III. OPENING STATEMENTS (continued 3)

Although this Tribunal is internationally constituted, it is an American court. The obligations which derive from these proceedings are, therefore, particularly binding on the United States. True it is that two wrongs do not make a right, and equally true that the crimes charged against these defendants and the other leaders of the Third Reich were “so calculating, so malignant, and so devastating” that they find no modern parallel. But, underlying these crimes, there are myths, superstitions, and more sophisticated distortions of philosophy which do not know national boundaries. If we, of all nations fail to rise above these malignant doctrines by actions which manifest a steady growth in national fiber and character, then all that we do here will come to nothing, and will leave us and mankind an easy prey to their next violent eruption.

We have still other obligations here which must not be overlooked. As was pointed out earlier, we have undertaken, together with other nations, the task of preparing “for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life in Germany.”

These proceedings are dedicated to that end. Punishment of these leaders of Germany whose crimes made this task necessary is only a part of what we seek to accomplish here. We seek to resurrect the truth in Germany, and to reinvigorate those ideals that have been so long desecrated. The people of Germany sense the need for this, but they will measure our efforts by the measure of our own devotion to the ideals which we proclaim.

The United States cannot evade the challenge of these responsibilities. We can fulfill only the smallest part of them at Nuernberg. But Nuernberg must be a symbol, not of revenge or of smug self-satisfaction, but of peace and good will among nations and peoples. It is the crime of shattering the foundations of peace and denying the very fact of humanity that is charged in this and other proceedings at Nuernberg. It is by trying these charges under law, and in quest of truth, that Nuernberg will find its full measure of justification.

B. Opening Statement for all Defendants[71]

Dr. Kubuschok (counsel for defendant Schlegelberger, speaking on behalf of all the defendants): May it please the Tribunal. In the following statements I shall briefly describe the manner in which the defense believes, by summarizing the treatment of individual general problems, it will expedite the trial. My following statements are to be interpreted in that sense.

The prosecution views the development of justice in administration and jurisdiction during the period of the National Socialist State. It limits its reflections to this period and perceives in everything the consequent execution of National Socialist totalitarian thought. It believes to be able to reduce all phenomena to this denominator.

It must be the task of the defense to extend the boundaries of this reflection beyond this period. The defense will show that no new legal system was created, and that no new system of jurisdiction was developed. Thus, the historical development which had been built on, also in the period from 1933 onward, must be presented in its fundamental traits.

The defense must also be aware of the difficulties encountered in the treatment of the subject matter before a non-German court. The difference between the Anglo-American legal system and the German law, in accordance with which the acts of the German defendants are judged, lies not only in the solution of individual legal questions and problems, but is fundamental and systematic. Anglo-American law appears to us vitally progressive by the effect which decisions of the highest courts carry in setting precedents. German law, on the other hand, is a codified law, much less suitable to development by the administration of justice, but a law which in itself demands observance of the legal standard. The written law is inflexible. New concepts of the law cannot succeed in the administration of justice as is the case in the gradual development of the “common law.” The German—as well as the continental—principle of the codified law permits the incorporation of new legal concepts only through sudden changes [sprunghafte Veraenderungen] of the written law. Thus the supplementary laws of the penal code in force in Germany since 1877 show an abrupt change at shorter or longer intervals. For this reason the positivism of law has played a far more important part in Germany since the end of the nineteenth century than has been the case in legal systems outside the continent. Only the written law [statutory law] and not general ideas on morals and rights constituted the directive for administration of law and justice. Also in Germany this principle of absolute codification has, with regard to its expediency, been the object of legislative discussion for some time. Finally, in 1935, it culminated in the amendment of article 2 of the penal code, and thus, a synthesis was found between codified law and the development of law as interpreted by the decision of the judge; and historical reflection on this event will show the inaccuracy of the prosecution’s conclusion that, being instituted during the period of the National Socialist State, it must of need be the product of National Socialist thinking and its corresponding political aim. We shall prove that the fundamental basis for this norm was created by plans for reform drafted long before 1933, and that the necessity of supplying the judge with a means, enabling him to counterbalance the defects of an absolutely codified law to a limited degree by analogous application of a penal regulation had been realized long before that. It was recognized that the multiformity of life, the constant change of its forms with regard to social, political and economic aspects could not be regulated by codified law alone; especially so, because codified law always lagged one step behind the case in need of settlement of law. Such cases could not, as is possible in “common law,” be regulated and decided on by general concepts of law; they merely gave cause for establishing new legal standards. This one example already reveals the necessity of dealing with the existing German legal system and with plans for reform entertained in Germany for decades.

