III. OPENING STATEMENTS (continued 2)

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.