VI. Final Regulations (part 3 of 4)

VI. Final Regulations (part 3 of 4)

The two indictments which bear my signature are the Bratek and Stefanowitsch cases. The following element, however, is added. Bratek had referred to the fact that he only wanted to cross the border in order to avoid work.

DR. GRUBE: In the Bratek case here we are concerned with Prosecution Exhibit 136.[529]

DEFENDANT LAUTZ: As I said, he claimed it was only for the reason to attempt to seek work that he did want to cross the border. By means of the additional investigations which the division chief instituted, however, it had been found that he did not like to work; he had already left other places of work, so that his statement that he wanted to seek new work in another country in which there were difficult conditions of work did not seem very credible. So for that reason his statement had to be accepted with reservations.

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CROSS-EXAMINATION

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MR. KING: I ask you if it were possible to commit treason against an individual who was not of German citizenship in the period which we are discussing.

DR. GRUBE: I object to this question. This is a question which is asking only for the personal opinion of the witness.

PRESIDING JUDGE BRAND: The objection is overruled.

DEFENDANT LAUTZ: If I understand you correctly, Mr. Prosecutor, you want to know whether the act of treason was punishable only when it, the act, was directed against the State as such, or also when it was directed against an individual person.

MR. KING: Yes. My following question was going to refer to the differences which you raised. But actually you have stated it very well. I want to know whether at this time the period which we are concerned with at the moment, if during that period treason could be committed against an individual who was not a German citizen, and I take it that your answer on that is no, is that correct?

DEFENDANT LAUTZ: That had been different ever since the law of 1934.

Q. Yes. I know but I am speaking of the law prior to 1944.

A. No, what I said was 1934. I said the law before 1934. I am referring to the law 1934 with article 91 [of the Reich Criminal (Penal) Code] which then became a law.[530]

That article says that the act of treason can be directed against a German national as an individual, and it was a question of interpretation whether “German” should here be interpreted as being of German blood or being a German citizen, and the famous document in which I made a report to the Reich Ministry of Justice deals with that question.[531] It is that report which concerns itself with that question. The courts in the Reich interpreted article 91 to the effect that it was not the nationality which was decisive but the race, the blood.

Q. Yes. Well, it is that letter to which I want eventually to refer. I wanted, however, to get your understanding of the earlier laws before we get around to discuss the question of that letter. What you have just said was that article 91 which was adopted in 1934 expanded the concept of treason to the extent that there could be treason against an individual who was a Reich national; is that correct?

A. Against a German. And who is a German? That was a question of interpretation. I believe I can best make myself clear if I come back to the example which is mentioned in this report. After the occupation of the eastern territories, that is Poland, that is to say after the occupation of those territories, which formerly had been German, the following case came to our knowledge. An ethnic German, a person who was a German by blood, had had the following experiences. Behind his back a Polish agent had hidden espionage material in his home without the German knowing that that material had been hidden there. The Polish agent then chased the Polish police after him, and his home was searched by the Polish police. The material was found and the German who was completely innocent but who could not prove his innocence was tried in Poland before 1939 and he got a very heavy prison sentence. I don’t think you would approve of that, would you? When we occupied the eastern territories that case came to our knowledge--

Q. Excuse me, Dr. Lautz. Is this the Krippner case to which you refer, or is this the Moses case? There are two of them which you mentioned in this report.

A. No, no. I cannot remember the--

Q. Would you like to see that exhibit?

A. I cannot remember the name unless you would show me the document. The name doesn’t matter. It is the facts of the case that matter here.

Q. I think you will find this report referred to in document book 5-B, beginning on page 73 of the German text.

PRESIDING JUDGE BRAND: Dr. Lautz, will you finish what you were saying when counsel interrupted you?

DEFENDANT LAUTZ: Yes. I will. After the occupation of Poland that shameful case, to use a mild expression, came to the knowledge of the German authorities; and we were now concerned with the question as to what could be done; and the application of article 91 of the German Criminal (Penal) Code was interpreted so that in this case treason had been committed against a German. Treason had been committed against a man of German blood, treason which could be prosecuted.

Q. It was treason against one of German blood who was not then a German citizen.

A. He was not a German citizen, but he was of German blood.

Q. The date of that again? When that happened, when it came before this department?

A. Your Honor, may I just have a look at the report? May I have a look at the report to make sure of the date?

Q. Yes.

A. That is the case Goleck, which is mentioned in the report. The false accusation against the person of German blood was made in the year 1938, that is to say, it happened before the war.

Q. And it came up to the Ministry of Justice after the war to decide?

A. That happened during the war when Polish files were confiscated.

MR. KING: Dr. Lautz, you have the letter before you now?

DEFENDANT LAUTZ: Yes.

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Q. May I ask you to refer to the top of page 75 in the German text, I believe it is? It is the middle of page 68 in the English.

PRESIDING JUDGE BRAND: What exhibit are you referring to?

MR. KING: I am referring to Document NG-548, Prosecution Exhibit 347, Your Honor.

Now, could we look at that separate opinion of yours at the end of the letter?

DEFENDANT LAUTZ: Yes.

Q. Go ahead, please.

A. It begins with the words, “With the Reich Leader SS and the President of the People’s Court I agree with this.”

Q. Dr. Lautz, see if you can find this portion in the document which you have. I am sorry you don’t have the document book as it was originally distributed. I had it paginated for that. Can you find this statement? You say, “Therefore”--and I believe this is part of your letter--“Therefore, I find it necessary, on principle, to protect by means of the German Criminal (Penal) Code those racial Germans who have seriously suffered through action such as mentioned in article 91, paragraph 2 of the Penal Code, provided that action deserves punishment in accordance with sound German sentiment but where such punishment, considering the elements of wrongdoing of that particular case, cannot be brought home on the strength of any other directly applicable penal regulation.”

Those are your words, are they not?

A. Yes.

Q. And then you say in the final paragraph of the letter, “In the majority of the cases it will be offenses which have been committed by foreign nationals abroad against racial Germans.” Is that correct?

A. Yes, it is.

Q. That is correct, and those are your words?

PRESIDING JUDGE BRAND: Will you answer audibly so that reporters may get it?

DEFENDANT LAUTZ: What the prosecutor stated just now is what I reported.

MR. KING: And then you asked for approval of your interpretation; is that correct? That is the very last sentence in the letter?

DEFENDANT LAUTZ: Yes. I had to ask for that because the decision lay with the Minister of Justice.

Q. Yes. Now, in subsequent cases that came before the People’s Court in which you were required to file the indictment, you based the charges on the interpretation which was subsequently approved by the Reich Ministry of Justice, the interpretation which you ask here? Is that right?

A. From case to case the Minister of Justice afterward decided as to whether that procedure was to be adopted or not. He did not issue a general instruction or directive.

Q. Do I understand you correctly? Let me restate it. Did you mean to say that even after you asked for this interpretation it was necessary in the future when cases came up involving these facts that the Minister of Justice give his approval before you filed your indictment? Is that correct?

A. The indictment was drafted, and the draft was submitted to the Minister of Justice, and he approved it or did not approve it.

Q. But the draft of the indictment was based on the law which you suggested be interpreted as we have discussed it. Then having drafted the indictment based on this interpretation you got approval or disapproval, as the case might be, from the Minister of Justice. Is that right?

A. Yes.

PRESIDING JUDGE BRAND: What was the answer?

MR. KING: The answer was yes, Your Honor.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT BARNICKEL[532]

DIRECT EXAMINATION

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DR. TIPP (counsel for defendant Barnickel): Witness, please describe further events.

DEFENDANT BARNICKEL: About the end of 1937--beginning of 1938, I was in Berlin again. I told the personnel Referent, who was a different official then, about my wishes for the position in Munich, but the case was not that far yet. To my great surprise, on 30 November 1938, I received the communication that, on 1 December 1938, I was to be appointed Reich prosecutor with the People’s Court.

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Q. When and how did you assume your new position?

A. As I have already explained, I received the formal appointment on 30 November 1938. The Minister granted me a few days to straighten out my affairs in Munich, and thus, I assumed office on 6 December 1938.

Q. What position did you hold in the beginning?

A. On 3 November 1938, the chief Reich prosecutor of the People’s Court, Parey, had had a fatal accident. His permanent deputy, at that time the only Reich prosecutor, Parisius, was in the hospital seriously injured. On 1 December 1938, three new Reich prosecutors had been approved for that office. Of those, two were from the office proper, and I was the third one. Upon instruction by the minister, I was to be in charge of the office as a deputy because according to my age I was the oldest of the three Reich prosecutors there.

Q. Witness, in this connection, I should like to discuss a document submitted by the prosecution. It is Prosecution Exhibit 347, Document NG-548. The letter has the heading “Chief Reich Prosecutor with the People’s Court” and is of 23 April 1942, and is directed to the Reich Minister of Justice. In this letter, another letter by the Reich Leader SS and Chief of the German Police of 13 December 1941 is quoted. The latter letter is directed to, and I quote, “The Chief Reich Prosecutor with the People’s Court, attention: Senior Reich Prosecutor Dr. Barnickel, or deputy.” You are therefore addressed as Chief Reich Prosecutor with the People’s Court, Witness. Can you please explain how it may have come to that designation?

A. I cannot answer that question with absolute certainty because I do not happen to know why the office which sent that letter did it. It is, however, certain that I was never Chief Reich Prosecutor with the People’s Court. I was only Reich prosecutor at all times, although, during the first 2 months, I deputized for the Chief Reich Prosecutor, but during the first few years of my activity I frequently received similar letters. The first few times, I actually opened them. Later, I sent them to the office for incoming mail unopened. I assumed at that time that some office of the Gestapo, by mistake, had entered my name as Chief Reich Prosecutor on their records because, in the beginning, I was in charge of the office as a deputy. But the main point seems to be the following. I can see from the letter which is addressed to me, that it is quite clear that I never had anything to do with the answer to that letter. I see that with absolute certainty from the contents of the letter.

Q. For how long after you assumed the office were you in charge of the affairs of the Chief Reich Prosecutor?

A. Until 1 February 1939.

Q. Did it happen frequently later that you had to deputize for the chief?

A. Yes, but not very frequently. The Chief Reich Prosecutor and his permanent deputy appointed by the Minister, Reich Prosecutor Parisius, of course, tried to arrange not to be absent at the same time. Only if that did happen, I, as the oldest Reich prosecutor, had to take care of affairs. I have to correct myself, that is to say, after Reich Prosecutor Parisius, I was the oldest. Since the end of 1943, I was no longer used to deputize. I was evacuated to Potsdam at that time and Reich Prosecutor Weyersberg was the deputy of the Chief Reich Prosecutor.

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Q. * * * May I ask you now to direct your attention to Prosecution Exhibit 159, which we have already mentioned? That is the Prosecution Document NG-381.[533] It appears in document book 3-G, on page 22 of the German and page 19 of the English text. The subject of these proceedings is the trial of Oscar Beck, for undermining the military efficiency.

PRESIDING JUDGE BRAND: A correction, for the purposes of the record. Exhibit 159 is in document book 3-D, at page 17 of the English.

DR. TIPP: Thank you.

The indictment appears on page 2 of the document, and following pages. On page 4 there is the signature, “As deputy, Dr. Barnickel.” That is to say, you signed that indictment. Apparently you did so when you were deputizing for the chief who was away. At any rate, the document does bear your signature. Would you please tell us why that indictment was filed with the People’s Court?

DEFENDANT BARNICKEL: Because of the fact that I was so overburdened with work at the time, I cannot remember any details of the case. However, I can say for certain that the reason for filing the indictment with the People’s Court was not--I am referring to the fact which has been mentioned here before--that Beck was of mixed descent, first degree. I think I have explained sufficiently my attitude to that question in general, but I shall revert to that subject later. That attitude of mine had remained the same for 10 years, and I did not change it in 1943. The fact that it was a Vienna Ortsgruppenleiter who denounced the man--that fact, too, is of no importance. I believe it is hardly necessary for me to mention this, but for my department, too, which submitted that case to me, it was of no importance either.

As I look at that indictment now, I am inclined to assume that we wanted to arrive at a basic decision. The novel element in the proceedings against Beck was the fact that he had criticized the employment of women. That was a measure which only started in the first weeks of 1943. It was designed to keep up production, and it had been ordered by the Reich and not by the Party. I believe that all the belligerent countries had introduced measures of that kind.

According to the date when the indictment was filed, it is possible that this indictment of Beck was the first one of its kind. Not only the legal questions decide what the basic element of such a case is, but novel facts of a case also can constitute a basic element.

For the rest, ever since I had been acquainted with the Reich prosecutor’s office, occasionally less significant cases, where one was not expecting a very serious sentence and certainly not the death sentence were indicted with the People’s Court if they were of a certain importance for the whole country.

Q. Witness, you say, then, that you believe the indictment was filed with the People’s Court because the case was important for the whole country and because it contained a novel element?

A. Yes, that is possible.

Q. Does the form of the indictment show that it was the intention to ask for the death sentence?

A. No, on no account. When the indictment was phrased, and in particular because of the legal provisions which were cited, in all that there is nothing to indicate that it was intended to ask for the death sentence. On the contrary, and I should like to refer to the enclosure, the letter which was sent with the indictment. It was written on 30 July 1943, to the presiding judge of the People’s Court.

In the second paragraph of that letter, which is also signed by me, it is expressly pointed out that under article 2 of the law of 20 December 1934, prosecution under that law had been ordered. That law was the Insidious Acts Law, which has been mentioned here a great many times. I should think that is a proof for the fact that we considered the application of that law also possible, for otherwise it would have been stupid to make reference to it. The maximum penalty for violation of the Insidious Acts Law would have been a 5-year sentence. I think it is possible that not only the question of the employment of women was the cause for taking this case to the People’s Court, but also the question of the application of the law in general.

Q. Witness, what was the senate with which your department cooperated in the field of undermining military efficiency?

A. It was the fourth senate, and the presiding judge was Dr. Koehler, whose name has been mentioned in a favorable context repeatedly here. May I state that in 1944 Dr. Koehler was transferred from the People’s Court to Stettin, because Freisler did not approve of him. The fourth senate dealt mainly with high treason cases. Later on it also had to deal with the undermining of military efficiency. However, when the distribution of work was changed again, it had to return those cases because there was dissatisfaction with the sentences that that senate had passed.

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PRESIDING JUDGE BRAND: I wonder if you could tell me what was meant by the last phrase in that letter, where you say, “The prosecution under article II of the law of 20 December 1934 has been ordered as a precaution.” The part, “the prosecution has been ordered as a precaution,” what did you mean by that?[534]

DEFENDANT BARNICKEL: Your Honor, by that I want to say that that passage points out that if sentence was not to be passed on the basis of undermining military efficiency, prosecution under the Insidious Acts Law would be made.

Well, that was a case of a measure which might be taken, Your Honor.

Q. I understand. Was it the practice to appoint defense counsel even in cases where the death penalty was not expected, in your court, in the People’s Court?

A. Your Honor, at my time--I don’t know what happened later--but at my time, every defendant who appeared before the People’s Court had to have a defense counsel without exception. That had nothing to do with the death penalty.

PRESIDING JUDGE BRAND: Thank you.

DR. TIPP: Witness, may I repeat my question. I may ask you to tell us what were these general prerequisites for filing an indictment?

DEFENDANT BARNICKEL: Well, that question has been touched upon repeatedly here. There had to be sufficient suspicion that the defendant had committed the offense, that is to say, a certain probability was sufficient.

Q. In connection with the undermining of military efficiency particularly in this case, I think a further question is important. The question, what did one mean when one said the undermining of military efficiency in public?

A. According to the jurisdiction of the Supreme Reich Court and the Supreme Military Court, military efficiency was undermined in public even if statements had been made in front of only one person, if the offender had to expect that that person would pass on his statements to an indefinite number of other persons.

Q. These two prerequisites, therefore in your opinion in the Beck case, did exist?

A. Yes.

Q. Now, one more question concerning the undermining of military efficiency cases in general. Were all those cases dealt with by your department?

A. To start with, yes; from the summer of 1943, however, certain categories of cases were transferred to Department I, which collaborated with Freisler’s senate. According to the distribution plan of the People’s Court, Freisler could also deal with certain cases from my department, at his senate.

Q. How long was it that your department dealt with those undermining of military efficiency cases?

A. Until 31 December 1943. Then they were transferred to another department.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG ON THE LOPATA CASE[535]

DIRECT EXAMINATION

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DR. KOESSL (counsel for defendant Rothaug): The Lopata case was first tried by another court and not by the Special Court in Nuernberg.[536] Please tell us what was the first court that tried his case and whether that court was a Special Court.

DEFENDANT ROTHAUG: The case was tried for the first time on 28 April 1942, before the local court at Neumarkt in the Upper Palatinate. The local court was not a Special Court.

Q. What were the facts which were the subject of the proceedings against Lopata during the trial at Neumarkt?

A. The defendant had been charged only with having approached a woman in a way which was sexually offensive, although that woman again and again tried to get rid of him. He was also charged with irregular behavior, which, however, in the course of developments played no important part and that charge was dropped.

Q. Please tell us what was the personal description of the defendant which was given by the local court at Neumarkt?

A. In the judgment, it is pointed out that the defendant looked well groomed, but he was insolent, lazy, and he had been guilty of the offense with which he was charged in a way, and I quote, “Which showed an unheard of extent of shamelessness and insolence of which only a member of the Polish nation would be capable.” However, that is a statement made by the local court at Neumarkt.

Q. Did the local court at Neumarkt have anything to do with the Special Court at Nuernberg?

A. Nothing. No.

Q. Was the judgment by the local court at Nuernberg upheld?

A. The judgment by the local court at Neumarkt was by decision of the Reich Supreme Court of 14 July 1942 annulled by way of a nullity plea, and the trial was transferred to the Special Court at Nuernberg.

Q. What was the criticism of the Supreme Reich Court in the judgment passed by the Neumarkt local court?

A. The Reich Supreme Court criticized the fact that the local court at Neumarkt, concerning certain generally known conditions which were connected with wartime conditions, although that had been obvious in the case in question, had not taken such conditions into consideration, and therefore apparently had ignored the fact that the offense with which the defendant had been charged also violated article IV of the law against public enemies. For that reason, it was necessary to refer the case to another court so that the case be examined from that point of view, and if that should be found right, so that article IV of the law against public enemies could be applied, if that were found applicable. Further reasons for the decision which are given are that the application of article IV of the law against public enemies would mean that a considerably higher penalty could be pronounced, and that for that reason the case would have to be tried again.

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Q. In its opening statement the prosecution quoted the following sentence from the judgment: “The inferiority of the defendant lies in his character, and the reason for it evidently is that he belongs to the subhuman race of the Poles.” Is that quotation correct?

A. Well, there is a typing error here which rather distorts matters because actually it says in the judgment--it doesn’t say “the subhuman race,” but it means the subhumanity of [Polnisches Untermenschentum], and that is something essentially different. We have subhumanity in Germany and we have developed our own laws against that and when we speak of Polish subhumanity we do not mean the Polish people as such; that is what we would have meant if we had spoken of the subhuman Polish race, and for that idea and opinion there is a concrete reason.

In many cases we had found that among the Poles who had been brought to Germany there was a considerable number of highly criminal types from Poland. The agencies which dealt with getting labor from Poland did not select properly and thereby created a great danger. We discovered people who had been previously convicted for murder and had been sentenced to penitentiary for life, but who on account of the outbreak of war had been set free, and who had now come to Germany. That point of view played a part in considering all these questions. That is to say, we did not speak of the subhuman Polish race but we spoke of the subhumanity in Poland.

PRESIDING JUDGE BRAND: May I interrupt, please? The question of translation has arisen. The Tribunal would be glad to have a check made by the prosecution as to the original document and the proper translation of it. That will dispose of this entire matter.

MR. WOOLEYHAN: Yes, Your Honor.

DR. KOESSL: The originals of the files here--I don’t know--probably the prosecution has the copy, and perhaps that copy also has the mistake.

PRESIDING JUDGE BRAND: It is a question of what the document says and it should be able to be ascertained with definiteness. The suggestion that the document may have used the wrong word is not satisfactory to us. We want to know what word was used in the original document.[537] Go ahead to something else and straighten that out afterward.

DR. KOESSL: Witness, at the trial before the Special Court at Nuernberg, were any facts brought to light which were not mentioned by the judgment passed at Neumarkt?

DEFENDANT ROTHAUG: That is clearly evident from the judgment. In addition to the facts which had originally been established, a further fact had been established according to which the defendant had attacked the old people who were living on a lonely farm with a dung fork and had exerted so much pressure on them that the only way for them to save themselves was to unleash the dog.

When evaluating the character as a whole of the defendant, as the judgment shows, that fact was taken into account. That fact in the last analysis was decisive.

Q. Can you show that that point in particular was very decisive? Can you show us that by quoting a passage from the original file?

A. That is shown by our attitude to the clemency question. In our opinion on the clemency question we, without exception, repeated those facts which had been decisive for us in deciding on the sentence. We did not state other general points of view concerning the clemency plea because we didn’t know them, and secondly, because we were of the view that they didn’t affect us in any way. That brief opinion on the clemency question says--

“The character of the defendant has been clearly described at the trial, in particular also the fact that the defendant, apart from the offense which in its execution was very grave, has also made himself guilty of violent behavior toward his employer.”

In other words, it is made perfectly clear here that the last point of view was decisive for us.

PRESIDING JUDGE BRAND: May I ask you a question to which the answer, I think, could be brief? My notes show that the defendant was sentenced to death for violation of articles 2, 3, and 4 of the law or decree concerning Poles and Jews. Is there such a provision in your judgment? You needn’t read it. Just tell me if that is in there.

DEFENDANT ROTHAUG: Yes.

PRESIDING JUDGE BRAND: Thank you.

DR. KOESSL: The witness Doebig said that the offense in his view was not designed to prove that the offender was a public enemy. Would you, therefore, please briefly summarize the points which led you to assume that a very serious offense had been committed?

DEFENDANT ROTHAUG: The justification for our sentence can be seen from the opinion given by the court, and that is before this Tribunal. I cannot say any more. All I can add is, that specifically for this case that is to say for the original case that had to be dealt with, that is to say, for molesting the woman in a sexual way, there was a decision from the Reich Supreme Court which stated an opinion specifically in regard to this question and discussed it from its basic angles, and that decision evidently was the cause for considering the death sentence at all.

With us a further point of view was added and it was that decision that was made available to the court.

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PRESIDING JUDGE BRAND: I should like your professional opinion. Was the nullity plea[538] involved in the Lopata case? I don’t remember at the moment.

MR. WOOLEYHAN: Yes, Your Honor.

PRESIDING JUDGE BRAND: What is your best, honest judgment as to whether or not if Lopata had been a racial German there would have been a nullity plea and a direction from the Reich supreme court to retry the case? What is your honest opinion about that?

DEFENDANT ROTHAUG: Mr. President, these two cases cannot be compared with each other because the Reich Supreme Court in this case stated its opinion on the basis that he was a Pole.

Q. Now, I am asking if Lopata had been a racial German, all other facts being the same as they were in the Lopata case, is it your judgment that the nullity plea would have been invoked and that the Reich Supreme Court would have ordered the case sent back to you for another trial? I should like your opinion on that.

A. Mr. President, this question is very interesting, but I cannot even imagine that possibility, even theoretically, because the very elements which are of the greatest importance could not be applied to a German.

PRESIDING JUDGE BRAND: That’s all I wanted to know.

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F. Handling of Religious Matters

TRANSLATION OF DOCUMENT NG-630 PROSECUTION EXHIBIT 428

LETTER FROM DEFENDANT SCHLEGELBERGER TO CHIEF PUBLIC PROSECUTORS AND SENIOR PUBLIC PROSECUTORS, 20 JULY 1935, CONCERNING THE “STRUGGLE AGAINST POLITICAL CATHOLICISM”

The Reich Minister of Justice V a 25 399 Berlin W8, 20 July 1935 Wilhelmstrasse 65

[Illegible Stamp] [Handwritten] 2 copies sent to [illegible]

To: Messrs. Chief Public Prosecutors and Senior Public Prosecutors

Subject: Struggle against political Catholicism

For your confidential information and notice, I enclose a copy of the Prussian Ministerpraesident’s decree of 16 July 1935--St.M.I. 7905--to the Oberpraesidenten and Regierungspraesidenten, etc.

I decree it to be the duty of all prosecuting authorities to cooperate closely with the competent State Police and administrative authorities in taking action--with the deliberation necessary to avoid mistakes but also with the severity necessitated by the dangerous nature against all manifestations of the efforts of political Catholicism to undermine the unity of the State and create discord among the people, wherever they appear without regard for the person or rank of the perpetrator.

[Handwritten remarks on left margin illegible; illegible signature.]

For this purpose, the application of the following laws will be found particularly useful: Articles 130a, 131, 134a, 134b (as of 1 September 1935) Reich Criminal (Penal) Law; further, articles 1 and 2 of the law against insidious attacks on the State and Party and for the protection of Party uniforms of 20 December 1934[539] (Law Gazette I, p. 1269); the decree of the Reichspraesident for the Protection of People and State of 28 February 1933[540] (Law Gazette I, p. 83); the law against the founding of new parties of 14 July 1933 (Law Gazette I, p. 479); and the law against public collections of 5 January 1934 (Law Gazette I, p. 1086).

The cases must be investigated with the utmost rapidity, so that the punishment will follow the crime as quickly as possible. The penalties called for at the trials shall be such as the national sense of justice deems appropriate to the dangerous nature of these intrigues against the State and people and the unscrupulousness of the perpetrators.

A report must be made to me in quintuplicate in all cases where proceedings of this type are initiated. At the close of the investigation a concluding report on the incidents indicating the measures to be taken will be submitted to me. In case of an indictment, the bill of indictment, and later the sentence, will be submitted, each in quintuplicate. If the sentence imposed is made the subject of an appeal, a report must be made to me immediately, indicating the probable result.

This circular decree will be published in the next number of “Deutsche Justiz,” together with an extract from the decree communicated below, issued by the Prussian Ministerpraesident Goering on 16 July 1935.

As deputy: [Signed] DR. SCHLEGELBERGER

PARTIAL TRANSLATION OF DOCUMENT NG-1808 PROSECUTION EXHIBIT 557

EXTRACTS FROM THE OFFICIAL FILES IN THE CASE AGAINST LUITPOLD SCHOSSER, A CATHOLIC PRIEST, SENTENCED ON 19 DECEMBER 1942, UNDER THE LAW AGAINST INSIDIOUS ATTACKS ON STATE AND PARTY, BY A SPECIAL COURT HEADED BY DEFENDANT ROTHAUG

National Socialist German Workers Party Kreisleitung Amberg-Sulzbach (Gau Bayrische Ostmark) Bayreuth

Daily newspaper of the district: Amberg-Sulzbacher Zeitung Office and Editor’s Office Amberg Regierungsstrasse 1 Phone No. 6 Amberg, 12 June 1942

Kreis Office Amberg, Kaiser Wilhelmring 9 Telephones: 346 and 325 Banking accounts: County Savings Bank Amberg, Account No. 1501 Municipal Savings Bank Amberg, Account No. 150 The Kreisleiter Dr. K./St. Journal No. 1156/42 (to be quoted in replies)

To the Public Prosecutor at the Special Court, Nuernberg-Fuerth [Stamp]

Received: 13 June 1942 Prosecutor’s Office Nuernberg-Fuerth 1c

Subject: Charge against the priest Luitpold Schosser, born at Burghausen/Lower Bavaria, 28 April 1909, at Vilseck since 27 March 1939

On 17 May 1942 the Polish farm laborer, Martin Strysow, died in hospital at Vilseck. The priest Schosser announced in church after the usual Sunday evening May devotion that the transportation to the cemetery and Last Sacrament of the Pole would take place immediately afterward. Induced by this announcement, about 50 people, mainly women and children, participated in the funeral procession and praying loudly, as usual, rendered last honors to the Pole. A large number of the population took offense at this incident.

By this action the priest Schosser has malevolently criticised the national political demands of the National Socialist State. Furthermore, he has debased the dignity of the German people in an incredible way and has caused a great number of fellow Germans to behave in an undignified manner.

Judging from the usual attitude of the priest Schosser it may be expected that after having been informed of the charges made against him, he will try to influence possible witnesses. Therefore, I request his immediate arrest.

Heil Hitler!

[Signed] DR. KOLB Oberbereichsleiter [Rank in Nazi Party Leadership Corps]

[Stamp]

National Socialist Workers Party Kreis Amberg-Sulzbach

[Handwritten]

To the President of the Special Court with the request to issue a warrant of arrest for an offense against the law against insidious attacks on State and Party.

Nuernberg, 15 June 1942

[Signed] SCHROEDER Chief Public Prosecutor

Secret State Police State Police Office Regensburg

Regensburg, 18 June 1942 [Stamp] Received: 19 June 1942 Public Prosecutor’s Office Nuernberg-Fuerth

B. No. 1854/42 II B 1. With 1 file returned

To the Chief Public Prosecutor as Chief of the Prosecuting Authority at the Special Court,

Nuernberg

As I request you to gather from the enclosed reports, the case has already been dealt with here. The offense committed by Schosser was handled here in such a way that he was under police arrest from 1–15 June 1942. For that reason I have desisted from carrying out the warrant of arrest against Schosser for the time being. In case the warrant of arrest should nevertheless be executed, I request further information.

BY ORDER:

[handwritten]

[Signed] Alt [Stamp]

I. Make note of dispatch. II. With file.

Secret State Police State Police Office Regensburg Received: 24 June 1942 No. 1854/42 B 1

[Handwritten] To the Secret State Police, State Police Office Regensburg, repeating my request of 15 June 1942.

Local Court 2 July 1942 Weiden (Oberpfalz)

[Stamp] Nuernberg, 20 June 1942 Chief Public Prosecutor

[Signed] SCHROEDER

Arrest! Very urgent

Copy

1 c Sg 948/42.

Received: 21 August 1942 District Court Nuernberg-Fuerth Criminal Cases

St.

To the President of the Special Court, Nuernberg,

With the request to return the files, and to suspend the warrant of arrest, and order the release of the accused.

Nuernberg, 21 August 1942 The Chief Public Prosecutor as Chief of the Prosecuting Authority at the Special Court

BY ORDER: [Signed] HOFMANN

I. At the request of the Chief Public Prosecutor the warrant of arrest of the President of the Special Court of 15 June 1942 has been revoked, article 126 Criminal Procedure.

II. Order for release!

To the office of the Special Court--give order by telephone to release the prisoner.

III. To the Chief Public Prosecutor--time of release from arrest--13.15 hours.

Nuernberg, 21 August 1942 The President of the Special Court

[Signed] DR. FERBER Acting President

To II Telephone conversation: Court Jail Weiden; Telephone Charges: 3 Reichsmark

21 August 1942 Wi.

Received: 21 August 1942 Public Prosecutor’s Office Nuernberg-Fuerth

Certified. Nuernberg, 27 August 1942 Public Prosecution Nuernberg-Fuerth

[Signed] HUEMMER, Chief Clerk The Registrar

[Stamp] Chief Public Prosecutor Nuernberg-Fuerth

Files for cases concerning insidious attacks on State and Party Sg No. /194

Verdict

In the name of the German People

The Special Court for the district of the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court rules in the criminal case, against--on account of--in public session as follows:

[Handwritten]

Schosser, Luitpold, born in Burghausen, 28 April 1909, single, Catholic priest at Vilseck, at present in detention pending trial is to be punished by imprisonment of 1 year and 3 months and costs on account of two compound offenses, namely misusing the pulpit, as well as [violation of] article 2, paragraph 1 of the law against insidious attacks on State and Party,[541] committed by attacks against the National Socialist Reich in the religious-political sphere.

The 3 months of police arrest and of detention pending trial will be taken into consideration.

[Signed] ROTHAUG DR. GROS GROBEN

TRANSLATION OF DOCUMENT NG-770 PROSECUTION EXHIBIT 291

CIRCULAR OF THE REICH MINISTER OF JUSTICE, SIGNED BY DEFENDANT ENGERT, TO THE ATTORNEYS GENERAL, 12 DECEMBER 1944, REDEFINING LIMITATIONS ON DIVINE SERVICES FOR PRISONERS[542]

The Reich Minister for Justice

Berlin W 8, 12 December 1944 Wilhelmstrasse 65

To the Attorneys General (except Prague)

Subject: Adjustments in the application of the execution of sentences and detention custody (administrative ordinance) of 29 September 1944 “Deutsche Justiz” [German Justice] page 270.

Copies to the independent institutions, the district court prisons and other court prisons for early distribution.

There is reason to believe that the regulation under No. 4 of the Administrative Ordinance of 29 September 1944--“Deutsche Justiz”, page 270--concerning adjustments due to the war in the application of penalties and detention custody, is being misinterpreted. The regulation that divine services for prisoners and persons in custody will no longer be held is to be interpreted from the context. As the title already indicates, the measures of the ordinance are due to the war. The preamble to the ordinance already defines the purpose of the adjustment of the application of the ordinance due to total war. This purpose also restricts the application of the regulation under No. 4. Divine services are only temporarily canceled and only then where they are incompatible with the demands of total war.

Divine services at the present time are incompatible with the demands of total war where and insofar as they necessitate time which is essential to work for the waging of total war. Nor are they compatible when and where the crowding of prisoners or detainees during divine service constitutes a danger in itself or mixing the congregation of the institution’s church or in view of the small number and the age of the supervisory staff, it represents a danger to the institution’s security and thereby continuous production.

Insofar, however, as the time needed for the requirements of total war is not interfered with by the hours of divine services and the maintenance of the institution’s safety can be guaranteed, divine services may also be held in future especially at Christmas and other sacred holidays.

BY ORDER:

[Typed] ENGERT

Certified: [Signed] LORENZ Clerk

[Stamp] Reich Ministry of Justice

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS FATHER LUITPOLD SCHOSSER[543] CONCERNING HIS ARRESTS AND TRIAL

DIRECT EXAMINATION

MR. WOOLEYHAN: Witness, would you please state your full name and your profession?

WITNESS SCHOSSER: My name is Luitpold Schosser; I am a Catholic priest.

Q. Father, where is your parish?

A. My present parish is at Wolfseck near Regensburg.

Q. Has that been your parish for some time in the past?

A. That has been my parish for 3 years and 3 months.

Q. Where was your parish before that?

A. Before my trial, my parish was at Vilseck.

Q. Father, where were you born and when?

A. I was born on 28 April 1909 at Bernhausen, in the Holledau [Central Bavaria].

Q. What education did you have, and where was it?

A. For 4 years I attended grammar school in my own home village Hadersbach. Then, for 9 years I went to the high school at Straubing. Then, for 5 years I attended the university at Innsbruck, and for 1 year the Theological Seminary at Regensburg. In 1934 I was consecrated priest. Then, I was assistant vicar in several places. At the end, I was at Vilseck. Then my trial started, and after my trial from 1 February 1944 I have been a priest at Wolfseck.

Q. Father, while you were a priest at Vilseck, were you ever arrested and imprisoned?

A. At Vilseck, I was arrested twice, and at Regensburg, I was arrested once, because after my arrest I was not allowed to go back to Vilseck.

Q. Would you please state the dates, so far as you remember, of each time that you were arrested and imprisoned?

A. Yes. For the first time I was arrested on 1 June 1942, and I was kept in prison for 14 days by the police. That warrant was filled in by the Gestapo. After I had been imprisoned for 2 weeks, I was released. In the meantime, a second warrant for my arrest was issued by the Special Court of Nuernberg, and on 1 July I was arrested again. Then, until 21 August--that is for 7 weeks, I was in custody pending trial at Weiden in the district court prison of Weiden. Then, again, I was released and a few days later another warrant for my arrest was issued again by the Special Court of Nuernberg. Then, I had been in prison until 18 December 1943. For the third time I was arrested, that was at Regensburg--and my arrest was made by the Gestapo.

So, altogether, I was arrested three times; twice at Vilseck and once at Regensburg.

Q. Father, at any time during any of these three arrests, did the police ever tell you who had signed the warrant for your arrest?

A. Yes, when I was arrested the second time, the police commissioner of Vilseck told me that the warrant was issued by Rothaug from the Special Court of Nuernberg.

Q. After you had been arrested, Father, and imprisoned those three times that you describe, you also mentioned a trial. Were you ever indicted and tried before a court?

A. My trial took place on 18 December, that is on 19 December 1942, and the trial took place before the Special Court of Nuernberg at Amberg. The trial took place because of a [Heimtuecke] insidious attack, during a sermon which I had made 15 months before at Vilseck.

Q. Father, you state that you were tried on 19 December 1942, by the Special Court of Nuernberg, but that the trial took place in Amberg. Is that correct?

A. Yes, that is correct; it took place at Amberg, at the town hall.

Q. Would you please repeat again, so far as you know, the violation of law for which you were indicted and tried?

A. Well, the first arrest originated from the burial of a dead Pole who died at Vilseck and was sent over to the morgue from the hospital as was customary there with the dead. The dead Pole, as every other Catholic, was transported from the hospital to the morgue, therefore, the church had given him the sacrament in the morning. In the morning of this day he asked for a priest, and he was prepared for death. During the afternoon, then, he died. In the evening before we had our evening vespers--that was on a Sunday--the attendant of the morgue came to see me, and he informed me that I had to order the transport of this dead Pole from the hospital to the morgue and would have to take over the arrangements. I asked him whether it was permissible for me to do that, and he said, “Yes; the Magistrate has ordered that you do it.” Therefore, I had no further doubts, and I went to the morgue, that is, to the hospital, and I ordered the transport which was sponsored by the church.

Before I made my sermon at the evening vespers, as is customary at every transport of the dead, I communicated to my parish people that later on a dead Pole would be transported from the hospital to the morgue, because the people want to know who is the dead, who is in the coffin in order to be able to know whether they have any obligation to attend the funeral or not. Of course, as it was a Sunday, there were quite a number of people in the church, comparatively, and quite a number of them attended the funeral, because thus they had an opportunity to go to the cemetery, which was situated outside of our village.

Now, because of this communicating the fact to the people, I was charged mainly by the Special Court. They considered it an invitation, that is to say, that I intentionally invited the population to attend the transport of the dead Pole. That was the main charge made against me by the Special Court of Nuernberg.

They said that at this occasion, as the president said during the trial, I was said to have expressed religious feelings and used them intentionally in order to sabotage the directives of the State.

Q. Father, may I interrupt, please? You state that at the trial, the main charges, so far as you know, were this conducting of a funeral for the Pole and a sermon that you preached the previous year. Is that correct?

A. Well, the main charge in my trial was the sermon. That was the real reason for the trial, during the trial, the sermon was not so much dealt with but rather this whole matter with the Pole was dragged into the trial. In each detail it was talked about--just about this matter of having had the Pole transported. I was considered an insidious priest, and this was told to the public.

* * * * * * *

Q. Now, Father, the sermon that you delivered on the occasion in 1941, to which the indictment referred, what text was that sermon?

A. Well, the text was the sermon of the seventh Sunday after Pentecost. It is read every year. It is in Chapter VII of Matthew. “Beware of false prophets who walk around in the cloak of lambs but who in their interior are roaring wolves. You will recognize them from their cloaks.” That was the beginning of my sermon.

Q. Father, was this verse from Matthew the text of the sermon on that day every year?

A. Every year we use the same text.

Q. Now, Father, of the witnesses that were called against you--I believe you said there were four or five, which was it?

A. There were four witnesses from Vilseck and the Gestapo official Alt, but during the trial he didn’t talk at all.

Q. Well, of those four witnesses that did speak at the trial for the prosecution, how many of them heard your sermon of the preceding year, on the seventh Sunday after Whitsuntide?

A. Two witnesses had heard my sermon. It was the wife of the Ortsgruppenleiter and the newspaper distributor Meyer Johann.

Q. What did the newspaper distributor say or testify about your sermon?

A. During the interrogation by the Gestapo official, he declared that my preaching had been aggressive; he said that my sermon was an incitement.

Q. Father, you said that during the Gestapo investigation, he said that your sermon was aggressive and inciting, but that during the trial he denied that. Is that true?

A. Yes, during the trial he denied that he had said that the sermon had been an inciting sermon. This expression “Hetzpredigt,” [inciting sermon] he did not use. That is what he said during the trial.

Q. Describe, Father, the testimony of the other witness that had heard your sermon; namely, the wife of the mayor and Ortsgruppenleiter.

A. Well, the wife of the Ortsgruppenleiter had only referred, during the trial, to what she had told the Gestapo official, and the other witness, Kuffer, brought forward merely personal matters in order to paint me as an insidious priest.

Q. But this last witness that you speak of, Kuffer, had not heard your sermon, had he?

A. No, he had not heard my sermon.

Q. But the mayor’s wife had, is that correct?

A. Yes, the wife of the Ortsgruppenleiter attended the sermon and heard it.

Q. Well, Father, at your trial did the mayor’s wife testify or was the statement she had given the Gestapo only introduced?

A. No, the wife of the mayor only answered questions put to her by the presiding judge. She, herself didn’t say much.

Q. During the trial, Father, so far as you remember having observed it, will you please describe Rothaug’s conduct and words and statements from the bench.

A. Right after my trial, in the cell of my prison, I took some stenographic notes concerning the remarks made by the presiding judge, Dr. Rothaug, and on the strength of those stenographic notes which I have here on my table, I can make the following statement concerning the trial. First of all, the presiding judge referred to my education and there he became very personal right away and charged me with the fact that my whole theological education was rather backward, and that it would have been much better if I had studied something other than theology. He said that I only observed the whole development of national socialism as a bystander looking from the window. During my trial, the Hitler Youth passed the town hall, and at that occasion the presiding judge made the remark, “those down there, the Hitler Youth, that is the real life.” Later on, in the course of the trial, the presiding judge very often made ridiculing remarks concerning the Catholic religion, and made insidious remarks concerning the profession of priest. Some of these remarks, I can tell you literally, and they were the following: “You Catholics allege that only Catholics will reach heaven, all others will be in hell.” That is an assumption which no Catholic will ever make. Then, he said, and this remark was repeated again and again, “Not water gives value to man, but rather the blood.” And, of course, the water he referred to was the Catholic sacrificial water, or the water on the head--sanctifying water. For the National Socialist ideology has to be given to the child already with the milk of his mother; and there it appears my parents had failed to educate me in this direction. Those were merely personal remarks.

Q. Father, may I interrupt a moment. Are you saying that the presiding judge, Rothaug, made the remarks, such as you have just described, to you from the bench, during the trial?

A. Yes, from the bench, during the trial. These remarks, I may say that after all they were not only meant for me, myself, but for the whole profession of priesthood.

Q. Father, you have said that in your indictment, the main charge was one of malicious statements made during that sermon in 1941, but you also said that during your trial Rothaug said much more about the business of your giving a funeral service to the Pole. Can you give any facts to explain why you say that?

A. Yes. Special Court Judge Rothaug dragged two things mainly into this trial. First of all, the removal of crosses from the schools in the district of Vilseck, and then this transporting of the dead Pole from the hospital to the morgue. If I may add something concerning this matter of transferring the dead Pole; there again I can give you some more details.

Q. Yes, Father, I would be very interested in what Rothaug said about your transporting the dead Pole.

A. The whole courtroom was fully occupied. I, as well as the people attending the trial, was quite astonished especially by Rothaug going into the details concerning this Pole matter. He came back again and again on this matter in order to prove to me that I really had made insidious statements; and that I had had insidious and bad intentions, and on this occasion Rothaug showed a terrible hatred against the Polish people.

* * * * * * *

Q. Father, after your trial was concluded, what sentence did you receive?

A. I was sentenced, on the grounds of insidious attacks, to 15 months of prison, and 3 months of custody pending trial were counted.

Q. Father, after the ceremony and sermon which you preached on the seventh Sunday after Whitsunday 1941, how long was it from then until your trial, approximately?

A. About 15 months.

Q. Then, for 15 months after you preached the sermon for which you were tried as having made insidious utterances, nothing was done to you by the way of trial; is that correct?

A. No, during these 15 months nothing happened.

Q. One moment, Father, please. Fifteen months after your sermon, during which nothing was done, you were tried, and part of the case was the funeral sermon you conducted for a Pole, is that correct?

A. May I ask you to repeat the question, please?

Q. Father, 15 months after your sermon, during your trial, your conduct of a funeral for a Pole was a part of the trial, wasn’t it?

A. Yes, during the trial.

Q. Now, Father, when was this funeral for the Pole that you conducted?

A. That was on the third Sunday in the month of May. I think it must be about 17 May 1942.

Q. In other words, Father, the sermon that you preached, on which the main count of your indictment was based, was 15 months before your trial, and the Polish funeral was 2 or 3 months before your trial? Is that correct?

A. Well, the funeral of the Pole was in May 1942, and the trial took place in December 1942. That would be about 6 months.

MR. WOOLEYHAN: There is no further direct examination, Your Honor.

PRESIDING JUDGE MARSHALL: Does any defense counsel desire to cross-examine this witness?

DR. KOESSL (counsel for defendant Rothaug): I ask to examine the witness.

THE PRESIDENT: You may proceed.

CROSS-EXAMINATION

DR. KOESSL: Witness, for the first time you were arrested on 1 June 1942, is that correct?

A. Yes.

Q. You said before that you made the church sponsored transfer [to the cemetery] of the Pole, and that you were arrested because of that. Was this church sponsored transfer of Poles prohibited?

A. It was not prohibited for Poles, but I was charged with only the publicizing of this fact.

Q. I could not quite get that, unfortunately. May I ask you to repeat what you were charged with?

A. I was charged with the fact of having publicized this church sponsored transfer which is usual at Vilseck, and that I made it public. That was explained as if I had invited and even asked the population to attend the funeral.

Q. In other words, you were not charged with having transferred this Pole and sponsored it by the church, but rather, it was the fact that you had violated the State directives, is that correct?

A. Yes.

Q. The first point was dealt with only by the Gestapo?

A. Yes.

Q. In other words, Rothaug had nothing to do with that?

A. No, he had nothing to do with that.

Q. However, you were charged with other violations of State directives, were you not? Is that correct?

A. No, that is not correct. The Ortsgruppenleiter Stubenvoll had informed the Kreisleiter, Dr. Kolb, and he raised the point again because this sentence of 2 weeks was not enough for him, and that is the way this matter came to the Special Court in Nuernberg, and then it went on.

Q. Well, did this matter lead to a trial then?

A. No. As far as I know--

Q. Please go on.

A. As far as I know from my lawyer, this matter was diverted by Berlin, and that is why the second time, on 21 August, I was released again.

Q. But then there were other denunciations against you?

A. Yes, later on. After I had been released for the first time and when I was in custody pending trial for the second time, only then was this sermon brought to the knowledge of the [Nuernberg] Special Court.

Q. It seems that you were also denounced by the Ortsgruppenleiter for other activities.

A. Well, no, I was not denounced. I was only charged with them and reprimanded, but they had nothing to do with the court.

Q. Just a little bit slower, please.

A. At Vilseck, I only discharged my general duties as a priest.

Q. But your activities at school were talked about and other activities which were not compatible with State directives at that time?

A. Well, I have to object to that. That was only the opinion of Stubenvoll. Only in his opinion were those activities against the State. I never violated any State directives in that matter. I only stuck to my church directives.

Q. However, your youth organization and your school activity, what did they object to in those matters?

A. Well, for instance, as far as the pupils of the vocational school were concerned, I gathered them for education after the lessons. The Ortsgruppenleiter Stubenvoll didn’t like that, and then he made quite bad and mean difficulties for me. He threatened that I would be charged. Furthermore, I gathered the adult youth every 3 or 4 weeks in order to have discussions and a little lecture. There again, Stubenvoll sent informers, in spite of the fact that he had no right whatsoever to intervene in church matters.

Q. You speak of intervening in church matters. Can you confirm that as a result of the centuries-old tension between church and state in Germany, there were penalties for the misuse of the priest’s profession which were as old and which had been issued centuries ago?

A. I know only the “Pulpit Article,” and that had existed for quite some time.[544] Otherwise, I don’t know anything.

Q. Well do you know for instance, the Protizio of common law? You don’t know that?

A. No.

Q. The Protizio.

A. No, I don’t know that.

Q. But, you know that the “Pulpit Article” was issued during Bismarck’s rule; that is 1871, is that correct?

A. Yes. Even during the trial, Rothaug made a remark about it to me.

* * * * * * *

Q. Now, on the strength of that sermon at that time, you gave as a basis, chapter 7 of the Matthew’s Evangelical?

A. Yes.

Q. Was it the fact that this text was made the basis for this sermon which was objected to?

A. Well, that could not be objected to because I had no power over that. I had to take that text.

Q. Is it correct if I assume that, of course, the words which you joined to that chapter were objected to?

A. Well, yes. The whole sermon, as I said, was explained by the witness in a way as if I meant by the false prophets the leading personalities of Germany of that day.

