Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III

by Various

III. OPENING STATEMENTS

A. Opening Statement for the Prosecution[9]

Brigadier General Taylor: This case is unusual in that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues, were the embodiment of what passed for justice in the Third Reich.

Most of the defendants have served, at various times, as judges, as state prosecutors, and as officials of the Reich Ministry of Justice. All but one are professional jurists; they are well accustomed to courts and courtrooms, though their present role may be new to them.

But a court is far more than a courtroom; it is a process and a spirit. It is the house of law. This the defendants know, or must have known in times past. I doubt that they ever forgot it. Indeed, the root of the accusation here is that those men, leaders of the German judicial system, consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter.

The methods by which these crimes were committed may be novel in some respects, but the crimes themselves are not. They are as old as mankind, and their names are murder, torture, plunder, and others equally familiar. The victims of these crimes are countless, and include nationals of practically every country in Europe.

But because these crimes were committed in the guise of legal process, it is important at the outset to set forth certain things that are not, here and now, charged as crimes.

The defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals obedient only to the political dictates of the Hitler regime. They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The “trials” they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims.

This conduct was dishonor to their profession. Many of these misdeeds may well be crimes. But, in and of themselves, they are not charged as crimes in this indictment. The evidence which proves this course of conduct will, indeed, be laid before the Court, as it constitutes an important part of the proof of the crimes which are charged. But the defendants are not now called to account for violating constitutional guaranties or withholding due process of law.

On the contrary, the defendants are accused of participation in and responsibility for the killings, tortures, and other atrocities which resulted from, and which the defendants know were an inevitable consequence of, the conduct of their offices as judges, prosecutors, and ministry officials. These men share with all the leaders of the Third Reich—diplomats, generals, party officials, industrialists, and others—responsibility for the holocaust of death and misery which the Third Reich visited on the world and on Germany herself. In this responsibility, the share of the German men of law is not the least. They can no more escape that responsibility by virtue of their judicial robes than the general by his uniform.

One other word of clarification. Some of the evidence in this case will relate to acts which occurred before the outbreak of war in 1939. These acts will be proved in order to show that the defendants were part of a conspiracy and plan to commit the crimes charged to have been committed after the outbreak of war, and to show that the defendants fully understood and intended the criminal consequences of their acts during the war. But none of these acts is charged as an independent offense in this particular indictment.

The charges in the indictment have been so limited for purposes of clarity and simplicity. There is no need to test in this case delicate questions concerning the criminality per se of judicial misconduct since the accusation and the evidence cut much deeper. The defendants are charged with using their offices and exercising their powers with the knowledge and intent that their official acts would result in the killing, torture, and imprisonment of thousands of persons in violation of international law as declared in Control Council Law No. 10. Nor is there any need to inquire here into what acts committed before the war are cognizable as crimes against humanity under Law No. 10, since the bulk of the proof relates to acts which occurred during the war.

In summary, the defendants are charged with judicial murder and other atrocities which they committed by destroying law and justice in Germany, and by then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale. It is the purpose of this proceeding to hear these charges and to render judgment according to the evidence under law.

The true purposes of this proceeding, therefore, are broader than the mere visiting of retribution on a few men for the death and suffering of many thousands. I have said that the defendants know, or should know, that a court is the house of law. But it is, I fear, many years since any of the defendants have dwelt therein. Great as was their crime against those who died or suffered at their hands, their crime against Germany was even more shameful. They defiled the German temple of justice, and delivered Germany into the dictatorship of the Third Reich, “with all its methods of terror, and its cynical and open denial of the rule of law.”[10]

The temple must be reconsecrated. This cannot be done in the twinkling of an eye or by any mere ritual. It cannot be done in any single proceeding or at any one place. It certainly cannot be done at Nuernberg alone. But we have here, I think, a special opportunity and grave responsibility to help achieve this goal. We have here the men who played a leading part in the destruction of law in Germany. They are about to be judged in accordance with the law. It is more than fitting that these men be judged under that which they, as jurists, denied to others. Judgment under law is the only just fate for the defendants; the prosecution asks no other.

THE GERMAN JUDICIAL SYSTEM

There are fifteen defendants in the box, all of whom held high judicial office, and all but one of whom are trained lawyers. To understand this case, it is necessary to understand the general structure of the German judicial system and the places occupied by the several defendants within that system.

To assist the Court in this regard, the prosecution has prepared a short expository brief which is already in the hands of the Court and which has been made available to defense counsel in German and English. The brief includes a glossary of the more frequent German words or expressions which will occur during the trial—most of them from the vocabulary of governmental and judicial affairs. It includes a table of equivalent ranks between the American Army and the German Army and SS, and a table of the civilian ranks used in the German judicial system. It also includes two charts, showing respectively the structure of the Reich Ministry of Justice, and the hierarchy of German courts.[11] Finally, it includes a copy of the composite chart now displayed on the wall of the courtroom, which shows the positions occupied by the defendants in the general scheme of things. This chart has been certified by the defendant Schlegelberger, and will be introduced as an exhibit in this case when Mr. LaFollette commences the presentation of evidence. It is being displayed at this time as a convenient guide to the Court and to defense counsel, to enable them more easily to follow the opening statement.

JUDICIAL ORGANIZATION PRIOR TO 1933

Because Germany was divided into a multitude of states and provinces until modern times, German law is not the product of a continuous or uniform development. However, while some elements of old Germanic law have survived, German law has for many centuries been based primarily on the principles of Roman law. As is the case in most continental nations, German law today is enacted to a substantial degree in the form of codes.

Even at the present time, the principal source of German criminal law is the Criminal Code of 1871. Amendments have been frequent, but it has never been completely overhauled. For our present purpose, it is sufficient to note the code’s threefold division of criminal offenses. Serious crimes, punishable with death or imprisonment for more than 5 years, are called “crimes” (Verbrechen); lesser offenses, punishable with imprisonment or substantial fines, are called “delicts” (Vergehen); and minor offenses are called “contraventions” (Uebertretungen).

Questions of criminal procedure are regulated by the Code of Criminal Procedure of February, 1877; matters of jurisdiction and of court organization are prescribed in the General Judicature Act of January, 1877.

Under both the German Empire and the Weimar Republic, the authority to appoint judges and prosecutors and the power to execute sentences were jealously guarded prerogatives of the individual German states. The Reich Ministry of Justice, therefore, remained predominantly a ministry of federal legislation. The anomaly of a highly unified federal law, as contrasted with a court system administered by the individual states, endured until after the advent of Hitler.

In spite of the fact that the authority for supervision and appointment of judges rested with the numerous states, the German court system was well organized and highly unified before Hitler came to power. The basis of the court system was the local courts (Amtsgerichte), of which there were over 2,000, which had original jurisdiction over minor civil suits and over the less serious criminal offenses (“delicts” and “contraventions”). Original jurisdiction in the more important civil and criminal cases was exercised by the district courts (Landgerichte), of which there were some 180.

The principal appellate courts in Germany were called the district courts of appeal (Oberlandesgerichte). Of those there were 26, or generally one to each state and province.[12] The district courts of appeal entertained civil appeals from all decisions of the local and district courts, and second criminal appeals from cases originally heard in the local courts. The president of the district court of appeals (Oberlandesgerichtspraesident) was also the administrative head of all the courts in his district.

The Supreme Court of the Reich (Reichsgericht) in Leipzig formed the apex of the judicial pyramid. It determined important legal questions involving the interpretation of Reich laws, and entertained appeals from the decisions of the district courts of appeal and from criminal cases originally heard in the district courts. It was also the court of first and last instance for important treason cases.

The judges of the Reich Supreme Court were appointed by the President of the Reich. The judges of the lower courts were appointed by the respective state governments. Before the advent of national socialism, a judge could not be removed by the government, but only by formal action before a disciplinary court composed of his peers. This security of tenure was guaranteed by articles 102 and 104 of the Weimar constitution.

JUDICIAL ORGANIZATION OF THE THIRD REICH

The impact of Hitler’s seizure of power on the German judicial system was swift and drastic. The Enabling Law of 24 March 1933 authorized the executive to issue decrees with the force of law and provided that these “decree laws” could deviate from the Weimar constitution, the civil rights provision of which had already been suspended by a decree of 28 February 1933. For practical purposes, therefore, legislative and executive powers were merged in Hitler’s cabinet, and the constitution was robbed of all practical effect.

In 1934, the administration of justice was taken entirely out of the hands of the German states and was concentrated exclusively in the government of the Reich. The first law for the transfer of the administration of justice to the Reich was proclaimed 16 February 1934; it provided that thereafter all courts should pronounce judgment in the name of the German people, vested in the President of the Reich all clemency powers formerly held by the states, and authorized the Reich Minister of Justice to issue regulations for the transfer of the administration of justice to the Reich. This general directive was put into execution by the second and third laws for the transfer of the administration of justice to the Reich, promulgated in December 1934 and January 1935, respectively. The Justice Ministries of the several states were thereby abolished, and all their functions and powers were concentrated in the Reich Ministry of Justice, which became the supreme judicial authority, under Hitler, in the Reich. Hitler had already proclaimed himself the “Supreme Law Lord of the German people” in his speech to the Reichstag defending the killings which occurred during the suppression of the Roehm putsch.[13]

1. The Reich Ministry of Justice (Reichsjustizministerium)—The centralization of the German administration of justice brought about, of course, a great increase in the scope and functions of the Reich Ministry of Justice. Its more important divisions are shown in the composite chart on the wall of the courtroom; a more detailed chart of the Ministry alone is included in the expository brief.

For the first 8 years of the Hitler regime, the Minister of Justice was Franz Guertner, who had taken this office under the von Papen cabinet and retained it until his death in January 1941. Under Guertner, the two principal officials were the defendant Schlegelberger and Roland Freisler, each with the title of under secretary. Schlegelberger took charge of the Ministry from Guertner’s death until August 1942, but throughout that period he was “Acting Minister” and was never officially given cabinet rank. In August 1942, Dr. Georg Thierack, then president of the People’s Court, was appointed Reich Minister and Schlegelberger was retired. Freisler succeeded Thierack as president of the People’s Court.

Under Thierack, there was only one under secretary. Thierack first appointed the defendant Rothenberger, but in January 1944 Rothenberger was put on the retired list and replaced by the defendant Klemm.

Besides the defendants Schlegelberger, Rothenberger, and Klemm, four of the other defendants held high office in the Ministry of Justice, and still others served in the Ministry at various times during their careers. The defendant Klemm, as well as being the under secretary, headed Division II of the Ministry, which concerned itself with legal education and training. The defendants von Ammon and Mettgenberg, as well as the deceased Westphal, were officials of Divisions III and IV, which were ultimately merged, and which governed virtually all questions of criminal legislation and procedure, and prosecutions. The defendant Altstoetter headed Division VI, which dealt with civil law and procedure. The defendant Engert, after having served on the People’s Court, became the head of Division V, Penal Institutions, and of Division XV, first created in 1942 and dissolved in 1944. Division XV concerned itself with the secret transfer of certain classes of persons from ordinary prisons to the Gestapo. The Ministry of Justice controlled a variety of other judicial institutions, including various Special Courts and the examining office for candidates for admission and qualification of judges and lawyers. It controlled the Academy for German Law and various other associations of attorneys, as well as a special training camp for the Nazi indoctrination of young attorneys. Most important of all, it supervised and administered the entire court system from the Reich Supreme Court clear down to the local courts. This function included the assignment, transfer, and promotion of all judges.

2. The Hierarchy of regular courts—The centralization of judicial administration in the Reich Ministry of Justice did not at first have any pronounced effect upon the structure of the regular court system. The established hierarchy of courts—local courts, district courts, district courts of appeal, and the Reich Supreme Court—continued in effect. The most important development in the early years of the Third Reich was the creation of extraordinary and special courts, which increasingly cut into the jurisdiction of the regular courts.

Under the impact of war, however, the system of regular courts was substantially altered, although its general outlines remained the same. These alterations were intended for economy and expedition, and to reduce the number of judicial personnel. This was accomplished chiefly in two ways: by reduction in the number of judges required to hear particular kinds of cases, and by drastic curtailment of the right of appeal.

Many of these changes were made at the outbreak of war in 1939. Thereafter, all cases in the local courts and all civil cases in the district courts were heard by one judge only; criminal cases in the district courts were heard by three judges, but the president of the court could hear such cases alone if the issues were simple. Criminal cases heard by the local courts could be appealed only as far as the district courts; civil cases heard in the local courts could be appealed directly to the district court of appeals, bypassing the district court.

Further drastic curtailments of the right of appeal occurred in 1944 and 1945. In general, appeals could only be taken by permission of the court which heard the case, and permission was granted only to settle legal questions of fundamental importance. The judicial functions of the district courts of appeal were almost, if not entirely, eliminated, although their supervisory administrative functions continued.

3. Extraordinary courts—The most crucial and radical change in the judicial system under the Third Reich, however, was the establishment of various extraordinary courts. These irregular tribunals permeated the entire judicial structure, and eventually took over all judicial business which touched political issues or related to the war.

Within a matter of weeks after the seizure of power, by a decree of 21 March 1933, “Special Courts” (Sondergerichte) were established. One Special Court was set up within the district of each district court of appeal. Each court was composed of three judges drawn from the judges of the particular district. They were given jurisdiction over offenses described in the emergency decree of 28 February 1933, which included inciting to disobedience of government orders, crimes in the nature of sabotage, and acts “contrary to the public welfare.” There were drastic provisions for the expedition of proceedings before the special courts, and no appeal whatsoever lay from their decisions.

A few weeks later, special military courts, which had been abolished by the Weimar constitution, were reestablished and given jurisdiction over all offenses committed by members of the armed forces. In July 1933, special “Hereditary Health Courts” more generally known as “Sterilization Courts” were established at the seats of the local courts, with special appellate “Hereditary Health Courts” above them.

But the most notorious Nazi judicial innovation was the so-called “People’s Court” (Volksgerichtshof), established by the decree of 24 April 1934, after the Reich Supreme Court’s acquittal of the defendants in the Reichstag fire trial. The People’s Court replaced the Supreme Court as the court of first and last instance for most treason cases.

The People’s Court sat in divisions, or “senates,” of five members each. Two of the five had to be qualified judges; the other three were trusted Nazi laymen selected from high ranking officers of the Wehrmacht (armed forces) and SS, or from the Party hierarchy. They were appointed for 5-year terms by Hitler, on the recommendation of the Minister of Justice. Six “senates” were established, each of which heard cases from a particular geographical section of Germany. In 1940 a “special senate” was established to retry cases where, in the judgment of the chief public prosecutor of the Reich, an inadequate punishment had been imposed.

As time went on, the concept of “treason” was much enlarged by a variety of Nazi decrees, and both the Special Courts and the People’s Court were given jurisdiction to try a great variety of offenses. In 1936, for example, the smuggling of property out of Germany was proclaimed an offense against the national economy, and the People’s Court was given jurisdiction over such cases. In 1940, a new decree defined the jurisdiction of the Special Courts and People’s Court, and all sorts of offenses, such as evasion of conscription and listening to foreign broadcasting stations, were brought within their purview.

Toward the end of the war, by a decree of February 1945, emergency civil courts martial (Standgerichte) were set up in areas “menaced by the approaching enemy.” Each consisted of three members appointed by the Reich Defense Commissar, usually the Gauleiter (regional leader) of the district; the president was a professional judge, who sat with one associate judge from the Nazi Party, and one from the Wehrmacht or SS. These courts martial could only condemn the accused to death, acquit him, or transfer the case to a regular tribunal.

Thierack was president of the People’s Court prior to his appointment as Reich Minister of Justice. He was then succeeded by Freisler, the former under secretary of the Ministry of Justice, who remained as president until nearly the end of the war, when he was killed in an air raid. The defendant Engert was vice president of the People’s Court prior to his transfer to the Ministry of Justice in 1942. The defendant Nebelung was president of the Fourth Senate of the People’s Court. The defendant Petersen, the only nonlawyer in the dock, was an SA Obergruppenfuehrer (lieutenant general) who sat as a lay judge on many occasions in the First and Special Senates of the People’s Court.

Three of the defendants were judges of the Special Courts. The defendant Cuhorst was president of the Special Court in Stuttgart, and the defendant Rothaug was president of the Special Court in Nuernberg. The defendant Oeschey also sat on the Special Court in Nuernberg and succeeded Rothaug as its president when the latter became a public prosecutor. Oeschey was also president of the emergency civil court martial at Nuernberg.

4. Public prosecutors—The prosecution of criminal offenses, under the Third Reich, was handled by a special group of state attorneys (Staatsanwaltschaft) directed by the Ministry of Justice. Increasingly under the Third Reich there was interchange of personnel among judges and prosecutors.

The defendant Rothaug, for example, left the bench of the Special Court at Nuernberg to become a senior public prosecutor of the Reich (Reichsanwalt). The defendant Barnickel also held this title. The defendant Joel, in 1943, left the Ministry of Justice and became the public prosecutor of the district court of appeals for Westphalia, at Hamm.

The most important prosecutor among these defendants, however, was Ernst Lautz, Chief Public Prosecutor of the Reich (Oberreichsanwalt). In this capacity, Lautz prosecuted many important cases before the People’s Court.

COUNT ONE

THE DESTRUCTION OF LAW AND JUSTICE IN GERMANY

I turn now to an examination of the means by which the defendants and their colleagues seized control of Germany’s judicial machinery and turned it into a fearsome weapon for the commission of the crimes charged in the indictment.

The destruction of law in Germany was, of course, part and parcel of the establishment of the Third Reich dictatorship. Initially, the dictatorship arose out of the decrees in the early part of 1933 which suspended the constitutional guaranties of freedom and vested Hitler’s cabinet with legislative power, unrestrained by constitutional limitations. These early decrees put an end to law as we know it in a democracy.

But much more had to be accomplished in order to achieve a dictatorship of the proportions envisaged by the authors of the Third Reich. Freedom of the ballot had to be suppressed so that a false veneer of electoral approval could be spread over the Nazi edifice. The civil service had to be purged of dissident officials. An ubiquitous and ruthless police system had to be created. A multitude of other measures were necessary. But, above all, law and justice had to be utterly stamped out.

At first blush, the reason for this may not appear. The Nazi cabinet could decree any law it wanted to with the flourish of a pen. The courts, unless they were bold enough to deny the very basis of Hitler’s authority, which they did not do, were bound to punish violations of these laws. Was this not enough for even Hitler’s purposes?

The answer is twofold. Particularly in the early years of the Third Reich, Hitler’s government pursued aims and employed methods which it did not, at that time, see fit to authorize by formal, public legislation. The regime was not yet strong enough, externally or internally, to face the storm of disapproval which such legislation would have encountered. The Nazi government thought it wise to pursue these aims and employ these methods outside of, and often in violation of, the letter and spirit of the law. And it did not wish to be embarrassed or obstructed by an independent judiciary respectful only to the law. The outcome of the Reichstag fire trial, for example, was highly embarrassing and promptly bore sinister fruit in the creation of the People’s Court.

But there was another and much more fundamental reason. The ideology of the Third Reich was totally incompatible with the spirit of the law. It could not live under law, and the law could not live under it. To take but one example: even under stringent anti-Jewish legislation, there were bound to be situations where an overgreedy German in a civil suit or an overzealous police official in a criminal case had erroneously haled a Jew into court. In other words, even under Nazi legislation, there were bound to be cases when the Jew was legally right. Yet, it was unthinkable that a German court should exalt the Jew and discredit the German with a decision in favor of the Jew. Such perplexing problems could be dealt with only by courts which were not true courts at all, and which could be trusted to suppress the law and to render an ideological judgment or, as was done later, to declare the Jew to be an animal beyond the judicial pale entirely, who could not, any more than a wrongfully beaten dog, ask judicial intervention or protection.

This sort of problem was far more delicate in the case of the Poles, whom the Nazis chose to regard as less than human but more than Jewish. Later on in this case, we will, I think, derive some macabre humor from the documentary spectacle which some of these defendants made of themselves in vainly wrestling with the insoluble problem of how to achieve a certain amount of legal order and stability in occupied Poland, without at the same time giving the Poles any true law on which they could rely.

In short, the very idea of “law” was inimical to the ideology of the Third Reich, and it is not surprising that its principal authors recognized this fact at a very early date. In 1930, Hitler himself declared with reference to a court decision against certain Nazis—

“We can assure the judges that, if national socialism assumes power, they will be fired without any pension.”[14]

Joseph Goebbels expressed the same thought even more bluntly in 1934 after the Nazis were in power—

“We were not legal in order to be legal, but in order to rise to power. We rose to power legally in order to gain the possibility of acting illegally.”[15]

Later on in this case, the Tribunal will have offered to it documents which speak at length about the creation of a new, National Socialist system of law. By then, it will be apparent, I believe, that a “National Socialist system of law” is a preposterous contradiction in terms. It never was an objective of the Third Reich to create any system of law. On the contrary, it was its fundamental purpose to tear down every vestige of law in Germany, and to replace it with a mere bureaucracy which would mete out reward and punishment in accordance with the tyrannical ideology and tactical necessities of the dictatorship. The one-time sage of Nazi jurisprudence, the late Dr. Hans Frank, summed this up aptly in 1935 (NG-777, Pros. Ex. 19)—

“National socialism is the point of departure, the content, and the goal of the legal policies of the Third Reich.”[16]

And the defendant Schlegelberger expressed the same thought in 1936 (NG-538, Pros. Ex. 21)—

“Accordingly there can be no doubt that now the moral order and ideology [Weltanschauung], as recognized in the Party program, has to be taken into consideration in the interpretation and application of every norm of the existing law.”[17]

We may now retrace some of the steps which the law lords of the Third Reich took to turn the judicial system into a subservient but effective agent of the regime. Some of these we have already noted. The centralization of the administration of justice in the Reich government, the vesting of over-all authority in the Reich Ministry of Justice, and the creation of extraordinary courts were essential steps in the process. Standing alone, these acts might have been unobjectionable, though the creation of special courts was expressly prohibited by article 105 of the Weimar constitution. But these first moves were but the prelude to a series of deadly thrusts at the vitals of the judicial system. The early history of this organized attack on the fundamentals of law is summarized in the decision of the International Military Tribunal—

“Similarly, the judiciary was subjected to control. Judges were removed from the bench for political or racial reasons. They were spied upon and made subject to the strongest pressure to join the Nazi Party as an alternative to being dismissed. When the Supreme Court acquitted three of the four defendants charged with complicity in the Reichstag fire, its jurisdiction in cases of treason was thereafter taken over and given to a newly established ‘People’s Court’ consisting of two judges and five officials of the Party. Special Courts were set up to try political crimes and only Party members were appointed as judges. Persons were arrested by the SS for political reasons, and detained in prisons and concentration camps; and the judges were without power to intervene in any way. Pardons were granted to members of the Party who had been sentenced by the judges for proved offenses. In 1935, several officials of the Hohenstein concentration camp were convicted of inflicting brutal treatment upon the inmates. High Nazi officials tried to influence the court, and after the officials had been convicted, Hitler pardoned them all. In 1942, ‘judges’ letters’ were sent out to all German judges by the government, instructing them as to the ‘general lines’ that they must follow.”[18]

The destruction of the judicial process continued throughout the era of the Third Reich. The period from the beginning of the new regime in 1933 until the outbreak of the war was characterized by the rise of special tribunals, and the steady decrease of procedural guaranties. After 1939, the war accelerated the conversion of criminal justice into dictatorial administrative procedure until, at the end of the war, all resemblance to legal process had vanished. We turn now to an examination of the particular steps in the process.

a. 1933–1939

Immediately after the seizure of power, the Nazis struck hard at the independence and integrity of the judiciary by dismissing or demoting politically unreliable judges and officials of the Ministry of Justice. The temporary decree of 7 April 1933, under which this was done, provided that—

“Officials, whose former political activity does not offer a guarantee that they, at all times without reservation, act in the interest of the national state, can be dismissed from service. For a period of 3 months after dismissal, they are accorded their former salary. From this time on, they receive three-fourths of their pension and corresponding survivor’s benefits.”[19]

In 1937 similar language was embodied in permanent legislation in the Civil Service Act.[20] The result of these measures was the elimination of all Jews and part-Jews, Social Democrats, and other opponents of the Nazi regime, from the bench and from the staff of the Ministry of Justice.

Substantive criminal law during this period was radically affected by the introduction of the authoritarian ideology of the Third Reich, and the concept of the criminal as the enemy of the nation. The prime purpose of the new criminal provisions was to make the new holders of power secure against all competition or attack. The decree for the protection of the German people[21] initiated a never-ending stream of legislation intended to protect the persons, institutions, and symbols of the Third Reich against all attacks of political enemies. The field for the application of treason and high treason was vastly enlarged by investing the most preparatory and auxiliary acts with the character of treason. The range of application of the death penalty, in the past restricted to murder and some cases of homicide, was greatly widened. Hand in hand with the sharpening of penalties and the extension of the scope of punishable atrocities went the attempt to widen the scope of German criminal jurisdiction beyond its territorial limits. The new “race defilement” prohibitions for example were made applicable to offenses committed abroad.[22]

Examples of such draconic and tyrannical decrees are legion. The decree of 24 April 1934 provided that the death penalty, or hard labor for life, or hard labor for 2 years or more, should be inflicted—

“1. If the act aimed at establishing or maintaining an organized combination for the preparation of high treason; or

“2. If the act was directed toward making the armed forces or police unfit for the execution of their duty to protect the stability of the German Reich from internal or external attacks; or

“3. If the act was directed toward influencing the masses by making or distributing writings, recordings, and pictures, or by the installation of wireless, telegraph, or telephone; or

“4. If the act was committed abroad or was committed in such a manner that the perpetrator undertook to import writings, recordings, or pictures from abroad for the purpose of distribution within the country.”

By August 1938, this tendency had progressed to a point where the following acts were all made punishable by death:

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

“2. Whoever undertakes to induce a soldier or conscriptee in the reserves to disobedience, opposition, or violence against a superior, or to desertion or illegal absence or otherwise to undermine the discipline of the German or an allied military force; and

“3. Whoever undertakes to cause himself or another to avoid the fulfillment of military service entirely, or to a limited extent, or temporarily, by means of self-mutilation, or by means designed to deceive or by other methods.”[23]

But the Nazi jurists were not content to sharpen the letter of the penal laws; they subverted the spirit and method of interpretation of the criminal law in order to enable the courts to impose punishment, outside the law, in accordance with the political ideology of the regime. Thus, in June 1935, article 2 of the penal code was amended to read as follows:

“Whoever commits an act which the law declares as punishable or which deserves punishment according to the fundamental idea of a penal law or the sound sentiment of the people, shall be punished. If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying spirit can be most readily applied to the act.”[24]

At the same time, the following articles were added to the code of criminal procedure:

“Article 170a—If an act deserves punishment according to the sound sentiment of the people, but is not declared punishable in the code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law.

“Article 267a—If the main proceedings show that the defendant committed an act which deserves punishment according to the sound sentiment of the people, but which is not declared punishable by the law, then the court must investigate whether the underlying principle of a penal law applies to this act and whether justice can be helped to triumph by the proper application of this penal law.”[25]

And, simultaneously, the Reich Supreme Court was ordered to set aside its prior decisions in order to bring the law into conformance with the ideology of the Third Reich. The decree is as follows:

“The Reich Supreme Court, as the highest German tribunal, must consider it its duty to effect an interpretation of the law which takes into account the change of ideology and of legal concepts which the new State has brought about. In order to be able to accomplish this task without having to show consideration for the decisions of the past brought about by other ideology and other legal concepts, it is ruled as follows:

“When a decision is made about a legal question, the Reich Supreme Court can deviate from a decision laid down before this law went into effect.”

This tyrannical doctrine of “punishment by analogy” was given a sugar coating by Dr. Hans Frank (NG-777, Pros. Ex. 19):

“In the future, criminal behavior, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behavior is considered punishable according to the sound sentiment of the people.”[26]

But once again, Josef Goebbels was shameless enough to state the doctrine with complete frankness (NG-417, Pros. Ex. 23):

“While making his decisions the judge is to proceed less from the law than from the basic idea that the offender is to be eliminated from the community. During a war it is not so much a matter of whether a judgment is just or unjust, but only the decision is expedient. The State must protect itself in the most efficient way and wipe them out entirely * * *. One must not proceed from the law, but from the resolution that the man must be wiped out.”[27]

On the administrative side, the prewar years were characterized by ever closer collaboration between Himmler’s Gestapo and the Reich Ministry of Justice. In February 1937, Himmler directed that all Gestapo matters be made available to the district public prosecutors. The next month, the Reich Minister of Justice (Guertner) addressed a letter to all the district public prosecutors, calling attention to Himmler’s directive and stating (NG-323, Pros. Ex. 32):

“In order to have this decree fulfill its purpose and in the interest of the closest possible collaboration between the office of the public prosecutor and the authorities of the Gestapo, I hereby issue this supplementary order that in future, public prosecutors routinely address all requests for investigations to be conducted on the basis of reports of political nature received by them directly, to the local and district police authorities via the competent state police offices. When in cases based on such reports, the necessary interrogations of the accused or the witnesses are procured by the court itself or by the expert of the prosecution, and the police authorities are not at all involved in the proceedings, I request that the state police offices be informed of the proceedings as soon as possible.”[28]

The German jurists, who collaborated so closely with Himmler’s minions, were equally willing to protect “overzealous Nazis” against the penal consequences of their worst excesses. Late in 1933 a group of “Storm Troopers” (SA) committed vicious assaults and tortures on some political prisoners who had been confined in the concentration camp of Kemna, near Wuppertal in the Ruhr. The description of this outrage by the Reich Minister of Justice reads as follows:

“In the camp, some of the prisoners were exposed to the severest mishandling.

