VI. Final Regulations (part 4 of 4)
A secret communication by the defendant Lautz to the Reich Minister of Justice is of especial interest. The proposal under consideration as for the prosecution of certain Poles upon the charge of high treason on account of acts done in Poland before the war. In his discussion Lautz quotes from Himmler, the Foreign Office, and the president of the People’s Court. The facts on the basis of which opinions were expressed may be illustrated thus: Within Poland and before the war, a Pole institutes proceedings against a Polish citizen of German blood, charging the racial German with fifth column activities directed against Poland. During the war the Pole who instituted the prosecution against the racial German is captured. The question was: Can the Pole be prosecuted in a German court on a charge of high treason against the Reich, basing the charge on the fact that he had prosecuted the racial German in Poland? The German penal statute involved was section 91, paragraph 2, which provides that “whoever with the intention of causing a serious detriment to a national of the Reich, enters into relations as described in paragraph I shall be punished,” in especially serious cases by death. Himmler, as quoted by Lautz, discusses the basis for punishment by German courts of “an offender who has caused racial Germans to be punished or otherwise prosecuted by Polish authorities.” Himmler asserts that foreign police used methods against racial Germans which were contrary to international law and “the laws of minorities” and that such offenders deserve heavy punishment, but he also states that as far as racial Germans are concerned, section 91, paragraph 2, of the German Penal Code “is not directly applicable, as racial Germans, according to formal national laws were not German, but Polish, citizens. I can only express my opinion in the form of a suggestion, that in case of the betrayal of a racial German by the foreign Poles * * * section 91, paragraph 2, of the German Penal Code is to be applied * * *.” (Citing decisions of the People’s Court.) Himmler directly states that the provisions of section 91, paragraph 2, are “nonapplicable”. We emphasize the fact that the question under discussion related to the proposed prosecution of a Pole for acts committed before the war while Poland was in the exercise of its sovereign powers throughout its territory. The question could not well have related to acts done after Poland had been overrun and part of it purportedly annexed, for, at that time Polish authorities would have been in no position to prosecute racial Germans. Furthermore, in discussing the problem, Lautz mentions a case against the Pole Golek which had recently come into his hands on preliminary proceedings. He states that Golek in the years 1938 and 1939 in Poland had turned over to the police authorities a racial German of Polish nationality and had accused him of high treason committed in favor of the Reich.
Himmler, as quoted by Lautz, expressed the view that considerations of foreign policy would be opposed to the enactment of any German statute under which a Pole could be prosecuted by German authorities on account of acts of the kind indicated, but he added:
“I see here a task for the courts, an opportunity to fill a gap in the law, a gap caused by political reasons of state by creating a law in the appropriate cases.”
Himmler quoted from an opinion by the People’s Court in which it was said that the National Socialist State “feels it incumbent on itself, even in case of a conspiracy by a foreign government against one single Reich citizen, to give the threatened person its protection in accordance with penal law as far as this is possible from the home country.” It will be observed that this quotation relates to the protection of Reich citizens, not Polish citizens, who are only racial Germans. Himmler continued, however:
“The Reich made no secret of the fact that with regard to the protection of Germans, it does not only claim the right to protect Reich Germans but also racial Germans living on its borders.”
The defendant Lautz frankly expressed the view that the German statute defining treason did not cover the case under discussion. In this he was clearly correct. The German statute on treason had been extended to provide that “whoever with the intention of causing * * * any other serious detriment to the Reich, establishes relations with a foreign government, shall be punished by death.” This section was not applicable to the case under discussion because the charge to be preferred against the Pole was one of treason against an individual and not against the Reich. By the law of 24 April 1934 the concept of treason was also expanded to cover certain cases of causing serious detriment to a German national, but that law also was inapplicable to the case under discussion because the serious detriment had not been caused to a German national but only to a racial German. Insofar as the German statutes required punishment of acts done with the intention of causing serious detriment to a national of the Reich, they extended the concept of treason in a manner unknown to the criminal law of any civilized state, and this law was made applicable in occupied and purportedly annexed territory. Notwithstanding the extremes to which the German laws of treason were extended, the defendant Lautz stated that he agreed with the Reich Leader SS and the president of the People’s Court that a direct application of the German law of treason protects only German nationals and does not apply to racial Germans. He then stated:
“Furthermore, I concur with the conception that the general political development which has meanwhile come about, particularly during the last years, which has enabled the Reich largely to protect its racial members of foreign nationality to a greater extent than it has been possible hitherto, must be borne in mind in this particular instance. Therefore, I find it necessary, on principle, to protect by means of the German penal code those racial Germans who have seriously suffered through action such as mentioned in paragraph 92, subparagraph 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.”
In conclusion the defendant Lautz stated that in the majority of cases which have been committed by foreign nationals abroad against racial Germans he would “have to report in each individual case.”
Stated in plain language, Lautz proposed that the courts should try and convict Poles for acts which violated no statute of any kind, if they deserved punishment according to sound German sentiment. This proposal violates every concept of justice and fair play wherever enforced, but when applied against a Pole for an act done in his own country in time of peace, the proposition becomes a monument to Nazi arrogance and criminality. Such a Pole owed no duty of loyalty to any state except Poland and was subject to the criminal jurisdiction of no state but Poland. The prosecution of the Pole Golek would constitute a palpable violation of the laws of war (see: citations to the Hague Convention, supra), and any official participating in such a proceeding would be guilty of a war crime under C. C. Law 10. The document discloses that cases similar to that of Golek had been tried by the People’s Court and that more prosecutions were expected in the future. As a witness, the defendant Lautz testified that “in several individual cases a decision had to be obtained from the minister.” We are justified in believing that Lautz’ expectations were fulfilled and that he participated in the prosecution of Golek and in similar cases.
We have cited a few cases which are typical of the activities of the prosecution before the People’s Court in innumerable cases. The captured documents which are in evidence establish that the defendant Lautz was criminally implicated in enforcing the law against Poles and Jews which we deem to be a part of the established governmental plan for the extermination of those races. He was an accessory to, and took a consenting part in, the crime of genocide.
He is likewise guilty of a violation of the laws and customs of war in connection with prosecutions under the Nacht und Nebel decree, and he participated in the perversion of the laws relating to treason and high treason under which Poles guilty of petty offenses were executed. The proof of his guilt is not, however, dependent solely on captured documents or the testimony of prosecution witnesses. He is convicted on the basis of his own sworn statements. Defendant is entitled to respect for his honesty, but we cannot disregard his incriminating admissions merely because we respect him for making them.
There is much to be said in mitigation of punishment. Lautz was not active in Party matters. He resisted all efforts of Party officials to influence his conduct but yielded to influence and guidance from Hitler through the Reich Ministry of Justice, believing that to be required under German law. He was a stern man and a relentless prosecutor, but it may be said in his favor that if German law were a defense, which it is not, many of his acts would be excusable.
We find the defendant Lautz guilty as charged upon counts two and three of the indictment.
THE DEFENDANT METTGENBERG
By his own sworn statement the defendant Wolfgang Mettgenberg frankly and fully admits his connection with the Hitler Night and Fog decree. His statements show that he exercised wide discretion and had extensive authority over the entire plan from the time the Night and Fog prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or imprisonment.
We will not reiterate the statements made by him in his sworn statement and hereinabove quoted. Suffice it to say that 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 was regarded as an eminent authority on international law. He handled Night and Fog cases and knew the purpose and procedure in such cases. He knew that the decree was based upon the Fuehrer’s order of 7 December 1941 to the OKW. He knew that an agreement existed between the Gestapo, the Reich Ministry of Justice, the Party Chancellery, and the OKW with respect to the purposes of the Night and Fog decree and the manner in which such matters were to be handled.
The defendant von Ammon was Ministerial Councillor in Mettgenberg’s subdivision and was in charge of the Night and Fog section as shown in this judgment. 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 the Night and Fog cases. The NN cases came from the Wehrmacht but in some cases directly from the Gestapo. These cases were assigned to Special Courts at several places in Germany and to the People’s Court at Berlin by defendant von Ammon. 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 authority and the heads of the German courts in the Netherlands, which resulted in a reference 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.”
In Department IV for penal administration, Mettgenberg’s work consisted of inspecting execution equipment. He witnessed one execution in 1944. He was entrusted with speeding up clemency applications because prisoners were escaping during air raids. Reich Minister Thierack called the defendant, Rothenberger, Under State Secretary, by telephone at Berlin and instructed him to make decisions concerning the clemency in death sentence cases presented by defendant Mettgenberg who made “reports lasting hours,” and then Rothenberger made the decisions.
The evidence does not positively show that clemency cases presented by Mettgenberg and passed upon by Rothenberger were NN cases. We think, however, that the only conclusion that can be reached from Mettgenberg’s testimony during the trial is that Rothenberger passed upon all clemency matters presented to him by Mettgenberg which included NN cases. Mettgenberg stated that he was appointed to speed up clemency matters due to air raids and that he took the matter up with the Reich Minister of Justice, Thierack, who at the time called Rothenberger on the telephone and told him to receive and pass upon the clemency matters submitted. Mettgenberg testified that he did present clemency matters to Rothenberger by telephone conversations which lasted for several hours and that Rothenberger then made the decisions.
The defendant Mettgenberg assumed the burden of defending the illegality of the Night and Fog proceedings under the Ministry of Justice not only for himself but for all defendants connected therewith. He prefaced this defense with the following statement:
“Today I am still of the view which I expressed in my affidavit. My view is that it was regrettable because the courts, in these matters, could not completely do justice to their foremost task, the finding of the truth. Now that I believe I have heard everything and believe myself to be able to survey the whole matter, I have to say that as concerns the various evils between which one had to choose, a transfer of the NN cases to the administration of justice was, after all, the lesser evil, so that this emergency solution which was made was probably the only possible solution.” (Tr. pp. 6269–6270.)
With respect to the legal foundation for the NN cases, three laws or decrees are presented as justifying the proceedings. The first is article 161 of the Military Penal Code which dates back to the 1870’s and which, as amended, provides:
“A foreigner or a German who, in a foreign territory occupied by German troops, acts against German troops or their members or against an authority established by order of the Fuehrer and thereby commits an act which is punishable according to the laws of the Reich, is to be punished, just as if that act would have been committed by him within the territory of the Reich.”
Whether this law violates international law of war need not be determined here because the defendants did not act under it in the execution and enforcement of the Hitler Night and Fog decree. Nor does this law authorize the execution and enforcement of any such decree.
The second legal ground presented is article 3, section 2 of the Code of Penal Procedure of 17 August 1938 which provides for the punishment of criminal acts committed in the areas of military operations in occupied territory by foreigners or Germans and further provides that:
“If a requirement of warfare demands it, * * * they may turn over the prosecution to the ordinary courts in the rear army area.”
There can be no criticism of this law. It was not applied in any respect in the Night and Fog cases; hence, it constitutes no defense for the manner in which the Night and Fog decree was carried out.
The third legal foundation for the proceeding is based upon the claim that the Hitler decree of 7 December 1941 was a legal regulation for the handling of offenses against the Reich or against the occupation forces of the German Army in occupied areas. With respect to this decree we are convinced that it has no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations as heretofore set out in this judgment.
The defendant Mettgenberg referred to and approved the testimony of the defendant Schlegelberger which states “that the NN prisoners were expected to be, and were, 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.” This court martial procedure was shown to have been used in the prosecution of NN persons who had been charged with high treason or preparation of treason against the Reich.
Mettgenberg testified as to the troubles the department had with the Gestapo because the Gestapo insisted that they had already investigated the facts as to each NN prisoner and that these facts should be accepted without further trial. This practice was not acceptable to the Ministry of Justice. As to other difficulties in securing proper evidence, Mettgenberg testified:
“Even though investigations were first of all carried out in the occupied territories before the NN prisoners were transferred to Germany, yet it was a matter of course that that evidence was not always without gaps.”
These “gaps” in the evidence were shown by [NG-261 and NG-264] Prosecution Exhibits 334 and 335 in which the public prosecutor at Katowice complained of the difficulty of securing sufficient proof due to the utter secrecy of the proceedings. The Gestapo alone presented the evidence by “rather dubious police transcripts” and “such police records occasionally had been obtained by inadmissible means.” Mettgenberg testified that defendant von Ammon made an official trip to Upper Silesia to discuss these matters with the chief judge in Belgium and northern France “to remedy that state of affairs.” This action did not take place until 30 June 1944, which was only a few months before the Night and Fog matters were taken out of the hands of the Ministry of Justice, and all prisoners then held by the Ministry of Justice were transferred to the Gestapo to be placed in concentration camps.
Mettgenberg also testified to the difficulties experienced with the Gestapo arising out of the fact that the Gestapo transferred many of these prisoners directly to concentration camps and thereby retained control over them. Nothing was done about the fact that the police took the NN prisoners into police custody and retained them in police custody.
We find defendant Mettgenberg to be guilty under counts two and three of the indictment. The evidence shows beyond a reasonable doubt that he acted as a principal, aided, abetted, and was connected with the execution and carrying out of the Hitler Night and Fog decree in violation of numerous principles of international law, as has been heretofore pointed out in this judgment.
THE DEFENDANT VON AMMON
From his own sworn statements we gain the following information concerning the defendant von Ammon. He joined the SA in December 1933, in which organization he held the rank of Scharfuehrer. He joined the NSDAP in May 1937. He was called to the Reich Ministry of Justice as of 1 January 1935, became a Landgerichtsrat on 1 February 1935, and Landgerichtsdirektor on 1 July 1937. His main activity in the Ministry during that period concerned “questions of international legal usage in penal matters”
After the Austrian Anschluss he was employed as liaison officer of Department III (penal matters) in connection with Department VIII (Austria), in the Reich Ministry of Justice. He was consultant in the department for the administration of penal law under Ministerialdirektor Crohne. He was transferred to the Munich Court of Appeals as Oberlandesgerichtsrat where he served until June 1940, at which time he was recalled to the Reich Ministry of Justice. As of 1 March 1943 he was appointed Ministerial Counsellor in the Ministry of Justice. He states (NG-852, Pros. Ex. 55):
“From 1942 onward I dealt mainly with Nacht und Nebel cases in the occupied territories. In my capacity as consultant for Nacht und Nebel cases I made several duty trips to the occupied territories and took part in discussions in Paris and Holland which dealt with questions of Nacht und Nebel proceedings.”
The broad scope and the variety of the official activities of von Ammon may be illustrated by reference to reports which he made to officials of the Ministry of Justice during the year 1944. On 14 January 1944 he reported at the Ministry upon “jurisdiction of Denmark”. On 10 February he reported to the minister on “Competence for Prosecution of NN Cases.” On 31 May, under the heading “Submissions to the State Secretary” (Klemm), he reported on “Action Against Stateless Jews, Admission of Legal Procedure.” Under the heading “Reports to the State Secretary” for 21 June 1944, he reported on “Pastoral Service for NN Prisoners”, after which in handwriting appears the word “rejection”. Under the heading “Submissions to the Minister” for 26 July, he reported on “Proceedings of State Police in Lower Styria.” Under the heading “Reports to the Ministers” of 5 October, he reported on “Taking Over of Criminal Proceedings from the Eastern Districts.” Under the heading “Formal Verbal Reports to the Minister” of 3 November 1944, he reported on “Liquidation of Offenses from the Eastern Territories.” On 10 January 1945 it appears that he made a verbal report on the “Taking Over Administration of Penal Justice of the Minister for the East.”
The prosecution introduced in evidence a captured document of 142 pages in length, containing lists of many hundreds of death sentences which were submitted to the Minister of Justice and at times to State Secretary Klemm for final disposition. The cases were classified as “clear” or as “doubtful.” The former, “clear,” outnumbered the latter. An examination of the document discloses that between 14 January 1944 and 16 November of the same year the defendant von Ammon made twenty-four reports on cases in which persons from the occupied territories had been sentenced to death under the Nacht und Nebel procedure. The death sentences averaged more than one for every 3 days of the entire period.
In a notice addressed to Under Secretary Rothenberger, and to Minister Thierack, von Ammon reported that on 1 September 1942, in Kiel, Essen, and Cologne cases were pending against 1,456 persons charged under the Night and Fog decree.
In view of the fact that von Ammon was in charge of Nacht und Nebel procedure from 1942 until the end of the war, it is clear that we have in evidence only incomplete records of the activities of this defendant in connection with the Night and Fog decree. The fragmentary character of the captured documents which have been submitted renders it impossible to give a complete picture of this criminal activity. The illustrations which we have given and which cover only a portion of the time involved will, however, serve as an indication of the scope of the activities which were under the direction of the defendants Mettgenberg and von Ammon. Von Ammon also participated in a lengthy secret correspondence concerning the transfer of NN cases to the Special Court at Oppeln and the necessity of allocating additional judges and public prosecutors to that court in view of the resultant increase in the volume of work.
The defendant von Ammon held an executive position of responsibility involving the exercise of personal discretion. Within the ministry he was in charge of the section which handled Night and Fog cases. The defendant Mettgenberg stated that the Night and Fog section within his subdivision was headed by von Ammon and that whenever von Ammon had doubts concerning the handling of individual cases joint discussions were held. We quote:
“When he had no doubts he could decide on matters himself.”
We have already set forth at length the statement of von Ammon concerning his knowledge and activities and his misgivings concerning the entire procedure. The defendants von Ammon and Mettgenberg were the representatives of the Reich Ministry of Justice at a conference at The Hague on 2 November 1943 concerning “New Regulations for Dealing with Night and Fog Cases from the Netherlands”. Von Ammon states that assurance was given by Mettgenberg and himself that close connection would be maintained between the judicial authorities at Essen and the German authorities in the Netherlands in the handling of NN cases. We have already quoted a note signed by von Ammon wherein he remarked that it was “rather awkward” that the defendants should learn the details of their charges only during the trial and commented on the insufficiency of the translation facilities in the trial of French NN prisoners. Von Ammon is chargeable with actual knowledge concerning the systematic abuse of the judicial process in these cases.