Q. Did you mean them at that time?

A. I spoke in quite a general way, and I left to the people what they wanted to understand from my sermon.

Q. Well, did you mean the leading personalities? I would like to know that.

A. I spoke in a quite general way on these matters of ideology, and I left it to everybody. If I meant somebody then, of course, I meant, first of all, Rosenberg who actually was the man who was involved with the National Socialist ideology versus religion, by his book.

Q. In other words, the assumption of the public prosecutor was correct?

A. It was an assumption and they couldn’t prove it.

* * * * * * *

Q. Now, witness, you have admitted that the newspaper distributor Geyer expressly stated that your sermon was very aggressive.

A. Yes, the witness Geyer in the minutes taken by the Gestapo had testified that, and they had written it down.

Q. Also, the wife of the Ortsgruppenleiter, according to your own testimony, had testified that in church she had objected to what you said?

A. Yes.

Q. Was the wife of the Ortsgruppenleiter a woman who went to church very often?

A. Yes, relatively she went rather often to church. But one gained the impression--and also the other people who went to church confirmed this--that she went to church because she wanted to hear everything that was said in church.

Q. This woman, did she go to church before the time her husband became an Ortsgruppenleiter?

A. Yes, also during that period already, Frau Stubenvoll went to church regularly.

Q. And now you assume that this woman suddenly went to church only as an informer?

A. That was the general opinion in the village; it was not only my opinion.

Q. You have admitted that when Rothaug questioned this woman he generally stuck to what she had testified before the Gestapo, that is, as a line for his questioning.

A. Yes.

Q. Furthermore, you said that he asked leading questions?

A. He submitted it to her in a way that she could only answer yes or no in a very easy way. That was the impression the public gained. My family was there partly.

Q. However, this woman had already told all that. How can you say that Rothaug put leading questions to that woman and told her what she was to say?

A. Because in her testimony she was rather uncertain.

Q. Why did she suddenly get uncertain in her answers if she had already told the Gestapo the very same things?

A. Between the questioning by the Gestapo in August and the questioning during the trial in December there was quite a period of time, and Frau Stubenvoll didn’t have a good memory of what she had stated at that time. This impression my defense counsel gained, also.

Q. In other words, the first statements of this woman were apparently under the impression of your sermons, weren’t they?

A. Well, only what she may have stated to the Gestapo. During the trial, from her own knowledge, she didn’t speak too much. She only answered.

Q. Did you ever see a witness who does anything else than answer questions?

A. Well, the first witness, Stubenvoll--he just spoke and he told and reported everything he knew against me though he didn’t get any questions to that effect at all.

Q. But this man probably, on the strength of the Code of Criminal Procedure was summoned to explain what he knew. Can you remember that?

A. I cannot remember well whether he was summoned to do just that. He started to speak against me.

Q. Now, you mentioned the fact that Rothaug had alleged that in your tender youth your parents had forgotten to give you the education of a National Socialist.

A. At that time I was much older, but indirectly this came as a hint concerning my parents, and my brother confirmed that to me and the young lady who attended the trial, that he even hinted at my parents just when he spoke of education, of education from the tender youth onward.

* * * * * * *

Q. Witness, the entire question of the burial of the Pole was mentioned only because, apparently, it was contained in the files, and there it was used as further evidence of your attitude of opposition to the State?

A. These files, however, had nothing to do with the actual matter charged in the trial.

Q. However, it was further evidence of your entire attitude toward the State at that time?

A. Yes, that is how the presiding judge interpreted it and also expressed it.

Q. How long did the whole trial take?

A. From about 8 o’clock until 1:30 in the afternoon.

DR. KOESSL: I have no further questions. Thank you.

* * * * * * *

EXAMINATION BY THE TRIBUNAL

PRESIDING JUDGE MARSHALL: I understand that your testimony now is that the sermon referred to in your testimony was preached on the third Sunday in July of the year 1941. Is that correct?

WITNESS SCHOSSER: I can now tell you the exact date. It was 20 July 1941.

Q. I understand you to say that from the time of the preaching of that sermon a period of 15 months elapsed during which nothing happened. Is that correct?

A. Fifteen months passed until the trial. About a year later there was the denunciation because of this transfer of the Pole.

Q. About a year elapsed, then, before you were arrested, and then 3 or 4 months after that until the trial took place, is that correct?

A. Yes, that is how it was.

PRESIDING JUDGE MARSHALL: Very well.

MR. WOOLEYHAN: May the witness be excused, Your Honor?

PRESIDING JUDGE MARSHALL: The witness may be excused.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG CONCERNING THE CASE OF FATHER LUITPOLD SCHOSSER[545]

DIRECT EXAMINATION

* * * * *

DR. KOESSL (counsel for defendant Rothaug): I want to talk to you about the Schosser case, S-c-h-o-s-s-e-r. The Schosser case is mentioned in the English transcript on page 1743 by the witness Ferber;[546] and in the English transcript on page 3021 through 3066 by the witness Schosser. Witness, in this case the main charge against you is that you displayed special initiative. In addition to that the charge is made repeatedly that Schosser was prosecuted because he buried a Pole. Between what proceedings does one have to distinguish when the name Schosser is mentioned?

DEFENDANT ROTHAUG: This is a case of two proceedings, in fact. The first case had to do with the funeral of a Pole, but I want to state right now that naturally the funeral itself was not considered a punishable offense. That is the more recent case. Then, another proceeding is of importance here which has to do with the sermon on a Sunday in church. That case, the first case, in connection with the funeral of a Pole did not lead to a main trial or a sentence, but this sermon on the Sunday did. Those are the first things between which one has to distinguish, because in this connection the charge is made that I had started or initiated the second case after I had failed with the first one; and my aim is now to prove to the Court by submitting evidence, submitting documents, that I was not the initiator in this case, and in general, I object against that charge.

Q. Did you also deal with the first case that you find in the file before you? Look at page 6 of the file attached to the main file. It is the case SG-948, from 1942.

A. There are two cases, and it would probably be helpful to mention the file designations to avoid confusion. The first case--the case of the funeral of the Pole, if you want to call it that--has the file designation 1-C SG 948, from the year 1942.

Q. What was the cause for that case?

A. That case was initiated on the basis of a denunciation which the Kreisleiter of Amberg on 12 June 1942 sent to the public prosecutor at the Special Court Nuernberg-Fuerth. In this report it is set forth that, by the behavior of the accused Schosser in church, particularly by making an announcement about the funeral, and by guiding people to the cemetery, the German population to a far-reaching extent was caused to attend the funeral; and that that behavior was considered an offense against the measures which were prevailing at the time concerning the separation between Germans and Polish people.

Q. What did the senior public prosecutor do?

A. In this connection it may be necessary to point out that there was a definite regulation which I find in the official gazette for the diocese at Regensburg, published by the bishop’s office, Regensburg. In this publication, periodical, is a reprint of a decree, an official decree, concerning the spiritual care of civilian workers of Polish nationality employed in Germany. The bishop’s office reprints that decree by the Reich Defense Commissioner in the defense districts 7 and 13. Our area was in that district and this was published for the information of the priests. The decree deals in detail with everything that had to be done. Figure 5 is of importance. It says that the interment of Polish civilian workers, male or female, can be taken care of by German priests. Participation of the German population has to be reduced to the absolutely necessary minimum. No sermon may be held. That decree contains eight sections. I do not know if the remainder is interesting to the Tribunal. I could just refer to them if it is desired.

Q. If the Court is interested, will you please refer to them.

PRESIDING JUDGE BRAND: You may.

DEFENDANT ROTHAUG: First, on figure 1, it is stated that participation of civilian workers of Polish nationality in the church services of the German population is prohibited. Then it is stipulated that church services for Polish workers, male or female, have to be conducted separately. Where there aren’t enough Poles living, individual spiritual care is permitted, but under all circumstances it should be avoided that Poles and Germans should be together in the same room for that purpose. Services should only be conducted in the German or the Latin language. Publication of newspapers, periodicals, or Sunday magazines in the Polish language is prohibited. The priests had to restrict themselves just to the spiritual care of the Polish people. It ends with the words as follows: It is expected that the German priests should always be conscious of being Germans and of the duties arising from that fact and that offenses will be punishable.

DR. KOESSL: Was it made clear whether Schosser knew anything about that regulation?

DEFENDANT ROTHAUG: That, at first, could not be seen from the report received, but after he was interrogated, he referred to the fact that he had not known anything about all these circumstances and that that was what had got him into this trouble.

Q. Now, we want to find out what happened after that report was made.

A. It is first asserted here that I had commissioned Ferber, or that I had told Ferber that he should issue an arrest warrant, but Ferber had told me that he did not know what reasons to give for it and that subsequently I had handled the matter myself with a vicious remark and had issued the arrest warrant. The background history of that arrest warrant seems very dubious, but I don’t think it necessary to enter into that. On 15 June 1942 I issued the arrest warrant and that arrest warrant was based upon article 2, paragraph 1 of the insidious acts law, and article 130a of the Penal Code. In the case of this article 130a of the Penal Code, we were concerned with the so-called Pulpit Article, the offense of abusing the pulpit. It is of importance that that article alone which would have supported the proceedings, is a regulation which has nothing to do with national socialism, but is an article which emanates from Bismarck’s time, the time of the “Kulturkampf” [cultural struggle] in Germany, and the then liberal democracy factions in Germany brought it about against clericalism. This concept is found in article 130a. The arrest as far as facts were concerned was not based upon the circumstances that Schosser conducted that funeral for the Pole, but because as one could assume, and certainly can assume today, but on his knowledge of the German regulations and provisions and on announcing the intended funeral, and the transfer of the body from the morgue to the cemetery in order to persuade the German population to a far-reaching extent to participate, and therefore, to indirectly demonstrate its opposition against the regulations of the State. The funeral itself is not a matter for the church, but a matter for the State for the government of Germany, and the clergymen are only permitted to participate in the funeral, and to perform the duties commensurate with religious custom, to say the prayers, and everything that belongs with it. But the funeral was actually carried out by the municipal office. The discussion of such a matter and the announcement, conscious of the fact that it would cause a disturbance among the population, that was against the provisions of article 130a; and if this is connected with the intention to demonstrate opposition against measures of the State, which was certainly the case here, then the prerequisites required by law are complied with, and I do not know of anything further to investigate; but if all these elements are there, I have the obligation to issue the arrest warrant, and on that basis I did.

Q. Now, the witness Schosser has pointed out that he had already been arrested by the Gestapo, and that at that time he had been punished; he had been sentenced to 14 days. Can you determine from the files whether you issued the warrant of arrest before you knew of the police measures against Schosser?

A. From the files it can be seen without doubt that when I issued the warrant of arrest, I did not know anything about the occurrences at the Gestapo office of Regensburg which found its climax in the protective custody imposed upon Schosser for 14 days. That can be seen from the following.

Q. When did you receive information about that from the Gestapo?

A. I was just going to say that because you have already asked me. On 15 June 1942 the prosecution sent the arrest warrant to the Secret State Police at Regensburg. Subsequently, on 18 June 1942 the Secret State Police Regensburg replied with the information that it did not want to carry out the arrest at that time because a police measure was imposed, that is to say, the protective custody for 14 days on Schosser and returned the files together with the arrest warrant to the senior public prosecutor and that is the way he was informed in connection with that funeral. The Secret State Police already had taken measures. I was not informed about these facts, as can be seen from the file. Just the same, that arrest warrant was carried out, and that was justified.

PRESIDING JUDGE BRAND: May I ask you a question. Would you tell us in a few words the specific provision of the insidious acts law which was violated in this case? I don’t understand that.

DEFENDANT ROTHAUG: That was article 2, section 1. I can read it if you think it is desirable; I can quote it if you think it is desirable.

PRESIDING JUDGE BRAND: I would like to hear that if it is brief; I haven’t it before me.

DEFENDANT ROTHAUG: This is the provision. Schosser--

DR. KOESSL: Give the legal provisions, Witness.

DEFENDANT ROTHAUG: Yes, that is what it is. It is suspected that Schosser made vicious remarks in public, derogatory remarks about the leadership of the State, the NSDAP, its provisions and institutions--

Q. Witness, will you please read the insidious acts law itself--rather than--

A.--which are designed to undermine the confidence of the people in the leadership. In connection with that I want to mention that we always include the actual text of the law in the arrest warrant.

PRESIDING JUDGE BRAND: Give me the date of that law, please?

DR. KOESSL: The insidious acts law.

DEFENDANT ROTHAUG: The insidious acts law is of 20 December 1934; 20 December 1934.[547]

PRESIDING JUDGE BRAND: That is all.

DR. KOESSL: And now will you please tell us--

DEFENDANT ROTHAUG: The law speaks of statements, but the same applies to behavior which permitted a conclusion, that is to say an act which looked at on its own merits may be correct, but by the evaluation which it is given by others, may have the character of a malicious act. I have also explained that we were not informed about these matters. The defendant was arrested and was questioned before the local court in Weiden.

Q. Did he do anything about his arrest?

A. He filed a complaint against the arrest, he filed a complaint against the arrest warrant; a decision was made.

Q. About that appeal, did you have anything to do with that decision?

A. That decision was formally not correct, but substantially it is very interesting because by that decision the complaint against my arrest warrant was rejected; and rejected by the one person who now charges me with having issued that arrest warrant. That was signed--it happens to be signed by Mr. Ferber, who asserts that I had pulled a dirty deal with my arrest warrant.

Q. You yourself had nothing to do with that decision?

A. I had nothing to do with that decision; the case went on and was soon suspended after the defendant had been interrogated, and that was one thing we didn’t know when we issued the arrest warrant, he explained that for quite some time he was in the army, and it was granted him that he might not have been as well informed about the entire atmosphere around the question of Poles in Germany as one would have expected otherwise. The case was suspended on 27 August 1942, with the reason that it could not be proved that the defendant intended to demonstrate his opposition against the measures of the State concerning Poles.

Q. You have been charged that because that case was not successful, you had initiated a second proceeding, the one concerning the sermon. Will you please, first state what the prosecution had decided already on 9 July 1942, that is to say, before the end of the first proceeding. You find it on page 12 of the files, a disposition made by the prosecution on 9 July.

A. That is the worst part of the charges which are raised against me in this connection. As I have said, I can refute it by documents, by just mentioning several documents in chronological order which will clarify the connections. In the file concerned with the funeral of the Pole, on page 12, 9 July 1942, there is a short disposition on the part of the prosecutor where he requests a list of previous connections and political record. Therefore, for that funeral case, one wanted to have the political record of Schosser from the Party. The prosecutor shouldn’t have done that really, but he was new there, and he committed that blunder, and that was how the whole thing started. It was prohibited to request any political record of a clergyman because one considered--one knew generally that the clergy was against national socialism; that was no secret; but now in spite of that, the Party reacted upon that request and sent a certificate of that kind, not to me, but to the prosecutor who requested it.

* * * * * * *

Q. What was the course of the second case, the case of the sermon? In that case, serious charges were also made against you concerning the treatment of the clergyman Schosser. Will you briefly describe the course of those proceedings, and will you please state whether the part you took in that case justifies the charge of being the main instigator leveled against you?

A. In the further course of the proceedings that charge cannot be considered since the proceedings were already started when the case came before me. On 25 August 1942, I issued the arrest warrant. We did not go as far at that time as the confession or the statements made by Schosser in the trial would have permitted us to go. If we had assumed that his entire sermon from beginning to end was directed against the wolves in sheep’s clothing, we could have characterized the case as one of high treason, and we would have had to pass it on for that reason to the competent authority. We only assumed that in the course of the sermon various doubtful statements had been made which had nothing to do with God the Father, and that was how it came to trial.

Nothing further happened. Investigations were carried out such as in every other case, and there was a defense counsel.

* * * * * * *

Q. Now we want to continue; where did the session take place in the second case?

A. In the town hall court at Amberg.

Q. What parts of the population attended that session?

A. All categories of people. The court room was right in the center of the town and when people had found out that there was something going on, they just came.

Q. What was the composition of these people, according to their denominations?

A. The great majority of the population was Catholic.

Q. Did you have to take certain considerations on account of that?

A. Of course. One had to avoid anything which could hurt the religious feelings of these people. Cases against clergymen required a great deal of caution and a great deal of tact so that no wrong impressions were made, because it was generally considered undesirable to make the impression, in any way, that it was intended to injure the religious feelings of these people.

Q. What, in brief, were the charges against Schosser and how did he defend himself against them?

A. The charges did not refer to the entire sermon, the subject of which was false prophets, but two basic thoughts were mentioned. For one, the thought that the leading individuals--meaning in the State--intended to take the Catholic faith from the people. In addition to that, the defendant also was charged with having attacked the principle prevailing in Germany of religious freedom. That was the charge.

Q. Schosser asserts that his sermon itself was really not the focus of interest; but that you had dealt emphatically with the matter of a funeral, and you had included that in the case. Is that correct?

A. The matter of the funeral was not the subject of the indictment so far as it was not considered a basis for any legal facts in connection with it, but it was merely mentioned in the course of the trial. It is correct that this matter was discussed in connection with the matters contained in the indictment, but not in the manner that it was the most important part of the trial. It was quite legally admissible to mention it, as I have mentioned.

Q. Can you prove, from the files, that the prosecution submitted the files concerning the sermon question to the court?

A. That can be seen from the file.

PRESIDING JUDGE BRAND: Is that file in evidence?

MR. WOOLEYHAN: No, Your Honor, it is not.

DR. KOESSL: The case was only discussed by the witness Schosser.

DEFENDANT ROTHAUG: By an order in the file SG 948 from the year 1942 (matter of the funeral), the prosecutor decided on 27 August 1942, under III, “Filed without subsidiary file”, that the matter SD 1312 of 1942--that is the sermon matter--after that file had been returned, was to be attached. By way of that disposition, these files concerning the funeral were submitted by the prosecution as material evidence, together with the sermon file, with the consequence that I received that material and had to discuss it with the prosecution witness at the main trial. That was legally permitted at all times. The judge was authorized to touch upon matters which had become either the subject of amnesty, or where an acquittal had occurred, or on matters referring to cases that had been suspended, or where a sentence had been passed. He could touch upon all these matters in a different case and discuss them for the purposes of the case at hand. Whether that became the basis for an evaluation for that new trial--that, of course, could only evolve from that main trial and the discussions therein.

Q. What was the basic purpose of discussing that question on your part?

A. The fundamental purpose of discussing these matters was to specify the obligation that all individuals and all offices had to heed the measures and regulations issued by the State, and the final purpose was to establish what basic attitude the defendant himself had with regard to that problem.

* * * * * * *

Q. Schosser says you had attacked him on account of his profession, and you had attacked, in fact, the entire clerical profession. What was it about these alleged attacks?

A. That just isn’t so. As was required for every case, the interrogation was a conversation between myself and the defendant and, in the course of that conversation, I went into the question that people, if they wanted to go to church, wanted to hear about heavenly matters and didn’t want to hear anything about politics. If he wanted to deal with questions of that kind, he shouldn’t have become a clergyman but a politician.

Q. In connection with the education of youth, you are supposed to have reproached him that in the house of his parents, he hadn’t been educated in the National Socialistic sense.

A. That kind of a conversation would have been straight nonsense because Schosser was born in 1909 and, at that time, there was no such thing as national socialism. Consequently, I could not blame him. * * *.

PRESIDING JUDGE BRAND: We understand your answer.

DR. KOESSL: It is also asserted that you reproached him that the Catholics were saying that Protestants were going right to hell. Quite briefly, please.

DEFENDANT ROTHAUG: That again was an entirely different thought. I set forth that the German State has two great denominations and many others and can, therefore, be neither Catholic or Protestant but only absolutely neutral. It was, of course, up to him personally in his clerical field to speak for the accuracy of his opinion and his faith. If you are of the opinion that all those who are of a different denomination will go to hell, it is impossible for the State to share that opinion. As far as we are concerned, everybody will go right to heaven.

Q. Another question, quite briefly. Will you tell us what was said about Rosenberg?[548]

A. The name Rosenberg was brought in in the following manner. Schosser himself referred to it because his line of defense was that he had not intended to attack the Party by his statements but new [religious] ideas [neopaganism] and that he particularly intended to turn against Rosenberg with his statements. Thereupon, I told him that at any time it was his right to refute the thoughts which Rosenberg developed in his book, “Myths of the 20th Century,” in his sermons and to prove that they were wrong, only he had to specify what he intended to refute and whom he intended to refute because that, of course, was the most important thing of the trial. He had to exclude any possibility that these things might be carried into the general political field. That was the basis for my thoughts.

Q. Under what provisions was Schosser sentenced?

A. On the basis of article 130a of the Criminal (Penal) Code and article 2 of the Insidious Acts Law,[549] that is to say, according to German law both provisions became applicable; as we would have said technically, there was a sort of a legal connection between the two laws.

Q. Would Schosser have been punishable if there hadn’t been an Insidious Act Law?

A. Of course, on the basis of article 130a.

Q. As far as the facts are concerned, had the case Schosser been dealt with leniently or severely?

A. As far as the facts were concerned, it had been dealt with most leniently because the basis of suspicion was that the entire sermon of the false prophets and the roving wolves in all its structure and tendency was a political attack against the government. Schosser, when he was heard here as a witness, more or less admitted that. In our evaluation, however, we did not go that far, but we only referred to these two basic attacks.

* * * * * * *

EXTRACT FROM THE TESTIMONY OF DEFENDANT KLEMM CONCERNING PROSECUTION EXHIBIT 291 AND LIMITATIONS ON DIVINE SERVICES[550]

DIRECT EXAMINATION

DR. SCHILF (counsel for defendant Klemm): The prosecution in this connection submitted another document, Prosecution Exhibit 291, that is Document NG-770.[551] It deals with the problem whether church services could be held in penal institutions. I ask you whether you had anything to do with that matter?

DEFENDANT KLEMM: Yes, and I remember it quite well because I had a rather hot argument with Thierack about that matter.[552] Thierack, without informing me, prohibited that any church services could be held in penal institutions. I found out about that directive through the Deutsche Justiz--the periodical for German Justice--of 1944, on page 270. I immediately went to Thierack and referred to ethical reasons, but he did not abstain from his intentions. Then I used stronger arguments. I told him that I knew from the period of my work in the Party Chancellery that Hitler himself had issued a strict order that during the war all measures which might cause struggles with the church should be abstained from. Thierack doubted that. I offered that I would get a written confirmation from the Party Chancellery about that. He forbade that I write to the Party Chancellery. I told him in the course of the conversation that I was quite sure what the outcome of that matter would be. The moment one bishop would turn to Hitler, Hitler on account of his basic attitude would disavow Thierack.

A short time later when letters were received from German bishops, from the Protestant side as well as from the Catholic side, I went to Thierack and he became rather thoughtful and agreed to rescind the former order. That happened in a very carefully stated form, but it actually occurred. Especially for that matter, I claim a certain amount of credit.

* * * * * * *

VI. FINAL STATEMENTS OF THE DEFENDANTS[553]

PRESIDING JUDGE BRAND: The record will show that the defendants have already had the opportunity to testify at length under oath, and they are now accorded the privilege, in each instance, of making an unsworn statement for the benefit of the Tribunal.

We will hear the first defendant, Dr. Schlegelberger.

DEFENDANT SCHLEGELBERGER: These words of Pope Gregor VII are world-famous: “I loved justice and hated arbitrariness; therefore, I die in exile.”

I feel confident that your judgment will save me from that fate. But I, too, in imprisonment, could not overcome the bitterness of being rewarded for my hard struggle for justice by this period of shame and misery. The charges and insults of the prosecutor do not apply to me. My life is not compatible with the intention of crime. The attempt to destroy the alleged myth around my person by showering abuse at a man who has aged honorably was bound to fail. The Goering affair has been cleared up as completely unexceptionable. The connection between it, my draft of a law, and my resignation is based on a freely invented malicious construction which lacks all foundation. In spite of my advanced age my defense was easy for me. All I had to do was to tell the Tribunal the truth. I have done so in the firm conviction that truth will be victorious and with the undaunted pride of a clear conscience.

PRESIDING JUDGE BRAND: The defendant Klemm may address the Court.

DEFENDANT KLEMM: The prosecution has endeavored to show that I am not worthy of credibility. In long winded arguments it endeavors to connect a very few apparently positive points by combinations which lack all foundation, both in factual and political respect. Distortions and arbitrary additions have to serve this purpose. In the case of Sonnenburg it is said that Hecker had stated that Hansen had said that Klemm did not feel comfortable in connection with this matter. Not a word to this effect is to be found in the transcript of Hecker’s testimony. Although, in cross-examination, Hecker clearly could not maintain the agreement as he described it in his affidavit, the prosecution maintains the agreement, although its own witness, Eggensperger, denied it as well. And now another final example. Heydrich’s directives to his police agencies to take Jewish women into protective custody is presented by the prosecution as being an agreement with the judicial administration. There are many more examples. But please let me say only the following with regard to what the prosecution stated this morning. Due to the propaganda of the State, we were convinced at the outbreak of the war that justice was on our side. A dictatorship could not and does not permit its cards to be shown. And, finally, we are not here charged with crimes against peace. To what Mr. King said regarding Prosecution Exhibit 252,[554] let me state the following: The list of 17 January 1945, containing reports on death sentences, deals with a list of the Minister, for it contains doubtful cases, and from that I gathered that it could not be my list after I had also seen from the photostat that there were several dates on the top of the list. Even if both lists should be from 1945, the same applies as with regard to the lists on pages 154 through 157 in document book 3-L, according to which separate reports were made to me on individual cases and to the Minister on death sentences. If the prosecution bases its case on the testimony of the witness Altmeyer, this testimony has been refuted with overwhelming clarity by the testimony of Hartmann, Franke, and Ehrhard, and the prosecution overlooks that, in his cross-examination, the witness Altmeyer, in particular had to deviate from his affidavit. The prosecution mentioned furthermore a case of theft from airmen where proceedings were quashed. I remember the case distinctly. An airplane had been destroyed, and from the wreck objects had been stolen which had already been partly destroyed by rain and fire. The proceedings were stopped because the subjective prerequisites of theft could not be proved. The prosecution has failed to show what this theft from a wrecked airplane had to do with lynching of aviators. All in all, the result of the statements of the prosecution is as follows: In this trial it was not only German justice of the past years that was indicted, but the continental legal system, a system in which for many decades the obedience to the law and the norm created by the State has been the only task of the jurist. Before 1933 I had been educated and trained in this school of thought. What legal and factual opportunities were open to me I used in favor of justice wherever I could do so. To revoke laws and norms which had existed for years was not in my competency.

PRESIDING JUDGE BRAND: The defendant Rothenberger may address the Tribunal.

DEFENDANT ROTHENBERGER: I was a National Socialist, and in that respect I distinguish myself from those who for 10 years and more were placed in leading positions in the Third Reich and today say that they were not National Socialists. When I realized that national socialism was destroying the very values for which I had lived and for which it had promised to work, I decided with all my energy to influence the development of national socialism in the sphere of justice. I did not want to be a hanger-on. It was not my way to content myself with tactical maneuvers or withdrawals, which gradually brought about an undermining of the administration of German justice. The struggle for the idea of the judiciary within the framework of a totalitarian state I made the focal point of my life. And, therefore, I consider myself to be under an obligation to declare today that the German judge and his judgment, since 1933, were subjected to excessive attacks from the Party and from the SS without being given any backing from the leadership of the Ministry. Here lie the causes for my actions. At the beginning, I believed that in a totalitarian state there could exist a free judiciary. In the course of time I realized that most of the Party leaders, and in particular the SS leaders, found the very essence of the judiciary an obstacle in their way. I did not wish it to be true that there should be no way to save my Fatherland from such a dangerous development and therefore I clung to Hitler. In so doing I found myself in the company of many clever people in all spheres of human activity in Germany and abroad. As to whether my reform of the administration of justice has been rightly called by the prosecution a Nazi reform which--it is true--called itself National Socialist, but which aimed at excluding the influence of the SS and the Party from the administration of justice, and which contains not one word against Jews or foreigners, but on the contrary claimed the entire administration of penal justice, including that for foreigners and Jews, for the judiciary--with confidence I leave it to the Tribunal to decide that question.

I do not ignore today that my life work which has eaten up my nervous strength was bound to fail; nor do I ignore that my aims were, at times, in contradiction to the practice of life and also my own attitude, but is it not always like that in the life of human beings that just because there are such abuses and just because at times one’s self is weak, one takes that very circumstance for a cause to set up postulates which serve as aim and direction, but which we cannot immediately, particularly in wartime, put into effect, since the power of conditions is stronger than ourselves. And how far the power of the SS and the Party had extended I realized as late as 1942 when I came to Berlin and got an insight into conditions in the Reich. That Hitler himself was a despot and that he coupled me together with a man who showed himself to be a tool, without any will of his own, of Himmler and Bormann, that was my tragic misfortune.

I had to experience one set-back after the other. At the very beginning of my work I was compromised in the whole of the Reich by the well known SD report of Himmler’s in October 1942, which prophesied that I would soon resign, and the only positive point which kept me was the hope and the confidence of the German judges.

There are only two charges of the prosecution which they made in their final plea that I want to answer now. How can the prosecution from my speeches in Hamm and Lueneburg, of the latter of which the text does not even exist, conclude that I was in favor of exterminating the Jews? Both speeches exclusively relate to degenerate and incorrigible criminals. In the usage of the German language, they are antisocial elements and for those elements I demanded, according to another prosecution document, a judicial authority. And the second charge is that I am a liar. The Jewish pogrom in 1938, they say, had been on quite a different scale in Hamburg from the way I had described it. As to how the Jewish question was handled in Hamburg you can see clearly not only from a prosecution document but also from the affidavit by the man whom the British, after the surrender, appointed Lord Mayor of Hamburg. I am speaking of Mayor Petersen who is half-Jewish himself.

That in my struggle I was placed in outward contact with wrong, that lay in the very nature of things. I assume responsibility for every action of my own. The consequences which are now borne by the whole German people justify the fact that former leading personalities also bear the consequences. But I am of the opinion that crimes which were committed by my greatest enemies behind my back cannot be held against me. As soon as I heard of them I drew the consequences.

After 16 months, in 1943, Himmler, Thierack, and Bormann finally made me unemployed. I was 47 years old at the time. Without overestimating the power of my personality, the road for the wishes of those men, concerning the administration of German justice, now lay open.

PRESIDING JUDGE BRAND: Defendant Lautz may now address the court.

DEFENDANT LAUTZ: At the beginning of the prosecution’s oral presentation, the chief prosecutor emphasized that the roles which the defendants are assigned in these proceedings are new for them. That is true, as far as this refers to the position which we now have to hold before this Tribunal. Apart from that, we public prosecutors are quite familiar with the role of defendants in criminal proceedings. A man like myself who, in 25 long years, became acquainted with the fate of men in prisons, in courtrooms, in penal institutions, and on the way to the place of execution, knows very well the tragedy of this role and one who, under the official robe, has preserved a human heart, will the better recognize that not blind zeal for prosecution, but much rather wisdom coupled with human understanding are best designed to serve the aim of true judicial administration.

The German public prosecutors in their overwhelming majority recognized this also in the Third Reich. Therefore, none of the charges made against me here I feel to be more unjust than that, by filing malicious indictments, I had done injustice for the sake of injustice. I trust, however, that these proceedings have shown how unjust this charge is. The office of a public prosecutor is a very hard one. It is easier in peace than in wartime, but it became incredibly difficult during a war which is without example in history and which has left our Fatherland--which also meant everything to us public prosecutors--in ruins.

PRESIDING JUDGE BRAND: Defendant Mettgenberg may address the Tribunal.

DEFENDANT METTGENBERG: Your Honors. Novel, alien, and unaccustomed as it was to the previous speaker, so it is to me the situation in which I have found myself for months as a prisoner in the dock; and that is what the prosecution said when this trial opened, novel, alien, and unaccustomed were to me many things in this trial which concludes today.

All the same I, for my part, have tried to make my contribution to the correct carrying out of these proceedings; with complete frankness I have described my past career, and I have given you my views concerning the points with which the prosecution has charged me. There is nothing I have to hide.

Now at the end of this trial the prosecution deemed it necessary, I believe without regard to the evidence, to ask of you that you should convict me for having committed war crimes. It may be that you will convict me for having committed war crimes. It may be that that is the duty of the prosecution. It is not for me to arrive at a judgment about that. The prosecution must take the responsibility for their motion.

My defense counsel has asked you to acquit me. I too ask you to acquit me, but Your Honors, I ask you for more than that. As far as I am informed, it is in accordance with your legal views to acquit a defendant if there is a reasonable doubt about his guilt. I am of the opinion, and please do not think me arrogant, that I may expect you to find that there is no reasonable doubt as to my innocence. Even after careful and conscientious examination, such as I have given to my own past, I believe I am justified in making this request.

PRESIDING JUDGE BRAND: The defendant von Ammon may address the Tribunal.

DEFENDANT VON AMMON: I have nothing to add to the statements made by me on 1 and 4 August under oath in the witness box.

PRESIDING JUDGE BRAND: Defendant Joel may address the Tribunal.

DEFENDANT JOEL: I wish to remain silent.

PRESIDING JUDGE BRAND: Defendant Rothaug may address the Tribunal.

DEFENDANT ROTHAUG: Prosecutor King in his final plea mentioned a death sentence passed by a French court against a president of a court in Strasbourg. May I refer to the fact that this involves a so-called in absentia sentence in which the defendant had no opportunity for his own defense whatsoever, because at that time he was in a German internment camp and by sheer accident happened to read of it in a newspaper.

I served my country throughout my life and in whatever position I was assigned to, in faithfulness, with a pure heart, and without malice. Seen from my present position you might consider this wrong, and you could say I and all those who surrounded me should have been more suspicious of developments as they took place. This prognosis in retrospect is just as convincing as it is cheap. Nobody in our position at that time could be of the opinion that the State which we served could be accused of being altogether illegal and that the war that it waged was a war of aggression, as is demonstrated today to all the world. Therefore, it is no accident and no excuse that, apart from defending myself against the flood of personal defamations which I received from the circle of my previous friends and assistants, I am now anxious to prove to you that both in the service as a judge and prosecutor, I applied the laws of my country in the manner in which they were intended, to the best of my conscience and belief. We were guided by the practice of the Reich Supreme Court and went the same way which was taken by the remaining 60 to 80 Special Courts in the Reich. We were no specialists in crimes against humanity, and no proof has been furnished in any single case that, in any connection, we had applied an illegal method.

Thoughts of extermination were not represented in my sphere of work, nor did we ever hear anything to the effect that in the field of justice they played any part at all. We knew of shootings of people who had been sentenced only to prison terms. That was openly reported in the newspapers. Apart from that, these proceedings applied to four people who, under my presidency, had been sentenced to imprisonment--among them, the Eisenberger case mentioned here. But I myself only heard of the inner connections of these events when internal official files of the public prosecution became accessible to me here. We saw and judged the facts in a different light. The country was an area of warfare. I have experienced the terrors of Verdun. As far as misery is concerned, it cannot be compared with the effects of one single air raid, lasting 45 minutes, on the civilian life of this city. The principle of war which threatens life itself had been made the principle of life. We therefore understood, guided by this point of view, that the laws required harsh proceedings in the case of crimes which exploited conditions of war, and that habitual criminals, violent criminals, and saboteurs of all kinds, in view of the decreased security of the conditions as they existed in the country, had to be held down. If, on the other hand, we are told that thereby we had supported a war of aggression carried on by our government, then we can only say “we did not know that.” Once war had come, the life and existence of millions of peoples was involved, and we derived therefrom the ethical justification for severity against individuals, which stood in no proportion to what was at stake. The logical calculation of war in regard to life is that hundreds of thousands of people are sacrificed to save the lives of millions, and this principle was transferred to the entire public life and in the field of criminal law, this was tied to the concept of guilt. And that was how our work, our activity, was understood. If today we are no longer understood, and if attempts are made today to judge our actions as criminal, this is not very surprising in view of a world which does not look too far below the surface of things. For the catastrophe has made all our actions appear in the destructive light of “in vain.” This qualification which also has a demoralizing effect, disguises all connections which might speak in our favor in the question of humanity. This is the tragedy of our case, and we are convinced that Your Honors will not fail to see it.

PRESIDING JUDGE BRAND: Defendant Barnickel may address the Tribunal.

DEFENDANT BARNICKEL: May it please the Court. The great Frenchman Honoré de Balzac, for whom I have had a great respect since the days of my youth, puts into the mouth of one of his characters these words, “I believe justice to be a development of a divine idea which is suspended above the world.” That idea, whether one shares it or not, is certainly very beautiful. It remains beautiful even if justice does not always reflect its divine origin. We jurists whom fate had condemned to work in the Third Reich--and I am by no means referring only to us who are here, I am referring to all of them--we know what was the matter with the administration of justice in the Third Reich. But in whatever way this administration of justice may have worked, I believe one must view it in connection with the fate of the German people. Professor Jahrreiss, to whom all of us in this trial listened with interest, once coined the phrase that for decades the German people had no longer known normal life. Every single one of us actually experienced that himself. If I may make it more clear from the example of my own life, I want to read a few sentences from my diary for the last time. This is an entry which I made on 9 June 1942, and I wrote it under the influence of a Swiss novel, the title of which is “Amadeus”, and I quote:

“When I thought about it for longer as to what I liked so much about ‘Amadeus’, this occurred to me, it is peace, the peace in which these people live, and in which they can develop. Peace which, to us Germans, has become something quite strange because since 1914 we have not had it any more. Before that time we, too, lived in such an atmosphere, but since then we have always had war, or at least a pressure which was like war. From 1914 to 1918 there was a war on. In 1919 an intermediate phase set in. From 1920 to 1923 there was the inflation. From 1924 to 1927 there was the deflation. From 1928 to 1929 there was a brief recovery. From 1930 to 1932 there was a financial crisis and a continuous political crisis. From 1933 to 1939 the German people were molded into a new cast by force. From 1939 to 1942 there was war. From 1942? Still war!

“I am 57 years of age today--at that time--18 years of that were the years of my youth; 28 years were war years. For 11 years there was a real life. And these were the years of development--of immaturity--years of struggle, years of suffering and poverty. But in between there were also many happy hours.”

That is how I looked at my life at the time. And it was similar for every average German citizen. Every normal German longed for peace, for peace which had become something quite strange to us, and every German has that longing deep in him, just as I myself--but it was not within his power to achieve that peace. We saw it merely like a ghost. But the same fate which individuals have, is the fate of the spiritual institutions of their nation. And the administration of justice, too, shared our fate; it, too, was hemmed in in war and political violence, which were foreign to its nature. No wonder that, at the end of that last period of 30 years, justice, too, had been wrecked, just as millions of people and their lives had been wrecked! Let us hope that from that destruction, new life and new culture will develop. For, after all, so far every generation has lived on the ruins which were left by its predecessors, and built its houses from those ruins. Let us hope that what we see in Germany at this moment is already part of reconstruction and no longer of destruction, and also, I hope, that we--as Balzac put it--one day again shall be able to believe that justice is the development of a divine thought which is suspended above the world!

PRESIDING JUDGE BRAND: Defendant Petersen may address the Tribunal.

DEFENDANT PETERSEN: Your Honors, World War I signified a deep cut in the history of the German people. There existed the great danger for Germany of being swamped from the East. It was in the hope to prevent this that I joined the NSDAP. Germany was to remain one bulwark against bolshevism, a pillar of Western culture. I once entertained the great hope that national socialism would contribute its part toward this end. I do not want to describe my disappointment; the way led past stations of terror. In all my actions I was guided by the ideal of fulfilling my duty and of serving my country. It was solely my conscience that formed the basis for my actions, irrespective of whether I was an officer, SA leader, State counsellor, or only an honorary associate judge of the People’s Court. I have nothing further to add to this. My conscience is clear. Therefore, I am calmly expecting your verdict.

PRESIDING JUDGE BRAND: The defendant Nebelung may address the Tribunal.

DEFENDANT NEBELUNG: I was a German judge. I followed the laws of my country and my knowledge and my conscience in passing judgment. Germany has lost the war. If the law of the victors so demands of you--I do not believe it does--then you must condemn my actions. In this trial the tragedy of the office of the judge has been mentioned frequently. Is that anything special? Does not every soldier find himself in the same situation? I, too, have had that experience both as a soldier and as a judge, but not here in prison, not in the dock, but by the gun and on the bench. By that I want to say the tragedy does not lie in the consequences. I do know how to bear the consequences of a sentence, for I believe in the words of the German who was both a judge and a poet, Theodor Storm, “One man asks, ‘What will happen next’? while the other merely asks, ‘Is that right’? And that is how the free man is distinguished from the serf.”

PRESIDING JUDGE BRAND: The defendant Cuhorst may address the Tribunal.

DEFENDANT CUHORST: Your Honors, I have to add the following brief words to the final plea of the defense counsel appointed on my behalf. Indictment and prosecution statements reveal that in these proceedings I am only pars pro toto. The prosecution with its evidence is unable to prove any charge which would actually apply to me. The prosecution in its final plea has failed to mention a whole series of charges in the indictment, and others for the same reason, namely, lack of evidence, it left in abeyance. In presenting its evidence the prosecution not only ignored my evidence but also its own, in part. What other reasons are there to explain that they submitted in the course of the cross-examination Document No. 983 [NG-983, Pros. Ex. 570], which reveals in an account of traveling expenses that on 21 March 1943 I was absent for weeks in the East on an official journey, and at the same time had the witness Eberhard Schwarz testify with alleged full assurance that on 24 March 1943 I was in Stuttgart and presided over the case against the foreigner Englert. The prosecution has submitted the verdict in the case of Untermarchtal, but what they said in the indictment about its contents is not contained in the verdict, but just the contrary. This is the type of evidence submitted if facts are involved. Only documents, not arguments with many sources of error, can show the facts.

Justice, above all, penal justice, in Germany since 1918 was always considered an institution not in accordance with the times due to political attacks on its reputation, thus losing its reputation. In spite of early hopes, also after 1933 this development continued, and it still continues. Neither in 1937 did Guertner protect my predecessor, nor in 1944 did Thierack protect me. The many stages of this development pretended to have various good aims, but they actually had only the one effect--to destroy what we call justice. Contrary, for example, to the profession of a doctor, that of a penal judge creates only few friends. A man who is acquitted takes his acquittal for granted. The man who is sentenced, his defense counsel considers the verdict as unjust or too severe. Confusion caused in the transitional periods showed this in a particularly conspicuous form. In spite of this dangerous situation for a criminal judge now accused of being a criminal himself, no person ever convicted under my jurisdiction has testified against me. Only a judge who is a saint is free of errors. I never denied mine. The struggle for independence and against destructive influences of the time has not left me unscathed. They wanted to eliminate me from the Party and from my profession, and an unfree minister and his accomplices removed me from office. The prosecution witness against me was quite right who said: “He wanted to maintain independence and he did maintain it.” Due to the collapse of my Fatherland, I am again involved in struggles. I am involved in an indictment against judges full of unexpected and excessive charges. From 1933 to 1944, one side spoke of me as if I were strange, suspiciously mild, unbearable, unsuitable for office, and detrimental to the Party and so on. Today the strong terms read as follows: Disgusting, exceptionally severe, convinced Nazi, and the like. Also in my prison cell which has been my fate for almost 1 year, though as a prisoner of war and an army officer I am subject to the Geneva Convention, I accept these reproaches quietly. I have sworn the oath to observe the law independently and to apply it irrespectively of the person involved. I have duly observed this, and let the consequences be whatever they may be. Either time will be able to bear judges who do not bend themselves or the time is already here which has quite different views. In handling these problems my own case is receding to the background. The decision concerning the basic questions of the entire problem of the judiciary brings the solution, also for me, of the question--Am I as a judge a criminal? Before all the world, and even where war opponents are concerned, a judicium parium can answer this tremendous question with one word only, namely, no.

PRESIDING JUDGE BRAND: The defendant Oeschey may address the Tribunal.

DEFENDANT OESCHEY: May it please the Court, what need be said in my case has been said by my defense counsel, and all that is left for me is to agree to his statements, to give you the assurance that I always acted in the belief and in the conviction that I was doing right, by obeying the law to which I was subjected and applying it in the manner in which my conscience told me to. And it is the truth that it was a matter of conscience for me not to misuse the law in a criminal way, but to apply it in accordance with the will of the legislator, and to grant the offender a proper trial and a just verdict. Therefore, my conscience knows that it is clear of the crimes with which I am charged.

PRESIDING JUDGE BRAND: The defendant Altstoetter may address the Tribunal.

DEFENDANT ALTSTOETTER: The charges which the prosecution has raised against me because of my alleged participation in war crimes and crimes against humanity and on account of my capacity as honorary SS leader, do not apply to me. My conscience is free of any guilt. I certainly do not propose to evade responsibility for my actions. On the contrary! These proceedings gave me the possibility to justify my actions before my people--by whom I stand even in these hard days--and before the entire world, that is, my actions during the past regime, and particularly so during the period of my activity in the Reich Ministry of Justice, and to prove that I always only served law and justice. For this reason I have done everything to give the best contribution possible in order to bring out the truth in this trial as far as I am concerned. As a witness in these proceedings I have testified to the truth to the best of my knowledge and belief.

The prosecution knows this very well from my own interrogations during preliminary proceedings and from the interrogations of many collaborators and aides who, however, were not called by the prosecution to appear as witnesses in court. The prosecution knows it also from documents which must be in its possession, but which were not submitted in evidence.

And, therefore, the fact hurts me all the more that in its final plea the prosecution designates me as not worthy of credibility. I feel obliged toward myself and also toward my children to protest with all seriousness and with all emphasis against this charge of having lied. I do not have to fear truth. I hate nothing more than lies. I feel secure only under the protection of truth, for truth is the sister of justice. But justice on the part of the prosecution must be claimed by me even if here we are only experimental objects of international law as it is aspired to, and of an embryonic international justice.

Furthermore, I feel obliged to refer to the following, let the proceedings result as they may. There is the enormous danger that German justice was shown here in a picture which, even referring to the time between 1933 and 1945, is not identical with actual facts. I know justice in all its different phases and organizations, and I know that German administration of justice up to the very end was the best administration of the Reich, and I know above all that the German judges, even in hard times and particularly in these hardest times of all, did their duty for right and justice up to the very end. All that could be desired was that the courage which was shown among the German judiciary at those times would have been shown everywhere. Then the danger could never have arisen that here in this courtroom there might arise the danger of a false picture of the German judge.

VII. OPINION AND JUDGMENT

Military Tribunal III was established on 14 February 1947 under General Order No. 11, issued by command of the United States Military Governor for Germany. The indictment was filed with the Secretary General of Military Tribunals on 4 January 1947, and the case was assigned to Tribunal III for trial. A copy of the indictment in the German language was served upon each defendant at least 30 days before the commencement of the trial. The defendants were arraigned on 17 February 1947, each defendant entering a plea of “not guilty” to all charges preferred against him. German counsel selected by the defendants were approved by the Tribunal and have represented the respective defendants throughout the trial.

The presentation of evidence in support of the charges was commenced on 6 March 1947 and was followed by evidence for the defendants. The taking of evidence was concluded on 13 October 1947. Copies of the exhibits tendered by the prosecution were furnished in the German language to the defendants prior to the time of the reception of the exhibits in evidence. The Tribunal has heard the oral testimony of 138 witnesses. In addition it has received 641 documentary exhibits for the prosecution and 1,452 for defendants, many of them of considerable length. Some affidavits have been presented by the prosecution, but they are few in comparison with the hundreds offered by the defense.

Whenever possible, and in substantially all cases, applications of defense counsel for the production in open court of persons who had made affidavits in support of the prosecution have been granted and the affiants have appeared for cross-examination. Affiants for the defense were cross-examined orally by the prosecution in comparatively few cases.

The defendant Carl Westphal died before the commencement of the trial. On 22 August 1947, the Tribunal entered an order declaring a mistrial as to the defendant, Karl Engert, who has been able to attend court for only 2 days since 5 March 1947. The action was rendered necessary under the provisions of article IV (d) of Military Government Ordinance No. 7, and by reason of the serious and continuing illness of said defendant.

The trial was conducted in two languages with simultaneous translations of German into English and English into German throughout the proceedings.