“In most cases, shortly after their shipment had come in, and when they were being interrogated, they would be beaten, partly upon their bare bodies, with rubber cudgels, horsewhips, sticks, ox lashes, and other objects. In many cases they had to lie down over a special caning bench, or were forced down onto it by guards, and their mouths were kept shut or they were gagged with balls of paper, pieces of cloth, bags, or similar things, in order to prevent them from screaming. Other members of the guard in the meantime would begin to beat them up. Prisoners who fainted were kicked back to consciousness or had water thrown over them to wake them up and make them stand up again. After this, prisoners who were mistreated were frequently locked up in a small space under the stairway or in an elevator without being given any medical attention or food and drink. In some cases, the injuries the prisoners received from their beatings made it necessary to transfer them to hospitals.

“Several prisoners also were forced to eat unwashed herrings from the barrel, which had also been sprinkled with salt * * *. When they had finished the herrings, the prisoners, who were naturally suffering from tormenting thirst, were not allowed to have water brought them.”

Proceedings against the storm troop leaders in a disciplinary tribunal of the Nazi Party ended in a mere reprimand and deprivation of the right to hold public office for 1 year. The files of the Ministry of Justice concerning this atrocious episode contain the recommendations of various officials, including the defendant Joel, that criminal proceedings against the perpetrators should be cancelled. This recommendation was adopted and forwarded to Hitler by Minister Guertner, who, for justification, pointed to the circumstances that the culprits were not experienced concentration camp guards, that the majority of the victims were Communists, that, in some cases, the victims had been obstinate and insubordinate, and that communism had an especially strong hold in the Wuppertal area.

b. 1939–1945

Before the outbreak of war, the main objective of Nazi penal innovations was to suppress internal opposition to the new regime, and to render life intolerable for the Jews. During the early years of the war, the Nazi jurists were largely concerned with legal problems incident to the occupation of Poland, France, and the other nations overrun by the Wehrmacht. The extension of German law to the occupied areas, and the outrages committed thereunder, constituted war crimes and crimes against humanity on a grand scale, which will be described in due course. German criminal law was also applied extensively to acts committed outside the Reich, even when committed by foreigners.[29] Acts committed by a foreigner outside the Reich could even constitute treason against the Reich.

But the war also brought a mass of new criminal legislation within Germany. This new legislation was influenced by the necessities of war, but also contained matured concepts of National Socialist criminal policy. The principal aim was to guarantee the security of the Nazi regime, and bolster the economic and military strength of Germany, through extremely harsh criminal punishments. The chief weapon was the unsparing and almost indiscriminate use of capital punishment.

Later on, as Germany’s military situation worsened, the death penalty became an ordinary sentence for a great variety of offenses. The increased severity of air raids resulted in capital punishment or long prison sentences for crimes committed during black-outs, even very minor looting. Economic hardship and shortages of materials were accompanied by laws prescribing penal servitude, or even death, for anyone who destroyed or removed food or other supplies. Toward the end of the war, a desperate attempt was made to cope with the growing defeatism by imposing the death penalty for spreading rumors, listening to foreign broadcasts and even for the most minor derogatory remarks about the Hitler regime or pessimism concerning Germany’s chances of military success.

The war brought new and extraordinary procedures, as well as new crimes. Despite all that had been done in prewar years, the courts were still handing down some sentences which, in the eyes of Berlin, were too mild, and once such a final judgment had been given, nothing could be done about it. The whole idea of the finality of judgments had long been a thorn in the flesh of the Nazi jurists. Accordingly, 2 weeks after the outbreak of war, a decree[30] was promulgated which provided that, if the Chief Reich Prosecutor had “serious misgivings” concerning the justice of a sentence, he could, within 1 year thereafter, file an extraordinary appeal and secure a second trial of the case. The officials of the Reich Ministry of Justice, who controlled the public prosecutors, reviewed the criminal decisions and directed the chief prosecutor to file appeals in cases where they deemed the punishment insufficient. If the first decision had been rendered by the regular courts, the second trial was held by the Special Penal Senate of the Reich Supreme Court. If the first decision had been made by the People’s Court, on the other hand, the second trial was held by the Special Senate of the People’s Court.

In 1940, an analogous procedure was authorized[31] under which the Chief Public Prosecutor of the Reich could lodge with the Supreme Court a petition for “nullification” against final judgments of the regular criminal courts or the Special Courts “if the judgment is not justified because of an erroneous application of law on the established facts.” The Supreme Court was authorized either to render a new judgment or to send the case back to a lower court for a new trial under binding instructions as to the legal principles which should govern. Not content with this elaborate system for punitive double jeopardy, the right of the Chief Public Prosecutor to attack final judgments by means of the nullification procedure was again enlarged in 1942, by extension to questions of law and to the adequacy of the punishment.[32] This new regulation provided the prosecution, but not the defense, with an unlimited right to ask for a new trial within one year after the decision had been rendered.

On the day of the attack on Poland, a new assault on the tenure and independence of the judiciary was made.[33] By this new decree, judges were obliged to take any assignment whatsoever, as judge, prosecutor, or administrative official, and on any regular or Special Court, according to the orders of the Reich Minister of Justice. Similar powers were given to the presidents of the district courts of appeal within their respective districts.

It might have been thought that, after the purge of Jewish and politically dissident judges in 1933, the permanent subjection of the judiciary to dismissal for political reasons in 1937, and their complete subordination to the Reich Ministry of Justice in 1939, Hitler would have at last obtained a suitable judiciary for his most extreme purposes. Apparently, however, pre-Hitler legal training sometimes had the unfortunate effect that even trusted Nazi judges failed in their decisions to measure up to the ideology and expectations of the Third Reich. At all events, something like a crisis in the German judicial system occurred in 1942.

On 26 April 1942 Hitler made a speech before the Reichstag in which he reviewed the effects of the hard winter of 1941–1942 and exhorted the German people to even greater sacrifices in order to achieve victory. In the course of this speech, Hitler made certain remarks about the German legal profession and the administration of justice which had an immediate and pronounced effect. Hitler said (NG-752, Pros. Ex. 24):

“I do expect one thing: that the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience and service in the performance of the greater task which is a matter of to be or not to be. The front and the homeland, the transport system, administration, and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.

“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position, without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.

*******

“Furthermore, I expect the German legal profession to understand that the nation is not here for them, but that they are here for the nation; that is, the world, which includes Germany, must not decline in order that formal law may live, but that Germany must live, irrespective of the contradictions of formal justice. To quote one example, I fail to understand why a criminal who married in 1937, ill-treated his wife until she became insane and finally died as a result of the last act of ill-treatment, should be sentenced to 5 years in a penitentiary at a moment when tens of thousands of honorable German men must die to save the homeland from annihilation at the hands of bolshevism.

“From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”[34]

Immediately after Hitler’s speech, the Reichstag adopted the following resolutions:

“There can be no doubt in this present state of war, when the German nation wages its fight for its very existence, that the Fuehrer must exercise the right, which he claims, to do everything which serves or helps to achieve victory. Therefore, the Fuehrer, by his authority as the leader of the nation, supreme commander of the armed forces, head of the government, and in supreme possession of all executive power, as supreme law lord, and as leader of the Party, has to be in a position to enforce, with all means which he may consider suitable, every German’s duties, whether he might be a common soldier or an officer, a subordinate or high civil servant or a judge, a leading or subordinate functionary of the Party, a worker or an employee. In case of violations of duties, he has the right to impose the proper penance, after a conscientious examination of the case. This can be done without consideration for the so-called civil service rights. In particular, he may remove anyone from his office, rank and his position, without resort to the established procedures.”[35]

This menacing blast from the Fuehrer, and the resolution of the Reichstag, wiped away the last remains of judicial independence in Germany. Furthermore, within a few months a complete reorganization of the upper levels of the Ministry of Justice took place. Schlegelberger, who had seen the storm coming and made desperate efforts to meet Hitler’s wishes, was nevertheless retired and replaced by Thierack. A special Hitler decree in August 1942 gave the new Reich Minister sweeping powers to bring the administration of justice into conformity with the needs of the regime; it read:

“A strong administration of justice is necessary for the fulfillment of the tasks of the Greater German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice, and to take all necessary measures in accordance with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.”[36]

At the same time, Roland Freisler left the Justice Ministry to become president of the People’s Court, and the defendant Rothenberger took Freisler’s old job as under secretary. Earlier in the year, Rothenberger, previously president of the district court of appeals at Hamburg, had attracted the Fuehrer’s attention by submitting to him a long thesis on “judicial reform.” This thesis is a curious document; it speaks at length of the honor and dignity of the judges’ function and of the need for justice as the foundation of the Third Reich, but the reason it won the Fuehrer’s approval can perhaps be more clearly inferred from the two following quotations (NG-075, Pros. Ex. 27):

“The present crisis in the administration of justice today is close to such a climax. A totally new conception of the administration of justice must be created, particularly a National Socialist judiciary, and for this the druggist’s salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.

“The criterion, however, for the functions of justice, and particularly of the judge in the National Socialist Reich, must be a justice which meets the demands of national socialism.

“He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand, all outmoded institutions, concepts, and habits have been done away with—if need be, in a brutal manner—and if, on the other hand, institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation * * *.”

At the time he was appointed Minister, Thierack also became the president of the German Academy of Law, and of the National Socialist Association of Jurists. The temper of the new administration of justice was reflected in Thierack’s announcement to the German Academy of Law as follows:

“The formulation of law is not a matter of science and a goal in itself, but rather a matter of political leadership and organization. Therefore, the activities of the Academy relating to the formulation of law must be coordinated with the aims of political leadership.”[37]

At the time of their appointments, Thierack and Rothenberger envisaged an ambitious program for simplifying the hierarchy of German courts, drastically reducing the number of judges, and “modernizing” the education and training of judges in accordance with prevailing political thought. Much of this program was never realized, but Thierack and Rothenberger did succeed in developing new devices for direct control of judicial decisions by the government. This has been also foreshadowed in Rothenberger’s thesis submitted to Hitler:

“* * * a judge who is in direct relation of fealty to the Fuehrer must judge ‘like the Fuehrer.’ In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer.’ He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must, upon the request of the judge, give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”

In part, this executive control was accomplished by conferences between the prosecutors and the judges, in which the prosecutor advised the judge what measure of sentence the Ministry of Justice thought fitting in a particular case. But an even more effective device was a series of confidential circulars to the judges known as Judges’ Letters (Richterbriefe) which Thierack dispatched, under his own signature as Minister of Justice, to the judges and prosecutors throughout the German judicial system. Thierack announced this forthcoming series in September 1942 in the following letter:

“To aid the judge in fulfilling his high duty in the life of our people, I decided to publish the Judges’ Letters. They shall be distributed to all German judges and prosecutors. These Judges’ Letters will contain decisions that seem to be especially worthwhile mentioning, on account of result or argumentation. On these decisions, I will show how a better decision might or should have been found; on the other hand, good, and for the national community, important decisions shall be cited as examples.

“The Judges’ Letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They will rather tell how judicial authorities think National Socialist justice should be applied and thereby give the judge the inner security and freedom to come to the right decision.

“The contents of these letters are confidential; the chief of an office shall keep them, and let every judge and prosecutor take notice of them against receipt.

“For the publication of the Judges’ Letters, the collaboration of all the judges and prosecutors is needed. I expect that suitable decisions from all branches of justice will be presented to me. On publication, neither the judge nor the deciding court will be named.

“I am convinced that the Judges’ Letters will help to influence the administration of justice uniformly according to National Socialist doctrines.”

The first letter was published on 1 October 1942. In a sort of hortatory prelude, many thoughts and ideas from the Rothenberger thesis were embodied. Thereafter, a number of criminal cases and the sentences therein imposed were set forth and commented upon.

Four cases dealing with crimes committed during black-outs were described; those decisions in which the death penalty had been imposed were approved, the others were all criticized for being too mild. Six cases dealing with sex offenses followed; the sentences in five of them were condemned as utterly inadequate. No case was cited where the sentence was thought too severe.

At the end of the letter, three cases dealing with Jews were discussed in great detail. One of these dealt with the racial law which required all Jews to adopt the surname “Sarah” or “Israel” according to their sex. A Jewish woman had neglected to apply to the telephone company to change her listing by the addition of the name “Sarah.” The district court sentenced her to a fine of thirty reichsmarks, or 19 days in prison. The court set forth in its opinion that certain other courts had construed the law as not requiring an application to change a telephone listing, and that the Jewess might have relied on these decisions. Thierack’s letter described the Jewess’ action as “typical Jewish camouflage in her business dealings” and stated that the lack of uniformity in the decisions in no way justified leniency in the punishment.

In the second case, a special coffee ration had been distributed in a certain town, in the autumn of 1940. A large number of Jews had applied to receive the ration. However, since Jews were automatically excluded from the distribution, they did not receive any coffee. The following year, the food authorities imposed a fine on the Jews for the offense of having applied for the coffee; thereupon several hundred Jews sought relief against the fine in the district court. The judge rescinded the fine on the basis of the statute of limitations and for other legal reasons, and expressed the opinion that the Jews had not committed any punishable act in merely applying for the coffee. On this decision, the Reich Minister’s letter commented as follows (NG-298, Pros. Ex. 81):

“The ruling of the local court, in form and content, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page-long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which, under any circumstances, avoided harming the prestige of the food office and thus putting the Jew expressly in the right toward it.”

In the third case, a wealthy young Jew had committed certain violations of the German foreign currency regulations. The district court, although it found certain extenuating circumstances, imposed a heavy fine on the Jew and sentenced him to 2 years’ imprisonment. This decision particularly provoked the Reich Minister of Justice, who said (NG-298, Pros. Ex. 81):

“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of a different, but he is also of an inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment. Here, where a profiteering transaction typical of the defendant as a Jew, and to the disadvantage of the German people, had to be judged, the verdict, in awarding punishment, must take into consideration in the first place that the defendant for years had deprived the German people of considerable assets. * * * This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment.”

Beginning with this issue in October 1942, the Judges’ Letters were issued regularly and continued to be filled with exhortations to the utmost ruthlessness in the imposition of sentences. Later on, they were supplemented by Lawyers’ Letters (Rechtsanwaltbriefe). As time went on, German criminal law and procedure scarcely retained any other elements than that of threatening wavering elements of the population into submission. The wholesale destruction of legal process culminated at the very end of the war in the creation of the emergency civilian courts martial, which have already been mentioned. These courts martial were given jurisdiction “for all kinds of crimes endangering the German fighting power or undermining the people’s defensive strength”[38] and, if they found the defendant guilty, could impose only the death sentence. The end of the war cut short the life of these tribunals, after ten weeks of judicial terrorism.

Throughout the war, the administrative and penal branches of the Ministry of Justice continued to cooperate in protecting loyal followers of the Third Reich from criminal prosecution for their innumerable atrocities against Poles, Jews, and other “undesirable elements.” At the successful conclusion of the Polish campaign, an unpublished decree suspended all prosecutions against racial Germans in Poland for any punishable offenses which they might have committed against Poles during the Polish war “due to anger aroused by the cruelties committed by the Poles.” In 1941, the defendant Schlegelberger assured Rudolf Hess that he would consider “benevolently” an amnesty in any particular case of atrocities committed after the conclusion of the Polish campaign. An example of this “benevolent consideration” may be worth noting. Two Germans, one of whom was a sergeant of police, shot two Polish priests in Poland in the spring of 1940 “for no reason other than hatred for the Catholic clergy.” A Special Court imposed 15 years’ penal servitude for manslaughter. After 2 years of the sentence had been served, Himmler asked that the Germans be pardoned, and that it be made possible for them to “win their reprieve” through service at the front. At Himmler’s request, the Ministry of Justice reduced the sentence to 5 years, and both men were released from confinement and assigned to duty in a Waffen SS [armed SS] unit.

After the advent of Thierack and Rothenberger, cooperation between the Ministry of Justice and Himmler’s police became even closer. On 18 September 1942 Thierack and Rothenberger held a long conference with Himmler and other high ranking SS leaders at Hitler’s headquarters. Thierack’s notes of the meeting included the following (654-PS, Pros. Ex. 39):

“1. Correction by special treatment at the hands of the police in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS, and myself:

a. In principle, the Fuehrer’s time is no longer to be burdened with these matters.

b. The Reich Minister of Justice will decide whether and when special treatment at the hands of the police is to be applied.

c. The Reich Leader SS will send the reports, which he sent hitherto to Reichsleiter Bormann, to the Reich Minister of Justice.

d. If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.

e. If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.

f. In cases where the Fuehrer’s decision on a mild sentence is sought through other channels (such as by a letter from a Gauleiter) Reichsleiter Bormann will forward the report to the Reich Minister of Justice. The case will then be decided as already described by the Reich Leader SS and the Reich Minister of Justice.

“2. Delivery of antisocial elements from the execution of their sentences to the Reich Leader SS to be worked to death. Persons under security detention—Jews, gypsies, Russians, and Ukrainians, Poles with more than 3-year sentences; Czechs and Germans with more than 8-year sentences—will be turned over without exception according to the decision of the Reich Minister of Justice. First of all, the worst antisocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann.

*******

“14. It is agreed that, in consideration of the intended aims of the government for the clearing up of the eastern problems, in future Jews, Poles, gypsies, Russians, and Ukrainians are no longer to be tried by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. This does not apply to civil lawsuits, nor to Poles whose names are registered for, or entered in the German Racial Lists.”[39]

We said at the outset that the defendants and their colleagues accomplished the complete overthrow of justice and law in Germany. The foregoing recital of the steps in this process and the proof to be introduced will, we think, make this abundantly clear. The Third Reich became a realm of despotism, death, and finally, of despair.

But the very perversion and brutality of the Nazi penal system may lead us to think of it as aimless cruelty, which it is not. Fanatical, ruthless, and even unbalanced as the German leaders might have been, they were never purposeless. Law and justice were destroyed for a reason. They were destroyed because by their very nature they stood athwart the path of conquest, destruction, and extermination which the lords of the Third Reich were determined to follow. The Nazi Special Courts, double jeopardy, the flouting of the letter and the spirit of the law—those things were not ends in themselves. They were methods deliberately adopted for the purpose of causing death, torture, and enslavement. Now that we have traced the steps in the conspiracy, it is timely that we examine the murders and other atrocities which were its intended and actual outcome.

COUNTS TWO AND THREE

WAR CRIMES AND CRIMES AGAINST HUMANITY

Two facts stand out when we study the crimes charged in this indictment. First, the diabolical novelty presented by the designed use of a nation’s system of justice and its machinery by the governing power of that nation, as a weapon of destruction—an instrumentality of murder, kidnapping, slavery, torture, brutality, and larceny. Second, the mass character, and therefore the enormity of the crimes committed by these defendants with this new weapon—this headman’s axe fashioned from the scales of justice in a forge, stoked with national greed and racial bigotry and hatred, fanned by blasts of directed propaganda and shaped by the calculated blows of designedly infamous legislation, controlled and dominated courts, and a studied effort to make ineffective or to eliminate completely, the defensive aids customarily enjoyed by defendants in the courts of civilized nations.

These facts in turn have the definite effect of confusing and dulling the minds of lawyers and laymen alike, so that they do not clearly understand either the right and the power of this Tribunal to try these defendants under international law or the simple standards by which their crimes can be measured and judged.

It follows, therefore, that we should now pause at the threshold of this trial to make clear the authority under and by which we act, and the time honored standards under which we shall assert and prove the guilt of these defendants.

A concise review of recent history will be helpful and therefore proper.

On 30 October 1943 Prime Minister Churchill, Premier Stalin, and President Roosevelt issued their Moscow Declaration. That part which is pertinent to an understanding of what we do here reads as follows:

“The above Declaration is without prejudice to the case of the major criminals whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies.”[40]

It is clear that those criminals whose offenses have no particular geographical localization, are to be “punished,” not necessarily tried, by the “joint decision,” not necessarily a joint or international tribunal, of the Allies. The basic policy to punish is thus clearly laid down.

Thereafter, the same three powers met at Potsdam after the unconditional surrender of Germany. At this meeting representatives of the French nation also participated. There agreements and understandings relative to the future policies to be pursued by those governments toward Germany and war criminals were reached. Two of them should be recalled, because they throw light upon the stature and the international character of this Tribunal and also of the purpose behind the definition of the crimes for the commission of which these defendants have been indicted and are being tried.

In the statement released at Potsdam on 2 August 1945, they said:

“The three governments have taken note of the discussions which have been proceeding in recent weeks in London * * * with the view to reaching agreement on the methods of trial of those major war criminals whose crimes under the Moscow Declaration of October 1943 have no particular geographical localization, * * * they regard it as a matter of great importance that the trial of those major criminals shall begin at the earliest possible date.”

We thus see that the three powers have now advanced from their thinking at Moscow, in that they have determined the method by which these criminals are to be “punished.” But the method of trial is still to be the result of the “joint decision” of the powers who signed the Moscow Declaration, concurred in by the representatives of the French nation. The decision to try by judicial proceeding came six days later at London.

But another significant decision was reached at Potsdam. The powers concerned reached agreement on “The Political and Economic Principles to Govern the Treatment of Germany in the Initial Control Period.” Among these we find the following which are pertinent to an understanding of what we do here.

“A. Political Principles

“1. In accordance with the agreement, * * * supreme authority in Germany is exercised, on instructions from their respective governments, by the commanders-in-chief of the armed forces (of the governments concerned) each in his own zone of occupation and also jointly, in matters affecting Germany as a whole, in their capacity as member of the Control Council.

“2. So far as practicable, there shall be uniformity of treatment of the German population throughout Germany.

“3. The purposes of the occupation of Germany by which the Control Council shall be guided are:

*******

“(III) To destroy the National Socialist Party and its affiliated and supervised organizations, to dissolve all Nazi institutions, to insure they are not revived in any form, * * *.

“(IV) To prepare for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life in Germany.”

On 8 August 1945 the powers which were represented at Potsdam, through their equally accredited representatives, brought forth at London an agreement which in its preamble refers to “major war criminals,” and in article I, to “war criminals.” The agreement also contemplated an International Military Tribunal for the trial of such criminals and for a charter to define the constitution, jurisdiction, and functions of that Tribunal, which charter was in fact made a part of said agreement on the same day. Two things deserve our attention at this point. The charter defined crimes and thus fixed an objective standard by which “war criminals” were to be identified. The adjective “major” was thereupon immediately relegated to the role of superficial invective or at most to that of fixing a comparative standard of criminal importance, measured solely by the judgment of the committee of chief prosecutors or the practical and mechanical necessities of the actual trial. The crimes of most of these defendants are so great that if they choose, they may consider themselves slighted by the committee of chief prosecutors. The prosecution in this case shall do its ethical best to see that they were not fortunate.

On 20 December 1945, the same three Allied Powers which had issued the Moscow Declaration, and the same four Powers which had reached the Potsdam Agreements and entered into the London Agreement and created the Charter of the International Military Tribunal, also enacted Law No. 10 of the Control Council for Germany.

Law No. 10 provided for this Tribunal and the method by which it was thereafter to be brought into existence; defined the crimes over which it exercises jurisdiction, and adequately described the persons it had jurisdiction to try and punish and the punishment it was authorized to impose. The preamble clearly discloses that Law No. 10 was enacted and therefore this Court was created to accomplish two purposes, first—

“In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945 and the Charter issued pursuant thereto,”

and second,

“In order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal.”

Although this preamble does not expressly say so, it is clear that the second purpose is to implement the Potsdam Agreement, which required “uniform treatment of the German population throughout Germany” as an inter-allied multipowered policy. The policy was thus made inter-allied. The method of implementing it was all that was delegated as a matter of right, not power, to the several contracting nations acting within their zones of occupation through their zonal commander. This Tribunal therefore is international in its source as well as in its jurisdiction over subject matter and persons.

On 30 September and 1 October 1946, approximately 13 months after the London Agreement and Charter were created and more than 9 months after Law No. 10 was promulgated, the International Military Tribunal rendered its decision and judgment upon the individual defendants whom it found guilty.

After the judgment of the International Military Tribunal on 18 October 1946, the Zone Commander of the American Zone, for the purpose of implementing Law No. 10 of the Inter-Allied Control Council for Germany, and to carry out the purposes therein stated and previously agreed upon by the four signatory powers at London and Potsdam, promulgated Ordinance No. 7, concerning the organization and powers of certain military tribunals. That ordinance brought this Tribunal into existence and laid down many of the procedures under which it operates, but it did not restrict nor limit its jurisdiction over persons or subject matter set out in Law No. 10 nor did it define new crimes.

Nothing that has been done since the four Powers adopted the London Agreement and Charter has operated to materially limit the jurisdiction over persons and subject matter of this Tribunal from that conferred upon the International Military Tribunal by those international instruments.

A study of the charter, Law No. 10 and Ordinance No. 7 discloses that Law No. 10, article II, paragraph 5 tolls any and all statutes of limitations for the period from 30 January 1933 to 1 July 1945. It also contains provisions which have the effect of depriving this Tribunal of recognizing as a valid defense in this trial any immunity, pardon or amnesty granted to any of these defendants by the Nazi government. This is a limitation not imposed by the charter upon the International Military Tribunal.

Likewise, Ordinance No. 7, article X is in no wise a limitation upon the powers of this Court to determine the guilt or innocence of these defendants.[41] It reads as follows:

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

This provision is couched in language calculated to adequately safeguard the rights of defendants, so that, by the same reasoning, it cannot be said to operate as an oppressive rule, which in any material manner unduly restricts this Court in making its own ultimate determination as to the guilt or innocence of these defendants. It is a reasonable rule designed to avoid undue repetitious production of acknowledged facts in the trial of this cause. As such it does not detract from the dignity of this Court nor affect the concurrent nature of the jurisdiction which this Court enjoys in relation to the International Military Tribunal.

In conclusion, therefore, we take the position that this Tribunal, like the International Military Tribunal, derives from the “joint decision” of the signers of the Moscow Declaration and of the French nation; that the subject matter over which it has jurisdiction, the crimes which it has jurisdiction to try, are codified by the same powers, and that it has jurisdiction over the same persons, those persons who are charged by indictment with having committed these crimes. These are the basic elements upon which concurrent jurisdiction as a matter of law has always been determined to exist by all courts which have had occasion to decide this question.

We have belabored this question of the equal dignity and concurrent jurisdiction of this Tribunal with that of the International Military Tribunal for reasons which are legal and also arise from the standpoint of policy. To us they seem important and because they do, a due regard for the candor owed to this Tribunal and to the world obligates us to state them.

Mr. LaFollette: First, we believe that this Tribunal has the right and power to decide all questions of law, other than the “criminal nature” of those groups or organizations which the International Military Tribunal found to be criminal, and as distinguished from the ultimate facts set out in Ordinance No. 7, article X, as original questions of law which it has the right to decide, contrary to the decisions reached by the International Military Tribunal, if it is convinced that a proper interpretation of the Charter and Law No. 10, or of the ultimate facts to be inferred from the evidence in this case, require it logically, and therefore, by the exercise of intellectual integrity, to reach a contrary decision. We do not deny the persuasive authority of the decision and judgment of the International Military Tribunal, but we point out that between the International Military Tribunal and this Tribunal the relationship of a court of superior jurisdiction to that of one of inferior jurisdiction does not exist in fact or in law. Therefore the decision and judgment of the International Military Tribunal is not binding upon this Court; except to the extent fixed by said article X and the other provisions which are referred to.

Second, from the standpoint of policy the prosecution believes it owes it not only to this Tribunal but to the world to establish the concurrent jurisdiction and therefore the equal dignity of this Tribunal and of the proceedings before it, with those before the International Military Tribunal, which preceded it. We try here war criminals charged with the commission of international crimes, codified as such, by the same nations which codified the crimes for which the International Military Tribunal tried the defendants indicted and arraigned before it. This is not an American side show, national in character. On the contrary, it is the avowed program of the Government of the United States to carry on the obligation assumed at Moscow in 1943 by living up to the inter-Allied agreements made at Potsdam in 1945. Finally, we assert the high character of this Tribunal and therefore of the proceeding before it, in order that we ourselves may understand the high judicial character of our actions and the obligations of candor and ethical conduct which these proceedings of necessity impose upon counsel appearing before this bar.

We try these defendants, therefore, in a Court whose authoritative source and whose jurisdiction over subject matter and persons is equal to, and concurrent with, the International Military Tribunal (IMT). We try them for crimes, war crimes, and crimes against humanity, which were unlawful, as alleged in the indictment, when committed because they were in violation of the “universal moral judgment of mankind” as attested by the judicial decision of the International Military Tribunal.

We try them in an international court for crimes under international law which finds its authority not in power or force, but in the universal moral judgment of mankind.

We shall now present our general theory of the prosecution’s case. In doing so, we shall outline the broad legal principles which establish the relevancy of our evidence to the crimes charged. We shall not, at this time, except perhaps for the purpose of illustration, relate it to each of these defendants. That will be done adequately enough to satisfy the Court and disconcert the defendants when we sum up.

In count two of this indictment, we charge these defendants with the commission of war crimes as defined in article II, paragraph 1(b) of Law No. 10, and in count three we charge them with the commission of crimes against humanity as defined in Law No. 10, article II, paragraph 1(c). We have demonstrated that as we have charged these crimes in this indictment, we only ask for convictions for the same crimes for which the defendants before the IMT were tried; therefore, we adopt basically the following statements from the decision of the IMT:

“With respect to war crimes, however, as has already been pointed out, the crimes defined by article 6, section (b) of the Charter [which are the same crimes defined by Law No. 10, article II, paragraph 1(b)] were already recognized as war crimes under international law.”[42]

There’s a parenthetical statement in there, Your Honors will note.

“But it is argued that the Hague Convention does not apply in this case, because of the ‘general participation’ clause of article 2 of the Hague Convention of 1907. * * *.

“In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.

“A further submission was made that Germany was no longer bound by the Rules of Land Warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were a part of Germany. * * *. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.

“* * * but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.”[43]

It is proper to point out also, that in order to establish the guilt of any of these defendants for crimes against humanity, it is not necessary that they themselves shall be indicted for or convicted of a crime against peace; that is, the waging of aggressive war, which the IMT held began on 1 September 1939.