In respect to his other activities we refer to our general discussion under the heading “Night and Fog.” We find the defendant von Ammon guilty of war crimes and crimes against humanity under counts two and three of the indictment.
THE DEFENDANT JOEL
The professional career of the defendant Guenther Joel in the Third Reich proceeded at the same pace as his career as a Party man; in fact, even before the war years his professional career merged with his career in Nazi organizations, and to be more precise, in the SS and the SD--the organization which the IMT judgment has declared to be criminal.
He became a member of the NSDAP on 1 May 1933 and entered the Ministry of Justice as a junior public prosecutor (Gerichtsassessor) on 7 August 1933. In quick succession he became assistant public prosecutor (1 September 1933), public prosecutor (1 January 1934), senior public prosecutor (1 February 1935), and chief public prosecutor (1 November 1936).
Between August 1933 and October 1937, Joel was the chief of a newly created subdepartment of the Reich Ministry of Justice, the Central Public Prosecution (Zentralstaatsanwaltschaft). In October 1937 this subdepartment was dissolved, but the Reich Minister of Justice, Guertner, reserved the right to assign Joel as “Referent” for special cases and subsequently made use of this right. After the dissolution of the Central Public Prosecution, Joel worked as “Referent” in the Ministry’s Penal Department III (later renumbered IV).
By a formal letter of appointment, dated 19 December 1937 and signed by Minister Guertner, Joel was, in addition to his other duties, appointed liaison officer between the Reich Ministry of Justice and the SS, including the SD, as well as the Gestapo. A few months later, namely, in a letter of 2 May 1938, signed by Heydrich, Joel was, effective 30 January 1938, admitted to the SS and, effective the same day, promoted to the rank of SS Untersturmfuehrer and given the position of leader (Fuehrer) in the SD Main Office (Security Service Main Office).
His SS personnel record shows how quickly he climbed to high positions in the SS and the SD: on 11 September 1938 he became SS Obersturmfuehrer; on 30 January 1939, SS Hauptsturmfuehrer; on 26 September 1940, SS Sturmbannfuehrer--holding all these ranks as leader in the SD Main Office.
The record shows that in his capacity as SS officer Joel was, between 2 and 8 May 1939, sent on an official mission for the Security Office (SD). An official letter from the Reich Leader of SS, Chief of the Security Service Main Office, dated 28 April 1939, so notified the Reich Minister of Justice. Again, on 4 July 1940, the Chief of the Security Police and the Security Service informed the Reich Ministry of Justice that Joel had been “put on the list of indispensable persons on behalf of the Reich Leader SS and Chief of the German Police,” thereby reserving to the Security Police and the Security Service the indispensable service of Joel and freeing him from military service.
But in his answer, dated 11 July 1940, to this request, Freisler, Under Secretary of the Ministry of Justice, asked:
“To refrain from calling upon SS Captain Joel, senior public prosecutor, for taking over duties for the Reich Leader SS and Chief of the German Police. Dr. Joel, as you know, is entrusted with extremely important reports at my ministry.”
The nature of these reports will be later discussed.
On 1 May 1941 Joel was promoted to ministerial counsellor. He remained with the Reich Ministry of Justice until 12 May 1943.
The reason for his leaving the Ministry was that on 7 May 1943 he was appointed attorney general to supreme provincial court of appeals in Hamm (Westphalia). By letter dated Fuehrer Headquarters, 12 May 1943, Bormann, Chief of the Party Chancellery (sentenced to death in absentia by the IMT) personally confirmed his appointment. It should be added that a few weeks earlier, by letter of 13 March 1943 to Reich Minister of Justice, Thierack, the Gauleiter of Westphalia, Alfred Meyer, also formally endorsed Joel’s appointment for attorney general at Hamm, in his own name and in the name of deputy Gauleiter Hoffmann, in charge of the administration of the Gau Westphalia-South.
Shortly after this new appointment, namely, as of 9 November 1943, Joel was promoted to the high rank of SS Obersturmbannfuehrer, which appointment was approved by Himmler. His political and Party career went hand in hand with his professional career, and his promotions were made by or approved by such high ranking Nazi officials as Himmler, Bormann, Heydrich, Thierack, and Freisler--whose desperate and despicable characters are known to the world; the record in this case is replete with many atrocities and crimes committed by these leaders and members of organizations which have been declared criminal by the IMT. Thus, Joel continued to the end as the confidant and trusted protegé of these most outstanding and notorious criminals of all time.
It will be remembered that ever since December 1937, Joel in his several capacities at the Ministry of Justice had, in addition to his other duties, acted as liaison officer between the ministry and the SS, the SD, and the Gestapo. To this position a successor, Chief Public Prosecutor Franke, was appointed on 1 August 1943. Joel claims that in fact he had ceased to act as such liaison officer when Thierack assumed office as Reich Minister of Justice in August 1942. However, the record shows that even after that time Joel made numerous reports, some of which are mentioned below, relating to the execution of death penalties imposed under the law against Poles and Jews, and relating to the transfer of Poles who had received mild sentences, or had been acquitted, or had served their term, to the Gestapo. These were the very duties which he had to perform in the Reich Ministry as liaison officer. Even after Thierack’s appointment as minister, Joel was connected with the interests of the Reich Security Office, and his work was productive and satisfactory in the carrying out of the plan or scheme of racial persecution and extermination of Poles and Jews. On 17 August 1943, defendant Rothenberger inducted defendant Joel into his office as general public prosecutor at Hamm, praised him in the highest terms, and referred to him as an SS member and also to his rank of SS Obersturmbannfuehrer. As late as 1945, when the question of military service for Joel again arose, Gauleiter Hoffmann of South Westphalia intervened in a letter to the Reich Ministry of Justice, referring to the fact that Joel was known to be a member of the Waffen SS, and that if he were to go into military service he would undoubtedly be assigned to the SS activities.
Under our discussion of the Night and Fog decree, reference is made to several documents which show Joel as having aided, abetted, participated in, and having been connected with, the Night and Fog scheme or plan.
Rudolf Lehmann, lieutenant general of the legal department of the armed forces, stated under oath:
“These cases were, as I seem to remember, handled by von Ammon, also of that same division of the Reich Ministry of Justice. General Public Prosecutor Joel, who was in the Ministry of Justice until sometime in 1943, would be able to supply further details on this ‘Nacht und Nebel’ matter. Joel was general public prosecutor in Hamm, and a court handling ‘Nacht und Nebel’ cases was located at Hamm. Other courts handling ‘Nacht und Nebel’ cases were located at Cologne, Breslau, and at one or two other places unknown to me but which can be named by Joel.”
Joel became chief prosecutor of the court of appeals in Hamm, covering all of Westphalia and the district of Essen, on 17 August 1943, which office he continued to hold until the end of the war. In this position he was in charge of the Night and Fog program for the Special Courts in Hamm and Essen until 15 March 1944 when these courts were transferred farther east to Oppeln in the Katowice district. Reports of Joel show that he attended conferences both in Hamm and in Belgium on Night and Fog matters. The record also shows that the district of which he was the highest, and therefore the most responsible, prosecuting authority was, in area and population, one of the largest in Germany. He had under his supervision the senior public prosecutors and their staffs at the Special Courts at Hamm and in Essen. It was his task to supervise the work of all prosecutors assigned to his office. The Special Courts in Hamm and Essen tried more Night and Fog cases than the combined total of all other Special Courts and the People’s Court. In law, Joel must be held to have had the responsibility of these cases. The record further shows that Joel assumed this responsibility.
A letter addressed to Joel, dated 20 January 1944, stated that in the future all Night and Fog persons who were upon trial acquitted or who had served their sentences, must be turned over for custody to the Gestapo.
A letter dated 26 January 1944 from Joel to the Reich Minister of Justice complained about the delay which the defendant Lautz, chief prosecutor at the People’s Court, caused by his failure to return files in NN cases. Joel pointed out that 84 Night and Fog prisoners who had been held near Hamm since 1941 were still there.
In November 1943 defendants von Ammon and Mettgenberg came to Hamm enroute back to Berlin from the conferences they had attended in Holland. The purpose of their visit to Joel was to determine whether there was any available space in prison for the keeping of additional Night and Fog prisoners to be transported from the Netherlands. Joel assured them that more prisoners could be accommodated and even opposed the view of his Oberlandesgericht who stated they should not be sent to the Hamm area. They were sent to that area. In December 1943 Joel attended a conference in Brussels which he reported upon after his return to Hamm, pertaining to Night and Fog prisoners who were sent from Belgium.
The categorical denial of Joel of ever having transferred an NN prisoner or of ever having tried an NN prisoner or of ever having issued an order to transfer an NN prisoner who had been acquitted or who had served his sentence, to Gestapo custody is no defense of his activities in connection with the custody, trial, execution, or transfer of NN prisoners after they had served their sentences or had been acquitted to the Gestapo.
The high office which he held required him to supervise and properly handle Night and Fog cases filed in the courts where he was chief prosecutor. He had numerous assistants whom he necessarily had to entrust with the prosecution and carrying out of the Night and Fog program and cases arising thereunder. The fact that Joel did not actually try the Night and Fog cases himself has no significance. He did supervise the men who tried and had executed some of them and imprisoned others and transferred others who were not guilty of any crime or who had served their sentence, to the Gestapo and concentration camps.
The defendant Joel is chargeable with knowledge that the Night and Fog program from its inception to its final conclusion constituted a violation of the laws and customs of war.
We turn now to the other activities here under indictment of the defendant Joel.
We direct attention to a document from the Reich Ministry of Justice which contains the program for conferences among the officials of the Ministry. In each instance the name of the official who is to report is set opposite the subject for discussion. From this we gain some information as to the scope of the work assigned to Joel.
According to this program Joel was scheduled to report upon the following subjects. We quote:
“Nullification plea, Maslanka.
“Nullification plea, Beyer Bosich (Italian) article 4, VVO.
“Matter of clemency Pongratz (70 year old farmer, non-delivery).
“Handing-over of Poles to the State Police (cases Bartosinski and Marcziniak).
“Lenzinger Zoowoll AG (Lenzinger Artificial Wool, Ltd.).
“Treatment of Jews and Poles, as well as Russians. Internal order of the Reich Leader SS.
“Bartosinski, Pole, shall be transferred from criminal custody (3 years’ penal camp on account of sexual intercourse) to State Police.
“Marasyak, Pole, wanted to marry German maid in France. Detention pending investigation. State Police demands him turned in.
“Should there be any reports during the war on the question of mercy for Poles who have been sentenced to death on account of the possession of weapons and other offenses and who have been pardoned to 5 years’ penal servitude with the reserve of an investigation after 2 to 3 years?
“Extortion of food ration cards, Mrs. Ritter. Chorlow, Russian from the district of Kursk, article 2, VVO. State Police wants to punish with police measures.
“Jakubowski, Pole, has raped German woman. He has been executed by hanging. The criminal police asks for a burial certificate.
“Uschako, workman, from the East, from old Soviet Russian territory, has stolen a jacket. The Secret State Police sent him to a labor education camp and requests cancellation of the order to inflict 1-month imprisonment.”
Another significant incident relates to the case of two “deserving National Socialists.” Our source of knowledge is a brief document signed by the defendant Joel. The facts stated are that a policeman and a temporary mayor “shot two Polish priests for no reason other than hatred for the Catholic clergy.” On 11 June 1940, the two murderers were sentenced to 15 years’ penal servitude for manslaughter. Joel states that more than 2 years of the sentence had been served and that the Reich Leader SS asked for pardon. The document concludes as follows:
“Penal servitude changed to 5 years’ imprisonment each. Postponement of the serving of the sentence and of the defamatory consequences for the duration of stay in a Waffen SS probation unit. Further pardon in the case of the probation. (Signed) Dr. Joel”
As early as 1937 it is clear that Joel had knowledge of conditions in concentration camps. A document marked “For the time of circulation: Secret! to III-a: After circulation in sealed envelope to the Gestapo general files”, contains the following:
“2. As far as reports concerning executions when escaping from concentration camps, etc., suicides in K.Z.’s (concentration camps) 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 [at] once.”
This order was circulated to all specialists for political criminal matters. Joel was listed as a political specialist.
An official report on a meeting of the presidential board of 1 February 1939 shows that a report was given by the Chief Public Prosecutor on developments in connection with the events of 9 to 11 November 1938 (the Jewish pogrom). We quote:
“The Reich Minister of Justice and Senior Public Prosecutor Joel pointed out that it was impossible, of course, to handle this matter in the usual judicial manner; if the top men disregarded legal principles, it was impossible to prosecute people concerned with the execution. For instance, the viewpoint of violation of the public peace should be dropped. This is legally justified inter alia by the fact that the culprits were not conscious of any violation, since they were acting under orders. As far as the criminal offenses committed on that occasion are concerned, trifles should be dropped. Otherwise, however, proceedings can only be quashed by the Fuehrer, whereas serious criminal offenses such as rape and race defilement must be prosecuted. The order to prosecute is issued in any case by the minister after the culprits, if they are members of the Party or of any organization, have been excluded by a special department of the Supreme Party Tribunal in Berlin.”
It is self-evident that if prosecution was to take place only after a Party tribunal had excluded them, they would live a long and happy life of freedom.
Defendant Joel became a Referent in the Reich Ministry of Justice with authority and duty to review penal cases from the Incorporated Eastern Territories after the occupation of Poland. In this capacity he handled many of the cases tried pursuant to the decree against Poles and Jews. In defense of these acts, Joel testified that “he felt obligated by the existing laws and so complied with them.” Joel did not have the same view as other officials that after the surrender of the Polish nation the nationals of the annexed part of Poland became German nationals. He testified that such a Polish citizen after 1 September 1939 remained a Polish national and that “a Polish national is never a German.” Joel frankly admitted that he knew he was not dealing with Germans but with foreign nationals.
In his capacity as Referent for the Incorporated Eastern Territories Joel, as liaison officer between the Reich Ministry of Justice and the Gestapo, took part in conferences with others from Department IV concerning the disposition of such Jewish and Polish cases. In one instance he reported having discussed an order of Himmler’s as to the treatment Poles and Jews should receive. In another instance he reported ordering the transfer of Poles who had been sentenced to a penal camp for 3 years to the Gestapo.
As a witness, Schlegelberger testified concerning transfers to the police, which he described as “a very sad chapter for anyone who has a sense of justice.” Guertner protested against this procedure and made compilations of press reports concerning executions by the police.
“Lammers actually submitted these compilations to Hitler but told Guertner later Hitler had said that he had not given a general directive to carry out these shootings, but in individual cases he could not do without these measures because the courts, that was military courts as well as civil courts, were not able to take care of the special conditions as created by the war. And, Lammers at the same time announced that Hitler in a further case had already ordered the execution by shooting.”
Schlegelberger testified further that after an order had been made for the transfer of a prisoner to the police, there was a time limit of 24 hours, at the end of which the police were required to report that the order had been executed. Schlegelberger states that Guertner charged the defendant Joel with the mission of representing the Ministry of Justice with the police in connection with these transfers. It appears that the Ministry of Justice, through Joel, was able to intervene in some cases and to prevent the transfers. Schlegelberger testified:
“* * * the attempts to intervene on the part of the Ministry of Justice were successful in some cases but, if all possibilities had been exhausted, and if in spite of that he had not succeeded in having the order issued by the police withdrawn, nothing was left but to issue the instructions to the executing authority not to offer any resistance but to hand the man over to the police when they requested him.”
Notwithstanding the reluctance with which the officials of the Ministry of Justice acted, it appears from the foregoing that they did cooperate in the transfer of prisoners to the police.
From 10 September 1942 to March 1943, Joel reviewed 105 death sentences passed by courts in the Incorporated Eastern Territories and in most cases gave final authorization for their execution.
In his capacity as such Referent, Joel reviewed and passed upon 16 death sentences of Poles who had committed alleged crimes against the Reich or the German occupation forces. One of these Poles was born in Cleveland, Ohio, in the United States, and his death sentence was commuted to life imprisonment because Joel was fearful his execution would involve the Reich in international complications. The remaining 15 Poles were executed.
As Referent, Joel was shown by captured official documents to have had knowledge that many Jewish and Polish political prisoners were being executed under the law against Jews and Poles. This matter was called to his attention because of a dispute as to who should handle the corpses of the executed prisoners. One main difficulty was that, under Himmler’s orders, these corpses were to be turned over to the Secret Police for disposition. The mayor and police of Posen [Poznan] refused to handle the corpses of Poles and Jews who were not executed as political prisoners. Joel was thereupon instructed to handle the matter temporarily and to work out a permanent plan for such burials, which he later assisted in doing.
As Referent in the department of justice and as liaison officer between the department and the SS, Joel obtained extensive information and exercised far-reaching power in the execution of the law against Jews and Poles. He therefore took an active part in the execution of the plan or scheme for the persecution and extermination of Jews and Poles.
Concerning Joel’s membership in the SS and SD, a consideration of all of the evidence convinces us beyond a reasonable doubt that he retained such membership with full knowledge of the criminal character of those organizations. No man who had his intimate contacts with the Reich Security Main Office, the SS, the SD, and the Gestapo could possibly have been in ignorance of the general character of those organizations.
We find defendant Joel guilty under counts two, three, and four.
THE DEFENDANT ROTHAUG
Oswald Rothaug was born 17 May 1897. His education was interrupted from 1916 to 1918 while he was in the army. He passed the final law examination in 1922 and the State examination for the higher administration of justice in 1925.
He joined the NSDAP in the spring of 1938 and the membership was made effective from May 1937.
Rothaug was a member of the National Socialist Jurists’ League and the National Socialist Public Welfare Association. In his affidavit he denies belonging to the SD. However, the testimony of Elkar and his own admission on the witness stand establishes that he was an “honorary collaborator” for the SD on legal matters.
