment against one of the accused in this case it is necessary to find that the accused personally participated in the killings of inmates or that the accused ordered such killings by others.

The accused were charged not with the crime of murder, but with participating in a common criminal design. The prosecution based its case on this charge and introduced evidence which proved this charge. If the prosecution was to be required to prove a case of murder or any other specific act or acts, then the charge should have been so framed and the prosecution so advised so that it could present its evidence accordingly. In the opinion of this subcommittee, this had the effect of changing the charge after the trial to make it fit the recommendations of the reviewing officers.

A study of the statements and reasoning of the reviewing officers makes it apparent that the reduction in the sentence of Ilse Koch might have been the result of a compromise. Some of the reviewers felt she was not guilty of the charge and others felt she was guilty as charged. It appears that the 4-year sentence might have been a compromise between those two points of view. The accused is either guilty or not guilty. If the evidence were not sufficient to support the finding of guilty as charged, then the findings and the sentence should have been disapproved and the accused acquitted, or, in the event the finding of guilty was based on an error of law, the case should have been remanded for a new trial. Any reduction in sentence as a result of such a compromise is improper.

CREDIBILITY OF WITNESSES

The reviewing officers based their recommendations for a reduction in sentence in the case of Ilse Koch on the ground that they disbelieved certain of the witnesses against her. The credibility of witnesses is ordinarily the exclusive function of the trial court. Our Federal courts have repeatedly enunciated the proposition that the credibility of witnesses is a question for the jury or the trial court and the appellate courts normally will not consider this question.

In this case the reviewing officers assert that they followed the customary court-martial procedure which they claim permitted them to consider the credibility of witnesses in reviewing the record.' It should be noted, however, that these special military government courts are not courts martial and are not circumscribed by the statutory and other rules governing courts martial. In his testimony before this subcommittee, Lieutenant Colonel Straight stated that neither General Clay nor his predecessors promulgated written rules to the effect that reviewers should consider the credibility of witnesses. The court in the Buchenwald trial was composed of eight highranking Army officers, one of whom was an experienced lawyer. There is every reason to believe that the opportunity of these officers to judge the credibility of witnesses, having the witnesses before them, is superior to that of any one of the reviewing officers, having before them nothing but the cold printed record.

Assuming it is proper for the reviewing officers to follow courtsmartial procedure, it is not at all clear that such procedure gives them the right to substitute their judgment for the judgment of the trial court on the question of credibility of witnesses. Winthrop, in his

The requirement that the reviewing authority consider the credibility of witnesses in Court-martial cases was included in the Selective Service Act of 1948, Public Law 759, 80th Cong., which also granted to enlisted accused the right to be tried by a court partially composed of enlisted personnel.

work on Military Law and Precedents, makes the following observation, on page 360:

The court martial by reason of the superior education and intelligence of its members is a species of jury which should be particularly qualified for the discriminations and comparisons necessary to be made in estimating the relative weight and credibility of oral testimony.

Again, at page 452, Winthrop makes the following statement:

Where, for example, the evidence in the case was conflicting, and it is apparent that the court, having the witnesses before it, must have been the best judge of their relative credibility and of the weight of the testimony, it will in general be wiser for the reviewing officer to defer to, rather disapprove, its conclusions.

In discussing this point with officers and former officers of the War Crimes Branch, European Command, it was developed that much confusion exists in the minds of these officers as to their right, in reviewing the records of war crimes trials, to consider the credibility of witnesses.

At least one of these who contend that the credibility of witnesses is the concern of the reviewers stated that the reviewers were empowered to initiate independent investigation of the witness, after the trial and on information completely foreign to the trial, to determine for themselves the reliability of the witness. The dangers of such procedure are patent. If the reviewer may consider evidence of his own making, in effect, he may retry the case in complete disregard of the record. This extension of power to the reviewing authority is contrary to the entire concept of judicial process.

The accepted view of our Federal courts that the question of the credibility of witnesses is the exclusive function of the trial court is the only sensible and reasonable view and certainly should be applied in this type of trial. The trial court had the opportunity to hear the witnesses and to observe their demeanor on the stand, particularly under the attack of cross-examination, and therefore was the best judge of their credibility. The reviewers had no such opportunity. They had only the cold record before them. It would be extremely difficult for a reviewer to estimate credibility from the record alone, in the absence of conflict within the witness' own testimony. Where there is conflict in the testimony of two witnesses, then, in the absence of substantiation on either side, it is clearly the function of the trial court, which has the witnesses before it, to determine who is telling the truth and who is lying. It must be concluded (and the statements of the reviewing officers support this conclusion) that the reviewers based these decisions on the probability of the occurrence to which the witness testified, rather than on the mechanical conflicts and variances in the record. If improbability is the key to credibility, then the entire concentration camp system must be held not to have existed, for surely the whole brutal story is "improbable."

The fallacy in the consideration of credibility of witnesses by reviewing officers is illustrated by the fact that the deputy judge advo cate for war crimes was in marked disagreement with the War Crimes Board of Review No. 5 as to which of the witnesses against Ilse Koch were incapable of belief. During the hearings before this subcommittee, Lieutenant Colonel Straight, the deputy judge advocate for war crimes at the time of the review, testified that, to the best of his knowledge, the witnesses he disbelieved were Froboess, Titz, Lowen