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

by Various

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.