In December 1925 he began his career as a jurist, first as an assistant to an attorney in Ansbach and later as assistant judge at various courts. In 1927 he became public prosecutor in Hof in charge of criminal cases. From 1929 to 1933 he officiated as counsellor at the local court in Nuernberg. In June 1933 he became senior public prosecutor in the public prosecution in Nuernberg. Here he was the official in charge of general criminal cases, assistant of the Chief Public Prosecutor handling examination of suspensions of proceedings and of petitions for pardon. From November to April 1937 he officiated as counsellor of the district court in Schweinfurt. He was legal advisor in the civil and penal chamber and at the Court of Assizes, as well as chairman of the lay assessors’ court. From April 1937 to May 1943 he was director of the district court in Nuernberg, except for a period in August and September of 1939 when he was in the Wehrmacht. During this time he was chairman of the Court of Assizes, of a penal chamber, and of the Special Court.
From May 1943 to April 1945 he was public prosecutor of the public prosecution at the People’s Court in Berlin. Here, as head of Department I he handled for a time cases of high treason in the southern Reich territory, and from January 1944 cases concerning the undermining of public morale in the Reich territory.
Crimes charged in the indictment, as heretofore stated in this opinion, have been established by the evidence in this case. The questions, therefore, to be determined as to the defendant Rothaug are: first, whether he had knowledge of any crime so established; and second, whether he was a participant in or took a consenting part in its commission.
Rothaug’s sources of knowledge have, with those of all the defendants, already been pointed out. But Rothaug’s knowledge was not limited to those general sources. Rothaug was an official of considerable importance in Nuernberg. He had many political and official contacts; among these--he was the friend of Haberkern, Gau inspector of the Gau Franconia; he was the friend and associate of Oeschey, Gau legal advisor for the Gau Franconia; and was himself Gauwalter of the Lawyers’ League. He was the “honorary collaborator” for the SD. According to the witness Elkar, [he was] the agent of the SD for Nuernberg and vicinity, this position was more important than that of a confidential agent, and an honorary collaborator was active in SD affairs. He testifies that Rothaug took the SS oath of secrecy.
Whether Rothaug knew of all the aspects of the crimes alleged, we need not determine. He knew of crimes as established by the evidence, and it is the function of this Tribunal to determine his connection, if any, therewith.
The defendant is charged under counts two, three, and four of the indictment. Under count four he is charged with being a member of the Party Leadership Corps. He is not charged with membership in the SD. The proof as to count four establishes that he was Gauwalter of the Lawyers’ League. The Lawyers’ League was a formation of the Party and not a part of the Leadership Corps as determined by the International Military Tribunal in the case against Goering, et al.
As to counts two and four of the indictment, from the evidence submitted, the Tribunal finds the defendant not guilty. The question of the defendant’s guilt as to count three of the indictment remains to be determined.
The evidence as to the character and activities of the defendant is voluminous. We shall confine ourselves to the question as to whether or not he took a consenting part in the plan for the persecution, oppression, and extermination of Poles and Jews.
His attitude of virulent hostility toward these races is proved from many sources and is in no wise shaken by the affidavits he has submitted on his own behalf.
The evidence in this regard comes from his own associates--the judges, prosecutors, defense counsel, medical experts, and others with whom he dealt. Among, but not limited to these, we cite the evidence of Doebig, Ferber, Bauer, Dorfmueller, Elkar, Engert, Groben, and Markl. In particular the testimony of Father Schosser is important. He testified as to many statements made by the defendant Rothaug during the trial of his own case, showing the defendant’s hostility to Poles and his general attitude toward them. He stated that concerning the Poles in general, Rothaug expressed himself in the following manner:
“If he (Rothaug) had his way, then no Pole would be buried in a German cemetery, and then he went on to make the remark which everybody heard in that courtroom--that he would get up from his coffin if there was a Pole being buried near to him. Rothaug himself had to laugh because of this mean joke, and he went on to say, ‘You have to be able to hate, because according to the Bible, God is a hating God.’”
The testimony of Elkar is even more significant. He testifies that Rothaug believed in severe measures against foreigners and particularly against Poles and Jews, whom he felt should be treated differently from German transgressors. Rothaug felt there was a gap in the law in this respect. He states that Rothaug asserted that in his own court he achieved this discrimination by interpretation of existing laws but that other courts failed to do so. Such a gap, according to Rothaug, should be closed by singling out Poles and Jews for special treatment. Elkar testifies that recommendations were made by the defendant Rothaug, through the witness, to higher levels and that the subsequent decree of 1941 against Poles and Jews conformed to Rothaug’s ideas as expressed and forwarded by the witness Elkar through SD channels to the RSHA.
This animosity of the defendant to these races is further established by documents in this case which show that his discrimination against these races encompassed others who he felt lacked the necessary harshness to carry out the policy of the Nazi State and Party toward these people.
In this connection the communication of Oeschey to Deputy Gauleiter Holz, concerning Doebig, is worthy of note. In this communication many charges were made against Doebig for his failure to take action against officials under him who had failed to carry out the Nazi programs against Jews and Poles. Oeschey testified that these charges were copied from a letter submitted to him by the defendant Rothaug and that the defendant assumed responsibility for these charges. Rothaug denies that he assumed responsibility or had anything to do with the charges made, except in one immaterial instance. However, in the light of the circumstances themselves, the Tribunal accepts Oeschey’s testimony in this regard, particularly in view of the unimpeached affidavit of Oeschey’s secretary to the effect that these charges were copied directly by her from a letter of Rothaug’s.
Documentary proof of Rothaug’s attitude in this respect is further found in the records of cases tried by him which hereafter will be considered.
Proof as to his animus is not shaken by his own testimony. It is confirmed by his testimony. He states:
“In my view, by introduction of the question of the so-called incredibility of Poles, the whole problem is shifted onto another plane. It is a matter of course that a nation, which has been subjected by another nation, and which is in a state of stress--that a citizen of such a country which had been subjected to another vis-à-vis the victorious nation, finds himself in quite a different moral-ethical relationship. It is useless to shut your eyes against reality. Of course, he finds himself in a different moral relationship from the relationship in which a German citizen would find himself. It is so natural there is no point in ignoring it. There is no need to lie.”
His explanations as to his feeling toward Poles, given in connection with the Schosser arrest and trial are also most enlightening but too extensive to quote here.
Concerning his participation in the Nazi policy of persecution and extermination of persons of these races, we shall confine our discussions to three cases which were tried by Rothaug as presiding judge.
The first case to be considered is that of Durka and Struss. Our knowledge of this case is based primarily upon the evidence of Hans Kern, the defense counsel of one of these defendants; Hermann Markl, the prosecutor in the case; and the testimony of the defendant Rothaug.
The essential facts are in substance as follows: Two Polish girls--one, according to the testimony of Kern, 17 years of age, the other somewhat older--were accused of starting a fire in an armament plant in Bayreuth. This alleged fire did not do any material damage to the plant, but they were in the vicinity when it started and were arrested and interrogated by the Gestapo. Both gave alleged confessions to the Gestapo. Almost immediately following this occurrence, they were brought to Nuernberg by the Gestapo for trial before the Special Court.
Upon their arrival the prosecutor in the case, Markl, was directed to draw up an indictment based upon the Gestapo interrogation. This was at 11 o’clock of the day they were tried.
The witness Kern was summoned by the defendant Rothaug to act as defense counsel in the case approximately 2 hours before the case came to trial. He informed Rothaug that he would not have time to prepare a defense. According to Kern, Rothaug stated that if he did not take over the defense, the trial would have to be conducted without a defense counsel. According to Rothaug, he told Kern that he would get another defense counsel. In either event the trial was to go on at once.
The trial itself, according to Kern, lasted about half an hour; according to the defendant, approximately an hour; according to Markl, it was conducted with the speed of a court martial.
The evidence consisted of the alleged confessions which one of the defendants repudiated before the court. Rothaug states that he thereupon called the Gestapo official who had obtained these alleged confessions and questioned him under oath. According to Rothaug the Gestapo official stated that the interrogations were perfectly regular. There was also a letter in evidence which it was said the defendants had tried to destroy before their capture. The witness Kern stated on cross-examination that this letter had little materiality.
The defendant attempts to justify the speed of this trial upon the legal requirements in existence at this time. He states, in contradiction to the other witnesses, that a clear case of sabotage was established. This Tribunal is not inclined to accept the defendant Rothaug’s version of the facts which were established. Under the circumstances and in the brief period of the trial, the Tribunal does not believe the defendant could have established those facts from evidence.
According to the witness Kern, one of the defendants was 17 years of age. This assertion as to age was not disputed. A German 18 years of age or thereunder would have come under the German Juvenile Act and would not have been subject to trial before a Special Court or to capital punishment. Whatever the age of the defendants in this case, they were tried under the procedure described in the ordinance against Poles and Jews which was in effect at this time, by a judge who did not believe the statements of Polish defendants, according to the testimony in this case. These two young Polish women were sentenced to death and executed 4 days after trial. In the view of this Tribunal, based upon the evidence, these two young women did not have what amounted to a trial at all but were executed because they were Polish nationals in conformity with the Nazi plan of persecution and extermination.
The second case to be considered is the Lopata case. This was a case in which a young Polish farmhand, approximately 25 years of age, is alleged to have made indecent advances to his employer’s wife.
He first was tried in the district court at Neumarkt. That court sentenced him to a term of 2 years in the penitentiary. A nullity plea was filed in this case before the Reich Supreme Court, and the Reich Supreme Court returned the case to the Special Court at Nuernberg for a new trial and sentence. The Reich Supreme Court stated that the judgment of the lower court was defective, since it did not discuss in detail whether the ordinance against public enemies was applicable and stated that if such ordinance were applicable--a thing which seemed probable, a much more severe sentence was deemed necessary.
The case was therefore again tried in violation of the fundamental principles of justice that no man should be tried twice for the same offense.
In the second trial of the case, the defendant Rothaug obligingly found that the ordinance against public enemies had been violated.
In its reasons, the court states the facts on which the verdict was based as follows:
“The wife of farmer Schwenzl, together with the accused and a Polish girl, chopped straw in the barn. The accused was standing on the righthand side of the machine to carry out the work. Suddenly, in the middle of the work, the accused, without saying anything, touched with his hand the genitals of the wife of farmer Schwenzl, through her skirt. When she said, after this unexpected action of the defendant, ‘You hog, do you think I am not disgusted about anything; you think you can do that because my husband is sick,’ the accused laughed and in spite of this dissuasion touched again the genitals of the farmer’s wife above her skirt. The wife of farmer Schwenzl slapped him after that. In spite of this, the accused continued with his impertinent behavior; for a third time he touched the genitals of the farmer’s wife above the skirt.
* * * * * * *
“The accused did not make a complete confession. He states that he only once, for fun, touched the farmer’s wife’s genitals above the skirt.
“The court is convinced, on account of the testimony given by the witness Therese Schwenzl, who makes a trustworthy impression, that the affair occurred exactly as described by the witness. Therefore, its findings were arrived at according to the testimony given by her.”
The Polish woman who was present at the time of this alleged assault is not listed as a witness. Rothaug has stated in his testimony before this Court that he never had a Polish witness.
As for the reasons for bringing the defendant under the public enemy ordinance, the following facts are stated in the reasons for the verdict: Lopata having had some minor difficulties with the farmer Schwenzl refused to eat his noon meal and induced the Polish servant maid to do likewise. Thereupon, farmer Schwenzl, his employer, called him to account in the stable. The defendant put up resistance to the farmer’s “admonitions” by arming himself with a dung fork. It is further stated that the Pole, at the threshold of the farm hallway, again turned against his employer and let him go only when attacked by the sheep dog which the farmer kept.
As to the actual reasons for the sentence of this Polish farmhand to death, the following paragraphs are more significant:
“Thus, the defendant gives the impression of a thoroughly degenerate personality, which is marked by excitability and a definite trend to mendacity, or to lying. The whole inferiority of the defendant, I would say, lies in the sphere of character and is obviously based on his being a part of Polish subhumanity, or in his belonging to Polish subhumanity.
“The drafting of men into the armed forces effected a heavy labor shortage in all spheres of life at home, last but not least in agriculture. To compensate this, Polish laborers, among others, had to be used to a large extent, mainly as farmhands.
“These men cannot be supervised by the authorities to such an extent as would be necessary due to their insubordinate and criminal disposition.
* * * * * * *
“The action of the defendant constitutes a considerable disturbance of the peace of the persons immediately concerned by his mean actions. The rural population has the right to expect that the strongest measures will be taken against such terrorization by foreign elements. But beyond disregarding the honor of the wife of farmer Schwenzl, the attack of the defendant is directed against the purity of the German blood. Looking at it from this point of view, the defendant showed such insubordination within the German living space that his action has to be considered as especially significant. * * *
“Accordingly, as outlined in article III, paragraph 2, second sentence of the ordinance against Poles and Jews, the crime of the defendant, which in connection with his other behavior shows a climax of unheard-of impudence, has to be considered as especially serious so that the death sentence had to be passed as the only just expiation, which is also necessary in the interest of the Reich security to deter Poles of similar mentality.”
The defendant was sentenced under the ordinance against Poles and Jews in the Incorporated Eastern Territories. The verdict was signed by the defendant Rothaug, and an application for clemency was disapproved by him.
When on the witness stand, the defendant Rothaug was asked the following question by the court:
“* * * 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 Supreme Court would have ordered the case sent back to you for another trial? I should like your opinion on that.”
Rothaug replied as follows to this question:
“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 the same in the case of a German.”
Lopata was sentenced to death and subsequently executed.
The third case to be considered is that of Leo Katzenberger. The record in this case shows that Lehmann Israel Katzenberger, commonly called Leo Katzenberger, was a merchant and head of the Jewish community in Nuernberg; that he was “sentenced to death for an offense under paragraph 2, legally identical with an offense under paragraph 4 of the decree against public enemies in connection with the offense of racial pollution.” The trial was held in the public session on 13 March 1942. Katzenberger’s age at that time was over 68 years.
The offense of racial pollution with which he was charged comes under article 2 of the Law for the Protection of German Blood and Honor. This section reads as follows:
“Sexual intercourse (except in marriage) between Jews and German nationals of German or German-related blood is forbidden.”
The applicable sections of the Decree Against Public Enemies reads as follows:
“Section 2
“Crimes During Air Raids
“Whoever commits a crime or offense against the body, life, 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 4
“Exploitation of the State of War a Reason for More Severe Punishment
“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.”
The evidence in this case, aside from the record, is based primarily upon the testimony of Hans Groben, the investigating judge who first investigated the case; Hermann Markl, the official who prosecuted the case; Karl Ferber, who was one of the associate judges in the trial; Heinz Hoffmann, who was the other associate judge in the trial; Armin Baur, who was medical expert in the trial; Georg Engert, who dealt with clemency proceedings; and Otto Ankenbrand, another investigating judge.
The salient facts established in connection with this case are in substance as follows: Sometime in the first half of the year 1941 the witness Groben issued a warrant of arrest against Katzenberger, who was accused of having had intimate relations with the photographer Seiler. According to the results of the police inquiry, actual intercourse had not been proved, and Katzenberger denied the charge. Upon Groben’s advice, Katzenberger agreed that he would not move against the warrant of arrest at that time but would await the results of further investigation. These further investigations were very lengthy, although Groben pressed the public prosecutor for speed. The police, in spite of their efforts, were unable to get further material evidence, and it became apparent that the way to clarify the situation was to take the sworn statement of Seiler, and this was done.
In her sworn statement she said that Katzenberger had known both her and her family for many years before she had come to Nuernberg and that his relationship to her was a friendly and fatherly one and denied the charge of sexual intercourse. The evidence also showed that Katzenberger had given Seiler financial assistance on various occasions and that he was administrator of the property where Seiler lived, which was owned by a firm of which he was a partner. Upon Seiler’s statement, Groben informed Dr. Herz, counsel for Katzenberger, of the result and suggested that it was the right time to move against the warrant of arrest.
When this was done, Rothaug learned of it and ordered that the Katzenberger case be transferred from the criminal divisional court to the Special Court. The first indictment was withdrawn, and another indictment was prepared for the Special Court.
The witness Markl states that Rothaug dominated the prosecution, especially through his close friendship with the senior public prosecutor, Dr. Schroeder, who was the superior of Markl.
The indictment before the Special Court was prepared according to the orders of Rothaug, and Katzenberger was not charged only with race defilement in this new indictment, but there was also an additional charge under the decree against public enemies, which made the death sentence permissible. The new indictment also joined the Seiler woman on a charge of perjury. The effect of joining Seiler in the charge against Katzenberger was to preclude her from being a witness for the defendant, and such a combination was contrary to established practice. Rothaug at this time told Markl that there was sufficient proof of sexual intercourse between Seiler and Katzenberger to convince him, and that he was prepared to condemn Katzenberger to death. Markl informed the Ministry of Justice of Rothaug’s intended procedure against Katzenberger and was told that if Rothaug so desired it, the procedure would be approved.
Prior to the trial, the defendant Rothaug called on Dr. Armin Baur, medical counsellor for the Nuernberg Court, as the medical expert for the Katzenberger case. He stated to Baur that he wanted to pronounce a death sentence and that it was, therefore, necessary for the defendant to be examined. This examination, Rothaug stated, was a mere formality since Katzenberger “would be beheaded anyhow.” To the doctor’s reproach that Katzenberger was old, and it seemed questionable whether he could be charged with race defilement, Rothaug stated:
“It is sufficient for me that the swine said that a German girl had sat upon his lap.”
The trial itself, as testified to by many witnesses, was in the nature of a political demonstration. High Party officials attended, including Reich Inspector Oexle. Part of the group of Party officials appeared in uniform.
During the proceedings, Rothaug tried with all his power to encourage the witnesses to make incriminating statements against the defendants. Both defendants were hardly heard by the court. Their statements were passed over or disregarded. During the course of the trial, Rothaug took the opportunity to give the audience a National Socialist lecture on the subject of the Jewish question. The witnesses found great difficulty in giving testimony because of the way in which the trial was conducted, since Rothaug constantly anticipated the evaluation of the facts and gave expression to his own opinions.