In the trial before the IMT the record discloses that seven defendants were convicted of crimes against humanity, who either were not indicted for, or were found not guilty of, participation in a conspiracy to commit crimes against peace or of the commission of a crime against peace.

We want to discuss briefly the substantive law under which we try this case.

Law No. 10, article II, paragraph 2 is part of the substantive law under which this indictment is brought. An effective presentation of the meaning and effect of this paragraph is aided by presenting those parts of it which are relevant to this case verbatim at this time:

“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 * * *.”[44]

Clause (f) of the above paragraph applies only to crimes against peace, for which none of these defendants is indicted.

We are not concerned in this opening statement with discussing niceties of legal draftsmanship nor shall we now use American legal terminology to describe the ultimate relationship of defendants, whose guilt is fixed by paragraph 2 of article II to the overt act; namely, any crime as defined in paragraph 1 of article II. But we are concerned with offering to this Court our observation upon its legal effect.

We do not concern ourselves now with principals or accessories. We do discuss the relationships arising out of the words “abetted” and the relationships set out in clauses (c), (d), and (e), paragraph 2 to the overt act. At the threshold, we point out that the crime, which defendants who occupy any of the relationships last referred to are guilty of committing, is any crime as defined in paragraph 1 of article II. The proof must show that a crime as defined in Law No. 10, article II, paragraph (1), that is, a crime within the jurisdiction of this Tribunal, was committed, but if it was committed by any of the defendants or a person other than the defendants in the dock or any of them, and any of these defendants abetted the doing of that act, was connected with a plan or enterprise to commit it, consented to its commission, or was a member of any organization or group connected with the commission of any crime within the jurisdiction of the Tribunal, he is guilty of committing that crime.

The IMT has given two persuasive interpretations of the meaning of the words “being connected with” which we cite.

In the case of the defendant Streicher who was found guilty of committing crimes against humanity, the IMT said:

“Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes, as defined in the charter, and constitutes a crime against humanity.”[45]

The case of von Schirach is also most enlightening. Anschluss with Austria took place on 12 March 1938. Von Schirach was appointed Gauleiter of Vienna in July 1940. Von Schirach was found guilty of committing crimes against humanity.

The IMT said:[46]

“As has already been seen, Austria was occupied pursuant to a common plan of aggression. Its occupation is, therefore, a ‘crime within the jurisdiction of the Tribunal’, as that term is used in article 6 (c) of the Charter. As a result, ‘murder, extermination, enslavement, deportation and other inhumane acts,’ and ‘persecutions on political, racial or religious grounds’ in connection with this occupation constitute a crime against humanity under that article.”

*******

“The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated in this deportation after he had become Gauleiter of Vienna. He knew that the best the Jews could hope for was a miserable existence in the ghettos of the East. Bulletins describing the Jewish extermination were in his office.”[47]

It seems clear from these cases that there need be no prearrangement with, or subsequent request by, the person or persons who actually commit the crime and a defendant, to make him guilty as the IMT interpreted the words “being connected with.” It would appear to be sufficient that the defendant knew that a crime was being committed, and with that knowledge acted in relation to it in any of the relationships set out in paragraph 2 of article II which we have heretofore been discussing.

We think it is also helpful to call to the attention of the Court one rule of evidence by which the existence of a conspiracy, that is, the relationship of individuals to the doing of the overt act, is held to be established.

The case from which we quote arose out of the activities of the Ku Klux Klan during the height of its power in Indiana. The people of the United States, on that occasion, at least, had enough courage and foresight not to let that organization acquire the control of all of its judicial system, the way the people of Germany let these defendants and their fellow Nazis acquire control of and pervert theirs. Consequently, our incipient Nazis were tried. The court in the cited case held that the proof of the doing of the overt act was in itself evidence of the intent of the conspirators to commit the act so as to establish their intent to conspire. I quote from the decision:

“True it is, that if the evidence is as consistent with the innocence of the appellant as with his guilt, no conviction can be had. It is equally true that overt acts of the parties may be considered with other evidence and attending circumstances in determining whether a conspiracy exists, and where the overt acts are of the character which are usually, if not necessarily, done pursuant to a previous scheme and plan, proof of the acts has a tendency to show such preexisting conspiracy, so that when proved they may be considered as evidence of the conspiracy charged.”[48]

We point out that proof of murders, enslavement, kidnapping, and mayhem, which are a few of the crimes committed through the device of a so-called legal and judicial process, are competent evidence that the preceding acts which perverted a judicial system into a means for committing such crimes were part of a plan and enterprise to make the commission of those crimes possible.

Presiding Judge Marshall: You are not giving the citation of the Indiana case?

Mr. LaFollette: I beg your pardon, Your Honor. It’s a C.C.A. case.

Presiding Judge Marshall: What was the page of the Federal second?

Mr. LaFollette: 365. This mimeograph may not be completely correct. I am sure that’s right. Otherwise, if that should not be correct I will advise the Court.

The overt acts are evidence under counts two and three of this indictment not only of the intent with which the preceding acts were done, but also of the fact that each of those defendants who knew that the preceding acts were being performed—and it is legally inconceivable to believe that they did not know—had knowledge of the fact that there was probable danger that the preceding acts would result in the overt crimes or that the preceding acts, being unlawful eo ipso and therefore felonious, would result in the overt acts as the natural consequence of preceding felonious acts. This is murder—whenever a homicide resulted from the foregoing act. And the murder being “an act usually done pursuant to” the “previous scheme and plans” establishes the guilty intent of each and all of the defendants to commit that murder who stood in any of the relationships to the murder defined in paragraph 2, article II of Law No. 10.

We have also said that it is an inevitable result of the murder of hundreds of thousands and millions of humans that such mass murder dulls our realization that the basic simple principles of the law which define the crime of murder of a single human furnish the standard by which was determined the guilt of those who have murdered those humans.

A review of these basic rules is therefore proper.

In 1877 Mr. Justice Stephen undertook to restate the English common law of homicide as he then found it. He states that an unlawful homicide, without adequate provocation, was murder, if it followed from an act accompanied by one of the following states of mind: (1) an intention to cause the death of or grievous bodily harm to any person; (2) knowledge that the act will probably cause either of the results, even though the actor hopes that they might not occur or is indifferent about them; or (3) an intention to commit a felony or to resist a peace officer in the execution of his duty.

As to the first category, no one can quarrel and there is evidence to support the commission of such murders by individual defendants.

As to the second category, Mr. Justice Holmes thought that the actor’s awareness of the danger was immaterial, that the standard was completely objective. In Comm. vs. Pierce (1884) 138 Mass. 165, page 178, he stated his view succinctly—

“When the jury are asked whether a stick of a certain size was a deadly weapon they are not further asked whether the defendant knew it was so.”

In any event, in this case before this Tribunal, we shall ask the Court to bear in mind that lawyers, by the very nature of their legal training and experience, knew that the enactment of ex post facto laws, specially designed racial legislation and other legislation directly designed to restrict and destroy the right to make an adequate defense to a criminal charge; the handpicking of judges and their control by state and party; the submergence of the courts and prosecutors to the superior authority of the police; pretrial agreement of judges and prosecutor on judgment and penalty; unlawful extraterritorial extension of German law and the issuance of the Nacht und Nebel [Night and Fog] decree contrary to the laws of war, would probably cause death of human beings, subjected to such a perverted judicial system. These defendants are not farmers or factory workers.

As to the third category, that of homicide resulting from the intention to commit a felony or while resisting arrest, it is not amiss to point out that those who are connected with a plan to extend, or who consent to, or abet the unlawful extension of German law and German courts into overrun countries contrary to the laws of war, are doing acts which amount to larceny while armed or robbery; and that those individuals who commit acts which abet or are connected with the waging of an aggressive war or a plan to do so, or who consent thereto, are resisting the efforts of the peace enforcing nations of the world to arrest the criminal. The evidence in this case will establish the unprovocated homicide of countless numbers as the result of the doing of such acts by these defendants which are clearly felony murders.

These are but the most apparent applications of the three categories of murder to the evidence in this case. Time will not permit our further exemplifying them now. They will be presented adequately when we summarize the evidence. We do not wish to be understood by furnishing these few examples as having exhausted the cases, where the application of the principles so readily understood when one life is taken by murderous homicide, to the evidence of this case, will establish murders and mass murders by these defendants. Furthermore, other crimes common to the criminal laws of civilized nations, such as enslavement, kidnapping, or mayhem, have been committed by these defendants, which can be established by the application of similar basic principles to the evidence, which should make the task more simple and at the same time, by reducing the seeming complexities of mass criminality under international law to concepts with which the average citizen of a nation is acquainted, seem to serve the salutary purpose of increasing the hatred of the average man for war and to warn him of the dangers inherent in the totalitarian police state, dominated by the philosophy that the end justifies the means used to attain it.

The crimes charged in count two and in count three fall generally into several categories.

Substantively, there are first those war crimes which arise out of the violation of the laws and customs of war, including section I, articles 4–7; section II, article 23; section III, articles 43, 45, 46, and 50 of the Hague Regulations of 1907; and chapter 6, title I, articles 2–4 of the Prisoners of War Convention (Geneva 1929); and the decision and judgment of the IMT of 30 September and 1 October 1946.

These defendants, in one or more of the relationships set out in paragraph 2 of article II of Law No. 10, committed numerous criminal acts as defined in Law No. 10, article II.

These include, as the first substantive group of crimes, the wrongful extension of German law and German courts into and over the Eastern Territories and other overrun nations and the Protectorate, each of which, we contend, was not only an act done by these defendants in connection with, and in furtherance of, aggressive war, but also done by them for purely political reasons which made no pretense of being based upon military necessity, so that it was ipso facto unlawful or malum per se and made every act initiated thereafter under such wrongful extension, as against any of the defendants who are responsible under Law No. 10, article II, for that wrongful extension of German law, fall into the category of a felony, murder, or a criminal enslavement, mayhem, or atrocity; or a larceny while armed, or a robbery as to plunder of public or private property.

The other large group in this category of war crimes is the acts done in connection with the promulgation of the Nacht und Nebel decree of 7 December 1941 and the acts thereafter done in carrying out that program.

The second substantive group consists of the crimes arising out of the activities of the defendants in connection with the Gestapo, SIPO, SS, and other police groups in which either under the façade of judicial proceedings or by open violation of the meager protection afforded the individuals under Nazi law, Germans and non-Germans were turned over to enslavement and in many cases to demonstrable certain deaths in concentration camps, or in prisons where no pretense was made to operate them other than as concentration camps or human slaughterhouses.

The third group is the cases where, under alleged trials, in the People’s Court, Special Courts, and civilian courts martial, certain of these defendants, by the use of the prescribed procedures or those actually practiced, the fixing of penalties which outrage the universal moral judgment of mankind, and through convictions based only upon the subjective conclusions of the prosecutor or judge, which we describe now only as examples, give rise to the legal conclusion that the defendants thus convicted were murdered or unlawfully enslaved under the guise of exercising a judicial process.

The Court will get a better understanding of these basic categories of substantive crimes by the following illustrations from the evidence, which I will now ask Mr. Douglas King to first present at this time.

a. Murder Committed in Violation of Articles 43, 46, etc. of the Hague Convention

Mr. King: The extension of German law and German courts into conquered and occupied countries followed as a matter of course after the victorious German armies had done their work. In Poland and the Eastern Territories decrees of 4 October 1939 and 6 June 1940 introduced and extended the German jurisprudence into these countries. It was, however, unthinkable to the Nazi mind that a Pole should be able to appeal to German law, that he should have the right to sue a German before a German court in the capacity of a plaintiff, or to appear against a German in a case, or even to serve a writ of execution with the assistance of a bailiff.

To remedy this intolerable situation, the defendant Schlegelberger drafted a decree which, by its terms, placed beyond the reach of the Poles and Jews in the Eastern Territories the last vestige of protection of even the German law. This decree was made effective on 4 December 1941 and from time to time was later amended as the need arose. For instance, approximately a year later, it was amended and made retroactive for crimes committed prior to 4 December 1941. We think it will be of interest to the Court to have in Schlegelberger’s own words some of the background of this special treatment for the Poles and Jews in the Eastern Territories and his own statement as to the purposes which the decree was intended to accomplish. This letter was addressed to the Reich Minister and Chief of the Reich Chancellery (Lammers) and refers to Schlegelberger’s draft of the decree which a few months later was made effective on Hitler’s orders (NG-144, Pros. Ex. 199):[49]

“On being informed of the Fuehrer’s intention to discriminate in the sphere of the penal law between the Poles (and probably the Jews as well) and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and attorneys general of the Eastern Territories, the attached draft concerning the administration of penal laws against Poles and Jews in the annexed Eastern Territories and in the territory of the former Free City of Danzig.

“This draft amounts to special legislation both in the sphere of substantive law and in that of criminal procedure. In this connection the suggestions made by the Fuehrer’s deputy have been taken into consideration to a great extent.”

In referring to the various provisions of the ordinance, Schlegelberger has this to say (NG-144, Pros. Ex. 199):

“I have been in agreement with the opinion held by the Fuehrer’s deputy that a Pole is less sensitive to the imposition of an ordinary prison sentence; therefore, I have taken administrative measures to assure that Poles and Jews will be separated from other prisoners and that their imprisonment will be rendered more severe * * *.

“For these new kinds of punishment the prisoners are to be lodged in camps—outside of prisons—and are to be employed with hard and very hard labor. There are also administrative measures which provide for special disciplinary punishment; that is, imprisonment in an unlighted cell, transfer from a prison camp to a more rigorous prison camp, etc.

*******

“A Pole or a Jew sentenced by a German court is not to be allowed in the future any legal remedy against the judgment. Neither will he have a right of appeal or be allowed to ask that the case be reopened. All sentences will take effect immediately. In the future Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions.

*******

“In this sphere of criminal procedure the draft clearly shows the difference in the political status of Germans on one side and Poles and Jews on the other.

*******

“Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of sentence and will therefore in no way be inferior to summary court proceedings. The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer’s political aims in the Eastern Territories.”

One of the amendments to this decree, on 3 December 1942 states that no German attorney is to undertake the defense of Polish persons before tribunals in the Incorporated Eastern Territories. This, in effect, prevented any accused person before these courts from having defense counsel, since Polish lawyers were prohibited from engaging in any legal practice. That this provision was received favorably by Ministry officials is indicated by a letter from the president of the court of appeals in Koenigsberg addressed to the Reich Minister of Justice shortly after this supplementary decree became effective. The judge, in the course of his letter, says this:

“It is in the German interest to continue to prohibit the defense of Poles by German jurists * * *.

“I see no cause to lift or even to modify the present ban on defense of Poles by attorneys. On the contrary, the ban placed on the principle of rendering legal assistance to Poles by attorneys should be still further stressed and made more extensive.”

To put to rest any fear that the ban of German attorneys would result in a competitive hardship on them, this judge has the following to say:

“The fear that, in the future, former Polish attorneys or counsel may be called in to act as legal advisers to Poles and may gain influence over them (i.e., German counsel) seems to me improbable. In the Incorporated Eastern Territories of my district, where, although the population numbers about one million, only three attorneys are established, it has not been observed that former Polish attorneys or counsel are engaging in activities connected with matters of law.

“It is, of course, much easier for the tribunal to have the case of a person charged put before them by a lawyer nicely arranged and in the German language. But the judge must dispense with these facilities when such great issues are at stake for the German people.”

The Court will, in due course, have an opportunity to examine all of these documents and an opportunity to observe the ruthless manner in which this “special legislation” was administered. It is perhaps superfluous to quote a statement by the president of the court of appeals of Danzig summarizing the “situation” in his district for a 2-month period in 1942 following the effective date of the decree of 4 December 1941. “There were,” he says, “no complaints about too lenient decisions during the period reported on.”

The defendant Schlegelberger, shortly after the decree became effective, conferred with the Reich Governor of Eastern Territories and worked out a system of administration pursuant to the decree of 4 December 1941, which (1) provided for summary courts martial, (2) delegated to the Reich Governor the sole right to grant amnesty, and (3) agreed to the holding of civilian prisoners as hostages. In summarizing the results of this conference the defendant Schlegelberger assured the Reich Governor that the “interest of the State can best be served by regulating matters along the lines of our unanimous consent.”

Thus, it is clear that the extension of German law and German courts into the Eastern Territories, especially insofar as the Poles and the Jews were concerned, eventually deprived them of any legal recourse whatsoever.

What has been said respecting the part played by key officials of the Ministry of Justice in extending German Law and the German court system to the occupied territories is equally true of Czechoslovakia and particularly the Protectorate of Bohemia and Moravia. In one sense, by virtue of the fact that Czechoslovakia fell to the Nazis before the war, the experience there served as a proving ground for measures which were later extended to the Eastern Territories and other occupied countries.

The decree of 14 April 1939 and the decrees of 2 November 1942 and of 1 July 1943, the texts of which, among others, will be presented in evidence, mark the progress of the Nazis in extending German jurisdiction to Czechoslovakia and are mute evidence of the “legal” justification for the robbery, extortion, and atrocities, the knowledge of which has already shocked the world. The prosecution will show that the Ministry of Justice not only had full knowledge of what was going on in the Protectorate, but its “experts” took a leading part in the establishment and administration of the court system in the Protectorate from the very outset to the end of the war as they did in the Eastern Territories.

As the evidence unfolds we will see the defendant Schlegelberger active in drafting “legal justification.” We shall see the defendant Lautz concerned with even minute matters of administration of the People’s Court in the trial of Czechoslovak nationals both in Prague and those removed for trial to Berlin, and we shall note that many of the other defendants were called upon from time to time for their assistance in making the court system function to the maximum required by National Socialist policies as they were enforced upon the Czechoslovak nation.

In refusing citizens of occupied territories protection of the law, the defendants abetted and brought about the murder of thousands of persons. The acts of the defendants violated the laws of the countries where committed and were repugnant to the laws of every civilized country. In administering occupied territory, the defendants were bound by the Hague Convention to respect “family honor and rights.” These obligations the defendants ignored, and so squarely placed themselves in the category of common war criminals.

b. The Night and Fog Decree

On 7 December 1941 the so-called Nacht und Nebel, or Night and Fog Decree was issued pursuant to the orders of Hitler and Keitel. Perhaps never in world history has there been a more perverted and diabolical plot for intimidation and repression than this. Its terms provided that in case of continued resistance on the part of the inhabitants of certain of the occupied countries, but largely aimed at France, Belgium, and the Low Countries, the suspected perpetrators should be spirited away without any indication of their whereabouts or eventual fate. The victims were to be tried by the OKW in the occupied territories only when it appeared probable that death sentences would be quickly passed and executed. The others were to be taken to Germany, there to be tried by Special Courts. Whether the death sentence was there imposed, prison sentences given, or the individuals “acquitted,” the first and foremost purpose—that of complete secrecy so far as their family and friends were concerned—was to be preserved. Thus, it is clear that the cognomen of Night and Fog was well chosen since in theory and practice the victims vanished as in the blackness of night and were never heard of again.

In the IMT opinion, the Court observed that—

“The evidence is quite overwhelming of a systematic rule of violence, brutality, and terror. * * *. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came or even their relatives; even in cases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person. Hitler’s purpose in issuing this decree was stated by the defendant Keitel in a covering letter, dated 12 December 1941, to be as follows:

“‘Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany.’”[50]

Preparations for the carrying out of the decree on the part of the Wehrmacht were entrusted to Lieutenant General Lehmann[51] of the legal department of the OKW. He conferred with various members of the Ministry of Justice to determine whether the Ministry would be able and willing to assume the trials of the captured individuals shipped to Germany from the occupied countries. It is more than interesting to note from a statement signed by General Lehmann that, in his opinion, the defendant Schlegelberger was the only official in the Ministry of Justice at that time who had the authority to agree to assume the trial of these cases.

The total number of victims of Nacht und Nebel may never be known, but we do know that as of 1 November 1943 the Wehrmacht had delivered a total of more than 5,200 Nacht und Nebel prisoners for trial to the several courts throughout Germany designated by the Ministry of Justice for that purpose.

Originally there were four Special Courts assigned to handle the Nacht und Nebel cases. The Special Court at Kiel was assigned to the cases arising in Norway; Cologne to the French cases; Essen to Belgium; and Berlin for cases of a special nature. In the later stages of the Nacht und Nebel program the effectiveness of Allied bombing made it necessary to shift the location of some of these courts, principally in the transfer of the Cologne court to Breslau.

When we call the roll of the defendants before us today who acted in and were principally responsible for the large part which the Ministry of Justice played in the Nacht und Nebel program, we find there the names of Schlegelberger, von Ammon, Mettgenberg, Lautz, Engert, and Joel, in addition to others who played less conspicuous, if not less important, roles. If we were to select one of these men who above all others should have known the criminal nature of the Nacht und Nebel program, such a man might very well have been the defendant von Ammon who was the Ministry of Justice’s specialist in international law. Yet the fact is that the name, von Ammon, together with that of Mettgenberg recur again and again as the principal negotiators with the OKW in matters concerning the application of law and the administration of the Nacht und Nebel program.

The Reich Minister of Justice, in a letter to the public prosecutors charged with trying Nacht und Nebel cases, outlined in detail the measures which were to be taken to assure complete secrecy of the trials. This letter, from which we quote extensively as follows was endorsed, among others, by von Ammon (NG-269, Pros. Ex. 319):

“With regard to criminal procedures on account of punishable offenses against the Reich or against the occupying forces in the occupied territories, I request observance of the following directives, in order not to endanger the necessary top secrecy of the procedure, particularly regarding the execution of death sentences and other cases of death among prisoners:

“1. The cards used for investigations for the Reich criminal statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.

“2. In cases of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the registrar must be notified as prescribed by law. However, the following remark has to be added:

“‘By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death or birth certificates is admissible only with the consent of the Reich Minister of Justice.’

“3. In case an NN prisoner sentenced to death desires to draw up a public will, the judge or notary public and, if necessary, other persons whose presence is required will have access to the prisoner. Only officials of the Ministry of Justice may be called as witnesses. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Testaments Law. The disposition receipt has to be kept by the prosecution until further notice.

“4. Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.

“5. If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.

“6. The relatives will not be informed of the death, especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.

“7. The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.

“The bodies must not be used for teaching or research purposes.

“8. Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.”

It is not our purpose here to review all of the gruesome details of carrying out the spirit of the Nacht und Nebel program which became the daily routine of these defendants. As the Court will see, all of the stipulations regarding the secrecy of the original decree and indeed the addition of other unbelievably harsh and inhuman provisions were systematically executed and improved upon by these men. If, to take one example, the Wehrmacht erroneously arrested in the occupied countries individuals who were patently innocent of any resistance to the Nazis, these victims, in order to preserve the secrecy of the program, had to be treated in exactly the same way as other individuals who managed to escape with a prison sentence. Never did the families and friends of the convicted or innocent know their fate. In the alleged trials before the Special Courts none of the accused was, at any time, ever able to introduce evidence from his own country as to his innocence and, in no case, were the accused permitted to choose legal counsel other than that assigned to them by the court.

Again the defendants flagrantly violated rights secured by the Hague Convention of citizens of countries occupied by the German armed forces—the right of family honor, the lives of persons, and the right to be judged under their own laws.

c. Illegal Transfer of Prison Inmates to Concentration Camps

Mr. Wooleyhan: A Ministry of Justice policy of extermination through calculated denial of all judicial and penal process, in close collaboration with the Gestapo and SS, characterizes the second substantive group of crimes previously mentioned. By 1939, inspections of Reich penitentiaries operated by the Ministry of Justice disclosed that large numbers of political prisoners in security detention were engaged in paid labor on projects incompatible with the rearmament effort which then was at a climax. At Hitler’s order these prison inmates were transferred to concentration camps where their work could be both unpaid and of more use to munition requirements. Thus was initiated a program which was to eventually erase any practical difference between the fates of those victims who were put through the shams of criminal court procedure, and those who were thrown by the police into concentration camps without the formality of a hearing.

Apparently noting that transfers from Reich prisons to concentration camps aroused no immediate public clamor or official opposition, judges saw therein an outlet for increasingly burdensome numbers of criminal cases, particularly political cases, as the defendant Engert has stated (NG-471, Pros. Ex. 276):

“In 1940 or 1941 I wrote to Himmler suggesting that he take me into the Gestapo. My idea was to get in closer touch with the Gestapo in order to get an insight into the activities of the Gestapo, and then to reach a better relationship between the Gestapo and the People’s Court. * * * I also wanted to prevent the possibility of insignificant cases being brought up in the People’s Court, which could be better handed over to the Gestapo for a short term internment in a concentration camp.”

About the time that Engert, then vice president of the People’s Court, made this overture to Himmler, he began to complain officially that it was incompatible with the respect, dignity, and tasks of the People’s Court to try minor political cases. He opined that such cases could be settled more quickly and effectively by transferring the culprit to a concentration camp. Thierack, then president of the People’s Court, in heartily endorsing Engert’s attitude, wrote to the Minister of Justice in 1940 in part as follows:

“However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia, it is wrong for every follower, even the smallest, to be given the honor of appearing for trial and being judged for high treason before the People’s Court, or failing that, before an appellate court. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and will take action accordingly. That can be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small hangers-on who are somehow connected with the high treason plans which have been woven and abetted and plotted by others are brought to their senses by being transferred to a concentration camp for some time.”

These opinions and desires of Engert and Thierack found eager and sympathetic audience with the Gestapo and SS, resulting in working agreements between these agencies and the Ministry of Justice whereby such illegal transfers could be accomplished outside the law. As the International Military Tribunal in its judgment has found—

“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.”[52]

This agreement, it will be noted, expanded the initial ideas of Engert and Thierack far beyond any more hastening of minor political court cases or exploitation of prison labor. The agreement introduced the ideas of exterminating the so-called “asocials,” i.e., persons who for either racial, political, or personality reasons were deemed unfit to live. Within a month after this agreement had been worked out and put into practice, it was expanded further to include not only those “asocial” elements who had finished their prison sentences, but also all Jews, gypsies, Russians, and Ukrainians who were detained under arrest or imprisonment in any Reich penitentiary or work house, as well as all Poles who were sentenced to more than 3 years.

Now, since the intentional design was to literally work these people to death once they were transferred to concentration camps, this expanded illegal agreement actually rendered any court sentence for any crime tantamount to a death sentence.

In some cases the death awaiting these unfortunates was not long in coming. For example, a situation report in 1942 from the Attorney General of the Court of Appeals in Berlin to the defendant Schlegelberger, while the latter was Acting Minister of Justice, revealed the following episode:

“In this connection I think I ought to point out that only recently perpetrators have been repeatedly handed over to the Gestapo. Also, there was no sufficient cause therefore, to be found in my opinion, in the conduct of the justice authorities. I am referring to criminal procedures against Skibbe and others * * *.”

Then follows the citation of the case in the German files:

“ * * * in which 4 defendants—26, 22, 20, and 18 years of age, respectively—accused of committing 23, 19, 15, and 12 completed or attempted robberies, respectively, by taking advantage of air raid protection measures, were sentenced by the Special Court of Berlin to 7, 6, and 5½ years of penal servitude and loss of civil rights for 10 years’ each. Although 3 of the perpetrators had not been convicted previously and the fourth one only of 2 comparatively minor crimes, in addition to all of them still being comparatively young and, at least in my opinion, the pronounced penalties being not inadequate, these perpetrators were handed over to the Gestapo. They were shot, as could be seen from the newspaper reports ‘because they offered resistance.’ May I remark that it is hardly unknown to the public any longer that these shootings ‘because of resistance offered’ are actually caused by other considerations.”

Still operating completely beyond any existing law, decree or regulation, this same cabal of justice officials, SS and Gestapo extended this policy of extermination through the Occupied Eastern Territories. As the SS and SD offices throughout those eastern countries were instructed in November 1942—

“The Reich Leader SS has come to an agreement with the Reich Minister of Justice Thierack that the courts will forego the carrying out of regular criminal procedures against Poles and members of the eastern peoples. These people of foreign extraction henceforth shall be turned over to the police. Jews and gypsies are to be treated likewise. This agreement was approved by the Fuehrer.”

These instructions to the SS and SD in the East continue:

“Those considerations which may be right for the punishment of an offense committed by a German are wrong with regard to the punishment of an offense committed by a person of foreign extraction. The personal motives of the offender are to be disregarded completely. Important only is that this offense endangers the order of the German community, and that, therefore, measures must be taken to prevent further dangers. In other words, the offense committed by a person of foreign extraction is not to be judged from the point of view of legal retribution by way of justice, but from the point of view of preventing danger through police action. From this follows that the criminal procedure against persons of foreign extraction must be transferred from the courts to the police.”

With the Jews, Poles, gypsies, Ukrainians and other so-called “asocial” persons throughout the occupied east relegated to a carefully prepared death, this same unholy alliance returned its attention to the Reich and the Protectorate of Bohemia and Moravia. There, by the infamous decree of 1 July 1943,[53] signed among others by Thierack, all of the foregoing perversions of judicial and penal process were tardily “legalized” by officially denying to all Jews any recourse to the criminal courts and committed any Jews accused of an undefined “criminal action” to the police.

With grim humor the following article of that statute ordered the confiscation by the Reich of a Jew’s property after his death.

This decree completed the absolute disfranchisement and expropriation of property of Jews in the Third Reich and Bohemia and Moravia who had not already, by that time, been deported or slain.