Under Military Government Order of 14 February 1947, the following were designated as members of Military Tribunal III: Carrington T. Marshall, presiding judge; James T. Brand, judge; Mallory B. Blair, judge; Justin Woodward Harding, alternate judge. As thus constituted, the Tribunal entered upon trial of the case. On 21 June 1947, General Order No. 52 was issued by the Office of Military Government for Germany as follows:

“Pursuant to Military Government Ordinance No. 7

“1. Effective as of 19 June 1947, pursuant to Military Government Ordinance No. 7, 24 October 1946, entitled ‘Organization and Powers of Certain Military Tribunals’, JAMES T. BRAND is appointed Presiding Judge of Military Tribunal III, vice CARRINGTON T. MARSHALL, relieved because of illness.

“2. JUSTIN WOODWARD HARDING, Alternate Judge, is appointed Judge for Military Tribunal III.

“By command of GENERAL CLAY:

C. K. GAILEY Brigadier General, GSC Chief of Staff”

The trial has been continued before the Tribunal as thus reconstituted. The evidence has been submitted, final arguments of counsel have been concluded, and the Tribunal has heard a personal statement from each defendant who desired to address it.

In rendering this judgment it should be said that the case against the defendants is chiefly based upon captured German documents, the authenticity of which is unchallenged.

The indictment contains four counts, as follows:

(1) Conspiracy to commit war crimes and crimes against humanity. The charge embraces the period between January 1933 and April 1945.

(2) War crimes, to wit: violations of the laws and customs of war, alleged to have been committed between September 1939 and April 1945.

(3) Crimes against humanity as defined by Control Council Law No. 10, alleged to have been committed between September 1939 and April 1945.

(4) Membership of certain defendants in organizations which have been declared to be criminal by the judgment of the International Military Tribunal in the case against Goering, et al.

The sufficiency of count one of the indictment was challenged by the defendants upon jurisdictional grounds, and on 11 July 1947, the Tribunal made and entered the following order:

“Count one of the indictment in this case charges that the defendants, acting pursuant to a common design, unlawfully, willfully and knowingly did conspire and agree together to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, article II. It is charged that the alleged crime was committed between January 1933 and April 1945.

“It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.

“Count one of the indictment, in addition to the separate charge of conspiracy, also alleged unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of count one from the indictment, but, in so far as count one charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.

“This ruling must not be construed as limiting the force or effect of article II, paragraph 2, of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10.”

THE JURISDICTIONAL ENACTMENTS

For convenient reference we have attached to this opinion copies of the London Agreement of 8 August 1945, with the Charter of the International Military Tribunal annexed thereto, Control Council Law No. 10, Military Government Ordinance No. 7, and the indictment, which are marked respectively Exhibits A, B, C, and D.[555]

The indictment alleges that the defendants committed crimes “as defined in Control Council Law No. 10, duly enacted by the Allied Control Council.” We therefore turn to that law.

The Allied Control Council is composed of the authorized representatives of the four Powers: the United States, Great Britain, France, and the Soviet Union.

The preamble to Control Council Law No. 10 is in part as follows:

“In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, * * * the Control Council enacts as follows:”

Article I reads in part as follows:

“The Moscow Declaration of 30 October 1943 ‘Concerning Responsibility of Hitlerites for Committed Atrocities’ and the London Agreement of 8 August 1945 ‘Concerning Prosecution and Punishment of Major War Criminals of the European Axis’ are made integral parts of this Law. * * *”

The London Agreement, supra, provides that the Charter of the International Military Tribunal (hereinafter called the IMT Charter), “shall form an integral part of this agreement.” (London Agreement, art. II). Thus, it appears that the indictment is drawn under and pursuant to the provisions of Control Council Law No. 10 (hereinafter called C. C. Law 10), that C. C. Law 10 expressly incorporates the London Agreement as a part thereof, and that the IMT Charter is a part of the London Agreement.

Article II of C. C. Law 10 defines acts, each of which “is recognized as a crime,” namely, (a) crimes against peace, (b) war crimes, (c) crimes against humanity, (d) membership in criminal organizations. We are concerned here with categories (b), (c), and (d) only, each of which will receive later consideration.

The Procedural Ordinance

C. C. Law 10 provides that--

“1. Each occupying authority, within its zone of occupation,

“(a) shall have the right to cause persons within such Zone suspected of having committed a crime, including those charged with crime by one of the United Nations, to be arrested * * *.

* * * * *

“(d) shall have the right to cause all persons so arrested and charged, * * * to be brought to trial before an appropriate tribunal. * * *

“2. The tribunal by which persons charged with offenses hereunder shall be tried and the rules and procedure thereof shall be determined or designated by each Zone Commander for his respective Zone. * * * ”

Pursuant to the foregoing authority, Ordinance No. 7 was enacted by the Military Governor of the American Zone. It provides:

“Article I

“The purpose of this Ordinance is to provide for the establishment of military tribunals which shall have power to try and punish persons charged with offenses recognized as crimes in article II of Control Council Law No. 10, including conspiracies to commit any such crimes. * * *

“Article II

“(a) Pursuant to the powers of the Military Governor for the United States Zone of Occupation within Germany and further pursuant to the powers conferred upon the Zone Commander by Control Council Law No. 10 and articles 10 and 11 of the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945 certain tribunals to be known as ‘Military Tribunals’ shall be established hereunder.”

The tribunals authorized by Ordinance No. 7 are dependent upon the substantive jurisdictional provisions of C. C. Law 10 and are thus based upon international authority and retain international characteristics. It is provided that the United States Military Governor may agree with other zone commanders for a joint trial. (Ordinance 7, art. II, par. (c).) The Chief of Counsel for War Crimes, United States, may invite others of the United Nations to participate in the prosecution. (Ordinance 7, art. III, par. (b).)

The Ordinance provides:

“Article X

“The determinations of the International Military Tribunal in the judgments in Case No. 1 that invasions, aggressive acts, aggressive wars, crimes, atrocities or inhumane acts were planned or occurred, shall be binding on the tribunals established hereunder and shall not be questioned except insofar as the participation therein or knowledge thereof by any particular person may be concerned. Statements of the International Military Tribunal in the judgment in Case No. 1 constitute proof of the facts stated, in the absence of substantial new evidence to the contrary.”

The sentences authorized by Ordinance No. 7 are made definite only by reference to those provided for by C. C. Law 10. (Ordinance No. 7, Art. XVI).

As thus established the Tribunal is authorized and empowered to try and punish the major war criminals of the European Axis and “those German officers and men and members of the Nazi Party who have been responsible for, or have taken a consenting part in,” or have aided, abetted, ordered, or have been connected with plans or enterprises involving the commission of the offenses defined in C. C. Law 10.

SOURCE OF AUTHORITY OF C. C. LAW 10

Having identified the instruments which purport to establish the jurisdiction of this Tribunal, we next consider the legal basis of those instruments. The unconditional surrender of Germany took place on 8 May 1945.[556] The surrender was preceded by the complete disintegration of the central government and was followed by the complete occupation of all of Germany. There were no opposing German forces in the field; the officials who during the war had exercised the powers of the Reich Government were either dead, in prison, or in hiding. On 5 June 1945 the Allied Powers announced that they “hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command, and any state, municipal or local government or authority,” and declared that “there is no central government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious powers.” The Four Powers further declared that they “will hereafter determine the boundaries of Germany or any part thereof and the status of Germany or of any area at present being a part of German territory.”[557]

On 2 August 1945 at Berlin, President Truman, Generalissimo Stalin, and Prime Minister Attlee, as heads of the Allied Powers, entered into a written agreement setting forth the principles which were to govern Germany during the initial control period. Reference to that document will disclose the wide scope of authority and control which was assumed and exercised by the Allied Powers. They assumed “supreme authority” and declared that it was their purpose to accomplish complete demilitarization of Germany; to destroy the National Socialist Party, to prevent Nazi propaganda; to abolish all Nazi laws which “established discrimination on grounds of race, creed, or political opinion * * * whether legal, administrative, or otherwise”; to control education; to reorganize the judicial system in accordance with the principles of democracy and of equal rights; to accomplish the decentralization of the political structure. The agreement provided that “for the time being no central German government shall be established”. In the economic field they assumed control of “German industry and all economic and financial international transactions”.[558] Finally, the Allies reaffirmed their intention to bring the Nazi war criminals to swift and sure justice.

It is this fact of the complete disintegration of the government in Germany, followed by unconditional surrender and by occupation of the territory, which explains and justifies the assumption and exercise of supreme governmental power by the Allies. The same fact distinguishes the present occupation of Germany from the type of occupation which occurs when, in the course of actual warfare, an invading army enters and occupies the territory of another state, whose government is still in existence and is in receipt of international recognition, and whose armies, with those of its allies, are still in the field. In the latter case the occupying power is subject to the limitations imposed upon it by the Hague Convention and by the laws and customs of war. In the former case (the occupation of Germany) the Allied Powers were not subject to those limitations. By reason of the complete breakdown of government, industry, agriculture, and supply, they were under an imperative humanitarian duty of far wider scope to reorganize government and industry and to foster local democratic governmental agencies throughout the territory.

In support of the distinction made, we quote from two recent and scholarly articles in “The American Journal of International Law.”

“On the other hand, a distinction is clearly warranted between measures taken by the Allies prior to destruction of the German Government and those taken thereafter. Only the former need be tested by the Hague Regulations, which are inapplicable to the situation now prevailing in Germany. Disappearance of the German State as a belligerent entity, necessarily implied in the Declaration of Berlin of 5 June 1945, signifies that a true state of war--and hence belligerent occupation--no longer exists within the meaning of international law.”[559]

* * * * *

“Through the subjugation of Germany the outcome of the war has been decided in the most definite manner possible. One of the prerogatives of the Allies resulting from the subjugation is the right to occupy German territory at their discretion. This occupation is, both legally and factually, fundamentally different from the belligerent occupation contemplated in the Hague Regulations, as can be seen from the following observations.

“The provisions of the Hague Regulations restricting the rights of an occupant refer to a belligerent who, favored by the changing fortunes of war, actually exercises military authority over enemy territory and thereby prevents the legitimate sovereign--who remains the legitimate sovereign--from exercising his full authority. The Regulations draw important legal conclusions from the fact that the legitimate sovereign may at any moment himself be favored by the changing fortunes of war, reconquer the territory, and put an end to the occupation. ‘The occupation applies only to territory where such authority (i.e., the military authority of the hostile state) is established and can be exercised’ (Art. 42, 2). In other words, the Hague Regulations think of an occupation which is a phase of an as yet undecided war. Until 7 May 1945, the Allies were belligerent occupants in the then occupied parts of Germany, and their rights and duties were circumscribed by the respective provisions of the Hague Regulations. As a result of the subjugation of Germany, the legal character of the occupation of German territory was drastically changed.”[560]

The view expressed by the two authorities cited appears to have the support of the International Military Tribunal judgment in the case against Goering, et al. In that case the defendants contended that Germany was not bound by the rules of land warfare in occupied territory because Germany had completely subjugated those countries and incorporated them into the German Reich. The Tribunal refers to the “doctrine of subjugation, dependent as it is upon military conquest,” and holds that it is unnecessary to decide whether the doctrine has any application where the subjugation is the result of the crime of aggressive war. The reason given is significant. The Tribunal said:

“The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939.”[561]

The clear implication from the foregoing is that the Rules of Land Warfare apply to the conduct of a belligerent in occupied territory so long as there is an army in the field attempting to restore the country to its true owner, but that those rules do not apply when belligerency is ended, there is no longer an army in the field, and, as in the case of Germany, subjugation has occurred by virtue of military conquest.

The views which we have expressed are supported by modern scholars of high standing in the field of international law. While they differ somewhat in theory as to the present legal status of Germany and concerning the situs of residual sovereignty, they appear to be in accord in recognizing that the powers and rights of the Allied Governments under existing conditions in Germany are not limited by the provisions of the Hague Regulations concerning land warfare. For reference see--

“The Legal Status of Germany According to the Declaration of Berlin,” by Hans Kelsen, Professor of International Law, University of California, American Journal of International Law, 1945.

“Germany’s Present Status,” by F. A. Mann, Doctor of Law (Berlin) (London), paper read on 5 March 1947 before the Grotius Society in London, published in Sueddeutsche Juristen-Zeitung (Lawyers’ Journal of Southern Germany), volume 2, No. 9, September 1947.

“The Influence of the Legal Position of Germany upon the War Crimes Trial,” Dr. Hermann Mosler, Assistant Professor of the University of Bonn, published in Sueddeutsche Juristen-Zeitung, volume 2, No. 7, July 1947.

Article published in Neue Justiz (New Justice), by Dr. Alfons Steininger, Berlin, volume I, No. 7, July 1947, pages 146–150.

In an article by George A. Zinn, Minister of Justice of Hessen, entitled “Germany as the Problem of the Law of States,” the author points out that if it be assumed that the present occupation of Germany constitutes “belligerent occupation” in the traditional sense, then all legal and constitutional changes brought about since 7 May 1945 would cease to be valid once the Allied troops were withdrawn and all Nazi laws would again and automatically become the law of Germany, a consummation devoutly to be avoided.

Both of the authorities first cited directly assert that the situation at the time of the unconditional surrender resulted in the transfer of sovereignty to the Allies. In this they are supported by the weighty opinion of Lord Wright, eminent jurist of the British House of Lords and head of the United Nations War Crimes Commission. For our purposes, however, it is unnecessary to determine the present situs of “residual sovereignty.” It is sufficient to hold that, by virtue of the situation at the time of unconditional surrender, the Allied Powers were provisionally in the exercise of supreme authority, valid and effective until such time as, by treaty or otherwise, Germany shall be permitted to exercise the full powers of sovereignty. We hold that the legal right of the four Powers to enact C. C. Law 10 is established and that the jurisdiction of this Tribunal to try persons charged as major war criminals of the European Axis must be conceded.

We have considered it proper to set forth our views concerning the nature and source of the authority of C. C. Law 10 in its aspect as substantive legislation. It would have been possible to treat that law as a binding rule regardless of the righteousness of its provisions, but its justification must ultimately depend upon accepted principles of justice and morality, and we are not content to treat the statute as a mere rule of thumb to be blindly applied. We shall shortly demonstrate that the IMT Charter and C. C. Law 10 provide for the punishment of crimes against humanity. As set forth in the indictment, the acts charged as crimes against humanity were committed before the occupation of Germany. They were described as racial persecutions by Nazi officials perpetrated upon German nationals. The crime of genocide is an illustration. We think that a tribunal charged with the duty of enforcing these rules will do well to consider, in determining the degree of punishment to be imposed, the moral principles which underlie the exercise of power. For that reason we have contrasted the situation when Germany was in belligerent occupation of portions of Poland, with the situation existing under the Four-Power occupation of Germany since the surrender. The occupation of Poland by Germany was in every sense belligerent occupation, precarious in character, while opposing armies were still in the field. The German occupation of Poland was subject to the limitations imposed by the Hague Convention and the laws and customs of land warfare. In view of these limitations we doubt if any person would contend that Germany, during that belligerent occupation, could lawfully have provided tribunals for the punishment of Polish officials who, before the occupation by Germany, had persecuted their own people, to wit: Polish nationals. Now the Four Powers are providing by C. C. Law 10 for the punishment of German officials who, before the occupation of Germany, passed and enforced laws for the persecution of German nationals upon racial grounds. It appears that it would be equally difficult to justify such action of the Four Powers if the situation here were the same as the situation which existed in Poland under German occupation and if consequently the limitations of the Hague Convention were applicable. For this reason it seems appropriate to point out the distinction between the two situations. As we have attempted to show, the moral and legal justification under principles of international law which authorizes the broader scope of authority under C. C. Law 10 is based on the fact that the Four Powers are not now in belligerent occupation or subject to the limitations set forth in the rules of land warfare. Rather, they have justly and legally assumed the broader task in Germany which they have solemnly defined and declared, to wit: the task of reorganizing the German Government and economy and of punishing persons who, prior to the occupation, were guilty of crimes against humanity committed against their own nationals. We have pointed out that this difference in the nature of the occupation is due to the unconditional surrender of Germany and the ensuing chaos which required the Four Powers to assume provisional supreme authority throughout the German Reich. We are not attempting to pass judicially upon a question which is solely within the jurisdiction of the political departments of the Four Powers. The fixing of the date of the formal end of the war and similar matters will, of course, be dependent upon the action of the political departments. We do not usurp their function. We merely inquire, in the course of litigation when the lives of men are dependent upon decisions which must be both legal and just, whether the great objectives announced by the Four Powers are themselves in harmony with the principles of international law and morality.

In declaring that the expressed determination of the victors to punish German officials who slaughtered their own nationals is in harmony with international principles of justice, we usurp no power; we only take judicial notice of the declarations already made by the chief executives of the United States and her former Allies. The fact that C. C. Law 10 on its face is limited to the punishment of German criminals does not transform this Tribunal into a German court. The fact that the four powers are exercising supreme legislative authority in governing Germany and for the punishment of German criminals does not mean that the jurisdiction of this Tribunal rests in the slightest degree upon any German law, prerogative, or sovereignty. We sit as a Tribunal drawing its sole power and jurisdiction from the will and command of the Four occupying Powers.

Examination will disclose that C. C. Law 10 possesses a dual aspect. In its first aspect and on its face it purports to be a statute defining crimes and providing for the punishment of persons who violate its provisions. It is the legislative product of the only body in existence having and exercising general lawmaking power throughout the Reich. The first International Military Tribunal in the case against Goering, et al., recognized similar provisions of the IMT Charter as binding legislative enactments. We quote:

“The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.”[562]

“These provisions are binding upon the Tribunal as the law to be applied to the case.”[563] [Emphasis added.]

Since the IMT Charter and C. C. Law 10 are the products of legislative action by an international authority, it follows of necessity that there is no national constitution of any one state which could be invoked to invalidate the substantive provisions of such international legislation. It can scarcely be argued that a court which owes its existence and jurisdiction solely to the provisions of a given statute could assume to exercise that jurisdiction and then, in the exercise thereof, declare invalid the act to which it owes its existence. Except as an aid to construction, we cannot and need not go behind the statute. This was discussed authoritatively by the first International Military Tribunal in connection with the contention of defendants that the IMT Charter was invalid because it partook of the nature of ex post facto legislation. That Tribunal said: “The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is, therefore, not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement.”[564] [Emphasis added.]

As recently said by an American authority--

“The Charter was, of course, binding upon the Tribunal in the same way that a constitutional statute would bind a domestic court.”[565]

In its aspect as a statute defining crime and providing punishment the limited purpose of C. C. Law 10 is clearly set forth. It is an exercise of supreme legislative power in and for Germany. It does not purport to establish by legislative act any new crimes of international applicability. The London Agreement refers to the trial of “those German officers and men and members of the Nazi Party who have been responsible for * * * atrocities.” C. C. Law 10 recites that it was enacted to establish a “uniform legal basis in Germany” for the prosecution of war criminals. [Emphasis added.]

Military Government Ordinance No. 7 was enacted pursuant to the powers of the Military Government for the United States Zone of Occupation “within Germany.” [Emphasis added.]

We concur in the view expressed by the first International Military Tribunal as quoted above, but we observe that the decision was supported on two grounds. The Tribunal in that case did not stop with the declaration that it was bound by the IMT Charter as an exercise of sovereign legislative power. The opinion went on to show that the IMT Charter was also “the expression of international law existing at the time of its creation.” All of the war crimes and many, if not all, of the crimes against humanity as charged in the indictment in the case at bar were, as we shall show, violative of preexisting principles of international law. To the extent to which this is true, C. C. Law 10 may be deemed to be a codification rather than original substantive legislation. Insofar as C. C. Law 10 may be thought to go beyond established principles of international law, its authority, of course, rests upon the exercise of the “sovereign legislative power” of the countries to which the German Reich unconditionally surrendered.

We have discussed C. C. Law 10 in its first aspect as substantive legislation. We now consider its other aspect. Entirely aside from its character as substantive legislation, C. C. Law 10, together with Ordinance No. 7, provides procedural means previously lacking for the enforcement within Germany of certain rules of international law which exist throughout the civilized world independently of any new substantive legislation. (Ex parte Quirin, 317 U.S. 1; 87 L. ed. 3; 63 S. Ct. 2.) International law is not the product of statute. Its content is not static. The absence from the world of any governmental body authorized to enact substantive rules of international law has not prevented the progressive development of that law. After the manner of the English common law it has grown to meet the exigencies of changing conditions.

It must be conceded that the circumstance which gives to principles of international conduct the dignity and authority of law is their general acceptance as such by civilized nations, which acceptance is manifested by international treaties, conventions, authoritative textbooks, practice, and judicial decisions.[566]

It does not, however, follow from the foregoing statements that general acceptance of a rule of international conduct must be manifested by express adoption thereof by all civilized states.

“The basis of the law, that is to say, what has given to some principles of general applicability the quality or character of law has been the acquiescence of the several independent states which were to be governed thereby.”[567]

[Page 5]

“The requisite acquiescence on the part of individual states has not been reflected in formal or specific approval of every restriction which the acknowledged requirements of international justice have appeared, under the circumstances of the particular case, to dictate or imply. It has been rather a yielding to principle, and by implication, to logical applications thereof which have begotten deep-rooted and approved practices.”

[Page 9]

“It should be observed, however, that acquiescence in a proposal may be inferred from the failure of interested states to make appropriate objection to practical applications of it. Thus it is that changes in the law may be wrought gradually and imperceptibly, like those which by process of accretion alter the course of a river and change an old boundary. Without conventional arrangement, and by practices manifesting a common and sharp deviation from rules once accepted as the law, the community of states may in fact modify that which governs its members.”

[Page 11]

“States may through the medium of an international organization such as the League of Nations, itself the product of agreement, find it expedient to create and accept fresh restraints that ultimately win widest approval and acceptance as a part of the law of nations. The acts of the organization may thus in fact become sources of international law, at least in case the members thereof have by their general agreement clothed it with power to create and put into force fresh rules of restraint.”

* * * * *

“But international law is progressive. The period of growth generally coincides with the period of world upheavals. The pressure of necessity stimulates the impact of natural law and of moral ideas and converts them into rules of law deliberately and overtly recognized by the consensus of civilized mankind. The experience of two great world wars within a quarter of a century cannot fail to have deep repercussions on the senses of the peoples and their demand for an international law which reflects international justice. I am convinced that international law has progressed, as it is bound to progress if it is to be a living and operative force in these days of widening sense of humanity.”[568]

For the reasons stated by Lord Wright, this growth by accretion has been greatly accelerated since the First World War.[569] The IMT Charter, the IMT judgment, and C. C. Law 10 are merely “great new cases in the book of international law.” They constitute authoritative recognition of principles of individual penal responsibility in international affairs which, as we shall show, had been developing for many years. Surely C. C. Law 10, which was enacted by the authorized representatives of the four greatest Powers on earth, is entitled to judicial respect when it states, “Each of the following acts is recognized as a crime.” [Emphasis added.] Surely the requisite international approval and acquiescence is established when 23 states, including all of the great powers, have approved the London Agreement and the IMT Charter without dissent from any state. Surely the IMT Charter must be deemed declaratory of the principles of international law in view of its recognition as such by the General Assembly of the United Nations. We quote:

“The General Assembly recognizes the obligation laid upon it by article 13, paragraph 1 (a) of the Charter, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification;

“Takes note of the agreement for the establishment of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis, signed in London on 8 August 1945, and of the Charter annexed thereto and of the fact that similar principles have been adopted in the Charter of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946;

“Therefore--

“Affirms the principles of international law recognized by the Charter of the Nuernberg Tribunal and the judgment of the Tribunal;

“Directs the Committee on Codification of International Law established by the resolution of the General Assembly of

* * December 1946, to treat as a matter of primary importance plans for the formulation, in the text of a general codification of offenses against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuernberg Tribunal and in the judgment of the Tribunal.”[570]

Before the International Military Tribunal had convened for the trial of Goering, et al., the opinion had been expressed that through the process of accretion the provisions of the IMT Charter and consequently of C. C. Law 10 had already, in large measure, become incorporated into the body of international law. We quote:

“I understand the Agreement to import that the three classes of persons which it specifies are war criminals, that the acts mentioned in classes (a), (b), and (c) are crimes for which there is properly individual responsibility; that they are not crimes because of the Agreement of the four Governments, but that the Governments have scheduled them as coming under the jurisdiction of the Tribunal because they are already crimes by existing law. On any other assumption the Court would not be a court of law but a manifestation of power. The principles which are declared in the Agreement are not laid down as an arbitrary direction to the Court but are intended to define and do, in my opinion, accurately define what is the existing international law on these matters.”[571]

A similar view was expressed in the judgment of the International Military Tribunal. We quote:

“The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.”[572]

We are empowered to determine the guilt or innocence of persons accused of acts described as “war crimes” and “crimes against humanity” under rules of international law. At this point, in connection with cherished doctrines of national sovereignty, it is important to distinguish between the rules of common international law which are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are by no means universal on the other. As to the superior authority of international law, we quote:

“If there exists a body of international law, which states, from a sense of legal obligation do in fact observe in their relations with each other, and which they are unable individually to alter or destroy, that law must necessarily be regarded as the law of each political entity deemed to be a state, and as prevailing throughout places under its control. This is true although there be no local affirmative action indicating the adoption by the individual state of international law.

“International law, as the local law of each state, is necessarily superior to any administrative regulation or statute or public act at variance with it. There can be no conflict on an equal plane.”[573]

This universality and superiority of international law does not necessarily imply universality of its enforcement. As to the punishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall. These rules of international law were recognized as paramount, and jurisdiction to enforce them by the injured belligerent government, whether within the territorial boundaries of the state or in occupied territory, has been unquestioned. (Ex parte Quirin, supra; In re: Yamashita, 327 U.S. 1, 90 L. ed.) However, enforcement of international law has been traditionally subject to practical limitations. Within the territorial boundaries of a state having a recognized, functioning government presently in the exercise of sovereign power throughout its territory, a violator of the rules of international law could be punished only by the authority of the officials of that state. The law is universal, but such a state reserves unto itself the exclusive power within its boundaries to apply or withhold sanctions. Thus, notwithstanding the paramount authority of the substantive rules of common international law, the doctrines of national sovereignty have been preserved through the control of enforcement machinery. It must be admitted that Germans were not the only ones who were guilty of committing war crimes; other violators of international law could, no doubt, be tried and punished by the state of which they were nationals, by the offended state if it can secure jurisdiction of the person, or by an international tribunal if of competent authorized jurisdiction.

Applying these principles, it appears that the power to punish violators of international law in Germany is not solely dependent on the enactment of rules of substantive penal law applicable only in Germany. Nor is the apparent immunity from prosecution of criminals in other states based on the absence there of the rules of international law which we enforce here. Only by giving consideration to the extraordinary and temporary situation in Germany can the procedure here be harmonized with established principles of national sovereignty. In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in the exercise of its sovereign powers.

_Construction of C. C. Law 10 War Crimes and Crimes Against Humanity_

We next approach the problem of the construction of C. C. Law 10, for whatever the scope of international common law may be, the power to enforce it in this case is defined and limited by the terms of the jurisdictional act.

The first penal provision of C. C. Law No. 10, with which we are concerned is as follows:

“Article II

“1.--Each of the following acts is recognized as a crime:

* * * * * * *

(b) War Crimes. Atrocities or offences against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.”

Here we observe the controlling effect of common international law as such, for the statutes by which we are governed have adopted and incorporated the rules of international law as the rules by which war crimes are to be identified. This legislative practice by which the laws or customs of war are incorporated by reference into a statute is not unknown in the United States. (See cases cited in Ex parte Quirin, supra.)

The scope of inquiry as to war crimes is, of course, limited by the provisions, properly construed, of the IMT Charter and C. C. Law 10. In this particular, the two enactments are in substantial harmony. Both indicate by inclusion and exclusion the intent that the term “war crimes” shall be employed to cover acts in violation of the laws and customs of war directed against non-Germans, and shall not include atrocities committed by Germans against their own nationals. It will be observed that article 6 of the IMT Charter enumerates as war crimes acts against prisoners of war, persons on the seas, hostages, wanton destruction of cities and the like, devastation not justified by military necessity, plunder of public or private property (obviously not property of Germany or Germans), and “ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory.” [Emphasis added.] C. C. Law 10, supra, employs similar language. It reads--

“ * * * ill treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory.” [Emphasis added.]

This legislative intent becomes more manifest when we consider the provisions of the IMT Charter and of C. C. Law 10 which deal with crimes against humanity. Article 6 of the IMT Charter defines crimes against humanity, as follows:

“ * * * murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

C. C. Law 10 defines as criminal:

“ * * * Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.”

Obviously, these sections are not surplusage. They supplement the preceding sections on war crimes and include within their prohibition not only war crimes, but also acts not included within the preceding definitions of war crimes. In place of atrocities committed against civilians of or in or from occupied territory, these sections prohibit atrocities “against any civilian population.” Again, persecutions on racial, religious, or political grounds are within our jurisdiction “whether or not in violation of the domestic laws of the country where perpetrated.” We have already demonstrated that C. C. Law 10 is specifically directed to the punishment of German criminals. It is therefore clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defense. Article III of C. C. Law 10 clearly demonstrates that acts by Germans against German nationals may constitute crimes against humanity within the jurisdiction of this Tribunal to punish. That article provides that each occupying authority within its zone of occupation shall have the right to cause persons suspected of having committed a crime to be arrested and “(d) shall have the right to cause all persons so arrested * * * to be brought to trial * * *. Such Tribunal may, in the case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.”

As recently asserted by General Telford Taylor before Tribunal IV, in the case of the United States vs. Flick, et al.:[574]

“This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10, according to the definitions contained therein, since only such crimes may be tried by German courts, in the discretion of the occupying power. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American Zone of Occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these military tribunals.”

Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C. C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual.” The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.

The opinion of the first International Military Tribunal in the case against Goering, et al., lends support to our conclusion. That opinion recognized the distinction between war crimes and crimes against humanity, and said:

“* * * insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.”[575]

The evidence to be later reviewed establishes that certain inhumane acts charged in count three of the indictment were committed in execution of, and in connection with, aggressive war and were therefore crimes against humanity even under the provisions of the IMT Charter, but it must be noted that C. C. Law 10 differs materially from the Charter. The latter defines crimes against humanity as inhumane acts, etc., committed “in execution of, or in connection with, any crime within the jurisdiction of the tribunal”, whereas in C. C. Law 10 the words last quoted are deliberately omitted from the definition.

THE EX POST FACTO PRINCIPLE

The defendants claim protection under the principle nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed. By way of illustration, we observe that C. C. Law 10, article II, paragraph 1(b), “War Crimes,” has by reference incorporated the rules by which war crimes are to be identified. In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of those rules under the impact of changing conditions.

Whatever view may be held as to the nature and source of our authority under C. C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case.

Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth. As applied in the field of international law, the principle nullum crimen sine lege received its true interpretation in the opinion of the IMT in the case versus Goering, et al. The question arose with reference to crimes against the peace, but the opinion expressed is equally applicable to war crimes and crimes against humanity. The Tribunal said:

“In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.”[576]

To the same effect we quote the distinguished statesman and international authority, Henry L. Stimson--

“A mistaken appeal to this principle has been the cause of much confusion about the Nuremberg trial. It is argued that parts of the Tribunal’s Charter, written in 1945, make crimes out of what before were activities beyond the scope of national and international law. Were this an exact statement of the situation we might well be concerned, but it is not. It rests on a misconception of the whole nature of the law of nations. International law is not a body of authoritative codes or statutes; it is the gradual expression, case by case, of the moral judgments of the civilized world. As such, it corresponds precisely to the common law of Anglo-American tradition. We can understand the law of Nuremberg only if we see it for what it is--a great new case in the book of international law, and not a formal enforcement of codified statutes. A look at the charges will show what I mean.

* * * * *

“It was the Nazi confidence that we would never chase and catch them, and not a misunderstanding of our opinion of them, that led them to commit their crimes. Our offense was thus that of the man who passed by on the other side. That we have finally recognized our negligence and named the criminals for what they are is a piece of righteousness too long delayed by fear.”[577]

That the conception of retrospective legislation which prevails under constitutional provisions in the United States does not receive complete recognition in other enlightened legal systems is illustrated by the decision in Phillips vs. Eyre, L.R. 6 Q.B. 1 [27 (1870–71)] described by Lord Wright as “a case of great authority.” We quote:

“In fine, allowing the general inexpediency of retrospective legislation, it cannot be pronounced naturally or necessarily unjust. There may be occasions and circumstances involving the safety of the state, or even the conduct of individual subjects, the justice of which, prospective laws made for ordinary occasions and the usual exigencies of society for want of prevision fail to meet, and in which * * * the inconvenience and wrong, summum jus summa injuria.”

We quote with approval the words of Sir David Maxwell-Fyfe:

“With regard to ‘crimes against humanity’, this at any rate is clear. The Nazis, when they persecuted and murdered countless Jews and political opponents in Germany, knew that what they were doing was wrong and that their actions were crimes which had been condemned by the criminal law of every civilized state. When these crimes were mixed with the preparation for aggressive war and later with the commission of war crimes in occupied territories, it cannot be a matter of complaint that a procedure is established for their punishment.”[578]

Concerning the mooted ex post facto issue, Professor Wechsler of Columbia University writes:

“These are, indeed, the issues that are currently mooted. But there are elements in the debate that should lead us to be suspicious of the issues as they are drawn in these terms. For, most of those who mount the attack on one or another of these contentions hasten to assure us that their plea is not one of immunity for the defendants; they argue only that they should have been disposed of politically, that is, dispatched out of hand. This is a curious position indeed. A punitive enterprise launched on the basis of general rules, administered in an adversary proceeding under a separation of prosecutive and adjudicative powers is, in the name of law and justice, asserted to be less desirable than an ex parte execution list or a drumhead court martial constituted in the immediate aftermath of the war. I state my view reservedly when I say that history will accept no conception of law, politics or justice that supports a submission in these terms.”

Again, he says:

“There is, indeed, too large a disposition among the defenders of Nuremberg to look for stray tags of international pronouncements and reason therefrom that the law of Nuremberg was previously fully laid down. If the Kellogg-Briand Pact or a general conception of international obligation sufficed to authorize England, and would have authorized us, to declare war on Germany in defense of Poland--and in this enterprise to kill countless thousands of German soldiers and civilians--can it be possible that it failed to authorize punitive action against individual Germans judicially determined to be responsible for the Polish attack? To be sure, we would demand a more explicit authorization for punishment in domestic law, for we have adopted for the protection of individuals a prophylactic principle absolutely forbidding retroactivity that we can afford to carry to that extreme. International society, being less stable, can afford less luxury. We admit that in other respects. Why should we deny it here?”[579]

Many of the laws of the Weimar era which were enacted for the protection of human rights have never been repealed. Many acts constituting war crimes or crimes against humanity as defined in C. C. Law 10 were committed or permitted in direct violation also of the provisions of the German criminal law. It is true that this Tribunal can try no defendant merely because of a violation of the German penal code, but it is equally true that the rule against retrospective legislation, as a rule of justice and fair play, should be no defense if the act which he committed in violation of C. C. Law 10 was also known to him to be a punishable crime under his own domestic law.

As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C. C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the states at war with Germany. Not only were the defendants warned of swift retribution by the express declaration of the Allies at Moscow of 30 October 1943. Long prior to the Second World War the principle of personal responsibility had been recognized.

“The Council of the Conference of Paris of 1919 undertook, with the aid of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, to incorporate in the treaty of peace arrangements for the punishment of individuals charged with responsibility for certain offenses.”[580]

That Commission on Responsibility of Authors of the War found that--

“The war was carried on by the central empires, together with their allies, Turkey and Bulgaria, by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity.”[581]

As its conclusion, the Commission solemnly declared:

“All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.”[582]

The American members of that Commission, though in substantial accord with the finding, nevertheless expressed a reservation as to “the laws of humanity.” The express wording of the London Charter and of C. C. Law 10 constitutes clear evidence of the fact that the position of the American Government is now in harmony with the Declaration of the Paris Commission concerning the “laws of humanity.” We quote further from the report of the Paris Commission:

“Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in chapter II on Violations of the Laws and Customs of War, if such persons have been taken prisoners or have otherwise fallen into its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of cases.”[583]

According to the Treaty of Versailles, article 228, the German Government itself “recognized the right to the Allied and associated powers to bring before military tribunals persons accused of offenses against the laws and customs of war. Such persons who might be found guilty were to be sentenced to punishments ‘laid down by law’.”[584] Some Germans were, in fact, tried for the commission of such crimes.

The foregoing considerations demonstrate that the principle nullum crimen sine lege, when properly understood and applied, constitutes no legal or moral barrier to prosecution in the case at bar.

CRIMES AGAINST HUMANITY AS VIOLATIVE OF INTERNATIONAL LAW

C. C. Law 10 is not limited to the punishment of persons guilty of violating the laws and customs of war in the narrow sense; furthermore, it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law. The force of circumstance, the grim fact of world-wide interdependence, and the moral pressure of public opinion have resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law. We quote:

“If a state is unhampered in its activities that affect the interests of any other, it is due to the circumstance that the practice of nations has not established that the welfare of the international society is adversely affected thereby. Hence that society has not been incited or aroused to endeavor to impose restraints; and by its law none are imposed. The Covenant of the League of Nations takes exact cognizance of the situation in its reference to disputes ‘which arise out of a matter which by international law is solely within the domestic jurisdiction’ of a party thereto. It is that law which as a product of the acquiescence of states permits the particular activity of the individual state to be deemed a domestic one.

“In as much as changing estimates are to be anticipated, and as the evolution of thought in this regard appears to be constant and is perhaps now more obvious than at any time since the United States came into being, the circumstance that at any given period the solution of a particular question is by international law deemed to be solely within the control or jurisdiction of one state, gives frail assurance that it will always be so regarded.“[585]

“The family of nations is not unconcerned with the life and experience of the private individual in his relationships with the state of which he is a national. Evidence of concern has become increasingly abundant since World War I, and is reflected in treaties through which that conflict was brought to a close, particularly in provisions designed to safeguard the racial, linguistic and religious minorities inhabiting the territories of certain states, and in the terms of part XIII of the Treaty of Versailles, of June 28, 1919, in respect to labour, as well as in article XXIII of that treaty embraced in the Covenant of the League of Nations.”[586]

“The nature and extent of the latitude accorded a state in the treatment of its own nationals has been observed elsewhere. It has been seen that certain forms or degrees of harsh treatment of such individuals may be deemed to attain an international significance because of their direct and adverse effect upon the rights and interests of the outside world. For that reason it would be unscientific to declare at this day that tyrannical conduct, or massacres, or religious persecutions are wholly unrelated to the foreign relations of the territorial sovereign which is guilty of them. If it can be shown that such acts are immediately and necessarily injurious to the nationals of a particular foreign state, grounds for interference by it may be acknowledged. Again, the society of nations, acting collectively, may not unreasonably maintain that a state yielding to such excesses renders itself unfit to perform its international obligations, especially in so far as they pertain to the protection of foreign life and property within its domain.[587] The property of interference obviously demands in every case a convincing showing that there is in fact a causal connection between the harsh treatment complained of, and the outside state that essays to thwart it.

The international concern over the commission of crimes against humanity has been greatly intensified in recent years. The fact of such concern is not a recent phenomenon, however. England, France, and Russia intervened to end the atrocities in the Greco-Turkish warfare in 1827.[588]

President Van Buren, through his Secretary of State, intervened with the Sultan of Turkey in 1840 in behalf of the persecuted Jews of Damascus and Rhodes.[589]

The French intervened and by force undertook to check religious atrocities in Lebanon, in 1861.[590]

Various nations directed protests to the governments of Russia and Rumania with respect to pogroms and atrocities against Jews. Similar protests were made to the government of Turkey on behalf of the persecuted Christian minorities. In 1872 the United States, Germany, and five other powers protested to Rumania; and in 1915, the German Government joined in a remonstrance to Turkey on account of similar persecutions.[591]

In 1902 the American Secretary of State, John Hay, addressed to Rumania a remonstrance “in the name of humanity” against Jewish persecutions, saying, “This government cannot be a tacit party to such international wrongs.”

Again, in connection with the Kishenef [Kishinev] and other massacres in Russia in 1903, President Theodore Roosevelt stated:

“* * * Nevertheless there are occasional crimes committed on so vast a scale and of such peculiar horror as to make us doubt whether it is not our manifest duty to endeavor at least to show our disapproval of the deed and our sympathy with those who have suffered by it. The cases must be extreme in which such a course is justifiable. * * * The cases in which we could interfere by force of arms as we interfered to put a stop to intolerable conditions in Cuba are necessarily very few. * * *”[592]

Concerning the American intervention in Cuba in 1898, President McKinley stated:

“First. In the cause of humanity and to put an end to the barbarities, bloodshed, starvation, and horrible miseries now existing there, and which the parties to the conflict are either unable or unwilling to stop or mitigate. It is no answer to say this is all in another country, belonging to another nation, and therefore none of our business. It is specially our duty, for it is right at our door.”[593]

The same principle was recognized as early as 1878 by a learned German professor of law, who wrote:

“States are allowed to interfere in the name of international law if ‘humanity rights’ are violated to the detriment of any single race.”[594]

Finally, we quote the words of Sir Hartley Shawcross, the British Chief Prosecutor at the trial of Goering, et al.:

“The rights of humanitarian intervention on behalf of the rights of man trampled upon by a state in a manner shocking the sense of mankind has long been considered to form part of the [recognized] law of nations. Here, too, the Charter merely develops a preexisting principle.”[595]

We hold that crimes against humanity as defined in C. C. Law 10 must be strictly construed to exclude isolated cases of atrocity or persecution whether committed by private individuals or by governmental authority. As we construe it, that section provides for punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic government organized or approved procedures amounting to atrocities and offenses of the kind specified in the act and committed against populations or amounting to persecutions on political, racial, or religious grounds.

Thus, the statute is limited by construction to the type of criminal activity which prior to 1939 was and still is a matter of international concern. Whether or not such atrocities constitute technical violations of laws and customs of war, they were acts of such scope and malevolence, and they so clearly imperiled the peace of the world that they must be deemed to have become violations of international law. This principle was recognized although it was misapplied by the Third Reich. Hitler expressly justified his early acts of aggression against Czechoslovakia on the ground that the alleged persecution of racial Germans by the government of that country was a matter of international concern warranting intervention by Germany. Organized Czechoslovakian persecution of racial Germans in Sudetenland was a fiction supported by “framed” incidents, but the principle invoked by Hitler was the one which we have recognized, namely, that government organized racial persecutions are violations of international law.

As the prime illustration of a crime against humanity under C. C. Law 10, which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law, we cite “genocide” which will shortly receive our full consideration. A resolution recently adopted by the General Assembly of the United Nations is in part as follows:

“Genocide is a denial of the right of existence of entire human groups, as homicide is a denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

“Many instances of such crimes of genocide have occurred when racial, religious, political, and other groups have been destroyed, entirely or in part.

“The punishment of the crime of genocide is a matter of international concern.

“The General Assembly therefore--

“Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices--whether private individuals, public officials, or statesmen, and whether the crime is committed on religious, racial, political or any other grounds--are punishable; * * *.”[596]

The General Assembly is not an international legislature, but it is the most authoritative organ in existence for the interpretation of world opinion. Its recognition of genocide as an international crime is persuasive evidence of the fact. We approve and adopt its conclusions. Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes. They are chargeable with knowledge that such acts were wrong and were punishable when committed.

The defendants contend that they should not be found guilty because they acted within the authority and by the command of German laws and decrees. Concerning crimes against humanity, C. C. Law 10 provides for punishment whether or not the acts were in violation of the domestic laws of the country where perpetrated (C. C. Law 10, art. II, par. 1(c)). That enactment also provides “the fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.” (C. C. Law 10, art. II, par. 4(b).)

The foregoing provisions constitute a sufficient, but not the entire, answer to the contention of the defendants. The argument that compliance with German law is a defense to the charge rests on a misconception of the basic theory which supports our entire proceedings. The Nuernberg Tribunals are not German courts. They are not enforcing German law. The charges are not based on violation by the defendants of German law. On the contrary, the jurisdiction of this Tribunal rests on international authority. It enforces the law as declared by the IMT Charter and C. C. Law 10, and within the limitations on the power conferred, it enforces international law as superior in authority to any German statute or decree. It is true, as defendants contend, that German courts under the Third Reich were required to follow German law (i.e., the expressed will of Hitler) even when it was contrary to international law. But no such limitation can be applied to this Tribunal. Here we have the paramount substantive law, plus a Tribunal authorized and required to apply it notwithstanding the inconsistent provisions of German local law. The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge.

Frank recognition of the following facts is essential. The jurisdictional enactments of the Control Council, the form of the indictment, and the judicial procedure prescribed for this Tribunal are not governed by the familiar rules of American criminal law and procedure. This Tribunal, although composed of American judges schooled in the system and rules of the common law, is sitting by virtue of international authority and can carry with it only the broad principles of justice and fair play which underlie all civilized concepts of law and procedure.

No defendant is specifically charged in the indictment with the murder or abuse of any particular person. If he were, the indictment would, no doubt, name the alleged victim. Simple murder and isolated instances of atrocities do not constitute the gravamen of the charge. Defendants are charged with crimes of such immensity that mere specific instances of criminality appear insignificant by comparison. The charge, in brief, is that of conscious participation in a nation wide government-organized system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist. The record is replete with evidence of specific criminal acts, but they are not the crimes charged in the indictment. They constitute evidence of the intentional participation of the defendants and serve as illustrations of the nature and effect of the greater crimes charged in the indictment. Thus it is that the apparent generality of the indictment was not only necessary but proper. No indictment couched in specific terms and in the manner of the common law could have encompassed within practicable limits the generality of the offense with which these defendants stand charged.

The prosecution has introduced evidence concerning acts which occurred before the outbreak of the war in 1939. Some such acts are relevant upon the charges contained in counts two, three, and four, but as stated by the prosecution, “None of these acts is charged as an independent offense in this particular indictment.” We direct our consideration to the issue of guilt or innocence after the outbreak of the war in accordance with the specific limitations of time set forth in counts two, three, and four of the indictment. In measuring the conduct of the individual defendants by the standards of C. C. Law 10, we are also to be guided by article II, paragraph 2 of that law, which provides that a person “is deemed to have committed a crime as defined in paragraph 1 of this article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime * * *.”

Before considering the progressive degeneration of the judicial system under Nazi rule, it should be observed that at least on paper the Germans had developed, under the Weimar republic, a civilized and enlightened system of jurisprudence. A few illustrations will suffice. The power of judicial appointment and the independence of the judges was jealously guarded by the individual states within the Reich. The following acts were declared criminal under the provisions of the German criminal code:

The acceptance of bribes or inducements by a judge, offered for the purpose of influencing his decision--Section 334.

Action by an official, who, in the conduct or decision of a case, deliberately makes himself guilty of diverting the law to the disadvantage of one of the parties--Section 336.

The securing of a confession by duress--Section 343.

The act of an official who, in the exercise of his duty in a criminal proceeding, knowingly causes any person to escape penalty provided by law--Section 346.

Action by a superior officer who intentionally induces * * * his subordinate to commit a punishable act in office, or knowingly connives at such a punishable offense on the part of his subordinate--Section 357.

In the Weimar constitution it was provided that “the generally accepted rules of international law are to be considered as binding, integral parts of the law of the German Reich.” (Art. 4.)

The Constitution also guaranteed to all Germans--

Equality before the law (Art. 109); Citizenship, the right of travel and emigration (Arts. 110, 111, and 112); Freedom of person (Art. 114); Freedom of speech, assembly, and association (Arts. 118, 123, and 124); Right of just compensation for property expropriated (Art. 153); Right of inheritance (Art. 154);

There were, however, in the Weimar constitution the germs of the disease from which it died. In article 48 of the constitution it was provided:

“The Reich President may, if the public safety and order of the German Reich are considerably disturbed or endangered, take such measures as are necessary to restore public safety and order. If necessary, he may intervene with the help of the armed forces. For this purpose he may temporarily suspend, either partially or wholly, the fundamental rights established in articles 114, 115, 117, 118, 123, 124, and 153.”

A review of the evidence will disclose that substantially every principle of justice which was enunciated in the above-mentioned laws and constitutional provisions was after 1933 violated by the Hitler regime.