Because of the way the trial was conducted, it was apparent that the sentence which would be imposed was the death sentence.
After the introduction of evidence was concluded, a recess was taken, during which time the prosecutor Markl appeared in the consultation room and Rothaug made it clear to him that he expected the prosecution to ask for a death sentence against Katzenberger and a term in the penitentiary for Seiler. Rothaug at this time also gave him suggestions as to what he should include in his arguments.
The reasons for the verdict were drawn up by Ferber. They were based upon the notes of Rothaug as to what should be included. Considerable space is given to Katzenberger’s ancestry and the fact that he was of the Mosaic faith, although that fact was admitted by Katzenberger. Such space is also given to the relationship between Katzenberger and Seiler. That there was no proof of actual sexual intercourse is clear from the opinion. The proof seems to have gone little farther than the fact that the defendant Seiler had at times sat upon Katzenberger’s lap and that he had kissed her, which facts were also admitted. Many assumptions were made in the reasons stated which obviously are not borne out by the evidence. The court even goes back to the time prior to the passage of the law for the protection of German Blood and Honor, during which Katzenberger had known Seiler. It draws the conclusion apparently without evidence, that their relationship for a period of approximately 10 years, had always been of a sexual nature. The opinion undertakes to bring the case under the decision of the Reich Supreme Court that actual sexual intercourse need not be proved, provided the acts are sexual in nature.
Having wandered far afield from the proof to arrive at this conclusion as to the matter of racial pollution, the court then proceeds to go far afield in order to bring the case under the decree against public enemies. Here the essential facts proved were that the defendant Seiler’s husband was at the front and that Katzenberger, on one or possibly two occasions, had visited her after dark. On both points the following paragraphs of the opinion are enlightening (NG-154, Pros. Ex. 152):
“Looked at from this point of view, Katzenberger’s conduct is particularly contemptible. Together with his offense of racial pollution he is also guilty of an offense under paragraph 4 of the ordinance against people’s parasites.[671] It should be noted here that the national community is in need of increased legal protection from all crimes attempting to destroy or undermine its inner cohesion.
“On several occasions since the outbreak of war the defendant Katzenberger crept into Seiler’s flat after dark. In those cases the defendant exploited the measures taken for the protection in air raids. His chances were further improved by the absence of the bright street lighting which exists in the street along Spittlertorgraben in peacetime. He exploited this fact fully aware of its significance because thus he instinctively escaped during his excursions being observed by people in the street.
“The visits paid by Katzenberger to Seiler under the protection of the black-out served at least the purpose of keeping relations going. It does not matter whether during these visits extra-marital sexual relations took place or whether they only conversed as when the husband was present, as Katzenberger claims. The request to interrogate the husband was therefore overruled. The court holds the view the defendant’s actions, done with a purpose within a definite plan, amount to a crime against the body according to paragraph 2 of the ordinance against people’s parasites. The law of 15 September 1935 has been passed to protect German blood and German honor. The Jew’s racial pollution amounts to a grave attack on the purity of German blood, the object of the attack being the body of a German woman. The general need for protection therefore makes appear as unimportant the behavior of the other partner in racial pollution who anyway is not liable to prosecution. The fact that racial pollution occurred up to at least 1939–1940 becomes clear from statements made by the witness Zeuschel to whom the defendant repeatedly and consistently admitted that up to the end of 1939 and the beginning of 1940 she was used to sitting on the Jew’s lap and exchanging caresses as described above.
“Thus, the defendant committed an offense also under paragraph 2 of the ordinance against people’s parasites.
“The personal character of the male defendant also stamps him as a people’s parasite. The racial pollution practiced by him through many years grew, by exploiting wartime conditions, into an attitude inimical to the nation, into an attack on the security of the national community, during an emergency.
“This was why the defendant Katzenberger had to be sentenced both on a charge of racial pollution and of an offense under paragraphs 2 and 4 of the ordinance against people’s parasites, the two charges being taken in conjunction according to paragraph 73 of the criminal code.
* * * * * * *
“In passing sentence the court was guided by these considerations: The political life of the German people under national socialism is based on the community. One fundamental factor of the life of the national community is race. If a Jew commits racial pollution with a German woman, this amounts to polluting the German race and, by polluting a German woman, to a grave attack on the purity of German blood. The need for protection is particularly strong.
“Katzenberger has been practicing pollution for years. He was well acquainted with the point of view taken by patriotic German men and women as regards racial questions, and he knew that by this conduct he insulted the patriotic feelings of the German people. Nor did he mend his ways after the National Socialist revolution of 1933, after the passing of the law for the protection of German blood, in 1935, after the action against Jews in 1938, or the outbreak of war in 1939.
“The court therefore regards it as indicated, as the only feasible answer to the frivolous conduct of the defendant, to pass death sentence, as the heaviest punishment provided by paragraph 4 of the decree against public enemies. His case takes on the complexion of a particularly grave crime as he was to be sentenced in connection with the offense of committing racial pollution, under paragraph 2 of the Decree Against Public Enemies, especially if one takes into consideration the defendant’s character and the accumulative nature of commission. This is why the defendant is liable to the death penalty which the law provides for only such cases. Dr. Baur, the medical expert, describes the defendants fully responsible.”
We have gone to some extent into the evidence of this case to show the nature of the proceedings and the animus of the defendant Rothaug. One undisputed fact, however, is sufficient to establish this case as being an act in furtherance of the Nazi program to persecute and exterminate Jews. That fact is that nobody but a Jew could have been tried for racial pollution. To this offense was added the charge that it was committed by Katzenberger through exploiting war conditions and the black-out. This brought the offense under the ordinance against public enemies and made the offense capital. Katzenberger was tried and executed only because he was a Jew. As stated by Elkar in his testimony, Rothaug achieved the final result by interpretations of existing laws as he boasted to Elkar he was able to do.
This Tribunal is not concerned with the legal incontestability under German law of these cases above discussed. The evidence establishes beyond a reasonable doubt that Katzenberger was condemned and executed because he was a Jew; and Durka, Struss, and Lopata met the same fate because they were Poles. Their execution was in conformity with the policy of the Nazi State of persecution, torture, and extermination of these races. The defendant Rothaug was the knowing and willing instrument in that program of persecution and extermination.
From the evidence it is clear that these trials lacked the essential elements of legality. In these cases the defendant’s court, in spite of the legal sophistries which he employed, was merely an instrument in the program of the leaders of the Nazi State of persecution and extermination. That the number the defendant could wipe out within his competency was smaller than the number involved in the mass persecutions and exterminations by the leaders whom he served, does not mitigate his contribution to the program of those leaders. His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression.
The individual cases in which Rothaug applied the cruel and discriminatory law against Poles and Jews cannot be considered in isolation. It is of the essence of the charges against him that he participated in the national program of racial persecution. It is of the essence of the proof that he identified himself with this national program and gave himself utterly to its accomplishment. He participated in the crime of genocide.
Again, in determining the degree of guilt the Tribunal has considered the entire record of his activities, not alone under the head of racial persecution but in other respects also. Despite protestations that his judgments were based solely upon evidence introduced in court, we are firmly convinced that in numberless cases Rothaug’s opinions were formed and decisions made, and in many instances publicly or privately announced before the trial had even commenced and certainly before it was concluded. He was in constant contact with his confidential assistant Elkar, a member of the criminal SD, who sat with him in weekly conferences in the chambers of the court. He formed his opinions from dubious records submitted to him before trial. By his manner and methods he made his court an instrumentality of terror and won the fear and hatred of the population. From the evidence of his closest associates as well as his victims, we find that Oswald Rothaug represented in Germany the personification of the secret Nazi intrigue and cruelty. He was and is a sadistic and evil man. Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant Rothaug is guilty under count three of the indictment. In his case we find no mitigating circumstances; no extenuation.
THE DEFENDANT BARNICKEL
The evidence has not convinced the Tribunal beyond a reasonable doubt of the guilt of the defendant Barnickel. He is therefore acquitted on all counts.
THE DEFENDANT PETERSEN
Upon the evidence submitted, it is the judgment of this Tribunal that the defendant Hans Petersen is not guilty under any of the counts charged against him in the indictment.
THE DEFENDANT NEBELUNG
Upon the evidence submitted, it is the judgment of this Tribunal that the defendant Nebelung is not guilty under any of the counts charged against him in the indictment.
THE DEFENDANT CUHORST
The defendant Cuhorst is charged under counts two, three, and four of the indictment.
There is no evidence in this case to substantiate the charge under count two of the indictment.
As to count four, the proof establishes that Cuhorst was a Gaustellenleiter and so a member of the Gau staff and a “sponsoring” member of the SS. His function as Gaustellenleiter was that of a public propaganda speaker.
In its judgment the International Military Tribunal, in defining the members of the Party Leadership Corps who came under its decision as being members of a criminal organization, states the following:
“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.”
There is no evidence in this case which shows that the office of Gaustellenleiter was the head of any office on the staff of the Gauleitung.
With regard to the SS the judgment of the International Military Tribunal is as follows:
“The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph 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 * * *.”[672]
Referring back to the membership enumerated, the judgment declares:
“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.”[673]
It is not believed by this Tribunal that a sponsoring membership is included in this definition.
The Tribunal therefore finds the defendant Cuhorst not guilty under counts two and four of the indictment.
As to count three the problem is considerably more complicated. There are many affidavits and much testimony in the record as to the defendant’s character as a fanatical Nazi and a ruthless judge. There is also much evidence as to the arbitrary, unfair, and unjudicial manner in which he conducted his trials. Some of the evidence against him was weakened on cross-examination, but the general picture given of him as such a judge is one which the Tribunal accepts.
The cases to be considered as connecting him with crimes established in this case under count three involve the question as to whether the evidence establishes his connection with the persecution of Poles. In this connection we have given particular consideration to the Skowron and Pietra cases.
Unfortunately the records of the Special Court at Stuttgart were destroyed at the time that the Palace of Justice in Stuttgart was burned. There are therefore no records available as to the cases tried by Cuhorst.
From the evidence available, this Tribunal does not consider that it can say beyond a reasonable doubt that the defendant was guilty of inflicting the punishments which he imposed on racial grounds or that it can say beyond a reasonable doubt that he used the discriminatory provisions of the decree against Poles and Jews to the prejudice of the Poles whom he tried.
While the defendant Cuhorst followed a misguided fanaticism, certain things can be said in his favor. He was severely criticized for his leniency by the defendant Klemm in a number of cases which he tried. He was tried by a Party court for statements considered to reflect upon the Party, which he made in a trial involving Party officials. Subsequently he was relieved as a judge in Stuttgart because he apparently did not conform to what the State and Party demanded of a judge.
This Tribunal does not consider itself commissioned to try the conscience of a man or to condemn a man merely for a course of conduct foreign to its own conception of the law, it is limited to the evidence before it as to the commission of certain alleged offenses. Upon the evidence before it, it is the judgment of this Tribunal that the defendant Cuhorst has not been proved guilty beyond a reasonable doubt of the crimes alleged and that he be, therefore, acquitted on the charges against him.
THE DEFENDANT OESCHEY
The defendant Oeschey joined the NSDAP on 1 December 1931. He was war representative for the Gau Main Office for legal aid and legal advice. After filling other offices he was appointed on 1 January 1939 to the office of senior judge of the district court at Nuernberg, which office he held until 1 April 1941. He was then appointed district court director at the same court. He was a presiding judge of the Special Court in Nuernberg.
By decree of 30 July 1940 of the Reich legal office of the NSDAP, he was provisionally commissioned with the direction of the legal office of the NSDAP in the Franconia Gau, and the leadership of the Franconia Gau in the NSRB, the National Socialist Lawyers’ League. He carried out his duties in the Leadership Corps of the Party at the same time that he was serving as a judge of the Special Court. His personnel file in the Reich Ministry of Justice shows that he was highly recommended for his Party reliability by at least five different public officials.
He was drafted into the army in February 1945, and remained in the army until the end of the war; however, he was released for the period from 4 April until 14 April 1945, during which time he functioned as chairman of the civilian court martial at Nuernberg. The record discloses that he and the defendant Rothaug were the guiding, if not controlling, spirits of the Special Court at Nuernberg, which was known as the most brutal of the special courts in Germany.
Among many cases which gave evidence of his arbitrary character we will give detailed attention to two:
In March 1943, Sofie Kaminska, a widowed Polish farm laborer, and Wasyl Wdowen, a Ukrainian, were indicted before the Special Court at Nuernberg for alleged crimes as follows:
Kaminska for a violation of the law against Poles and Jews in connection with the crime of assault and battery and threat and resistance to an officer; Wdowen for the alleged crime of being accessory to a crime according to the law against Poles and Jews, and for attempting to free a prisoner. The case was tried before the Special Court, the defendant Oeschey presiding.
The facts on which the sentence was based may, with complete fairness to the defendant Oeschey, be very briefly summarized. Shortly after the invasion of Poland, Kaminska “came to Germany, being committed to work there.” Kaminska and Wdowen were lovers. They were both working for a farmer, Gundel. They demanded pay from Gundel, which was refused, and they became more insistent. “The defendant Wdowen actually gave the farmer a push.” “In his distress Gundel called for help of the Pfc. Anton Wanner who was in uniform and happened to be spending his leave there.” A quarrel followed. Kaminska slapped the soldier’s face, and the soldier slapped her face. During the dispute the soldier’s combat infantryman’s badge fell to the ground. There were various demonstrations; the soldier drew his bayonet, and Kaminska ran out of the room and took a hoe, but did not get a chance to attack the soldier because he closed the door. Shortly thereafter, the soldier was riding on his bicycle and the Pole, Kaminska, threw a stone at him without, however, hitting him. The next day a police official came out to the farm and arrested Kaminska who followed him “unwillingly.” Wdowen, contrary to the instructions of the police officer, followed them. The policeman slapped Wdowen’s face twice to force him to turn back. Nevertheless, Wdowen followed to the door of the cell and attempted to assist the Polish woman, Kaminska, in resisting imprisonment. The very most that can possibly be said of the evidence, as stated by the defendant Oeschey himself, is that there was a good squabble with mutual recriminations and threats. It is to be understood that many of the statements heretofore made, as quoted from the opinion, were denied by the defendants in that case but, as before stated, we do not retry the case upon the facts. The court argues at great length concerning the claim of the prosecution that the stone weighed a half a pound and should be considered equal to a cutting or thrusting weapon. The court said:
“The defendant had the insolence to attack a German soldier; she took up an offensive position which would have led to a great blood bath if the soldier had not evaded the stone which was hurled at him.”
The court said of Kaminska (NG-457, Pros. Ex. 201): “She thereby characterizes herself as a Polish violent criminal,” and then stated:
“As the defendant on 1 September 1939 was a resident in the territory of the former Polish state, she had to be found guilty, in application of paragraphs II, III, and XIV of the Penal Law against Poles, of a crime of assault and battery in coincidence with a crime of threat, a crime under paragraph 1, section 1, of the law against violent criminals, and of a crime of offering resistance to the authority of a state.”
The fact that the discriminatory law against Poles was invoked in this case is established. The opinion signed by Oeschey states:
“Under paragraph III, section 2, of the Penal Law against Poles, the death sentence must be passed if the law threatens with it.”
Concerning Wdowen, who was a Ukrainian and therefore could not be sentenced under the law against Poles, the court commented on the fact that he knew that the Germany economy, on account of wartime conditions, was dependent on foreign labor, “in particular, labor from the eastern territories.” The court drew the conclusion that Wdowen, who had used at most only a little force in attempting to protect Kaminska, was guilty of having taken advantage of extraordinary wartime conditions and of violating the law against violent criminals. Both defendants were sentenced to death by the defendant Oeschey. The associated judges in the Kaminska and Wdowen case were Doctors Gros and Pfaff. They are guilty of having signed the judgment. Both submitted affidavits and both were cross-examined before this Tribunal. Dr. Gros stated that Oeschey demanded the severest countermeasures in similar cases. “We associate judges were powerless toward such an attitude. It must be mentioned that none of the defendants had criminal records, and that they were eliminated in a most objectionable way by Oeschey for racial and political reasons.”
The other associate judge, Dr. Theodor Pfaff, spoke of the Kaminska case as “the most terrible of my entire career. * * * The sentence of death and the consequent execution of these Poles offended my sense of ethics and has continually preyed upon my conscience. I would like to state here that Oeschey forced his will upon us.”
The two associate judges are to be condemned for their spineless attitude in submitting to the domination of the defendant Oeschey, but we cannot fail to give weight to their statements, which in effect amount to confessions of their own wrongdoing.
In this case Oeschey, with evil intent, participated in the government-organized system for the racial persecution of Poles. This is also a case of such a perversion of the judicial process as to shock the conscience of mankind.
The progressive degeneration in the administration of justice came to a climax in 1944 and 1945. A decree by Thierack on 13 December 1944 abrogated the rules concerning the obligatory representation of accused persons by defense counsel. It was left for the judge to decide whether defense counsel was required. On 15 February 1945 as a final measure of desperation and in the face of imminent defeat, the law was passed for the establishment of civilian courts martial. The statute provided that sentence should be either death, acquittal, or commitment to the regular court. Pursuant to this law Gauleiter Holz set up a drumhead court martial in Nuernberg. It consisted of the defendant Oeschey as presiding judge, with Gau Inspector Haberkern and a major in the Wehrmacht as associate judges. On 2 April 1945 Karl Schroeder was appointed prosecutor. The judges and prosecutor then went to the office of the Gauleiter, where he delivered a speech in which he stated:
“That the main point was to stop the American advance; one could count upon introduction of new weapons, and that he expected that the court martial would give the necessary support to the army at the front by applying the severest measures.”