Prison inmates not transferred to concentration camps, pursuant to the foregoing program, were hardly better off in Reich prisons under the hospitality of the Minister of Justice. The defendant Joel had a working agreement with a deputy of Himmler’s whereby he turned over to the SS, for shooting, those defendants whose sentences by the courts were deemed insufficient by Hitler who followed published decisions in the newspapers. A number of charts tabulating the shootings of such defendants, many of whom had received only minor sentences, attest to Joel’s zealous activity on this score. Schlegelberger, too, studiously concocted what was deemed a “legal basis” for these shootings of prison inmates serving minor sentences.

d. Judicial Murders in Violation of International Law

Victims of the People’s Court, Special Courts, and civil courts martial were judicially murdered by certain of the defendants using a variety of legalistic artifices, all of which had the obvious common denominator of a zealous desire to exterminate even trifling activity not even deemed misdemeanors by the community of civilized nations. One such artifice frequently employed was a subjective, conclusive assumption by the judges and prosecutors of proof of the very issues tried. For example, after the Nazi importation of forced labor from the occupied East had collected large numbers of foreign workers within the Reich at various war jobs against their will, escape efforts by such workers across Reich frontiers to their homeland or elsewhere became frequent. These escapees, when apprehended by border officials, were normally handed over to the People’s Court for trial for preparation of high treason, which bore a mandatory sentence of death. The applicable section of the German criminal code defined high treason in this context “as an attempt to incorporate by violence or by threat of violence the German territory in its entirety or in part into a foreign State or to detach from the Reich territory belonging to the Reich.” The escapees were indicted, inconceivable as it may be, for the violation of this provision.

In grasping for some legal straw upon which to base a conviction on these grounds, the courts created a whole-cloth assumption that such escapees were heading through Switzerland, or wherever they might have been picked up, in an effort to join some military legion hostile to the Reich. The Reich prosecutors were drawn into this scheme. Walter Brem, a former assistant to the chief Reich prosecutor at the People’s Court, described the situation thus (NG-316, Pros. Ex. 79):

“The majority of these cases concerned foreign laborers who wanted to look for a job in Switzerland because of inadequate salaries and insufficient food rations in the Reich. The prosecution, however, claimed that foreign legions were being established in Switzerland and that every foreigner wanting to cross the border illegally did so in order to join up with such legions. I was ordered by the prosecutor of the People’s Court to connect the defendants somehow with the foreign legions. I have never received a positive answer about those alleged organizations, and the whole concept was known to the foreigners only as a rumor. Individual proof of any acts of high treason could not be established; however, the prosecution based its claims on the assumption that such foreign laborers would behave in a hostile manner against Germany once given the opportunity.”

This contention was acceptable to judges of the People’s Court. On 12 August 1942, three Polish defendants, Mazur, Kubisz, and Nowakowski, pursuant to an indictment signed by the defendant Lautz, were sentenced to death by the People’s Court for preparation of high treason and attempting to separate a portion of the Reich by force. They had left their factory in Thuringia and proceeded across the Swiss border, where they were apprehended by Swiss officials and returned to the Reich. As reasons for their escape the defendants cited the hard working conditions to which they had been exposed. Kubisz testified that the meals consisted only of soup. Mazur stated that his work in the quarry was so hard that he feared he would not survive the winter. The defendants stated they had hoped to find better working conditions in Switzerland. They denied having had any knowledge of the existence of a Polish Legion in Switzerland. The prosecution offered no evidence to impeach these statements in any way.

Nevertheless, the People’s Court found that the defendants’ statements were mere excuses, that the existence of a Polish Legion in Switzerland was “generally known,” and that the defendants intended to join this legion. This judicial assumption was buttressed by a physician’s certificate which showed all three defendants to be in excellent health and qualified for active service. Therefore, the court “was convinced” that the defendants had discussed the fate of Poland and her people with their camp mates in the factory barracks and had decided to join the Polish Legion in Switzerland. The court said that it knew of a pact with Russia that the Polish government in exile had formed, and that this fact had been broadcast by the British radio. The court knew, furthermore, that in the past Polish workers had repeatedly fled to Switzerland where they were recruited for the Polish Legion, and I quote a portion of the court’s decision:

“These circumstances force the court to the conclusion that the defendants intended to join the Polish Legion in Switzerland.”

With regard to verbal remarks deemed seditious or deleterious to the “German people’s defensive strength,” People’s Courts sentences were not only outrageously unjustified, but reached the climax of judicial caprice. The Austrian taxicab driver, Rudolf Kozian, pursuant to an indictment signed by Lautz, was sentenced to death on 26 June 1944 for making certain uncomplimentary remarks concerning Hitler and the progress of the war. In the course of conversation while driving a female customer, who later denounced him to the Gestapo, he made remarks typified by the following:

“To us Viennese it’s all the same from whom we receive our bread whether his name is Stalin, Churchill, or Hitler. What matters is that we can live. When I quarrel with someone and see that I can no longer carry on, then I stop and do not continue the fight until everything is destroyed. The Fuehrer in his speech said that he would destroy us all. The Fuehrer has said that this war will be fought until one side will be annihilated. Every child knows that we are that side, unless the Fuehrer will come to his senses before then and offers peace to the enemy.”

The court found the defendant guilty of having attempted to undermine the German morale to such an extent that he was deemed to come within the special Emergency Decree authorizing death for impairing German defensive strength.

Contrast the foregoing case of the Austrian taxi driver, resident of a country occupied and annexed by illegal aggressive acts, with that of Mrs. von Brincken, a German Nazi, who was indicted in August 1944 for having made similar statements in a conversation with friends at the seashore. When the man who had rented her a beach chair became angry about the careless way in which his chair was treated, Mrs. von Brincken was alleged to have said: “Well, don’t worry, the Russian commissars will be sitting in them next year.” She was also vocally indignant to her neighbors because her 17-year-old daughter had just been drafted for labor assignment in the country, and said: “It would do the farmers no good; they would only get more work and more worry since the girl could not do anything but eat.” Due to the intercession of both her husband, a colonel, and a notorious SS general who was a friend of the family, she was released with an admonition.

Such judicial discrimination with death as the forfeit, is explained by the defendant Petersen, a lay judge at the People’s Court from 1941 until the end of the war (NG-396, Pros. Ex. 176).

“The sentences of the People’s Court can be understood only if one keeps in mind the intent underlying the penalties. This was not primarily that of imposing punishment in accordance with normal ‘bourgeois’ conceptions of crime and punishment, but rather of annihilating an opposition which could become detrimental to the German aims.”

Dr. Aschenauer (defense counsel for defendant Petersen): By my motion of 21 February 1947 I objected to the submission of the affidavit of the defendant Petersen. On 27 February 1947, I specified the motion. It says: “The defense is not permitted to introduce the affidavit and the interrogations under oath of the defendant Petersen into the proceedings.” On 21 February 1947 I gave the reasons for the motion which are as follows: From 12 June until the end of 1946, the defendant Petersen was in the Langwasser camp. As a patient, he was moved to the Regensburg camp where his medical treatment was continued. Already at Langwasser, Petersen was pronounced unfit for transport. In spite of medical treatment, he was moved to Nuernberg. As he collapsed in Regensburg, medical treatment for circulation disturbance was continued at the court prison here; the circulation disturbance improved only at Christmas 1946. Accommodation in a cell in which half a window was missing, was naturally very detrimental to the state of health of the 61-year-old defendant Petersen. Therefore—

Presiding Judge Marshall: Counsel for the defendant is advised that the statement of counsel is not evidence in this case. It is merely a statement of what later will be introduced in evidence. If this statement is introduced in evidence, you can make your objection and it will then be ruled upon. For the moment, the prosecution will continue its statement.

Dr. Aschenauer: I should only like to point out that this is the same affidavit which is being presented here and that this affidavit is due to the psychological condition of the witness.

Presiding Judge Marshall: I repeat. This is not evidence. This is merely a statement of what will later be introduced in evidence. At that time, if you have an objection, it will be considered. At this time, you may not interrupt the statement of the prosecution.

Dr. Aschenauer: I will raise my objection at a later time.

Mr. Wooleyhan: To get the proper context, I will begin at the beginning of the excerpt included in the opening statement (NG-396, Pros. Ex. 176).

“The sentences of the People’s Court can be understood only if one keeps in mind the intent underlying the penalties. This was not primarily that of imposing punishment in accordance with normal ‘bourgeois’ conceptions of crime and punishment, but rather of annihilating an opposition which could become detrimental to the German aims. This was our duty. Hence, after a defendant had been brought before the People’s Court because of some act or utterance, his actual deed was of no particular importance in the determination of the punishment within the framework of the law. The important thing was whether the man had to be exterminated from the community of the people as a ‘public enemy’ because of his personal attitudes and his social or antisocial tendencies.”

The further artifice of “punishment by analogy,” previously mentioned generally, was as tyrannical in practice as it seems in theory. Revolting examples of this procedure in action are legion. A particularly notorious case that turned on this ground was that of Lehmann Katzenberger, 68-year-old former chairman of the Nuernberg Jewish congregation. Katzenberger was indicted before the Nuernberg district court for so-called “racial pollution,” having been accused of sexual relations with one Irene Seiler, an Aryan woman. The police tried desperately without success to secure the necessary conclusive evidence, but Katzenberger and Seiler, both well-known figures of some prestige in the community, denied under oath any illicit relationship. There were no witnesses to or other evidence of the accused act. Since an acquittal of the Jew was unthinkable, particularly in Nuernberg which was the hearthstone of the Jew-baiter Streicher, and whose newspaper “Der Stuermer” widely publicized the story, Katzenberger was remanded to the Nuernberg Special Court, tried as a “public enemy,” sentenced to death, and executed. Seiler was indicted for perjury and was joined with Katzenberger as codefendant; her sentence of two years’ imprisonment was later suspended.

As Hans Groben, Nuernberg district court judge for preliminary investigations, describes the case (NG-554, Pros. Ex. 153)—

“As I had no reason to doubt the truth of Seiler’s sworn statement it was clear to me that I could not keep Katzenberger in custody any longer. Therefore I informed his counsel, Dr. Herz, about the result of this interrogation and gave him to understand that this was the right time to act against the warrant of arrest. Dr. Herz naturally understood this hint, and at once he filed a complaint against the warrant of arrest. According to the regulation (section 33 of the Code of Criminal Procedure) I put the complaint before the public prosecution, adding in my report that I had the intention to comply with this complaint (section 306, paragraph 2, Code of Criminal procedure), i.e., to set Katzenberger free. I thus clearly expressed with this additional remark that I believed Katzenberger to be innocent * * *. As was later explained to me, the indictment already filed with the penal chamber of the district court was thereupon withdrawn and replaced by one filed with the Special Court.

*******

“I was shocked when I heard the result of the trial. The fact that Rothaug combined the trial against Seiler, a case of perjury, with the trial against Katzenberger, shows clearly that he took over the case of Katzenberger with definite prejudice and that he was determined to exclude Seiler as a witness for the defendant. For, according to normal procedure, Seiler should have been a witness in Katzenberger’s trial and should have testified for him stating that the charges against Katzenberger were not true. This normally should have led to the acquittal of Katzenberger, as otherwise there was nothing decisive against him. Rothaug’s verdict, in my opinion, was based solely on blind hatred of Jews. While there were no reasons for Katzenberger’s condemnation on the ground of so-called race defilement, there was still less reason to apply section 4 of the ‘Decree against Public Enemies,’ because if it was altogether impossible to ascertain when or if Katzenberger and Seiler had the alleged sexual intercourse, it was still less possible to explain that this had happened ‘in exploitation of war conditions.’ To arrive at Katzenberger’s condemnation on the grounds of so-called race defilement in connection with section 4 of the ‘Decree against Public Enemies,’ it was necessary to violate all the facts of the case. It has always depressed me that such a verdict, which cannot be designated as anything but judicial murder, was pronounced by Rothaug.”

One further sampling of the prosecution’s evidence will serve to reveal how the protection against double jeopardy, keystone of criminal procedure the world over, was abrogated and used for the murder of civilians of occupied countries.

The Nuernberg Special Court, under the leadership of the defendants Rothaug and Oeschey, used this fiendish practice in the case of Jan Lopata, a Polish youth brought during the war to work on a German farm. The accused was sentenced in 1940 to 2 years’ imprisonment by the Neumarkt local court for indecent assault on his employer’s wife. A plea of nullity against the decision was filed by the prosecution on the grounds that the sentence was too lenient and the case was reviewed by the Reich Supreme Court with the result that it was referred to the Nuernberg Special Court for retrial. In the court’s verdict sentencing Lopata to death, the presiding judge (the defendant Rothaug) observed (NG-337, Pros. Ex. 186)—

“The total inferiority of the accused lies in his character and is obviously based on the fact that he belongs to the Polish subhuman race.”[54]

In reliance upon the decrees “legalizing” nullification and retrial of criminal cases at the prosecution’s behest, defendants were deprived of any assurance that a sentence of less than death was their final fate. Ministry of Justice officials, working through the prosecution, joined in this infliction of double jeopardy. For example, in a case involving a non-German, the defendant Klemm wrote to the president and attorney general of the Stuttgart District Court of Appeals on 5 July 1944 and directed the following (NG-676, Pros. Ex. 178):

“For some time now, the jurisdiction of the penal senate of the district court of appeals in Stuttgart has given me cause for grave thoughts with regard to matters of defeatism. In the majority of cases, the sentences are considered too mild * * * and are in an incompatible disproportion to the sentences which are in similar cases passed by the People’s Court and by other district courts of appeal. I refer especially to the following sentences which lately attracted my attention:

“1. Criminal case against Friedrich Linder, sentence of the Second Penal Senate of 7 January 1944 (President of the Senate, Dr. Kiefer) * * *. You made a report under date 28 April 1944 on this case regarding the sentence. In view of the danger and of the frequency of the statements made by the defendant, I must maintain the interpretation already expressed in my decree of 15 March 1944, IV Secret I 5045B/44 that the defendant, a foreigner, deserved a serious sentence of penal servitude. I have therefore directed the files to the chief Reich prosecutor at the People’s Court to examine the question whether the extraordinary appeal should not be applied against the sentence * * *.”[55]

It is technically true that an extraordinary appeal or plea of nullity could, on the face of the enabling decrees, operate to a defendant’s benefit as well as to his detriment; but this possibility was illusory in practice. Dr. Josef Grueb, former judge of the Nuernberg District Court of Appeals, says (NG-672, Pros. Ex. 179):

“It was obvious that the Ministry of Justice only admitted a petition for nullity when it was unfavorable to the defendant. Cases in which the Ministry ordered a nullity plea unfavorable to the defendant were, at any rate, much more numerous than cases where the petition for nullity was demanded for the benefit of the defendant on the Ministry’s own initiative. * * * It was mainly a means employed by the State to cancel sentences which seemed inadequate in the light of the political conceptions of those times.”

A terrifying glimpse of the actual extent to which double jeopardy was exploited during the Third Reich’s last years, is furnished by the defendant Nebelung (NG-333, Pros. Ex. 177).

“If the Chief Reich Prosecutor, Dr. Lautz, was not satisfied with the sentence, he could file an extraordinary appeal against it. This was done, in my opinion, mainly as a result of orders by Reich Minister Thierack. After 1943, extraordinary appeals became frequent. All cases in which an extraordinary appeal had been filed were tried again before the special senate of the People’s Court. This special senate concerned itself exclusively with extraordinary appeals. Of all senates of the People’s Court, this special senate pronounced the largest percentage of death sentences. According to statistics which I saw myself, 70 percent of all sentences passed by the special senate during 1944 were, as I recall, death sentences.”

By the foregoing samples from actual case records and comments thereon by German jurists involved, the prosecution has sought to typify rather than specify the war crimes and crimes against humanity committed by the defendants. Detailed accounts are unnecessary at the moment to exemplify the judicial murders and legalistic perversions for which these defendants have been indicted; that will be fully developed by the evidence.

e. Evidentiary Considerations

Mr. LaFollette: We believe it will expedite the trial of this case and be of assistance to the Court and evidence a proper attitude of fairness toward the attorneys for these defendants if we discuss now some of the theories of evidence and of the relevancy and materiality of evidence under which we shall present the proof in this case.

Law No. 10, which is the inter-power act from which this Court springs, contains some matter relevant to the issue, while Ordinance No. 7, of necessity, treats the matter very fully. Between them they deal adequately with the matter of the competency of proof, intelligently relaxing the rules of the necessities of presenting proof in a country which has not only been physically destroyed, but which has had its government disintegrate and also suffered the demoralization which follows the defeat of a vicious ideology which has permeated the thinking of far too many of its people.

But relevancy and materiality—the relationship of primary facts to the ultimate fact—involves a cerebral process, the method of finding the existence of an ultimate fact by logical processes from objective proof.

These latter standards lie within the consciousness and the conscience of man. Thus, they are not affected by the external considerations which justify the relaxation of the rules regulating the competency of proof. They should not have been and they were not relaxed. We endorse the decision to retain them and welcome the opportunity to work under them.

Article II, paragraphs 4(a) and (b) of Law No. 10, are the same in substance, although differing slightly in the use of language to express the substance as articles 7 and 8 of the Charter, respectively.

These paragraphs of article II of Law No. 10 read as follows:

“4. (a) The official position of any person, whether as Head of State or as the responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.

“(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”

Paragraph 4 (a) is a sound rule and applies to most, if not all, of these defendants. Paragraph 4 (b) is likewise sound. We point out, however, that these defendants are lawyers who are charged fundamentally with perverting or converting a system of justice into an instrument for committing crimes under international law. Since this paragraph affords them the right to offer evidence in mitigation and to plead for mitigation from that evidence, the prosecution is entitled to answer that plea by two arguments. First, that a lawyer has special knowledge of the perverting effect upon the dispensation of justice not only of his own acts, but of the acts of others of which he has knowledge—knowledge as an ultimate fact. Second, that a lawyer entrusted by his very calling with a sacred duty must of necessity offer strong proof indeed in mitigation of the prostitution of that duty.

We shall introduce proof on this issue from which knowledge, as an ultimate fact will arise, and also proof from which the plea of mitigation will be shown to be fanciful and hypocritical.

Again upon the subject of relevancy and materiality—probative value—we shall offer evidence of other acts of these defendants and also acts of persons other than these defendants, knowledge of which as an ultimate fact can be inferred to the defendants. These acts shall include those which constitute evidence of other crimes committed both by these defendants and by others. We are convinced that this evidence is relevant and material, and therefore admissible under accepted rules of evidence supported by Wigmore, an acknowledged authority.

Certainly, a brief exposition of our position will expedite the trial by enabling the Court to rule expeditiously, but at the same time judiciously, and it is also our hope that by furnishing defense counsel with an understanding of the legality of the rules under which this evidence will be offered, they will not find it necessary to resort too frequently to empty objections.

We can afford to be candid with Court and counsel. It is only the lazy, the uninformed, or inherently dishonest and therefore unethical lawyer who seeks recourse to silence or obtusion. We refuse to follow a course of conduct from which either of the foregoing can be charged to the prosecution of cases before this Tribunal and its sister Tribunals.

Evidence of acts, including other crimes not only of the defendants but of others, is permissible and most often offered to show knowledge, intent or design. They are also relevant upon the issue of motive. Because of the nature of the crimes charged in this indictment, each of the foregoing, knowledge, intent, or design and motive, is an essential ultimate element or ingredient of those crimes. Therefore, the rules which authorize the introduction of such proof are of concern to this Court.

Before treating the subject affirmatively, we shall prepare the way by eliminating the supposed objection of unfair surprise. We offer the following quote:

“Of the other objections (other than undue prejudice) from the point of view of that auxiliary policy which creates the character rule, the objection of unfair surprise is the only one that could be supposed to be here applicable. But it has never been treated by the courts as of consequence. * * * Evidence tending to show, not the defendant’s entire career, but his specific knowledge, motive, design, and the other immediate matters leading up to and succeeding the crime, is of a class always to be anticipated and is in such given instance rarely a surprise; moreover, the kernel of the objection of unfair surprise, namely, the impossibility of exposing fabricated evidence, is wanting where the evidence deals with matters so closely connected with a crime as design, motive, and the like.”[56]

The above quote referred to the further objection of undue prejudice. That objection does not arise here. This is a trial by the court—by judges. It is a trial by judges who by training and character rely only upon objective standards in determining guilt or innocence. The rule was never considered in America as a necessary protection to a defendant in trials by court.

In fact, the very contrast between the system and standards of judicial conduct by which these defendants are being tried and the subjective personality yard sticks which they, particularly the judicial defendants, will be proved to have acted under and used, it is to be hoped, will have some effect in serving the declared purpose of Potsdam, “to prepare for the eventual reconstruction of a German political life on a democratic basis * * *.”

In treating the subject under discussion, we must refrain, because of time limitation, from presenting Wigmore’s excellent philosophical discussion of the basic principles which govern the proof of knowledge, intent, and design. Therefore we limit ourselves, from necessity, to an exposition of those statements which are applicable to the crime which most, if not all, of these defendants have committed—murder.

We shall offer the type of evidence under discussion, first under the knowledge principle:

“The knowledge principle has practically little application here, though it would be available to show a knowledge of the nature and injurious effect of a lethal weapon.”[57]

We point out that in this case “knowledge of the nature and injurious effect of a lethal weapon” is of first importance. The defendants had full knowledge of the character of this lethal weapon—a judicial system deliberately fashioned into a headman’s axe. In fact, most of them directly and actively fashioned it. Consequently, under each of the categories of the substantive law of murder, which we have heretofore expounded, and particularly under the second, proof of prior acts, including crimes of those defendants and of others of which they had knowledge, are clearly relevant.

The same type of evidence shall be offered under the following rule relating to the intent principle:

“The intent principle receives constant application; for the intent to kill is in homicide practically always in issue, and is to be proved by the prosecution, and the recurrence of other acts of the sort tends to negative inadvertence, defensive purpose, or any other form of innocent intent. For this purpose, therefore, the evidence is receivable irrespective of whether the act charged is itself conceded or not * * *.”[58]

Also the rule of anonymous intent authorizes the introduction of proof of such other crimes and of the crimes of others.

“The principle of anonymous intent finds occasional application, particularly in poisoning cases. Other instances of death by poison under somewhat similar circumstances serve to negative the supposition of inadvertent taking or of mistaken administration, even though the person responsible for the other poisonings is not identified; and thus, a criminal intent having been shown for the act charged, by whomsoever done, the defendant may be then shown to be its doer.”[59]

This Court shall be called upon to determine whether a so-called judicial execution was a true judicial decision or poison handed the defendant in a disguised chalice having the exterior appearance of judicial purity. When we produce innumerable cases of such acts, can a defendant be heard to say he did not know his monstrous chalice was lethal and intended it so to be?

Also the principle of design or system is applicable for identical reasons.

“The principle of design or system finds here frequent application. It supposes that a design or plan in the defendant is to be shown, as making it probable that the defendant carried out the design or plan and committed the act; and it receives former similar acts so far as through common features they naturally indicate the existence of such a plan, design, or system, of which they are the partial fulfillment, or means. This principle is fully recognized in the precedents * * *.”[60]

And finally prior acts of violence, including crimes, are evidence of motive as well as of design:

“(3) Prior acts of violence by the defendant against the same persons, besides evidencing intent, may also evidence emotion or motive, i.e., a hostility showing him likely to do further violence; * * *.

“(4) Threats of violence are in themselves expressions of a design to injure, and are accordingly dealt with elsewhere * * *.”[61]

Certainly, when we shall offer so many cases of death of Poles and Jews, no one of these defendants will have the temerity to say we cannot show proof of their own prior utterances, as well as those of others of which they had knowledge, as a clearly inferred ultimate fact, demanding death to Poles and Jews, and also that haste and more haste must be made to turn the Nazi judicial system into a headman’s axe, for the purpose of showing their motive when they killed Poles and Jews with their so-called “judicial” system and processes.

It would be a strange law, indeed, which would say that if a man killed the Pole or one Jew, his prior threats to and assaults upon that Pole or Jew were relevant evidence of the motive with which he acted, but would deny the same proof, when the same man, or in this case men, killed millions of Poles and Jews.

Of course, the law is neither so blind nor so callous.

The accepted rules of proof in an objective system of law justify every offer of proof of prior statements, acts, and crimes of these defendants, and of those others of which they had knowledge, as an ultimate fact, which we should make in this case.

We need not, nor shall we attempt to, evade or circumvent those salutary rules.

These defendants can and should be convicted, but only under law. Because we believe that, we have not been afraid to predeclare our understanding both of the substantive law and the rules of evidence under which just convictions shall be asked, and which we believe will be rightfully rendered under the proof adduced.

Although the matter is not related to the theories under which evidence will be offered by the prosecution, there is one other matter relating to the evidence which the prosecution feels it is entitled to discuss at the opening of this case.

During the introduction of the evidence, certain names of important officials recur—Thierack, Freisler, Vollmer, Westphal, Crohne, Laemmle, Haffner, and others. Since these men are not in the defendants’ dock, the Court is entitled to know why. Thierack committed suicide on 26 October 1946. Freisler was killed in an air raid which demolished the People’s Court building in Berlin, early in 1945. Vollmer forsook the Ministry of Justice for the Luftwaffe (air force) during the last days of the battle for Berlin in 1945, and was reported to have died in action. Westphal committed suicide in the Nuernberg prison following service of the present indictment upon him. Crohne, Laemmle, and Haffner cannot be located, despite all efforts.

THE GERMAN LEGAL PROFESSION UNDER THE THIRD REICH

We have sketched the steps by which the judicial organization of Germany was turned into a mere agent of the criminal policies of the Third Reich, and have outlined some of the crimes which the defendants committed by means of the perverted judicial machinery. Before taking up the fourth and final count of the indictment, which rests upon a somewhat different footing than the first three counts, it is appropriate to examine very briefly the German legal profession and its degradation under the Third Reich. This brief survey, we think, will help to explain why these atrocities came to pass.

a. Before 1933

During the pre-Hitler decades, the professional life of German jurists flourished. Independent societies were formed which published law reviews of high caliber and participated in international conferences of jurists and in international legal institutions, such as the International Arbitration Courts.

Originally, the judges of the various German States had separate professional organizations, but in 1908 these were combined into the Association of German Judges (Deutscher Richterbund). This organization sponsored lectures on new legal problems, on comparative law, on modernizing penal law, and similar subjects. The association edited the “German Judges’ Times” (Deutsche Richterzeitung), which published court decisions and articles by learned jurists. Another organization of German judges was the Association of Republican Judges (Republikanischer Richterbund), founded in 1926. Its members were primarily interested in the reformation of the German court system and in bringing German legal institutions into line with the democratic principles of the new Weimar constitution. They published the periodical “German Justice” (Deutsche Justiz).

Most practicing German attorneys at law belonged to the Association of German Attorneys at law (Deutscher Anwaltsverein), the largest professional organization of jurists. This association, founded in 1871, comprised about 15,000 members in 1933. It published the “Juridical Weekly” (Juristische Wochenschrift), which had thousands of subscribers inside Germany and abroad.

Before the Nazis came to power, all organizations of jurists consisted of members of all political parties and creeds. Their officers were eminent scholars or jurists, and many of them had a high international reputation. Their yearly meetings acted according to democratic principles without interference from the executive branch of the government.

Legal education and training in Germany maintained high standards. After studying law for 3 or 4 years at a law school of one of the State universities, the candidate served a law apprenticeship, lasting another 3 or 4 years, at various courts and law firms. Only then was he admitted to the Great State Examination, known as the Assessor Examination, which might be compared with our bar examination. The successful completion of this examination was the legal prerequisite for any appointment as judge, public prosecutor, or higher civil servant, or for admittance to the bar. The men and women who had passed this examination were highly respected by the German populace.

b. The Impact of Nazism

In the years immediately preceding the establishment of the Third Reich, the National Socialist Party started a nationwide campaign directed against the legal profession. The Nazi leadership realized that they could not gain absolute dictatorship by the seizure of the government alone, but that they must also completely subjugate German legal life. As an affiliate of the Nazi Party, a National Socialist German Jurists’ League (Bund Nationalsozialistischer Deutschen Juristen) known as the BNSDJ, was formed in 1928 by the late Hans Frank. In 1931, the members of this organization, then about 600 in number, or less than 1 percent of all German jurists, were instructed to report on the political attitude and behavior of judges and lawyers. The general attitude of the Nazi Party toward independent judges was reflected in the statement—

“One day, we will forget the independence of the judges which has no significance in itself.”[62]

There were many other occasions when Hitler and his henchmen expressed their distaste for law and the legal profession.

Immediately after the Nazis came to power, they started to pervert German legal life and to develop it as a tool of the totalitarian machine. This was accomplished in part by measures which have already been described, such as the dismissal of judges, prosecutors, and Ministry officials considered politically unreliable, and by depriving judges of the guaranties of independence and immunity from removal from office.

But these measures were not confined to the governmental judicial organization. It extended into all branches of the legal profession. The first step was the subjugation, and later the complete elimination, of the old professional associations, such as the Deutscher Richterbund, the Republikanischer Richterbund, and the Deutscher Anwaltsverein. Their destruction was accomplished by the same sort of maneuvers that effected the dissolution of the pre-Nazi medical and other professional societies at about the same time.

In the early spring of 1933, the former officers were ousted under duress, and new officers, all of them members of the Nazi Party, were appointed according to the newly proclaimed leadership principle (Fuehrer-prinzip). This procedure also became known under the term “coordination” (Gleichschaltung). At the same time, the membership of well-known anti-Nazi or Jewish jurists was canceled in all these professional organizations. Many of them were threatened and forced to emigrate.

Shortly afterward, in May 1933, the old organizations were completely dissolved. All organizational and professional activity was centered in the National Socialist German Jurists’ League, which became one of the most important tools in the Nazi penal program.

Hans Frank reported to Hitler in May 1933 that all existing professional organizations and associations of lawyers had joined the BNSDJ.[63]

The cooperative entry of these organizations into the BNSDJ did not, however, imply individual membership of its members in the BNSDJ. This required an individual application. Actually by the end of 1934 there was hardly a lawyer left who had not joined the BNSDJ. Those very few who had the courage to stay out laid themselves open as opponents of the regime with the grave risks which this implied. One of the conditions of membership in the BNSDJ was membership in the Nazi Party, but non-Party members could be admitted as so-called “supporting members” (Foerdernde Mitglieder).