The first step in the march toward absolutism was of necessity the assumption and consolidation of power. It was deemed essential that the government be authorized to make laws by decree, unhampered by the limitations of the Weimar republic, by the Reichstag, or by the independent action of the several German States (Laender). To accomplish this end on 28 February 1933 a decree was promulgated over the signature of President von Hindenburg, Chancellor Hitler, Reich Minister of the Interior Frick, and Reich Minister of Justice Guertner. Briefly stated, this decree expressly suspended the provisions of the Weimar constitution guaranteeing personal liberty, free speech, press, assembly, association, privacy of communication, freedom of search, and inviolability of property rights. The decree further provided that the Reich government might, to restore public security, temporarily take over the powers of the highest State authority. It was declared in the preamble that the decree was passed “in virtue of article 48 (2) of the Weimar constitution.” This is the article to which we previously referred and which authorized the Reichspraesident to suspend the very provisions which were in fact stricken down by the Hitler decree of 28 February. The decree was reinforced on 24 March 1933 by the act of an intimidated Reichstag. The enactment was subtly drawn to accomplish a double purpose. It provided that “laws decreed by the government may deviate from the constitution”, but the act did not stop there; it also provided that “laws of the Reich can be decreed by the government apart from the procedure provided by the Constitution.” We quote in part--

“Article 1.--Laws of the Reich can be decreed, apart from the procedure provided by the constitution of the Reich, also by the government of the Reich. This also applies to the laws mentioned in articles 85, paragraph 2, and 87 of the constitution of the Reich.

“Article 2.--The laws decreed by the government of the Reich may deviate from the constitution of the Reich as far as they do not concern the institution of the Reichstag and the Reich council as such. The rights of the Reichspraesident remain untouched.

“Article 3.--Articles 68 through 77 of the constitution of the Reich do not apply to laws decreed by the government of the Reich.”

Though the Enabling Act expressly repealed only a small portion of the constitution, nevertheless that portion which was repealed cleared the procedural way for the nullification of the rest if and when decrees should be promulgated by “the government.” On 14 July 1933 a law was passed declaring the Nationalsozialistische Deutsche Arbeiterpartei (NSDAP) to be the only political party and making it a crime to maintain or form any other political party.[597] Thus, it was made doubly sure that any legislation thereafter enacted by the Reichstag would be in harmony with the will of the government.

Although the process by which the Hitler regime came into power was tainted with illegality and duress, nevertheless the power thus seized was later consolidated and the regime thereafter did receive the organized support of the German people and recognition by foreign powers. On 30 January 1934, more than 10 months after the enactment of the enabling act, and subsequent to the Reichstag election of 12 November 1933, the Reichstag passed an act by unanimous vote providing that “the sovereign powers of the Laender are transferred to the Reich,” and further providing that “the Reich government may issue new constitutional laws.” The act was regularly signed by Reich President von Hindenburg, and by Reich Chancellor Hitler, and Minister Frick.[598] The provisions of the Enabling Act were renewed by acts of the Reichstag on 30 January 1937 and again on 30 January 1939.

On 14 June 1942, Dr. Lammers, Reich Minister and Chief of the Reich Chancellery, stated that they would “stress the fact that the Fuehrer himself and the Reich cabinet should not be eliminated from the powers of legislation.”

The conduct of the defendants must be seen in a context of preparation for aggressive war, and must be interpreted as within the framework of the criminal law and judicial system of the Third Reich. We shall, therefore, next consider the legal and judicial process by which the entire judicial system was transformed into a tool for the propagation of the National Socialist ideology, the extermination of opposition thereto, and the advancement of plans for aggressive war and world conquest. Though the overt acts with which defendants are charged occurred after September 1939, the evidence now to be considered will make clear the conditions under which the defendants acted and will show knowledge, intent, and motive on their part, for in the period of preparation some of the defendants played a leading part in molding the judicial system which they later employed.

Beginning in 1933, there developed side by side two processes by which the Ministry of Justice and the courts were equipped for terroristic functions in support of the Nazi regime. By the first, the power of life and death was ever more broadly vested in the courts. By the second, the penal laws were extended in such inconclusive and indefinite terms as to vest in the judges the widest discretion in the choice of law to be applied, and in the construction of the chosen law in any given case. In 1933, by the law for the “Protection against Violent Political Acts,” the death sentence was authorized, though not required, as to a number of crimes “whenever milder penalty has been prescribed hitherto.”[599]

On 24 April 1934, the definition of high treason was greatly expanded and the death sentence was authorized, though not required, in numerous instances. The manner in which this law was applied renders it all-important. The following provisions, among others, illustrate the scope of the amended law and the discretionary power of the judge:

“83. Whoever publicly incites to or solicits an undertaking of high treason shall be punished by confinement in a penitentiary not to exceed 10 years.

“Whoever prepares an undertaking of high treason in any other way shall be punished in like manner.

“The death penalty, or confinement in a penitentiary for life, or for not less than 2 years, shall be inflicted:

“(1) if the act was directed toward establishing or maintaining an organized combination for the preparation of high treason or

* * * * * * *

“(3) if the act was directed toward influencing the masses by making or distributing writings, recordings, or pictures, or by the installation of wireless telegraph or telephone, or

“(4) if the act was committed abroad or was committed in such a manner that the offender undertook to import writings, recordings, or pictures from abroad or for the purpose of distribution within the country.”[600]

On 20 December 1934, the government promulgated the following enactment “Law on Treacherous Acts against State and Party and for the Protection of Party Uniforms,” which provided in part as follows:

“Chapter 1. Article 1. (1) Unless heavier punishment is sanctioned under the authority of a law previously established, imprisonment not to exceed 2 years shall be imposed upon anybody deliberately making false or grievous statements, fit to injure the welfare or the prestige of the government of the Reich, the National Socialist Workers’ Party, or its agencies. If such statements are made or circulated in public, imprisonment for not less than 3 months shall be imposed.

“Article 2. (1) Anyone who makes or circulates statements proving a malicious, baiting or low-minded attitude toward leading personalities of the State or the NSDAP, or toward orders issued by them or toward institutions created by them--fit to undermine the confidence of the people in its political leadership--shall be punished with imprisonment.

“(2) Statements of this kind which are not made in public shall warrant the same punishment--provided the offender figures on his statements eventually being circulated in public.”

A decisive step was taken by the “Law to Change the Penal Code,” which was promulgated on 28 June 1935 by Adolf Hitler as Fuehrer and Reich Chancellor, and by Dr. Guertner as Reich Minister of Justice. Article 2 of that enactment is as follows:

“Article 2. Whoever commits an act which the law declares as punishable or which deserves punishment according to the fundamental idea of a penal law and the sound concept of the people, shall be punished. If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying principle can be most readily applied to the act.”

In substance, this edict constituted a complete repudiation of the rule that criminal statutes should be definite and certain and vested in the judge a wide discretion in which Party political ideology and influence were substituted for the control of law as the guide to judicial decision.

Section 90 (f) of the Penal Code, as enacted on 24 April 1934, provided:

“Whoever publicly, or as a German staying abroad, causes serious danger to the reputation of the German nation by an untrue or grossly inaccurate statement of a factual nature, shall be punished by confinement in a penitentiary.”

The act was amended on 20 September 1944 as follows:

“In especially serious cases a German may be punished by death.”[601]

By the act of 28 June 1935 it was provided:

“Whoever publicly profanes the German National Socialist Labor Party, its subdivisions, symbols, standards, and banners, its insignia or decorations, or maliciously and with premeditation exposes them to contempt shall be punished by imprisonment.

“The offense shall be prosecuted only upon order of the Reich Minister of Justice who shall issue such order in agreement with the Fuehrer’s deputy.”[602]

By the law of 28 June 1935 it was provided:

“If the main proceedings show that the defendant committed an act which deserves punishment according to the common sense of the people but which is not declared punishable by the law, then the court must investigate whether the underlying principle of a penal law applies to this act and whether justice can be helped to triumph by the proper application of this penal law. (Article 2 of the Penal Code.)”[603]

A decree of 1 December 1936 provides in part as follows:

“Section 1. (1) A German citizen who consciously and unscrupulously, for his own gain or for other low motives, contrary to legal provisions smuggles property abroad or leaves property abroad and thus inflicts serious damage to German economy is to be punished by death. His property will be confiscated. The perpetrator is also punishable, if he commits the misdeed abroad.”[604]

On 17 August 1938, more than a year before the invasion of Poland, a decree was promulgated against undermining German military efficiency. It provided in part:

“Section 5. (1) The following shall be guilty of undermining German military efficiency, and shall be punished by death:

“1. Whoever openly solicits or incites others to evade the fulfillment of compulsory military service in the German or an allied armed force, or otherwise openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms; * * *.”[605]

Under this law the death sentence was mandatory.

By the decree of 1 September 1939 the ears of the German people were stopped lest they hear the truth:

“Section 1.--Deliberate listening to foreign stations is prohibited. Violations are punishable by hard labor. In less severe cases there can be a sentence of imprisonment. The radio receivers used will be confiscated.

“Section 2.--Whoever deliberately spreads news from foreign radio stations which is designed to undermine German military efficiency will be punished by hard labor and in particularly severe cases by death.”[606]

It is important to note that discretion as to penalty was vested in the court.

On 5 September 1939, by the Decree Against Public Enemies, it was provided that looting in liberated territory may be punished by hanging. The following additional provisions are of importance because of the arbitrary manner in which the instrument was construed and applied by the courts. The provisions are as follows:

“Section 2.--Whoever commits a crime or offense against life, limb or property, taking advantage of air raid protection measures, is punishable by hard labor of up to 15 years or for life, and in particularly severe cases punishable by death.

“Section 3.--Whoever commits arson or any other crime of public danger, thereby undermining German military efficiency, will be punished by death.

“Section 4.--Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to 15 years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable.”[607]

On 25 November 1939 the death penalty was authorized as punishment for intentionally or negligently causing damage to war materials and the like, if it endangers the fighting power of the German armed forces. The death penalty was also authorized in case of anyone who “disturbs or imperils” the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population.[608]

On 5 December 1939 the death penalty was authorized for various crimes of violence and it was provided that “this decree is also applicable to crimes committed before it became valid”.

On 4 September 1941 the Criminal Code was supplemented and changed to provide the death penalty for dangerous habitual criminals and sex criminals “if necessitated for the protection of the national community or by the desire for just expiation”. The decree was signed by Adolf Hitler and by the defendant Dr. Schlegelberger in charge of the Reich Ministry of Justice.

By the decree of 5 May 1944, the judges were substantially freed from all restrictions as to the penalty to be invoked in criminal cases. That decree reads as follows:

“With regard to all offenders who are guilty of causing serious prejudice or seriously endangering the conduct of war, or the security of the Reich, through an intentional criminal act, a penalty may be imposed in excess of the regular penal limits up to the statutory maximum for a given type of punishment, or hard labor for a term or for life, or death, if the regular statutory maximum limits are insufficient for expiation of the act according to the sentiment of the people. The same shall also apply to all offenses committed by negligence by which one made himself guilty of a particularly grave prejudice or a particularly serious danger to the conduct of war, or to the security of the Reich.”[609]

On 20 August 1942 Hitler issued the famous decree which marks the culmination of his systematic campaign to change the German judicial system into an instrumentality of the NSDAP. The decree was as follows:

“A strong administration of justice is necessary for the fulfillment of the tasks of the great German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice and to take all necessary measures in accordance with my directives and instructions made in agreement with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.”[610]

The statutes which we have reviewed were merely steps in the process of increased severity of the criminal law and in the development of a loose concept concerning the definition of crime. The latter concept was especially evident in the statutes concerning the “sound sentiment of the people”, crime by analogy, and undermining the military efficiency of the nation. In place of the control of law there was substituted the control of National Socialist ideology as a guide to judicial action.

The Draconic laws to which we have referred were upon their face, of general applicability. The discriminations on political, racial, and religious grounds are to be found not in the text, but in the application of the text.

But the Nazis were not content with statutes of a nondiscriminatory nature even in view of the discriminatory manner in which they were enforced. Coincidentally with the development of these laws and decrees there arose another body of substantive law which expressly discriminated against minority groups both within and without the Reich, and which formed the basis for racial, religious, and political persecution on a vast scale. On 7 April 1933, a decree by the Reich government provided in part that--

“Article 2. Persons who, according to the Law for the Restoration of the Professional Civil Service of 7 April 1933,[611] are of non-Aryan descent, may be refused permission to practice law, even if there exists none of the reasons enumerated in the Regulations for Lawyers. The same rule applies in cases, as where a lawyer described in section 1, clause 2, wishes to be admitted to another court. * * *”

“Article 3. Persons who are active in the Communistic sense are excluded from the admission to the bar. Admissions already given have to be revoked.”[612]

The act was implemented by the power of injunction. The fact that the license to practice law had been canceled was also stated as a ground for the cancellation of employment contracts and office leases.

On 15 September 1935, the Reichstag enacted the “Law for the Protection of German Blood and Honor.” We quote--

“Article 1. (1) Marriages of Jews and citizens of German or related blood are prohibited. Marriages which are concluded nevertheless, are void even if they were concluded abroad in order to circumvent this law.

“(2) Only the district attorney can sue for nullification of marriage.

“Article 2. Sexual intercourse (except in marriage) between Jews and German nationals of German or German-related blood is forbidden.”

By other laws, as amended from time to time, non-Aryans were almost completely expelled from public service. The number of non-Aryans in schools and higher institutions of learning was restricted.[613] Jews were excluded from the homestead law concerning peasantry.[614] Jewish religious communities were regulated.[615] Jews were excluded from certain industrial enterprises[616] and their rights as tenants were restricted.[617]

By the act of 2 November 1942 it was provided--

“Section 1. A Jew who has his domicile abroad cannot be a citizen of the Protectorate of Bohemia and Moravia. Domicile abroad is established if a Jew was abroad under circumstances which indicated that his tenure there is not of a temporary nature.

“Section 2. A Jew loses his citizenship status in the Protectorate if--

“(a) As of the effective date of this decree, he has an established domicile abroad;

“(b) At a date subsequent to the effective date of this decree, he establishes a domicile abroad.”

And by act of 25 November 1941 it was provided--

“Section 3. (1) The property of the Jew who is losing his nationality under this amendment shall be forfeited for the benefit of the Reich at the moment he loses his nationality. The Reich further confiscates the property of Jews who are stateless at the moment this amendment becomes effective, and who were last of German nationality, if they have or take up their regular residence abroad.

(2) The property thus forfeited shall serve the furthering of all purposes in connection with the solution of the Jewish question.

* * * * * * *

“Section 8. (1) It is for the chief of the Security Police and the SD (of Reich Leader SS) to decide whether the conditions for confiscation of property are given.

(2) The administration and liquidation of the forfeited property is up to the Chief of the Regional Finance Office, Berlin.”[618]

The decree of 4 December 1941 “concerning the organization and criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories”,[619] marks perhaps the extreme limit to which the Nazi government carried its statutory and decretal persecution of racial and religious minorities, but it also introduces another element of great importance. We refer to the extension of German laws to occupied territory, to purportedly annexed territory, and to territory of the so-called protectorates. The decree provides--

“(1) Poles and Jews in the Incorporated Eastern Territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They are to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.

“(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his being of German blood.

“(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious activities or incitement, particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or offices, or if he, by his conduct, lowers or prejudices the prestige or the well being of the German Reich or the German people.

“(4) The death penalty, or in less serious cases imprisonment, shall be imposed on any Jew or Pole:

* * * * * * *

“3. If he urges or incites to disobedience to any decree or regulation issued by the German authorities;

“4. If he conspires to commit an act punishable under paragraphs (2), (3) and (4), subsections 1 to 3, or if he seriously contemplates the carrying out of such an act, or if he offers himself to commit such an act, or accepts such an offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted. [Emphasis added.]

“II. Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal law or commit any act for which they deserve punishment in accordance with the fundamental principles of German criminal law and in view of the interests of the State in the Incorporated Eastern Territories.

“III. * * * (2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover, in these cases where the law does not provide for the death sentence, it may and shall be imposed if the offense points to particularly grave for other reasons; the death sentence may also be passed upon juvenile offenders.

* * * * * * *

“XIV. (1) The provisions contained in sections I-IV of this decree apply also to those Poles and Jews who on 1 September 1939 were domiciled or had their residence within the territory of the former Polish State, and who committed criminal offenses in any part of the German Reich other than the Incorporated Eastern Territories. * * *”

It will be observed that the title of the foregoing act refers to “Poles and Jews in the Incorporated Eastern Territories”, but Article XIV makes the decree also applicable to acts by Poles and Jews within any part of the German Reich, if on 1 September 1939 they were domiciled within the former Polish State. This section was repeatedly employed by the courts in the prosecution of Poles.

There was promulgated a thirteenth regulation under the Reich citizenship law which illustrates the increasing severity by means of which the government was attempting to reach a “solution of the Jewish problem” under the impulsion of the progressively adverse military situation. This regulation, under date of 1 July 1943, provides:

“Article 1. (1) Criminal actions committed by Jews shall be punished by the police.

“(2) The provision of the Polish penal laws of 4 December 1941 (RGBl. I, p. 759) shall no longer apply to Jews.

“Article 2. (1) The property of a Jew shall be confiscated by the Reich after his death.

* * * * * * *

“Article 3. The Reich Minister of the Interior with the concurrence of the participating higher authorities of the Reich shall issue the legal and administrative provisions for the administration and enforcement of this regulation. In doing so he shall determine to what extent the provisions shall apply to Jewish nationals of foreign countries.”

By Article 4 it was provided that in the Protectorate of Bohemia and Moravia the regulation shall apply where German administration and German courts have jurisdiction. (1943 RGBl. I, p. 372.)

Not only did the Nazis enact special discriminatory laws against Poles and Jews and political minorities; they also enacted discriminatory laws in favor of members of the Party. By the decree of 17 October 1939, it was provided that “for the area of the Greater German Reich, special jurisdiction in penal matters will be established for--

“1. Professional members of the Reich leadership of the SS.

“2. Professional members of the staffs of those Higher SS and Police Chiefs who possess the authority of issuing orders in those units which have been specially designated under numbers 3 to 6 below:

“3. Members of the SS units for special purposes;

“4. Members of the SS Death Head units (including their reinforcements);

“5. Members of the SS Junker schools;

“6. Members of police units for special purposes.”

On 12 March 1938, the German Army invaded Austria. The methods employed “were those of an aggressor.”[620] On the next day Austria was incorporated in the German Reich. As a result of the Munich pact of 29 September 1938, and of threatened invasion, Czechoslovakia was compelled to cede the Sudetenland to Germany,[621] and on 16 March 1939, Bohemia and Moravia were incorporated in the Reich as a protectorate. On 1 September 1939, Poland was invaded and thereafter occupied and, later on, Germany, by military force, occupied all or portions of Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece, and Russia. These occupations and annexations furnished the motive for an extension into many areas outside the old Reich of the draconic and discriminatory German laws which had been put in force within the old Reich. By the act of 14 April 1939, it was provided:

“Article II, section 6 (2). Persons who are not German nationals are subject to German jurisdiction for offenses--

“(a) to which German criminal law applies,

“(b) if they are prosecuted under a private action provided the action has been brought by a German national.

* * * * * * *

“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.”

The decree of 5 September 1939 against public enemies, supra, was made “applicable in the Protectorate of Bohemia and Moravia and also for those persons who are not German citizens.”

By a decree of 25 November 1939 concerning damage to war material, it is provided in part:

“Section 2. Whoever disturbs or imperils the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population in that he made a thing serving the enterprise completely or partially unusable or put it out of commission, shall be punished by hard labor or in especially serious cases by death.

* * * * * * *

“Section 6. In the Protectorate of Bohemia and Moravia the provisions of sections 1, 2, * * * and 5 of this decree are valid also for persons who are not nationals of the German state.”

The “decree on the extension of the application of criminal law of 6 May 1940” provided in part:

[Article I, section 4] “German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:

“1. Crimes committed while holding a German governmental office, as a German soldier or as member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office of the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;

“2. Actions constituting treason or high treason against Germany; * * *.”

* * * * * * *

[Article II] “Paragraph 153. * * * A crime committed by a foreigner abroad will be prosecuted by the public prosecutor only if so demanded by the Reich Ministry of Justice. The public prosecutor may abstain from the prosecution of a crime if the same crime has already been punished abroad and if the punishment has been carried out and the sentence to be expected in Germany would, after deducting the time served abroad, not be heavy.”

The act of 25 November 1941, supra, concerning the confiscation of Jewish property was made applicable in the Protectorate of Bohemia and Moravia and in the Incorporated Eastern Territories.[622] Of greatest significance in this category was the law against Poles and Jews already cited in another connection. The thirteenth regulation under the Reich Citizenship Law of 1 July 1943, supra, was also made applicable within the Protectorate of Bohemia and Moravia “where German administration and German courts have jurisdiction”. It was also made applicable to Jews “who are citizens of the Protectorate”. (Sec. 4.)

Thus far we have taken note of the substantive criminal law and its extension to occupied and annexed territories, but these laws were not self-executing. For the accomplishment of the ends of aggressive war, the elimination of political opposition and the extermination of Jews in all of Europe, it was deemed necessary to harness the Ministry of Justice and the entire court system for the enforcement of the penal laws in accordance with National Socialist ideology.

By decree of 21 March 1933 Special Courts were established within the district of every court of appeal. Their jurisdiction was rapidly extended. It included the trial of cases arising under the decree relating to the defense against insidious attacks against the government of the national revolution.

The decree of 21 March 1933 provided in part:

“Section 3. (1) The Special Courts shall also be competent if a crime within their jurisdiction represents also another punishable deed.

“(2) If another punishable act is factually connected with a crime within the jurisdiction of the Special Courts, the proceedings on that other punishable deed against delinquents and participants may be referred to the Special Court by way of connection.”

* * * * * * *

“Section 9. (1) No hearings relating to the warrant of arrest will be held.

* * * * * * *

“Section 10. For the defendant who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.

“Section 11. A preliminary court investigation will not take place. * * *

“Section 12. * * * (4) The term of the summons (section 217 of the Code of Criminal Procedure) is 3 days. It can be shortened to 24 hours.

“Section 13. The Special Court can refuse any offer of evidence, if the court has come to the conviction that the evidence is not necessary for clearing up the case.

“Section 14. The Special Court has to pass sentence even if the trial results in showing the act of which the defendant is accused, as not being under the jurisdiction of the Special Court. This does not apply if the act constitutes a crime or offense under the jurisdiction of the Supreme Court or the courts of appeal; in this case the Special Court has to proceed according to section 270, paragraph 1–2 of the Code of Criminal Procedure.

“Section 16. (1) There is no legal appeal against decisions of the Special Courts.

“(2) Applications for a reopening of the trial are to be decided upon by the criminal chamber of the district court. The reopening of the trial in favor of the defendant will also take place if there are circumstances which point to the necessity of reexamining the case in the ordinary procedure. The stipulation of section 363 of the Code of Criminal Procedure remains unaffected. If the application for the reopening of the trial is justified, the trial will be ordered to take place before the competent ordinary court.”[623]

Special Courts were also vested with jurisdiction under the law for the protection against violent political acts of 4 April 1933 under which the death penalty was authorized.[624]

On 1 September 1939 the Special Courts were given jurisdiction under the law concerning listeners to foreign radio broadcasts, and the death sentence was authorized in certain cases.[625] On 5 September 1939 jurisdiction of the Special Court was extended to cases of looting, and the death sentence was authorized. Jurisdiction was also extended to cases of criminal acts exploiting the extraordinary conditions caused by the war. That act further provided:

[Article 5] “In all trials by Special Courts the verdict must be pronounced at once without observation of time limitations if the perpetrator is caught redhanded or if guilt is otherwise obvious”.[626]

On 21 February 1940 the Special Courts were expressly given jurisdiction concerning--

[Article 13] “1. Crime and offenses committed under the law of 20 December 1934 concerning treacherous attacks against State and Party, and concerning protection of Party uniforms;

“2. Crimes under section 239a of the Reich Criminal Code and under the law of 22 June 1938 concerning highway robbery by means of highway traps;

“3. Crimes under the decree [1 September 1939] concerning extraordinary measures in regard to radio;

“4. Crimes and offenses under the war economy decree of 4 September 1939;

“5. Crimes under section 1 of the decree of 5 September 1939 against public enemies;

“6. Crimes under sections 1 and 2 of the decree of 5 December 1939 against violent criminals.”[627]

The decree further provided:

[Article 14] (1) “The Special Court also has jurisdiction over other crimes and offenses, if the prosecution is of the opinion that immediate sentencing by the Special Court is indicated by the gravity or the outrageousness of the act, on account of the thereby-aroused public sentiment or in consideration of serious threat to public order or security.”

[Article 23] “(1) In all proceedings before a Special Court the sentence must be passed immediately without observation of any reprieves, if the delinquent was caught in the very act or if his guilt is self-evident otherwise.

“(2) In all other cases the term of summons shall be 24 hours. (Articles 217, 218 of the Reich Code of Criminal Procedure (Reichsstrafprozessordnung)).”

[Article 25] “(1) The Special Court must hand down a decision in a case, even if the trial shows that the act with which the accused is charged is of such a nature that the Special Court is not competent to deal with it. If, however, the trial shows that the act comes under the jurisdiction of the People’s Court, the Special Court refers the matter to the latter court, by decision; Article 270, section 2, of the Reich Code of Criminal Procedure is applicable accordingly.

[Article 26] “(1) There is no legal appeal against a decision of the Special Court.”

[Article 34] “The chief public prosecutor may lodge a petition for nullification with the Supreme Court (Reichsgericht) against a final judgment of a judge of the criminal court of the Special Court, within 1 year from the date of its becoming final, if the judgment is not justified because of an erroneous application of law on the established facts.

[Article 35] “(1) The petition for nullification must be submitted in writing to the Supreme Court. This court will decide thereon by judgment based on a trial. With the consent of the chief public prosecutor it can also reach a decision without trial.

“2. The Supreme Court may order a postponement or an interruption of the execution. It may order arrest or internment even prior to the decision on the petition for nullification. The criminal senate (Strafsenat) composed of three members including the president, will decide thereon without a trial, with reservations as to the regulations of article 124, section 3 of the Reich Code of Criminal Procedure.”[628]

The speed with which the Special Courts acted is of significance. In view of the congested dockets of the Special Courts, Freisler, acting for the Minister of Justice, ordered, “a Special Court is, as a rule, to be considered overloaded if a monthly average of more than forty new indictments has been filed with it.”

On 4 December 1941, in the law against Poles and Jews, supra, it was provided:

“IV. The State prosecutor shall prosecute a Pole or a Jew if he considers that punishment is in the public interest.

“V. (1) Poles and Jews shall be tried by a Special Court or by the district judge.

* * * * * * *

“VI. (1) Every sentence will be enforced without delay. The State prosecutor may, however, appeal from the sentence of a district judge to the court of appeal. The appeal has to be lodged within 2 weeks.

“(2) The right to lodge complaints which are to be heard by the court of appeal is reserved exclusively to the State prosecutor.

“VII. Poles and Jews cannot challenge a German judge on account of alleged partiality.

“VIII. * * * (2) During the preliminary inquiry, the State prosecutor may order the arrest and any other coercive measures permissible.

“IX. Poles and Jews are not sworn in as witnesses in criminal proceedings. If the unsworn deposition made by them before the court is found false, the provisions as prescribed for perjury and false statements shall be applied accordingly.

“X. (1) Only the State prosecutor may apply for the reopening of a case. In a case tried before a Special Court, the decision concerning an application for the reopening of the proceedings rests with this court.

“(2) The right to lodge a plea of nullity rests with the State prosecutor general. The decision on the plea rests with the court of appeal.

“XI. Poles and Jews are not entitled to act as prosecutors either in a principal or a subsidiary capacity.

“XII. The court and the State prosecutor shall conduct proceedings within their discretion and according to the principles of the German law of procedure. They may, however, deviate from the provisions of the German law on the organization of courts and on criminal procedure, whenever this may appear to them advisable for the rapid and more efficient conduct of proceedings.

* * * * * * *

“XV. Within the meaning of this decree, the term ‘Poles’ includes ‘Schutzangehoerige’ or those who are stateless.”[629]

It will be noted that the procedural rules became progressively more summary and severe as the military situation became progressively more critical.

A major development in the Nazification of the judicial system appears in the establishment of the “People’s Court” which was subdivided into a number of senates or departments. We quote:

“When the Supreme Court acquitted three of the four defendants charged with complicity in the Reichstag fire, its jurisdiction in cases of treason was thereafter taken away and given to a newly established ‘People’s Court’ consisting of two judges and five officials of the Party.”[630]

The act of 24 April 1934 which established the highly flexible definitions of high treason also provided new judicial machinery for enforcement.

“Article III, section 1. (1) For the trial of cases of high treason the People’s Court is established.

“(2) Decisions of the People’s Court are made by five members during the trial, by three members outside the trial. This includes the president. The president and one further member must be qualified judges. Several senates may be established.”[631]

In section 3 (1) of article III it is provided that “the People’s Court is competent for the investigation and decision in the first and last instance in cases of high treason * * *”, and in other specified cases.

“Article III, section 3. (2) The People’s Court is also competent in such cases where crimes or offenses subject to its competence constitute at the same time another punishable act.

“(3) If another punishable act is in factual connection with a crime or offense subject to the jurisdiction of the People’s Court, the trial against the perpetrators and participants of the other punishable act may be brought before the People’s Court by way of combination of the respective cases.”

* * * * * * *

“[Article III] section 5. (2) Against the decisions of the People’s Court no appeal is permitted.”

On 1 December 1936, the jurisdiction of the People’s Court was extended to include violation of the law against economic sabotage. (supra.)

On 14 April 1939, the system was extended to Bohemia and Moravia. We quote:

“[Section 1] (2) Furthermore, the Supreme Reich Court and the People’s Court will carry out jurisdiction for the Protectorate Bohemia and Moravia.”[632]

The extent of jurisdiction was defined as follows:

“Section 6. (1) German nationals are subject to German jurisdiction in the Protectorate of Bohemia and Moravia.

“(2) Persons who are not German nationals are subject to German jurisdiction for offenses--

“1. to which German criminal law applies,

“2. if they are prosecuted under a private action provided the action has been brought by a German national.

* * * * * * *

“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.

“Section 8. The German courts in the Protectorate of Bohemia and Moravia administer justice in the name of the German people.”[633]

By the law of 16 September 1939, provision was made for extraordinary appeal against final judgments. We quote in part:

“Article 2, section 3. (1) Against legally valid sentences in criminal proceedings the senior Reich prosecutor at the Reich Supreme Court can file an appeal within one year after they have been pronounced, if, because of serious misgiving, concerning the justness of the sentence, he considers a new trial and a new decision in the cases necessary.

“(2) On the basis of the appeal, the Special Penal Senate of the Reich Supreme Court will try the cases a second time.

“(3) If the first sentence was passed by the People’s Court, the appeal is to be filed by the senior Reich prosecutor at the People’s Court, and the second trial is to be held by the Special Senate of the People’s Court. The same applies to the sentences of courts of appeal in cases which the senior Reich prosecutor at the People’s Court had transferred to the public prosecutor attached to the court of appeals, or which the People’s Court had transferred for trial and sentencing to the courts of appeal.

* * * * * * *

“Section 5. (1) The Special Senate of the People’s Court consists of the president and of four members.”[634]

On 21 February 1940 the jurisdiction of the People’s Court was redefined and again extended to cover high treason, treason, severe cases of damaging war material, failure to report an intended crime, crimes under section 5 (1) of the decree of 28 February 1933 concerning protection of people and State; crimes of economic sabotage, crime of undermining German military efficiency, and others.

On 6 May 1940 a broad decree was issued concerning the jurisdiction of German courts for the “territory of the Greater German Reich.” That decree provided:

“German criminal law will be applied to the crime of a German national, no matter whether it is committed in Germany or abroad. For a crime committed abroad, which according to the laws of the place of commitment is not punishable, German criminal law will not be applied, unless such action would constitute a crime according to the sound sentiment for justice of the German people on account of the particular conditions prevailing at the place of commitment.”[635]

* * * * * * *

“Paragraph 4. German criminal law will be applied also in case of crimes committed by a foreigner in Germany.

“German criminal law will be applied to crimes committed by a foreigner abroad, if they are punishable according to the penal code of the territory where they are committed, or if such territory is not subject to any jurisdiction and if--

“1. the criminal has obtained German nationality after the crime, or

“2. the crime is directed against the German people or a German national, or

“3. the criminal is apprehended in Germany and is not extradited, although the nature of his crime would permit an extradition.

“German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:

“1. Crimes committed while holding a German governmental office, as a German soldier or as a member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office or the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;

“2. Actions constituting treason or high treason against Germany,” and in other special cases.

Certain additional provisions intimately affecting the rights of accused persons deserve special mention.

“Section 10. For the defendant, who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.

“Section 11. A preliminary court investigation will not take place. * * *”[636]

By a decree of the Reich Minister of Justice, Dr. Thierack, on 13 December 1944, it was provided:

“Article 2, paragraph 12. Limited admittance of defense counsel.

“(1) In any one criminal case, several lawyers or professional representatives may not act side by side as chosen counsel for one defendant.

“(2) The rules about obligatory representation by defense counsel do not apply. The presiding judge appoints a defense counsel for the whole or part of the proceedings if the difficulty of the material or legal problems require assistance by a defense counsel, or if the defendant, in due consideration of his personality, is unable to defend himself personally. * * *”[637]

On 16 February 1934 it was provided that:

“Article 2. The president of the Reich has the prerogatives for nulle prosequi and clemency (formerly held by the States).

“Amnesties can be promulgated only by Reich law.”[638]

This centralization of the clemency powers marks a radical departure from the system which prevailed prior to 1933 and was the means by which the will of Hitler became a dominating force in the Ministry of Justice and in the courts. Other provisions are as follows:

“Even if the judgment has been contested only by the defendant or his legal representative, or by the prosecution in his favor, it can be changed against the interests of the defendant.[639]

“In penal matters for which the People’s Court, the superior district court, or the court of assizes are competent, preexamination is conducted upon application of the prosecution, if, after due consideration, the prosecution thinks it necessary.

“In other penal matters as well, preexamination takes place on application of the prosecution. The prosecution should make such an application only if unusual circumstances make it necessary to have a judge conduct such preexamination.”[640]

An illuminating comment on the law is made by a German text writer.

“A criminal case on which verdict has been passed must not again become the subject of another criminal proceeding. This exclusive effect pertains to the subject of the case both as regards the crime and the criminal. * * * According to the findings of the German supreme court and to the prevailing theory in accord with these findings, the effect of ne bis in idem includes the history of the case submitted to the court for verdict. * * * This theory, however, leads to unbearable consequences. In order to avoid these unbearable consequences some courts, recently, have permitted the breach of the principle against double jeopardy in exceptional cases where jeopardy of a second trial is necessitated by the sound sense of justice. * * *”[641]

On 21 March 1942 Adolf Hitler promulgated a decree regarding the simplification of the administration of justice. We quote the following excerpts:

“In penal cases, * * * the formal opening of the main proceeding must be eliminated. * * * (Sec. I.)

“Indictments and judicial decisions must be more tersely written by restricting them to the absolutely necessary. (Sec. II.)

“The cooperation of professional associate judges in judicial decisions must be restricted. (Sec. III.)

“I commission the Reich Minister of Justice, in agreement with the Reich Minister and Chief of the Reich Chancellery and with the Chief of the Party Chancellery, to issue the legal provisions necessary for the execution of this decree. I empower the Reich Minister of Justice to make the necessary administrative provisions and to decide any doubtful questions by administrative means. (Sec. VI.)”

On 13 August 1942 a decree was issued by the defendant Schlegelberger as Reich Minister of Justice in charge of the Ministry--

“Article 4. * * * Decisions by the criminal court, the Special Court, and the criminal senate of the circuit courts of appeal may be made solely by the president or his regular deputy, if he considers the cooperation of his associates dispensable in view of the simplicity of the nature and the legal status of the case, and if the public prosecutor agrees.

“Article 5. Main proceeding without public prosecutor--In the proceeding before the district judge, the public prosecutor may renounce his participation in the main proceeding.

“Article 7 (2). The validity of an objection is decided on by the president of the deciding court. The admissibility of an appeal is decided on by the president of the court of appeal (Berufungsstrafkammer); he is also authorized to bring about a decision of the court. These decisions are not subject to any proof, and are incontestable.

“Article 7 (3). Further objections will not be admitted.”

We have already quoted at length from the decree of 4 December 1941 concerning the organization of criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories. That decree also contained provisions for the establishment of martial law from which we quote:

“Article XIII (1). Subject to the consent of the Reich Minister of the Interior and the Reich Minister of Justice, the Reich governor may, until further notice, enforce martial law in the Incorporated Eastern Territories, either in the whole area under his jurisdiction or in parts thereof, upon Poles and Jews guilty of grave excesses against the Germans or of other offenses which seriously endanger the German work of reconstruction.

“(2) The courts established under martial law impose the death sentence. They may, however, dispense with punishment and refer the case to the Secret State Police (Gestapo).”

A final step in the development of summary criminal procedure was taken on 15 February 1945 by a decree of the Reich Minister of Justice, Dr. Thierack. The decree provided:

“II. 1. The court martial consists of a judge of a criminal court as president and of a member of the political leader corps, or of a leader of another structural division of the NSDAP and an officer of the Wehrmacht, the Waffen SS, or the police, as associate judges. * * *

“III. 1. The courts martial have jurisdiction for all kinds of crimes endangering the German fighting power or undermining the people’s military efficiency. * * *

“IV. 1. The sentence of the court martial will be either death, acquittal, or commitment to the regular court. The consent of the Reich defense commissar is required. He gives orders for the time, place, and kind of execution. * * *”[642]

Pursuant to a decree of the Fuehrer of 16 March 1939, the defendant Schlegelberger, as Reich Minister of Justice in charge, together with the Minister of the Interior and the Chief of the Armed Forces, Keitel, issued a decree which reads in part as follows:

“Section 1. In case of direct attack by a non-German citizen against the SS or the German Police or against any of their members, the Reich Leader of the SS and the Chief of the German Police in the Reich Ministry of the Interior may establish the jurisdiction of a combined SS court and police court, by declaring that special interests of parts of the SS or of the Police require that judgment be given by an SS and police court.

“This declaration shall be sent to the Reich Protector of Bohemia and Moravia. The SS and police court, which shall have jurisdiction in individual cases, shall be specified by the Reich Leader of the SS and Chief of the German Police in the Reich Ministry of the Interior.

“Section 2. If the offense directly injures the interests of the armed forces, the Reich Leader of the SS and chief of the German Police in the Reich Ministry of the Interior, and the chief of the Supreme Command of the Armed Forces shall reach an agreement as to whether the case shall be prosecuted by an SS and police court or by a military court.[643]

“Article II. Exemption of the Reich court from being bound to precedent sentence: The Reich Court as the highest German tribunal must consider it its duty to effect an interpretation of the law which takes into account the change of ideology and of legal concepts which the new State has brought about. In order to be able to accomplish this task without having to show consideration for the jurisdiction of the past brought about by other ideology and other legal concepts, it is ruled as follows:

“When a decision is made about a legal question, the Reich Court can deviate from a decision laid down before this law went into effect.”[644]

THE LAW IN ACTION

We pass now from the foregoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutors, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning the first principle, Dr. Jahrreiss said:

“If now in the European meaning one asks about legal restrictions, and first of all one asks about restrictions of the German law, one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.”

Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “crown jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law. As stated by Professor Jahrreiss:

“To express it differently, whether the law has been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.”

This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:

“On the other hand, certainly there were legal restrictions for Hitler under international law. * * * He was bound by international law. Therefore, he could commit acts violating international law. Therefore, he could issue orders violating international law to the Germans.”

The conclusion to be drawn from the evidence presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a tribunal authorized to enforce international law, Hitler’s decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.

In German legal theory, Hitler was not only the supreme legislator, he was also the supreme judge. On 26 April 1942 Hitler addressed the Reichstag in part as follows:

“I do expect one thing: That the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience. * * *”

“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person, or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.”

“* * * From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”

On the same day the Greater German Reichstag resolved in part as follows:

“* * * the Fuehrer must have all the rights postulated by him which serve to further or achieve victory. Therefore--without being bound by existing legal regulations--in his capacity as leader of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme executive chief, as supreme justice[645], and leader of the Party--the Fuehrer must be in a position to force with all means at his disposal every German, if necessary, whether he be common soldier or officer, low or high official or judge, leading or subordinate official of the Party, worker or employee, to fulfill his duties. In case of violation of these duties, the Fuehrer is entitled after conscientious examination, regardless of so-called well-deserved rights, to mete out due punishment, and to remove the offender from his post, rank and position, without introducing prescribed procedures.”

The assumption by Hitler of supreme governmental power in all departments did not represent a new development based on the emergency of war. The declaration of the Reichstag was only an echo of Hitler’s declaration of 13 July 1934. After the mass murders of that date (the Roehm purge) which were committed by Hitler’s express orders, he said:

“Whenever someone reproaches me with not having used the ordinary court for their sentencing, I can only say: ‘In this hour I am responsible for the fate of the German nation and hence the supreme law lord[645] of the German people.’”

The conception of Hitler as the supreme judge was supported by the defendant Rothenberger. We quote (NG-075, Pros. Ex. 27):

“However, something entirely different has occurred; with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge--first of all, of course, as ‘judge’ over their fate in general, but also as ‘supreme magistrate[645] and judge.’”

In the same document the defendant Rothenberger expounded the National Socialist theory of judicial independence. He said:

“Upon the fact that the judge can use his own discretion is founded the magic of the word ‘judge.’”

He asserted that “every private and Party official must abstain from all interference or influence upon the judgment,” but this statement appears to be mere window-dressing, for after his assertion that a judge “must judge like the Fuehrer”, he said:

“In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer’. He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must upon the request of the judge give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”

Thus, it becomes clear that the Nazi theory of the judicial independence was based upon the supreme independence of the Fuehrer, which was to be channelized through the proposed liaison officer from Fuehrer to judge.

On 13 November 1934, Goering, in an address before the Academy of German Law, expressed similar sentiments concerning the position of Hitler.

“Gentlemen, for the German nation this matter was settled by the words of the judge in this hour, the Fuehrer, who stated that in this hour of uttermost danger he alone, the Fuehrer elected by the people, was the supreme and only judge of the German nation.”

The defendant Schlegelberger, on 10 March 1936 said:

“It should be emphasized, however, that in the sphere of the law, also, it is the Fuehrer and he alone who sets the pace of development.”

To the same effect we quote Reich Minister of Justice Dr. Thierack, who, on 5 January 1943 said:

“So also with us the conviction has grown in these 10 years in which the Fuehrer has led the German people that the Fuehrer is the chief justice and the supreme judge of the German people.”

On 17 February 1943 the defendant Under Secretary Dr. Rothenberger summed up his legal philosophy with the words (NG-415, Pros. Ex. 26):

“The judge is on principle bound by the law. The laws are the orders of the Fuehrer.”

As will be seen, the foregoing pronouncement by the leaders in the field of Nazi jurisprudence were not mere idle theories. Hitler did, in fact, exercise the right assumed by him to act as supreme judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.

The evidence demonstrates that Hitler and his top-ranking associates were by no means content with the issuance of general directives for the guidance of the judicial process. They tenaciously insisted upon the right to interfere in individual criminal sentences. In discussing the right to refuse confirmation of sentences imposed by criminal courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr. Lammers, Chief of the Reich Chancellery, as follows (NG-102, Pros. Ex. 75):

“When the Fuehrer has expressly requested the right of direct interference over all formal legal provisions, this is emphasizing the very importance of the modification of a judicial sentence.”

The Ministry of Justice was acutely conscious of the interference by Hitler in the administration of criminal law. On 10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as follows (NG-152, Pros. Ex. 63):

“It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced, which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects, * * *.”

On the same date Schlegelberger wrote to Hitler in part as follows (NG-152, Pros. Ex. 63):

“In the course of the verdicts pronounced daily, there are still judgments which do not entirely comply with the necessary requirements. In such cases I will take the necessary steps. * * *

“Apart from this it is desirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable, if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility, and are firmly resolved to discharge their duties accordingly. * * * Heil, my Fuehrer!” [Emphasis added.]

Hitler not only complied with the foregoing request, but proceeded beyond it. Upon his personal orders persons who had been sentenced to prison terms were turned over to the Gestapo for execution. We quote briefly from the testimony of Dr. Hans Gramm, who for many years was personal Referent to the defendant Schlegelberger, and who testified in his behalf.

“Q. Do you know anything about transfers of condemned persons to the police, or to the Gestapo?

“A. I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and such a man into their custody. These orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed. These transfers, as far as I can remember, took place only during the war.” (Tr. pp. 4717–4718.)

This procedure was well-known in the Ministry of Justice. Gramm was informed by the defendant Schlegelberger that the previous Reich Minister of Justice, Dr. Guertner, had protested to Dr. Lammers against this procedure and had received the reply--

“That the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue.”

The only net result of the protest was that “from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.”

The witness, Dr. Lammers, former Chief of the Reich Chancellery, whose hostility toward the prosecution and evasiveness were obvious, conceded that the practice was continued under Schlegelberger, though Lammers stated that Schlegelberger never agreed to it.

By reference to case histories we will illustrate three different methods by which Hitler, through the Ministry of Justice, imposed his will in disregard of judicial proceedings. One, Schlitt, had been sentenced to a prison term, as a result of which Schlegelberger received a telephone call from Hitler protesting the sentence. In response the defendant Schlegelberger on 24 March 1942 wrote in part as follows (NG-152, Pros. Ex. 63):

“I entirely agree with your demand, my Fuehrer, for very severe punishment for crime, and I assure you that the judges honestly wish to comply with your demand. Constant instructions in order to strengthen them in this intention and the increase of threats of legal punishment have resulted in a considerable decrease of the number of sentences to which objections have been made from this point of view, out of a total annual number of more than 300,000.

“I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures, as before.

“In the criminal case against the building technician, Ewald Schlitt, from Wilhelmshaven, I have applied through the public prosecutor for an extraordinary plea for nullification against the sentence, at the special senate of the Reich Court. I will inform you of the verdict of the special senate immediately it has been given.”

On 6 May 1942, Schlegelberger informed Hitler (NG-102, Pros. Ex. 75) that the 10-year sentence against Schlitt was “quashed within 10 days;” and that “Schlitt was sentenced to death and executed at once.”

In the case against Anton Scharff, the sentence of 10 years’ penal servitude had been imposed. Thereupon, on 25 May 1941, Bormann wrote to Dr. Lammers (NG-611, Pros. Ex. 64): “The Fuehrer believes this sentence entirely incomprehensible * * *. The Fuehrer requests that you inform State Secretary Schlegelberger again of his point of view.”

On 28 June 1941, defendant Schlegelberger wrote Dr. Lammers (NG-611, Pros. Ex. 64): “I am very obliged to the Fuehrer for informing me, on my request, of his conception of atonements of black-out crimes in reference to the sentence of the Munich Special Court against Anton Scharff.

“I shall reinstruct the presidents of the courts of appeal and the chief public prosecutors of this conception of the Fuehrer as soon as possible.”

As a final illustration of a general practice, we refer to the case of the Jew Luftgas, who had been sentenced to 2½ years imprisonment for hoarding eggs. On 25 October 1941, Lammers notified Schlegelberger: “The Fuehrer wishes that Luftgas be sentenced to death.” On 29 October 1941, Schlegelberger wrote Lammers: “* * * I have handed over to the Gestapo for the purpose of execution the Jew Markus Luftgas who had been sentenced to 2½ years of imprisonment * * *”.

Although Hitler’s personal intervention in criminal cases was a matter of common occurrence, his chief control over the judiciary was exercised by the delegation of his power to the Reich Minister of Justice, who on 20 August 1942 was expressly authorized “to deviate from any existing law.”

Among those of the Ministry of Justice who joined in the constant pressure upon the judges in favor of more severe or more discriminatory administration of justice, we find Thierack, Schlegelberger, Klemm, Rothenberger, and Joel. Neither the threat of removal nor the sporadic control of criminal justice in individual cases was sufficient to satisfy the requirements of the Ministry of Justice. As stated by the defendant Rothaug, “only during 1942, after Thierack took over the Ministry, the ‘guidance’ of justice was begun. * * * There was an attempt to guide the administration of justice uniformly from above.”

In September 1942 Thierack commenced the systematic distribution to the German judges of Richterbriefe. The first letter to the judges under date of 1 October 1942 called their attention to the fact that Hitler was the supreme judge and that “leadership and judgeship have related characters.” We quote (NG-298, Pros. Ex. 81):

“A corps of judges like this will not slavishly use the crutches of law. It will not anxiously search for support by the law, but, with a satisfaction in its responsibility, it will find within the limits of the law the decision which is the most satisfactory for the life of the community.”