The officials were sworn in on 3 April. The affidavit of Schroeder, who later appeared for cross-examination, discloses that Holz intended that the first case be tried on the third day of April. Schroeder stated this would be impossible because he would need time to examine the case. The first case to be tried was that of Count Montgelas. Schroeder states that the case was the most difficult in his practice, but that it had to be tried “because the Gauleitung pressed for a quick decision of this matter”. The defendant Oeschey testified concerning the court martial procedure as follows:
“Proceedings were to follow the provisions laid down in the Code of Criminal Procedure which had been very strongly simplified. Nevertheless, the court martial had observed in its proceedings the most important principles of protecting the interest of the defendant. The defendant’s right to be heard, oral trial, admission of defense counsel, thorough presentation of evidence, a freedom of the judge to go into the evidence, a vote among the judges, and so forth.”
The procedure followed by Oeschey as presiding judge in the case Montgelas did not conform to the foregoing statement. Count Montgelas had for some time been represented by defense counsel Eichinger, who had an office in the courthouse adjacent to that of the prosecutor, and who had had dealings with the prosecutor concerning the Montgelas case. The defendant Oeschey testified that he had directed that Eichinger be notified concerning the trial, but in any event Eichinger was not notified and Oeschey informed the prosecutor that he would conduct the trial without defense counsel because the “legal prerequisites for trial without defense counsel did exist.” He apparently had reference to Thierack’s decree of 13 December 1944, supra.[674] Eichinger, as attorney for Count Montgelas, received his first information concerning the trial after Montgelas had been convicted and shot.
The statute creating civilian courts martial specifically provided that they should consist of “a judge of a criminal court, as president * * *.” At the time of his appointment, Oeschey was a soldier serving in the Wehrmacht and was not a judge of a criminal court. He testified that the statute meant only that it was necessary “that a man be appointed who has the qualifications to exercise the function of a judge.”
The Nuernberg civilian court martial functioned for the first time on 5 April, held ten sessions, and disposed of twelve defendants, ten of whom were charged with political offenses. On 16 April the American Army was approaching Nuernberg, and on that date at noon the civilian court martial ceased to function.
An exhibit was offered in evidence containing the results of an official investigation of the defendant Oeschey and prosecutor Schroeder for perversion of justice, conducted in August 1946, before German judicial authorities. An objection to the receipt of the exhibit was first made by counsel for Oeschey but was later withdrawn. The exhibit was received and is before us for consideration. From this exhibit we learn that Dr. Wilhelm Eser was the investigating judge in the Montgelas case. He states that at the hearing of Montgelas a Gestapo official was present, and that if Montgelas had not been arrested the official would have taken him back to the Gestapo “as it was demanded in the record of the investigation * * *.” Eichinger, who appeared as a witness before this Tribunal, had been employed in February by Countess Montgelas to defend her husband. He stated that he had conferred with Prosecutor Dr. Mueller and had been informed that the prosecutor recognized--
“* * * the competence of the People’s Court and therefore he had submitted the record of the case to the chief public prosecutor at the People’s Court for a decision. I asked him to inform me immediately after the record was returned, respectively, after receiving the decision of the chief public prosecutor. He promised me this, and I was completely reassured.”
At this time Montgelas was in the sick ward of the prison for solitary confinement. On 10 April Eichinger went to the prison office to examine the files in the Montgelas case, whereupon the director of Nuernberg prison informed me confidentially that Count Montgelas had been summoned before the court martial on 5 April at 2 p.m., sentenced to death, and shot the next day. The crime for which Count Montgelas had been shot consisted of remarks made by him in a private room in the Grand Hotel to a lady, Mrs. Pfleger, of Bamberg. The Count had made insulting remarks concerning Hitler, among others to the effect that his true name was Schickelgruber. He also expressed approval of the attempt upon Hitler’s life of 20 July 1944. We are convinced from the testimony of Eichinger before this Tribunal that if any serious effort had been made he could have been notified prior to the trial of his client. Eichinger expressed the opinion with which this Tribunal concurs, that a summons issued at 1400 hours to appear at 1500 hours before a court martial is an offense against justice. The only witness who appeared against Count Montgelas was an SS Fuehrer, who had been shadowing him for many days in an attempt to secure evidence against him. By concealing himself in an adjoining room and by the use of a mechanical device, he was able to overhear the conversation between Montgelas and the lady and to testify concerning it. Eichinger states that the statements of the SS Fuehrer who was the eavesdropper at the hotel were “in important points contradictory” to the statements Montgelas had made to his attorney and that the latter had already proposed to summon the lady with whom Montgelas had conversed as a rebuttal witness in behalf of the Count.
The wife of the martyr Montgelas stated in the official investigation that Chief Prosecutor Schroeder told her that “there had not been time to comply with my husband’s urgent request to get a defense counsel.” Schroeder also told the Countess that she was not to be given any information on the disposal of the body of her husband because he had died a dishonorable death. Thus, on the last days of the war, when the American Army was almost at the gates of Nuernberg, and within a month of the total collapse of German opposition, a sick man, after solitary confinement, is indicted on 3 April, tried on 5 April, and shot on 6 April without the knowledge of his counsel in secret proceedings, and without the benefit of witnesses who would have testified for him. Such a mock trial is not a judicial proceeding but a murder.
It is provided in C. C. Law 10 that persecutions on political as well as racial grounds are recognized as crimes. While the mere fact alone that Montgelas was prosecuted for remarks hostile to the Nazi regime may not constitute a violation of C. C. Law 10, the circumstances under which the defendant was brought to trial and the manner in which he was tried convince us that Montgelas was not convicted for undermining the already collapsed defensive strength of the defeated nation, but on the contrary, that the law was deliberately invoked by Gauleiter Holz and enforced by Oeschey as a last vengeful act of political persecution. If the provisions of C. C. Law 10 do not cover this case, we do not know what kind of political persecution it would cover.
We have already indicated that we will not convict any defendant merely because of the fact, without more, that he participated in the passing or enforcement of laws for the punishment of habitual criminals, looters, hoarders, or those guilty of undermining the defensive strength of the nation, but we also stated that these laws were in many instances applied in an arbitrary and brutal manner shocking to the conscience of mankind and punishable here. This was the situation in a number of cases tried by Rothaug and Oeschey, but concerning which we have no transcript of testimony and we must therefore of necessity rely upon statements of associates and close observers. In this connection we shall have reference to affidavits and to testimony of associates of the defendant Oeschey. We shall refer to statements of affiants only in those cases in which the affiant was also brought to court and verbally cross-examined concerning his statements.
Dr. Hermann Mueller was a prosecutor at the Special Court in Nuernberg. He said:
“He (Oeschey) frequently insulted the defendants and presented the crimes to them as if these crimes were already a proven fact. His behavior was often so extreme that one might well believe he was a psychopathic case. The abusive insults that he inflicted upon the defendants were, to the highest degree, unworthy of a court trial. He wielded such influence over the form of the administration of justice through his close Party affiliations that the other officials of equal rank at the Nuernberg administration of criminal justice were almost always forced to yield.”
Mueller mentions several cases in which Oeschey announced before trial that the defendant would be executed. In a case against Schnaus he states that Oeschey--
“* * * told me that, as a result of a discussion with government officials, he was certain to obtain the death sentence. At that time I was still unaware of the changed situation at the Special Court occasioned by the war, and turned to my immediate superior for information. He then informed me of the very close relations existing between judges and the prosecutors.”
Concerning the case Montgelas, Mueller stated:
“Concerning the case of Montgelas it must be pointed out that this was a case of political extermination, which was handled in a most hideous fashion.”
Again, he said:
“Oeschey was the most brutal judge that I have ever known in my life and a most willing instrument of the Nazi terroristic justice.”
Dr. Armin Baur was the medical officer at the Special Court. He said:
“One always had the impression that the verdict was already previously decided upon and that Oeschey and Rothaug were just playing cat and mouse with the defendants for hours. No occasion was missed to insult the defendants in the filthiest way.”
This medical expert dealt with cases which were tried both by Rothaug and by Oeschey. In the Katzenberger case the defendant Rothaug told the doctor that he wanted the defendant examined but that the examination was a matter of pure formality because the Jew “would be beheaded anyhow,” and he added, “It is sufficient for me that the swine said that a German girl sat on his lap.” Dr. Baur states that “foreigners were generally dealt with by Rothaug and Oeschey as inferior beings whose task it was only to serve the German master race.”
Hans Kern, defense counsel, stated “that foreigners were told at the beginning and throughout the trial that they were to be annihilated.” Again he said:
“Rothaug and Oeschey declined, as a matter of principle, to believe Polish citizens who were under accusation. They were branded as liars. It was assumed that their innate tendency made liars of them.”
He described Oeschey as a “notorious Pole baiter.”
Dr. Gustav Kunz, leading court doctor at Nuernberg, was an excellent and reliable witness. He stated:
“Insult, humiliation, and mental torture of the defendants were routine and the two judges, especially Oeschey, did not even renounce them in cases in which--according to the legal situation--the verdict had to be and actually was acquittal or an insignificant sentence.”
Kurt Hoffmann, prosecutor at Nuernberg, states that Oeschey was severe as to the German defendants and was--
“* * * even more severe with regard to sentences against foreigners and much more furious in his conduct of their trials, especially in the case of Poles.”
Adolf Paulus, former public prosecutor, speaks of the “brutality of which only Oeschey was capable.”
Friedrich Doebig, who was president of the district court of appeals at Nuernberg, later senate president of the Reich Supreme Court, stated that “Oeschey like Rothaug was a fanatical Nazi, who consistently interpreted and enforced the law in accord with Nazi ideologies.”
Dr. Herbert Lipps served with defendant Oeschey on the Special Court, Nuernberg. He states that Oeschey was autocratic and would not tolerate contradiction.
“Defendants were insulted by Oeschey in the most abusive manner and death candidates were told by Oeschey right at the beginning of the session that they had forfeited their lives.
“Toward foreigners, particularly Poles, Oeschey was especially rigorous and here upheld the National Socialist theory of liquidating where nationals of the occupied territories were concerned. I remember a case in which a Polish farmhand was ill-treated by his employer and defended himself. Oeschey told the defendant that a Pole was not allowed to oppose a German.”
Dr. Franz Gros was an associate judge at Nuernberg. He states that Oeschey followed the harsh procedural methods of Rothaug and was a “fanatic National Socialist who pursued his dishonorable motives with conviction and who willingly lent his hand to blood-thirsty National Socialist jurisdiction.”
Dr. Pfaff was an associate judge at Nuernberg and corroborates the statements of Dr. Gros.
Dr. Joseph Mayer was a Referent in the prosecutor’s office at Nuernberg. Concerning Oeschey, he said:
“Oeschey * * * was obviously of Rothaug’s school. Outwardly he gave the impression of being morose and unrelenting. I cannot remember ever having had a personal conversation with him. As a rule he began the proceedings with a preconceived opinion to which he adhered. Anyone who tried to oppose this opinion was overridden by him in the most brutal way. He insulted the defendants all the time in a most offensive manner, informing them repeatedly all the way through, what he intended to do with them. He had an extensive vocabulary of invectives for that purpose, the use of which he developed to a fine art. * * * It was literally tormenting if one had to listen to this tirade often for hours at a time. When his face became distorted into a repulsive mask by his continual scolding and abusive language, Faust’s words to Mephistopheles would often quite involuntarily come to my mind: ‘Thou freak of filth and fire.’”
Joseph Eichinger, defense attorney at Nuernberg, stated:
“His prejudice was so strong that he did not consider, seriously, the statements of the defense and dismissed them rudely or ironically. Even during the trial he repeatedly addressed the defendant thus: ‘People such as you deserve to be exterminated,’ ‘You will be convicted;’ or he called the defendant insulting and humiliating names such as ‘criminal,’ or ‘scoundrel,’ ‘enemy of the people.’”
Again, he said:
“As leader of the Gau legal office (Gaurechtsamt) and, after the latter’s disbanding, as member in the Gau staff (Gaustab), he enjoyed a special position of power which enabled him to hold the defense strongly in check; it was well known that a sign from the Gau authorities, instigated by Oeschey, was sufficient to have a lawyer turned over to the Gestapo.
“I had the impression that he supported, knowingly and willingly, the policy of Hitler to ‘decimate’ (Dezimierung) aliens, especially Poles, by increasing the number of death sentences against them * * *.”
On cross-examination Eichinger admitted that he did not know of any lawyer who had been turned over to the Gestapo by Oeschey. It is clear that in his statements Eichinger was relying only upon general information as the basis of his opinion. We think, however, that his opinion merits consideration.
Dr. Karl Mayer, defense counsel, said that Rothaug was judge of the worst Special Court in Germany and used to tell defendants even during the trial that they would be exterminated. He adds that after Rothaug was transferred to Berlin, Oeschey even surpassed him in the spitefulness of his manner. Space does not permit the discussion of the other cases which illustrate Oeschey’s ruthless exercise of arbitrary power. Mention should, however, be made of the trial of a group of foreign boys who had some fights with boys in the Nuernberg Hitler Youth Home. Dr. Mueller characterizes the action of the boys as harmless pranks. At worst they were indulging in street fights with the Hitler Youth. Oeschey held that they constituted a resistance movement and several of the boys were sentenced to death.
The defendant Oeschey is charged under count four of the indictment with being a member of the Party Leadership Corps at Gau level within the definition of the membership declared criminal according to the judgment of the first International Military Tribunal in the case against Goering, et al.
We have previously quoted the findings of the first International Military Tribunal which define the organizations and groups within the Leadership Corps which are declared to be criminal. Oeschey was provisionally commissioned with the direction of the legal office of the NSDAP in the Franconia Gau and served in that official capacity for a long time. In his testimony he states that from 1940 to 1942 he was solely in charge of the Gau legal office as section chief. The evidence clearly establishes the defendant’s voluntary membership as the chief of a Gau staff office subsequent to 1 September 1939. The judgment of the first International Military Tribunal lists among the criminal activities of the Party Leadership Corps the following:
“The Leadership Corps played its part in the persecution of the Jews. It was involved in the economic and political discrimination against the Jews which was put into effect shortly after the Nazis came into power. The Gestapo and SD were instructed to coordinate with the Gauleiter and Kreisleiter the measures taken in the pogroms of 9 and 10 November 1938. The Leadership Corps was also used to prevent German public opinion from reacting against the measures taken against the Jews in the East. On 9 October 1942, a confidential information bulletin was sent to all Gauleiter and Kreisleiter entitled ‘Preparatory measures for the final solution of the Jewish question in Europe--rumors concerning the conditions of the Jews in the East.’ This bulletin stated that rumors were being started by returning soldiers concerning the conditions of Jews in the East which some Germans might not understand, and outlined in detail the official explanation to be given. This bulletin contained no explicit statement that the Jews were being exterminated, but it did indicate they were going to labor camps, and spoke of their complete segregation and elimination and the necessity of ruthless severity. * * *
“The Leadership Corps played an important part in the administration of the slave labor program. A Sauckel decree dated 6 April 1942 appointed the Gauleiter as plenipotentiary for labor mobilization for their Gaue with authority to coordinate all agencies dealing with labor questions in their Gaue, with specific authority over the employment of foreign workers, including their conditions of work, feeding, and housing. Under this authority the Gauleiter assumed control over the allocation of labor in their Gaue, including the forced laborers from foreign countries. In carrying out this task the Gauleiter used many Party offices within their Gaue, including subordinate political leaders. For example, Sauckel’s decree of 8 September 1942, relating to the allocation for household labor of 400,000 women laborers brought in from the East, established a procedure under which applications filed for such workers should be passed on by the Kreisleiter, whose judgment was final.
“Under Sauckel’s directive the Leadership Corps was directly concerned with the treatment given foreign workers, and the Gauleiter were specifically instructed to prevent ‘politically inept factory heads’ from giving ‘too much consideration to the care of eastern workers’. * * *
“The Leadership Corps was directly concerned with the treatment of prisoners of war. On 5 November 1941 Bormann transmitted a directive down to the level of Kreisleiter instructing them to insure compliance by the army with the recent directives of the department of the interior ordering that dead Russian prisoners of war should be buried wrapped in tar paper in a remote place without any ceremony or any decorations of their graves. On 25 November 1943 Bormann sent a circular instructing the Gauleiter to report any lenient treatment of prisoners of war. On 13 September 1944 Bormann sent a directive down to the level of Kreisleiter ordering that liaison be established between the Kreisleiter and the guards of the prisoners of war in order ‘better to assimilate the commitment of the prisoners of war to the political and economic demands’. * * *
“The machinery of the Leadership Corps was also utilized in attempts made to deprive Allied airmen of the protection to which they were entitled under the Geneva Convention. On 13 March 1940 a directive of Hess, transmitted instructions through the Leadership Corps down to the Blockleiter for the guidance of the civilian population in case of the landing of enemy planes or parachutists, which stated that enemy parachutists were to be immediately arrested or ‘made harmless.’”[675]
As to his knowledge, the defendant Oeschey joined the NSDAP on 1 December 1931. He was head of the Lawyers’ League for the Gau Franconia and a judicial officer of considerable importance within the Gau. These offices would provide additional sources of information as to the crimes outlined. Furthermore, these crimes were of such wide scope and so intimately connected with the activities of the Gauleitung that it would be impossible for a man of the defendant’s intelligence not to have known of the commission of these crimes, at least in part if not entirely.
We find the defendant Oeschey guilty under counts three and four of the indictment. In view of the sadistic attitude and conduct of the defendant, we know of no just reason for any mitigation of punishment.
THE DEFENDANT ALTSTOETTER
Joseph Altstoetter was born 4 January 1892. He was educated for the bar and passed the State examination in jurisprudence in Munich. He subsequently served in the Bavarian and in the Reich Ministries of Justice.
In 1932 he was promoted and sent to the Reich Supreme Court in Leipzig. In 1933 he was a member of the appeals criminal senate. In 1936 he was a member of the Reich Labor Court. From 1939 to 1943 he served with the Wehrmacht. In 1943 he was assigned to the Reich Ministry of Justice where he was made chief of the civil law and procedure division in the Ministry of Justice with the title of Ministerialdirektor and served in that capacity until the surrender. He had been a member of the Stahlhelm prior to the Nazi rise to power. When the Stahlhelm was absorbed into the Nazi organization, he automatically became a member of the SA. Prior to May 1937 he resigned from the SA to become a member of the general SS. His membership in the SS, from his personnel files, dates from 15 May 1937. He applied for membership in the NSDAP in 1938 and his membership was dated back to 1 May 1937. He was awarded the Golden Party Badge for service to the Party.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant Altstoetter is not guilty under counts two and three of the indictment.