The constitution of the BNSDJ dates from 4 May 1933. It declares as its program the realization of the National Socialist program in the legal field. According to Hitler’s order of 30 May 1933, the BNSDJ was the sole representative of the German Law Front and the exclusive professional organization of all lawyers. The seat of the BNSDJ was Munich, its leader Hans Frank, and its executive secretary Dr. Wilhelm Heuber. Regionally, it was divided into 26 regions (Gaue). Leader of the Gaue “Hanseatic Cities” was the defendant Rothenberger. At the end of 1934, the Nazi organization of jurists had approximately 80,000 individual members and its executive secretary could boast that it was the biggest lawyers’ organization in the world. In 1936, the name was changed to “Nationalsozialistischer Rechtswahrerbund” (NSRB). Through the disciplinary boards of this organization, the legal chieftains of the Nazis held the lawyers under close political surveillance.

c. Under the Third Reich

Within a short time after the advent of the Nazis, the editorship of all legal journals was taken over by newly appointed Nazi editors, such as Hans Frank and his accomplices of the BNSDJ. A number of the scientific legal journals whose editors were known as anti-Nazis, such as “Die Justiz,” were suppressed. The new editors perverted the legal journals by turning them into mere propaganda instruments of the Nazi government. In these journals, the jurists were informed that they were to be nothing but the legal soldiers of the Fuehrer. The legal journals were flooded with such material. The Deutsche Justiz, the mouthpiece of the Ministry of Justice, frequently printed directives of which the following by the late Under Secretary Freisler is typical:

“But we will march as an army corps of the Fuehrer, and as such, no one shall outdo us in the willingness to self-sacrifice! We are alone responsible to the Fuehrer and that is our wish.”[64]

While, on the one hand, the legal thinking of the older generation of jurists was perverted, on the other hand the future Nazi jurists received a thorough indoctrination at the law schools of the universities where they were instructed by Nazi lawyers or by opportunists who had sold their legal reputation for promotion within the Nazi hierarchy. Respected professors, who were suspected of so-called “Roman-Jewish individualistic” legal ideas were discharged, and references to such ideas were eliminated from the textbooks. The standard of legal education was considerably lowered. The students had to spend a considerable part of the time which was once devoted to the study of law, on compulsory labor and military service and exercises in the student cadres of the SA Storm Troopers and the SS Elite Guards. During the period of their law clerkship, Nazi indoctrination and exercises in military formation were substituted for the once thorough legal training. Eventually, no young lawyer was admitted to the bar whom the examination board did not consider a reliable legal soldier of the Nazi Fuehrer. In analyzing the new Nazi examination decree for lawyers, Freisler stated:

“The experience of the candidate within the (Nazi) movement and its evaluation (by the Nazi movement) is fundamental in any evaluation of the candidate’s qualifications. If such experience does not exist, he will be disqualified.”[65]

In the early stages of this prostitution of German legal education, the Prussian Ministry of Justice took a leading part. The Prussian Minister of Justice was a Nazi zealot named Hanns Kerrl, a budget clerk without legal education who attained this high position under the Nazis, and who became the Reich Minister for Churches after the Prussian Ministry of Justice was absorbed by the Reich government. In April 1933 Kerrl issued a decree concerning the selection of candidates for positions as judges, public prosecutors, and attorneys in the State of Prussia, which provided in part that—

“The applicant for appointment as a junior judge (assessor), admission as attorney, or appointment as notary public will in future have to prove in a special hearing that his consciousness of being a member of the national community, his social understanding, and his understanding of the entire race development of the German people in the present and future constitute the basis of his personality. * * * for this purpose applicants will have to undergo a special post-examination which has the aim to convey an impression of his being rooted in the national community (Volksverbundenheit).

“The result of this post-examination will be evaluated in my decision about the appointment or qualifications of the candidate equally with the other statutory requirements.”[66]

Two months later, Kerrl issued another decree which required that all candidates for the final State legal examination had to attend a special “Community Camp” for 6 weeks before they would be admitted to the final examination. This Prussian decree provided, in part, as follows:

“The National Socialist State must know above all that the man whom the State, as a sovereign, intends to entrust with the execution of the most important tasks of judge or prosecutor, must have character and be a typical German.

“One cannot get an idea of this from an examination as it has been conducted up to now, * * *.

“I therefore decree that:

“1. In the course of the final legal State examination, each candidate, during the period following the written and preceding the oral examination, that is for about 6 weeks, is to live together with other candidates under the direction of civil servants of the Prussian Administration of Justice, appointed by me * * *.”[67]

This preposterous institution for the perversion of young lawyers was established, and given the name “Gemeinschaftslager Hanns Kerrl,” after its creator. It was located at Jueterbog, near Berlin. An illustrated pamphlet describing the activities in this lawyers’ madhouse will be introduced in evidence. According to the basic statute of the camp, the inmates were to become familiar with the leadership principle and would “experience the ideas of the Fuehrer.” The commandant of the camp was a lawyer named Spieler, who had become favorably known to the Nazis through his activities as defense counsel in their behalf. He was an old Party member and a colonel in the Storm Troopers (SA). He was assisted in supervision of the young lawyers by a motley group of storm troopers and army officers. The extracts from this pamphlet will bear quotation:

“A further training and examination of the candidate is accomplished through ideological indoctrination. The camp directors are aware, of course, that national socialism can neither be learned nor taught. National socialism must completely determine an individual’s attitude; when this is not the case, the individual can never become a real National Socialist. There are many people, however, who in their social relations or in their way of living have not become acquainted with national socialism or were even opposed to it, yet in these people there exists an unconscious National Socialist sentiment which only needs stimulation to develop. The appropriate method for this is the ideological indoctrination. The latter is therefore particularly used in the camp, not only for this purpose but also for training purposes, to strengthen and develop the National Socialist ideology.

*******

“The day of Horst Wessel’s death was also a remarkable day. This day was commemorated in a particular manner. At 4 o’clock a trumpeter blew reveille. At 4:07 all the camp inmates were already assembled in the courtyard. A brief order, ‘column right, forward march.’ Then the various platoons of the school took different routes across the drilling field and marched on into the country.”

After the dissolution of the Prussian Ministry of Justice in 1934, the Gemeinschaftslager Hanns Kerrl was brought under the supervision of the Reich Ministry of Justice. The illustrated pamphlet to which I have just referred contains photographs of Reich Minister Guertner, Under Secretary Freisler, and others visiting the camp. The photographs also show a gallows from which was suspended a symbol of German statutory law, the sign for the paragraphing of legal codes. Guertner and Kerrl are both photographed standing under the gallows. It would be hard to conceive a more appropriate symbol for the degradation of the legal profession under the Third Reich.

COUNT FOUR

MEMBERSHIP IN CRIMINAL ORGANIZATIONS

General Taylor: The fourth and final count in the indictment contains the charge that seven of the defendants are guilty of membership in organizations declared to be criminal in the judgment of the International Military Tribunal. Four of the defendants, Altstoetter, Cuhorst, Engert, and Joel are accused of membership in the SS. The defendant Joel is also accused of membership in the Sicherheitsdienst (commonly known as the SD). The defendant Cuhorst is also accused, together with three others, Oeschey, Nebelung, and Rothaug, of membership in the Leadership Corps of the Nazi Party. All three of these organizations were declared criminal in the judgment of the International Military Tribunal.

The legal basis of the charges in count four is quite distinct from that of the first three counts in the indictment. The charge derives from article 9 of the Charter of the International Military Tribunal, which authorized that Tribunal, under specified circumstances, to declare that certain “groups” or “organizations” were “criminal organizations.” The prosecution before the International Military Tribunal sought such declarations in the case of each of the three organizations involved in count four of this indictment, and the International Military Tribunal rendered such declarations. In the meantime, it had been provided in article II of Control Council Law No. 10 that “membership in categories of a criminal group or organization declared criminal by the International Military Tribunal” should be “recognized as a crime.” Paragraph 3 of article II of Control Council Law No. 10 specifies the punishments which may be imposed for membership in such organizations.

In its decision, the International Military Tribunal set forth certain limitations upon the scope of its declaration that these organizations were criminal.[68] Under these limitations, in order to render membership criminal, two things, in addition to membership, must be shown—

1. That the individual in question became or remained a member of the organization after 1 September 1939, and

2. That the individual in question either (a) became or remained a member with knowledge that it was being used for the commission of acts declared criminal by article VI of the London Agreement, or (b) was personally implicated as a member of the organization in the commission of such crimes.

The prosecution believes that, once it has established that a defendant was a member of one or more of the criminal organizations, it is incumbent upon the defendant to come forward with evidence that he neither knew of the criminal activities of the organization, nor participated in their commission, or that he ceased to be a member prior to 1 September 1939. We believe that any question concerning the burden of proof will be entirely academic in this case, in as much as the positions which these defendants held, and the evidence embodied in the documents which we will offer in evidence will show beyond question that they both knew of and participated in the criminal activities.

a. Membership in the SS

I will deal first with the four defendants charged with membership in the SS. The evidence will show that the defendant Altstoetter became a member of the SS in 1937, that he remained a member after 1939, and attained the rank of Oberfuehrer (senior colonel) in June 1944. The defendant Cuhorst became a sponsoring member (Foerderndes Mitglied) of the SS in January 1934 and remained such after 1939. The defendant Engert joined the SS in 1936 and thereafter attained the rank of Oberfuehrer (senior colonel). The defendant Joel joined the SS in 1938, and attained the rank of Obersturmbannfuehrer (lieutenant colonel).

The activities for which the SS was declared a criminal organization are set forth in the judgment of the International Military Tribunal.[69] These activities included the extermination of numerous “undesirable” classes, including Jews, and the transfer of numerous Jews and foreign nationals to concentration camps where they were murdered and tortured.

It will be abundantly apparent from the proof that if any member of the SS knew of, and participated in, its widespread criminal activities, surely these defendants did. They were directly concerned with penal problems, and, as we have seen, of necessity their cooperation with the SS was extremely close. In fact, Himmler himself took special pains to insure that the German judiciary would be fully advised on the ideology of the SS and of its nefarious aims and purposes. In July 1944 at the special invitation of Thierack as Reich Minister of Justice, Himmler made a speech to the presidents and the attorneys general of the courts of appeal. A report from the files of the Ministry of Justice describing this occasion reads as follows:

“On the invitation of the Reich Minister of Justice Dr. Thierack, the Reich Leader SS, spoke to the presidents and the attorneys general of the courts of appeal at the Reich Castle of Cochem on 20 May 1944. The question of the development and the aims of the SS was dealt with, in particular the importance of the racial question, questions of national biology, fighting selection, racial community, the importance of the Waffen SS (armed SS) and the greater German concept.

“The judges and public prosecutors were to receive the information through the presidents of the courts of appeal and might have been informed in the meantime.

“You are respectfully requested to submit a detailed report on the reception and the effect of this speech on the judges and the chief public prosecutors.”

Himmler’s well-known views on the value of non-German human life were thereby made available to all German judges and chief prosecutors. They surely came to the attention of the defendant Cuhorst, in this and numerous other ways. They surely were well known among the higher officials of the Ministry of Justice, including Altstoetter, Engert, and Joel.

Indeed, long before Himmler’s speech to this judicial assembly, the Ministry of Justice had been collaborating actively with Himmler in turning over Jews, Poles, Russians, gypsies, and others from the ordinary prisons to the concentration camps. The whole evil process must have been particularly well known to Engert, who was in charge of Division XV of the Ministry of Justice, which was charged with carrying out these transfers. A Justice Ministry document written in October 1942 gives complete information concerning the agreement between the Ministry and Himmler, and specifically delegates the execution of the agreement, on behalf of the Ministry of Justice, to Engert and his associates in Division XV. Engert thereafter visited various prisons throughout the Reich, checked over the lists and arranged for the delivery of these unfortunates to the SS.

Nor could these arrangements, or other activities of the SS, have been any secret from Altstoetter, who was a division chief of the Ministry of Justice throughout this period. Furthermore, Altstoetter was a particular personal favorite of Himmler’s. Correspondence which we will introduce will show that the most cordial relations existed between Altstoetter and Himmler and between Altstoetter and other high SS officers including Mr. Karl Gebhardt, the Chief Surgeon of the SS. At a conference in 1942 with Thierack, Rothenberger, and other judicial officials, Himmler singled out Altstoetter as being “reliable.” The defendant Joel was not only an officer of the SS, but also a member of the Sicherheitsdienst, the branch of the SS particularly concerned with intelligence and with the extermination of Jews in Poland and the Soviet Union. Joel was particularly familiar with these murderous activities. A memorandum signed by Joel in 1942 described a plan which Goering had concocted for picking out “daring fellows” from among the prison inmates who would carry out special tasks behind the lines on the eastern front. Joel’s memo recites that Himmler had already selected a large number of such men for his purpose, but that Goering wanted the field picked over again. Joel’s memo goes on to state:

“ * * * the only suitable men are those with a passion for hunting, who have poached for love of the trophy, not men who have laid snares and traps. The Reich Marshal also mentioned fanatical members of smuggling gangs, who take part in gun battles on the frontiers, and whose passion it is to outwit the customs at the risk of their own lives, but not men who attempt to bring articles over the frontier in an express train or by similar means.

“The Reich Marshal Goering leaves it to us to consider whether still other categories of convicts can be assigned to these bands of pursuit commandos.

“In the regions assigned for their operations, these bands whose first task should be to destroy the communications of the partisan groups could murder, burn, and ravish; in Germany they would once again come under strict supervision * * *.”

b. Membership in the Nazi Party Leadership Corps

The defendant Cuhorst again, along with Nebelung, Oeschey, and Rothaug, is involved in the charge of membership in the Leadership Corps of the Nazi Party. The declaration of criminality rendered by the International Military Tribunal includes all the “leaders” in the hierarchy of the Nazi Party from the Reichsleiter down through Gauleiter and Kreisleiter, to Ortsgruppenleiter. It also includes the heads of the various staff organizations, down to the staffs of the Kreisleiter.

The evidence will show that Cuhorst became a member of the Nazi Party in 1930 and in 1933 was given the status of Gaustellenleiter. The defendant Oeschey joined the Party in 1931 and in 1940 was given the status of Gauhaupstellenleiter. Rothaug joined the Party in 1938 and attained the status of Gaugruppenleiter. All three of these defendants were therefore heads of staff organizations at Gau level. The defendant Nebelung joined the Party in 1928 and soon thereafter became an Ortsgruppenleiter. All four of the defendants, therefore, fall within the categories of the Leadership Corps specified in the decision of the International Military Tribunal.

The criminal activities of the Nazi Party Leadership Corps are also set forth in the judgment of the International Military Tribunal.[70] These included the persecution and extermination of Jews, administration of the slave labor program, mistreatment of prisoners of war, and the lynching of airmen who had bailed out over Germany. The evidence which we will offer will show knowledge of and participation in all or most of these activities by all four of the defendants.

c. Summary

In conclusion on count four, the prosecution wishes to point out certain factors which it believes should be borne in mind in considering the degree of culpability to be attributed to membership in organizations declared criminal by the International Military Tribunal. The charge of membership in these organizations, coupled with knowledge of the crimes that were committed or participation in those crimes, is a very serious one. Its consequences will, we believe, have to be more closely examined at the conclusion of this proceeding, but certain factors can be pointed out here and now.

It is true, for instance, that in a sense none of the seven defendants involved in count four were “full time” or “paid” members of these organizations. All seven of them had full time jobs as judicial officials but, under the circumstances which the evidence in this case will disclose, we do not believe that this fact is significant in estimating culpability.

It is true that the high officers’ ranks in the SS held by Altstoetter, Engert, and Joel were chiefly honorary. It was part of Himmler’s calculated policy to draw support to himself from all quarters by distributing honorary SS ranks and decorations. But those who accepted special ranks thereby lent the weight of their names and prestige to Himmler and to Himmler’s policies. If they did not agree with these policies, they prostituted themselves for whatever prerequisites or security these shameful ranks and awards might bring.

Where it can be shown, as it will be here, that the defendants not only were fully familiar with the horrifying scope of Himmler’s program, but also participated directly in its execution, it should be considered no defense whatsoever that an individual’s SS activities were extracurricular rather than his daily bread and butter.

Similar considerations apply to the defendants who were members of the Party Leadership Corps. Cuhorst, Nebelung, and Oeschey were all members of the Party years before Hitler came to power; all three of them, and Rothaug, too, played a leading role in Party affairs. They too, by the very nature of the positions they occupied in the judicial system, to say nothing of the fact that they were high in the Party councils, must have been aware of the activities recited by the International Military Tribunal as the basis for its declaration of criminality.

Indeed, the guilt of these seven defendants under count four is, in many respects, deeper than that of many full-time officers of these organizations. The defendants were highly educated, professional men, and they had attained full mental maturity long before Hitler’s rise to power. Their minds were not warped at an early age by Nazi teachings; they embraced the ideology of the Third Reich as educated adults. They all had special training and successful careers in the service of the law. They, of all Germans, should have understood and valued justice.

Conclusion

Crimes, theoretically and, more often than not, actually, are these acts, which are so contrary to the moral conscience of the community or so dangerous to the maintenance of a reasonable degree of order, justice and peace in the community, that the community, by appropriate processes, demands their elimination and suppression in the interest of the individuals who constitute the community. Therefore, those within a nation or a state who institute proceedings to enforce this community decision as prosecutors, speak for the community conscience or community decision. For this reason, criminal prosecutions within states or nations are brought in the name of the State or the Commonwealth, or by the use of words suitable to describe the offended community.

In this proceeding at Nuernberg, the world is the community. The four nations which have written the substantive law under which we proceed, their responsible government heads and their elder statesmen, have proclaimed it as a codification of crimes denounced as such by the moral conscience of that community where the crimes we try were committed.

Therefore, although this indictment is brought in the name of the Government of the United States, this case in substance is the people of the world against these men who have committed criminal acts against the community we know as the world. For surely few spots on this earth are so remote that they have not felt in some degree the disruptive, if not indeed the destructive, impact of the criminal acts of these men or those others whom they served and with whose acts they were criminally connected. Therefore, unless all the countries of the world fight a continuous struggle to match the moral conscience of the world which has been asserted here, the result will be a cynical Germany and an apathetic amoral world which drifts aimlessly because it sees no national conduct which matches the standards of moral conduct which are proclaimed here. The true significance of these proceedings, therefore, far transcends the mere question of the guilt or innocence of the defendants. They are charged with murder, but this is no mere murder trial. These proceedings invoke the moral standards of the civilized world, and thereby impose an obligation on the nations of the world to measure up to the standards applied here.

Although this Tribunal is internationally constituted, it is an American court. The obligations which derive from these proceedings are, therefore, particularly binding on the United States. True it is that two wrongs do not make a right, and equally true that the crimes charged against these defendants and the other leaders of the Third Reich were “so calculating, so malignant, and so devastating” that they find no modern parallel. But, underlying these crimes, there are myths, superstitions, and more sophisticated distortions of philosophy which do not know national boundaries. If we, of all nations fail to rise above these malignant doctrines by actions which manifest a steady growth in national fiber and character, then all that we do here will come to nothing, and will leave us and mankind an easy prey to their next violent eruption.

We have still other obligations here which must not be overlooked. As was pointed out earlier, we have undertaken, together with other nations, the task of preparing “for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life in Germany.”

These proceedings are dedicated to that end. Punishment of these leaders of Germany whose crimes made this task necessary is only a part of what we seek to accomplish here. We seek to resurrect the truth in Germany, and to reinvigorate those ideals that have been so long desecrated. The people of Germany sense the need for this, but they will measure our efforts by the measure of our own devotion to the ideals which we proclaim.

The United States cannot evade the challenge of these responsibilities. We can fulfill only the smallest part of them at Nuernberg. But Nuernberg must be a symbol, not of revenge or of smug self-satisfaction, but of peace and good will among nations and peoples. It is the crime of shattering the foundations of peace and denying the very fact of humanity that is charged in this and other proceedings at Nuernberg. It is by trying these charges under law, and in quest of truth, that Nuernberg will find its full measure of justification.

B. Opening Statement for all Defendants[71]

Dr. Kubuschok (counsel for defendant Schlegelberger, speaking on behalf of all the defendants): May it please the Tribunal. In the following statements I shall briefly describe the manner in which the defense believes, by summarizing the treatment of individual general problems, it will expedite the trial. My following statements are to be interpreted in that sense.

The prosecution views the development of justice in administration and jurisdiction during the period of the National Socialist State. It limits its reflections to this period and perceives in everything the consequent execution of National Socialist totalitarian thought. It believes to be able to reduce all phenomena to this denominator.

It must be the task of the defense to extend the boundaries of this reflection beyond this period. The defense will show that no new legal system was created, and that no new system of jurisdiction was developed. Thus, the historical development which had been built on, also in the period from 1933 onward, must be presented in its fundamental traits.

The defense must also be aware of the difficulties encountered in the treatment of the subject matter before a non-German court. The difference between the Anglo-American legal system and the German law, in accordance with which the acts of the German defendants are judged, lies not only in the solution of individual legal questions and problems, but is fundamental and systematic. Anglo-American law appears to us vitally progressive by the effect which decisions of the highest courts carry in setting precedents. German law, on the other hand, is a codified law, much less suitable to development by the administration of justice, but a law which in itself demands observance of the legal standard. The written law is inflexible. New concepts of the law cannot succeed in the administration of justice as is the case in the gradual development of the “common law.” The German—as well as the continental—principle of the codified law permits the incorporation of new legal concepts only through sudden changes [sprunghafte Veraenderungen] of the written law. Thus the supplementary laws of the penal code in force in Germany since 1877 show an abrupt change at shorter or longer intervals. For this reason the positivism of law has played a far more important part in Germany since the end of the nineteenth century than has been the case in legal systems outside the continent. Only the written law [statutory law] and not general ideas on morals and rights constituted the directive for administration of law and justice. Also in Germany this principle of absolute codification has, with regard to its expediency, been the object of legislative discussion for some time. Finally, in 1935, it culminated in the amendment of article 2 of the penal code, and thus, a synthesis was found between codified law and the development of law as interpreted by the decision of the judge; and historical reflection on this event will show the inaccuracy of the prosecution’s conclusion that, being instituted during the period of the National Socialist State, it must of need be the product of National Socialist thinking and its corresponding political aim. We shall prove that the fundamental basis for this norm was created by plans for reform drafted long before 1933, and that the necessity of supplying the judge with a means, enabling him to counterbalance the defects of an absolutely codified law to a limited degree by analogous application of a penal regulation had been realized long before that. It was recognized that the multiformity of life, the constant change of its forms with regard to social, political and economic aspects could not be regulated by codified law alone; especially so, because codified law always lagged one step behind the case in need of settlement of law. Such cases could not, as is possible in “common law,” be regulated and decided on by general concepts of law; they merely gave cause for establishing new legal standards. This one example already reveals the necessity of dealing with the existing German legal system and with plans for reform entertained in Germany for decades.

German law will form the basis for all considerations. We will, therefore, also have to deal with constitutional law and the technique of legislation. We shall proceed from the provisions of the Weimar constitution. We shall observe there the legislative functions of the Reichstag, the Reichsrat [Council of the Reich] and the Reich President. It will be shown that, since Bruening was Reich Chancellor, the weight of legislation shifted in ever increasing measure toward the right of the Reich President to issue emergency decrees.

The turning point was formed by the Enabling Act [Ermaechtigungsgesetz] of 24 March 1933 which represents the basis for all future legislation. The cabinet was now empowered to pass laws on its own authority and even the right of the Reich President to draft and promulgate laws was abandoned. Thus, under consideration of article 56 of the constitution which allocated powers of policy determination to the Reich Chancellor, the right to legislate was practically conferred upon Reich Chancellor Hitler who, in the absence of time, made increasingly extensive use of it. The lawful passing of a law and its legal effects will necessarily be the subject of presentation.

Thus, we are faced with the legal problem of the binding effect of the Fuehrer order. It will have to be examined whether this Fuehrer order was a literal order in the meaning of the Control Council Law, the effect of which is not to be looked upon as exempting from guilt, or, at the most as mitigating, or, whether we are not dealing here with a legislative act, to which this provision of the Control Council Law does not apply.

We shall have to deal with the entire legislative machinery as it was developed at that time. It will be shown that meetings of the cabinet took place even after Hitler’s cabinet had been formed, that they were, however, of an essentially different character already than formerly. Questions were no longer put to the vote. In individual questions of legislation too, Hitler stood on his right as Reich Chancellor to determine directives of policy, in accordance with article 56 of the constitution. As Hitler’s position grew stronger, especially after, in August 1934, the positions of Reich Chancellor and President of the Reich had been combined in his person, cabinet meetings served actually only the purpose of issuing Hitler’s instructions. In accordance with instructions, members of the cabinet were to submit bills that concerned their departments. In accordance with Hitler’s request these bills were submitted to other participating members of departments prior to the cabinet meetings, in order to obtain their opinion and at this stage only objections with regard to departmental competency of other ministries were taken into consideration. The bill, thus having become “ripe for the cabinet” [kabinettreif] was then passed in the cabinet meeting without debate. Since the uselessness of the cabinet meetings thereby became obvious, they were discontinued completely in 1937. Laws were then legislated by means of a so-called circulation procedure [Umlaufsverfahren] in which the individual ministers were given opportunity to voice their objections. These objections could, however, deal with purely departmental aspects only, whereas objections against a basic political idea founded on one of Hitler’s instructions could not be raised or remained ineffective. As we will show, this had, at the same time, the effect of declassifying certain ministries and resulted in their being subordinated to other ministries. This started already in 1935. By the secret National Defense Law, the OKW, [High Command of the Armed Forces], the Minister of Economics as Plenipotentiary General for the Economy, and the Minister of the Interior as Plenipotentiary General for the Administration of the Reich, were brought into prominence as legislative bodies and were combined in Board of Three [Dreierkollegium]. The other Ministries were subordinated to them and depended on them for instructions. The Ministry of Justice was subordinate to the Plenipotentiary General for the Administration of the Reich and was permitted to present bills only through him. The Ministry of Justice’s signature on a law was therefore only of nominal significance; it indicated that the judicial departments had been concerned with the contents of the law. We will show that after the outbreak of the war the Ministerial Council for National Defense was added as legislative body to the Board of Three. Here too, the Ministry of Justice was subordinated to the Plenipotentiary General for the Administration of the Reich, who was a member of the Ministerial Council for National Defense. Bills were drafted in accordance with his instructions. If the initiative for drafting a bill came from the Ministry of Justice itself the Plenipotentiary General for the Administration of the Reich had to concur in the matter.

To judge the position of the individual defendant in the Ministry, a detailed presentation of the organization of the judicial administration becomes necessary. We must deal with the problem of subordination of the various offices in their relations with each other. In particular, the defense will attempt to give the Tribunal a picture of the actual workings of the Ministry of Justice. Within the framework of a bureaucratic organization the sphere of activity of a minister, an under secretary, division chiefs, subdivision chiefs, a Referenten, and co-workers [Mitarbeiter], will be defined and certain organizational changes wrought in the course of time will be taken in consideration. The scope of authority pertaining to the superior-subordinate relationship is also of importance. Of equal importance are the limits of signing power fixed for each individual official of the Ministry of Justice as well as the degree of responsibility he assumed whenever he affixed his signature. A signature does not always imply the assumption of a responsibility nor does it always signify that someone in particular was charged with the handling or discharging of a specific task. A document has quite frequently been submitted to an official of the Ministry of Justice for the sole purpose of having him take official notice of its contents, i.e., the only object being to apprise the official in question of some measure or other. This method of passing on information, of course, could serve many other purposes which remain to be discussed. A simple request, however, to take official notice, combined with an accompanying acknowledgment of receipt signed by an official, never meant that the official had, by affixing his signature, assumed responsibility for the matter on hand. Finally, there remains the problem of throwing light upon the relationship existing between individual departments of the Ministry of Justice and that of defining the meaning and aim of a cosignature. The act of cosigning indicated primarily that the subject matter and its treatment as viewed in the light of the cosigner’s own field of activity, i.e., from an expert’s point of view alone, gave rise to no objections.

A study of departmental limitations will afford insight into the nature of the judiciary in its relationship with, and its dependency on, other Reich Ministries and Party offices. An understanding of the reciprocal connection between the Ministry of Justice and the Reich Ministry of the Interior, as well as the limitations imposed upon both will yield enlightening information on many questions. We shall also find these necessary connections with other Ministries existing before 1933 and thereby refute the assumption of the prosecution that these intersectional connections which are to be found in any system of government constitute a creation of the Nazis and were adopted by them for the purpose of achieving their own ends. It will be necessary, in this connection, not only to discuss the strictly legal aspects involved, but also to show what the actual conditions were with respect to power and authority. We will have to reconstruct the events as they occurred at that time in a state under dictatorship and show what legal consequences a necessary examination conducted from the viewpoint of constitutional law will yield. The question will be raised as to what would have been the consequences of a failure to comply with an order, and would obedience, therefore, legally exclude guilt. A factor of great importance in considering that problem is the determination of the relationship between the judiciary and the police. The effective role played by Himmler, as chief of the entire police force, must also be taken into consideration. The full presentation of facts will show how the police interloped in affairs of the judiciary, and how this interference led, during the course of the years, to an appreciable weakening of the position held by the judiciary. We shall see what means were and had to be employed to fight that battle. The contrast between the position of the justice administration which was weak by nature and that of the police which was equipped with all the instruments of power it employed ruthlessly through the offices of Himmler and Hitler will become manifest. Again and again one will perceive how the judiciary was confronted with accomplished facts, how it strove to defend or recapture lost ground, how all of its activities, as a matter of fact, were overshadowed by the constant pressure and expansionistic aims brought into play by the police. It will be shown how everyone in the Ministry sought to retain as a last bulwark the concept of the constitutional state for practical usage. It will be brought out how the police, beginning with the protective custody order and ending up with the establishment of its own preserve in the concentration camps and the subsequent creation of its own SS jurisdiction over its members finally secured their exemption from the judiciary. Yet in spite of the constant rivalry between the judiciary and the police we must not lose sight of the fact that certain contacts between both offices had to be maintained because of the very nature of German criminal procedure. Since the judiciary had no investigation agencies of its own, it was dependent upon the cooperation of the police in that respect. Finally, I shall also show how Himmler attempted to wrest all public prosecutor offices from the justice administration for systematic absorption by his police machine, although he did not succeed in doing so. When the unique position held by the judiciary within the entire administrative system is made clear in the presentation, one will become aware of the difficulties of the situation in which the judiciary found itself in this battle. We need but have a clear conception of the difference in denotation of the terms “dictatorship” and “justice” in order to gain an appreciation of the difficulties of that situation. The dictatorship derived both stimulus and pattern from the Party in its manifold manifestations. We will show up the predominance and influence of the Party offices, some of which were legally established, and demonstrate how both expanded in all directions and by the employment of any and all means through the person of the Fuehrer of the Party, namely the dictator.

