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).