The question which remains to be determined as to the defendant Altstoetter is whether, knowing of its criminal activities as defined by the London Charter, he joined or retained membership in the SS, an organization defined as criminal by the International Military Tribunal in the case of Goering, et al.
The evidence in this case as to his connection with the SS is found primarily in his personnel record which covers a great many pages, in his correspondence with SS leaders, and his own testimony. From this evidence it appears that the defendant, upon the request of Himmler, joined the SS in May 1937. He stated that Himmler told him he would receive a rank commensurate with his civil status. The record does not indicate what rank in the SS was commensurate with his civil status as a member of the Reich Supreme Court, but on 20 April 1938 he was promoted to Untersturmfuehrer, which corresponds to a second lieutenant in the army. He was subsequently promoted on 20 April 1939 to Obersturmfuehrer; on 20 April 1940 to Hauptsturmfuehrer. On 12 March 1943, according to a letter to the SS Main Personnel Office, signed by Himmler, he was promoted to Sturmbannfuehrer, effective 25 January 1943 and, by the same letter, to Obersturmbannfuehrer as of 20 April 1943, and it was directed that he be issued a skull and crossbones ring. In June 1943 he wrote to the Chief of the SS Main Office, SS Gruppenfuehrer Berger, thanking him for this ring bestowed by the Reich Leader SS. In this letter he wrote:
“Both this promotion and the honoring of this decoration with the skull and crossbone ring I will take not only as a token of the Reich Leader’s most distinct proof of trust in me, but also as an incentive for further active proof of my loyalty and for strictest adherence to my duties in my career as an SS man.”
On 11 February 1944 he wrote SS Gruppenfuehrer and Lieutenant General of the Waffen SS, Professor Dr. Karl Gebhardt, a letter containing the following paragraph:
“One more personal remark--You kindly promoted me SS Oberfuehrer. It is not that far yet. At least, I did not get to know it until now. I merely tell you this because I do not want to claim anything for me which does not correspond to facts.”
By letter dated 16 June 1944 he was notified that the Reich Leader SS had promoted him to the rank of Oberfuehrer, effective 21 June 1944.
The defendant stated that he was assigned to the legal staff of the 48th Standarte and later to the legal staff of the SS Main Office. He stated that he had no actual duties. However, part of his service credentials, dated 14 March 1939, under the heading of qualifications, signed by Dalski, SS Obersturmbannfuehrer, the following is stated:
“SS Untersturmfuehrer Altstoetter is frank, honest, and helpful. His ideology is firmly established on a National Socialist basis. A. was a leader of the staff of the 48th Standarte and there at all times performed his duties in a satisfactory manner.”
In a report from Leipzig, dated 10 June 1939, it is stated that he was awarded the “badge of honor for legal service, in silver”, effective 19 April 1938, signed Sachse, SS Untersturmfuehrer and Adjutant.
The defendant was evidently highly regarded by Himmler who, on 18 September 1942, at a meeting with Thierack and Rothenberger, referred to him as a reliable SS Obersturmfuehrer.
It also appears that his appointment to the Ministry of Justice was at the suggestion of Himmler and that the defendant’s relationship with Himmler was one which Thierack fostered for purposes of his own.
At the instance of Thierack, he visited Himmler at his headquarters and was present at a speech given by Himmler at Kochem, where he attended a dinner for twelve people, including SS Standartenfuehrer Rudolf Brandt and SS Obergruppenfuehrer Pohl.
He visited Berger, a high SS official, at Berger’s request. He carried on considerable correspondence with high officials in the SS, including Himmler, SS Gruppenfuehrer Professor Dr. Gebhardt, SS Gruppenfuehrer Berger, and Kaltenbrunner, Chief of the Security Police and SD.
On 25 May 1940 Altstoetter wrote to the Reich Leader SS as follows:
“If I can contribute my small part towards helping our Fuehrer to accomplish his great task for the benefit of our nation, this causes me particular joy and satisfaction, especially in my capacity as SS officer.”
According to a letter to Gebhardt, Himmler had instructed the SS leaders to request Altstoetter’s advice in certain matters.
On 6 June 1944 he wrote Gebhardt, congratulating him upon a recent award. In this letter he states:
“I am especially glad about your distinction, especially because I do not see only in it a recognition of your great war service as a physician and surgeon but also as a research scientist and organizer and which is attributed to our old and trusty friend.”
The evidence in this case clearly establishes that the defendant joined and retained his membership in the SS on a voluntary basis. In fact it appears that he took considerable interest in his SS rank and honors. The remaining fact to be determined is whether he had knowledge of the criminal activities of the SS as defined in the London Charter. In this connection we quote certain extracts from the judgment of the International Military Tribunal in the case of Goering, et al., as to the SS--
“Criminal activities: SS units were active participants in the steps leading up to aggressive war. The Verfuegungstruppe was used in the occupation of the Sudetenland, of Bohemia and Moravia, and in Memel. The Henlein Free Corps was under the jurisdiction of the Reich Leader SS for operations in the Sudetenland in 1938, and the Volksdeutsche Mittelstelle financed fifth column activities there.
“The SS was even a more general participant in the commission of war crimes and crimes against humanity. Through its control over the organization of the police, particularly the Security Police and SD, the SS was involved in all the crimes which have been outlined in the section of this judgment dealing with the Gestapo and SD. * * * The Race and Settlement Office of the SS, together with the Volksdeutsche Mittelstelle were active in carrying out schemes for Germanization of occupied territories according to the racial principles of the Nazi Party and were involved in the deportation of Jews and other foreign nationals. Units of the Waffen SS and Einsatzgruppen operating directly under the SS Main Office were used to carry out these plans. These units were also involved in the widespread murder and ill-treatment of the civilian population of occupied territories. * * *
“From 1934 onward the SS was responsible for the guarding and administration of concentration camps. The evidence leaves no doubt that the consistently brutal treatment of the inmates of concentration camps was carried out as a result of the general policy of the SS, which was that the inmates were racial inferiors to be treated only with contempt. There is evidence that where manpower considerations permitted, Himmler wanted to rotate guard battalions so that all members of the SS would be instructed as to the proper attitude to take to inferior races. After 1942 when the concentration camps were placed under the control of the WVHA they were used as a source of slave labor. An agreement made with the Ministry of Justice on 18 September 1942 provided that antisocial elements who had. finished prison sentences were to be delivered to the SS to be worked to death. * * *
“The SS played a particularly significant role in the persecution of the Jews. The SS was directly involved in the demonstrations of 10 November 1938. The evacuation of the Jews from occupied territories was carried out under the directions of the SS with the assistance of SS police units. The extermination of the Jews was carried out under the direction of the SS central organizations. It was actually put into effect by SS formations. * * *
“It is impossible to single out any one portion of the SS which was not involved in these criminal activities. The Allgemeine SS was an active participant in the persecution of the Jews and was used as a source of concentration camp guards. * * *
“The Tribunal finds that knowledge of these criminal activities was sufficiently general to justify declaring that the SS was a criminal organization to the extent hereinafter described. It does appear that an attempt was made to keep secret some phases of its activities, but its criminal programs were so widespread, and involved slaughter on such a gigantic scale, that its criminal activities must have been widely known. It must be recognized, moreover, that the criminal activities of the SS followed quite logically from the principles on which it was organized. Every effort had been made to make the SS a highly disciplined organization composed of the elite of national socialism. Himmler had stated that there were people in Germany ‘who become sick when they see these black coats’, and that he did not expect that ‘they should be loved by too many’. * * * Himmler in a series of speeches made in 1943, indicated his pride in the ability of the SS to carry out these criminal acts. He encouraged his men to be ‘tough and ruthless’; he spoke of shooting ‘thousands of leading Poles’, and thanked them for their cooperation and lack of squeamishness at the sight of hundreds and thousands of corpses of their victims. He extolled ruthlessness in exterminating the Jewish race and later described this process as ‘delousing’. These speeches show that the general attitude prevailing in the SS was consistent with these criminal acts. * * *
“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 declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph 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 * * *.”[676]
In this regard the Tribunal is of the opinion that the activities of the SS and the crimes which it committed as pointed out by the judgment of the International Military Tribunal above quoted are of so wide a scope that no person of the defendant’s intelligence, and one who had achieved the rank of Oberfuehrer in the SS, could have been unaware of its illegal activities, particularly a member of the organization from 1937 until the surrender. According to his own statement, he joined the SS with misgivings, not only on religious grounds but also because of practices of the police as to protective custody in concentration camps.
Altstoetter not only had contacts with the high ranking officials of the SS, as above stated, but was himself a high official in the Ministry of Justice stationed in Berlin from June 1943 until the surrender. He attended conferences of the department chiefs in the Ministry of Justice and was necessarily associated with the officials of the Ministry, including those in charge of penal matters.
The record in this case shows as part of the defense of many of those on trial here that they claim to have constantly resisted the encroachment of the police under Himmler and the illegal acts of the police.
Documentary evidence shows that the defendant knew of the evacuation of Jews in Austria and had correspondence with the Chief of the Security Police and Security Service regarding witnesses for the hereditary biological courts. This correspondence states:
“If the Residents’ Registration Office or another police office gives the information that a Jew has been deported, all other inquiries as to his place of abode as well as applications for his admission of hearing or examination are superfluous. On the contrary, it has to be assumed that the Jew is not attainable for the taking of evidence.”
It also quotes this significant paragraph:
“If in an individual case it is to the interest of the public to make an exception and to render possible the taking of evidence by special provision of persons to accompany and means of transportation for the Jew, a report has to be submitted to me in which the importance of the case is explained. In all cases offices must refrain from direct application to the offices of the police, especially also to the Central Office for the Regulation of the Jewish Problem in Bohemia and Moravia at Prague, for information on the place of abode of deported Jews and their admission, hearing, or examination.”
He was a member of the SS at the time of the pogroms in November 1938, “Crystal Week,” in which the IMT found the SS to have had an important part. Surely whether or not he took a part in such activities or approved of them, he must have known of that part which was played by an organization of which he was an officer. As a lawyer he knew that in October of 1940 the SS was placed beyond reach of the law. As a lawyer he certainly knew that by the thirteenth amendment to the citizenship law the Jews were turned over to the police and so finally deprived of the scanty legal protection they had theretofore had. He also knew, for it was part of the same law, of the sinister provisions for the confiscation of property upon death of the Jewish owners, by the police.
Notwithstanding these facts, he maintained his friendly relations with the leaders of the SS, including Himmler, Kaltenbrunner, Gebhardt, and Berger. He refers to Himmler, one of the most sinister figures in the Third Reich, as his “old and trusty friend.” He accepted and retained his membership in the SS, perhaps the major instrument of Himmler’s power. Conceding that the defendant did not know of the ultimate mass murders in the concentration camps and by the Einsatzgruppen, he knew the policies of the SS and, in part, its crimes. Nevertheless he accepted its insignia, its rank, its honors, and its contacts with the high figures of the Nazi regime. These were of no small significance in Nazi Germany. For that price he gave his name as a soldier and a jurist of note and so helped to cloak the shameful deeds of that organization from the eyes of the German people.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant Altstoetter is guilty under count four of the indictment.
This Tribunal has held that it has no jurisdiction to try any defendant for the crime of conspiracy as a separate substantive offense, but we recognize that there are allegations in count one of the indictment which constitute charges of direct commission of war crimes and crimes against humanity. However, after eliminating the conspiracy charge from count one, we find that all other alleged criminal acts therein set forth and committed after 1 September 1939 are also charged as crimes in the subsequent counts of the indictment. We therefore find it unnecessary to pass formally upon the remaining charges in count one. Our pronouncements of guilt or innocence under counts two, three, and four dispose of all issues which have been submitted to us.
Concerning those defendants who have been found guilty, our conclusions are not based solely upon the facts which we have set forth in the separate discussions of the individual defendants. In the course of 9 months devoted to the trial and consideration of this case, we have reached conclusions based upon evidence and observation of the defendants which cannot fully be documented within the limitations of time and space allotted to us. As we have said, the defendants are not charged with specific overt acts against named victims. They are charged with criminal participation in government-organized atrocities and persecutions unmatched in the annals of history. Our judgments are based upon a consideration of all of the evidence which tends to throw light upon the part which these defendants played in the entire tragic drama. We shall, in pronouncing sentence, give due consideration to circumstances of mitigation and to the proven character and motives of the respective defendants.
[Signed] JAMES T. BRAND Presiding Judge
MALLORY B. BLAIR Judge
JUSTIN W. HARDING Judge
VIII. SEPARATE OPINION BY JUDGE BLAIR
OPINION OF MALLORY B. BLAIR, JUDGE OF MILITARY TRIBUNAL III
I concur in the final judgment and verdict filed herein, which I have signed. A difference of view has arisen, however, with respect to certain findings and conclusions made in the judgment under the title “Source of Authority of Control Council Law No. 10”. Under this title a lengthy and able discussion is made in the judgment concerning the effect and meaning of the term “unconditional surrender” of Germany to the Allied Powers. From the meaning given to the term of “unconditional surrender” of the armed forces of the Hitler regime and the collapse of his totalitarian government in Germany, the view is expressed that a distinction arises between measures taken by the Allied Powers prior to the destruction of the German Government and those taken afterwards; and that only the former may be tested by the Hague Regulations because they relate only to a belligerent occupation. To support this view, quotations are made from articles expressing views of certain text writers, which articles are published in the American Journal of International Law. The judgment then adopts the view expressed in the quoted texts, which is admittedly contrary to the views of the equally scholarly writers whose articles are also cited.
The foregoing decision is made to depend upon a determination of the present character or status of the occupation of Germany by the Allied Powers; that is, whether or not it is a belligerent occupation. This interesting but academic discussion of the question has no possible relation to or connection with the “source of authority of Control Council Law No. 10,” which is the question posed in the judgment. No authority or jurisdiction to determine the question of the present status of belligerency of the occupation of Germany has been given this Tribunal. This question of present belligerency of occupation rests solely within the jurisdiction of the military occupants and the executives of the nations which the members of the Allied Control Council represent. The determination by this Tribunal that the present occupation of Germany by the Allied Powers is not belligerent may possibly involve serious complications with respect to matters solely within the jurisdiction of the military and executive departments of the governments of the Allied Powers.
If, however, any possible questions are here present for determination with respect to (1) the character of the present status of occupation of Germany; and (2) the present status of belligerency, such questions can only relate to the rights of the victorious belligerent to exercise control over Germany. Such matters as regard the American Zone are controlled by both the written and unwritten laws, rules, and customs of warfare and by the rights and obligations of a victorious occupant under international law. The determination of these matters has not been entrusted to this Tribunal. This Tribunal has not been given any jurisdiction to exercise any sovereign power of Germany; nor has it been given any jurisdiction to determine that because of the unconditional surrender Germany’s sovereignty was thereby transferred to the victorious Allied Powers. These matters are controlled in the American Zone by the Basic Field Manual [27-10] on Rules of Land Warfare issued (1940) by The Judge Advocate General of the United States Army.
As concerns questions of transfer of sovereignty of a defeated belligerent to the victorious belligerent, the foregoing rules of land warfare provide--
“273. Does not transfer sovereignty.--Being an incident of war, military occupation confers upon the invading force the right to exercise control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity for maintaining law and order, indispensable to both the inhabitants and to the occupying force.
“274. Distinguished from invasion.--The state of invasion corresponds with the period of resistance. Invasion is not necessarily occupation, although it precedes it and may frequently coincide with it. An invader may push rapidly through a large portion of enemy country without establishing that effective control which is essential to the status of occupation. He may send small raiding parties or flying columns, reconnoitering detachments, etc., into or through a district where they may be temporarily located and exercise control, yet when they pass on it cannot be said that such district is under his military occupation.
“275. Distinguished from subjugation or conquest.--Military occupation in a foreign war, being based upon the fact of possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. The occupation is essentially provisional.
“On the other hand, subjugation or conquest implies a transfer of sovereignty. Ordinarily, however, such transfer is effected by a treaty of peace. When sovereignty passes, military occupation, as such, must of course cease; although the territory may, and usually does for a period at least, continue to be governed through military agencies which have such powers as the President or Congress may prescribe.”
And as concerns the administration of occupied territory, the same rules of land warfare require--
“285. The laws in force.--The principal object of the occupant is to provide for the security of the invading army and to contribute to its support and efficiency and the success of its operations. In restoring public order and safety he will continue in force the ordinary civil and criminal laws of the occupied territory which do not conflict with this object. These laws will be administered by the local officials as far as practicable. All crimes not of a military nature and which do not affect the safety of the invading army are left to the jurisdiction of the local courts.
“286. Power to suspend and promulgate laws.--The military occupant may suspend existing laws and promulgate new ones when the exigencies of the military service demand such action.”
Manifestly this Tribunal, created for the sole purpose of trying and punishing war criminals in the broadest sense of that term as used in Control Council Law No. 10, has not by such law been given any jurisdiction to determine matters relating to the far reaching power or authority which the foregoing rules authorize a military occupant to exercise provisionally. In consequence, the lengthy discussion of the far reaching power or authority which the Allied Powers are now exercising in Germany has no material relation to any question before us for determination, and particularly the question of the “source of the authority of Control Council Law No. 10”. Certainly this Tribunal has no jurisdiction to determine whether or not the military or executive authorities have exceeded their authority or whether or not they are exercising in fact the sovereign authority of Germany, or whether by her unconditional surrender Germany has lost all sovereignty. The exercise of such powers has to do with provisional matters of occupation and operates presently and in future. Our jurisdiction extends to the trial of war criminals for crimes committed during the war and before the unconditional surrender of Germany. This jurisdiction is determined by entirely different laws.