The defense will show, at the proper time, how the Party sought to push its interests ruthlessly in opposition to the judiciary. The activities of the Party constituted a perpetual obstacle to the progressive administration of justice. It will be shown how the Gauleiter, either directly or indirectly through Bormann, deliberately added fuel to Hitler’s repugnance against the judiciary and thereby shoved the Reich Ministry of Justice into a spot similar to that of an isolated animal at bay.

The various aspects just outlined will also furnish us with a broad foundation for those laws to which objections were raised in the indictment, and the substance of which we shall subject to an exhaustive examination.

We will show, when dealing with the problem of violation of the principle nullum crimen sine lege, that all those laws with which the indictment is concerned and which had been made retroactive do not furnish a basis for punishment. The punishable offense itself, to which they referred, had already been made punishable by laws in force at the time the deed was committed.

The rules of penal laws were not only already part and parcel of the general body of law, but had also been fixed long before by virtue of positive law at the time the appropriate supplementary laws went into effect. In every instance revisions were applied only to the evaluation of a crime in relation to the amount of punishment. Since the prescribed rules of the German Penal Code, generally speaking, did not allow a judge much leeway in awarding punishment, it was found necessary to provide for changes with regard to the fixing of penalties.

We will show that conditions of public distress in Germany were in each instance responsible for the changes and, furthermore, that these legislative measures were, above all, inspired by criminological propositions that had played an important part in scientific discussions long before 1933. We will also show that the drafting of such legislative measures was strongly influenced by the knowledge and experience of other countries.

We shall have to proceed from the assumption that a retroactive measure characterized only by an increase in severity of punishment does not constitute a violation of the principle nullum crimen sine lege according to common German continental legal conceptions.

If the prosecution should construe the substance of various laws as crimes against humanity, we will have to enter into an investigation of the actual living conditions which gave rise to the necessity for the legislation of strict measures. One of the cardinal determinants of any system of penal law is the principle of the deterrent influence of punishment. Variations in the forms and uses of deterrents are at all times dictated by circumstances. Thus, when living conditions everywhere are at high tension, deterrents, if they are to be effective at all, must be accompanied by a corresponding increase in severity of legislative measures.

Some of the legal terms found in German court decisions that are to be examined by the Court will require explanation. Such terms as “dangerous habitual criminal,” “perpetrators of crimes of violence,” “juvenile major criminals,” “public enemies,” “asocials,” and “criminal type” [Taetertyp]. In defining these terms it will become apparent that they were used as necessary aids in the quest for laws and that they represented, by no means, a one-sided attempt at increasing the harshness of measures in the administration of justice. These terms were established for the purpose of setting up clear-cut, definable boundary lines encompassing a definite group of major criminals. Such a move paved the way for pronouncements of restricted judgments, i.e., less severe ones upon those who did not fall within that group.

In answer to the question of sterilization, we shall outline its historical development in Germany and other countries both in theory and practice. We will find that sterilization, as a program, was advocated long before 1933 in Germany and even found champions in Socialist and church groups. Closer examination of the law under consideration will reveal the great care and caution exercised in hedging in its specific provisions. Should the law itself, however, lie beyond the pale of any possible extensive explanation, we shall then furnish proof that it has never been misapplied for political or race-political purposes.

The subject of euthanasia will be dealt with at length and judged with fairness and justice. We will show that the measures originated with Hitler himself, and in the Chancellery of the Fuehrer. We will also show—and this is symptomatic of the position held by the judiciary in the administration—that the judiciary did not receive word of the existence of those measures directly but in trailing stages from outside sources. We will bring out how the Ministry of Justice attempted to thwart the execution of those measures, and then disclose how those same attempts led to a premature discontinuance of the program. In order to decide the question of whether the judiciary is responsible for these measures, which they neither caused to be put in effect nor carried out, we again must consider the actual existing facts.

A trial which concerns verdicts rendered by various courts calls for a study of the organization of these courts as well as their manner of functioning. We will deal with the structure of the Special Courts and of the People’s Court as well as the courts before them. We will consider whether the Special Courts are extraordinary courts in the sense of the indictment, which were prohibited by the constitution. We will also define the term “extraordinary court,” and we shall see that a court which has not been established for the purpose of bringing certain persons to trial, but for the purpose of passing judgment on certain punishable acts cannot be considered an extraordinary court. The legal regulations which are prescribed for proceedings in Special Courts and which deviate from regulations prescribed for regular proceedings will be scrutinized with regard to extent and purpose. We will deal with the structure of the People’s Court in like manner.

In order to discuss these questions, it will also be necessary to give the Tribunal a clear-cut, plastic picture of German criminal procedure. We hope to be able to achieve this by interrogating an expert on the characteristic features of German criminal procedure. Thus, we will be able to show the fundamental differences between German and Anglo-American criminal procedure. We will become acquainted with the preliminary proceedings as well as with the actual main proceedings. Preliminary proceedings are in the hands of the public prosecutor. The necessary investigations to ascertain the facts of the case must be carried out with the aid of the police and through its own or judicial interrogations. The public prosecutor is bound by law to an objective consideration of the matter. The prosecutor in so doing of course represents the instance which later on submits the indictment in court; yet he is under obligation to draw up the indictment not as an agent of an interested party, which he will represent later on in the main proceedings, but as a purely objective agent engaged in clearing up the facts of the case. He is also charged with procuring and submitting facts which serve the purpose of the defense. After the facts of the case have been established in this manner and the transcript of the interrogations of the defendant, the witnesses, and the experts as well as the record on any inspections, seizures, or searches have been recorded to the court, then the public prosecutor draws up a written indictment and submits to the court the documents which contain the entire material collected by him with the request that a date be set for the trial. In considering the question whether action should be brought, or whether proceedings should be quashed beforehand, he must take into consideration whether the findings are sufficient to justify the suspicion that a punishable act has been committed. This question will then be examined by the court, which has to decide on the opening date of the trial. If, in the opinion of the court, the findings as laid down in the documents are not sufficient to warrant a conviction of the accused, then the court may decide against instituting trial or it may request the public prosecutor to collect further material, which will be of an exonerating nature also. After the trial has been ordered, the proceedings are entirely in the hands of the judge, and in the case of the courts attended by several judges [Kollegialgerichten], in the hands of the presiding judge. By studying the documents, the court finds out how the preliminary proceedings were conducted as well as the results obtained. However, except in a few instances, the court may make use of the preliminary proceedings for informational purposes only, so to speak, only as a jumping-off point for the main proceedings, which alone are decisive for the final decision. In these main proceedings the oral principle alone applies. Only that which is presented at these proceedings by the defendant himself, by witnesses, experts, and documents can be considered by the court in passing judgment, but not the interrogation transcript of the police or the public prosecutor. The presiding judge guides the proceedings. He examines the defendant who can make statements pertaining to the case in question, but who may not take the stand as a witness as is the case in American proceedings and who can also not be sworn in. Should the public prosecutor or the counsel for the defense desire to ask questions of the defendant, they may do so only through the presiding judge. The examination of the defendant is followed by the hearing of the witnesses and of the experts. This is also carried on by the judge. The public prosecutor and the defense counsel have the right to put pertinent questions to the witnesses and to the experts, which the judge must permit in accordance with the regulations within the framework of the code of criminal procedure.

The role played by the counsel for the defense must be described in detail. In comparison with his role in the Anglo-American procedure, he is not so important here. Whereas in Anglo-American procedures the prosecution as well as the defense, so to speak as two parties, submit their case for the decision of the court, in German procedures the investigation of the facts of the case in the trial, the rules concerning the extent of evidence to be collected, the serving of summons to witnesses for the prosecution and defense, without the prosecution or the defense filing any requests, are in the hands of the court. According to that, the public prosecutor and the counsel for the defense in reality only support the court in investigating the facts of the case, which is the duty of the court itself. Because of this role played by the counsel for the defense, it follows that in German criminal proceedings the defendant is represented by a counsel only in a comparatively small percentage of cases, and in all the other cases the defendant just does not employ a counsel for his defense.

The question regarding the contesting of a verdict rendered by a court of first instance demands thorough clarification. In this connection, we will demonstrate the meaning and the purpose of the nullity plea and of the extraordinary objection. We will prove that it was not National Socialistic thinking in terms of violence [Gewaltdenken] which gave rise and impulse to their introduction, but rather considerations regarding the technique of procedure. By extending the competency of such courts, which had to decide only in one instance, the necessity arose for a higher instance to be able to take care of reviewing decisions. To be sure, considerably eased regulations regarding the review of verdict rendered by special courts had already been introduced when these courts were first established. However, these regulations proved by providing a resumption of proceedings [Wiederaufnahme des Verfahrens] insufficient in practice, particularly after it became evident that economic offenses called for uniform laws throughout Germany. Considerable divergence insofar as the legal interpretation of the new laws was concerned and with regard to the meting out of punishment became apparent in the procedure of the different courts, through a constant surveillance, which became especially necessary in view of the changing economic conditions. To obtain uniformity in this respect, new opportunities for additional legal redresses were created. We shall demonstrate that the nullity plea is a method of procedure which has been taken over from the former Austrian law. The diversity in legal conceptions concerning the principle of ne bis in idem [double jeopardy] with regard to legal remedies will be treated in this respect.

The indictment also makes it necessary for us to decide how far a state may and can consider itself competent to extend its power to punish [Strafgewalt] acts committed abroad. Is it consistent with international law to prosecute foreigners for punishable acts committed abroad? The extent to which a state may take it upon itself to take action for acts committed abroad depends on whether such state inclines toward the principle of personality [Personalitaetsprinzip], the principle of territoriality [Territorialitaetsprinzip], the principle of protective law [Schutzrechtsgrundsatz], or the principle of universal law [Weltrechtsgrundsatz]. As can be seen from a study of comparative law and from the history of law, diverse and variable opinions are held about this in the different countries, and the science of international law after the First World War shows this in particular. We shall point out the basic principles which are contained in sections 3 and 4 of the Penal Code of 1870, and we shall find again in the Supplementary Law (Novelle) of 6 May 1940, which extends the sphere of authority of the penal law, and which is now being assailed by the prosecution, ideas drafted for the reform of the penal law conceived long before 1933. Article 153a of the Code of Criminal Procedure is, to a certain degree, intended to act as a safety valve against a too exaggerated application, and has in fact greatly reduced prosecutions, and it shall be dealt with in this context.

The discussion on the introduction of German law and the establishment of German courts in the Protectorate will cover the three decrees of the Ministry of Justice, which were also issued as a result of a decree published by Hitler in the form of a law, and an ordinance supplementing this decree, both of which were not countersigned by the Reich Ministry of Justice. In this connection, it is necessary to clarify the international relations existing between the so-called Protectorate and the German Reich. Are we concerned with a bilateral international treaty negotiated between Hacha and Hitler, an intervention, an annexation, or an occupation? From the subjective point of view, what the German public and what the defendants actually knew about conditions then prevailing will be decisive in each case. We shall have to discuss here and at other occasions—and this is not dependent on the above—whether within the scope of the indictment concerning a crime against humanity, the actually selected form of legislation and administration of justice is not also justified in its scope under different international conditions. Can one, to give an example, consider it inhuman if members of the Protectorate were subjected to the provisions of the German Criminal (Penal) Code regarding treason and high treason, if the provisions of the law governing occupied territories would also have justified the same penalties for aiding and abetting a hostile army?

With regard to the introduction of German law in the Eastern territories we must first of all consider that they were essentially divided into the following three groups, namely:

1. Territories which were part of the Union of Soviet Republics after September 1939;

2. The so-called Congress Poland [Kongresspolen], the principal part of the Polish Republic, which was administered under the designation of Government General, and finally;

3. The western parts of Poland, which before 1918 were made up mainly of the German provinces of Poznan, Upper Silesia, and other small parts of provinces. German jurisdiction was introduced only in areas mentioned under 3, and they were designated as “Incorporated Eastern Territories.” The former Russian territories mentioned under 1 were subordinate to the military and civilian governors, and the Government General mentioned under 2 to Governor General Dr. Frank. Both these groups were completely outside the administrative competency, or even the sphere of influence, of the Reich Ministry of Justice.

If, therefore, we have to concern ourselves with the question of the introduction of German jurisprudence only in the so-called Incorporated Eastern Territories, then we shall call attention to a point of view widespread in science and actual application, whereby a declaration of war renders treaties [staatsrechtliche Vertraege] meaningless between the parties at war. Not only was this point of view especially advocated in a detailed justification by the Reichsgericht, as the German Supreme Court, already after 1918, but it was also championed in French works on international law, as for instance in Foignet’s Droit International Public [International Public Law]. It will be shown that other states have in fact also accepted this point of view. The recognition that this viewpoint concerning international relations was actually followed in practice will be shown by an agreement concluded between Germany and the Soviet Union, which pertains to judicial procedure in civilian matters in Polish territories incorporated into the Soviet Union in 1940.

The answer to the question—which has already come up many times during the examination of witnesses by the Court—namely the question, whether it was permissible to apply the criminal ordinance for Poles [Polenstrafrechtsverordnung] also to those Poles who did not come to Germany of their own volition, will depend on whether we consider the introduction of German jurisdiction in the above-mentioned extent admissible. I don’t believe that the evidence presented by the prosecution covers a case which proves that a Pole who did not come to Germany voluntarily, was sentenced. Generally speaking however, we will have to take into consideration the fact that the Pole who came to Germany was subject to that law which then applied in his former place of residence.

So that the jurisdiction in so-called Night and Fog [Nacht und Nebelsachen—NN] cases, can be judged, we shall put in evidence that in the main the military courts alone were competent. Section 3, paragraph 2, of the Decree for Military Jurisdiction During Wartime [Kriegsstrafverfahrensordnung] formed the legal basis for handing over those cases to the general courts. This decree concerning military jurisdiction during wartime and special operations was issued on 17 August 1938, and published in the Reich Law Gazette 1939, part I, page 1457. It was only signed by the Fuehrer and Reichskanzler and by the Chef des Oberkommandos der Wehrmacht [Chief of the Supreme Command of the Armed Forces].

This decree fixes the scope of military jurisdiction and subordinates all foreigners and Germans to this military jurisdiction for all criminal offenses committed by them in the area of operations. According to section 3, paragraph 2, of this decree, military courts however are to prosecute such crimes only if it is judged necessary for military reasons. It is within their discretion to turn over the prosecution of criminal cases to the general courts.

On the basis of this legal foundation, and in accordance with an agreement between the Chief of the Armed Forces Legal Department, Dr. Lehmann—who has appeared here before the Tribunal as witness—and the former Under Secretary Dr. Freisler, prisoners held in Night and Fog cases were placed before a German court in the sense of paragraph 30 of the Hague Regulations on Land Warfare.

The fact that the proceedings [of an NN case] were kept secret in all its phases was justified for military reasons. According to paragraph 6 of the basic treaty of the Hague Regulations on Land Warfare, military interests come first, and then comes the protection of the civilian population. The administrators of justice could not decide about the scope of the military interests. It could never be the task of the civilian judicial authorities to judge whether the military commanders correctly interpreted the competition of military necessity in the sense of subparagraph 8 of the introduction to the basic treaty of the Hague Regulations on Land Warfare.

Within the framework of these military necessities we will also clarify the motive of intimidation which follows from this. A deterrent could, according to the views of the parties concerned, be achieved only by the severest punishment, with a judgment in the enemy country. The legal basis for this was given without more ado in accordance with those existing provisions of military law which correspond to international law. It concerned cases throughout which can be punished with death, according to general military law, such as espionage, sabotage, aid and comfort to the enemy, and illegal possession of arms. Is it then a violation of the law of humanity if allowance was made for the principle of a deterrent in another manner, and standards were introduced into the proceedings before the courts in Germany which, regarded absolutely, are attacked by the prosecution, but which have been introduced here to avoid an administration of justice which would pronounce the death sentence excessively? We will prove that in the proceedings before the Night and Fog courts, sentences of imprisonment were pronounced in an overwhelming proportion, and that the quota of death sentences was very small. It will be clearly shown that the deviations from the normal proceedings which were shown by the Night and Fog proceedings were all conditioned by the principle of secrecy. A full consideration of German criminal procedure will show that many limitations in the leading principles of German criminal procedure mean either no disadvantage at all, or at any rate merely a far lower degree of disadvantage than it may appear to a person accustomed to thinking only along American principles of procedure.

Article 3, paragraph 2 of the Rules of Military Criminal Procedure will also prove that the Night and Fog prisoners had been handed over to the civil authorities only for the purpose of the execution of the criminal proceedings, and that moreover the power of disposal over these prisoners was reserved for the offices of the Wehrmacht.

When we see that the Night and Fog proceedings had been taken over by the judicial administration by virtue of an order of the Fuehrer and by virtue of the delegation of the military authorities competent therefor, the question of the relationship of international law to the German State law will also be submitted for consideration. The German science of political and international law has always unanimously advocated the view that state law takes precedence over international law. This would be of significance in each case for the question of a consciousness of injustice on the part of the defendants.

The prosecution has also concerned itself with “lynch justice” [Lynchjustiz]. The defense will present documents proving that the judicial authorities criminally prosecuted, in spite of the violent opposition of the Gauleiter concerned, Germans who had mistreated or shot Allied fliers forced to abandon their planes, and that they protected Germans who treated such Allied fliers humanely. This positive attitude of the judicial offices will constitute an illustration of the relations of the powers [Machtverhaeltnisse] at that time. The Party and the police in their attitude were opposed to each other. The leader of the Party Chancellery had ordered all State and Party offices not to interfere with the execution of “lynch justice” on Allied fliers. The Minister of Justice could not ignore this order. He applied it in a manner that could be interpreted as quashing the proceedings. This weakening of an order instigated by the Party and the cases in practice mentioned show here, too, the basic tendency in the consideration of the actual relation of the powers.

Arguments from the aspect of reprisal will also be made, which are supplementary to the question of “lynch justice.”

The German Law of Pardons needs also to be presented and dealt with in detail, since it represents the basis, after all, for the proper evaluation of numerous documents presented by the prosecution, including the report lists of the Reich Ministry of Justice in matters of the death sentence. It has been fully codified, and we will refer to the numerous legal provisions. The entire system of pardon will justify the statement that it was most painstakingly built up with every safety measure and must withstand any criticism as a system. The law of pardon was incumbent upon the head of the State. Hitler transferred his executive power to Reich Minister Thierack, even for death sentences, whereas the latter’s predecessor in office, Reich Minister Guertner, and after his death, Under Secretary Schlegelberger, were restricted in the execution of the law of pardon in that they could recommend to Hitler to pardon a person sentenced to death, but they themselves could not pardon a person. What resulted is necessarily an orientation toward the utmost which could be obtained from Hitler. The manner they used and how the whole tendency on the part of the participating offices was to exhaust fully the possibilities for pardon which were offered will be shown in the evidence.

From the individual provisions we will see that in matters of death sentences, for example, the Oberstaatsanwalt, regardless of whether the condemned person had personally submitted a petition for pardon, had to make a thorough report on the question of pardon after he first gathered the attitude of the court, the presiding judge, the prison authorities, the police, and still other offices prescribed in special cases. This report goes to the Generalstaatsanwalt who on his part must then state in detail his attitude about the pardon report. In the Reich Ministry of Justice, special Referenten had been appointed for dealing with pardon questions. These Referenten were supported by numerous co-workers. The co-worker had to present an opinion with an exact report of the facts, an opinion on the legal question of the individual case, a criticism of the judgment with regard to the factual and legal aspects, and a detailed statement on the question of pardon. The Referent, on his part, as well as the division chief, had to add their attitude to this opinion. Only if all reporting offices, the co-worker, the Referent, and the division chief unanimously recommended that the sentence be carried out was the matter designated as a so-called smooth affair [glatte Sache]. In this case the Referent in charge of death sentences reported personally to the Minister, calling special attention to all the circumstances of the case worth remarking on. On the other hand, even if one of all these participants recommended commuting the death sentence to a prison sentence, then the co-worker had to present his detailed opinion in person to the Minister; and the Referent, the division chief, and the under secretary stated their attitude at the request of the Minister.

The same procedure was also used in principle in cases of so-called immediate execution [Blitzvollstreckung]. This concerned cases from the last years of the war, in which the facts of the case and the legal question to be decided on were straightforward; moreover, it concerned cases in which, on account of the fact that the deed had caused considerable stir among the public, a special deterrent effect should be obtained by carrying out the sentence as soon as possible after the deed had been committed and judged. The only difference in dealing with these immediate executions and the usual procedure was that all reports and opinions were given by telephone, telegraph, teletype, or verbally, and on account of its being a straightforward case no files were submitted.

The indictment also contains the charge that the amnesty laws were administered according to political view. The provisions in question will be discussed in detail when the evidence is presented.

Hitler’s constitutional right to quash pending criminal proceedings [Abolitionsrecht] will be shown in its practical meaning.

Regarding the carrying-out of sentences we will deal with the legal provisions and the regulations applicable in penal institutions. The defense will prove that no crimes against humanity were committed in penal institutions of justice by its officials with the exception of occasional violations which are unavoidable even under the best directions. The rules of the strict legal provisions of the German Penal Law against the ill-treatment of prisoners will emphasize this point. The cases mentioned which date from the last days before the collapse offer, as a singular sign of that moment, no basis for a general judgment of the German execution of punishment and will be referred to as each individual case comes up.

The action of the Spruchrichter dealt with in the indictment and the charges raised in this connection will bring the legal position of the German judge up for discussion. We shall see the judge as an independent official who is not bound to directives but only to the law. We will discuss the positivism of the German interpretation of law. We will deal with the prosecution’s charges arising from the directing regulations. We will show that they are merely a reference to the motive and aims of the law in question, and that they, to some extent, give a clear conception of the policy of the legislator regarding crime. They are a clue to the way in which the legislator imagines punishment should be awarded by the judge. They are in no case a general directive or a directive pertaining to an individual case.

In dealing with the position of the public prosecutors we will refer to the principle of legality which is laid down by law, and according to which the public prosecutor was bound to prefer a charge as soon as there was sufficient suspicion that the criminal facts as laid down in a legal provision existed.

In conclusion the defense will also deal with the legal questions, arising from Control Council Law No. 10 itself. We know that the Tribunal has been called together in order to pass judgment on the basis of this law.

On the basis of this actual fact and in compliance therewith, we will for practical reasons refrain from repeating the relevant objections already raised in the proceedings before the IMT and other proceedings before similar Tribunals in session. On account of these considerations we will restrict ourselves to the real legal questions as to whether an indictment is permissible from the point of view of conspiracy in war crimes and crimes against humanity of Control Council Law No. 10. In this respect my colleague, Dr. Haensel, will provide detailed statements hereon in due course.

At the beginning of the evidence for the defense and in connection with the opening statements on behalf of the individual defendants, the defense intends to call in two experts for the legal questions of general interest, namely Dr. Jahrreiss, Professor of Public and International Law at the University of Cologne, and Dr. Niethammer of Tuebingen, formerly attorney at law, now Honorary Professor of Criminal Law and Criminal Procedure.

As far as documents being introduced with regard to the general questions discussed—

We will not be able to produce Dr. Jahrreiss at this time. Professor Jahrreiss cannot get away; he will only be available later on in July, and perhaps a suitable moment will come then when he can be examined when we have dealt with the cases of the officials of the Ministry of Justice.[72]

As far as documents being introduced with regard to general questions discussed, they will be handed over during the defense of the individual defendants. For the purpose of survey we will at the conclusion hand over the documents relative to a particular subject compiled in a special document book.

The defense has distributed the subjects which have arisen as a result of my survey among the individual counsel for the defense. Counsel in question will go into these cases during the proceedings and in particular at the time of the closing statement.

The subjects are classified in the following manner:

1. General questions on public law and international penal law—Dr. Schilf.

2. Legislative—machinery and technique—myself [Dr. Kubuschok].

3. Relationship between judicial authorities and police—myself.

4. Relationship between judicial authorities and the Ministry of Propaganda and the news service in the Nazi State—Dr. Schilf.

5. System and structure of Reich Administration of Justice—Dr. Schilf.

6. Introduction of German law and German jurisdiction in the Protectorate and the Occupied Eastern Territories—myself.

7. Sovereignty of justice in the incorporated and occupied territories—myself.

8. German court organization, Special Courts and People’s Court—Dr. Brieger and Dr. Grube.

9. German criminal procedure—Dr. Doetzer.

10. Extraordinary objection—Dr. Grube.

11. Nullity plea—Dr. Schilf.

12. Retrospectiveness of penal laws and legal analogy—Dr. Aschenauer and Dr. Schilf.

13. Types of perpetrators—Dr. Schubert.

14. Military penal law—Dr. Koessl.

15. Independence of judges and directive measures—Dr. Aschenauer and Dr. Schilf.

16. Law of pardon—myself.

17. Execution of sentence—Dr. Marx.

18. Lynch law—Dr. Orth.

19. Sterilization and Euthanasia—Dr. Orth and myself.

20. Conspiracy and Control Council Law No. 10—Dr. Haensel, Dr. Doetzer, and Dr. Wandschneider.

May I now begin making my statement for the defendant Schlegelberger?

Presiding Judge Brand: Do you have that in the translated form for us? We have it, thank you.

C. Opening Statement for the Defendant Schlegelberger[73]

Dr. Kubuschok: If, in my statement concerning the defense in general,[74] I have just pointed out that the administration of justice in the National Socialist State cannot be judged separately but must be judged in the light of the whole administration of the Reich and its head, the dictatorship, I shall have to refer thus in defending the defendant Schlegelberger again and again to his personality, quite apart from dealing with the objective facts as propounded by the prosecution in order to judge and interpret actions in their proper light.

Franz Schlegelberger was, after many years of service to both the administration of justice and the jurisprudence, already Under Secretary when Hitler came to power. He kept this position until August 1942 when Hitler, according to his pronouncements wanted to build up a National Socialist administration of justice. Schlegelberger had always been dealing with civil law. We will outline this, his activity, in general. When in January 1941 after the death of the Minister of Justice Guertner, he took over the administration of the Ministry of Justice as the then oldest Under Secretary according to rank, so to speak; only then did he, in this position, and to the extent of that position, have to deal with criminal cases.

If the prosecution on account of this, his position, has indicted him on these individual counts and included him in the common legal framework of conspiracy, the defense will first of all show that Control Council Law No. 10 does not provide a legal basis for an indictment of conspiracy to war crimes and crimes against humanity. My colleague, Dr. Haensel, responsible for the entire defense, has taken over this subject and will make the necessary statements and put forward motions. In addition, I, myself, will submit sufficient evidence to prove that with a person of Schlegelberger’s caliber, conspiracy and violent thinking are incompatible. I shall submit proof, as to his basic attitude during the whole of his tenure of office, that he could never have either favored or promoted principles of violent thinking, that on the contrary, all his activities were aimed at preventing or at least modifying the course set by Hitler’s dictatorship. We shall see, how he wrestled with the opposing forces of the Party, and how unequally distributed the powers were, and how his defensive attitude was breached but forcibly. We shall learn how much Hitler had always disliked the administration of justice and its expert administrators, and that, at a time, when not only the whole of the administration in Germany but also the entire public life, even to a certain extent private life, had already been “coordinated” and shaped according to National Socialist ideas. On 20 August 1942, he had to realize the fact that he had to build up a “National Socialist administration of justice.” Does this not constitute the truest judgment of Schlegelberger that he be judged by a man, who after all, was best qualified to judge? Is it not evident that the administration of justice under Guertner and Schlegelberger had done their utmost to face the avalanche? Is Hitler not best qualified to testify against the charges brought by the prosecution, namely that Schlegelberger had lent himself to the carrying out of National Socialist ideas of violence as personified by Hitler?

With this point of view in mind we shall have to judge the defendant Schlegelberger: A man, known to us only by his work, performed with integrity, and whose activities, viewed from National Socialist aspects, Hitler criticized in the above-mentioned way both in his Reichstag speech on 26 April 1942 and in his decree of 20 August 1942. Such a person has a right to point out: “The charges brought by the prosecution which superficially regarded, appear to be against me, and the charges that the prosecution has brought against me in order to incriminate me for my 10 years of service as Under Secretary cannot be judged as isolated facts and without considering motives but must be evaluated as a whole.” Thus, we will best be able to gain breathing space after the speech of the prosecution, which is necessary in order to reach impartial judgment and which culminates in the conclusion that Schlegelberger “had indeed played a prominent part in the destruction of German law,” a reproach which he rightly rejects: with which also the statement of the British Broadcasting Corporation on the occasion of his retirement from office in August 1942, namely, that with Schlegelberger, the last judge in Germany, had disappeared—is incompatible.

Schlegelberger, under secretary for civil law, certainly knew how to supervise the orphaned Ministry of Justice for a year and a half in an administrative capacity. The one who succeeded him, his appearance already threateningly forecast, and to the stemming of whose course Schlegelberger devoted his whole self, escaped judgment. The aspect of being the representative [Gesichtspunkt der Repraesentanz] which obviously has influenced the prosecution essentially, has to be disregarded.

