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