Under the foregoing rules of military operation there is no rule which would, because of the unconditional surrender of the German armed forces, transfer the sovereignty of Germany to the Allied occupants, or to either of them, in their respective zones of occupation. It may here be pointed out that the report of 1919 by the Commission on Responsibility of the Authors of War and Enforcement of Penalties lists among other war crimes in violation of international law or of the laws and customs of land warfare,“(10) the usurpation of sovereignty during military occupation.” This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant. As concerns this Military Tribunal in the American Zone of Occupation, the problem is dealt with and concluded by the above-quoted rules (285–286), relating to administration of occupied territory.
No attempt has been made by the Allied Powers, or either of them, to exercise the sovereign authority of Germany, except in the limited sense provided for by the foregoing rules of land warfare. On 30 January 1946 the Allied Control Council enacted Law No. 11 which repealed most of the enactments of the Nazi regime and continued in force in all of Germany the great body of criminal law contained in the German Criminal Code of 1871 with amendments thereto. This is in accord with the provisions of the above-quoted rule 285. Thus in the American Zone there has been continued in force the ordinary civil and criminal laws of the German states, each of which has been recognized as a sovereign power. These laws are being administered by German local and state officials as far as can practicably be done, with the avowed intention of the Allied Powers, and each of them, to surrender all powers now exercised as a military occupant, particularly when the all-Nazi militaristic influence in public, private, and cultured life of Germany has been destroyed, and when Nazi war criminals have been punished as they justly deserve to be punished.
Furthermore, as concerns the American Zone of Occupation, the punishment of war leaders or criminals is being and will be carried out by four separate procedures--
(1) Major German war leaders or criminals are tried by this and similar military tribunals set up under Control Council Law No. 10 and Military Government Ordinance No. 7, limited to the crimes or offenses therein defined or recognized.
(2) The trials of Germans for the commission of war crimes against American military personnel and for atrocities or crimes committed in concentration camps in the area captured or occupied by the American armed forces, are tried by special military courts set up at the direction of the zone commander, with the theater judge advocate in charge of the prosecution of the cases.
(3) Germans who are charged with committing crimes against humanity upon other Germans, in violation of German law, are tried by the ordinary German criminal courts.
(4) Other Germans who were actively responsible for the crimes of the Hitler or Nazi regime, or who actively participated in the Nazi plans or schemes, are tried by German tribunals under the Law for Liberation from National Socialism and Militarism of 5 March 1946.
The purpose of the foregoing program is to carry out the objectives of the Potsdam Agreement that “war criminals and those participating in planning or carrying out Nazi enterprises involving or resulting in atrocities or war crimes, shall be arrested and brought to judgment.”
The Potsdam Agreement related to punishment of all Axis war criminals. Control Council Law No. 10 sets up the machinery to apply the Potsdam Agreement to European Axis war criminals and particularly to German war criminals.
The judgment further declares, however, that “in the case of Germany, subjugation has occurred by virtue of military conquest.” This holding is based upon the previous declarations that at the time of the unconditional surrender of the German armed forces the Nazi government had completely disintegrated, requiring the victorious belligerent to take over the complete exercise and control of governmental affairs of Germany, and thereby resulting in the transfer of her sovereignty to the victorious Allied Powers. In this holding, the judgment simply attempts to apply the provisions of rule 275 that “subjugation or conquest implies a transfer of sovereignty.” Obviously this rule implies that the question of subjugation is one of fact or intention to be determined by the successful belligerent. There has been no act or declaration of the Allied Powers, either before or since their occupation of Germany under the terms of the unconditional surrender, which could possibly be construed as showing that they intend by the subjugation and occupation of Germany to transfer her sovereignty to themselves. To the contrary every declaration that has been made by the Allied Powers with respect to their occupancy of Germany and the enactment of laws for her control during the occupation has emphasized the fact that the ultimate purpose of such occupancy is to destroy the Nazi form of government and militarism in Germany so that as thus extirpated from these influences she may take her place in the comity of the nations of the world.
The declaration made in the judgment that Germany has been subjugated by military conquest and that therefore her sovereignty has been transferred to the successful belligerent Allied Powers cannot be sustained either as a matter of fact or under any construction of the foregoing rules of land warfare. The control and operation of Germany under the Allied Powers’ occupation is provisional. It does not transfer any sovereign power of Germany other than for the limited purpose of keeping the peace during occupancy, and for the ultimate rectification of the evils brought about by the Nazi regime and militarism, and in order to destroy such influences and to aid in the establishment of a government in and for Germany under which she may in the future earn her place in the comity of nations. In any event this Tribunal has no power or jurisdiction to determine such questions.
The judgment further declares that Control Council Law No. 10 has a dual aspect. The judgment states:
“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.”
Obviously this aspect or theory of reasoning is predicated upon the previous declarations that since at the time of the unconditional surrender the Nazi government had completely collapsed, and that, since the Allied Powers assumed the entire control of the governmental function of Germany, her sovereignty was thereby transferred to the Allied Powers. It is then declared that Control Council Law No. 10 was enacted by the Allied Control Council in and for Germany in the exercise of this transferred German sovereignty. Under this reasoning Control Council Law No. 10 merely became a local law in and for Germany because Germany, in the exercise of her national governmental sovereignty, could not enact the law as international law. Nor can the Allied Control Council in the exercise of the transferred sovereignty of Germany enact international law.
The judgment further declares that the same and only supreme legislative authority in and for Germany, the Allied Control Council, gave this Tribunal jurisdiction and authority to enforce the local German law so enacted by it and to punish crimes in violation of it, including crimes by German nationals against German nationals as authorized by Control Council Law No. 10. From the foregoing premise the conclusion is inescapable that the Allied Control Council in the exercise of the sovereign power of Germany has enacted the law in and for Germany and has authorized this Tribunal to punish criminals who violated the law in the manner of a German police court.
The foregoing conclusion is based upon the articles by Freeman and Fried, from which quotations are made in the judgment. This same theory by Fried has been expressed in a subsequent statement wherein he states, after reviewing the foregoing facts with respect to the unconditional surrender of the armed forces and the disintegration of the Nazi government, that--
“This Tribunal (III) has the double quality of being an international court and, owing to the special situation of Germany at the present time, also a German court.”
This is the only possible conclusion that can be reached in the premises stated.
The second aspect of Control Council Law No. 10 is declared by the judgment to be as follows:
“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.”
There can be no serious disagreement as regards this aspect or theory of Control Council Law No. 10, but it is contrary to the first aspect or theory of the law. The two aspects are diametrically opposed to each other as to the “source of authority for Control Council No. 10.” They are so conflicting with respect to the claims that the law is both local law and international law that either one or the other aspect cannot exist. The legislature of a national state cannot by a legislative act make international law binding upon other nations. Only an international legislative body may so legislate and no such body has ever existed.
With regard to the premises supporting the view that Control Council Law No. 10 has two aspects, the judgment apparently contains other conflicting statements with respect to the “source of authority for Control Council Law No. 10” and also with respect to the basis of the authority of the legislative body to enact the law. The judgment states at one place--
“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.”
The judgment recites at another point--
“Since the Charter IMT and C. C. Law 10 are the product 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.”
At still another place the judgment recites--
“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.”
Still at another place in the judgment it is declared that--
“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.”
Thus, in the first quotation, the judgment states that there has never been an international legislature and that, therefore, international law is not the product of statute; whereas, in the second quotation, it is contended that Control Council Law No. 10 is “the product of legislative action by an international authority.” The third recitation is that Control Council Law No. 10 “is an exercise of supreme legislative power in and for Germany.”
The fourth quotation doubts the legality of our procedure unless the international body in Germany (the Allied Control Council) has assumed and exercised the power to establish judicial machinery for punishment of crimes in violation of international law. The source of the authority to set up courts and machinery for punishment of German war criminals does not depend in any manner upon the exercise of any sovereign power of Germany. This matter will be later discussed.
With these conflicting conclusions as to the source of authority of Control Council Law No. 10, I must respectfully disagree. But the judgment saves itself from them by finally waiving them aside and holding as follows:
“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.”
The judgment makes the further and additional declaration that--
“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 victor states. The power and right exerted is that of victors, not of the vanquished.”
With these declarations there is no disagreement. They waive and completely nullify the foregoing conflicting declarations of the judgment with regard to the “source of authority of Control Council Law No. 10” and that its enactment was the exercise of German sovereignty by the four Allied Powers.
It is my view that the jurisdiction of this Tribunal is limited to the area or field of international law which relates to the punishment of war criminals in the fullest sense of that term. The source of its Charter and jurisdiction to try and punish European Axis war criminals is as follows:
Charter and Jurisdiction of this Tribunal
The charter and jurisdiction of this Military Tribunal are found within the framework of four instruments or documents: (1) Allied Control Council Law No. 10; (2) Military Government Ordinance No. 7; (3) the Charter of the International Military Tribunal; and (4) the judgment of the International Military Tribunal. These instruments and documents confer power or jurisdiction upon this Tribunal to try and punish certain European Axis war criminals. The source of Control Council Law No. 10 and Ordinance 7 and the authority to enact or issue them are found in certain unilateral agreements, instruments, and documents of the Allied Powers to which brief reference will be here made.
By the Moscow Declaration of 30 October 1943 on German war atrocities and crimes, the three Allied Powers (the United Kingdom, the United States, and the Soviet Union) declared that at the time of granting any armistice to Germany, “those German officers and men and the members of the Nazi Party who have been responsible for or have taken a consenting part in” committing such atrocities or crimes will be adjudged and punished for their abominable deeds. By the Yalta Conference of 11 February 1945 the same three Powers declared that only “the unconditional surrender” of the Axis powers will be accepted. The plan for enforcing the unconditional surrender terms was agreed upon and provides that the Allied Powers will each occupy a separate zone of Germany with coordinated administration and control through a Central Control Council composed of the supreme commanders at Berlin. France was to be invited to take over a zone of occupation and to participate as a fourth member of the Control Council for Germany. Among other things, the Allied Powers declared that they intended to “bring all war criminals to just and swift punishment.” They further declared that they intended “to destroy German militarism and nazism and to insure that Germany will never again be able to disturb the peace of the world.” With these provisional matters we are not concerned here.
The German armed forces unconditionally surrendered on 8 May 1945. France accepted the invitation to become a fourth member of the Allied Control Council and later took over a zone of occupation.
By the Potsdam Agreement of 5 June 1945 and the declaration of the Joint Chiefs of Staff of 2 August 1945 at Berlin, the then Four Allied Powers expressly declared and provided that the punishment of European Axis war criminals “was made a primary task of the military occupation of Germany.” They further declared that certain far reaching provisional measures would be undertaken in Germany to rid her people of nazism and of militarism and to insure the peace and safety of the world, and so that the German people thus extirpated will in the future take their place in the comity of nations. With these latter provisions we are not here concerned. The Allied Control Council for Germany is composed of the Joint Chiefs of Staff of the Four Allied Powers.
By the London Agreement of 8 August 1945, the Four Allied Powers referred to the Moscow Declaration and authorized, after consultation with the Allied Control Council for Germany, the establishment of an International Military Tribunal to try certain of the European Axis war criminals. The Charter of the Tribunal was attached to and made a part of the London Agreement. This Charter described the power and jurisdiction of the Tribunal and defined or recognized the crimes for which the European Axis war criminals were to be tried.
The foregoing avowed policy of the Allied Powers for the punishment of European war criminals or enemy persons was thereafter approved and sanctioned by 19 of the United Nations in accordance with the provisions of article V of the London Agreement.
The International Military Tribunal was duly created and held its first session on 18 October 1945. The actual trial began on 20 November 1945 of 22 alleged major war criminals; and by the judgment of 1 October 1946 some of them were given death sentences; some of them were given life imprisonment; some were given lesser prison terms; and others of them were acquitted.
After the foregoing trial began, the Allied Control Council for Occupied Germany met and on 20 December 1945 enacted Control Council Law No. 10, which defined the jurisdiction of this and similar military tribunals and recognized as crimes to be tried by them--
1. Crimes against peace;
2. War crimes;
3. Crimes against humanity; and
4. Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.
Control Council Law No. 10 recognizes as a crime, membership in any organization declared to be criminal by the International Military Tribunal.
Article 9 of the London Charter provides that the IMT may declare any group or organization of which an individual was a member to be a criminal organization. Article 10 provides that the IMT may also declare membership in an organization found by it to be criminal to be a crime. This the IMT did and further declared that its Charter makes the declaration of criminality against an accused organization final. The IMT then fixed the character of membership which would be regarded as criminal, and expressly limited its declaration of group criminality to persons who became or remained members of the organization with knowledge that it was being used for criminal acts or who were personally implicated as members of the organization in the commission of such crimes. These findings and conclusions of the IMT are binding upon this Tribunal.
The Control Council declared that this law or procedure was intended to reach the German war criminals to be tried by the occupying powers of Germany in their respective zones of occupation. The preamble stated that the law was enacted by the authority of and to give effect to the Moscow Declaration, the London Agreement, and the Charter of the International Military Tribunal. Thus, the avowed purpose of the Allied Powers to punish German war criminals was given quadripartite agreement and application under Control Council Law No. 10.
Military Government Ordinance No. 7 was issued on 26 October 1946 “pursuant to the powers of the Military Governor of the United States Zone of Occupation within Germany, and further pursuant to the power 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,” authorizing the establishment of certain “tribunals to be known as Military Tribunals”. Accordingly, Military Tribunal III was established on 13 February 1947, by virtue of the provisions of said Military Government Ordinance No. 7, “with powers to try and punish persons charged with offenses recognized as crimes in article II of Control Council Law No. 10, including conspiracies to commit such crimes.” And article X of Ordinance No. 7 provides that--
“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 of any particular person may be concerned. Statements of the International Military Tribunal in the judgment in Case No. 1 shall constitute proof of the facts stated, in the absence of substantial new evidence to the contrary.”
As so created and established this and other similar military tribunals are international in character and jurisdiction. They are authorized and empowered to try and punish the “major war criminals of the European Axis”; to try and punish “those German officers and men and members of the Nazi Party who have been responsible for, and have taken a consenting part in,” and have aided, abetted, ordered, or have been connected with plans or enterprises involving the commission of any offense recognized in Control Council Law No. 10 as a crime.
The jurisdiction and power of this and similar tribunals to try and punish war criminals find full support in established international law relating to warfare. This law is that during hostilities and before their formal termination belligerents have concurrent jurisdiction over war crimes committed by the captured enemy persons in their territory or against their nationals in time of war. Accordingly, it has been generally recognized that belligerents during the war may legitimately try and punish enemy persons charged with infractions of the rules of war, if the accused is a prisoner of war and if the act charged has been made a penal offense by the generally accepted laws and customs of war. In such cases the accused usually is tried before the court, commission, or tribunal set up by and adjudged in accordance with the laws and procedure of the victor. After armistice or peace agreement the matter of punishment of war crimes is determined by the terms thereof.
The foregoing law was applied by the judgment of the International Military Tribunal, which after referring to the Charter creating it, declared that--
“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.
“The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.”[677]
Even prior to the foregoing IMT judgment, Lord Chief Justice Wright had so construed the London Charter in an article appearing in volume 62 of the Law Quarterly Review, January 1946, page 41. He limits the discussion to the punishment of war criminals. He there states that--
“All I am here concerned with is a limited area of international law, that relating to the trial and punishment of war criminals in the full sense of that term, as adopted in the Agreement of 8 August 1945, made in London between the Governments of the United Kingdom, of the United States, of the French Republic, and of the Union of Soviet Socialist Republics, which established a Tribunal for the trial and punishment of the major war criminals of the European Axis countries. The Agreement includes as falling within the jurisdiction of the Tribunal persons who committed the following crimes: (a) crimes against peace, which means in effect planning, preparation, initiation, or waging of a war of aggression; (b) war crimes, by which term is meant mainly violation of the laws and customs of war; (c) crimes against humanity, in particular murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population.
“The Tribunal so established is described in the Agreement as an International Military Tribunal. Such an International Tribunal is intended to act under international law. It is clearly to be a judicial tribunal constituted to apply and enforce the appropriate rules of international law. 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.”
Similar holdings may be made with respect to Control Council Law No. 10 which recognizes the same basic crimes to be tried by this Tribunal as were recognized by the London Charter. Each such law is an expression of the treaties, rules, and customs of international law on crimes against peace, war crimes, and crimes against humanity; each is in effect and purpose a listing of crimes in violation of preexisting international law and each “to that extent is itself a contribution to international law.” (IMT judgment, supra.) But IMT did not rest its declaration of authority and its procedure upon the Charter which created it, but on the contrary, discussed at length the matters before it from the standpoint of preexisting international law. No defendant was convicted by the International Military Tribunal except for crimes in violation of preexisting international law which they held to exist even as to crimes against peace. It supported its judgment that each crime was based upon preexisting international law or custom of war, discussing at length the matter of violation of international treaties and agreements, particularly the Hague Conventions of 1899 and 1907, the Peace Conference of 1919, the violation of the Versailles Treaty, the various treaties of mutual guarantee, arbitration, and nonaggression, and the Kellogg-Briand Pact.[678]
Under American law (National Defense Act of 4 June 1920) a military court or commission may be set up to try persons in the custody of the United States Government or its armed forces for crimes in violation of international law. The right to punish such war criminals is not dependent upon any question of unconditional surrender or of whether hostilities have ceased. As regards these matters, in the recent case of Yamashita, the United States Supreme Court makes several pronouncements applicable here, as follows:
“The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violation, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by law of war, that sanction is without qualification as to the exercise of this authority so long as a state of war exists, from its declaration until peace is proclaimed. Articles of War, articles 2, 15.
* * * * * * *
“The mere fact that hostilities have ceased does not preclude the trial of offenders against the law of war before a military commission, at least until peace has been officially recognized by treaty or proclamation of the political branch of the government. Articles of War, article 15.
