740.00119 Control (Germany)/3–2549: Telegram
The Secretary of State to the Embassy in the United Kingdom
1048. For Holmes. Dept has been considering questions relating appointment, tenure, and removal of judges High Court. Believe it would be preferable not to have language in occ stat covering these points but to leave for later decision by Mil Govs, since proposal now might delay statute.
Possible, however, other delegations may suggest provision for appointment, selection, removal, etc. In such event, you shld suggest these matters be left for decision by Mil Govs. If, however, other delegations insist inclusion such provisions, you shld propose language along following lines:
“The High Court shall consist of nine judges appointed by occ auths and selected as follows:
- (a)
- Two judges shall be selected by each of the occ auths; such judges shall be of the same nationality of the occ auth by whom they are selected;
- (b)
- The Pres of ICJ shall be requested to select two judges. Such judges shall not be nationals of a country which is occupying any part of Germany nor of a country at war with any of the occ powers during the period from September 3, 1939 until May 8, 1945.
- (c)
- One judge, who shall be a German national, shall be selected by the Govt of the Federal State.
Judges of High Ct shall be appointed for term of two years. A judge shall not be removed from his office while such office continues to exist, prior to the end of term of his appointment, except upon formal charges and for cause. Judges from Court of Appeals shall be entitled to a hearing by occ auths before being removed from office for cause.”
Dept feels selection of neutral jurists shld be by Pres ICJ, rather than by Court and it should only be nomination, not appointment as has been suggested in some past discussions. It would not be proper function of Court make nominations or of either Court or President make appointments.
Provisions relating to term of office and removal are considered important to prevent arbitrary action which might undermine independence Court. If no provision against removal included, individual MG’s or Germans might claim right remove Allied or German judge at any time he renders decision contrary their interest. Two-year term chosen as long enough allow Court function without undue interruption [Page 55] and short enough not give appearance occ stat will continue unchanged indefinitely.
Sent London 1048, rptd Berlin 360.