In the Judges’ Letters Thierack discussed particular decisions which had been made in the various courts and which failed to conform to National Socialist ideology. As an illustration of the type of guidance which was furnished by the Ministry of Justice to the German judiciary, we cite a few instances from the Richterbriefe.

A letter to the judges of 1 October 1942 discusses a case decided in a district court on 24 November 1941. A special coffee ration had been distributed to the population of a certain town. A number of Jews applied for the coffee ration, but did not receive it, being “excluded from the distribution per se”. The food authorities imposed fines upon the Jews for making the unsuccessful application. In 500 cases the Jews appealed to the court and the judge informed the food authorities that the imposition of a fine could not be upheld for legal reasons, one of which was the statute of limitations. In deciding favorably to the Jews, the court wrote a lengthy opinion stating that the interpretation on the part of the food authorities was absolutely incompatible with the established facts. We quote, without comment, the discussion of the Reich Minister of Justice concerning the manner in which the case was decided (NG-298, Pros. Ex. 81):

“The ruling of the district court, in form and content matter, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right toward it.”

One of the Richterbriefe also discusses the case of a Jew who, after the “Aryanization of his firm,” attempted to get funds transferred to Holland without a permit. He also attempted to conceal some of his assets. Concerning this case the judges of Germany received the following “guidance” (NG-298, Pros. Ex. 81):

“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people.

“Not only is he of a different race, but he is also of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment.”

Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the minister that the independence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions. If the letters [the Judges’ Letters] had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be “carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges’ letters are concerned.”

In a letter of 17 November 1942 Thierack instructs the judges that “in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the Judges’ Letters.”

Not being content with regimenting the judges and chief prosecutors and making them subservient to the National Socialist administration of justice, Dr. Thierack next took up the regimentation of the lawyers. On 11 March 1943 he wrote to the various judges and prosecutors announcing the proposed distribution of confidential lawyers’ letters. An examination of those letters convinces the Tribunal that the actual, though undeclared purpose, was to suggest to defense counsel that they avoid any criticism of National Socialist justice and refrain from too much ardor in the defense of persons charged with political crimes.

Not only did Thierack exert direct influence upon the judges, but he employed as his representative the most sinister, brutal, and bloody judge in the entire German judicial system. In a letter to Freisler, president of the People’s Court, Thierack said that the judgment of the People’s Court must be “in harmony with the leadership of the State”. He urges Freisler to have every charge submitted to him and to recognize the cases in which it was necessary “in confidential and convincing discussion with the judge competent for the verdict to emphasize what is necessary from the point of view of the State.” He continues:

“As a general rule, the judge of the People’s Court must get used to regarding the ideas and intentions of the State leadership as the primary factor and the individual fate which depends on him as only a secondary factor. * * *”

He continues:

“I will try to illustrate this with individual cases.

“1. If a Jew--and a leading Jew at that--is charged with high treason--even if he is only an accomplice therein, he has behind him the hate and the will of Jewry to exterminate the German people. As a rule this will therefore be high treason and must be punished by the death penalty.”

He concludes with the following admonition to Freisler, which appears to have been wholly unnecessary:

“In case you should ever be in doubt as to which line to follow or which political necessities to take into consideration, please address yourself to me in all confidence.”

It will be recalled that on 26 April 1942 Hitler stated that he would remove from office “those judges who evidently do not understand the demand of the hour.” The effect of this pronouncement upon such judges as still retained ideals of judicial independence can scarcely be overestimated. The defendant Rothenberger stated it was “absolutely crushing.”

In a private letter to his brother, the defendant Oeschey expressed his view of the situation created by Hitler’s interference in the following words:

“After the well known Fuehrer speech things developed in a frightful manner. I was never a supporter of the stubborn doctrine of the independence of the judge which granted the judge within the frame of the law the position of a public servant, only subordinated to his conscience but otherwise ‘neutral’, that is, politically completely independent. * * * Now it is an absurdity to tell the judge in an individual case which is subject to his decision how he has to decide. Such a system would make the judge superfluous; such things have now come to pass. Naturally it was not done in an open manner; but even the most camouflaged form could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished and the proceedings in a trial become a farce. I will not discuss who bears the guilt of such a development.”

The threat alone of the removal was sufficient to impair the independence of the judges, but the evidence discloses that measures were actually carried out for the removal or transfer of judges who proved unsatisfactory from the Party standpoint. On 29 March 1941 Schlegelberger received a letter from the chief of the Reich Chancellery protesting against the sentence which had been imposed against the Polish farmhand Wojcieck. The court at Lueneburg had recognized some extenuating circumstances in the case. Schlegelberger was advised as follows:

“The Fuehrer urges you immediately to take the steps necessary to preclude repetition in other courts of the view of the Lueneburg court.”

On 1 April 1941 Schlegelberger wrote to the Chief of the Reich Chancellery informing him that “by means of a circular with the order for immediate transmittal to all judges and public prosecutors, I brought the mistake in the viewpoint as it is shown in this passage of the court’s statement to the knowledge of the penal justice without delay. I consider it impossible that such an incident will occur again.”

Schlegelberger ordered the responsible president of the appellate court and the judges concerned in the case to report to him on the next day, and on the third day of April 1941 he advised as follows:

“* * * I beg to inform you that the presiding judge of the criminal division which passed the sentence in the case of the Polish farmhand Wolay Wojciesk, is no longer chairman, and the two associate judges have been replaced by other associate judges.”

There is substantial evidence to the effect that the witness Ostermeier, who was a judge on the Special Court in Nuernberg, was removed from his office because of his lenient attitude in criminal cases.

In a letter addressed to the Chief of the Reich Chancellery and to the head of the Party Chancellery on 20 October 1942, Thierack discussed the necessity of the removal or the transfer of officials in the Ministry of Justice who are “not suited for the new tasks” and adds that it may become necessary “in some particular cases to transfer or retire such judges as cannot be kept in their present positions.” He therefore asked approval “so that in urgent cases judges and officials of the Reich administration of justice may be transferred by me to other positions * * * or may be retired by me.”

On 3 March 1942 Bormann gave his approval in general terms to Thierack’s proposal. A like approval was given by Dr. Lammers on 13 November 1942.

In connection with the discussion of removals, we find a list of proposed staff reductions in which seventy-five judges and prosecutors are named. Among the reasons stated for reduction we find the following: persons of Jewish ancestry, 4; persons having a Jewish wife, 4; lack of cooperation with Party, 4; religious grounds, 1; not a Party member, 20; pro-Jewish or pro-Pole, 4.

The conception of the national leadership of the Reich concerning the function of the law under the influence of the Party ideology must also be briefly noted.

On 22 July 1942 Reich Minister Dr. Goebbels addressed the members of the People’s Court. The speech was reported in part as follows (NG-417, Pros. Ex. 23):

“While making his decisions the judge had to proceed less from the law than from the basic idea that the offender was to be eliminated from the community. During a war it was not so much a matter of whether a judgment was just or unjust but only whether the decision was expedient. The State must ward off its internal foes in the most efficient way and wipe them out entirely. The idea that the judge must be convinced of the defendant’s guilt must be discarded completely. The purpose of the administration of the law was not in the first place retaliation or even improvement but maintenance of the State. One must not proceed from the law but from the resolution that the man must be wiped out.”

On 14 September 1935 Hans Frank, Reichsleiter of the Nazi Party and president of the Academy of German law, said (NG-777, Pros. Ex. 19):

“By means of the law of 18 June 1935, the liberalist foundation of the old penal code ‘no penalty without a law’ was definitely abandoned and replaced by the postulate, ‘no crime without punishment’, which corresponds to our conception of the law.

“In the future, criminal behavior, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behavior is considered punishable according to the healthy feelings of the people.”

This is the Hans Frank (since hanged) who at his trial testified concerning the racial persecution in which he had participated. He said:

“A thousand years will pass and this guilt of Germany will still not be erased.”

On 10 March 1936 the defendant Schlegelberger said (_NG-538, Pros. Ex. 21_):

“In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the new Reich has been opened up by a new wording of section 2 of the criminal code, whereby a person is also to be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.”

Reich Minister Thierack on 5 January 1943 said (_NG-275, Pros Ex. 25_):

“The inner law of the guardian of justice is national socialism; the written law is only to be an aid to the interpretation of National Socialist ideas.”

In the words of the defendant Rothenberger the project was “to ‘organize’ Europe anew and to create a new world philosophy.” Again, he said (NG-075, Pros. Ex. 27):

“* * * this reaction of ‘antagonism toward law’ is justified because the present moment absolutely demands a rigid restriction of the power of law. He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice.”

Strangely enough we find the Nazi judicial system condemned by a judge who in practice was its most fanatical adherent. The defendant Rothaug testified as follows:

“As of every other civil servant, of the judge there was demanded not only obedience but also loyalty and an inner connection with the doctrine of the State. The change-over of the judiciary to that different intellectual level was attempted via the political factor of the administration of justice, and that was when things came to grief; and it was then that the notorious ‘back door’ which I have mentioned, took effect.”

After discussing the extraordinary legal remedies by which final judgments in criminal cases were set aside by means of the nullification plea and the extraordinary objection, Rothaug said:

“As far as that went no objections could be made. What was more dangerous was the influence by means of Judges’ Letters and the guidance of jurisdiction.”

To the domination by Hitler and the political “guidance” of the Ministry of Justice must be added the direct pressure of Party functionaries and police officials. The record is replete with testimony of specific instances of interference in the administration of justice by officials of Party and police. But for the demonstration of the viciousness and universality of the practice it is only necessary to cite the words of the defendants themselves.

The defendant Rothenberger describes the manner in which the “administration of justice was burdened by the Party and by the SS”, and referred in his testimony to the “thousand little Hitlers who every day jeopardized the independence of the individual judge.”

The defendant Schlegelberger spoke with more caution:

“If in a trial, testimonials of political conduct were submitted for the characterization of the accused, it has to be left to the judge’s dexterity to avoid conflict with the department which furnishes the testimonial of political conduct.”

The defendant Lautz testified concerning attempted interference with his duties by the SS. We have already quoted the opinion of the defendant Oeschey as expressed in a letter to his brother.

A reliable witness, Dr. Hanns Anschuetz, testified:

“After the issuance of the German Civil Service Code, strong pressure was brought to bear upon all officials, including judges, to join the NSDAP, or not to reject requests to join; otherwise there existed the danger that they might be retired or dismissed. But once a Party member, a judge was under Party discipline and Party jurisdiction, which dominated his entire life as official and as private person.”

The witness Wilhelm Oehlicker, formerly a justice official and at present judge in Hamburg, testified, that, “the longer the war proceeded, in my opinion the more and more they (Party officials) tried to interfere with the courts and influence the courts directly.”

The final degradation of the judiciary is disclosed in a secret communication by Ministerial Director Letz of the Reich Ministry of Justice to Dr. Vollmer, also a ministerial director in the department. Not only were the judges “guided” and at times coerced; they were spied upon. We quote:

“Moreover, I know from documents, which the minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes summarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. This procedure is secret and the person who gives the information is not named. In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as the direct interests of the State security are concerned, nothing can be said against it, especially in wartime.”

In view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity. The doctrine that judges are not personally liable for their judicial actions is based on the concept of an independent judiciary administering impartial justice. Furthermore, it has never prevented the prosecution of a judge for malfeasance in office. If the evidence cited supra does not demonstrate the utter destruction of judicial independence and impartiality, then we “never writ nor no man ever proved.” The function of the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner.

In operation the Nazi system forced the judges into one of two categories. In the first we find the judges who still retained ideals of judicial independence and who administered justice with a measure of impartiality and moderation. Judgments which they rendered were set aside by the employment of the nullity plea and the extraordinary objection. The defendants they sentenced were frequently transferred to the Gestapo on completion of prison terms and were then shot or sent to concentration camps. The judges themselves were threatened and criticized and sometimes removed from office. In the other category were the judges who with fanatical zeal enforced the will of the Party with such severity that they experienced no difficulties and little interference from party officials. To this group the defendants Rothaug and Oeschey belonged.

We turn to a consideration and classification of the evidence. The prosecution has introduced captured documents in great number which establish the Draconic character of the Nazi criminal laws and prove that the death penalty was imposed by courts in thousands of cases. Cases in which the extreme penalty was imposed may in large measure be classified in the following groups:

1. Cases against habitual criminals.

2. Cases of looting in the devastated areas of Germany; committed after air raids and under cover of black-out.

3. Crimes against the war economy--rationing, hoarding, and the like.

4. Crimes amounting to an undermining of the defensive strength of the nation; defeatist remarks, criticisms of Hitler, and the like.

5. Crimes of treason and high treason.

6. Crimes of various types committed by Poles, Jews, and other foreigners.

7. Crimes committed under the Nacht und Nebel program, and similar procedures.

Consideration will next be given to the first four groups as above set forth. The Tribunal is keenly aware of the danger of incorporating in the judgment as law its own moral convictions or even those of the Anglo-American legal world. This we will not do. We may and do condemn the Draconic laws and express abhorrence at the limitations imposed by the Nazi regime upon freedom of speech and action, but the question still remains unanswered: “Do those Draconic laws or the decisions rendered under them constitute war crimes or crimes against humanity?”

Concerning the punishment of habitual criminals, we think the answer is clear. In many civilized states statutory provisions require the courts to impose sentences of life imprisonment upon proof of conviction of three or more felonies. We are unable to say in one breath that life imprisonment for habitual criminals is a salutary and reasonable punishment in America in peace times, but that the imposition of the death penalty was a crime against humanity in Germany when the nation was in the throes of war. The same considerations apply largely in the case of looting. Every nation recognizes the absolute necessity of more stringent enforcement of the criminal law in times of great emergency. Anyone who has seen the utter devastation of the great cities of Germany must realize that the safety of the civilian population demanded that the werewolves who roamed the streets of the burning cities, robbing the dead, and plundering the ruined homes should be severely punished. The same considerations apply, though in a lesser degree, to prosecutions to hoarders and violators of war economy decrees.

Questions of far greater difficulty are involved when we consider the cases involving punishment for undermining military efficiency. The limitations on freedom of speech which were imposed in the enforcement of these laws are revolting to our sense of justice. A court would have no hesitation in condemning them under any free constitution, including that of the Weimar republic, if the limitations were applied in time of peace; but even under the protection of the Constitution of the United States a citizen is not wholly free to attack the Government or to interfere with its military aims in time of war. In the face of a real and present danger, freedom of speech may be somewhat restricted even in America. Can we then say that in the throes of total war and in the presence of impending disaster those officials who enforced these savage laws in a last desperate effort to stave off defeat were guilty of crimes against humanity?

It is persuasively urged that the fact that Germany was waging a criminal war of aggression colors all of these acts with the dye of criminality. To those who planned the war of aggression and who were charged with and were guilty of the crime against the peace as defined in the IMT Charter, this argument is conclusive, but these defendants are not charged with crimes against the peace nor has it been proven here that they knew that the war which they were supporting on the home front was based upon a criminal conspiracy or was per se a violation of international law. The lying propaganda of Hitler and Goebbels concealed even from many public officials the criminal plans of the inner circle of aggressors. If we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality. In the opinion of the Tribunal the territory occupied and annexed by Germany after September 1939 never became a part of Germany, but for that conclusion we need not rest upon the doctrine that the invasion was a crime against the peace. Such purported annexations in the course of hostilities while armies are in the field are provisional only, and dependent upon the final successful outcome of the war. If the war succeeds, no one questions the validity of the annexation. If it fails, the attempt to annex becomes abortive. In view of our clear duty to move with caution in the recently charted field of international affairs, we conclude that the domestic laws and judgments in Germany which limited free speech in the emergency of war cannot be condemned as crimes against humanity merely by invoking the doctrine of aggressive war. All of the laws to which we have referred could be and were applied in a discriminatory manner and in the case of many, the Ministry of Justice and the courts enforced them by arbitrary and brutal means, shocking to the conscience of mankind and punishable here. We merely hold that under the particular facts of this case we cannot convict any defendant merely because of the fact, without more, that laws of the first four types were passed or enforced.

A different situation is presented when we consider the cases which fall within types 5, 6, and 7.

TREASON AND HIGH TREASON

We have expressed the opinion that the purported annexation of territory in the East which occurred in the course of war and while opposing armies were still in the field was invalid and that in point of law such territory never became a part of the Reich, but merely remained in German military control under belligerent occupancy. On 27 October 1939 the Polish Ambassador at Washington informed the Secretary of State that the German Reich had decreed the annexation of part of the territory of the Polish republic. In acknowledging the receipt of this information, Secretary Hull stated that he had “taken note of the Polish government’s declaration that it considers this act as illegal and therefore null and void.”[646] The foregoing fact alone demonstrates that the Polish Government was still in existence and was recognized by the Government of the United States. Sir Arnold D. McNair expressed a principle which we believe to be incontestable in the following words:

“A purported incorporation of occupied territory by a military occupant into his own kingdom during the war is illegal and ought not to receive any recognition. * * *”[647]

We recognize that in territory under belligerent occupation the military authorities of the occupant may, under the laws and customs of war, punish local residents who engage in fifth column activities hostile to the occupant. It must be conceded that the right to punish such activities depends upon the specific acts charged and not upon the name by which these acts are described. It must also be conceded that Poles who voluntarily entered the Alt [old] Reich could, under the laws of war, be punished for the violation of nondiscriminatory German penal statutes.

These considerations, however, do not justify the action of the Reich prosecutors who in numerous cases charged Poles with high treason under the following circumstances: Poles were charged with attempting to escape from the Reich. The indictments in these cases alleged that the defendants were guilty of attempting, by violence or threat of violence, to detach from the Reich territory belonging to the Reich, contrary to the express provisions of section 80 of the law of 24 April 1934. The territory which defendants were charged with attempting to detach from the Reich consisted of portions of Poland, which the Reich had illegally attempted to annex. If the theory of the German prosecutors in these cases were carried to its logical conclusion it would mean that every Polish soldier from the occupied territories fighting for the restoration to Poland of territory belonging to it would be guilty of high treason against the Reich and on capture, could be shot. The theory of the Reich prosecutors carries with it its own refutation.

Prosecution in these cases represented an unwarrantable extension of the concept of high treason, which constituted in our opinion a war crime and a crime against humanity. The wrong done in such prosecutions was not merely in misnaming the offense of attempting to escape from the Reich; the wrong was in falsely naming the act high treason and thereby invoking the death penalty for a minor offense.

MEMBERSHIP IN CRIMINAL ORGANIZATIONS

C. C. Law 10, article II, paragraph 1(d), provides:

“1. Each of the following acts is recognized as a crime:

* * * * * * *

“(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.”

Article 9 of the IMT Charter provides:

“At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.”

Article 10 of the IMT Charter is as follows:

“In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.”

Concerning the effect of the last quoted section, we quote from the opinion of the IMT in the case of United States, et al., vs. Goering, et al., as follows:

“Article 10 of the Charter makes clear that the declaration of criminality against an accused organization is final and cannot be challenged in any subsequent criminal proceeding against a member of the organization.”[648]

We quote further from the opinion in that case:

“In effect, therefore, a member of an organization which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that crime by death. This is not to assume that international or military courts which will try these individuals will not exercise appropriate standards of justice. This is a far reaching and novel procedure. Its application, unless properly safeguarded, may produce great injustice.”

* * * * *

“A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the state for membership, unless they were personally implicated in the commission of acts declared criminal by article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations.”[649]

The Tribunal in that case recommended uniformity of treatment so far as practicable in the administration of this law, recognizing, however, that discretion in sentencing is vested in the courts. Certain groups of the Leadership Corps, the SS, the Gestapo, the SD, were declared to be criminal organizations by the judgment of the first International Military Tribunal. The test to be applied in determining the guilt of individual members of a criminal organization is repeatedly stated in the opinion of the First International Military Tribunal. The test is as follows: Those members of an organization which has been declared criminal “who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes” are declared punishable.

Certain categories of the Leadership Corps are defined in the First International Military Tribunal judgment as criminal organizations. We quote:

“The Gauleiter, the Kreisleiter, and the Ortsgruppenleiter participated, to one degree or another, in these criminal programs. The Reichsleitung as the staff organization of the Party is also responsible for these criminal programs as well as the heads of the various staff organizations of the Gauleiter and Kreisleiter. The decision of the Tribunal on these staff organizations includes only the Amtsleiter who were heads of offices on the staffs of the Reichsleitung, Gauleitung, and Kreisleitung. With respect to other staff officers and Party organizations attached to the Leadership Corps other than the Amtsleiter referred to above, the Tribunal will follow the suggestion of the prosecution in excluding them from the declaration.”[650]

In like manner certain categories of the SD were defined as criminal organizations. Again, we quote:

“In dealing with the SD the Tribunal includes Aemter III, VI, and VII of the RSHA, and all other members of the SD, including all local representatives and agents, honorary or otherwise, whether they were technically members of the SS or not, but not including honorary informers who were not members of the SS and members of the Abwehr who were transferred to the SD.”[651]

In like manner certain categories of the SS were declared to constitute criminal organizations:

“In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf-Verbaende, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called SS riding units.”[652]

C. C. Law 10 provides that we are bound by the findings as to the criminal nature of these groups or organizations. However, it should be added that the criminality of these groups and organizations is also established by the evidence which has been received in the pending case. Certain of the defendants are charged in the indictment with membership in the following groups or organizations which have been declared and are now found to be criminal, to wit: The Leadership Corps, the SD, and the SS. In passing upon these charges against the respective defendants, the Tribunal will apply the tests of criminality set forth above.

CRIMES UNDER THE NIGHT AND FOG DECREE

[NACHT UND NEBEL ERLASS]

Paragraph 13 of count two of the indictment charges in substance that the Ministry of Justice participated with the OKW and the Gestapo in the execution of the Hitler decree of Night and Fog whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts of the Ministry of Justice within the Reich; that the victim’s whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victim’s relatives and associates and barring recourse to evidence, witnesses, or counsel for defense. If the accused was acquitted, or if convicted, after serving his sentence, he was handed over to the Gestapo for “protective custody” for the duration of the war. These proceedings resulted in the torture, ill treatment, and murder of thousands of persons. These crimes and offenses are alleged to be war crimes in violation of certain established international rules and customs of warfare and as recognized in C. C. Law 10.

Paragraph 25 of count three of the indictment incorporates by reference paragraph 13 of count two of the indictment and alleges that the same acts, offenses, and crimes are crimes against humanity as defined by C. C. Law 10. The same facts were introduced to prove both the war crimes and crimes against humanity and the evidence will be so considered by us.

Paragraph 13 of count two of the indictment which particularly describes the Hitler NN plan or scheme, charges the defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger with “special responsibility for and participation in these crimes”, which are alleged to be war crimes.

Paragraph 8 of count two of the indictment charges all of the defendants with having committed the war crimes set forth in paragraphs 9 to 18 inclusive of count two, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of atrocities and offenses against persons, including but not limited to murder, illegal imprisonment, brutalities, atrocities, transportation of civilians, and other inhumane acts which were set out in paragraphs 9 to 18 inclusive of the indictment as war crimes against the civilian population in occupied territories.

Paragraph 20 of count three of the indictment charges all of the defendants with having committed the same acts as contained in paragraph 8 of count two as being crimes against humanity. Paragraphs 21 to 30 inclusive of count three refer to and adopt the facts alleged in paragraphs 9 to 18 inclusive of count two, and thus all defendants are charged with having committed crimes against humanity upon the same allegations of facts as are contained in paragraphs 9 to 18 inclusive of count two.

In the foregoing manner all of the defendants are charged with having participated in the execution or carrying out of the Hitler NN decree and procedure either as war crimes or as crimes against humanity, and all defendants are charged with having committed numerous other acts which constitute war crimes and crimes against humanity against the civilian population of occupied countries during the war period between 1 September 1939 and April 1945.

The Night and Fog decree arose as the plan or scheme of Hitler to combat so-called resistance movements in occupied territories. Its enforcement brought about a systematic rule of violence, brutality, outrage, and terror against the civilian populations of territories overrun and occupied by the Nazi armed forces. The IMT treated the crimes committed under the Night and Fog decree as war crimes and found as follows:

“The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality, and terror. On 7 December 1941 Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (Night and Fog decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial and punishment in Germany. This decree was signed by the defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the families of the arrested person. Hitler’s purpose in issuing this decree was stated by the defendant Keitel in a covering letter, dated 12 December 1941, to be as follows:

“‘Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany.’

* * * * * * *

“The brutal suppression of all opposition to the German occupation was not confined to severe measures against suspected members of resistance movements themselves, but was also extended to their families.”[653]

The Tribunal also found that:

“One of the most notorious means of terrorizing the people in occupied territories was the use of the concentration camps.”[654]

Reference is here made to the detailed description by the IMT judgment of the manner of operation of concentration camps and to the appalling cruelties and horrors found to have been committed therein. Such concentration camps were used extensively for the NN prisoners in the execution of the Night and Fog decree as will be later shown.

The IMT further found that the manner of arrest and imprisonment of Night and Fog prisoners before they were transferred to Germany was illegal, as follows:

“The local units of the Security Police and SD continued their work in the occupied territories after they had ceased to be an area of operations. The Security Police and SD engaged in widespread arrests of the civilian population of these occupied countries, imprisoned many of them under inhumane conditions, and subjected them to brutal third degree methods, and sent many of them to concentration camps. Local units of the Security Police and SD were also involved in the shooting of hostages, the imprisonment of relatives, the execution of persons charged as terrorists and saboteurs without a trial, and the enforcement of the Nacht und Nebel decree under which persons charged with a type of offenses believed to endanger the security of the occupying forces were either executed within a week or secretly removed to Germany without being permitted to communicate with their family and friends.”[655]

The foregoing quotations from the IMT judgment will suffice to show the illegality and cruelty of the entire NN plan or scheme. The transfer of NN prisoners to Germany and the enforcement of the plan or scheme did not cleanse it of its iniquity or render it legal in any respect.

The evidence herein adduced sustains the foregoing findings and conclusions of the IMT. In fact the same documents, or copies thereof, referred to and quoted from in the IMT judgment were introduced in evidence in this case. In addition, a large number of captured documents and oral testimony were introduced showing the origin and purpose of the Night and Fog plan or scheme, and showing without dispute that certain of the defendants with full knowledge of the illegality of the plan or scheme under international law of war and with full knowledge of the intended terrorism, cruelty, and other inhumane principles of the plan or scheme became either a principal, or aided and abetted, or took a consenting part in, or were connected with the execution of the illegal, cruel, and inhumane plan or scheme.

Hitler’s decree was signed by Keitel on 7 December 1941 and was enclosed in Keitel’s covering letter of 12 December 1941, which was referred to and quoted from in the IMT judgment. The Hitler decree states that since the opening of the Russian campaign Communist and anti-German elements have increased their assaults against the Reich and the occupation power in the occupied territories and that the most severe measures should be directed against these malefactors “to intimidate them”. The decree further declares in substance (1733-PS, Pros. Ex. 303):

“1. Criminal acts committed by non-German civilians directed against the Reich or occupation forces endangering their safety or striking power should require the application of the death penalty in principle.

“2. Such criminal acts will be tried in occupied territories only when it appears probable that the death sentence will be passed and carried out without delay. Otherwise the offenders will be carried to Germany.

“3. Offenders taken to Germany are subject to court martial procedures there only in case that particular military concern should require it. German and foreign agencies will declare upon inquiries of such offenders that the state of the proceedings would not allow further information.

“4. Commanders in chief in occupied territories and the justiciaries within their jurisdiction will be held personally responsible for the execution of this decree.

“5. The chief of the OKW will decide in which of the occupied territories this decree will be applied. He is authorized to furnish explanations and further information and to issue directives for its execution.”

In addition to the Hitler decree there were also enclosed in Keitel’s letter of 12 December 1941 the “First Decree” of directives concerning the prosecution of crimes against the Reich or occupation power in occupied territories under the Hitler decree. This first Decree was signed by Keitel and was marked “Secret.” It contains seven sections relating to the crimes intended to be prosecuted under the Hitler decree and the manner and place of trials and execution of sentences. Section I of the first decree declares that the directive will be as a rule applicable in cases of: (671-PS, Pros. Ex. 304.)

1. Assault with intent to kill.

2. Espionage.

3. Sabotage.

4. Communist activity.

5. Crimes likely to disturb the peace.

6. Favoritism toward the enemy, the following means: Smuggling of men and women; the attempt to enlist in an enemy army; and the support of members of the enemy army (parachutists, etc.).

7. Illegal possession of arms.

Section II of the secret decree declares that the culprits are not to be tried in occupied territories unless it is probable that a death sentence will be pronounced, and it must be possible to carry out the execution of the death sentence at once; in general, a week after the capture of the culprit. It further states:

“Special political scruples against the immediate execution of the death sentence should not exist.”

Section III of the first directive declares that the judge in agreement with the intelligence office of the Wehrmacht decides whether the condition for a trial in occupied territories exists.

Section IV declares that the culprits who are to be taken to Germany will be subjected there to military court proceedings if the OKW or the superior commanding officer declares decisions according to section III (above) that special military reasons require the military proceedings. In such instances the culprits are to be designated “prisoners of the Wehrmacht” to the Secret Field Police. If such declaration is not made, the order that the culprit is to be taken to Germany will be treated as transferring according to the intentions of the decree.

Section V declares that “the judicial proceedings in Germany will be carried out under strictest exclusion of the public because of the danger for the State’s security. Foreign witnesses may be questioned at the main proceedings only with the permission of the Wehrmacht.”

Section VI of the first decree declares that former decrees concerning the situation in Norway and concerning Communists and rebel movements in the occupied territories are superseded by these directives and executive order.

Section VII of the secret decree declares that the directives will become effective 3 weeks after they are signed and that the directives will be applied in all occupied territories with the exception of Denmark until further notice. The orders issued for the newly occupied Eastern territories are not affected by these directives. The order was expressly made effective in Norway, Holland, France, Bohemia, Moravia, and the Ukraine occupied areas. In actual operation, Belgium and all other of the western occupied countries came within the decree.

The Hitler decree was sent to the Reich Minister of Justice on 12 December 1941 endorsed for the attention of defendant Schlegelberger. On the same day (12 December 1941) Keitel informed other ministries of Hitler’s decree, directing that all such information proceedings were to be conducted in absolute secrecy.

On 16 December 1941, officials of the Ministry of Justice (Schaefer and Grau, associates of defendant Mettgenberg in Department III) drafted a proposed order for the execution of the Hitler NN decree by the Ministry of Justice, the courts, and the Reich prosecution. This was forwarded to General Lehmann, head of the OKW legal department for his approval.

Other correspondence took place between the Reich Ministry of Justice and the OKW relating to the final draft of the Night and Fog order. This correspondence occurred between 16 December and 25 December 1941. It related to the reservation of the competency of the Ministry of Justice or Under Secretary of State Freisler in the execution of the Hitler decree. These reservations were incorporated in a circular decree dated 6 February 1942, supplementing NN regulations as follows (NG-232, Pros. Ex. 308):

“Circular Decree:

“On the execution of the executive decree of 6 February 1942, relating to the directives issued by the Fuehrer and Supreme Commander of the Wehrmacht for the prosecution of criminal acts against the Reich or the occupation power in the occupied territories.

“For the further execution of the directives mentioned before I ordain:

“1. Competent for the handling of the cases transferred to ordinary courts including their eventual retrial are: the Special Court and the chief prosecutor in Cologne as far as they originate from the occupied Belgian and Netherlands territories, the Special Court and the chief prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the chief prosecutor in Kiel; for the rest, the Special Court and the attorney general at the county court, Berlin. In special cases I reserve for myself the decision of competence for each individual case.

“2. The chief prosecutor will inform me of the indictment, the intended plea, and the sentence as well as of his intention to refrain from any accusation in a specific case.

“3. The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the prosecutor. The agreement may be withdrawn.

“4. Warrants of arrests will be suspended only with my consent. If such is intended, the prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to its being used by the tribunal.

“5. Inquiries concerning the accused person or the pending trial from other sources than those Wehrmacht and police agencies dealing with the case will be answered by merely stating that * * * is arrested and the state of the trial does not allow further information.”

This supplementary decree was signed for Dr. Freisler by chief secretary of the ministerial office.

The letter of the same Dr. Freisler to Minister of Justice Thierack dated 14 October 1942, shows that in accordance with his promise to Thierack he had conducted preliminary proceedings through Reich departmental officials and with Lehmann, Chief of the Legal Division of the OKW, concerning the matter of the Ministry of Justice taking over the Night and Fog proceedings under the Hitler decree. Such top secret negotiations had lasted for several months. The last conference was held on 7 February 1942. On that day the final decree was drafted, approved, and was “the decree of 7 February 1942, signed by Schlegelberger” as Acting Minister of Justice. Defendant Schlegelberger testified that he signed the decree. He thereby brought about the enforcement by the Ministry of Justice, the courts, and the prosecutors of a systematic rule of violence, brutality, outrage, and terror against the civilian population of territories overrun by the Nazi armed forces resulting in the ill-treatment, death, or imprisonment of thousands of civilians of occupied territories.

The taking over of the enforcement of the Hitler NN decree was based solely upon the afore-mentioned secret agreement, plan, or scheme. All of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out knew that its enforcement violated international law of war. They also knew, which was evident from the language of the decree, that it was a hard, cruel, and inhumane plan or scheme and was intended to serve as a terroristic measure in aid of the military operations and the waging of war by the Nazi regime. We will at this point let some of those who originated the plan or scheme or who took part in its execution relate its history and its illegal, cruel, and inhumane purposes.

Rudolf Lehmann, who was Chief of the Legal Division of the OKW, testified concerning the Nacht und Nebel Decree of 7 December 1941. He stated that even before the beginning of the war and more particularly after the beginning of the war, there was a controversy between Hitler and his generals on the one part and between Hitler and the Gestapo on the other part as to the part which should be performed by the military department of justice. He testified:

“Hitler held it against the administration of justice by the armed forces and within the armed forces that they did not sufficiently support his manner of conducting the war.”

He further testified that Hitler had--

“Used the expression that the military justice indeed sabotaged his conduct of war. These reproaches first emanated from the Polish campaign. There the military justice--the justice administration of the armed forces--was reprimanded that it had not acted sufficiently severe against members of bands. The next reprimands of that kind occurred during the French campaign.”

Lehmann further testified that Keitel had passed on to him a directive which he had received from Hitler in October of 1941. This directive was quite long in which Hitler referred to the resistance movement in France, which he stated was a tremendous danger for the German troops and that new means would have to be found to combat this danger.

There was therefore a discussion of the resistance movement. The army was opposed to the plan because it involved them in violations of international law of war. It was then suggested in the discussion that the Gestapo should be given that power. But even in this Hitler’s ideas were overruled. It was at this point that he, Lehmann, suggested that the matters--

“Should continue to be dealt with by judges, and since the aversion of Hitler against the armed forces justice was known, it could be assumed that he would still prefer civilian courts than us.”

Lehmann further testified that Hitler--

“Attributed a higher political reliability to civilian justice later because later he took all political criminal cases away from us and gave it to civilian justice.”

At this point Lehmann discussed the matter with Under Secretary Freisler because Freisler dealt with the criminal cases in the Ministry. He was told by Freisler that the matter would have to be taken up with Schlegelberger. Lehmann further testified:

“I discussed with him the proposition that the cases which the military courts in France would not keep should be taken over and dealt with by and tried by the civilian justice administration. I can only say that Freisler told me that first he had to think it over; and secondly, he had to discuss it with Under Secretary Schlegelberger who was at that time in charge of the Ministry. * * * Freisler told me that he had to ask the man who was in charge of the Ministry, the acting minister * * * for permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases. * * * As I was informed about the routine in the Ministry, Schlegelberger, who was then acting Minister of Justice, was in my opinion the only person who could consent to take over these Nacht und Nebel cases by the Ministry of Justice.”

Lehmann further testified:

“I have stated that * * * the plan had to be rejected for manifold reasons--for reasons of international law, for reasons of justice, and policy of justice, and primarily, because I said the administration of justice should never do anything secretly. I put to him, ‘What kind of suspicion would have to arise against our administration of justice if these people, inhabitants of other countries, brought to Germany, would disappear without a trace’? In my mind, and in the minds of all others concerned, everything revolted against this particular part of the plan, which seemed to us to have much more grave consequence than the question of who should, in the end, deal with it. That was also the opinion of the leading jurists of the armed forces * * *.”

Defendant Mettgenberg held the position of Ministerialdirigent in Departments III and IV of the Reich Ministry of Justice. In Department III, for penal legislation, he dealt with international law, formulating secret, general, and circular directives. He handled Night and Fog cases and knew the purpose and procedure used in such cases, and that the decree was based upon the Fuehrer’s order of 7 December 1941 to the OKW. In his affidavit Mettgenberg states (NG-696, Pros. Ex. 336):

“The ‘Night and Fog’ section within my subdivision, was headed by Ministerial Counsellor von Ammon. This matter was added to my subdivision because of its international character. I know, of course, that a Fuehrer decree to the OKW was the basis for this ‘Night and Fog’ procedure and that an agreement had been reached between the OKW and the Gestapo, that the OKW had also established relations with the Minister of Justice and that the handling of this matter was regulated accordingly.

“I was not present at the original discussion with Freisler, in which the ‘Night and Fog’ matters were first discussed on the basis of the Fuehrer decree. If I had been present at this discussion, and if I had had an occasion to present my opinion, I would, at any rate, have spoken against the taking over of the ‘Night and Fog’ matters by the justice administration. It went against my training as a public servant to have the administration of justice misused for things which were bound to be incompatible with its basic principles.

“Whenever Mr. von Ammon had doubts concerning the handling of individual cases, we talked these questions over together, and when they had major importance, referred them to higher officials for decision. When he had no doubts, he could decide all matters himself. We got these cases originally from the Wehrmacht and later from the Gestapo. The distribution of these cases to the competent Special Courts or to the People’s Court, von Ammon decided independently. Von Ammon also had to review the indictments and sentences and to obtain the minister’s decision concerning the execution of death sentences. The question posed by the exclusion of foreign means of evidence was a legal problem of the first order. Since it had been prescribed from above, the Ministry of Justice had no freedom of disposition in this matter. This is another one of the reasons why we should not have taken over these things.”

Defendant von Ammon was ministerial councillor in Mettgenberg’s subdivision in charge of the Night and Fog matters. The two acted together on doubtful matters and referred difficult questions to competent officials in the Reich Ministry of Justice and the Party Chancellery, since both of these offices had to give their “agreement” in cases of malicious attacks upon the Reich or Nazi Party, or in Night and Fog cases, which came originally from the Wehrmacht, and later from the Gestapo, and jurisdiction of which were assigned to Special Courts at several places in Germany and to the People’s Court at Berlin by defendant von Ammon. In his affidavit he states (NG-486, Pros. Ex. 337):

“The decree of 7 February 1942, signed by Schlegelberger, contained, among others, the following provisions: Foreign witnesses could be heard in these special cases only with the approval of the public prosecutor, since it was to be avoided that the fate of NN prisoners became known outside of Germany.

“The presiding judges of the courts concerned had to notify the public prosecutor if they intended to deviate from their notion for a sentence. Freisler noted in this connection that this constituted the utmost limit of what could be asked of the courts. The special nature of this procedure made it necessary to make such provisions.

“Later, when Thierack entered the Reich Ministry of Justice, he changed the decree in such a manner that the courts no longer had to declare their dissenting views to the public prosecutor, but that the acquitted NN prisoners or those who had served their sentences had to be handed over by the court authorities to the Gestapo for protective custody. Under Secretary of State Schlegelberger himself was not present at the conference, but Under State Secretary Freisler left the conference briefly in order to secure the signature of Schlegelberger.

“I must admit that, in dealing with these matters, I did not particularly feel at ease. It was my intention to get the best out of this thing and to emphasize humanitarian considerations as much as possible in these hard measures. I have seen from the first Nuernberg trials that the court has declared the ‘Night and Fog’ decree as being against international law and that Keitel, too, declared that he had been aware of the illegal nature of this decree. Freisler, though, represented it to us in such a manner as to create the impression that the decree was very hard but altogether admissible.”

Mettgenberg and von Ammon were sent to the Netherlands occupied territory because some German courts set up there were receiving Night and Fog cases in violation of the decree that they should be transferred to Germany. They held a conference at The Hague with the highest military justice authorities and the heads of the German courts in the Netherlands, which resulted in a report of the matter to the OKW at Berlin, which agreed with Mettgenberg and von Ammon that--

“The same procedure should be used in the Netherlands as in other occupied territories, that is, that all Night and Fog matters should be transferred to Germany.”

With respect to the effectiveness and cruelty of the NN decree, the defendant von Ammon commented thus:

“The essential point of the NN procedure, in my estimation, consisted of the fact that the NN prisoners disappeared from the occupied territories and that their subsequent fate remained unknown.”

The distribution of the NN cases to the several competent Special Courts and the People’s Court was decided upon by defendant von Ammon. A report of 9 September 1942, signed by von Ammon, addressed to defendant Rothenberger, to be submitted to the Minister of Justice and the defendant Mettgenberg, stated that there are pending in Special Courts Night and Fog cases as follows: At Kiel, nine cases with 262 accused; at Essen, 180 cases with 863 accused; and at Cologne, 177 cases with 331 accused. By November 1943 there were turned over at Kiel, 12 cases with 442 accused; at Essen, 474 cases with 2,613 accused; and at Cologne, 1,169 cases with 2,185 accused.

A note dated Berlin, 26 September 1942, for the attention of defendant Rothenberger, signed by defendant von Ammon, stated that by order of the Reich Minister the hitherto--

“Exclusive jurisdiction of the Special Courts over NN cases is to some extent to be replaced by the People’s Court of justice.”

A letter dated 14 October 1942 to Minister of Justice Thierack from Freisler, then president of the People’s Court, states that he understood that a conference held on 14 October 1942 extended the jurisdiction of the People’s Court over NN cases. Freisler states that he conducted the preliminary proceedings with Ministerial Director Lehmann of the OKW with regard to the Ministry of Justice taking over the Night and Fog proceedings. He explains that the Night and Fog proceedings were top secret and no file or records were made in order to be quite sure that under no circumstances should any information be obtained by the outside world with regard to the fate of the alien prisoners. He also emphasizes the fact that under no circumstances could any other sentence than the one proposed by the public prosecutor be passed and to make sure of this in the technical routine it was decided that--

“1. The prosecutor should be entitled to withdraw the charges until the pronouncement of the sentence.

“2. The court was to be instructed to give the prosecutor another chance to give his point of view, in case their view should diverge from his.”

Freisler further states:

“In fulfillment of my promise I deemed it necessary to inform you of this, dear sir, as these facts were not permitted to be recorded in the files and are probably unknown in the department.”

By his supplemental directive of 28 October 1942, Thierack made note of the fact that the “jurisdiction of the People’s Court (No. 1, 1 and 2 of the additional circular directives of 14 October 1942)” had been extended to NN cases. Thierack’s letter, dated 25 October 1942 to defendant Lautz, copy to von Ammon, established and expanded jurisdiction of the People’s Court over NN cases.

Thereafter the People’s Court handled many Night and Fog cases, convicting the accused in secret sessions with no records whatsoever made of any evidence adduced and no record was made of the sentence pronounced. The defendant von Ammon testified that about one-half of the Night and Fog prisoners tried by the People’s Court were executed.

Later NN cases were sent to German Special Courts at Breslau and Katowice, Poland, and to Silesia and other places as will be shown herein.

Concentration Camps

The use of concentration camps for NN prisoners was shown by a letter dated 18 August 1942, signed by Gluecks, SS Brigadefuehrer and General Major of the SS, which contained enclosures for information and execution by officials in charge of concentration camps, including Mauthausen, Auschwitz, Flossenbuerg, Dachau, Ravensbrueck, Buchenwald, and numerous others. The letter states that such prisoners will be transferred under the Keitel decree from the occupied countries to Germany for transfer to Special Courts. Should that for any reason be impossible, the accused will be put into one of the above-named concentration camps. Those in charge of the camps were instructed that absolute secrecy of such prisoners’ detention was to be maintained including the prevention of any means of communication with the outside world either before or after the trial.

The following is illustrative of inhumane prison conditions for NN prisoners. The affidavit of Ludwig Schirmer, warden in the prison at Ebrach, confirmed by his oral testimony, states:

“The Ebrach prison which was used for criminal convicts had a capacity of 595 prisoners. In 1944, however, the prison became overcrowded and finally held a maximum of from 1,400 to 1,600 prisoners in 1945.

“This crowding had been caused by numerous NN prisoners from France and Belgium. Among them was the French General Vaillant who died in the prison of old age and of a heart disease. Owing to the overcrowding of the penitentiary, it was impossible to avoid the frequent outbreak of diseases, such as pulmonary tuberculosis, consumption, and, of course many cases of undernourishment. The very poor medical care was a serious disadvantage; the doctor showed up only two or three times a week. Sixty-two inmates died during the last months of the war. Many of them, of course, came in already sick. During the last months, a criminal convict was employed as physician. He was a morphinomaniac and a man of very low character.

“Although there were stocks of food at hand, the feeding of prisoners was bad; people got only soup and turnips for weeks. NN prisoners were crowded together, four in a single cell. From time to time a certain number of the prisoners was transferred to the concentration camp.”

The affidavit of Josef Prey, head guard at the Amberg prison, confirmed by his oral testimony, states that foreigners, Jews, and NN prisoners at Amberg prison, which had a capacity of 900 to 1,100 were incarcerated there. Yet shortly before the collapse there were 2,000 prisoners of whom 800 to 900 prisoners were Polish, and NN prisoners who included Frenchmen, Dutchmen, and Belgians. From time to time by secret decree prisoners were transferred to the concentration camps at Mauthausen. Defendant Engert, the official representative of the department of justice, visited and officially inspected the prison and knew of these conditions.

By his affidavit Engert states that Thierack told him the Night and Fog prisoners had to be treated with special precaution, not allowed any correspondence, locked up hermetically from the outer world, and that care should be taken that their real names remain unknown to the lower prison personnel. Engert further states that these orders were the result of the Fuehrer decree of 7 December 1941 and that Thierack told him the Night and Fog prisoners were accused of resistance and violence against the armed forces. He did not know what became of these NN prisoners at the various prison camps. He did know that an agreement existed with the Gestapo that the bodies of Night and Fog prisoners should be given to them for secret burial. It was shown by other testimony that defendant Engert was ministerial director, who handled and investigated the Night and Fog prisoners and that he was in charge of the task of transferring prisoners and knew their nationality and the character of crime charged against them.

On 14 June 1944 defendant von Ammon wrote Bormann, Chief of the Party Chancellery, a letter sent by way of defendant Mettgenberg, requesting permission of the Fuehrer to inform NN women held under death sentence of the fact that such sentence has been reprieved, since he considers it to be unnecessarily cruel to keep these “condemned women” in suspense for years as to whether their death sentence will be carried out.

Mrs. Solf, the widow of a former distinguished German cabinet officer and ambassador, testified that she was tried and held as a political prisoner of the Nazi regime for several years in Ravensbrueck concentration camp and other prisons where a large number of foreign women were imprisoned. Concerning the ill-treatment of these women and the prison conditions under which they were incarcerated, Mrs. Solf testified:

“As to the prisoners who were with me at Ravensbrueck, as far as I can remember there was only an Italian woman of Belgian descent who was treated well, better than we were. However, in the penitentiary of Cottbus, as well as in the prison of Moabit, I met many foreigners. In the penitentiary of Cottbus, there alone were 300 French women who were sentenced to death, and five Dutch women sentenced to death who after a week or two were pardoned to penitentiary terms and whom

I saw in the courtyard. The 300 French women sentenced to death were sent to Ravensbrueck at the end of November 1944. The night before they were transported they had to sleep on a bare stone floor. One of the auxiliary wardens, who was also an interpreter for them and who had a great deal of courage and a kind heart, came to me in order to ask us political prisoners to give them our blankets, which we certainly did.”

She further testified:

“I know and have seen for myself that, for instance, in Moabit, some of the brutal wardens kicked them and shouted at them for reasons which seemed very, very unjust because these women did not understand what they were supposed to do.”

The Night and Fog decree was from time to time implemented by several plans or schemes, which were enforced by the defendants. One plan or scheme was the transfer of alleged resistance prisoners or persons from occupied territories who had served their sentences or had been acquitted to concentration camps in Germany where they were held incommunicado and were never heard from again. Another scheme was the transfer of the inhabitants of occupied territories to concentration camps in Germany as a substitute for a court trial. Defendant Engert made such an order.