“The extent to which power to prosecute violations of the laws of war shall be exercised before peace is declared rests, not with courts, but with the political branch of the government, and may itself be governed by terms of an armistice or a treaty of peace.”[679]
The importance of the Yamashita decision is apparent. The International Military Tribunal was established by the London Agreement, 8 August 1945, with its Charter annexed thereto. On entirely similar principles the Charter of the International Military Tribunal, or other tribunals or commissions, for the trial of major war criminals in the Far East was proclaimed on 19 January 1946. These tribunals or commissions of similar principles were all established in accordance with the Berlin Agreement of 2 August 1945, which defined the meaning of the unconditional surrender of the armed forces of the Axis Powers, and declared that the Allied Powers intended to punish captured war criminals of the European Axis Powers. All such commissions or tribunals are deemed to exercise military powers and therefore are described as “Military Tribunals.” This includes the tribunals created under the provisions of Control Council Law No. 10 and Ordinance 7.
The judges of these Tribunals set up under Law No. 10 and Ordinance 7 are appointed by the War Department, by the acts of the Secretary of War, by the President of the United States as Commander-in-Chief of the Armed Forces, and by the Commanding General of the American Zone of Occupation in Germany. These judges take an oath to faithfully perform the task thus assigned to them to the best of their ability.
The Supreme Court of the United States had previously applied the rule announced in the Yamashita case in the case of Quirin and six others (317 U. S. 1). The court declared that:
“The ‘law of war’ includes 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 of enemy individuals.
“Under the ‘law of war’ lawful combatants are subject to capture and detention as prisoners of war by opposing military forces and unlawful combatants are likewise subject to capture and detention but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”
This authority is expressly conferred by article 15 of the Articles of War enacted by Congress on 4 June 1920.
It may be here again observed that international law is an unwritten law. There has never been an international legislative authority. The law of nations is founded upon various international rules and customs, which gradually obtain universal recognition and thus become international law. Likewise the law of war is built upon treaties and upon the usages, customs, and practices of warfare by civilized nations, which gradually obtain universal recognition, and also become established by the general principles of justice as applied by jurists and military courts, tribunals, or commissions. And as held by the IMT:
“The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.”[680]
After the unconditional surrender, the Allied Powers have obtained the actual custody of many of the leaders of the German Government, and the German armies, and many of those who were active participants in nameless atrocities against prisoners of war, other persons alleged in the indictment, and civilians of invaded countries, and the power to try such Axis war criminals must be conceded. This power to try these crimes could have been exercised as an entirely military one, but such a method would not accord with Anglo-Saxon or United States ideology. It has been planned to conduct orderly trials, and fair trials, in accordance with the American concepts of due process, giving the accused the benefit of indictment, notice, counsel of their own choosing, witnesses in their behalf, proof beyond a reasonable doubt, and judgment by experienced jurists who are under the obligations of a solemn oath to render even and exact justice. Surely this is giving to the accused rights which they denied to their helpless victims.
It may be here observed that each of the defendants in this case has been captured or arrested and is now in the custody and jurisdiction of this Tribunal. Each of them has been charged by the indictment in this case with having committed two or more of the offenses recognized as crimes by the foregoing instruments which define and limit the Charter and jurisdiction of this Tribunal and which authorize this Tribunal to try and punish any individual found guilty of having committed such crimes or offenses. There has been no formal declaration of peace and officially a state of war still exists between the Allied Powers and Germany.
Under the doctrine of the Quirin and Yamashita cases, the Allied Powers, or either of them, have the right to try and punish individual defendants in this case. These cases hold that where individual offenders are charged with offenses against the laws of nations, and particularly the laws of war, they may be tried by military tribunals or courts set up by the offended government or belligerent power. In such cases no question as to the character of military occupation nor as to the character of belligerency is involved, or whether or not hostilities have ceased. These cases recognize the right to try and punish individuals who are in the custody and jurisdiction of such military court or commission so long as peace has not been officially declared by the authorities competent to conclude such matters.
After armistice or peace agreement, the matter of punishing war criminals is a question for the parties making the peace agreement to determine. In consequence, the question of whether hostilities have ceased is not material. And as is so ably said in the Yamashita case (66 S. Ct. 340)--
“The extent to which power to prosecute violations of the laws of war shall be exercised before peace is declared rests, not with courts, but with the political branch of the Government and may itself be governed by terms of an armistice or a treaty of peace.”
Conspiracy
Count one of the indictment charged the defendants with having, pursuant to a common design, conspired and agreed together and with each other and with divers other persons to commit war crimes and crimes against humanity, as defined in article II of Control Council Law No. 10, in that each of the defendants participated either as a principal, or an accessory, or ordered and abetted, or took a consenting part in, or was connected with plans or enterprises involving the commission of the war crimes and crimes against humanity as set forth in the indictment; and that each defendant so participating was therefore responsible for his own acts and for the acts of all other defendants in the commission of the crimes.
This Tribunal has ruled that under no provision of Law No. 10 was conspiracy made a separate substantive and punishable crime. But the defendants may be punished for having committed war crimes or crimes against humanity by acts constituting a conspiracy to commit them.
Under the foregoing allegations of count one, the defendants are charged with having committed war crimes and crimes against humanity by acts constituting a conspiracy to commit them. This Tribunal has not applied or convicted any defendant under the conspiracy charge of the indictment. All defendants convicted, save one, have been convicted under a plan or scheme to commit the alleged war crimes or crimes against humanity. The same facts are alleged and proved as constituting a conspiracy to commit the same war crimes and crimes against humanity. The same facts under which certain defendants were convicted of having committed war crimes and crimes against humanity by carrying out the Night and Fog decree were alleged and, by the same evidence, proved to be a common design or conspiracy to commit such crimes. The same is true of the plan or scheme to persecute and exterminate Poles and Jews upon racial grounds.
There is no material difference between a plan or scheme to commit a particular crime and a common design or conspiracy to commit the same crime. In legal concept there can be no material difference to plan, scheme, or conspire to commit a crime. But of them all, the conspiracy to commit the crimes charged in the indictment is the most realistic because the Nazi crimes are in reality indivisible and each plan, scheme, or conspiracy proved in the instant case was in reality an interlocking part of the whole criminal undertaking or enterprise.
That Control Council Law No. 10 and Ordinance 7 authorize a conviction for committing war crimes and crimes against humanity by conspiracy to commit certain acts, which are defined or recognized as war crimes or crimes against humanity by international law and by Control Council Law No. 10, is clear.
In paragraph I (a) of article II of Control Council Law No. 10, as in article 6 (a) of the London Charter, it is provided that a conspiracy to initiate or wage an aggressive war is a crime against peace. The defendants are not charged with having committed or conspired to commit a crime against the peace but were so charged in the first international trial.
In discussing the issue of conspiracy the International Military Tribunal limited the scope of its inquiry to consideration of conspiracy to initiate or wage an aggressive war. It did not determine whether a conspiracy could be recognized as a crime under international law relating to war, or whether a conspiracy to commit such a crime had in fact been proved. It merely held that the concept of conspiracy under its Charter was more restricted than that set forth in the indictment which the prosecution sought to prove. That Tribunal did not construe article II of Control Council Law No. 10 to determine whether it authorized the punishment of a separate crime of conspiracy. Neither did it determine whether the offenses of war crimes or crimes against humanity could be committed by the acts which in fact constitute a conspiracy to commit such crimes.
The Charter of the International Tribunal provided in article 6 (c) that:
* * * * * * *
“Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
This provision of the International Charter is not found in Control Council Law No. 10. In lieu thereof the following pertinent and significant language was used [Article II]:
“2. Any person without regard to nationality or the capacity in which he acted, 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 or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites, or held high position in the financial, industrial or economic life of any such country.”
This language in detail defines the acts which constitute aiding and abetting and is so specific and so comprehensive that it has defined conspiracy without employing the word. The language omits no element of the crime of conspiracy. As a rule there can be no such thing as aiding and abetting without some previous agreement or understanding or common design in the execution of which the aider and abetter promoting that common design has made himself guilty as a principal.
The foregoing provisions of paragraph 2 were intended to serve some useful purpose. War crimes and crimes against humanity had been defined or recognized and illustrated in paragraph 1 of Law No. 10 and did not need further explanation. Obviously, the provisions of paragraph 2 were intended to provide that if the act of one person did not complete the crime charged, but the acts of two or more persons did, then each person “connected with the plans or enterprises involving its commission” is guilty of the crime. This is the gravamen of the law of conspiracy. Conspiracy is universally known as a plan, scheme, or combination of two or more persons to commit a certain unlawful act or crime.
The conspiracies charged in the indictment and defined by Law No. 10 are conspiracies or plans to commit war crimes or crimes against humanity, which are established crimes under international laws or customs of war. In the very nature of such crimes their commission is usually by more than one person. Therefore the purpose of showing the conspiracy to commit such crimes was to establish the participation of each defendant and the degree of his connection with such crimes.
Since the language of paragraph 2 of Law No. 10 expressly provides that any person connected with plans involving the commission of a war crime or crime against humanity is deemed to have committed such crimes, it is equivalent to providing that the crime is committed by acts constituting a conspiracy under the ordinary meaning of the term. Manifestly it was not necessary to place the label “conspiracy” upon acts which themselves define and constitute in fact and in law a conspiracy. Paragraph 2 was so interpreted by the Zone Commander when he issued Military Government Ordinance No. 7, which authorized the creation of this and similar military tribunals, and which provides in article I that--
“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. * * *.”
The prosecution also placed the same interpretation upon paragraph 2, because paragraph 2 of count one of the indictment charges that the “defendants herein * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of war crimes and crimes against humanity.” Evidently the drawer of the indictment had before him paragraph 2 of Control Council Law No. 10 and made its language the basis of the charging of a conspiracy to commit war crimes or crimes against humanity.
Furthermore, it is apparent that the declared purpose of Ordinance No. 7, as set forth in article I thereof, is part and parcel of the entire ordinance as much as any other article thereof and the other articles of the ordinance, as well as Law No. 10, must be construed and applied in the light of article I. In fact article I is distinctly that portion of Ordinance No. 7 which defines the jurisdiction of the military tribunals authorized by it.
The Tribunal should therefore declare that military tribunals as created by Ordinance No. 7 have jurisdiction over “conspiracy to commit” any and all crimes defined in article II of Law No. 10. After all, from a practical standpoint, it can make little difference to any defendant whether the Tribunal finds that such defendant is a member of a conspiracy to commit crimes on the one hand, this being the language of article I of Ordinance No. 7, or on the other hand whether the Tribunal should find he was (a) a principal or (b) an accessory or that he abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving commission of crimes, these latter descriptions being the language of paragraph 2 of article II of Law No. 10.
In most modern English and American jurisprudence, conspiracy pure and simple is not recognized as a separate crime. The only legal importance of finding that any accused person is a party to a conspiracy is to hold the conspirator responsible as an aider and abetter of criminal acts committed by other parties to the conspiracy. If the party knowingly aided and abetted in the execution of the plan and became connected with plans or enterprises involving the commission of war crimes and crimes against humanity, he thereby became a co-conspirator with those who conceived the plan. It makes no difference whether the plan or enterprise was that of only one of the conspirators. Upon this point we quote from the judgment of the International Tribunal--
“The argument that such common planning cannot exist where there is complete dictatorship is unsound. A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it.”[681]
This holding answers the further contention that one connected with execution of such a plan of Hitler could not be guilty of conspiracy, or punishable for helping carry out the plan or scheme as a co-conspirator. It is undoubtedly true that not all of the defendants had any part in the formulation of the plan, scheme, or conspiracy of the Nazi regime’s Ministry of Justice to carry out the NN decree, but they did know of its illegality and inhumane purpose and helped to carry it out. The facts show beyond a reasonable doubt that they did knowingly aid, abet, and become connected with the plan, scheme, or conspiracy in aid of waging the war and committed those war crimes [and crimes] against humanity as charged in the indictment. A more perfect plan or scheme to show a conspiracy to commit crimes could hardly be written than was the agreement entered into by the OKW, Ministry of Justice, and the Gestapo to execute and carry out the Hitler Night and Fog decree. All the defendants who took a part in the execution and carrying out of the NN Decree knew of its illegality and of its cruel and inhumane purposes.
[Signed] MALLORY B. BLAIR Judge of Military Tribunal III
SENTENCES[682]
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE BRAND: The Tribunal is informed that the defendant Schlegelberger is in a condition of illness rendering it impossible for his attendance and that his counsel desires that sentence be pronounced in his absence; in other words, that he waive the presence of the defendant Schlegelberger at the time of sentence.
Is our understanding correct, Dr. Kubuschok?
DR. KUBUSCHOK: Yes, Your Honor.
PRESIDING JUDGE BRAND: The Tribunal will now impose sentence upon those defendants who have been adjudged guilty in these proceedings.
This Tribunal has adjudged the defendant FRANZ SCHLEGELBERGER guilty on counts two and three of the indictment filed in this case. For the crimes of which he has been convicted, this Tribunal sentences him to imprisonment for life.
The Marshal will produce before the Tribunal the defendant Klemm.
HERBERT KLEMM, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to imprisonment for life.
The Marshal will produce before the Tribunal the defendant Rothenberger.
KURT ROTHENBERGER, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to seven years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will bring before the Tribunal the defendant Ernst Lautz.
ERNST LAUTZ, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will produce the defendant Wolfgang Mettgenberg.
WOLFGANG METTGENBERG, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and produce the defendant Wilhelm von Ammon.
Defendant WILHELM VON AMMON, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and will produce the defendant Guenther Joel.
GUENTHER JOEL, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to ten years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and will produce the defendant Oswald Rothaug.
Defendant OSWALD ROTHAUG, on the count of the indictment on which you have been convicted, this Tribunal sentences you to imprisonment for life.
The Marshal will remove this defendant from the court and will produce the defendant Rudolf Oeschey.
RUDOLF OESCHEY, on the counts of the indictment on which you have been convicted, this Tribunal sentences you to imprisonment for life.
The Marshal will remove this defendant from the court and will produce the defendant Josef Altstoetter.
JOSEF ALTSTOETTER, on the count of the indictment on which you have been convicted, this Tribunal sentences you to five years’ imprisonment. You will receive credit upon your sentence for the time already spent in confinement awaiting and pending trial.
The Marshal will remove the defendant from the courtroom.
The Tribunal now stands adjourned without day.
THE MARSHAL: This Tribunal now adjourns without day.
(At 1745 hours, 4 December 1947, the Tribunal was adjourned.)
X. CONFIRMATION OF SENTENCES BY THE MILITARY GOVERNOR OF THE UNITED STATES ZONE OF OCCUPATION[683]
A. Introduction
Under articles XV and XVII of Ordinance No. 7, the sentences imposed by a tribunal are subject to review by the Military Governor. On 18 January 1949, General Lucius D. Clay, Military Governor of the U.S. Zone of Occupation, confirmed by separate orders the life sentences imposed upon the defendants Klemm, Oeschey, Rothaug, and Schlegelberger and the sentences for a term of years imposed upon the defendants Altstoetter, von Ammon, Joel, Lautz, Mettgenberg, and Rothenberger. The order confirming the life sentence upon the defendant Schlegelberger is reproduced below.
B. Order of the Military Governor confirming the life sentence imposed upon the defendant Schlegelberger
HEADQUARTERS, EUROPEAN COMMAND Office of the Commander-in-Chief APO 742
Berlin, Germany 18 January 1949 Military Tribunal III Case No. 3
In the Case of The United States of America vs. Josef Altstoetter, et al.
Order with respect to Sentence of Franz Schlegelberger
In the case of the United States of America against Josef Altstoetter, et al., tried by United States Military Tribunal III, Case No. 3, Nuremberg, Germany, the defendant Franz Schlegelberger, on 4 December 1947, was sentenced by the Tribunal to life imprisonment. A petition to modify the sentence, filed on behalf of the defendant by Dr. Egon Kubuschok, his defense counsel, has been referred to me pursuant to the provisions of Military Government Ordinance No. 7. I have duly considered the petition and the record of the trial and in accordance with article XVII of said Ordinance, it is hereby ordered that:
a. The sentence imposed by Military Tribunal III on Franz Schlegelberger be, and hereby is, in all respects confirmed.
b. The defendant be confined in War Criminal Prison No. 1, Landsberg, Bavaria, Germany.
[Signed] LUCIUS D. CLAY LUCIUS D. CLAY General, U. S. Army
Military Governor and Commander-in-Chief European Command
X. ORDER OF THE UNITED STATES SUPREME COURT DENYING WRITS OF HABEAS CORPUS
SUPREME COURT OF THE UNITED STATES October Term, 1948
EXTRACT
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No. 463 Misc. In the Matter of Wilhelm von Ammon. No. 464 Misc. In the Matter of Dr. Guenther Joel. No. 465 Misc. In the Matter of Herbert Klemm. No. 466 Misc. In the Matter of Ernst Lautz. No. 467 Misc. In the Matter of Dr. Wolfgang Mettgenberg. No. 468 Misc. In the Matter of Rudolf Oeschey. No. 469 Misc. In the Matter of Dr. Oswald Rothaug. No. 470 Misc. In the Matter of Kurt Rothenberger. No. 471 Misc. In the Matter of Dr. Franz. Schlegelberger.
* * * * * * *
ORDER
“Treating the application in each of these cases as a motion for leave to file a petition for an original writ of habeas corpus, leave to file is denied. The Chief Justice, Mr. Justice Reed, Mr. Justice Frankfurter, and Mr. Justice Burton are of the opinion that there is want of jurisdiction. U. S. Constitution, article III, section 2, clause 2; see Ex parte Betz and companion cases, all 329 U.S. 672 (1946); Milch v. United States, 332 U.S. 789 (1947); Brandt v. United States, 333 U.S. 836 (1948); In re Eichel, 333 U.S. 865 (1948); Everett v. Truman, 334 U.S. 824 (1948). Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge are of the opinion that argument should be heard on the motions for leave to file the petitions in order to settle what remedy, if any, the petitioners have. Mr. Justice Jackson took no part in the consideration or decision of these applications.”
2 May 1949