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?