The United States occupied territory in Germany and the Japanese archipelago for several years following victory over those nations in World War II. American forces in these areas employed a variety of military courts of occupation to maintain order and facilitate a gradual transition to domestic rule. These courts were not instituted under Article III of the U.S. Constitution, but derived their power from the president’s Article II powers as commander-in-chief of the armed forces. As occupation ended, American courts generally ceased operation.

Postwar developments left the divided former German capital of Berlin in a different legal posture to other occupied territory. In the immediate aftermath of the collapse of Germany’s Nazi regime, Russia, the United States, France, and Great Britain assumed authority over various areas of the city. Although the allies had initially intended to reunite these sectors, this division hardened into a de facto international border between the western and eastern sectors of the city amid heightening animosity between the Russian-dominated East and the democratic West. That Berlin was surrounded by the Soviet-backed German Democratic Republic (“East Germany”) left the western-controlled parts of the city in a precarious position. Although local authorities gradually assumed responsibility for many of the basic functions of government in West Berlin, it remained an occupied city for decades, and America retained a military presence in the city.

The status of the airways above Berlin was a particularly important area of concern for the United States. In the late 1940s, Russian troops had effectively blockaded the western parts of the city. British and American forces supplied West Berlin’s inhabitants with food and energy supplies through a series of massive airlifts to the city’s Tempelhof Airport. Although the blockade ended in May 1949, the United States continued to fly military operations through Tempelhof for several years.

In 1952, America, France, and Britain entered into a series of agreements, collectively known as the Bonn Conventions, which established a process for the end of occupation in West Germany aside from Berlin. These conventions anticipated an end to the use of U.S. military courts in May 1955. Although West Berlin was to remain formally occupied by America and its allies after that time, responsibility for the American mission in the city passed from the military to the State Department by executive order as the Bonn Conventions came into effect. Foreseeing potential future legal issues arising from the continued American involvement in Berlin after this transitional period, the U.S. High Commissioner for Germany promulgated a public law creating the United States Court for Berlin on April 28, 1955. (United States High Commissioner Law No. 46). The new court was given “original jurisdiction to hear and decide any criminal case arising under any legislation in effect in the United States Sector of Berlin if the offense was committed within the area of Greater Berlin.” (Ibid., Art. 3, sec. 1). The court could also hear cases of that sort transferred from German courts, but it had no jurisdiction over U.S. military personnel “except upon the authorization of the Commander-in-Chief, United States Army, Europe.” (Ibid., Art. 3, sec. 2).

The United States’ chief of mission in Germany (typically the ambassador or another senior diplomat) had significant power over the Court for Berlin. The chief of mission could convene the court, appoint its judges and prosecutors, and terminate those appointments at any time. Defendants could also petition the chief of mission to review the court’s decisions. The chief of mission was authorized to “affirm, vacate or modify the findings, judgment or sentence of the Court in whole or in part [or to] order a new trial.” (Ibid., Art.5, sec. 2).

Although the U.S. Court for Berlin was founded in 1955, the chief of mission did not convene a meeting of the court until 1978, when two East Germans commandeered a Polish passenger plane bound for East Berlin and forced the crew to land it at Tempelhof. The hijackers were attempting to seek asylum in the West, but they had also taken dozens of hostages in the course of their escape. Nevertheless, West German authorities were reluctant to prosecute based on a policy of protecting East Germans’ right to defect to the West. Evidently eager to honor recently signed international anti-hijacking accords, U.S. authorities charged the alleged hijackers by information in the Court for Berlin.

The court had three different judges in its first few weeks of its operation. Judge Dudley Bonsal of the U.S. District Court for the Southern District of New York presided over the first several days of proceedings, adopting the Federal Rules of Criminal Procedure except as far as they guaranteed the defendants a jury trial. After a judge who had served on another American court in Germany briefly succeeded Judge Bonsal, U.S. Ambassador William Stossel, Jr., appointed Judge Herbert Stern of the U.S. District Court for the District of New Jersey on January 11, 1979.  Judge Stern presided over the court for the remainder of its only trial.   

The defendants requested a trial by jury. Analogizing the court to a military tribunal, prosecutors argued that the defendants were not entitled to a jury trial and—more broadly—that the U.S. Constitution did not extend to foreign defendants appearing before the Court for Berlin. Judge Stern held that “if the United States convenes a United States court in Berlin . . . and charges civilians with non-military offenses, the United States must provide the defendants with the same constitutional safeguards that it must provide to civilian defendants in any other United States court.” (United States v. Tiede, 86 F.R.D. 227, 260 (1979)). The case proceeded to trial under American procedural rules with a jury composed of West Berliners.

At trial, Judge Stern excluded evidence of the confession of one of the defendants, leading prosecutors to drop charges against her. On a jury verdict, the other defendant was acquitted of three charges, but convicted of hostage taking. Judge Stern sentenced the defendant to time served, a result that he later wrote was politically unpopular. Ambassador Stossel terminated Judge Stern’s appointment, effectively disbanding the court, the day after the judge passed sentence. The court was never reconvened, and the law under which it was created was nullified in 1990 by a multilateral treaty facilitating reunification following the collapse of Communist rule in East Germany. In 1984, Judge Stern wrote a book about his experience on the court, which was subsequently adapted into a motion picture.

Further Reading:
McCauliff, C.M.A. “Reach of the Constitution: American Peace-Time Court in West Berlin.” Notre Dame Law Review, vol. 55, no. 5 (1980): 682-707.

Stern, Herbert Jay. Judgement in Berlin: The True Story of a Plane Hijacking, a Cold War Trial, and an American Judge who Fought for Justice. New York: Skyhorse, 2021 (originally published in 1984).