Trials under NN Decree

The evidence establishes beyond a reasonable doubt that in the execution of the Hitler NN decree the Nazi regime’s Ministry of Justice, Special Courts, and public prosecutors agreed to and acted together with the OKW and Gestapo in causing to be arrested, transported to Germany, tried, sentenced to death and executed, or imprisoned under the most cruel and inhumane conditions in prisons and concentration camps, thousands of the civilian population of the countries overrun and occupied by the Nazi regime’s military forces during the prosecution of its criminal and aggressive war.

The trials of the accused NN persons did not approach even a semblance of fair trial or justice. The accused NN persons were arrested and secretly transported to Germany and other countries for trial. They were held incommunicado. In many instances they were denied the right to introduce evidence, to be confronted by witnesses against them, or to present witnesses in their own behalf. They were tried secretly and denied the right of counsel of their own choice, and occasionally denied the aid of any counsel. No indictment was served in many instances and the accused learned only a few moments before the trial of the nature of the alleged crime for which he was to be tried. The entire proceedings from beginning to end were secret and no public record was allowed to be made of them. These facts are proved by captured documents and evidence adduced on the trial, to some of which we now advert.

The first trial of NN cases took place at Essen. A letter from the prosecutor, dated 20 August 1942, addressed to the Reich Minister of Justice, was received on 27 August 1942, states that five defendants were to be tried and that two of them were to get prison terms and that--

“In the remaining cases the death sentence is to be ordered and inquiries made whether they should be executed by the guillotine.”

These sentences were later pronounced.

In response to several inquiries from prosecutors at Special Courts in Essen, Kiel, and Cologne citing pending NN cases, the defendants Mettgenberg and von Ammon replied that, in view of the regulation for the keeping of NN trials absolutely secret, defense counsel chosen by NN defendants would not be permitted.

In these same inquiries, it is stated that if defense counsel were carefully selected from those who were recognized as unconditionally reliable, pro-State and judicially efficient lawyers, no difficulty should arise with respect to the secrecy of such proceedings. It is suggested that if an attorney should inquire concerning representation of an NN defendant, he should be informed that it is not permissible to investigate whether or not there was any proceeding pending against the accused. This inquiry related to 16 NN French defendants who were to be tried at Cologne. Other evidence introduced in the case showed that this practice was followed.

The foreign countries department of the Wehrmacht High Command reported to defendant von Ammon on 15 October 1942 a list of 224 alleged spies arrested in France in the execution of what was known as “Action porto”, of whom 220 had already been transported to Germany. Inquiry was made whether these prisoners should be regarded as coming under Hitler’s NN Decree. A later directive issued 6 March 1943, which was initialed by defendant Mettgenberg and sent to the SS Chief Himmler, states that orders and regulations covering NN prisoners in general will be applied to “porto action” groups. The circular decree states further that in case of death of “porto action” prisoners, the same procedure is followed with respect to secrecy as is followed in NN cases, and that the estates of “porto action” prisoners are to be retained by the penal institution for the time being, and that relatives are not to be informed about the death of such prisoners, especially not of their execution.

A letter dated 9 February 1943, Berlin, to the president of the People’s Court, chief public prosecutor at Kiel and Cologne, and Chief Public Prosecutor at Hamm, states that for the purpose of carrying out the Night and Fog decree or directive (NG-253, Pros. Ex. 317):

“In trials (before the Landesgericht), in which according to the regulations, defense counsel has to be provided for the defendant, the regulation may be ignored when the president of the court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous.”

In connection with the foregoing matter, a secret note to defendant von Ammon, dated 18 January 1941, suggests that a regulation concerning counsel for NN prisoners should be drafted. A letter dated 4 January 1943 states that in accordance with the power granted under the Fuehrer’s order of 7 December 1941 (NG-253, Pros. Ex. 317):

“Article IV, paragraph 32 of the Competence Decree of 21 February 1940 (relating to appointment of defense counsel) is cancelled. The president of the court will order defendant to be represented only if he is unable to defend himself or for any special reason it seems desirable that defendant should be represented.”

A letter dated 21 April 1943, Berlin, by Thierack, Minister of Justice, states that (NG-256, Pros. Ex. 320):

“Your ordinance of 21 December 1942 decreed that in criminal cases concerning criminal actions against the Reich and the occupation authority in the occupied territories, defense counsel of one’s own choice should not be approved of on principle.”

A letter by Thierack to the president of the People’s Court, Berlin, dated 13 May 1943, states that (NG-256, Pros. Ex. 320):

“The directives given by the Fuehrer on 7 December 1941 for the prosecution of criminal actions committed against the Reich or the occupation authorities in the occupied territories are applicable, according to their meaning and their tenor, to foreigners only, and not to German nationals or provisional Germans.”

A draft of an extensive secret order or directives of the Reich Minister of Justice, dated 6 March 1943, covering secret NN procedure was sent to and initialed by or for heads of Ministry Departments III and IV (the defendant Mettgenberg), Department V (headed by defendant Engert), [initialed by Marx] and Department VI (headed by defendant Altstoetter). The directives instructed all so concerned to take further measures “in order not to endanger necessary top secrecy of NN procedure”. Separate copies of this order, dated 6 March 1943, were sent to the afore-mentioned ministry departments, including Department VI, headed by defendant Altstoetter, who admits having seen and executed the directives, to defendant von Ammon and to, among others, the chief Reich prosecutor at the People’s Court (defendant Lautz); the attorneys general in Celle, Duesseldorf, Frankfurt on Main, Hamburg, Hamm, Kiel, and Cologne; and the attorney general at the Prussian Court of Appeal; and for the attention of presidents of the People’s Court, district courts of appeal at Hamm, Kiel, and Cologne, and the Prussian court of appeal at Berlin. Among the measures of secrecy included in the order or directives were the following (NG-269, Pros. Ex. 319):

“The cards used for investigations for the Reich criminal statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.

“In case of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the registrar must be notified as prescribed by law. However, the following remark has to be added:

“‘By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death (birth) certificates is only admissible with the consent of the Reich Minister of Justice.’”

Department VI headed by defendant Altstoetter handled matters relating to registration of deaths and births. The order further provides:

“Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.

“If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.

“The relatives will not be informed of the death and especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.

“The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State Police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.

“The bodies must not be used for teaching or research purposes.

“Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.”

Later, in some instances the right to spiritual assistance was denied and a later directive authorized the turning over of bodies of NN persons to institutes for experimental purposes.

A letter dated 3 June 1943, from the Reich Ministry of Justice to the People’s Court justices and the Chief Public Prosecutors, initialed by defendant Mettgenberg, deals with the subject of trials under the NN decree of foreigners who were nationals of other countries than those occupied by the Nazi forces. The difficulty obviously involved a violation of international law as to such nationals of other countries. In particular, the difficulty arose as to the regulation for the maintenance of secrecy of such trials and whether the secrecy with regard to NN cases should apply. The reply was that they were to be tried in accordance with the circular decrees of 6 February 1942 and 14 October 1942, and the regulations issued for the amendment of these circular decrees to be entitled “NN Prisoners Taken by Mistake”. This decree provides that if the trial of such foreigners could not be carried out separately from the trial of the nationals of the occupied countries for reasons pertaining to the presentation of evidence, then the trials were to be strictly in accordance with the provisions of NN procedure; otherwise said foreign nationals would obtain knowledge of the course of the trial against their accomplices.

A note signed by the defendant von Ammon, dated 7 October 1943, states that NN prisoners were often ignorant of charges against them until a few moments before the trial. He further states that Chief Reich Public Prosecutor Lautz asked him whether there were any objections to the translation of the indictment into the language of the defendant, which would then be handed to him. Defendant von Ammon replied that there would be no objection to the proceeding and stated (NG-281, Pros. Ex. 323):

“It proved rather awkward that defendants learned the details of their charges only during the trial. Also, the interpretation by defense counsel is not always sufficient because their French mostly is not good enough and defendants were brought to the place of trial only shortly before it was held.”

The same difficulty arose as to Czech defendants.

A report on a conference with respect to new procedure in treatment of Night and Fog cases originating in the Netherlands, signed “von Ammon” and “Mettgenberg, 9 November 1943”, addressed to Ministerial Director Engert and others, states that while returning from The Hague to Berlin the undersigned representative of the Reich Ministry of Justice held on 5 November as scheduled, a conference with the head officials of the court of appeals at Hamm and that defendant Joel thought the housing of NN prisoners, also such of Dutch nationality, at Papenburg, would be possible and unobjectionable. This was later carried out.

A secret letter dated 29 December 1943, addressed to defendant von Ammon from the presiding judge and chief prosecutor of Hamm Court of Appeals notified von Ammon of an imminent conference concerning transfer of the NN trials to the NN Special Courts at Oppeln and Katowice.

A letter from Breslau dated 10 January 1944, signed by Dr. Sturm, asks that ministerial councillor, defendant von Ammon, be available for a meeting at Breslau between 15 and 31 January 1944 to discuss routine proceedings for handling NN cases.

A letter addressed to the German commander of the French occupied zone states that effective from 15 November 1943 all cases of crimes committed against the Reich or the occupation forces in occupied French zones hitherto submitted to the ordinary legal authorities were to be taken over by the Special Court and attorney general in Cologne and Breslau.

The defendant von Ammon attended conferences with public prosecutors in Breslau and Katowice (Poland) on 18 and 19 February 1944, concerning housing of NN prisoners and possibility of transferring NN cases from the Netherlands, Belgium, and northern France to Special Courts in Poland for trial; von Ammon reported the results of these conferences in detail to, among others, the defendant Klemm (under secretary) and personally wrote on his report that he had secured appropriate Gauleiter’s concurrence to the proposed transfer. Shortly thereafter the Ministry of Justice issued a decree endorsed to the defendant Mettgenberg for signature, and submitted twice to von Ammon, for information and cosignature, whereby these Dutch, Belgian, and northern French NN cases were to be transferred to Silesia for trial. In response to this decree, von Ammon was personally notified that the defendant Joel (then general public prosecutor at Hamm) feared objections from the Wehrmacht because of the longer transportation involved in the transfer.

A directive by the Reich Minister of Justice with respect to treatment of NN prisoners, dated Berlin, 21 January 1944, initialed by defendant von Ammon, to the president of the People’s Court, to the Reich Leader SS, Reich prosecutor of the People’s Court (defendant Lautz), to the Chief Public Prosecutor at Hamm (defendant Joel), and others, states that when an NN prisoner had been acquitted by a general court, if it appears that the accused is innocent or if his guilt has not been established sufficiently, then he has to be handed over to the Secret Police. The directive further states:

“If in the main trial of an NN proceeding it appears that the accused is innocent or if his guilt has not been sufficiently established, then he is to be handed over to the Secret State Police; the public prosecutor informs the Secret State Police about his opinion whether the accused can be released and return into the occupied territories, or whether he is to be kept under detention. The Secret State Police decide which further actions are to be taken.

“Accused who were acquitted, or whose proceedings were closed in the main trial, or who served a sentence during the war, are to be handed over to the Secret State Police for detention for the duration of the war.”

A letter dated 21 January 1944, Berlin, to the OKW and the Judge Advocate General Department, dispatched 22 January 1944 (copy to Dr. Mettgenberg with request for approval) complains of lack of coordination in NN cases between military courts and justice officials. This complaint relates primarily to transfer of NN cases.

In answer to the objections to the transfer of NN cases arising in France from Cologne to Breslau, dated 18 January 1944, the defendants Mettgenberg and von Ammon insisted that the transfer is necessary and directed its accomplishment. Three days later a letter endorsed by Mettgenberg informed Himmler that this transfer of NN cases had taken place.

On 24 April 1944 von Ammon reported in detail on a trip he made to Paris previously referred to. This official visit served particularly to obtain information of the security situation in France and to determine whether the NN procedures of the Breslau Special Court were approved by the army. This meeting occurred in the office of the Chief Justice of the German Military Governor of Paris, General von Stuelpnagel. Von Ammon submitted this report both to Klemm and Mettgenberg who initialed it.

A letter from Hamm (Westphalia), 26 January 1944, to the Reich Minister Thierack, signed by defendant Joel, suggests the speeding up of proceedings to avoid delays in NN cases, and suggests that:

“The Chief Public Prosecutor submits record to the chief Reich prosecutor only if, according to previous experience or according to directives laid down by the chief Reich prosecutor, it is to be expected that he will take over, or partly take over the case.

“As a rule, even now when the draft of the indictment is submitted for approval to the Reich Minister of Justice, the records are not enclosed. The decision rests with me, to whom the documents are brought by courier.”

A note signed by Dr. Reicholt, 20 April 1944, copy to defendant von Ammon, expresses the same difficulty experienced by defendant Joel and asks that Chief Public Prosecutor at the People’s Court decide quickly which of the accused persons he wanted to keep so that they may be transferred as quickly as possible.

The foregoing requests for speed in handling NN cases were due to disturbances caused by air raids. The Reich Minister of Justice replied, 26 April 1944, that in the main “the delay in the proceedings is unavoidable.”

Defendant von Ammon reported on a conference with German occupying forces of Belgium and northern France, held in Oppeln on 29 and 30 June 1944. Von Ammon stated that since the Allied invasion had not caused undue tension as yet, it was unnecessary at that time to make penalties in NN cases more severe. This report was initialed by defendant Mettgenberg.

Disposition of NN Cases

A statistical survey of NN cases as of 1 November 1943 made to Ministerial Director Dr. Vollmer, Berlin, 22 November 1943, shows cases and sentences passed on NN prisoners as follows:

1. Turned over by the Wehrmacht authorities to senior public prosecutors at Kiel, 12 cases with 442 defendants; at Essen, 474 cases with 2,613 defendants; at Cologne, 1,169 cases with 2,185 defendants.

2. Charges filed by senior public prosecutors as follows: At Kiel, nine cases with 175 defendants; at Essen, 254 cases with 860 defendants; at Cologne, 173 cases with 257 defendants; by chief public prosecutor at the People’s Court (Lautz), 111 cases with 494 defendants.

3. Sentences passed by Special Courts at Kiel, eight on 168 defendants; at Essen, 221 cases with 475 defendants; at Cologne, 128 cases with 183 defendants; at People’s Court, 84 cases with 304 defendants.

The defendant von Ammon testified that about one-half of all defendants tried by the People’s Court were given the death penalty and were executed. The foregoing documents show that defendant Lautz was Chief Public Prosecutor at the People’s Court at the time the 304 sentences were pronounced in the Night and Fog cases.

A similar survey, 5 months later (30 April 1944), shows that of a total of 8,639 NN defendants transferred to the various Special Courts and the People’s Court in Germany, 3,624 were indicted, and 1,793 were sentenced. Defendant von Ammon initialed this survey.

The foregoing statistical reports as to time are obviously incomplete. They do not show the number of NN cases tried at Breslau, Katowice, and other places. The foregoing documents show that at these places great difficulty was experienced because of lack of prisons for the large number of NN prisoners who were sent to these areas. Nor do they show the number of NN prisoners committed to concentration camps without trial. They do not show the number of residue NN prisoners who were at the end of the control of NN matters by the Minister of Justice committed to concentration camps and never heard from thereafter.

Use of NN Prisoners in Armament Industry

In file of reports for the years 1943 and 1944 of NN cases still pending in the Ministry of Justice, the attorney general at Katowice (Poland) stated to the Ministry of Justice the following (NG-264, Pros. Ex. 334):

“NN prisoners held within the jurisdiction of the Court of Appeal of Katowice are already employed to a large extent in the armament industry, regardless of whether they are being held for questioning or punishment. They are quartered there in special camps at or near the place of the respective industrial enterprise. In this way it is intended, if possible, to place all NN prisoners at the disposal of the armament industry.

“It has been disclosed that the NN prisoners already employed in the armament industry, as for instance the 400-odd prisoners working in Laband, have done a very good job and excel in particular as skilled workers. The armament industry therefore wants to retain the employed NN prisoners also after their acquittal or after they have served their sentence.

“I ask for a decision on whether and, if so, how that demand can be complied with. Considerable doubts arise from the fact that there is no legal right to confine them further and that the judicial authorities would thus take preventive police measures. There is the question, however, whether the situation of the Reich does not justify even such extraordinary measures.”

This request was handled by defendant von Ammon, who endorsed it as follows:

“Submitted * * * first to Department V (headed by defendant Engert) with the request for an opinion. If you have no objections I intend to contact the RSHA in accordance with the report of the attorney general at Katowice.”

Clemency in the NN Cases

As Under Secretary, defendant Klemm was required to pass upon clemency matters either while acting with or in the absence of the Minister of Justice. He admits passing upon clemency pleas in NN death cases and refusing all of them. Fourteen documents concerning NN matters passed through defendant Klemm after he became under secretary of State. He knew of the transfer of NN cases from Essen to Silesia and knew of “routine” NN matters which passed through his department.

In the fall of 1944 Hitler ordered the discontinuance of the NN proceedings by the justice and the OKW courts and transferred the entire problem to the Gestapo, the NN prisoners being handed over to the Gestapo at the same time. In later conferences attended by defendant von Ammon, the Ministry of Justice agreed to and later actually carried out the transfer by committing them from the Ministry’s prisons to the Gestapo’s custody. Defendant Lautz was ordered to suspend People’s Court proceedings against NN prisoners and transfer them to the Gestapo. The witness Hecker stated that those NN prisoners of the Berlin district, of which he had knowledge, were sent to Oranienburg.

The final order of the Ministry of Justice committing all NN prisoners on hand to the Gestapo and the concentration camps was one of extreme cruelty.

The foregoing documents and the undisputed facts show that Hitler and the high ranking officials of the armed forces and of the Nazi Party, including several Reich Ministers of Justice and other high officials in the Ministry of Justice, judges of the Nazi regime’s courts, the public prosecutors at such courts, either agreed upon, consented to, took a consenting part in, ordered, or abetted, were connected with the Hitler NN plan, scheme, or enterprise involving the commission of war crimes and crimes against humanity during the waging of the recent war against the Allied nations and other neighboring nations of Germany.

The foregoing documents and facts show without dispute that several of the defendants participated to one degree or another either as a principal; or ordered, or abetted, took a consenting part in, or were connected with the execution or carrying out of the Hitler NN scheme or plan. The defendants so participating will be later discussed in the summation of the evidence.

The Night and Fog decree originated with Hitler as a plan or scheme to combat alleged resistance movements against the German occupation forces but it was early extended by the Ministry of Justice to include offenses against the German Reich. Often the offenses had nothing to do with the security of the armed forces in the occupied territories. Many of them occurred after military operations had ceased and in areas where there were no military operations. The first secret decree of the Ministry of Justice for the execution or carrying out of the NN decree provided for:

“1. The prosecution of criminal offenses against the Reich or, ”2. The occupation troops in occupied areas.”

It declared that the directive will be as a rule applicable to the seven above listed general types of offenses or crimes, including “Communist activity”. The term “Communist activity” is general and political in nature. The evidence shows that political prisoners in occupied territories were tried and sentenced to death under the NN proceedings. Pertinent here with respect to the so-called resistance activities is the finding of the IMT that:

“The local units of the Security Police and SD continued their work in the occupied territories after they had ceased to be an area of operations. The Security Police and SD engaged in widespread arrests of the civilian population of these occupied countries, imprisoned many of them under inhumane conditions, subjected them to brutal third degree methods, and sent many of them to concentration camps. Local units of the Security Police and SD were also involved in the shooting of hostages, the imprisonment of relatives, the execution of persons charged as terrorists, [and saboteurs without a trial], and the enforcement of the ‘Nacht und Nebel’ decrees under which persons charged with a type of offense believed to endanger the security of the occupying forces were either executed within a week or secretly removed to Germany without being permitted to communicate with their family and friends.”[656]

Defendant Schlegelberger explained the fundamental purpose of the NN decree to be a deterrent “through cutting off of the prisoners from every contact with the outside world”. He further explained “that the NN prisoners were expected and were to be tried materially according to the same regulations which would have been applied to them by the courts martial in the occupied territories” and that accordingly, “the rules of procedure had been curtailed to the utmost extent.”

The enforcement of the directives under the Hitler NN plan or scheme became a means of instrumentality by which the most complete control and coercion of a lot of the people of occupied territories were affected and under which thousands of the civilian population of occupied areas were imprisoned, terrorized, and murdered. The enforcement and administration of the NN directives resulted in the commission of war crimes and crimes against humanity in violation of the international law of war and international common law relating to recognized human rights, and of article II, paragraphs 1(b) and (c) of Control Council Law No. 10.

During the war, in addition to deporting millions of inhabitants of occupied territories for slave labor and other purposes, Hitler’s Night and Fog program was instituted for the deportation to Germany of many thousands of inhabitants of occupied territories for the purpose of making them disappear without trace and so that their subsequent fate remain secret. This practice created an atmosphere of constant fear and anxiety among their relatives, friends, and the population of the occupied territories.

The report of the Paris Conference of 1919, referred to above, listed 32 crimes as constituting “the most striking list of crimes as has ever been drawn up, to the eternal shame of those who committed them.” This list of crimes was considered and recognized by the Versailles Treaty and was later recognized as international law in the manner herein above indicated. Among the crimes so listed was the “deportation of civilians” from enemy occupied territories.

Control Council Law No. 10 in illustrating acts constituting violations of laws or customs of war, recognizes as war crimes the “deportation to slave labour or for any other purpose of civilian population from occupied territory.” (Art. II, 1(b).) C. C. Law 10 [Article II] paragraph 1(c) also recognizes as crimes against humanity the “enslavement, deportation, imprisonment * * * against any civilian population.”

The IMT held that the deportation of inhabitants from occupied territories for the purpose of “efficient and enduring intimidation” constituted a violation of the laws and customs of war. The deportation for the purpose of “efficient and enduring intimidation” is likewise condemned by C. C. Law 10, under the provision inhibiting “deportation * * * for any other purpose, of civilian population from occupied territory.”

Also among the list of 32 crimes contained in the Conference Report of 1919 are “murder and massacre, and systematic terrorism”. C. C. Law 10 makes deportation of civilian population “for any purpose” a crime recognized as coming within the jurisdiction of the law. The admitted purpose of the Night and Fog decree was to provide an “efficient and enduring intimidation” of the population of occupied territories. The IMT held that the Hitler NN decree was “a systematic rule of violence, brutality, and terror”, and was therefore in violation of the laws of war as a terroristic measure.

The evidence shows that many of the Night and Fog prisoners who were deported to Germany were not charged with serious offenses and were given comparatively light sentences or acquitted. This shows that they were not a menace to the occupying forces and were not dangerous in the eyes of the German justices who tried them. But they were kept secretly and not permitted to communicate in any manner with their friends and relatives. This is inhumane treatment. It was meted out not only to the prisoners themselves but to their friends and relatives back home who were in constant distress of mind as to their whereabouts and fate. The families were deprived of the support of the husband, thus causing suffering and hunger. The purpose of the spiriting away of persons under the Night and Fog decree was to deliberately create constant fear and anxiety among the families, friends, and relatives as to the fate of the deportees. Thus, cruel punishment was meted out to the families and friends without any charge or claim that they actually did anything in violation of any occupation rule of the army or of any crime against the Reich.

It is clear that mental cruelty may be inflicted as well as physical cruelty. Such was the express purpose of the NN decree, and thousands of innocent persons were so penalized by its enforcement.

The foregoing documents show without dispute that the NN victim was held incommunicado and the rest of the population only knew that a relative or citizen had disappeared in the night and fog; hence, the name of the decree. If relatives or friends inquired, they were given no information. If diplomats or lawyers inquired concerning the fate of an NN prisoner, they were told that the state of the record did not admit of any further inquiry or information. The population, relatives, or friends were not informed for what character of offense the victim had been arrested. Thus, they had no guide or standard by which to avoid committing the same offense as the unfortunate victims had committed which necessarily created in their minds terror and dread that a like fate awaited them.

Throughout the whole Night and Fog program ran this element of utter secrecy. This secrecy of the proceedings was a particularly obnoxious form of terroristic measure and was without parallel in the annals of history. It could have been promulgated only by the cruel Nazi regime which sought to control and terrorize the civilian population of the countries overrun by its aggressive war. There was no proof that the deportation of the civilian population from the occupied territories was necessary to protect the security of the occupant forces. The NN plan or scheme fit perfectly into the larger plan or scheme of transportation of millions of persons from occupied territories to Germany.

C. C. Law 10 makes deportation of the civilian population for any purpose an offense. The international law of war has for a long period of time protected the civilian population of any territory or country occupied by an enemy war force. This law finds its source in the unwritten international law as established by the customs and usages of the civilized nations of the world. Under international law the inhabitants of an occupied area or territory are entitled to certain rights which must be respected by the invader occupant.

This law of military occupation has been in existence for a long period of time. It was officially interpreted and applied nearly a half century ago by the President of the United States of America during the war with Spain in 1898. By General Order No. 101, 18 July 1898 (U. S. Foreign Relations, p. 783), the President declared that the inhabitants of the occupied territory “are entitled to the security in their persons and property and in all their private rights and relations.” He further declared that it was the duty of the commander of the Army of Occupation “to protect them in their homes, in their employments, and in their personal and religious rights,” and that “the municipal laws of the conquered territory, such as affect private rights of persons and property and provide for punishment of crime, are continued in force” and are “to be administered by the ordinary tribunals, substantially as they were before the occupation.” The President referred to the fact that these humane standards of warfare had previously been established by the laws and customs of war, which were later codified by the Hague Conventions of 1899 and 1907, and which constituted the effort of the civilized participating nations to diminish the evils of war by the limitation of the power of the invading occupant over the people and by placing the inhabitants of the occupied area or territory “under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.”

A similar order was issued during the first war with Germany by the President of the United States of America when the American Expeditionary Forces entered the Rhineland in November 1918. (General Order No. 218, 28 November 1918.) At the conclusion of this occupancy, the German Government expressed its appreciation of the conduct of the American occupying forces.

But Germany soon forgot these humane standards of warfare, as is shown by the undisputed evidence. The general policy of the Nazi regime was to terrorize and in some instances to exterminate the civilian populations of occupied territories.

Pertinent here is the finding of the IMT that:

“In an order issued by the defendant Keitel on 23 July 1941, and drafted by the defendant Jodl, it was stated that:

“‘In view of the vast size of the occupied areas in the East, the forces available for establishing security in these areas will be sufficient only if all resistance is punished, not by legal prosecution of the guilty, but by the spreading of such terror by the armed forces as is alone appropriate to eradicate every inclination to resist among the population * * *. Commanders must find the means of keeping order by applying suitable Draconian measures’.”[657]

Both Keitel and Jodl were sentenced to death by the IMT and later executed. It was the same Keitel who had issued, over his own signature, the Hitler NN decree which provided that (NG 669-PS, Pros. Ex. 305):

“Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany.”

Beyond dispute the foregoing decrees were inspired by the same thought and purpose and represent the general policy of the Nazi regime in the prosecution of its aggressive war. This general policy was to terrorize, torture, and in some occupied areas to exterminate the civilian population. The undisputed evidence in this case shows that Germany violated during the recent war every principle of the law of military occupation. Not only under NN proceedings but in all occupations she immediately, upon occupation of invaded areas and territories, set aside the laws and courts of the occupied territories. She abolished the courts of the occupied lands and set up courts manned by members of the Nazi totalitarian regime and system. These laws of occupation were cruel and extreme beyond belief and were enforced by the Nazi courts in a cruel and ruthless manner against the inhabitants of the occupied territories, resulting in grave outrages against humanity, against human rights and morality and religion, and against international law, and against the law as declared by C. C. Law 10, by authority of which this Court exercises its jurisdiction in the instant case. The evidence adduced herein provides undeniable and positive proof of the ill-treatment of the subjugated people by the Nazi Ministry of Justice and prosecutors to such an extent that jurists as well as civilians of civilized nations who respect human rights and human personality and dignity can hardly believe that the Nazi judicial system could possibly have been so cruel and ruthless in their treatment of the population of occupied areas and territories.

The foregoing procedure under the NN decree was clearly in violation of the following provisions sanctioned by the Hague Regulations:

“Article 5.--Prisoners of war * * * cannot be confined except as an indispensable measure of safety and only while the circumstances which necessitate the measure continue to exist.

“Article 23(h).--* * * It is expressly forbidden * * * to declare abolished, suspended, or inadmissible in a court of law the rights and actions [of the nationals] of the hostile party.

“Article 43.--The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the law in force in the country.

“Article 46.--Family honor and rights, the lives of persons and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.”

Both the international rules of war and C. C. Law 10 inhibit the torture of civilians by the occupying forces. Under the Night and Fog decree civilians were secretly transported to concentration camps and were imprisoned under the most inhumane conditions as was shown by the above statements from captured documents. They were starved and ill-treated while in concentration camps and prisons. Thus, the Night and Fog decree violated these express inhibitions of international law of war as well as the express provisions of C. C. Law 10.

Such imprisonment and ill-treatment was also in violation of the rule prescribed by the Conference of Paris of 1919 which prohibits the “internment of civilians under inhumane conditions”. The Night and Fog decree was in violation of the international law as recognized by the Paris Conference of 1919 in that the NN prisoners were deported to Germany and forced to labor in the munitions plants of the enemy power.

The foregoing documents establish beyond dispute that they were so employed in munitions plants with the sanction and approval of the Reich Ministry of Justice under the approval of the defendant von Ammon.

The extent of activity and the criminality of the defendants who participated in the execution and carrying out of the Night and Fog decree will be discussed under the summation of the evidence relating to each such defendant. Each defendant has pleaded in effect as a defense the act of State as well as superior orders in justification or mitigation of any crime he may have committed in the execution of the Night and Fog decree. The basis for individual liability for crimes committed and the law relating thereto was clearly and ably declared by the IMT judgment which reads as follows:

“It was submitted that international law is concerned with the actions of sovereign states, and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. In the recent case of Ex parte Quirin (1942 317 U. S. 1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:

“‘From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals.’

“He went on to give a list of cases tried by the Courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”[658]

RACIAL PERSECUTION

The record contains innumerable acts of persecution of individual Poles and Jews, but to consider these cases as isolated and unrelated instances of perversion of justice would be to overlook the very essence of the offense charged in the indictment. The defendants are not now charged with conspiracy as a separate and substantive offense, but it is alleged that they participated in carrying out a governmental plan and program for the persecution and extermination of Jews and Poles, a plan which transcended territorial boundaries as well as the bounds of human decency. Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws and in atrocities, illegal even under German law, in furtherance of the declared national purpose. Others, as judges, distorted and then applied the laws and decrees against Poles and Jews as such in disregard of every principle of judicial behavior. The overt acts of the several defendants must be seen and understood as deliberate contributions toward the effectuation of the policy of the Party and State. The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged. The material facts which must be proved in any case are (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law. The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principals or accessories to the crime.

We turn to the national pattern or plan for racial extermination.

Fundamentally, the program was one for the actual extermination of Jews and Poles, either by means of killing or by confinement in concentration camps, which merely made death slower and more painful. But lesser forms of racial persecution were universally practiced by governmental authority and constituted an integral part in the general policy of the Reich. We have already noted the decree by which Jews were excluded from the legal profession. Intermarriage between Jews and persons of German blood was prohibited. Sexual intercourse between Jews and German nationals was punished with extreme severity by the courts. By other decrees Jews were almost completely expelled from public service, from educational institutions, and from many business enterprises. Upon the death of a Jew his property was confiscated. Under the provisions for confiscation under the 11th amendment to the German Citizenship Law, supra, the decision as to confiscation of the property of living Jews was left to the chief of the Security Police and the SD. The law against Poles and Jews cited supra (4 December 1941) was rigorously enforced. Poles and Jews convicted of specific crimes were subjected to different types of punishment from that imposed upon Germans who had committed the same crimes. Their rights as defendants in court were severely circumscribed. Courts were empowered to impose death sentences on Poles and Jews even where such punishment was not prescribed by law, if the evidence showed “particularly objectionable motives”. And, finally, the police were given carte blanche to punish all “criminal” acts committed by Jews without any employment of the judicial process. From the great mass of evidence we can only cite a few illustrations of the character and operation of the program.

On 30 January 1939 in an address before the Reichstag, Hitler, who was at that very time perfecting his plot for aggressive war, said:

“If the international Jewish financiers within and without Europe succeed in plunging the nations once more into a world war, then the result will not be the Bolshevization of the world and thereby the victory of Jewry, but the obliteration of the Jewish race in Europe.”

We quote from the writings of Alfred Rosenberg (since hanged), “High Priest of the Nazi Racial Theory and Herald of the Master Race:”

“A new faith is arising today--the myth of the blood, the faith to defend with the blood the divine essence of man. The faith, embodied in clearest knowledge, that the Nordic blood represents that mysterium which has replaced and overcome the old sacraments.”[659]

The Rosenberg philosophy strongly supported the program of the Nazi Party, which reads as follows:

“None but members of the nation (Volk) may be citizens of the State. None but those of German blood, whatever their creed, may be members of the nation. No Jew, therefore, may be a member of the nation.”

It was to implement this program that the discriminatory laws against Poles and Jews were enacted as hereinabove set forth.

A directive of the Reich Ministry of Justice, signed by Freisler, dated 7 August 1942, addressed to prosecutors and judges, set forth the broad general purposes which were to govern the application of the law against Poles and Jews and the specific application of that law in the trial of cases. We quote (NG-744, Pros. Ex. 500):

“The penal law ordinance of 4 December 1941 concerning Poles was intended not only to serve as a criminal law against Poles and Jews, but beyond that also to provide general principles for the German administration of law to adopt in all its judicial dealings with Poles and Jews, irrespective of the role which the Poles and Jews play in the individual proceedings. The regulations of article IX for instance, according to which Poles and Jews are not to be sworn in, apply to proceedings against Germans as well. * * *

“1. Proceedings against Germans should be carried on whenever possible without calling Poles and Jews as witnesses. If, however, such a testimony cannot be evaded, the Pole or Jew must not appear as a witness against the German during the main trial. He must always be interrogated by a judge who has been appointed or requested to do so, * * *.

“2. Evidence given by Poles and Jews during proceedings against Germans must be received with the utmost caution especially in those cases where other evidence is lacking.”

On 13 October 1942 the Reich Minister of Justice Thierack wrote to Reichsleiter Bormann, in part as follows (NG-558, Pros. Ex. 143):

“With a view to freeing the German people of Poles, Russians, Jews, and gypsies, and with a view to making the eastern territories which have been incorporated into the Reich available for settlements for German nationals, I intend to turn over criminal proceedings against Poles, Russians, Jews, and gypsies to the Reich Leader SS. In so doing I base myself on the principle that the administration of justice can only make a small contribution to the extermination of members of these peoples. The justice administration undoubtedly pronounces very severe sentences on such persons, but that is not enough to constitute any material contribution toward the realization of the above-mentioned aim.”

On 18 September 1942 a conference was held among Thierack, Himmler, Bormann, Rothenberger, and others. The notes of the conference, signed by Thierack, disclose that the subjects of discussion included “special treatment” at the hands of the police in cases where judicial sentences were not severe enough. Among other points agreed upon between Bormann, Himmler, and Thierack, were the following (654-PS, Pros. Ex. 39):

“The Reich Minister of Justice will decide whether and when special treatment at the hands of the police is to be applied. * * *

“The delivery of asocial elements while serving penal sentences to the Reich Leader of SS to be worked to death. Persons under security detention, Jews, gypsies, Russians, and Ukrainians, Poles with more than 3-year sentences, Czechs and Germans with more than 8-year sentences will be turned over without exception according to the decision of the Reich Minister for Justice. First of all the worst asocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann. * * *

“It is agreed that, in consideration of the intended aims of the government for the clearing up of the eastern problems, in future Jews, Poles, gypsies, Russians, Ukrainians are no longer to be judged by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. * * *”

The defendant Rothenberger testified that he was not present when these agreements were made. However that may be, it is clear that they came to his notice shortly thereafter.

Of special significance is the record concerning the establishment of penal laws for Poles and Jews in the annexed eastern territories. On 17 April 1941 the defendant Schlegelberger addressed a letter to the Reich Minister and chief of the Reich Chancellery. In it he states that as soon as the Special Courts were introduced in the eastern territories under the decree of 5 September 1939 he tried to make those “courts with their particularly prompt and energetic procedure centers for combating all Polish and Jewish crime.” He states that “the procedure of compulsory prosecution was rescinded, at is seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment.” Poles and Jews were also prohibited from raising private actions and accessory actions. He further states:

“On being informed of the Fuehrer’s intention to discriminate in the sphere of penal law between the Poles (and probably the Jews as well), and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and the attorney generals of the annexed eastern territories, the attached draft concerning the administration of the penal laws against Poles and Jews in the annexed eastern territories and in the territory of the former Free City of Danzig.”

Again, he says:

“So far I have been in agreement with the opinion held by the Fuehrer’s deputy, on the fact that a Pole is less sensitive to the imposition of an ordinary prison sentence. Therefore, I had taken administrative measures to ensure that Poles and Jews be separated from other prisoners and that their imprisonment be rendered more severe. Number 3 goes still farther and substitutes for the terms of imprisonment and hard labor prescribed by Reich law other prison sentences of a new kind, viz, the prison camp and the more rigorous prison camp.”

Speaking of the proposed draft prepared by him, Schlegelberger said:

“The part concerned with procedure contains first the special regulations existing up to now of the preliminary decree. In addition, a Pole and a Jew sentenced by a German court is not to be allowed in the future any legal remedy against the judgment; neither will he have a right of appeal, or be allowed to ask that the case be reopened. All sentences will take effect immediately. In future, Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice; nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions.”

A memorandum dated 22 April 1941, bearing the same file number as the letter of Schlegelberger, states that Schlegelberger has transmitted the proposed draft, and adds:

“The draft establishes a draconic special criminal law for Poles and Jews, giving a wide range for the interpretations of the facts of the case, with the death penalty applicable throughout. The conditions of imprisonment are also much more severe than provided for in the German criminal law.”

The note further states:

“The Minister of Justice differs only in two points from the suggestions of the Fuehrer’s deputy.”

It then states that the Fuehrer’s deputy considered it more appropriate to authorize the Reich governors to introduce the special criminal law, whereas the Minister of Justice provides for its introduction by a Reich decree. The second difference of opinion was somewhat to the credit of the defendant Schlegelberger. The Fuehrer’s deputy considered the introduction of corporal punishment appropriate, and the Minister of Justice refused to agree.

On 3 August 1942 the Reich Minister of Justice sent a draft of the proposed ordinance to a number of high officials, including the Reich Minister of Interior and the Reich Minister for Popular Enlightenment and Propaganda. The letter was signed “By order: Freisler.” Freisler was at that time State Secretary in the Reich Ministry of Justice. The letter contained this significant statement:

“I have emphasized the importance in war of this ordinance because it indirectly serves national defense.”

The enclosed draft provided that Jews should not be entitled to make use of the right of appeal, revision, or complaint against decisions in criminal cases, and could not appeal to the courts for a decision against sentences inflicted by the police. It also provided that in cases where an appeal had already been filed it should be considered cancelled.

On 13 August 1942 the Reich Minister of Interior wrote to the Reich Minister of Justice, requesting that the draft be extended so as to restrict the right of Jews to appeal in administrative as well as criminal cases. On the same day the defendant Schlegelberger wrote to the Reich Minister for Popular Enlightenment and Propaganda concerning the addition to the draft as suggested by the Reich Minister of the Interior. We quote:

“I declare that I have no objections against an extension of my draft to matters of administrative law and to decisions by administrative authorities.”

He then suggested an additional provision to the effect that Jews should be forbidden to testify on oath, but that they might be prosecuted as for perjury though no oath is to be taken.

On 8 March 1943 the Chief of the Security Police and the SD, Kaltenbrunner,[660] wrote to Minister of the Interior Frick urging immediate passage of the proposed ordinance. The following reasons were given:

“1. Previous evacuations of Jews have been restricted to Jews who were not married to non-Jews. In consequence, the numbers of Jews who have remained in the interior is quite considerable. As the ordinance would also include these Jews as well, the measures it plans are not objectless.

“2. The provision of article 7 of the ordinance according to which, at the death of a Jew, his fortune escheats in its entirety to the Reich, results in the accumulation of considerably less work for the State Police. At the present time the procedure used by the State Police in handling the confiscation of such Jewish inheritances must frequently be modified to suit each special case.”

He adds that the provision for the transfer of Jews to the police is based on an agreement between Himmler and Thierack, who had by that time succeeded Schlegelberger as Reich Minister of Justice.

On 21 April 1943 a memorandum for the files of the Reich Chancellery reports a conference of State secretaries on the proposed ordinance at which the defendant Rothenberger was present. The conference came to the conclusion that certain modifications should be made. The final result of the prolonged discussion was the enactment of the 13th regulation under the Reich Citizenship Law of 1 July 1943, which was signed by Frick, Bormann, and Thierack. It will be recalled that that regulation, supra, provided that criminal actions committed by Jews should be punished by the police; that the property of a Jew should be confiscated after his death. These and other provisions were also made effective in the Protectorate of Bohemia and Moravia where German courts had jurisdiction.

With few exceptions Jews were wholly excluded from the administration of justice. In a speech before the NSDAP congress on 14 September 1934, Hans Frank stated:

“It is unbearable to us to permit Jews to play any role whatsoever in the German administration of justice. * * * It will therefore be our firm aim to exclude Jews increasingly from the administration of the law as time goes on.”

On another occasion Frank, as president of the Academy for German Law, directed: “For all future time it will be impossible that Jews will act in the name of German Law. * * *”

In an order reminiscent of the “burning of the books” in medieval days, Frank also directed that the works of Jewish authors should be removed from all public or study libraries whenever possible.

On 5 April 1933 the defendant Barnickel made an entry in his diary:

“Today it is said in the newspaper that in Berlin there are about 3,500 attorneys and more than half of them are Jewish. Only 35 of them are to be admitted as lawyers. * * * To exclude these Jewish attorneys from one day to the next means terrible brutality.”

The defense witness, Fritz Wallentin, stated that in general all non-Aryan judges were removed from the administration of penal justice very soon after 30 January 1933. The evacuation of Jews to the East for extermination was in full swing at least as early as November 1941, and continued through the war years thereafter. As an illustration of the nature of this program as carried out throughout the Reich, we cite the report of the Secret State Police Main Office, Nuernberg-Fuerth; Branch Office Wuerzburg. This report refers to the deportation from a comparatively small area around the city of Wuerzburg and shows evacuation of Jews to the East in the following numbers: On 27 July 1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942, 850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on 23 September 1942 (to Theresienstadt) 562 persons; on 17 June 1943 (to Theresienstadt) seven persons; on 17 June 1943, 57 Jews were evacuated to the East. The report continues: “With this last transport, all the Jews who had to be evacuated according to instructions issued have left Main-Franken.” The report shows that the total number of 2,063 Jews were evacuated from the Main-Franken area alone. The furniture, clothing and laundry items left by the Jews were given to the finance offices of Main-Franken and turned into cash by them.

Even before transfers to the Gestapo had been substituted for judicial procedure the position of a Pole or a Jew who was tried by the courts was not a happy one. The right of self defense on the part of a Pole was specifically limited. Poles and Jews could not challenge a German judge for prejudice. Other limitations upon the right of appeal and the like are set forth, supra (law against Poles and Jews, 4 December 1941).

On 22 July 1942 Reich Minister Goebbels stated that “it was an untenable situation that still today a Jew could protest against the charge of the president of the police, who was an old Party member and a high SS Leader. The Jew should not be granted any legal remedy at all nor any right of protest.”

The defendant Lautz testified that according to the provisions of decree which antedated the war and by reason of the general regulations of the law in every case it had to be pointed out in the indictment if the person was a Jew or of mixed race.

On 23 January 1943 the Oberlandesgericht president at Koenigsberg wrote to the Minister of Justice concerning defense of Poles before tribunals in Incorporated Eastern Territories. We quote:

“The decree of 21 May 1942 * * * states that in accordance with the order on penal justice in Poland of 4 December 1941 attorneys are not (to) undertake the defense of Polish persons before tribunals in the Incorporated Eastern Territories. This decree has been received with satisfaction by all the judges and prosecutors in the whole of my district.”

These directives by the authorities in the Reich under Hitler were not mere idle threats. The policies and laws were rigorously enforced. We quote from a sworn statement of former defendant Karl Engert as follows:

“The handing over to the Gestapo of Jews, Poles, and gypsies was not under my supervision, but under that of Mr. Hecker, who worked under me in my division. However, he was not responsible to me, but directly to the Minister Thierack.” Again he said:

“About 12,000 inmates of the correction houses were assigned for transfer to the Gestapo. * * * Out of the total 12,000 my division assigned 3,000 for transfer in 1942. How many Jews, Poles, and gypsies were assigned I do not know; that must be in the statistics.”

Reich Minister Goebbels, in an address to the judges of the People’s Court, on 22 July 1942, stated that “if still more than 40,000 Jews, whom we considered enemies of the State, could go freely about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago.”

Between 9 and 11 November 1938, a pogrom was carried out against the Jews throughout the Reich, and upon direct orders from Berlin. Defense witness Peter Eiffe testified that he heard rumors of the proposed pogrom on the night of 8 November and called at the Ministry of Propaganda where he was told that “somebody has let the cat out of the bag again.” During the 3-day period Jewish property was destroyed throughout the Reich and thousands of Jews were arrested.

In Berlin the destruction of Jewish property was particularly great. To cap the climax on 12 November 1938, Field Marshal Goering issued the following decree:[661]

“Article I.--All damage done due to the indignation of the people at the incitement of international Jewry against Nationalist Socialist Germany carried out on the 8, 9, and 10 November 1938, on Jewish enterprises and living quarters is to be removed by the Jewish owners immediately.

“Article II.--The costs of restoration are to be borne by the owner of the Jewish business concerned * * *.

“Section 2.--Insurance claims of Jews of German nationality will be confiscated in favor of the Reich.”

For this purpose a fine of one billion marks was imposed upon the Jews. The witness Schulz, who was an attorney in Berlin, acted in behalf of Frau Liebermann, the widow of the internationally known artist, Max Liebermann. Frau Liebermann was at that time 80 years old and the share of the fine imposed upon her was 280,000 marks. Ultimately orders were issued for her deportation to the East. She, however, died, either from heart failure or poison, as she descended the steps to be carried away. Defense witness Schulz[662] also testified concerning other methods of Jewish persecution. He said:

“* * * When a Jew wanted to emigrate, I had much to do with it. He had to pay the Reich escape tax, that was so and so much percent of his property and then a large amount was taken away from him by assessing his property very high. After all of that was done and the day he went to the passport office in order to get his clearance, his passport, and get his visa then he was told that now he still had to go to the notary, Dr. Stege, and had to deposit a voluntary fee to promote the emigration of the Jews, and that is where he paid the balance, and then left with his personal satchel, with his little valise.”

Speaking of the “asocial” persons, Dr. Thierack, on 5 January 1943, at a mass meeting of the NSDAP, stated (NG-275, Pros. Ex. 25):

“I have seen to it that these people shall no longer be employed for any sort of work that is not dangerous. The most dangerous tasks are just the thing that is for them. Now, today, when thousands of these people are carrying supplies in the far north or building roads, I cannot help it if some of them die, but at least they are of some use.”

The Roman Catholic chaplain at Amberg prison stated under oath that a large proportion of the inmates of that prison were Poles who had been sentenced under the “Poles’ Act.” Many of them died from undernourishment. They were forced to eat potato peelings and hunt through rubbish heaps for eatable refuse. From this prison “asocial elements” were picked out and sent in batches to the Mauthausen concentration camp. All of the first batch was said to have perished. Among the prisoners were Jews who had been sentenced for race pollution.

The witness Hecker stated under oath that after Thierack’s “doubtful decree” concerning the transfer of Jews, Poles, and gypsies, prisoners in protective custody, and asocial elements from the justice prisons to the RSHA in the autumn of 1942, the Jews as a whole were immediately handed over. The work was carried out by Department V of the Ministry of Justice. Lists were prepared monthly and sent to Minister Thierack through the chief of the department.

On 22 October 1942 a directive (648-PS, Pros. Ex. 264) under the letterhead of the Reich Minister of Justice was issued to various prosecuting officers in which it was stated that “by agreement with the Reich Leader SS, lawfully sentenced prisoners confined in penal institutions will be transferred to the custody of the Reich Leader SS.” Those designated for transfer to the SS included “Jews, men and women, detained under arrest, protective custody, or in the workhouse; * * * and Poles, residing in the former Polish state territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is above 3 years, * * *. With completion of the transfer to the police, the penal term is considered interrupted. Transfer to the police is to be reported to the penal authority and in cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice.” The directive is signed “Dr. Crohne.”