We will also have to take the fact into account, that Schlegelberger’s position as interim administrator of the Reich Ministry of Justice, did by no means equal that of a minister. If, in spite of these hectic times when everything was being infected by the National Socialist virus, he succeeded in retaining the position taken over from Guertner, his decision alone to remain in office until the limits of what could normally be expected of anyone, certainly not an easy decision, would fully justify this step. Judging by his personality and studying in detail the real and true situation during those years we shall explain what really was behind the Rostock speech mentioned by the prosecution. Evidence will be offered as to Schlegelberger’s real relations with the Party and how this was evident in the policy he pursued concerning questions of personnel.

His attitude toward Hitler will be subject to a careful examination. We shall be unable to do justice to this task if we do not also acquaint ourselves with those who blindly followed Hitler, and rendered the task of Schlegelberger and prior to that, Guertner’s, so difficult. Freisler, his antipode, whom Hitler by entrusting him with all matters concerning criminal law had made into a guardian of National Socialist ideas within the Ministry of Justice and all the other party officials who hated the last bulwark of constitutional thought.

With reference to individual counts of the indictment I shall point out that as “seditious undermining of the military power” [Wehrkraftzersetzung], so-called passive defeatism only became a punishable offense in 1943, and it was precisely for this purpose that the competency of the People’s Court was established as per decree of 29 January 1943. The practice of seditious undermining of the military power, to which the indictment refers, therefore did not take place until Schlegelberger’s retirement. At the time of Schlegelberger’s tenure of office these cases of defeatism were judged according to the Insidious Statement Law [Heimtueckegesetz] and were not punishable by death but by a maximum penalty of 5 years’ imprisonment. The extension of the German criminal jurisdiction to include crimes committed abroad as well was practiced before Schlegelberger took over the administration.

I shall deal in detail with the legal question of the extension of German law to the occupied territories and I shall throw some light on the origin and the application of the ordinance concerning crimes of Poles and Jews. I shall show by means of the documents already submitted by the prosecution what demands were made by the Party concerning the treatment of the Poles and Jews and how these requests were opposed by law and in practice. Schlegelberger’s general attitude toward the Jewish question will be the subject of the discussion.

Even if the prosecution connects the defendant Schlegelberger with the extradition to the police of so-called asocial persons as well as of Poles and of Jews, the defense will prove that those orders were only given according to an agreement made between Himmler and Thierack in September 1942. Previous, special cases only concerned direct orders by Hitler given to the police and which could not be prevented by the administration of justice. We shall see that the police had started during the time of Guertner to remove prisoners from the prison by command of Hitler if Hitler considered the sentence passed during the criminal proceedings, a too mild one. Only in order to prevent this if possible or at least to restrict it did Guertner insist that he be informed of this order at the same time as were the police. It was only because of that request that the administration of justice dealt with these matters at all. It will be proved that everything possible was done in order to prevent extraditions to the police.

I shall also speak of the practice of granting pardons and find here also a confirmation of Schlegelberger’s general attitude.

The indictment also deals with the so-called euthanasia. We shall see that Schlegelberger opposed the carrying out of the euthanasia program soon after taking over the administration. He obviously succeeded, for we shall establish that the measures were stopped in August 1941 and were only started again at the time of Thierack as can be seen from the meeting described by the witness Suchomel.

Concerning sterilization, we shall offer abundant evidence to prove that the practice of the courts for protecting the hereditary health of the German people was unobjectionable, that those courts had examined conscientiously whether evidence as to the facts required by the law had been submitted and especially sterilization for political or racial reasons was never decreed. I shall produce a witness to show that this procedure had been carried out in an unobjectionable way, even where Jews were concerned.

Regarding the question of the Night and Fog cases, it will be explained for what reasons and with which results the Night and Fog cases were taken over by the general courts. It also will be set forth what regulations were in force up to the date of Schlegelberger’s retiring from office. The extent and the consequences of restricting the proceedings necessitated by maintaining secrecy will be explained.

By submitting documents I shall present evidence about the political development of the National Socialist State and the structure of its administration. I shall present documents referring to legal provisions and their explanations concerning the questions raised by the prosecution. Finally, I shall submit several affidavits which deal with certain questions and help to form a judgment of Schlegelberger’s entire personality. I shall produce a witness for the political and administrative conditions in the National Socialist State. Another witness will, as already mentioned, give evidence on the practice of the courts for the protecting of hereditary health of the German people and on general questions regarding sterilization. Finally, I shall name as witness the personal Referent of the defendant who for many years held this position up to the time of Schlegelberger’s retirement from office, and who by virtue of his knowledge gained through professional and personal experience will be able to give evidence on numerous questions which have to be discussed.

D. Opening Statement for Defendant Klemm[75]

Dr. Schilf: May it please the Tribunal. By way of introduction, I should like to call attention to the fact that the indictment also clearly implies with regard to my client Herbert Klemm that, permeated as he was with National Socialist convictions, his one endeavor was to realize, by judicial methods and throughout the judicial field, the aims of National Socialist despotism. The indictment also, indeed, implies that he was acquainted himself from the start in detail with the great extent of these aims. The prosecution has tried, in connection with each action and with each event that came to light anywhere in the files, to refer everything with which my client was concerned back to that fundamental conception. Yet in my opinion the prosecution does not make any effort to embark upon proof that the defendants had come to a mutual agreement in their own minds, such as must constitute the prerequisite for the conspiracy of justice, for the furtherance of the Hitler regime as alleged by the indictment. Instead, the prosecution is content to trace in every statement and every action simply a sign of malicious intent and bad faith without stopping to consider how such actions are to be estimated in the light of historical development and within the limits of the phenomenon as a whole and the practical possibilities. Just as the indictment desires to see in the legislative power [Rechtsschoepfung] conferred upon the judge by the alteration of paragraph 2 of the German Criminal Code an example of the judicial intention to try cases unrestrictedly and arbitrarily, without attention to legal guaranties, so also my client Klemm is credited with completely false motives in detail. Just as it will be proved by the defense that such legislative power for the judge had already been planned, long before 1933, in draft proposals for reform, with the object of creating the necessary synthesis between merely codified law and the actual development of law through the giving of legal judgments, so also shall I show, in my defense of the defendant Klemm, in general, that he, too, was concerned, in his measures, with the preservation of real justice. Reference will therefore inevitably be made to the background of historical development behind the measures with which he is charged, to the related points in the German legal system, and to the actual distribution of power existing during the Hitler regime. In this connection a great deal will depend on the view that is taken of his position, his potential influence and the limits of his authority.

In particular, I shall divide the subject matter of my proof into sections.

In the first place, it will be necessary to begin with the fact that, outwardly, the defendant Klemm has to bear a certain amount of odium: he had joined the NSDAP before it took over power, and he remained in it until the capitulation; he was at first Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice, he was chief of liaison with the SA and reached high rank in that organization, he was a group leader in the Party Chancellery, and he was finally to become Under Secretary in the Reich Ministry of Justice, the last position he held, and a personal friend of and very close collaborator with Thierack, the Minister. The indictment evidently intends, by giving this outward impression, to exhibit Klemm as a man who considered justice to be a means, and treated it as a means, to exclusively political ends. I shall prove that this was not the case. In order to demonstrate the seeming contradiction between outward appearance and actual private character, I consider it my duty to give the Tribunal a comprehensive picture of the personality of my client as a jurist and as a man. It will become evident that he was and remained a simple and straightforward person, even after he rose higher in his career, that he was a man of sensitive disposition and refined feeling and always endeavored to act objectively and above all justly. I shall therefore have to ask my client to explain in the witness box the ideas he had conceived as to the aims of the NSDAP, the hopes he had before him in the legal and political field, and the way in which he believed it possible that the political intentions of the leadership of the state could be combined with the idea that law has to prevail. He will have to explain to the Tribunal how many things he actually did not know in order to enable us to gain an accurate picture of the situation at that time and of the developments.

So far as the separate phases of the activity of the defendant Klemm are concerned, it must be said—

The indictment takes as the first phase his activity as Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice. The two charges specially raised against him in this field are concerned with the so-called “more severe interrogations” through organs of the Gestapo and with the fact that he was the Ministry’s chief of liaison with the SA. I shall prove that it was not the duty of the defendant to suggest in certain cases “more severe interrogations,” in other words, maltreatment of prisoners by the Gestapo. It was, on the contrary, his duty to prosecute such cases through criminal proceedings, since also the Gestapo and its organs were prohibited from ill-treating prisoners. In this connection I shall be able to take the opportunity to describe the attitude of my client by reference to the documents which were submitted in the IMT trial. It was the defendant Klemm who as an official in the Ministry of Justice of Saxony suggested the strict prosecution which was made so much of both in indictment and in the judgment given in the IMT trial of those SA men who had rendered themselves guilty of ill-treatment of prisoners in the concentration camp at Hohenstein in Saxony. There is no ground for the assumption that Klemm’s attitude changed at a later date, when he worked in the Reich Ministry of Justice.

The position of a chief of liaison between the Ministry and the SA leaders will be described by me through reference to the documents. The judiciary as a public authority, had the duty to inform the SA leaders of any prosecution or condemnation of a member of the SA. It was the purpose of such information to give the SA leaders the possibility of removing criminal elements from their ranks. This purpose was known to the Reich Ministry of Justice. The chief offices of both organizations had to exchange information and experience and were obliged to ascertain in which special cases they had to be interested. It was necessary to appoint a special Referent for this purpose, merely in order to simplify the handling of these matters. This post was filled by my client Klemm, since he was simultaneously both a member of the SA and of the Ministry of Justice. I hope, indeed, to prove with special effect that it was absolutely opposed to Klemm’s conception of his office as such a liaison chief to suppress criminal proceedings against SA members or protect them against prosecution, but that on the contrary he thought it necessary to support vigorously the interests of justice against the SA leaders. An individual case will give me the opportunity to demonstrate how also in this field Klemm was guided by legal consideration alone, and this individual case will be symptomatic of the attitude of my client.

In order to be able to judge correctly the activity of my client in the Party Chancellery, I consider it my duty to describe first of all the sphere of work and problems with which the Chancellery itself had to deal. This seems to me all the more necessary, as evidently completely false ideas of this organization are prevalent. I shall therefore have to show that by reason of legal regulations the latter had to take part in all the legislative and administrative work done by the Ministry of Justice and that it was not simply an office that carried out tasks concerned purely with Party politics. In the constitutional structure of the Third Reich, the Party Chancellery had to perform public functions. I may already at this point draw the attention of the Tribunal to the fact that my client is not affected by count four of the indictment, in spite of the fact that he was employed in the Chancellery of the Party. It is indeed a significant indication that the prosecution has formed an incorrect view of the Party Chancellery, if an official could be employed there who did not belong to the corps of leaders of the Party.

An explanation of the bureaucratic structure of the Party cannot be avoided; its division into separate departments and groups will have to be described. The defendant Klemm was at the head of only a subordinate group in the Party Chancellery. Its number was IIIc. I would ask the Tribunal to be so good as to take due note of this number IIIc in my speech for the defense, so far as the latter is concerned with the Party Chancellery, and also when I come to explain the documents relative to the Party Chancellery. My client was employed exclusively in this legal group. This outward sign alone is an important circumstance to be considered in arriving at a correct estimate of the work of my client. The special task of this Group IIIc was to deal with all matters which affected law, codification, and the administrative work of the Ministry of Justice. The officials in this legal group remained, as did Klemm also, officials of the Ministry of Justice; they were merely delegated by that ministry. They also therefore represented in the Party Chancellery the idea of justice and the concerns of their own ministry. Whenever different questions were raised in Group IIIc, for example, questions as to the legal disposition of the affairs of foreign peoples, a different department or group of the Party Chancellery dealt officially with and decided upon the matter. Owing to this restriction of the field of their work the legal group could only raise objections against the treatment of any matter in another department if formal questions were handled. The legal group had no right of appeal if a matter had been decided on principle by other groups. Thus, it will be shown that the decree about penal law with regard to Poles was not dealt with or decided upon in Klemm’s legal group but in Group IIIa of the Party Chancellery, which was concerned with questions on ethnic origin [Volkstumsfragen]. The defendant Klemm, therefore, could not exercise any influence whatever, during the period of his employment in the Party Chancellery, on the provisions of this law.

Through further evidence it will be made clear that Klemm’s position in the Party Chancellery, as a consequence of the latter’s special method of working, could only have slight influence on decisive matters. Really important affairs concerned with politics or both politics and law, so far as they may interest the Tribunal and the prosecution, were not handled by the legal group headed by Klemm.

The officials of the Party Chancellery, so far as they were group leaders, had no influence whatsoever on politics. On the contrary, this was done by the Party’s own office. The latter had no state functions as had the Party Chancellery. The NSDAP had offices for agricultural policy, people’s welfare, people’s health, a national legal office, an organization of Germans living abroad, and many more. There the political principles were planned, there the influence was exercised that found expression in the sentence: “The Party gives orders to the State.” All these offices of the NSDAP must be separated clearly from the Party Chancellery with its function of a public nature. These Party offices transmitted their plans through the competent “Reichsleiter” directly to Hitler as the Party leader and head of State.

Also the position of Bormann must be explained. He also had a variety of offices and functions as Reich leader, secretary of the Fuehrer, and leader of the Party Chancellery. At the time when Klemm was working in the Party Chancellery, Bormann was regularly in the Fuehrer’s headquarters and thus away from Munich. All important questions of a general nature, also those affecting justice and its policies and organizations went directly to Bormann in the Fuehrer’s headquarters. There Bormann himself ordered that most of the matters be handled at once. In such cases Klemm’s legal group often received no information at all of his decision, or at the most a copy subsequently. When Bormann transferred a job to the legal group in Munich he included as a rule instructions for the handling of the matter. When things were handled in this way by Bormann no objections could be raised. Moreover, the evidence I will produce will destroy the rumor that my client had close contact with Bormann. They disliked each other very much. The main reason was that Klemm did not accede willingly enough to the wishes of Bormann. It occurred only very rarely that Klemm reported to Bormann. To a much greater extent than other subdepartment heads of the Party Chancellery, Klemm also informed Bormann about his own point of view.

After I shall have tried to clarify the unclear and dark picture of the Party Chancellery, I shall discuss in detail the working method of my client and I will outline in what matters he participated and how far he is, therefore, responsible and in what matters he did not participate.

(a) A series of documents submitted by the prosecution carry the dictation symbol of Bormann; I shall show that all these documents can have nothing to do with my client, Klemm. They were prepared solely by Bormann and his staff at the Fuehrer headquarters. No copy was sent to the Party Chancellery at Munich, so that the legal group never received any knowledge of them. This is the reason why it is so important to draw attention to the symbol of the legal group, namely, IIIc. Klemm neither prepared, nor had any knowledge of, any letters of the Party Chancellery which do not bear this file number. Just as an example I mention Thierack’s letter to Bormann on the collaboration of the judicial authorities in the extermination of Poles, Jews, and gypsies (NG-199, 199A, Pros. Ex. 243). As “Top Secret Reich Matter” this writing never reached section IIIc of the Party Chancellery.

(b) I will show that the defendant cannot be held responsible for a possible crime in which the huge organization of the Party Chancellery may have been involved, but not the defendant, if he had never participated in the planning, and if he could never have received information about it. It is my opinion that this is also not possible by using the concept of conspiracy or the broadly defined forms of participation according to the Law No. 10 of Control Council. Such a reasoning is not possible especially if I will prove how strongly Klemm advocated—especially in the Party Chancellery—the idea that law has to prevail in a state, and how he tried to prevent that Party organs be influenced in any unfavorable way. Every day the Group IIIc received complaints against the justice, the judges, and against the offices of the administration of justice which wanted to influence pending proceedings or even to change sentences which had already been passed. Work in connection with such complaints made up the biggest part of the working time of this group. In all these cases the complaints were rejected by stating that the judge is independent. I shall submit evidence to show that the Party Chancellery, particularly Group IIIc, expressly forbade all political leaders (that is, the Fuehrer Corps of the NSDAP) to interfere in the jurisdiction. It will be demonstrated that this circular decree was issued on Klemm’s initiative. I shall disprove the assertion of the prosecution and shall show that my client advocated emphatically the punishment of Party members who were found guilty of an offense. Accordingly, Klemm did not use his position in the Party Chancellery to keep justice under pressure but on the contrary tried to promote the interests of justice and the idea that law has to prevail in a state. In the year 1941, for example, he succeeded in persuading Bormann in a memorandum to reject the plans of Himmler, who attempted already at that time to transfer the jurisdiction over the Poles to his police.

(c) The documents submitted by the prosecution, so far as they really affect the legal group of the Party Chancellery, will not be able to invalidate my above assertions. When I will submit the evidence for the defense I will have the opportunity to explain the purpose and the context of these documents. It will be possible to correct many misinterpretations.

In this connection it seems to be necessary to explain briefly the fact that Klemm’s influence in the Party Chancellery was never so great that it could have played any part in the appointment of Thierack to Minister of Justice in the year 1942. Many a person who could not know the actual events and their background may have had some fantastic ideas in this respect. The explanations of the defense will destroy these conceptions.

(d) With regard to the activity of my client as Under Secretary in the Reich Ministry of Justice, it will be the task of the legal presentation to separate those actions and measures for which he is responsible from those for which he is not responsible. Also with regard to this point I shall emphasize my point of view that on basis of Law No. 10 of the Control Council, my client cannot be held responsible for what he himself did neither instigate nor approve. In order to be able to find the facts which will serve as the basis for such legal arguments, I must give you during the proceedings of evidence a detailed picture of my client’s position as Under Secretary, of his working field, and of the extent of his personal influence. Even externally the position of the Under Secretary had changed considerably since the appointment of Thierack. While before this time the Under Secretary in the Ministry of Justice stood on principle between a section chief and the minister, after that time his function declined to the extent of being a figure [figurehead] beside the minister. Formerly the Under Secretary had a broad working field and had authority to make important decisions himself, and only the most important matters reached the minister himself, such as bills or critical matters with regard to policies of the State and of justice. Thierack himself on the other hand, handled all matters with regard to the administration of penal law which the section chief was not permitted or did not want to decide, and he degraded the under secretary to a position in which the latter could merely give his opinion like any other expert. It is correct, that from an external point of view the working field of my client seemed to be greater than that of his predecessor, Dr. Rothenberger. The sections of Ministries III (legislation in the sphere of criminal law), IV (administration of criminal law), and V (execution of sentences), which were not under the latter’s jurisdiction were formally reassigned to Klemm. This seeming extension—my client was thus practically in charge of the whole Ministry of Justice with all its main sections but with the exception of section XV (section for secret matters) which was already in the process of dissolution—actually resulted in a curtailment of his executive powers. Only in a limited field did he receive the authority to make independent decisions, namely as chief of section II, which was concerned mainly with educational problems and whereby Klemm was entitled in personnel matters to propose appointment and promotion of officials up to the grade of Landgerichtsdirektor and officials of equivalent rank. In all other fields he was subjected to the domineering orders of the minister in the same way as every other official of the Ministry. Although he could call for the report of an expert and could thus bring a matter to be decided within his sphere, he was prevented from doing so if the minister himself reserved the final word for himself. Through presentation of my evidence it will be made clear how Thierack, because of his previous career, directed his interest, perhaps his only interest, to problems of criminal law and execution of sentences.

Thus, we will recognize that the above-mentioned main sections of the Ministry were only formally under the jurisdiction of Klemm and that no change “in the line of the direction of justice,” as Thierack expressed it in a discussion of the section leaders on 7 January 1944 (NG-195, Ex. 45) resulted from the appointment of a new Under Secretary. It will be proved through the evidence how little the Under Secretary could care for other sections, and that because of the external circumstances, as for instance the evacuation of whole sections from Berlin, he was only rarely present at conferences with the minister or was left out intentionally.

(e) This limitation of the tasks of the under secretary through the organization was furthered through the personal qualities of the Minister, Thierack. A picture of Thierack will result from the documents and the statements of witnesses. He was an autocratic, brutal, and even a rude person. He pursued his views and objectives with remarkable stubbornness. Accordingly, he was hardly to be persuaded from an opinion once formed. He tolerated no one next to himself in his struggle for power. For such a person it must have been easy to suppress such a soft and yielding personality as Klemm. Thierack was not interested in problems of the jurisprudence in concepts of law. He thought that he was a politician and merely a practitioner of the administration of justice. The contrast in the characters had an especially unfavorable effect on Klemm’s method of working since Thierack thought he could treat Klemm merely as an official dependent on him personally. That resulted from the previous personal relations of the two men. When Thierack filled the post of Minister of Justice for Saxony immediately after the seizure of power by the NSDAP, Klemm was his adjutant. When Klemm after many years again had to come into personal contact with Thierack through his appointment to under secretary, he was in the opinion of Thierack, not more than his adjutant again. When he contacted his Under Secretary Klemm, his manners were just as rough as in his contact with other subordinate officials. Even in the presence of other officials he showed tactlessness, and treated him, too, with disdain and certainly not as a “friend and confidant,” as the prosecution obviously assumes. Thierack would not attach such weight to an opinion voiced by Klemm as would have been appropriate because of the latter’s official position. In my defense plea this personal relationship is of importance, so that it must also be shown that Thierack was an extremely reserved person. He disclosed his plans and intentions to nobody before they were carried out. He kept the most important political-judicial events and decisions secret even from his under secretary. When he received the visits of other Ministers, or higher Party and SS officials nobody else was present as a rule. This was particularly true in his contacts with Himmler and the people surrounding him, such as Kaltenbrunner. Of the contents of the discussions Klemm like the other officials of the Ministry was not informed until a decree of Thierack was published for the individual sections of the Ministry.

As to the outside Thierack used Klemm only if he considered it as advisable to emphasize his position as Under Secretary. Thus, Klemm signed legal decrees not really as deputy of the Minister who was absent, but only when Thierack thought that he should put his signature under a document of little significance. Klemm had to sign the correspondence with other ministries if Thierack preferred this procedure for reasons of prestige. This is the only reason for the fact that the so-called directing letters [Lenkungsbriefe] to the presidents of the Appellate Courts Stuttgart and Hamburg do not bear Thierack’s name but that of Klemm in spite of the fact that it was Thierack who, in individual reports, complained about the sentences as being too light.

(f) Starting from this general statement with regard to the evidence concerning Klemm’s position as Under Secretary, I will have to discuss in detail the documents submitted by the prosecution and the statements of the witnesses. Here it will be proved that the main counts of the indictment have no relation at all to the activities of my client. Almost all the measures which the prosecution declared as objectionable, were completed when Klemm took over the position of Under Secretary. The special regulations against members of foreign nations were issued, the Jews were already excluded from the jurisdiction of the justice authorities, the so-called transfer of asocial “prisoners to the police”—handled by department XV, which was never subordinated to Klemm, not even formally—was carried out. My client practically had nothing to do anymore with the Nacht und Nebel cases. The interpretation of the laws by the courts was distinctly crystallized; a steady practice had already developed during the preceding 4 years of war, when the sentences became more severe because of the conditions caused by the war. The prosecution did not submit any evidence showing that Klemm during his time in office as under secretary advocated more severe sentences, especially in cases of high treason. The award of punishment and the granting of clemency took place in accordance with distinctly developed standards. In this connection I will have to demonstrate in detail the proceedings which developed for the clemency questions in cases where a death sentence had been imposed. It will be proved that Klemm did not adopt Thierack’s severity-on-principle [grundsaetzliche Haerte], but that on the contrary, especially if the absence of the Minister offered an opportunity, he was inclined to be lenient. Impressive examples for this fact will be given to the Court from the document book of the prosecution 3-L, Document NG-414, Prosecution Exhibit 252.

In this connection the opportunity will arise to prove in general that it is only a mere assertion of the prosecution that the Ministry of Justice illegally ordered that a death sentence be carried out. Klemm did not participate in the issuance of directives concerning the clearing of jails when the enemy approached. These were affairs which were ordered by the executive department of the ministry (Dept. V). Evidence will be submitted which will prove that my client had practically nothing to do with Department V. They will prove that all decisions in these questions were always made by Thierack, without consulting his Under Secretary. Concerning the individual case about the illegal murder in the penitentiary Sonnenburg, the evidence obtained up to now through the cross-examinations of witnesses will be supported by additional evidence. It will clearly be shown that the Ministry of Justice was not responsible for these measures. It will be seen that Klemm did not know anything about the common plan of the Reich defense commissioner and the general public prosecutor and that therefore, he did not have the possibility to prevent that their intentions were carried out.

By reference to individual cases I will prove that, in accordance with the plea made by the entire defense the judiciary did not do anything which made the lynching of Allied fliers who were shot down possible. The contrary will be proved. It was Klemm who ordered that criminal proceedings should be started against Germans who had killed Allied fliers illegally. The disputes with the Party offices with regard to these orders will be shown. Furthermore, it will be proved that Klemm saw to it that Germans, who treated bailed-out enemy fliers decently were protected from subordinated authorities of justice who showed over-great zeal.

(g) When discussing the individual counts of the indictment I will try to find the basis of the evidence for subsequent legal considerations. This includes especially the question, whether it can be at all important for the judging of the facts of a crime, to examine the actions of a superior Minister in which the subordinate Under Secretary had also no part. Here the problem will not be the importance of an order with regard to criminal law, but it will be discussed that the necessary causal connection is missing. Going further we will have the opportunity to produce evidence before this Tribunal with regard to the subjective side.

I will demonstrate that Klemm, due to his conviction that law had to prevail in the state and due to his generally decent human attitude interceded on behalf of the law. It will be proved that my client was held in high regard by his co-workers in the Ministry, that he tried in many individual cases to mitigate the fundamental harshness of Minister Thierack who was severe on principle, that he always was ready to listen to other officials, that he always was ready to accept sensible suggestions; in general he was thus just the opposite of Thierack. This attitude also showed results, as will be proved, in the sphere of personnel policy. On principle he did not give any preference for positions to so-called “old Party members.” In case of promotions and appointments he recommended persons who did not belong to the NSDAP. I shall be able to show cases where he also recommended persons who were on the other side [gegnerischen Lager], if they had special professional qualifications. He tried to aid officials of justice who, for political reasons, were personally in difficulties.

(h) Extended fields which Klemm handled in the Ministry of Justice have not been mentioned by the prosecution. When submitting evidence I will have the opportunity to show especially that my client had to spend most of his working time in the Ministry for Department II of the Ministry. This department handled all questions which were concerned with the general training of all German jurists. Here the special difficulties which arose with regard to the personnel of the authorities of justice on account of the events of the war had to be surmounted. The evidence will show that my client in training the young jurists omitted all politics, that his work was absolutely unpolitical. Thus, the so-called ideological training and examinations which were very much favored in the time shortly after the assumption of power of the NSDAP and which found a specially exact expression in the “Referendar Lager [camp for prospective lawyers] Hanns Kerrl” were excluded from the professional education of the jurist. At the time when Klemm, at the beginning of the year 1944, took over his position in the ministry, all these things had been settled a long time ago. The most urgent practical problems, where one should get young judges, when and in what manner young jurists should make their examinations, how former soldiers were to be treated, and similar questions belonged to Klemm’s working field. This was practical work, also this field had nothing to do with “politics.” Thus, if the picture and the activity of my client will be made clear to the Tribunal, then it will be proved that it is not a cheap attempt of throwing the blame upon dead persons, then it will become clear that it has been tried to make my client here in the dock the deputy of Thierack and perhaps also of Bormann. Klemm is, however, not responsible for their guilt.

E. Opening Statement for Defendant Rothenberger[76]

Dr. Wandschneider: May I begin my opening statement? At the beginning of my opening statement I want to say a few words about the task of the defense as I see it.

I. The task of the defense

With the presentation of its theory of proof [Beweistheorie], the defense really starts its task in this trial. It is confronted with an indictment presented in the name of the world community against the justice officials in National Socialist Germany and referring to the moral conscience of just this world community. This situation requires a few words about the duties and position of the German defense in this trial. It is a cheap trick, if Germans now, subsequently, merely because the National Socialistic State has collapsed, declare very simply and without resistance that Hitler was “not right,” and if these same Germans during the National Socialist regime, completely renouncing their own attitude and personality, were opportunists and cooperated with the entire National Socialist Policy with just as little resistance. Such a confession on the part of the defense, which would be considered suitable only because the sentence of the International Military Tribunal established the amoral character of national socialism, would also be a cheap trick and valueless. Opinions are not formed on the basis of outward conditions, but on the basis of one’s own knowledge. Of course, we do know on the basis of our knowledge that under national socialism the basic rights and worth of the free individual and of the human community whose interests are inextricably bound together became corrupt and were destroyed and that is, by misuse and waste of the most valuable sources of power of the German nation itself and of other non-German nations. Only self-recognition, self-education, and efficient responsible cooperation of all members of a community lead to a really democratic way of life and state.

The above statements which were made in order to be honest and above board have not been made from the standpoint of any disinterested neutral third party. How could a German defense counsel be inwardly untouched by the arguments of the prosecution, regardless of whether and to what extent he, as a German, considers himself “guilty.” In view of the fact that the German people were entangled into error, misery, and guilt, should he not feel even more that he is one of them, and should he not try to gain that which cannot be lost—self-reflection, principles, and dignity. The defense wishes to thank the Tribunal for having given it full opportunity to represent the interests of its client in this spirit during this trial.

II. Criminal facts of the case according to the indictment; conspiracy and the individual facts of the case concerning war crimes and crimes against humanity

Dr. Rothenberger is charged with the crime of conspiracy, committing war crimes and crimes against humanity. According to the prosecution, the same concrete facts form the basis for the last two charges. In like manner, the charge of conspiracy is connected with the planning of the afore-mentioned war crimes and crimes against humanity. The facts presented by the prosecution to prove these crimes are in accordance with the IMT judgment only relevant from the penal point of view since the beginning of the war. We are concerned with the following facts:

Numbers 9 and 21 of the indictment—Use of the Special Courts and the People’s Courts for the oppression of political enemies.

Numbers 10 and 22 of the indictment—Participation in the discussion between Himmler and Thierack of 18 September 1942.

Numbers 11 and 23 of the indictment—Sentencing and execution of Germans and non-Germans for high treason.

Numbers 14 and 26 of the indictment—Illegal execution.

Numbers 16 and 28 of the indictment—Preferential treatment shown Party members who are to be punished and collaboration in the introduction of the special penal law for Jews and others.

III. Nonexistence of a conspiracy on legal grounds

Before starting to discuss the basis for the above charges in the indictment, it seems fitting to treat briefly the question of conspiracy. From a legal standpoint, attention must be called to the fact that according to the statute of the London Treaty, as well as the Control Council Law No. 10, the conspiracy, or plan, can only be considered as a crime in itself if it concerns a crime against peace but not if it concerns a war crime or crime against humanity. This viewpoint was maintained also by the IMT in trial No. I.

IV. The general circumstances of the case which form the basis for the charges of the indictment

1. Memorandum of Dr. Rothenberger—In its opening statement against Dr. Rothenberger the prosecution called particular attention to his memorandum to Hitler for the year 1942 and entered it as Document NG-075, Prosecution Exhibit 27. The prosecution characterized this as a “peculiar document” and commented upon it from its own point of view. The defense will also have to analyze the memorandum minutely and discuss in detail its previous history and what has happened to it. It appears that the chief problem here is the basically important question of the dominating position of the judge in the life of a nation. The appointment of Dr. Rothenberger as Under Secretary can be traced back to this memorandum, the character of which is clearly open to a psychological judgment. Naturally the reasons for his appointment will have to be discussed in greater detail. The memorandum presents therefore the very first of those important developments which put Dr. Rothenberger in the defendant’s dock in Nuernberg.

2. Dr. Rothenberger’s reaction to the Hitler speech of 26 April 1942—The prosecution has further produced against Dr. Rothenberger his report on conditions to the Reich Ministry of Justice, dated 11 May 1942, as Document NG-389, Prosecution Exhibit 76, which describes the reaction to Hitler’s speech of notorious fame, dated 26 April 1942. The prosecution blames him for the measures taken after the Hitler speech, just as for the corresponding measures of autumn 1942. It will therefore be the task of the defense to show how the measures taken by Dr. Rothenberger in 1942 following the Hitler speech were meant, and what was their effect.

The documents specified under this as well as the previous number, in fact in the opinion of the defense, touch upon crucial questions of the whole trial; namely, the place of the judiciary in the National Socialist state. They require therefore a full description in the presentation of evidence by this side.

3. Dr. Rothenberger’s ideas on reform—Dr. Rothenberger failed with the plans for reform contained in his memorandum. It may also be conceded that they were bound to fail, by virtue of a historical necessity. However, that is not the point, but rather to demonstrate that Dr. Rothenberger exerted himself again and again to the utmost for the preservation of the foundations of justice, in particular for an independent judiciary, and used all his strength to that end. The defense will clearly show that in the case of his discharge after he had served only 15 months as Under Secretary, not personal but decisively factual differences were at stake, on account of which Dr. Rothenberger was no longer acceptable to the rulers in the Third Reich.

4. Dr. Rothenberger’s personality and career from the prewar period and into the Second World War—The above events falling directly within the war period, become fully understandable only by showing the development of Dr. Rothenberger’s personal and professional circumstances before the war. It will be demonstrated that even before 1933 he was a professionally able lawyer, interested solely in civil law, energetic and conscious of his responsibility. It will further be shown that after 1933 he succeeded in having his proposals for a constitutional state adopted in Hamburg. He did become involved, in constantly growing opposition to radical Party circles and to the SS, especially after the outbreak of the war.

All the facts of the case expounded above under IV are legally relevant from the viewpoint of war crimes and crimes against humanity, as well as from that of conspiracy; they are therefore presented with reference to all charges against my client.

V. The various facts of the case in the order of the indictment and the position taken with regard to them

All the charges made against Dr. Rothenberger have to do with the field of criminal law and administration of punishment. It will be shown by the prosecution’s own documents and by further evidence, that Minister of Justice Thierack reserved for himself all matters of criminal law and criminal law procedure as well as of administration of punishment, and accordingly by the exclusion of Dr. Rothenberger, placed Departments III, IV, V, and XV of the Ministry under his own direction. Dr. Rothenberger, therefore, neither had influence on the whole field of criminal law nor was he responsible for it. Neither Special Courts nor the People’s Court, neither general public prosecutors nor any sort of criminal courts nor prisons were under his direction. The description of Dr. Rothenberger as successor of Freisler in the opening statement on page 64 of the German translation is therefore incorrect and an error. Without question, the entire criminal law was under the direction of the latter as Under Secretary, which from the beginning was not the case with Dr. Rothenberger.

1. Concerning numbers 9 and 21 of the indictment—According to the above general statements, therefore, Dr. Rothenberger did not cooperate in the improper use of the Special Courts and the People’s Courts for the suppression of political opponents.

2. Concerning numbers 10 and 22 of the indictment—On 18 September 1942 an agreement was reached between Himmler and Thierack which according to a file note by Thierack, among other things, provides for the delivery of criminal prisoners to the SS for the purpose of “extermination by work” and for the transfer to Himmler of criminal justice in cases concerning Jews, Poles, etc. It will be shown that Dr. Rothenberger did not take part in the discussion of these points, was not responsible for them, and had no knowledge of them at that time.

3. Concerning numbers 11 and 23 of the indictment—Dr. Rothenberger never took part in the sentencing of political opponents for high treason. If the prosecution takes the view that nonexercise of the right of clemency after valid sentence applies, then in the cases in question with which Dr. Rothenberger dealt in the absence of Minister Thierack, an opinion having regard to factual and legal points will be given.

4. Concerning numbers 14 and 26 of the indictment—Insofar as the four executions which took place erroneously on 8 September 1943 in Ploetzensee, may be referred to by the charge of illegal executions, Dr. Rothenberger’s lack of responsibility will be demonstrated by the documents of the prosecution and by further evidence.

5. Concerning numbers 16 and 28 of the indictment—Dr. Rothenberger had no share in the preference given to Party members in clemency proceedings, as is also established on the basis of the documents of the prosecution. Nor did he take a responsible part in depriving the Jews, and others, of their civil rights [Entrechtung], as will be shown in detail.

VI. General aspects of criminality

To understand the line of reasoning on which this presentation of evidence is based, attention is called to the following general criminalistic points of view which in themselves of course are known to the Tribunal. If, nevertheless, they are emphasized here, it is because the Tribunal is confronted with the extraordinarily difficult task of having to form a judgment of events, people, and mental processes from a world of thought which is alien to it.

1. Limited sphere of activity of individuals under a dictatorial regime—Undoubtedly it is a characteristic of a dictatorial regime that the great majority of the population sinks into more than average passivity and paralysis of responsibility, in contrast to a democracy where the average citizens, too, the majority of the population, display a far greater initiative out of the practical experience of their liberty and their own sense of responsibility. However, it is a certainty that the few, who, under such a regime stand in opposition to the rulers, thereby doing something which in a democracy would carry no risk worth mentioning, thus risk their lives and liberty. Consequently, it is not possible to do justice to the circumstances involved, if one minimizes the courageous actions of individuals in a dictatorial system by inept comparisons with conditions obtaining in a democracy. It is obvious, that the question to which degree an individual had the power and opportunity in a police-state system to call a halt to developments felt by him to be wrong, must in all fairness be judged by other standards.

2. Necessity of individual method of observation—A dictatorship blurs, especially to the foreign observer in a completely inconclusive manner the actually existing, great individual and basic differences, on account of the “coordination” which to begin with was effected in the exterior sphere. Thus, for example a German or Frenchman will hardly succeed in picking out one Chinese face out of a crowd of Chinese. One looks just like another. For that reason it is the more imperative to take into consideration the individual personality and its historic as well as geographical background, like that which binds Dr. Rothenberger to the Hanseatic tradition of the old trading and harbor city of Hamburg; the more inapplicable generalization and standardization may lead to misjudging the specific importance of a personality and the particular nature of his work.

3. Methodical ineptness of a retrospective view—Evaluation from the point of view of criminal law is concerned with the possible participation in the commission of a criminal act and the possible personal guilt. It is decisive for judging a person’s guilt to establish whether he shared in and had knowledge of the crime and whether he is conscious of it; so for instance in the case of the conspiracy which is alleged to have existed since 1933, knowledge of the criminal development of national socialism since that time is decisive. In spite of some disappointments and bad experiences in individual cases surely none of the defendants considered the National Socialist development in principle and as a whole as criminal, nor was he necessarily compelled to do so. It is not intended to question the statements of the IMT about the destructive development of the NSDAP, which according to article X of Ordinance No. 7, are binding until the contrary is conclusively proved. Nevertheless, it so happened that the National Socialist era produced a number of events and institutions which were either politically indifferent or even appeared as the expression of peaceful reconstruction; they were not mentioned in the findings of the IMT. Public opinion, however, was formed on the basis of those manifestations. Questions such as the revival of trade, the construction of Autobahnen [super highways], the elimination of unemployment, the creation of great social institutions, as for instance the National Socialist Public Welfare Association (NSV) and the Winter Relief Scheme (WHW), continuously, year in, year out, were in the limelight with the German public and overshadowed everything else, not to mention events in the field of foreign policy like the Anglo-German Naval Treaty, international sport events such as the Olympic games, etc. The greater part of the population, even the educated classes, were not aware that unemployment was only eliminated by an ever more formidable increase of the economic capacity for the purpose of the coming war, and that the donations and subscriptions which the people collected by hard work for their social institutions, disappeared in the gorge of rearmament. Did not Hitler’s protestations that the construction of Autobahnen was to be considered proof of Germany’s peaceful intentions of reconstruction, and not as the expression of militaristic mentality, sound entirely convincing in view of the fact that should it come to the point these same Autobahnen would operate strategically to Germany’s disadvantage which actually did happen?

By his systematic and indubitably extremely cunning propaganda policy, Dr. Goebbels brought about step by step a constantly increasing isolation from foreign countries which made it more and more impossible to form a truly objective judgment about other countries and questions of foreign policy. It is true, treaties with foreign countries were heralded with much publicity as proof of the desire for amicable cooperation with other nations. Considering these circumstances, were men, even those in higher positions, as for instance, Dr. Rothenberger, who did not have the slightest insight into matters of foreign policy, to show less confidence in the National Socialist leadership of the state than evidently was manifested by the foreign statesmen who concluded treaties with the Third Reich. Suspicious events were not discussed by the press and the public and thus escaped public attention and judgment to a large extent. Insofar as dangerous practices of national socialism were still discernible in domestic and foreign policy, they never appeared as naked facts before the German public as is stated by the IMT verdict but were exhaustively “disguised” in comments rendered harmless or even excused and justified as the results of alleged intrigues by the opposing camp.

Without wishing to deny that there exists a certain predisposition on the part of the German people for the reception of authoritarian wisdom, bad though it may often be, one cannot get around the fact, that, based on the circumstances described above, the process by which Germans, even those on a higher level, arrived at an opinion and judgment, of necessity moved and was bound to move along certain lines. The question as to knowledge of certain criminal acts and developments, or better yet, the question as to recognition of the criminality of certain acts and developments can therefore be judged psychologically correctly only on the basis of all the conditions and contexts prevailing at that time. That applies particularly to wartime, which in all countries produces special exigencies and places the strongest emphasis on certain desirable facts while suppressing undesirable ones. Retrospective observation which, in examining facts, does not put itself into conditions existing at that time, projects into the past, knowledge and opportunity of knowledge gained later. Applied to this trial, the above-named method imputes to the defendants a knowledge, an awareness of the criminality of circumstances, which they did not have at that time and makes demands on their faculties of perception which they could never have satisfied under the circumstances then prevailing.

VII. Principles of the constitutional state: “nulla poena sine lege,” “nullum crimen sine lege”

The inner connection between the afore-mentioned train of thoughts and the principles nulla poena sine lege and nullum crimen sine lege is obvious. The question is whether facts constituting criminality were created after the war by the Charter of the London Agreement and the Control Council Law No. 10 which, in violation of the above principles, are applied retroactively to previous acts, which at the time of commission did not constitute criminal acts. The resulting cardinal problem will be discussed by the defense.

VIII. Conclusions

The great and famous American judge, Oliver Wendell Holmes, said in 1896, “The real reason for a decision are considerations of a political or social nature. It is erroneous to believe that a solution can be found solely with the aid of logic or general legal doctrines which no one contests.” (Quoted from quotation in “Majority Rule and Minority Rights” of Henry Steele Commager, page 46 of the German translation.)

The defense can but concur in these words. The defense requests that consideration be given to its train of thoughts as derived from this attitude, and stated in VI, 3, which are the corollary of similar thoughts of the prosecution, without the Court having to fear a misunderstanding concerning the above quotation.

F. Opening Statement for Defendant Lautz[77]

Dr. Grube: May I begin my opening statement? The prosecution in its arraignment of Lautz has obviously started from three wrong suppositions. The first erroneous supposition was that Lautz evidently was confused with the Ministry official Letz and therefore it was erroneously assumed that Lautz had also been working in the Reich Ministry of Justice. Only thus can it be explained why in several counts of the indictment with which the prosecution is expressly charging the Reich Ministry of Justice only, Lautz also is mentioned. I do not want to lose myself in details. That the defendant Lautz never worked in the Reich Ministry of Justice has been proved without a doubt by the evidence submitted so far. But I shall furnish further proof that Lautz did not take part in any of the measures, with which the Reich Ministry of Justice is charged.

The second erroneous supposition from which the prosecution sets out is the assumption that there was only one chief Reich public prosecutor [Oberreichsanwalt], viz, defendant Lautz. The evidence taken so far has shown that beside the chief Reich public prosecutor of the People’s Court, viz, defendant Lautz, there was still another chief Reich public prosecutor, viz, the chief Reich public prosecutor of the Reich Supreme Court. It is due to this error on the part of the prosecuting authority that matters have been made the subject of this procedure with which defendant Lautz had nothing to do. It is the nullity plea for instance of which I am thinking here; I shall prove in the course of my submission of evidence that this nullity plea could be filed only by the chief Reich public prosecutor of the Reich Supreme Court and not by the chief Reich public prosecutor of the People’s Court. It is due to the same erroneous supposition on the part of the prosecution, according to which there was only one chief Reich public prosecutor, that in the “information on the outlines of the German judicial system,” which was submitted by the prosecution at the beginning of the trial, it is stated on page 5—“The criminal prosecution in cases before the People’s Court and before the Special courts, as well as those before the ordinary courts, lay in the hands of the chief Reich public prosecutor. Defendant Ernst Lautz was chief Reich public prosecutor.” I shall prove in the course of the evidence to be submitted by me that defendant Lautz was not a superior official to the public prosecutors of the Special Courts and other courts and that he was not competent for the criminal prosecution before these courts. I shall prove that he had only a quite limited competence, viz, competence for the criminal prosecution of those crimes for which the People’s Court was competent, and that he was superior only in regard to the personnel of the Reich public prosecutors at the People’s Court. The position of defendant Lautz as chief Reich public prosecutor at the People’s Court did not differ in any way from the position of the chief public prosecutors [Oberstaatsanwaelte] at the district courts. When these two points have been clarified, there remains of all accusations made against defendant Lautz only the one accusation of his being coresponsible for the criminal procedure carried through before the People’s Court. This brings me to the third erroneous supposition on which the indictment against Lautz is based. It is the fact that the prosecution in its indictment of Lautz, as well as the other Reich public prosecutors under indictment here, obviously started from the assumption that the function and position of a German public prosecutor are the same as that of the prosecuting authority in Anglo-American criminal procedure. As will be proved by the evidence of the defense the position of public prosecutor in the German criminal procedure as well as the position of the prosecution in general in European jurisdiction always has been and still is today fundamentally different from that of the prosecution in Anglo-American jurisdiction. The evidence will prove that the position of a German public prosecutor in relation to the law, the Ministry of Justice and the court in general, as well as his function in individual criminal trials always have been such that he cannot be made responsible in criminal law for the sentences and their execution, neither objectively nor subjectively. The indictment in the case in question is based among other things on the general principles of penal law, such as they are contained in the penal laws of all civilized nations. As an example of this, the prosecution has quoted legal statements by the judges Stephen and Holmes in its verbal indictment. These legal statements concerning penal responsibility are not complete however. I shall prove by further quotations from legal statements by these two judges, that also according to Anglo-American conceptions the German prosecutor is not responsible before criminal law for the sentences, provided one starts from the position which the public prosecutor always held in relation to the law, the Ministry of Justice and the court, and from the functions which he carried out in accordance with German law at all times in individual criminal trials. Although I am convinced by virtue of this legal position that defendant Lautz cannot be made responsible before criminal law for the sentences pronounced by the People’s Court, I shall, nevertheless, help to prove by my submission of evidence that the People’s Court was an unobjectionable institution; that any trial before it gave the defendants every guaranty of justice; and that the sentences of the People’s Court and their execution did not constitute any violation of international law, of the general principles of penal law, or of article II of Control Council Law No. 10. I furthermore shall prove that defendant Lautz had nothing to do with penal administration. It will be proved that the institutes for penal administration were not subordinated to him and that he had no possibility of influencing them or penal administration in any way.

G. Opening Statement for Defendant von Ammon[78]

Dr. Kubuschok: May it please the Tribunal. The prosecution has submitted no evidence connecting the defendant von Ammon with paragraphs 10, 16, 22, and 28 of the indictment. The defense will therefore deal only with the count concerning the NN matters while disputing the legal admissibility of the accusation of conspiracy. The defense will explain the origin and the legal basis of the NN regulations. It will be shown that the legal authorities participated in the work on the NN matters only to such an extent and so long as they were delegated to do so by the competent Wehrmacht authorities.

As regards the participation of the defendant von Ammon in this department which has been allocated to him in the course of the allocation of duties in the Ministry, the following will be dealt with: von Ammon’s position as an expert, who was subordinated to the subsection chief, Ministerialdirigent Mettgenberg; section chief at first Ministerialdirektor Crohne, later Ministerialdirektor Vollmer; Under Secretary, at first, Freisler and later Klemm; and lastly the Minister himself. If, therefore, von Ammon only ranked fifth in seniority, then this fact determines also his authority to sign and his actual responsibility. All important matters required the signature of, at least, the subsection chief, in most cases that of the section chief. We therefore find that none of the letters from the Reich Ministry to another office, which have been submitted by the prosecution, were signed by von Ammon.

I shall prove that von Ammon did not participate in drawing up the basic legal regulations. Thus, the legal argument arises whether a person who has merely to carry out administrative tasks without thereby causing a wrong to be done in the sense of sufficient causality by this activity itself, bears a criminal responsibility for this.

I shall describe how the NN proceedings were carried out and shall show that no special regulations were issued restricting the proper trial beyond the secrecy decreed by law. As can be seen from the circular of 6 March 1943, Document NG-269, Prosecution Exhibit 319[79] submitted by the prosecution, care was taken that the prisoners did not forego their otherwise customary rights, as long as the purpose of this secrecy was not endangered. I shall disprove the view of the prosecution that persons who had obviously not committed any act of resistance, were treated in the same way as guilty NN prisoners. I shall explain that, on principle, the Wehrmacht authorities in the occupied territories handed over only such cases to the legal authorities in Germany where the evidence was materially complete, as the witness Lehmann testified earlier. It will be proved that even where the innocence of the prisoner was established only in Germany, there was the possibility of being released to the occupied territories.

Evidence will be produced from the proceedings of the courts that the NN trials were in no way conducted differently from other trials, except for the restrictions for reasons of secrecy. It will particularly be shown that the difficulties in procuring evidence from the occupied territories favored the defendant insofar as he was protected by the principle of in dubio pro reo, i. e., the defendant had to be acquitted in case of doubt where the evidence in support of the indictment was incomplete. I shall endeavor to give a summary of the sentences given in actual practice.

In regard to the handing over of NN prisoners to the police, no responsibility can be attached to the defendant von Ammon for participation.

Documents will prove that the defendant von Ammon always showed a tendency towards leniency, considering the prevailing circumstances and the extent of his competence. This will also be clearly in keeping with the whole personality of the defendant. We shall find him an official who entered the ministerial career solely on the strength of his expert knowledge immediately after he passed his legal examination with special distinction, the type of man with a sense of duty who lives only for his work. Von Ammon was not an active National Socialist, this is confirmed by his entering the Party only in 1937, comparatively late for a ministerial official. I shall produce testimonials characterizing the defendant as a deeply humane and strictly religious man. I feel also that the trial will enable the Tribunal to form their own impression in this respect. In these circumstances it will have to be examined all the more carefully whether the evidence shows that this man is guilty of a crime against humanity irreconcilable with his character.

H. Opening Statement for Defendant Rothaug[80]

Dr. Koessl: May it please the Tribunal. If I correctly understand the unuttered yet cogent logic of the charges listed in the indictment, the effect and example of that legal system to which the prosecution tries to attach the stigma of a criminal government institution begins with the Rothaug case. The evidence against him, out of proportion considering the entire framework of the indictment is in contrast to his mere functional position, based on his activities as judge and prosecutor.

Although I am aware of the fact that such purely external disproportion between the importance of the matter on the one hand and the deployment of means on the other hand, as seen from a higher point of view, may cause a shifting of the focus in the eyes of a superficial observer, I am however certain that the desire for a true and just sentence will prevent the overlooking of the limitations and degrees of responsibility.

Yet the direction of the main thrust of the prosecution has become rather clearly discernible by the few submitted documents, out of thousands of files. We face it with a clear conscience, calm and courageously, for documents do not lie.

What distresses us is the evidence submitted in order to impress and otherwise help the main thrust, evidence which has been available in accessible localities and without difficulties, with incriminating tendencies, sometimes even willfully incriminating, and which has offered in hundreds of variations and superlatives an almost unfathomable jungle of assertions, estimates, and opinions.

The mobilization of this evidence compels us to handle the most enervating and tedious detail for truth’s sake.

I expect to relieve us of much of this wearisome detail by first treating and solving problems, touched upon by coarsening efforts, misrepresentations, distortions, and half-truths in their entirety and from the broadest viewpoints possible.

At this point in the proceedings, I do not wish to put to the fore legal questions within the framework of the defense, such as the concept of conspiracy or the subjective fact and the confines of the crimes against humanity.

On the other hand, it will be unavoidable within the frame of the producing of evidence to convince the court that the entirely individual biased power position between the state on the one hand and the individual judge or prosecutor on the other hand in accordance with the regulations governing German civil servants allows no scope in the field of the application of the law for a simultaneously existing intellectual alliance in the sense of a conspiracy, but that a connection of this power position, in full knowledge of its legal nature, with a simultaneous assumption of a conspiracy would mean a contradiction in itself. Here it becomes necessary to prove that the activity of a judge at the Special Court or a Reich public prosecutor is limited to the application of the law which is based on the official Reich legislation in the field of criminal law. I shall demonstrate that this Reich legislation in all its harshness has, in its purpose, neither lost nor limited its character of purely criminal law and that, on this point, it has not been misinterpreted as clearly proved by the literature on the subject and the jurisdiction by the supreme judicial authorities and others.

Here must be proved a fact evident in itself, namely that judges and prosecutors in the same position as Rothaug were never and in no context expected to have objects alien to the field of criminal law in carrying out their official duties.

Records of sentences already submitted and others still to be submitted will prove that this had in no way been intended.

This touches on the legal question, whether official functions resting on the official Reich legislation which, up to this very moment, is covered in international law by the principle of nationality and sovereignty, functions which were carried out in public, may be conceived as actions of persecution on racial, religious, or political grounds and may be treated as being on the same level as actions which were carried out secretly and without control, and which could be recognized as wrong already by their cruelty and severity by every person concerned as offending against justice and law.

Here, I wish to convince the Court that offenses of the latter kind, if they ever did happen within the legal sphere could and should only be known to the immediate participants but not to persons who held positions like the defendant Rothaug.

In the concrete reflection on the relationship to the law of the position of judges and likewise prosecutors, it is of decisive importance to elucidate in public law that the German judge, under any regime, had merely to examine whether a law had been announced in accordance with rules and regulations whereas an examination from other points of view was outside his jurisdiction. In this context it is further necessary to elucidate the significance and import of the judge being subject to the law and the meaning of a sentence in the sense of German public law especially in relationship to the legislative and executive power in an authoritarian state, thus to the governing power.

Here we cannot omit to clarify the basic legal principles and corresponding regulations which determine this relationship or to prove the practical application based on files. Thus, the question of the judge’s subjection to the law calls for a clarification of the consequences on his task resulting thereof. It necessitates the recognition of the law as a form of expression of justice, as part of the legal system and as immediate emanation of the ruling state doctrine at any given time, as well as the recognition of the judge’s actual position in this legal system. Therefore, it is also necessary to show in a condensed form the general basis and principle of the legal doctrine which since 1933 was decisive for the German judge in establishing the intentions of the law in a concrete individual case. The accusations which have been made in general or in individual cases concerning Rothaug’s method of handling proceedings or which have been connected with such proceedings become meaningless or lose in importance if their explanation is tackled in general from the angle of the correct basic procedure regulations or from the available records of individual proceedings. This leads, as a matter of course, to a basic discussion of the individual cases which have been particularly stressed by the prosecution, and which lie in the direction of the prosecution’s main thrust. No one knows better than the judge the human inadequacy and fallibility because by the very nature of his profession he deals with that aspect of life. Thus, he would be the last to believe himself immune from human error, least of all at a time of intellectual revolution and under the effect of the very highest wartime pressure. Nevertheless, I beg the Tribunal not to think me presumptuous if I try to prove that the sentences pronounced by the Special Court at Nuernberg were in keeping with the basic principles of jurisdiction of the Reich courts, and that among thousands of cases only very rarely one has been successfully contested or otherwise amended.

In this connection, one could discuss the outward development of the judgment and all those legal questions allegedly discussed in individual cases or in general in Rothaug’s circle during the course of 6 years.

The submitted records of individual proceedings provide plenty of opportunity to form an opinion on all individual questions thrown up by this trial especially on the aim of judicial activity, the sentence in its relationship to the requirements of the proceedings and its assailability in the interest of legal security, from which it will clearly emerge that the sentence, even that of the Special Court, was only an intermediate and by no means the final stage of the work of ascertaining justice either when finding the defendant guilty or when pronouncing the sentence. Thereby it may be possible too, to clear up the linguistically unfortunate term of “psychological producing of evidence” which has found its way into this trial. Thus, the legal and psychological task of the presiding judge in accordance with German criminal law will have to be explained, and it will have to be shown how Rothaug confronted his task, solved it in the practical legal procedure, and which objections he had to face in connection with the results of his work by departments which in the course of their own duties had to examine, control and, if necessary, correct.

Furthermore, it will be my task to prove that in Rothaug’s official working sphere without exception all defendants without consideration of nationality, national origin, or race, were granted the same legal guaranties as any German according to German criminal law, thus that no case was treated as an exception to the general rule, that this was also done in all proceedings against Poles, who apart from one outstanding case bearing a special character, were the only foreigners against whom Rothaug proceeded.

This, generally and in particular, touches upon the problem which determines the judge’s and the prosecutor’s position to the legislation for Poles from an objective legal point of view, of which have to be discussed the actual and legal basis and aspects from and through which the German judge and prosecutor whether in the North, South, East, or West, had to view matters under the spell of the German legal doctrine.

Here the greatest importance has to be attached to the kind of offense in question, the place of the crime and last, but not least, the question whether these Poles had really been deported and had not voluntarily, accepting certain conditions, placed themselves at the disposal of the German war power.

In this context, we cannot omit to discuss the principles which the highest judicial authorities have pronounced in connection with this whole complex. Here I must leave the justification of the legislation as such to others who are responsible for it.

To this, from a psychological viewpoint, belongs the discussion of Rothaug’s actual basic attitude toward the Jewish problem in order to do away with all insinuations which have willfully and on purpose been made during this trial by persons who seem to have cause to stress and demonstrate their innocence in this connection by calling “catch the thief.”

Another complex fitted into the direction of the main thrust of the prosecution is Rothaug’s alleged political power position, inflated so as to appear almost like a myth, which to begin with is supported by an assertion which is the object of count four of the indictment. I shall prove that Rothaug’s duties did not extend beyond the professional organization of the Rechtswahrerbund and that, beyond that, he held no political post, and that in particular he did not belong anywhere, at any time, and in any function to the so-called corps of political leaders.

In this I shall take special care to reduce the case Doebig which has been brought into this context for the purpose of substantiation, to the proportions it deserves in the knowledge of the true facts of the case, as we ourselves feel urged to clear Rothaug’s real relationship to the Security Service (SD) as expressed in its principles, development, contents, and Rothaug’s inner attitude to it down to minute details.

Especially here as in all positions where the witnesses are interested in a certain presentation of conditions, we are fully conscious of the difficulties, and we know how easy it is today to find witnesses who by incriminating statements are given the chance to clear themselves. On the other hand, bearing in mind the totality of present psychological conditions it is difficult to find a person who would be prepared to stand up for truth’s sake if he were asked to do so for a person who by reason of biased evidence has been publicly defamed in such a manner that it has given rise to the fear of becoming involved in the greatest difficulties by confessing to a mere acquaintance with Rothaug. Because Rothaug’s political power position has extensively been brought in, in an attempt transparent to our eyes, to reduce the responsibility of others, he feels pressed to clarify his real relationship to his collaborators and the prosecutors within his sphere of work minutely and in its totality in its official and personal aspect irrespective of whether it concerns Rothaug’s official or unofficial statements, his alleged relationship to Streicher, Holz, and Zimmermann; his actual relationship to Haberkern, the “Blaue Traube” [Blue Grape], the mysterious “Stammtisch;” his “TeNo-Rang” [rank in Teno[81]]; his attitude toward the judicial administration, his “recording section” [Schallplattenbetrieb] in alleged spectacular proceedings; or his representation of the devil on earth. In all these matters and questions we have but one aim—To restore the truth in all its glory, for only in truth can we see the way which honorably and serenely will lead us out of this endangered vital position.