A secret directive dated Berlin, 5 November 1942, was issued to the heads of the SS and to the police services, in which it was stated (L-316, Pros. Ex. 265):

“Re: Jurisdiction over Poles and eastern nationals.

“I. The Reich Leader SS has come to an arrangement with the Reich Minister of Justice Thierack whereby the justice waives the execution of the usual penal procedure against Poles and eastern nationals. These persons of alien race are in future to be handed over to the police. Jews and gypsies are to be treated in the same way. This agreement has been approved by the Fuehrer.

“II. This agreement is based on the following considerations: Poles and eastern nationals are alien and racially inferior people living in the German Reich territory.”

The order continues:

“Such considerations which may be right for adjudicating a punishable offense committed by a German are however wrong for adjudicating a punishable offense committed by a person of alien race. * * * As a result of this, the administration of penal law for persons of alien race must be transferred from the hands of the administrators of justice into the hands of the police.”

On 24 September 1942 the defendant Joel prepared a secret report concerning the Reich Marshal’s plans for action in the Occupied Eastern Territories. The report states that “the Reich Marshal is looking for daring fellows who will be employed in the East for special purposes and who will be able to carry out tasks of creating confusion behind the lines.” The suggestion was that “poachers” and “fanatical members of smuggling gangs who take part in gun battles on the frontiers,” should be employed for this purpose. A copy of the report was sent to State Secretary Rothenberger for his attention and was submitted in connection with a proposed conference to be held on 9 October 1942. Minutes of a conference of 9 October 1942, signed by Dr. Crohne, incorporate the substance of Joel’s report, and state that the poachers have already been turned over to the Reich Leader SS for special duties. The report recommends that the district attorneys be given the task of obtaining the convicts for this special service, and provides further (662-PS, Pros. Ex. 263):

“Delivery of asocial convicts.--Persons in penal institutions designated as asocial persons by judicial decision are to be turned over to the Reich Leader SS.

“1. Persons in custody for reasons of security.--Persons in custody for reasons of security who are in German penal institutions will be put at the disposal of the Reich Leader SS. The execution of sentence will be regarded as interrupted by the delivery. * * *

“b. Whether women are also to be delivered is still doubtful. * * * In this regard it will have to be a fundamental point from the beginning that in the case of female Poles, Jews, and gypsies no doubt about the delivery can exist.

“c. Foreigners are not affected. Poles, Russians, Ukrainians, Jews, and gypsies do not rank as foreigners. * * *.

“2. Jews, gypsies, Russians, and Ukrainians will be delivered to the Reich Leader SS without exception.

“3. Poles.--Ethnic Poles who are subject to the Polish criminal law regulations, or have been delivered to the Polish penal authorities, and who have more than 3 years’ sentence to serve, will be delivered to the Reich Leader SS.

“Poles with smaller sentences will remain in the custody of the prison system. After serving their sentences they will be reported by name to the police just the same.”

It will be observed that the decisions concerning special treatment for Poles and Jews which were reached at this conference of 9 October 1942 antedate by almost 9 months the enactment of the 13th regulation concerning the Reich Citizenship Law of 1 July 1943 which provided “that criminal actions committed by Jews shall be punished by the police.”

On 1 April 1943 a letter from the Reich Ministry of Justice to the public prosecutors of the courts of appeal and others stated that the “Reich Security Office has directed by the decree of 11 March 1943 as follows:

“a. Jews, who in accordance with number VI of the guiding principles, are released from a penal institution, are to be taken by the State police (chief) office competent for the district in which the penal institution is located, for the rest of their lives to the concentration camps Auschwitz or Lublin in accordance with the regulations for protective custody that have been issued. The same applies to Jews who in the future are released from a penal institution after serving a sentence of confinement.

“b. Poles, who in accordance with number VI of the guiding principles, are released from a penal institution, are to be taken by the State police (chief) office competent for the district in which the penal institution is located, for the duration of the war to a concentration camp in accordance with the regulations on protective custody that have been issued.

“The same applies in the future to Poles who after serving a term of imprisonment of more than 6 months are to be discharged by a penal institution.”

It was stated that the ruling replaces previous orders. The instrument is stamped “Reich Ministry of Justice” and is signed by Dr. Eichler.

As a crowning example of fanatical imbecility, we cite the following document issued in April 1943 which was sent to the desk of the defendant Rothenberger for his attention and was initialed by him (NG-1656, Pros. Ex. 535):

“The Reich Minister of Justice “Information for the Fuehrer “1943 No.

“After the birth of her child a full-blooded Jewess sold her mother’s milk to a pediatrician and concealed that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage, for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents, who are unaware of the true facts, need not subsequently be worried.

“I shall discuss with the Reich health leader the racial-hygienic aspect of the case.

“Berlin, April 1943”.

The witness Lammers, former Chief of the Reich Chancellery, testified as follows:[663]

“Q. * * * Now, you answered Dr. Kubuschok that the subject of sterilization of half-Jews was an alternative to their being moved to the East and that it had been raised by half-Jews themselves in 1942 or prior thereto.”

“A. Yes. I said so.”

He testified further that the half-Jews were not subject to any compulsion. He was apparently of the opinion that a person was a free agent if he had a choice between sterilization and deportation to a concentration camp.

It will be recalled that the law of 4 December 1941 against Poles and Jews applied to the “Incorporated Eastern Territories.” Those territories were seized in the course of criminal aggressive war, but aside from the fact it is clear, as we have indicated, supra, that the purported annexation was premature and invalid under the laws and customs of war. The so-called annexed territories in Poland were in reality nothing more than territory under belligerent occupation of the military forces of Germany. The extension to and application in these territories of the discriminatory law against Poles and Jews was in furtherance of the avowed purpose of racial persecution and extermination. In the passing and enforcement of that law the occupying power in our opinion violated the provisions of the Hague Convention from which we quote:

“Until a more complete code of the laws of war has been issued, the high contracting parties deem it expedient to declare that, in cases not included in the regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

Other relevant portions are as follows:

“Article 43.--The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

“Article 46.--Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.” (Hague Convention No. IV of 18 October 1907 36 Stat. 2277; Treaty Series No. 539; Mallory Treaties, Vol. 2, page 2269.)

The prosecutions which were proposed by Lautz cannot be justified upon any honest claim of military necessity. As a lawyer of ability, he must have known that the proposed procedure was in violation of international law.

Although the authorities are not in accord as to the proper construction of article 23h of the regulations annexed to the Hague Convention of 1907, we are of the opinion that the introduction and enforcement of the law against Poles and Jews in occupied Poland resulted in a violation of that provision which is as follows:

“It is forbidden to declare abolished, suspended, or inadmissible in a court of law the right and actions of the nationals of the hostile party.”[664]

The evidence discloses that the transfer of persons to concentration camps was done even before the war and on direct orders of Hitler. Dr. Lammers, Chief of the Reich Chancellery, on 8 August 1939, notified the Reich Minister of Justice that “the Fuehrer has given an order that all dispensable persons in security detention are to be put at the disposal of the Reich Leader SS immediately.” The same procedure was employed as to persons who had never been convicted.

On 24 January 1939, a conference was held at which reports were received from eight different court districts. The subject was “Protective Custody after Serving Term of Imprisonment, after Acquittal, after Release from Imprisonment on Remand.” Among the cases reported were those of defendants who were taken into custody by the police in the court room immediately after their acquittal. Others were taken by the police in cases where there had been a refusal to issue a warrant of arrest. The report on the Hamburg situation by the defendant Rothenberger states that the number of persons taken into protective custody has increased. Rothenberger reports that in six cases Jewish women had been taken into protective custody because of sexual intercourse with Aryans. He quotes the State Police file as follows:

“1. Protective custody, ‘to make the punishment finally effective’ * * *.

“2. Protective custody, ‘to make the served sentences still more effective’ * * *.

“3. Protective custody, ‘because of the big number of previous convictions’.

“4. Protective custody ‘to prevent prejudicing the course of justice through the interference of lawyers as defense counsel’.”

The report on the conference ends as follows:

“The Minister concludes the discussion by indicating that it is to be the task of the chief presidents to see that arrests in the court room by the State Police are avoided, and recommends for the rest to maintain the connection with the State Police.”

The report is signed by the defendant Klemm.

Former defendant Engert as vice president of the People’s Court, and Thierack, the president of the People’s Court, protested in July and August 1940 against the trial of minor cases in the People’s Court as not being compatible with the dignity of the tribunal and suggested that the defendants in such cases should be transferred to a concentration camp. As Thierack put it--

“However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia, it is wrong for every follower, even the smallest, to be given the honor of appearing for trial and being judged for high treason before a People’s Court or, failing that, before an appellate court. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and that it will take action accordingly. But that can also be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small hangers-on who are somehow connected with the high treason plans which have been woven by others are brought to their senses by being transferred to a concentration camp for some time.”

As early as 29 January 1941 the senior public prosecutor at Hamm wrote to the Reich Minister of Justice, for the attention of State Secretary Schlegelberger (NG-685, Pros. Ex. 259):

“Upon inquiry, the Reich Trustee for Labor for the economic territory of Westphalia-Lower Rhine has informed me that ‘in accordance with an agreement between the Reich Minister for Labor and the Reich Leader SS as Chief of the German Police, breach of work contracts by Poles are to be punished by the Secret State Police with protective custody or concentration camps. The meaning of this step’--so writes this Reich trustee--‘is that in the case of Poles the strictest measures are to be taken at once * * *’. For this reason we made it a point in my office to transfer the cases involving breaches of work contracts by Polish civilian workers, to the Gestapo (Secret State Police) for further action.”

The same letter informs the defendant Schlegelberger of uncertainty which has arisen in the treatment of Polish civilians because in some cases the courts would sentence to 2 or 3 years imprisonment while the State Police may pronounce the death sentence for the same crime.

While the part played by the Ministry of Justice in the extermination of Poles and Jews was small compared to the mass extermination of millions by the SS and Gestapo in concentration camps, nevertheless the courts contributed greatly to the “final solution” of the problem. From a secret report from the office of the Reich Minister of Justice to the judges and prosecutors, including the defendant Lautz, it appears that 189 persons were sentenced under the law for the protection of German blood and honor in 1941, and 109 in 1942. In the year 1942, 61,836 persons were convicted under the law against Poles and Jews. This figure includes persons convicted in the Incorporated Eastern Territories, and also convictions for crimes committed in “other districts of the German Reich by Jews and Poles who on 1 September 1939 had their residence or permanent place of abode in territory of the former Polish state.” These figures, of course, do not include any cases in which Jews were convicted of other crimes in which the law of 4 December 1941 was not involved.

The defendants contend that they were unaware of the atrocities committed by the Gestapo and in concentration camps. This contention is subject to serious question. Dr. Behl testified that he considered it impossible that anyone, particularly in Berlin, should have been ignorant of the brutalities of the SS and the Gestapo. He said: “In Berlin it would have been hardly possible for anybody not to know about it, and certainly not for anybody who was a lawyer and who dealt with the administration of justice.” He testified specifically that he could not imagine that any person in the Ministry of Justice, or in the Party Chancellery, or as a practicing attorney or a judge of a Special (or) People’s Court could be in ignorance of the facts of common knowledge concerning the treatment of prisoners in concentration camps. It has been repeatedly urged by and in behalf of various defendants that they remained in the Ministry of Justice because they feared that if they should retire, control of the matters pertaining to the Ministry of Justice would be transferred to Himmler and the Gestapo. In short, they claim that they were withstanding the evil encroachments of Himmler upon the justice administration, and yet we are asked to believe that they were ignorant of the character of the forces which they say they were opposing. We concur in the finding of the first Tribunal in the case of United States et al. vs. Goering, et al., concerning the use of concentration camps. We quote:

“Their original purpose was to imprison without trial all those persons who were opposed to the government, or who were in any way obnoxious to German authority. With the aid of a secret police force, this practice was widely extended, and in course of time concentration camps became places of organized and systematic murder where millions of people were destroyed.

* * * * * * *

“A certain number of the concentration camps were equipped with gas chambers for the wholesale destruction of the inmates, and with furnaces for the burning of the bodies. Some of them were in fact used for the extermination of Jews as part of the ‘final solution’ of the Jewish problem.

* * * * * * *

“In Poland and the Soviet Union these crimes were part of a plan to get rid of whole native populations by expulsion and annihilation, in order that their territory could be used for colonization by Germans. Hitler had written in ‘Mein Kampf’ on these lines, and the plan was clearly stated by Himmler in July 1942, when he wrote:

“‘It is not our task to Germanize the East in the old sense, that is to teach the people there the German language and the German law, but to see to it that only people of purely Germanic blood live in the East’.”[665]

A large proportion of all of the Jews in Germany were transported to the East. Millions of persons disappeared from Germany and the occupied territory without a trace. They were herded into concentration camps within and without Germany. Thousands of soldiers and members of the Gestapo and SS must have been instrumental in the processes of deportation, torture, and extermination. The mere task of disposal of mountainous piles of corpses (evidence of which we have seen) became a serious problem and the subject of disagreement between the various organizations involved. The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned? Did the defendants think that the nationwide pogrom of November 1938 officially directed from Berlin and Hitler’s announcement to the Reichstag threatening the obliteration of the Jewish race in Europe were unrelated? At least they cannot plead ignorance concerning the decrees which were published in their official organ, “The Reichsgesetzblatt”. Therefore, they knew that Jews were to be punished by the police in Germany and in Bohemia and Moravia. They knew that the property of Jews was confiscated on death of the owner. They knew that the law against Poles and Jews had been extended to occupied territories, and they knew that the Chief of the Security Police was the official authorized to determine whether or not Jewish property was subject to confiscation. They could hardly be ignorant of the fact that the infamous law against Poles and Jews of 4 December 1941 directed the Reich Minister of Justice himself, together with the Minister of the Interior, to issue legal and administrative regulations for “implementation of the decree”. They read The Stuermer. They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands, never.

The evidence conclusively establishes the adoption and application of systematic government-organized and approved procedures amounting to atrocities and offenses of the kind made punishable by C. C. Law 10 and committed against “populations” and amounting to persecution on racial grounds. These procedures when carried out in occupied territory constituted war crimes and crimes against humanity. When enforced in the Alt Reich against German nationals they constituted crimes against humanity.

The pattern and plan of racial persecution has been made clear. General knowledge of the broad outlines thereof in all its immensity has been brought home to the defendants. The remaining question is whether or not the evidence proves beyond a reasonable doubt in the case of the individual defendants that they each consciously participated in the plan or took a consenting part therein.

THE DEFENDANT SCHLEGELBERGER

The defendant Franz Schlegelberger was born on 23 October 1875 in Koenigsberg. He received the degree of doctor of law at the University of Leipzig in 1899 and passed the higher state law examination in 1901. He is the author of several law books. His first employment was as an assistant judge at the local court in Koenigsberg. In 1904 he became judge at the district court at Lyck. In 1908 he was appointed judge of the local court in Berlin and in the fall of the same year was appointed as an assistant judge of the Berlin Court of Appeals. He was then appointed councillor of the Berlin Court of Appeals in 1914, where he worked until 1918. During the First World War, on 1 April 1918 he became an assistant to the Reich Board of Justice. On 1 October 1918 he was appointed Privy Government Councillor and department chief. In 1927 he was appointed ministerial director in the Reich Ministry of Justice. On 10 October 1931 he was appointed Secretary of State in the Reich Ministry of Justice under Minister of Justice Guertner, which position he held until Guertner’s death. Upon Guertner’s death on 29 January 1941 Schlegelberger was put in charge of the Reich Ministry of Justice as administrative Secretary of State. When Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger resigned from the Ministry.

In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger testified that he made no use of the Party, that he never attended a Party meeting, that none of his family belonged to the Party, and that Party attitudes often rendered his position difficult. However, upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger received a letter of appreciation from Hitler together with a gift of 100,000 RM.

Later in 1944 Hitler gave Schlegelberger the special privilege to use the 100,000 RM to purchase a farm, which under the rule then prevailing could have been purchased only by an expert agriculturist. Schlegelberger states that the 100,000 RM were on deposit in a Berlin German bank to his account when the collapse came. Thus, it is shown that Hitler and Schlegelberger were not too objectionable to each other. These transactions also show that Hitler was at least attempting to reward Schlegelberger for good and faithful service rendered in the performance of some of which Schlegelberger committed both war crimes and crimes against humanity as charged in the indictment.

We have already adverted to his speech at the University of Rostock on 10 March 1936, on the subject, “A Nation Beholds Its Rightful Law.” In this speech Schlegelberger declared:

“In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the new Reich has been opened up by a new wording of section 2 of the criminal code, whereby a person is also (to) be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.”

As amended, section 2 remained in effect until repealed by Law No. 11 of the Allied Control Council. The term “the sound people’s sentiment” as used in amended section 2 has been the subject of much discussion and difference of view as to both its proper translation and interpretation. We regard the statute as furnishing no objective standards “by which the people’s sound sentiment may be measured”. In application and in fact this expression became the “healthy instincts” of Hitler and his coconspirators.

What has been said with regard to the amendment to section 2 of the criminal code is equally true of the amendment of section 170a of the code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides:

“If an act deserves punishment according to the common sense of the people but is not declared punishable in the code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law.”[666]

This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism. This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries. German criminal law was therefore introduced in the incorporated areas and also in the nonincorporated territories, and German criminal law was thereafter applied by German courts in the trial of inhabitants of occupied countries though the inhabitants of those countries could have no possible conception of the acts which would constitute criminal offenses.

In the earlier portions of this opinion we have repeatedly referred to the actions of the defendant Schlegelberger. Repetition would serve no good purpose. By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler’s Night and Fog. For this he must be charged with primary responsibility.

He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the “final solution of the Jewish question” was under discussion, the question arose as to the disposition of half-Jews. The deportation of full Jews to the East was then in full swing throughout Germany. Schlegelberger was unwilling to extend the system to half-Jews. He therefore proposed to Reich Minister Lammers, by secret letter on 5 April 1942 (4055-PS, Pros. Ex. 401):

“The measures for the final solution of the Jewish question should extend only to full Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree. [First degree presumably those with two non-Aryan grandparents, and second degree with only one.]

“With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated. It follows therefrom that the evacuation of those half-Jews who are no more capable of propagation is obviated from the beginning. There is no national interest in dissolving the marriages between such half-Jews and a full-blooded German.

“Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews.”

Schlegelberger knew of the pending procedures for the evacuation of Jews and acquiesced in them. As to half-Jews his only suggestion was that they be given the free choice of either one of the impaling horns of a dilemma. On 17 April 1941 Schlegelberger wrote to Lammers as follows (NG-144, Pros. Ex. 199):

“On being informed of the Fuehrer’s intention to discriminate in the sphere of penal law between the Poles (and probably the Jews as well), and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and the attorneys general of the annexed eastern territories, the attached draft concerning the administration of the penal laws against Poles and Jews in the annexed eastern territories and in the territory of the former Free City of Danzig.”

The draft of a proposed ordinance “concerning the administration of justice regarding Poles and Jews in the Incorporated Eastern Territories” was attached to his letter and is in evidence. A comparison of its phraseology with the phraseology contained in the notorious law against Poles and Jews of 4 December 1941 discloses beyond question that Schlegelberger’s draft constituted the basis on which, with certain modifications and changes, the law against Poles and Jews was enacted. In this respect he was not only guilty of participation in the racial persecution of Poles and Jews; he was also guilty of violation of the laws and customs of war by establishing that legislation in the occupied territories of the East. The extension of this type of law into occupied territories was in direct violation of the limitations imposed by the Hague Convention, which we have previously cited.

It is of interest to note that on 31 January 1942 Schlegelberger issued a decree providing that the provisions of the law against Poles and Jews “will be equally applicable with the consent of the public prosecutor to offenses committed before the decree came into force”. We doubt if the defendant would contend that the extension of this discriminatory and retroactive law into occupied territory was based on military necessity.

Schlegelberger divorced his inclinations from his conduct. He disapproved “of the revision of sentences” by the police, yet he personally ordered the murder of the Jew Luftgas on the request of Hitler, and assured the Fuehrer that he would, himself, take action if the Fuehrer would inform him of other sentences which were disapproved.

Schlegelberger’s attitude toward atrocities committed by the police must be inferred from his conduct. A milking-hand, Bloedling, was sentenced to death in October 1940, and during the trial he insisted his purported confession had been obtained as a result of beatings imposed upon him by the police officer Klinzmann. A courageous judge tried Klinzmann and convicted him of brutality and sentenced him to a few months imprisonment. Himmler protested against the sentence of Klinzmann and stated that he was going “to take the action of the Hauptwachtmeister of the police Klinzmann as an occasion to express gratitude for his farsighted conduct which was only beneficial to the community.” He said further:

“I must reward his action because otherwise the joy of serving in the police would be destroyed by such verdicts. But finally K. has to be rehabilitated in public because his being sentenced by a court is known in public.”

On 10 December 1941 Schlegelberger wrote to the Chief of the Reich Chancellery stating that he was unable to understand the sentence passed against Klinzmann. We quote:

“No sooner had the verdict passed on Klinzmann become known here, orders were for this reason given to the effect that the sentence in case of its validation should not be carried out for the time being. Instead, reports concerning the granting of a pardon should be made as soon as possible. In the meantime, however, the sentence passed on Klinzmann became valid, by decision of the Reich [Supreme] Court of 24 November 1941 which abandoned the procedure of revision as apparently unfounded. Taking into regard also the opinion you expressed on the sentence, Sir, I now ordered the remission of the sentence and of the costs of proceedings by way of pardon as well as the striking out of the penalty note in the criminal records.”

On 24 December 1941 Schlegelberger wrote to Lammers that he had quashed the proceedings. In February 1942 Himmler wrote expressing appreciation of the efforts in quashing the proceedings against Klinzmann and stated that he had since promoted him to Meister of the municipal police.

Schlegelberger presents an interesting defense, which is also claimed in some measure by most of the defendants. He asserts that the administration of justice was under persistent assault by Himmler and other advocates of the police state. This is true. He contends that if the functions of the administration of justice were usurped by the lawless forces under Hitler and Himmler, the last state of the nation would be worse than the first. He feared that if he were to resign, a worse man would take his place. As the event proved, there is much truth in this also. Under Thierack the police did usurp the functions of the administration of justice and murdered untold thousands of Jews and political prisoners. Upon analysis this plausible claim of the defense squares neither with the truth, logic, or the circumstances.

The evidence conclusively shows that in order to maintain the Ministry of Justice in the good graces of Hitler and to prevent its utter defeat by Himmler’s police, Schlegelberger and the other defendants who joined in this claim of justification took over the dirty work which the leaders of the State demanded, and employed the Ministry of Justice as a means for exterminating the Jewish and Polish populations, terrorizing the inhabitants of occupied countries, and wiping out political opposition at home. That their program of racial extermination under the guise of law failed to attain the proportions which were reached by the pogroms, deportations, and mass murders by the police is cold comfort to the survivors of the “judicial” process and constitutes a poor excuse before this Tribunal. The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.

Schlegelberger resigned. The cruelties of the system which he had helped to develop were too much for him, but he resigned too late. The damage was done. If the judiciary could slay their thousands, why couldn’t the police slay their tens of thousands? The consequences which Schlegelberger feared were realized. The police, aided by Thierack, prevailed. Schlegelberger had failed. His hesitant injustices no longer satisfied the urgent demands of the hour. He retired under fire. In spite of all that he had done he still bore an unmerited reputation as the last of the German jurists and so Hitler gave him his blessing and 100,000 RM as a parting gift. We are under no misapprehension. Schlegelberger is a tragic character. He loved the life of an intellect, the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security. He is guilty under counts two and three of the indictment.

THE DEFENDANT KLEMM

Herbert Klemm, formerly State Secretary of the Reich Ministry of Justice, was born in Leipzig on 15 May 1903. After normal schooling, he passed his first legal state examination in 1925, his second legal state examination in 1929. From 1929 to 1933, he was court assessor of the prosecution authority of Dresden. From March 1933 to March 1935 he was the personal Referent and adjutant of Thierack, Minister of Justice, Saxony. In 1935, at the time of the centralization of the administration of justice, he was transferred to the Reich Ministry of Justice where he remained until he was mobilized for war service on 23 June 1940. On 20 April 1939 he was promoted to the office of Ministerialrat. In July of 1940 he was assigned to the Reich Commissioner for the Occupied Dutch Territories, upon the request of the Plenipotentiary for Occupied Dutch Territories. On 17 March 1941 he was transferred to the staff of the deputy of the Fuehrer, which later became the Party Chancellery, in Munich. He remained with the Party Chancellery until 4 January 1944, when he became state secretary of the Reich Ministry of Justice under Thierack. He remained in this capacity until the surrender.

Klemm’s Party connections were as follows: he applied for membership in the NSDAP on 4 November 1930; his membership card, 405576, was received 1 January 1931. On 30 June 1933 he joined the SA; the highest rank which he received in the SA was that of Oberfuehrer. When in Saxony he was the legal advisor of the SA for Saxony and liaison officer between the SA for Saxony and the Minister of Justice for Saxony. When he was transferred to Berlin, he was the liaison officer between the Reich Ministry of Justice and the SA Chief of Staff for Germany and the legal advisor to the Chief of Staff of the SA for Germany.

He was a member of the National Socialist Jurists’ League from 1933. In September of 1944 he was appointed deputy chief of the National Socialist Jurists’ League by Thierack, who was at that time chief.

He received the Bronze Party Service decoration in 1941 and the Golden Party decoration, the latter being conferred by Bormann in 1943.

During the time in which the defendant was in Saxony, he was a member of the disciplinary court of the SA group which dealt with the purge of the SA in connection with the Roehm Putsch.

A brief outline of the official activities of the defendant Klemm is as follows: after transfer to Berlin in 1935, the defendant dealt with acts against the State and Party and, later, the malicious acts law. In this field prosecution could be ordered only by the Ministry of Justice with the permission of the office of the deputy of the Fuehrer, which later became the Party Chancellery.

It was during this period that the following circular, dated Berlin, 18 October 1937, and initialed by Klemm, was issued (_NG-310, Pros. Ex. 33_):

“1. Criminal procedures concerning more severe interrogations by the Stapo will be dealt with centrally by Chief Prosecutor Klemm. They are to be sent to the competent co-worker Prosecutor Winkler.

“2. As far as reports concerning executions when escaping from concentration camps, etc., suicides in K.Z. arrive, they shall continue to be dealt with by the specialist competent for the respective subject. The general consultant for political criminal matters, however, is to be informed of the reports. They are to be submitted to him once.”

The practice of more severe interrogations, according to the testimony of Lautz, caused much worry to those concerned with the administration of justice. By the term “more severe interrogations” is meant “third degree” methods which Hitler authorized the police to use in cases considered important for the safety of the State.

From July 1940 to March 1941, while Klemm was in Holland, he had charge of both civil and penal law. The penal section in Holland was for German citizens not in the army and Dutch who infringed on German interests. He was also liaison officer between the commissioner general for the administration of justice and secretary of the Dutch Ministry of Justice at The Hague.

During this period there were published in the official gazette for the occupied Dutch territories, in the year 1944,[667] decrees of the Reich Commissioner of Occupied Dutch Territories, Seyss-Inquart, pertaining to the registry of Jewish property, the confiscation of same under certain circumstances, and for the transfer of Jewish property to an official in the nature of an administrator. During this time a letter was written by Tenkink, Secretary General of the Dutch Ministry of Justice, to the Reich Commissioner of Holland, which shows the defendant’s signature, informing the commissioner of excesses committed against Jews in Holland.

During this period letters dated 24 and 30 September 1940, marked “Secret,” and signed by the defendant, to the department for legislation, Lange Vijverberg, with opinions and recommendations as to the registration and confiscation of Jewish property in Holland, were transmitted.

A letter dated 24 September 1940 contains the following statement:

“In my view it must be achieved with other means to eliminate Jewish influence from such corporations. In the Reich, too, it needed months of careful work to gradually extract Jewish capital without disturbing the economy or to eliminate Jewish influence altogether.”

The defendant Klemm was in the office of the deputy of the Fuehrer and Party Chancellery from March 1941 to January 1944. The Party Chancellery had to approve the drafts of decrees in connection with national laws and ordinances and also was charged with the responsibility for the approval of high official appointments. The Party Chancellery was formed from what had originally been the office of the deputy of the Fuehrer under Hess. It was the instrument of the Party in matters of State and soon became virtually the instrument of Bormann.

In the Party Chancellery Klemm was Chief of Group III-C. This group had the following functions, as stated by the defendant:

“First, it had to deal with laws and drafts and decrees of the Reich Ministry of Justice, unless for reasons of their subject they were dealt with by another group, because that group appeared to be competent. Secondly, penal matters based on the law against malicious acts, as far as on the basis of legal provisions the approval of the Chief of the Party Chancellery was required for the prosecution. Thirdly, complaints from Party offices or individuals against decision by the courts. Fourth, complaints from the administration of justice against interference by Party offices into pending trials. Fifth, to observe especially civil and penal cases which concerned the Party. Sixth, matters of legal reform, and seventh, expert opinions in the field of the Party law.”

Among his activities, and in conference with officials from the Ministry of Justice, he made suggestions for strengthening the powers of the police.

At another conference with officials from the Ministry of Justice concerning the political evaluations of persons in connection with legal procedure, he represented the standpoint of the Party that Party evaluations should be accepted by the courts.

During the time that Klemm was Chief of Group III-C, the act providing for the retroactive application of law concerning treason was enacted and applied to the annexed eastern territories. It was claimed by the defendant that this was based upon a decision of Bormann.

At this time legislation depriving the Jews of legal rights was also contemplated; drafts of the proposals made were dealt with, and the letter of 9 September 1942, prepared in Department III, was dispatched.

Also as part of the activities of Group III-C under Klemm, the proposal of the defendant Schlegelberger regarding confirmation of sentences of penal cases by the president of the district court of appeals was disposed of and the defendant claims he influenced Bormann to oppose this recommendation of the Ministry of Justice.

During this period a circular entitled, “The New Organization of Justice,” signed by Bormann, and which the defendant Klemm claims was intended to free the Ministry of Justice from Party criticism, states as follows:

“Hereby is further required that you report to me all complaints which you have to bring in matters of justice, so that I can clear up the situation immediately by confidential negotiations with the Reich Minister of Justice. Should it, after a discussion with the Reich Minister of Justice, seem absolutely necessary that a problem is brought to the Fuehrer, then this will be taken care of by Reich Minister Dr. Lammers and myself.”

During this period Klemm wrote the Minister of Justice as follows:

“Your letter of 5 August 1943 is agreed to. No objections are raised to applying the German Criminal Code for Juveniles to foreign juveniles, unless they are Jewish, Polish, or gypsies. Regarding juvenile gypsies and those of mixed gypsy descent, you are asked to see to it that, simultaneously with the coming into force of the new law concerning Reich juveniles, a special regulation will come into effect which will prevent the German Criminal Code for Juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking.”

The defendant states that during this period Bormann called him on the telephone and inquired whether he knew Rothenberger and inquired about Rothenberger. Also he later submitted to the defendant Klemm an inquiry as to the background and qualifications of persons presumed to have been possible appointees as Reich Minister of Justice. These included Thierack, and Klemm states that his report to Bormann was favorable to Thierack. These inquiries were made of the defendant in spite of the fact that, according to his testimony, he had to deal only with matters pertaining to the administration of justice, and these were definitely personnel matters under another department of the Party Chancellery.

During this period he was the liaison officer between Thierack and the Party Chancellery. As to this relationship, Klemm states:

“Thierack asked me in all matters concerning the justice group of the Party Chancellery to come to him, that is to him personally, immediately and not to discuss them with the various Referents at the Ministry * * * and as I had worked in both fields, the best thing for him to get acquainted with the matter would be if I reported to him in person.”

With reference to Klemm’s duties as Under Secretary of State, the following paragraph of a report of the conference of the department chiefs, held 6 January 1944, outlines in part his duties in the Ministry as follows (NG-195, Pros. Ex. 45):

“The Minister announced that from now on the Departments III, IV, and V, too, would be placed under the control of the State Secretary and hereby recalled the contrary regulation in office routine, which was published on 27 August 1942, but added that all death sentences must continue to be submitted to him. He would request the State Secretary to be present when they were submitted. Furthermore, all political and legal matters of particular importance must be reported to him.”

Klemm maintains that his supervision of Departments III, IV, and V was merely on paper. However, the testimony of Hecker does not bear this out as regards Department V, nor does the testimony of Eggensperger.

During this period the decree against Poles and Jews was still being enforced under the jurisdiction of the Ministry of Justice insofar as any was left, outside the sphere of the Gestapo and the concentration camps.

During this period the Ministry of Justice still dealt with Nacht und Nebel cases. The defendant Klemm denies, in general, knowledge of NN procedure. Fourteen exhibits have been introduced in this case showing transactions concerning NN matters, subsequent to the time Klemm took over the office of State Secretary. The defendant admits knowledge that Nacht und Nebel prisoners were transferred from Essen to Silesia. He admits refusal of spiritual care for NN prisoners by foreign clergymen. He admits knowledge of a draft of a letter from Thierack to Bormann to the effect that NN women who were not to be executed should be so advised. He admits denying clemency to eight NN prisoners when he was acting as deputy for Thierack. In the remaining 123 cases, clemency was denied by Thierack when Klemm was presumably sitting in conference with him.

Among the fourteen documents enumerated above is a report from the defendant von Ammon, initialed by Klemm, relative to a trip concerning NN matters. This report states (NG-231, Pros. Ex. 332):

“The Military Commander in Chief, France, is grateful for the evidence which the military courts in occupied French territory receive as a result of the activity of the general legal authorities concerned with the prosecution and trial of NN cases in occupied French territory.”

Klemm explains this document by stating that he merely approved the trip. With the above explanations, Klemm’s counsel stated:

“These are the only documents which the prosecution has submitted against you as far as NN cases are concerned.”

In view of the fact that Klemm was State Secretary when these matters were disposed of and, nominally at least, charged with supervision of Department IV where they were handled, this conclusion is not one which this Tribunal accepts.

With regard to clemency during the time the defendant was State Secretary, Klemm is shown to have dealt with clemency matters as the advisor of Thierack when he was present and as his deputy in his absence. He states that personally he dealt only with clear cases and, further, that in clear cases clemency had been disapproved by seven agencies before it became a clear case. He states that clear cases were legally incontestable.

His testimony that in clear cases seven agencies disapproved clemency during the period when he was State Secretary, does not conform to the testimony of the defendant Lautz or with Exhibit 279 which Lautz cites. Lautz’ testimony on this point is as follows:

“The examination of these clemency pleas for their correctness was no longer possible for the prosecutions in the majority of cases. The prosecutors now had to restrict themselves to adding the pleas to their reports without changing them. The time limit laid down in the decree was, as a rule, not adhered to because the offices at the People’s Court and the Reich prosecution were so overburdened that it was impossible for them to submit the files within the time limit set. Owing to that, occasionally there was sufficient time to make further investigations in the matter of the clemency plea. However, the opinion of the court, the prison, and all other agencies was no longer heard. They had been of importance before.” (Tr. p. 5947.)

Moreover, what may constitute a legally incontestable case is subject to considerable speculation. Presumably a case based upon a confession would be legally incontestable. Certainly it can hardly be assumed that the defendant Klemm was unaware of the practice of the Gestapo with regard to obtaining confessions. He had dealt with this matter during his early period with the department of justice. It is hardly credible that he believed that the police methods which at an earlier time were subject to some scrutiny by the Ministry of Justice, had become less harsh because the Gestapo, in October of 1940, was placed beyond the jurisdiction of law. He must have been aware that a prolific source of clear cases based on confessions and, therefore, legally incontestable, came to him from the obscurity of the torture chamber.

During the time Klemm was State Secretary, the plan of the leaders of the Nazi state to inspire the lynching of Allied fliers by the people of Germany was inaugurated, and during this period the matter of execution of approximately 800 political prisoners, prior to evacuation of the penitentiary at Sonnenburg, took place. These matters will be dealt with more fully hereafter.

As heretofore pointed out in this opinion, the essential elements to prove a defendant guilty under the indictment in this case are that a defendant had knowledge of an offense charged in the indictment and established by the evidence, and that he was connected with the commission of that offense.

As to the matter of knowledge of the defendant Klemm, aside from the sources of knowledge heretofore pointed out in this opinion in regard to all of the defendants herein, certain other facts are significant. The defendant’s sources of information were of a wide scope. He had been the liaison officer between the administration of justice and the SA in Saxony and the legal advisor of the chief of the SA for Saxony. On transfer to Berlin, he acted in the same capacity with the SA main office for the Third Reich and was the liaison officer between the Ministry of Justice and the SA Main office. In Holland he was head of the department of legal matters under Seyss-Inquart. He served with the Office of the Deputy of the Fuehrer and Party Chancellery from March 1941 to January 1944. There he was in charge of Group III-C. He was the friend of Klopfer in charge of Group III and, from the evidence, a trusted lieutenant of Bormann. Finally, he was State Secretary under Thierack, whom he had known since he was his adjutant and personal Referent in Saxony. In Berlin he lived with Thierack for the period in which he was State Secretary.

Klemm’s career under the Third Reich moved smoothly from comparative insignificance to the position of State Secretary in the Ministry of Justice. His ascent was marked by no serious differences as to Party policies. He was close to both Bormann and Thierack and ascended by their favor. Under the circumstances it is not credible that he was ignorant of the policies and methods of these ruthless figures.

The defendant lays great stress on an order of Hitler as to secrecy and states that in connection with this order he adhered strictly to it; that he did not attempt to hear anything outside of his official duties. Such orders as to secrecy were not confined to Germany during the war; they were standard procedure in other countries and by no means excluded knowledge of secret matters derived from normal human contacts, particularly friends and acquaintances in the higher levels of state affairs. Further, the confidential position held by the defendant gave him a wide scope as to secret matters within the sphere of his official duties. As State Secretary of the Ministry of Justice and deputy of the minister in his absence, the defendant’s official duties required knowledge of the higher spheres of State policy.

More specifically, Klemm knew of abuses in concentration camps. He knew of the practice of severe interrogations. He knew of the persecution and oppression of the Jews and Poles and gypsies. He must be assumed to have known, from the evidence, the general basis of Nacht und Nebel procedure under the Department of Justice. Therefore, it becomes important to consider his connection with the carrying out of these crimes alleged in the indictment and established by the evidence in this case.

It is clear from the evidence, heretofore outlined in part, that when the defendant Klemm was in Holland he knew of the persecution of Jews and he was connected to some extent with that persecution.

While he was in the Party Chancellery he wrote the letter, heretofore pointed out, denying the application of the German juvenile law to Poles, Jews, and gypsies. This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy, submitted through the Party Chancellery to the Ministry of Justice to the effect that minors of the prescribed races must be subject to the merciless provisions of the decree against Poles and Jews. The argument that they were necessarily excluded because they were foreigners, and that the German Juvenile Act contemplated entrance into the Hitler Youth, and similar provisions applicable only to Germans has little significance when the letter itself expressly states that there were no objections to applying the German Criminal Code for juveniles to foreign juveniles, unless they were Poles, Jews, or gypsies. Further, it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking.

While in the Party Chancellery, Klemm took part in drafting the law to make treason retroactive and applying it to annexed territories, and this draft bears his signature.

As State Secretary he knew of the NN procedure and was connected therewith, particularly as to the approximately 123 NN prisoners sentenced to death who were denied clemency while he sat in conference with Thierack, and in the eight cases where he denied clemency as deputy for Thierack.

As State Secretary in the Ministry of Justice, he necessarily exercised supervision over the enforcement of the decree against Poles and Jews and dealt with clemency matters pertaining to cases tried under that decree.

In connection with the defendant Klemm, two other transactions constituting crimes charged in the indictment are of particular significance. The first of these is charged under the second count of the indictment as a war crime against all the defendants and, particularly under paragraph 18 of the indictment, charging the defendant Klemm with special responsibility and participation. This pertains to the inciting of the German population to murder Allied airmen forced down within the Reich.

Evidence of this plan of the leaders of the German State is found as follows: First in the correspondence relative to the treatment of so-called “enemy terrorist airmen”. As part of this correspondence from the deputy chief of the operations staff of the armed forces, entitled “Secret matter”, dated 6 June 1944, and signed by General Warlimont,[668] the following sentence is significant:

“Lynch justice should be considered as being the rule.” Further, a draft of a letter, dated Salzburg, 20 June 1944, to the Chief of the High Command of the Armed Forces, apparently drawn by the Foreign Office, contains this paragraph:

“The above considerations warrant the general conclusion that the cases of lynching ought to be stressed in the course of this action. If the action is carried out to such an extent * * * the deterring of enemy airmen is actually achieved.”

In furtherance of this plan, Goebbel’s speech of 27 May 1944 is cited and the letter from the Chief of the Party Chancellery, Fuehrer Headquarters, 30 May 1944, marked “Secret--not for publication,” and bearing the initials of Thierack, concerning “the people’s judgment of Anglo-American murders,” signed by Bormann, is significant, particularly the following paragraph:

“No police or criminal proceedings have been taken against the citizens who have taken part herein.”

The distribution of this circular was as follows: “Reichsleiter, Gauleiter, Verbaendefuehrer, Kreisleiter,”[669] and contains the following note to all Gauleiter and Kreisleiter, initialed by Thierack and signed by Friedrichs:

“The Chief of the Party Chancellery requests that the Kreisleiter inform the Ortsgruppenleiter only verbally of the contents of this circular.”

Exhibit 109 [635-PS, Pros. Ex. 109] is of even greater significance. This is a letter from the Reich Minister and chief of the Reich Chancellery, dated 4 June 1944, to the Reich Minister of Justice, Dr. Thierack, headed, “Regards people’s justice against Anglo-American murders”. This letter is quoted in its entirety:

“The Chief of the Party Chancellery informed me about the enclosed transcript of a secret circular letter and requested me likewise to inform you.

“I herewith comply with this and beg you to consider how far you want to instruct the courts and district attorneys with it.

“The Reich Leader and Chief of the German Police has, as I was further told by executive leader Bormann, so instructed his police leaders.”

It contains a handwritten note, initialed by Thierack as a signature and also initialed by Klemm, which reads as follows:

“Return note with the addition that such cases are to be submitted to me for the purpose of their examination for quashing in case proceedings are pending.”

In this adroit plan to encourage the murder of Allied airmen and escape the responsibility, therefore, under the recognized rules of warfare, the procedures adopted by the Ministry of Justice were unique and worthy of the legal minds of those who dealt with the matter. As shown in the affidavit of Pejlovec, a secret directive was sent out by the Ministry of Justice calling for reports in cases of the lynching of Allied airmen. This directive was interpreted by Pejlovec to the effect that no prosecutions were contemplated.

The witness Dr. Gustav Mitzschke, Referent in the legislative department, testified that he was instructed to call upon the State Secretary, which he did, and received the following instructions:

“When you talk to General Public Prosecutor Helm at Munich, please tell him that in cases where Allied fliers have been killed or ill-treated, the police and any other agencies concerned are to pass on the files to the prosecution office, and that the prosecution as quickly as possible must make a report to the minister and also forward the files.”

Helm issued a directive to the prosecutors under him. This directive called for reports and files in such cases and stated that they were necessary because sometimes other factors, such as robbery or the use of Allied uniforms to cover the murder of Germans, had to be considered.

Klemm stated that Mitzschke was directed to inform Helm that reports were to be given in all cases.

The witness Helm stated that the note in conformity with Mitzschke’s instructions as to the reports to be made was written and sent out, he thinks, on the same day of Mitzschke’s visit and, in his cross-examination he states that he is sure it was not later than the day after Mitzschke’s visit.

The witness Hans Hagemann, general public prosecutor at Duesseldorf, testified that he was directed that in such cases a report had to be made to the Ministry of Justice. He also verified the secret decree sent out by the Minister of Justice.

The nature of the reports called for, in itself, is not considered by this Tribunal of particular importance. Thierack had directed Klemm, as shown above, to submit to him reports as to cases pending “for quashing.” The procedure followed by the Ministry went beyond this in that it required reports and the transmittal of files of cases where no indictment had as yet been issued. The Ministry of Justice thus took over, in substance, the disposition of these cases and the prosecution throughout Germany was thereby restricted in its normal duty of filing indictments against those who had murdered Allied airmen and were criminals under German law. From the evidence in this case and from sources of judicial information, this Tribunal knows of many instances of the lynching of Allied airmen by the German population. No case has been brought to the attention of this Tribunal where an indictment was actually filed for such offenses. What reports and files were submitted to the Ministry of Justice we do not know, but it is obvious that such reports as were made were allowed to die in the archives of the Ministry.

There is evidence as to one case pertaining to this matter. The defendant Klemm in his testimony refers to it. Around the turn of the year 1944–45 in Kranenburg, in the district of the court of appeals, Duesseldorf, an SA leader had shot two captured paratroopers in cold blood. Regarding this, Klemm stated:

“We prosecuted that case and even though the police, as well as the Party offices, offered considerable resistance, these discussions were advanced energetically. I do not know of the final outcome.”

The evidence in this case, as shown by the testimony of Hagemann, indicates that during September of 1944, at the time of the Allied parachute attack on Arnhem two captured Canadian paratroopers were shot by one Kluetgen while a Kreisleiter stood by and either permitted or encouraged the shooting.

The witness Hagemann undertook to investigate the matter but was unable to do so fully because a Kreisleiter could not be so examined if he refused to testify. It was necessary if the Kreisleiter was to be examined to have the approval of the Party Chancellery. An application was made for such consent but it was never given. Hagemann stated that he made a report over the telephone to the Ministry about the case. He believed he spoke with the defendant Mettgenberg. Afterwards he made a written report to the Ministry of Justice. He told the Ministry that he needed their support to obtain permission for the Kreisleiter to testify. He received written instructions to clear up the case completely, but since no approval was received to interrogate the Kreisleiter, he could not continue the proceedings. He stated, that again and again he requested the Ministry to obtain permission for him to examine the Kreisleiter. When asked whether he heard from the Ministry regarding this authority, he stated that he had not.

Permission to examine the Kreisleiter not having been obtained, he was never examined. Up to the time of the capitulation of Germany, no indictment had been filed against Kluetgen. This apparently was the prosecution and energetic action on the part of the Ministry of Justice to which Klemm referred in his testimony. In many cases discussed before this Tribunal, indictment, trial, and final execution were certainly more expeditiously handled.

In this plan to incite the population to murder Allied airmen, the part of the Ministry of Justice was, to some extent, a negative one. However, neither its action in calling for a report on pending cases for quashing, nor its action in calling for reports and files pertaining to all such incidents, was negative. Certainly the net effect of the procedure followed by the Ministry of Justice resulted in the suppression of effective action in such cases, as was contemplated in the letter from the Reich Ministry and Chief of the Reich Chancellery to the Ministry of Justice.

The defendant Klemm was familiar with the entire correspondence on this matter. He specifically directed the witness Mitzschke to obtain reports. His own testimony shows that he knew of the failure to take effective action in the case cited, and it is the judgment of this Tribunal that he knowingly was connected with the part of the Ministry of Justice in the suppression of the punishment of those persons who participated in the murder of Allied airmen.

The second transaction of particular importance with regard to the defendant Klemm is connected with the penitentiary at Sonnenburg. The record in this case shows that in the latter part of January 1945 this great penal institution under the Ministry of Justice was evacuated and that prior thereto, between seven and eight hundred political prisoners therein were shot by the Gestapo.

Klemm denies knowledge of this matter and states:

“From the documents in this case only, particularly from the affidavit of Leppin, I found out that over 800 persons were shot at Sonnenburg.”

He testified further that about the middle of January, Thierack had told him that Himmler had subordinated the prisoners at Sonnenburg to his own command and that as Minister of Justice of the Reich he, Thierack, could no longer do anything in regard to this institution. He testified further:

“It is not only my opinion but it was absolutely clear that at that time that penal institution was exclusively under the order of Himmler.”

He stated that he spoke to Hansen about the subject of Sonnenburg after this conversation with Thierack as to the change in authority, and that Hansen knew about such change. He testified further “that the prisoners were turned over to the Gestapo, I only found out here in this courtroom.”

As to what occurred in the Ministry of Justice with regard to the evacuation of Sonnenburg, the testimony of Robert Hecker is important. Hecker was the Referent in the department of justice in Department V of Berlin. Hecker testified in substance as follows: that in discussions with Hansen, the general public prosecutor for the Kammergericht in Berlin and the official under the Ministry of Justice responsible for certain matters in penal institutions, Hansen told him it might be necessary to evacuate Sonnenburg and that preliminary discussions had been carried on; that he, Hansen, had discussed the matter with the State Secretary with regard to the measures to be taken, and he had misgivings and suggested to Hecker that Hecker discuss the matter with the State Secretary. Hecker further stated that when he was the official on duty one night for the Minister of Justice, he received a telephone call from the director at Sonnenburg to the effect that a Russian break-through had taken place and asking for instructions; that he thereupon called Thierack at his home and asked for instructions and Thierack stated that the institution would be defended, and that the authorities at the institution were so informed. As the break-through did not then threaten the penitentiary, this order was not carried out. Hecker testified that later the director of the prison asked what measures he should take if the occasion should arise and that thereupon he called the general public prosecutor at the Kammergericht as to what instructions had been issued. The general public prosecutor was away at that time but the Referent who was present informed him that according to the instructions issued, the police were supposed to be informed in the case of evacuations. He testified further that Eggensperger, a Referent in Department V of the Ministry of Justice, who was on duty the night of the evacuation of Sonnenburg, had informed him the next morning that the prison had been evacuated; that Eggensperger told him that Hansen had called the night before, stating that the action of turning the prisoners not to be evacuated over to the Gestapo was under way and, when questioned as to whether it had been authorized by the Ministry of Justice, Hansen had named Klemm as the person in the Ministry who knew of and approved the transaction. He stated further that Eggensperger had made a typewritten note reporting his telephone conversation with Hansen and that he had received a copy of the note.

On cross-examination the witness Hecker testified in substance that he was himself in charge of the problem of the evacuation of prisons. When asked if he had heard that Himmler, in the middle of January, had issued an order concerning Sonnenburg, he answered that he had not and repeatedly denied any knowledge to the effect that Himmler had taken charge at Sonnenburg, and stated that he had not heard any rumor in the Ministry of Justice to the effect that Thierack had given up authority to issue orders concerning Sonnenburg. He stated that the conversation with Thierack over the telephone was at night and that Thierack had merely answered briefly his inquiry, stating that the institution would be defended. He testified that during the course of that night he repeatedly spoke to the authorities in Sonnenburg penitentiary and that he tried to contact the competent person in the Kammergericht, namely Hansen, in regard to the matter. Hecker stated that the director of the penitentiary knew that some kind of an agreement with the Gestapo existed and what he should do in the case of an evacuation, and that there were secret directives for evacuating penitentiaries and prisons. As to the note made by Eggensperger, he stated that it included a statement to the effect that the matter had been discussed between the General Public Prosecutor and the State Secretary Klemm. When asked about what happened to prisoners not evacuated, he replied that “as far as I was informed, the prisoners were shot by the Gestapo.”

The testimony of Eggensperger in connection with the evacuation of Sonnenburg is also significant. Eggensperger testified that he was an official in the penal execution department of the Ministry of Justice; that he was the official on duty for the entire Ministry of Justice to whom telephone calls were channeled on the night that Hansen reported the evacuation of Sonnenburg. Hansen called him during the night and informed him that during that night the prisoners of Sonnenburg penitentiary would be handed over to the Gestapo; that a detachment of the Gestapo had already arrived at Sonnenburg; and that the action was under way. “Hansen told me that this evacuation, or rather this transfer of the prisoners being carried out, was because the enemy constituted an immediate danger to the prison.” When asked whether this directive had been approved by anyone in the Ministry of Justice, Hansen answered, “Yes. This matter has been discussed with the State Secretary Klemm.” He testified as to the note which he made reporting the transaction, and that Hecker received a copy of this note. He stated that he had been deeply impressed by the information which he had received and asked Hecker if it was true that the State Secretary knew anything about the matter and approved it, and when asked what Hecker said, he answered:

“Hecker shrugged his shoulders. He looked at me and said, ‘Well, Hansen has--’ Well, I can only give you the sense of what he says, that Hansen has fooled this Under Secretary of State and he has got around him, or he impressed him. I think he said, ‘Hansen has convinced the Under Secretary of State to approve it.’”

He further stated that when he asked Hansen whether the minister or the Ministry were familiar with the matter, he answered in the affirmative and told him that the State Secretary knew about it and that he had put this down in his file note.

On cross-examination when asked if, as a liaison officer in Berlin in Department V, he reported repeatedly to the defendant Klemm in his capacity as State Secretary, he answered, “Yes.” When asked with what matters he was concerned, he answered, “Again and again there were current matters which had to be discussed with the State Secretary who wanted some information and some information I gave him myself. In some complicated cases I asked the officials in charge to come in.” The witness also testified that because of Klemm’s personality he, Eggensperger, was quite surprised at the action of Klemm and that was why he discussed the matter with Hecker in the morning. He testified further that it was his duty to make the file note as to the telephone conversation which he had received; that that file note was, he would say, about a half of a typewritten page. When asked if the file note included the name Klemm in connection with the fact that Hansen had referred to him, he answered, “Yes.” When asked whether Hansen spoke about an agreement, whether he used the word “agreement,” the witness answered that while he could not state the exact word used, that Hansen informed him that the matter had been discussed and approved, and stated that Hansen “reported to me the execution of a directive which had been issued.” He further stated:

“If you ask me concerning the execution, it was the report of a general public prosecutor concerning an important occurrence in a penitentiary. I would formulate it like that. It was his duty to report this matter.”

When asked if the name Klemm was mentioned by Hansen because Hansen had noticed that the witness had some doubts, the witness answered:

“I certainly didn’t ask him whether the State Secretary had a report on that matter. I certainly asked him that the minister knew about it, and therefore, it was striking that he did not refer to the minister himself but rather to Klemm.”

He further testified:

“I was the only official, apart from Hecker, in Department V, who had remained in Berlin, and in that capacity I maintained contact between the Ministry--that is the RMJ--and the evacuated divisions. If Hansen was given any instructions, then it was I who passed them on to him. That brought about the fact that I had frequent contact with him, particularly over the telephone.”

He stated further that he never heard of anybody being called to account for the action taken in connection with the massacre at Sonnenburg.

Pertaining to the question as to who had the authority to determine what prisoners were to be evacuated in case of evacuation and what prisoners were to be turned over to the Gestapo for liquidation, [NG-030, Pros. Exhibit 290] is important.

This exhibit includes the directive from the Reich Ministry of Justice, dated 5 February 1945, which is designated “Secret,” to the public prosecutor in Linz, re: preparation for an evacuation of the penal institution within the district of Oberlandesgericht Graz. This letter shows enclosures. It states as follows:

“In view of the proximity of the front line I have advised the public prosecutor in Graz to make the necessary preparations for possible evacuation of the penal institutions within his jurisdiction, and I have decided that your district shall be the reception center for these institutions. You are requested to take any steps which may be necessary for their reception, as it might [become urgent at any moment. You will also get in touch] with the public prosecution in Graz and exchange all necessary particulars with him for the settlement of questions concerning you both. For details I refer to the enclosed directives. You are requested to keep me informed of whatever steps you take.”

It also includes a directive from the Reich Ministry of Justice with the file mark “IV a 56/45 g,” dated Berlin, 12 February 1945, marked “Secret,” and also contains the stamp of the Oberlandesgericht president at Linz, “Received 9 March 1945.” It is designated, “Relieving of the Penitentiaries.” It shows enclosures as follows: “Additional copies for the public prosecutor and all independent penal institutions.” This directive states, among other things:

“Foreigners can only be set free in full agreement with the police authorities; otherwise they must be transferred to the police.”

This directive is signed “Thierack.”

The exhibit contains further a directive to the public prosecutors, Linz, and is in part as follows:

“To the: Public Prosecutors, Linz.

The authorities in charge of the independent administrative offices.

Judges in charge of the juvenile prisons in Ottenheim [and Mattighofen].

“For their knowledge and consideration. The circulars given in the Reich ordinance of the Reich Ministers of Justice, dated 12 February, have been communicated as follows: * * *.”

This directive also contains a form to be used in connection with the discharge of prisoners, designated: “Supplement to: Reich Ordinance of Reich Ministers of Justice, dated 12 February 1945,” with the file mark “IV a 56/45 g,” and has the seal of Linz showing receipt.

The exhibit also includes a directive of “Evacuation of the Judicial Executive Institutions Within the General Plan for the Evacuation of Threatened Territories in the Reich.” This is marked “Secret” and has no heading, no date, and no signature (NG-030, Pros. Ex. 290).

This states, in paragraph 1:

“The evacuation of penal institutions lying within territories threatened by enemy attack is a matter of concern for the public prosecutors of the territories to be evacuated as well as for those within the territories appointed for reception in transit. This does not apply if the evacuation can be confined to a change of locality within the Landesgericht itself. The carrying out without friction of all measures of evacuation therefore depends upon the close cooperation of the public prosecutors concerned who must get in touch with each other on all the particulars which are necessary for those measures. The individual measures for evacuation must be left as far as possible to the personal initiative of the public prosecutors concerned, as only they possess the necessary knowledge of local conditions and are able to bring about the required cooperation with local administrative and Party offices. These directives can only give an indication of what is to be done.”

From the import, a fair inference is that it was an enclosure to the original letter of Thierack.

Further along, the document states:

“NN prisoners are not to be released under any circumstances. They are to be rapidly transferred to territories which are not in danger of enemy attack according to special orders.

“Foreigners are to be released only if they had their residence in the Reich for many years, if they are especially reliable and fulfill all the requirements under (h).

“Jews, Jewish persons of mixed race of the first degree, and gypsies are not to be released.

“For Polish subjects, who are protected personnel, a release may be considered only if the requirements made under (h) apply to them after the strictest investigation. The same applies to people living in the Protectorate of Bohemia and Moravia. Poles who have been sentenced to at least 1 year internment in a disciplinary camp, may also be turned over to the police, with an interruption, if necessary, in the execution of their sentence. This can only be done if an agreement is reached with the commander of the Security Police and the SD.”

Under the heading of “Carrying-out the evacuation” is stated (NG-030, Pros. Ex. 290):

“As soon as orders for evacuation are issued, the evacuation has to be carried out in full accordance with the plans agreed upon. In many cases, it is true, prevailing conditions will necessitate deviations and improvisations. Should it become impossible, for any reasons, to bring the prisoners back to the extent agreed upon, those prisoners who are not outspokenly asocial or hostile to the State, are to be released in good time so that they will not fall into the hands of the enemy. The elements mentioned before, however, must be turned over to the police for their removal, and if this is not possible they must be rendered harmless by shooting. All traces of the extermination are to be carefully removed.”

Further documents in this exhibit, issued at Linz, show that by agreement and orders of the defense commissioner, orders were issued by the prosecutor at Linz which appear to implement the preceding document. On 14 April 1945 the chief public prosecutor at Linz made an official report to the Reich Ministry of Justice showing steps which he had taken.

The significant directives of the Minister of Justice above quoted were issued shortly after the incident at Sonnenburg and concerned the disposition of prisoners in the penitentiaries of the Reich in areas threatened by the Allied advance. It is also significant that the defendant Klemm who denies all connection with or authority over the penitentiary at Sonnenburg in late January 1945 subsequently on 11 February 1945 ordered the evacuation of the prison at Bautzen, including the discharge of certain prisoners and the transfer of those not so discharged to Waldheim; and that around Easter of 1945 he ordered the evacuation of the prison at Rothenfeld and instructed the matron as to the disposition of the prisoners.

It is the contention of the defendant that Hansen was an unreliable person who falsely used the name of the State Secretary. It is to be noted, however, that the testimony does not show that Hansen was undertaking to obtain from Eggensperger authority for some contemplated action under alleged authority from the State Secretary. Hansen called Eggensperger who was the official on duty at the Ministry of Justice to make an official report of an action which was already under way and when questioned as to his authority, he cited the approval of the State Secretary. His report was embodied in an official note as he could assume it would be. This note stated that the action taken was based upon the approval of the State Secretary. Surely Hansen, an official under the Minister of Justice, whatever his character might have been, would never have dared to use falsely an alleged authority by the State Secretary to account for the liquidation of some 800 people and then make an official report that, according to all normal procedure, would come directly into the hands of the State Secretary.

This Tribunal is asked to believe that in the middle of January, Himmler took over the operations of the penitentiary at Sonnenburg and that the first time that the State Secretary, the defendant Klemm, heard of the liquidation of those who were not evacuated was in this trial. That Himmler controlled evacuations within the area of his command was shown by evidence in this case and can be assumed from the nature of the evacuation. An evacuation is a matter of military concern since it involves interference on the roads with military operations and transport. The operational control of a penal institution is an entirely different matter. In the middle of January, Himmler was in command of an army which was having considerable difficulty and he was scarcely in a position to assume the functions and responsibilities in the Ministry of Justice as regards the operations of a penal institution. Certainly if he did so it is strange that Eggensperger, a Referent in Department V dealing with penal institutions, or Hecker, also in Department V and in charge of evacuations of penal institutions, or the director of the institution at Sonnenburg, knew nothing about this transfer of authority some two weeks after it is alleged to have been made. It was also strange that Hansen, who is alleged to have known of this transfer of authority, would call the Ministry of Justice and make an official report as to the transaction on the night when it was under way and cite as his authority for his connection therewith the State Secretary. That the defendant Klemm knew nothing about the liquidation of some 800 people in this institution until he learned it in this trial, overtaxes the credulity of this Tribunal. Even in Nazi Germany the evacuation of a penal institution and the liquidation of 800 people could hardly have escaped the attention of the Minister of Justice himself or his State Secretary charged with supervision of Department V which was competent for penal institutions. Exhibit 290, herein extensively quoted, shows that the operations of penal institutions and the disposition of the inmates remained a function of the Ministry of Justice, and it is the opinion of this Tribunal that the Ministry of Justice was, at the time of the evacuation of Sonnenburg, responsible for the turning over of the inmates to the Gestapo for liquidation, and that the defendant, Klemm, approved in substance, if not in detail, this transaction.

When Rothenberger was ousted as State Secretary because he was not brutal enough, it was Klemm who was chosen to carry on the Thierack program in closest cooperation with the heads of the Nazi conspiracy. Klemm was in the inner circle of the Nazi war criminals. He must share with his dead friend, Thierack, (with whom he had lived), and his missing friend, Bormann, the responsibility, at a high policy level, for the crimes committed in the name of justice which fill the pages of this record. We find no evidence warranting mitigation of his punishment.

Upon the evidence in this case it is the judgment of this Tribunal that the defendant, Klemm, is guilty under counts two and three of the indictment.

THE DEFENDANT ROTHENBERGER

From his own sworn statements we derive the following information concerning the defendant Rothenberger. He joined the NSDAP on 1 May 1933 “for reasons of full conviction.” From 1937 until 1942 he held the position of Gau Rechtsamtleiter. He states: “As such I also belonged to the Leadership Corps.” Parenthetically, it should be stated that the organization within the Leadership Corps to which he belonged has been declared criminal by the judgment of the first International Military Tribunal, and that membership therein with knowledge of its illegal activities is a punishable crime under C. C. Law 10. We consider the interesting fact of his membership in the Leadership Corps no further, solely because defendant Rothenberger was not charged in the indictment with membership in a criminal organization. He was a Dienstleiter in the NSDAP during 1942 and 1943. From 1934 to 1942 he was Gaufuehrer in the National Socialist Jurists’ League. In 1931 he became Landgerichtsdirektor, and in 1933 Justiz-Senator in Hamburg. From 1935 to 1942 he was president of the district court of appeals in Hamburg. In 1942 he was appointed Under Secretary in the Ministry of Justice under Thierack. He remained in that office until he left the Ministry in December 1943, after which he served as a notary in Hamburg. Thus, it is established by his own evidence that while serving as president of the district court of appeals he was also actively engaged as a Party official. Other evidence discloses the wide extent to which the interests and demands of the Ministry of Justice, the Party, the Gau Leadership, the SS, the SD, and the Gestapo affected his conduct in matters pertaining to the administration of justice. Rothenberger took over the Gau Leadership of the National Socialist Lawyers’ League at the request of Gauleiter Kauffmann, who was the representative of German sovereignty in the Gau and who was, for all intents and purposes, a local dictator. As Gaufuehrer during the period following the seizure of power, Rothenberger had ample opportunity to learn of the corruption which permeated the administration of justice. He testified:

“It has been emphasized here time and again how during the first period, after the revolution of 1933, every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB, the National Socialist Jurists’ League, tried to gain influence with the Gauleiter or the Reichsstatthalter in order to act against the administration of justice.”

Concerning the dual capacity in which he served, he said:

“On account of the identity, of course, between president of the district court of appeals and Gaufuehrer, I was envied by all other district courts of appeal because they continually had to struggle against the Party while I was saved this struggle.”

In August 1939, on the eve of war, Rothenberger was in conference with officials of the SS and expressed to them the wish to be able to fall back on the information apparatus of the SD, and offered to furnish to the SD copies of “such sentences as are significant on account of their importance for the carrying-out of the National Socialist ideas in the field of the administration of justice.” Rothenberger testified that during the first few years after the seizure of power, there was the usual system of SD informers in Hamburg. The unsatisfactory personnel in the SD was removed by Reichsstatthalter Kauffmann, and the defendant Rothenberger nominated in their place individuals who, he said, “were judges and who I knew would never submit reports which were against the administration of justice.” He states also:

“In the meantime, the directive had been sent down from the Reich Ministry of Justice to the effect that the SD should be considered and used as a source of information of the State by agencies of the administration of justice.”

While he was president of the district court of appeals at Hamburg, and during the war, this ardent advocate of judicial independence was not adverse to acting as the agent of Gauleiter Kauffmann. On 19 September 1939 Kauffmann, as Reichsstatthalter and defense commissioner, issued an order as follows:

“The president of the Hanseatic Court of Appeals, Senator Dr. Rothenberger, is acting on my order and is entitled to demand information in matters concerning the special courts and to inspect documents of every kind. All administrative offices as well as the offices of the NSDAP are requested to assist him in his work.”

On 26 September 1939 Rothenberger, as president of the Hanseatic Court of Appeals, notified the Prosecutor General of Kauffmann’s order and requested that a copy of the indictment “in all politically important cases or cases which are of special interest to the public should be sent to him.” In a report to Schlegelberger of 11 May 1942 he spoke of the “crushing effect” of the Fuehrer’s speech of 26 April 1942 and of the feeling of consequent insecurity on the part of the judges, and said:

“I have therefore assumed responsibility for each verdict which the judges discuss with me before passing it.”

In the same report he states that on 6 May 1942 he made arrangements with all senior police officers, senior SS, senior officers of the criminal police, of the Secret State Police, and of the SD “to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence).”

In June 1942 Rothenberger reported to the defendant Schlegelberger that he had made similar arrangements in Bremen with the Kreisleiter, president of the police, leader of the Secret State Police (Gestapo), and the leader of the SD. He reported to Schlegelberger:

“In view of the present situation, I am intensifying the internal direction and control of jurisdiction which I have considered to be my main task since 1933.”

On 7 May 1942 Rothenberger issued an order in which he stated his intention to inform himself prior to the proceedings on cases which are of political significance “or which involve the possibility of a certain conflict between formal law and the instinctive reactions of the people or National Socialist ideology.” He directed that reports be submitted to him which must be in sufficient detail in order, as he said, “to enable my deputy to judge the necessity of my intervention.”

By reference to his own words we have already set forth Rothenberger’s expressed convictions as to the duty of a judge as the “vassal” of the Fuehrer to decide cases as the Fuehrer would decide. The conclusion which we are compelled to draw from a great mass of evidence is not that Rothenberger objected to the exertion of influence upon the courts by Hitler, the Party leaders, or the Gestapo, but that he wished that influence to be channeled through him personally rather than directed in a more public way at each individual judge. On the one hand he established liaison with the Party officials and the police, and on the other he organized the system of guidance of the judges who were his subordinates in the Hamburg area. He testifies that he considered the system of conferences between judges and prosecutors before trial, during trial and sometimes after trial, but before the consultation of the judges, to be wrong, and states that he considered it more correct, in view of the situation, that such a discussion should take place a long time before the trial and not between individual judges and the prosecutor, “but on a higher level, namely, between the chiefs of the offices, so that there would be no possibility to exert an influence on the individual judge in any way.” Concerning his dictatorial attitude toward the other judges, Rothenberger testified: “Of course, guidance is guidance, and absolute and complete independence of the judge is possible only in normal conditions of peace, and we did not have these conditions after the Hitler speech.”

The guidance system instituted by the defendant Rothenberger was not limited to conferences concerning pending cases of political importance before trial. We are convinced from the evidence that he used his influence with the subordinate judges in his district to protect Party members who had been charged or convicted of crime, that on occasions he severely criticized judges for decisions rendered against Party officials, and on at least one occasion was instrumental in having a judge removed from his position because he had insisted upon proceeding with a criminal case against a Party official.

As further illustration of the character of control which was exercised by Rothenberger over the other judges in his district, reference is made to his letter of 7 May 1942 addressed to the judges in Hamburg and Bremen in which he announced that a conference would be held for the discussion of cases fixed for the following week. We quote (NG-389, Pros. Ex. 76):

“A few cues to matters which will come up will be given, file numbers quoted, and comments made in a few key words.”

He especially required of the judges that they report to him concerning penal cases against Poles, Jews, and other foreigners, and “penal and civil cases in which persons are involved who are State or Party officials, or NSDAP functionaries, or who hold some other eminent position in public life.”

One will seek in vain for any simple, frank, or direct statement by Rothenberger relative to any of the abuses of the Nazi system. His real attitude can only be extracted from the ambiguities of his evasive language. We quote from the record of the report made by Rothenberger to the judges on 27 January 1942 (NG-1106, Pros. Ex. 462):

“With regard to the matter it had to be considered whether or not any material claims made by the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve.”

In an early report to the Hamburg judges, Rothenberger discussed the opinion of the Ministry concerning the legal treatment of Jews. He stated that the fact that a debtor in a civil case is a Jew should as a rule be a reason for arresting him; that Jews may be heard as witnesses but extreme caution is to be exercised in weighing their testimony. He requested that no verdict should be passed in Hamburg when a condemnation was exclusively based on the testimony of a Jew, and that the judges be advised accordingly.

On 21 April 1943, as the result of a long period of inter-departmental discussions, a conference of the state secretaries was held. Rothenberger was at the time State Secretary in the Ministry of Justice and participated in the conference concerning the limitation of legal rights of Jews. Kaltenbrunner also participated. At this meeting consideration was given to drafts of a decree which had long been under discussion. Modifications were agreed upon and the result was the promulgation of the infamous 13th regulation under the Reich Citizenship Law which provided that criminal actions committed by Jews shall be punished by the police and that after the death of a Jew his property shall be confiscated.

We next consider Rothenberger’s activity concerning the deprivation of the rights of Jews in civil litigation. In the report of 5 January 1942 the defendant wrote:

“The lower courts do not grant to Jews the right to participate in court proceedings in forma pauperis. The district court suspended such a decision in one case. The refusal to grant this right of participation in court proceedings in forma pauperis is in accordance with today’s legal thinking. But since a direct legal basis is missing, the refusal is unsuitable. We therefore think it urgently necessary that a legal regulation or order is given on the basis of which the rights of a pauper can be denied to a Jew.” (Pros. Ex. 373, NG-392, document book 5-D, p. 331.)

Notwithstanding his statement of 5 January to the effect that it would be unsuitable to deprive Jews of this right without a legal regulation, we find that on 27 January 1942 the report of a conference shows the following (NG-1106, Pros. Ex. 462):

“The senator reported that the question of the poor law concerning Jews has gained significance again. With the district court there were two cases pending. He requested that contacts with the district court and with the local court judges be made at once so that a uniform line is followed to the effect that the Jews be denied the benefits of the poor law. It would be entirely out of the question that Jews be granted the benefits of the poor law subsequent to the present development. This would apply especially to Jews who had been evacuated, but in his opinion also to those who had not been evacuated.”

About this time a report concerning the claim of the Jewish plaintiff, Israel Prenzlau, came to the attention of the defendant Rothenberger. The Jew sought the right to proceed in forma pauperis. The report on the case contains the following statement by a Gau economic advisor, which is couched in the usual Nazi language of sinister ambiguity (NG-589, Pros. Ex. 372):

“In reply to your inquiry I state my point of view in detail.

“In a lawsuit between a German national and a Jew, I consider the settling of a dispute by compromise settlement in court inadmissible for political reasons. The German national, as party in the lawsuit, pursuant to his clearly defined conceptions of justice derived from his political schooling since 1933, can expect that the court will decide the case by a verdict, i.e., take a conclusive attitude toward the dispute in hand. What is expected is a decision which was arrived at not from purely legal points of view, as result of a legal train of thought, but which is an expression to the way in which National Socialist demands concerning the Jewish question are realized by German administrators of justice. Evading this decision by a compromise might mean encroaching upon the rights of a fellow citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people. I therefore consider it inadmissible.”

The report shows that upon receipt of the opinion of the Gau economic advisor, “the defendants thereupon refused settlement with the plaintiff and now deny that they owe him anything.” The court which had jurisdiction of the Prenzlau case granted to the plaintiff the right to proceed in forma pauperis. On 13 February 1942 having before him the report of the Gau economic advisor, the defendant Rothenberger wrote to the president of the district court, Hamburg, as follows:

“I do not intend to approach the economic advisor of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim, the son of the plaintiff, emigrated in the year 1938 and his property, therefore, surely being confiscated. I fail to understand why the court granted forma pauperis rights to the assignee, a Jew, without first consulting the authority for sequestration of property.”

A note dated 24 February shows that Rothenberger had issued a directive to two judges of his district to the effect that every case involving the claim of the right of Jews to proceed in forma pauperis must first be submitted to him. On 5 March 1942 a directive was issued from the Reich Ministry of Justice in substantial conformity with the recommendation of the defendant Rothenberger. It provided:

“In future the granting of rights of forma pauperis to Jews can only come into consideration if the carrying-out of the lawsuit is in the common interest, viz, in disputes concerning family rights (divorce in cases of mixed marriages, establishing the descent).”

After the enactment of the foregoing ordinance, and on 7 May 1942, a courageous president of the district court at Hamburg wrote to Rothenberger stating that in his opinion the right of Jews to proceed in forma pauperis would have to be granted. He added:

“I am convinced that it is in the common interest that an Aryan cannot evade without further ado a just claim against him merely for the reason that the court denies the forma pauperis right to Jews.”

Notwithstanding this protest, and on 22 May 1942, the defendant Rothenberger, in reliance upon the ordinance which was based upon his recommendation, wrote to the president of the district court of Hamburg that he considered it “adequate that the forma pauperis right granted to the plaintiff Prenzlau be canceled. Please have this taken into consideration by the court in a form which you deem appropriate.”

The foregoing narrative takes on additional significance when summarized. First, Rothenberger recommends to the Minister of Justice that it is desirable to deny to Jews the right to proceed in forma pauperis, but that such denial is inadmissible because there is no law to justify it. He recommends the passage of such a law. About 3 weeks later, no law having been passed, he recommends that the judges take a uniform line depriving the Jew of the right to proceed in forma pauperis. A specific case now arises in which the right was granted to a Jew, and the defendant Rothenberger receives veiled suggestions from the Gau economic advisor to the effect that defendants should not be allowed to compromise a case brought against them by a Jewish plaintiff because the court should decide against the Jew in any event on political grounds. Concerning this suggestion Rothenberger ventures no comment. The defendant in the Prenzlau case takes his cue from the advice of the economic advisor and denies liability; the court grants to the Jew the right to proceed in forma pauperis. Rothenberger criticizes this action, although the lower court had acted in strict conformity with the law. In March the awaited law excluding the Jew from the benefit of the poor-law is passed. In May, Rothenberger overrules the protest of a judge and directs the canceling of the order which was made by the lower court. This dictation by the defendant Rothenberger to other courts and judges of his district was not done in the course of a legal appeal from the lower court to the court over which he presided. It was done after the manner of a dictator directing an administrative inferior how to proceed.

Rothenberger not only participated in securing the enactment of a discriminatory law against Jews; he enforced it when enacted and, in the meantime, before its enactment, upon his own initiative he acted without authority of any law in denying to Jewish paupers the aid of the courts.

It is true that the denial to Jews of the right to proceed in civil litigation without advancement of costs appears to be a small matter compared to the extermination of Jews by the millions under other procedures. It is nevertheless a part of the government-organized plan for the persecution of the Jews, not only by murder and imprisonment but by depriving them of the means of livelihood and of equal rights in the courts of law.

The defendant Rothenberger testified that various judges reported to him “that they had heard rumors to the effect that everything was not quite all right in the concentration camps” and that they wished to inspect one. Accordingly, Rothenberger and the other judges visited the concentration camp at Neuengamme. He testified that they inquired about food conditions, accommodations, and the methods of work, and spoke to some inmates, and he asserts that they did not discover any abuses. This was in 1941. Again in 1942, according to his own testimony, the defendant visited Mauthausen concentration camp in company with Kaltenbrunner, who was later in charge of all concentration camps in Germany and has since suffered death by hanging. At Mauthausen concentration camp the defendant Rothenberger again inspected installations, conferred with inmates, and inquired as to the cause of detention of the inmates with whom he had talked. He states that from his spot checks he “could not find out that there was any case of a sentence being ‘corrected.’” Upon inquiry as to what the defendant meant by the “correction of sentences,” he answered:

“By correcting of a sentence we mean that when the court had pronounced a sentence, for example, had condemned somebody to be imprisoned for a term of 5 years--if the police now, after these 5 years had been served, if the police arrested this man and put him into a concentration camp--this is only an example of a correction. Or even if, and this is clearer, it happened that a person was acquitted by a court, and in spite of that the police put this man into a concentration camp. These are examples of correction of sentences.”

The defendant stated that he did not observe and could not discover any abuse at Mauthausen. In this connection the testimony of defense witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger on his visit to Mauthausen concentration camp. He testified that rumors were current in Germany to the effect that conditions were not what they should be in the concentration camps. Hartmann testifies that they went about the camp freely and observed everything closely. On cross-examination by the Tribunal, Hartmann testified as follows:[670]

“Q. * * * When you visited Mauthausen concentration camp, you knew, did you not, that the courts in the Ministry of Justice never sentenced convicted criminals to a concentration camp? * * *

“A. Yes.

“Q. Did Dr. Rothenberger know it?

“A. Yes.

“Q. Then you knew that these ten people that he talked with, and the one or two that you talked with, were not there by reason of any action on the part of the Ministry of Justice or the court, but were there only by reason of action by the police or by the Party, did you not?

“A. Yes. That was preventive custody undertaken by the police.”

The witness Hartmann testified further:

“Q. And they had already served their sentences as imposed by court before they were taken into this custody of the police, is that right?

“A. Yes. That is how I see it.

“Q. And at that time, these twelve people who had served their sentences and had been taken over by the police--that met with the approval of the defendant Dr. Rothenberger, as I understand you?

“A. Well [we] did not approve the concentration camp as an institution altogether, but first of all we wanted to achieve this--that it would no longer happen that a defendant was acquitted and then after acquittal the Gestapo arrested (him) in front of the courtroom. * * * In those cases, too, he did not approve the fact that these people were in a concentration camp because we were of the opinion that only the administration of justice should decide these questions of criminal law and nobody else. But according to the power conditions within the State, as they happened to exist, our interest was first of all to remove the worst evils.”

Upon redirect examination by counsel for the defendant Rothenberger, defense witness Hartmann testified as follows:

“Q. Therefore, sometimes was the situation for you and Dr. Rothenberger like this: that apparently you affirmed something with a smiling face, something which as a human being you had to disapprove of and reject?”

To this question the witness answered that Dr. Rothenberger “for reasons of power politics” had to accept the conditions though he did not approve them. After his inspection of Mauthausen concentration camp, Dr. Rothenberger took no action whatsoever with regard to the information which he had received.

It follows that the defendant Rothenberger, contrary to his sworn testimony, must have known that the inmates of the Mauthausen concentration camp were there by reason of the “correction of sentences” by the police, for the inmates were in the camp either without trial, or after acquittal, or after the expiration of their term of imprisonment.

It must be borne in mind that this inspection by the defendant Rothenberger was made at Mauthausen concentration camp, an institution which will go down in history as a human slaughter house and was made in company with the man who became the chief butcher.

We are compelled to conclude that Rothenberger was not candid in his testimony and that in denying knowledge of the institution of protective custody in its relationship with the concentration camps he classified himself as either a dupe or a knave. Nor can we believe that his trips to the camps were merely for pleasure or for general education. He also advised other judges to make like investigations. We concede that the concentration camps were not under the direct jurisdiction of the Reich Minister of Justice, but are unable to believe that an Under Secretary in the Ministry, who makes an official tour of inspection, is so feeble a person that he could not even raise his voice against the evil of which he certainly knew.

If the defendant Rothenberger disapproved of protective custody and the consequent employment of concentration camps, it must be because of a change in heart concerning which we have had no evidence. On 13 June 1941 Rothenberger wrote Secretary Freisler suggesting that many small cases were being tried by the Special Court and that this was not compatible with the importance of the court. He referred to minor offenses which came under the public enemy decree, “in which, however, protective custody will be requested by virtue of the offender’s past life and his character.” Again, he speaks of cases in which motion is made for the offender to be taken into protective custody.

On 5 January 1942 the defendant Rothenberger addressed a report on the general situation in the Hamburg area to the Reich Minister of Justice. From this document his attitude concerning the institution of protective custody may be ascertained. Concerning the “transfer to the public prosecutors of the right to decide about the duration of protective custody,” he said:

“In a certain connection with this problem is the transfer to the public prosecutor’s office of the right to decide about the duration of the protective custody. I regret that it is obvious that the courts are more cautious and reserved than they were previously in regard to the order of protective custody, because the duration of the protective custody is not any more within their control. This attitude of the courts cannot be approved, but it is psychologically understandable; I am afraid, that the reform effected the opposite of the intended more vigorous practice in regard to protective custody.”

In February 1939 the defendant Rothenberger and the Chief Public Prosecutor reported to the Hamburg judges upon a conference which had been held in Berlin. The record of the joint report in which Rothenberger participated is as follows (NG-629, Pros. Ex. 28):

“A report was then made on the discussions on protective custody. The ministry is of the opinion--also held here--that no objection can be raised to protective custody as long as it is purely protective, but that corrective measures, such as became known in certain cases, must not become a habit.”

In conclusion, the evidence discloses a personality full of complexities, contradictions, and inner conflict. He was kind to many half-Jews, and occasionally publicly aided them, yet he was instrumental in denying them the rights to which every litigant is entitled. He fulminated publicly against the “Schwarze Korps” for attacking the courts, yet he reproached judges for administering justice against Party officials and unquestionably used his influence toward achieving discriminatory action favorable to high Party officials and unfavorable to Poles and Jews. He wrote learnedly in favor of an independent judiciary, yet he ruled the judges of Hamburg with an iron hand. He protested vehemently against the practice of Party officials and Gestapo officers who interfered with the judges in pending cases, but he made arrangements with the Gestapo, the SS, and the SD whereby they were to come to him with their political affairs and then he instituted “preview and review” of sentences with the judges who were his inferiors. He thought concentration camps wrong but concluded that they were not objectionable if third degree methods did not become a habit.

Rothenberger was not happy with his work in Berlin. In his farewell speech on leaving Hamburg, he exuberantly exclaimed that he had been “an uncrowned king” in Hamburg, but he would have us believe that he received a crown of thorns in Berlin. Soon he learned of the utter brutality of the Nazi system and the cynical wickedness of Thierack and Himmler, whom he considered his personal enemies. He could not stomach what he saw, and they could not stomach him. The evidence satisfies us that Rothenberger was deceived and abused by his superiors; that evidence was “framed” against him; and that he was ultimately removed, in part at least, because he was not sufficiently brutal to satisfy the demands of the hour. He was retired to the apparently quiet life of a notary in Hamburg, but even then we find that he was receiving some pay as an Under Secretary and was assisting Gauleiter Kauffmann in political matters in that city.

The defendant Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and notwithstanding his many protestations to the contrary he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system. The defendant Rothenberger is guilty under counts two and three of the indictment.

THE DEFENDANT LAUTZ

The defendant Lautz from 20 September 1939 until the end of the war served as Chief Public Prosecutor at the People’s Court in Berlin. He joined the NSDAP in May 1933. During the period of his service the “higher officials” under his supervision increased from 25 to about 70. The office originally consisted of four departments which were later increased to five to correspond with the number of senates of the People’s Court. After the enlargement of the department there were five public prosecutors and one senior public prosecutor in each department. The defendants Barnickel and Rothaug were among the senior public prosecutors under the general supervision of the defendant Lautz. The crimes with which his office dealt were those over which the People’s Court had jurisdiction. Of particular interest here were the prosecutions for undermining the German defensive strength, high treason and treason, cases of attempted escape from the Reich by Poles and other foreigners, and NN cases.

A great number of prosecutions were brought under the decree of 17 August 1938 which provides that “Whoever * * * openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms” should be punished by death. This was the law which effectively destroyed the right of free speech in Germany. The prosecutor’s office was required to handle approximately 1,500 cases a month involving charges of this type. Under supervision of the defendant Lautz all of these charges had to be examined and assigned for trial to the People’s Court in serious cases, or to other courts. In the cases which were assigned to the People’s Court for trial “there was always the possibility that the death sentence would be pronounced.”

The defendant Lautz instructed his subordinates that only those cases were to be retained for trial before the People’s Court in which it was “possible to assume full responsibility if the People’s Court senate pronounces the death sentence.”

Lautz did not shirk responsibility for the acts of his deputies. He testified that the signature of his deputy “meant, of course, that I assumed responsibility for that matter.”

In connection with the work of his department it was the duty of the defendant Lautz to sign all indictments, all suspensions of proceedings, and all reports to his superior, the Minister of Justice. This work assumed such proportions that it became necessary to delegate parts thereof to his subordinates, but the defendant Lautz required that important matters be reported directly to him. In partial explanation of his activities and motives in connection with his enforcement of the law against undermining the military efficiency of the nation, Lautz stated:

“Just as I think it is a good thing that no one today can claim that this war was lost only through treason, I must also say that I regret that because of this war and through these death sentences many people, who were otherwise all right, had to lose their lives.”

As an illustration of the type of case which was prosecuted under this law, we cite the case of the defendant who said to a woman: “Don’t you know that a woman who takes on work sends another German soldier to his death?” This offense was described by Lautz and Rothaug as a serious case of undermining the military efficiency of the nation. The office of the Chief Public Prosecutor of the People’s Court was vested with a wide discretion in connection with the assignment of cases to the various courts for trial. It will be recalled that the malicious acts law of 20 December 1934 provided for punishment of persons who made false or treacherous statements “fit to injure the welfare or prestige of the government and of the Reich”, etc. Under this law moderate punishments by imprisonment were authorized, whereas, under the law against undermining the defensive strength of the nation, the death penalty was mandatory. If the prosecutor sent the case for trial to the People’s Court on the charge of undermining, instead of sending it to a lower court for trial under the malicious acts law, he determined for all practical purposes the character of the punishment to be inflicted, and yet the evidence satisfies us that there was no rule by which the cases were classified and that the fate of the victims depended merely on the opinion of the prosecutor as to the seriousness of the words spoken.

The connection of the defendant Lautz with the illegal Nacht und Nebel procedure is established beyond question. The People’s Court acquired jurisdiction of NN cases under the decree of the Reich Minister of Justice of 14 October 1942. Lautz estimated that the total number of NN cases examined by his department was approximately one thousand, of which about two hundred were assigned to the People’s Court for trial, but he added that each case could concern several defendants. No good purpose will be served by a second review of the testimony concerning the Nacht und Nebel decree. In harmony with the decision in the case of the United States [et al.] vs. Goering, et al., this Tribunal finds that the secret procedure which was instituted and enforced through the Ministry of Justice constituted a war crime and a crime against humanity. The Chief Public Prosecutor of the People’s Court zealously enforced the provisions of this decree, and his conduct in so doing violated the laws and customs of war and the provisions of C. C. Law 10.

Treason Cases Involving Border Crossings by Poles

Lautz estimated that from 150 to 200 persons were prosecuted for leaving their places of work and attempting to escape from Germany by crossing the border into Switzerland. These cases were prosecuted under the provisions of penal code concerning treason and high treason.

On 24 February 1942 an indictment against the Pole Ledwon was filed by Parrisius as deputy for the defendant Lautz. The indictment was marked “Secret Treason Case”, and bore the stamp of the Chief Public Prosecutor at the People’s Court. A letter signed by Lautz bearing the same date was addressed to the presidents of the Second Senate of the People’s Court and advises them that he is sending to the court the indictment in the case Ledwon. The indictment alleges that on 28 July 1941 the accused left his place of work in Bavaria and attempted to escape by crossing the Reich border, and that he was stopped by a customs official whom he struck with his fist while evading the arrest. The indictment states that the reason given by the defendant Ledwon for his attempt to escape from Germany “does not deserve credence; it may rather be assumed that he intended to join the Polish Legion organized on the side of the hostile powers”. The indictment states that the defendant knew that the aim of the Polish Legion was to restore a Polish state. On the basis of the foregoing specific allegations, the indictment charges that the defendant prepared within Germany “(1) the highly treasonable enterprise to separate from the Reich by force a territory belonging to the Reich; (2) to have aided and abetted the enemy inside Germany during a war against the Reich, and thus, as a Pole, not to have behaved according to the German laws and to the directives of the German authorities; and (3) to have committed a violent attempt on a German official. * * *.” The indictment was brought under the provisions of sections 80, 83, and 91b of the penal code, and under the provisions of the law against Poles and Jews. Section 80 provides for the imposition of the death penalty upon anyone attempting by violence or threat of violence to detach from the Reich territory belonging to the Reich. Section 83 provides for the punishment of any person who solicits and incites an undertaking of high treason. Section 91b provides for imprisonment or death for any person who undertakes acts in favor of the enemy powers or causes a detriment against the armed forces of the Reich. On 10 August 1942 the case was tried. The court found the following facts: defendant was a Pole who lived in Poland on 1 September 1939. (See: Law against Poles and Jews.) After the Polish campaign the defendant reported “voluntarily” for work in Germany and then tried to leave the country. The court states further that “the prosecution charges the defendant with the intention of going to Switzerland in order to join the Polish Legion there.” It adds that the Polish Legion was interned in Switzerland and that many Poles had been caught at the frontier, some of whom could be convicted of planning to join the Polish Legion in Switzerland. The court, with unwanted candor, states that “the trial did not show any concrete evidence that the defendant * * * had any knowledge of a Polish Legion in Switzerland.” It held that due to lack of evidence “the defendant could not be convicted of the crime of preparation for treason and of treasonably aiding the enemy.” The opinion of the People’s Court continues (NG-355, Pros. Ex. 128):

“The defendant is, however, guilty according to the result of the trial, of an offense under the ordinance relating to the administration of penal law for Poles, of 4 December 1941. The general conditions of this ordinance are fulfilled, as the defendant is, by origin, education, and sentiment, a racial Pole and was on 1 September 1939 resident in the former Polish State. In leaving his place of work as an agricultural laborer, of his own accord, at the end of July, i. e., during the harvest, he disturbed the orderly procedure of the harvest work of his employer to the detriment of the harvest. His action moreover was detrimental to the whole of the German people, for in leaving his place of work in order to go abroad he deprived the German people forever of his labor. Germany, in order to cover her war needs and to ensure food supplies for the front as well as for home, however, needs all persons employed, including foreigners. Every worker who by escape abroad deprives the German war economy for good of his labor, reduces the number of badly needed manpower, and thus endangers the interest of the German people.”

The court held that it was irrelevant whether the Pole knocked the customs official down, because in any event he used force sufficient to prevent his arrest at the time. It observed that under the law against Poles and Jews “the only possible penalty is the death sentence, unless a less serious case can be made out in the defendant’s favor. The senate was not able to recognize such case.”

The opinion concludes as follows:

“But by using violence against the customs officer who was going to arrest him and thus resisting the legal German authority, he has proved himself such a fanatical and violent Pole that he has forfeited any right for leniency. In view of the heavy responsibility of the Polish nation for the bloodshed caused during the weeks of August and September 1939, it is the duty of every member of this nation to obey willingly the rules of the German authorities. A Pole who, on the contrary, uses violence against a German official can only be punished sufficiently by the highest degree of punishment. Accordingly, this has been imposed on the defendant.”

The Pole was sentenced to death.

We are not here to retry the case. We may, therefore, ignore the ridiculous charge that the defendant desired to join an interned legion and the allegation that he came to the Reich “voluntarily” after the invasion of Poland. We have already discussed the essential evil in the practice of prosecutors whereby they charged that Poles were guilty of high treason by attempting to separate from the Reich territory which had never been legally annexed to the Reich. In the Ledwon case the sinister subtlety of the Nazi procedure is laid bare. If the case had been brought only under the law against Poles and Jews, the People’s Court would not have had jurisdiction, so the defendant was charged with high treason for attempting to separate from the Reich, territory which did not belong to it. The proof of high treason failed. There remained only the charge that in attempting to escape from Germany and from forced labor there, the defendant assaulted a customs officer with his fist and that what he did was done as a Pole in violation of the law against Poles and Jews. It was under that discriminatory law that Ledwon was sentenced to death and executed. The defendant Lautz is guilty of participating in the national program of racial extermination of Poles by means of the perversion of the law of high treason.

In a similar case, upon an indictment signed by Parrisius and filed by authority of the defendant Lautz, the People’s Court sentenced three Poles to death upon a charge of preparation of high treason “because they, as Poles, harmed the welfare of the German people, and because in a treasonable way they helped the enemy and also prepared for high treason.” The specific facts found by the court were that the defendant Mazur and others attempted to cross the border into Switzerland for the purpose of joining the Polish Legion. By such conduct and by depriving the German Reich of the benefit of their labor, it was held that the efforts of the defendants aimed “at forcibly detaching the eastern regions incorporated in the Reich * * * from the German Reich.” The opinion contains an illuminating passage concerning treason committed by attempting to join an interned legion. We quote (NG-352, Pros. Ex. 129):

“After the defeat of France in the present war, as is known to the senate (court) from other proceedings, detachments of the Polish Legion crossed the border into Switzerland and were interned in camps. The legion continues under the command of Polish officers and is kept in readiness for military action against the Reich on the side of the enemy in the event of German troops invading Switzerland.”

The evidence of intent to join the interned legion is paltry, but as before we will not attempt to retry the case on the facts. The court held that according to the law against Poles, the death sentence must be imposed. We quote:

“They wanted to deprive the German nation forever of their labor. Thus, they have damaged the welfare of the German nation. This is an offense under the ordinance on the administration of penal law against Poles. * * *

“The precept of the Regulation of Penal law against Poles applies to the defendant’s offense, although it was committed before the regulation came into force for, according to article I of the Supplementary Regulation of 31 January 1942, the Regulation of Penal Law against Poles can be applied to offenses committed before the regulation was in force with the approval of the prosecutor. This approval has been given by the Reich Chief Prosecutor.”

In another, the Kalicki case, the record of which is marked “Secret,” three Poles were sentenced to death for preparation of high treason upon the same grounds as in the previous case. The court held that “the sentence to be pronounced has to be based on the ordinance concerning the administration of penal law against Poles, since this ordinance provides the heaviest penalty of all laws applicable to the case.” The evidence does not disclose that the defendant Lautz personally signed the indictment, but it was certainly filed under his authority. The question of clemency in the Kalicki case was presented to the defendant Rothenberger. On 28 July 1943 he wrote:

“ * * * I have decided upon authorization by the Fuehrer not to exercise my right of pardon but to let justice take its course.”

The defendant Lautz filed an indictment against the Pole, Bratek. The specific charge was leaving his work in Germany and attempting to cross the border into Switzerland to join the Polish Legion. The general charge was the treasonable attempt to separate from the Reich an area belonging to the Reich and the violation of the law against Poles and Jews. The court said (NG-595, Pros. Ex. 136):

“At the same time he has made himself guilty of a crime according to Article I, paragraph 3, last half sentence, of the Ordinance on the Administration of Penal Law Against Poles, issued 4 December 1941. Because, being a Pole, he has intentionally inflicted damage to the interests of the German people by malevolently leaving his important agricultural job, above all during harvest time, in September 1942, and by planning to rob the German people forever of his own labor by escaping abroad. * * *

“According to article 73, Penal Code, the penalty must be based on the ordinance concerning the administration of penal law against Poles which loc. cit. demands exclusively the death penalty as a rule, this being the most severe penal law applicable here.”

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