German law will form the basis for all considerations. We will, therefore, also have to deal with constitutional law and the technique of legislation. We shall proceed from the provisions of the Weimar constitution. We shall observe there the legislative functions of the Reichstag, the Reichsrat [Council of the Reich] and the Reich President. It will be shown that, since Bruening was Reich Chancellor, the weight of legislation shifted in ever increasing measure toward the right of the Reich President to issue emergency decrees.

The turning point was formed by the Enabling Act [Ermaechtigungsgesetz] of 24 March 1933 which represents the basis for all future legislation. The cabinet was now empowered to pass laws on its own authority and even the right of the Reich President to draft and promulgate laws was abandoned. Thus, under consideration of article 56 of the constitution which allocated powers of policy determination to the Reich Chancellor, the right to legislate was practically conferred upon Reich Chancellor Hitler who, in the absence of time, made increasingly extensive use of it. The lawful passing of a law and its legal effects will necessarily be the subject of presentation.

Thus, we are faced with the legal problem of the binding effect of the Fuehrer order. It will have to be examined whether this Fuehrer order was a literal order in the meaning of the Control Council Law, the effect of which is not to be looked upon as exempting from guilt, or, at the most as mitigating, or, whether we are not dealing here with a legislative act, to which this provision of the Control Council Law does not apply.

We shall have to deal with the entire legislative machinery as it was developed at that time. It will be shown that meetings of the cabinet took place even after Hitler’s cabinet had been formed, that they were, however, of an essentially different character already than formerly. Questions were no longer put to the vote. In individual questions of legislation too, Hitler stood on his right as Reich Chancellor to determine directives of policy, in accordance with article 56 of the constitution. As Hitler’s position grew stronger, especially after, in August 1934, the positions of Reich Chancellor and President of the Reich had been combined in his person, cabinet meetings served actually only the purpose of issuing Hitler’s instructions. In accordance with instructions, members of the cabinet were to submit bills that concerned their departments. In accordance with Hitler’s request these bills were submitted to other participating members of departments prior to the cabinet meetings, in order to obtain their opinion and at this stage only objections with regard to departmental competency of other ministries were taken into consideration. The bill, thus having become “ripe for the cabinet” [kabinettreif] was then passed in the cabinet meeting without debate. Since the uselessness of the cabinet meetings thereby became obvious, they were discontinued completely in 1937. Laws were then legislated by means of a so-called circulation procedure [Umlaufsverfahren] in which the individual ministers were given opportunity to voice their objections. These objections could, however, deal with purely departmental aspects only, whereas objections against a basic political idea founded on one of Hitler’s instructions could not be raised or remained ineffective. As we will show, this had, at the same time, the effect of declassifying certain ministries and resulted in their being subordinated to other ministries. This started already in 1935. By the secret National Defense Law, the OKW, [High Command of the Armed Forces], the Minister of Economics as Plenipotentiary General for the Economy, and the Minister of the Interior as Plenipotentiary General for the Administration of the Reich, were brought into prominence as legislative bodies and were combined in Board of Three [Dreierkollegium]. The other Ministries were subordinated to them and depended on them for instructions. The Ministry of Justice was subordinate to the Plenipotentiary General for the Administration of the Reich and was permitted to present bills only through him. The Ministry of Justice’s signature on a law was therefore only of nominal significance; it indicated that the judicial departments had been concerned with the contents of the law. We will show that after the outbreak of the war the Ministerial Council for National Defense was added as legislative body to the Board of Three. Here too, the Ministry of Justice was subordinated to the Plenipotentiary General for the Administration of the Reich, who was a member of the Ministerial Council for National Defense. Bills were drafted in accordance with his instructions. If the initiative for drafting a bill came from the Ministry of Justice itself the Plenipotentiary General for the Administration of the Reich had to concur in the matter.

To judge the position of the individual defendant in the Ministry, a detailed presentation of the organization of the judicial administration becomes necessary. We must deal with the problem of subordination of the various offices in their relations with each other. In particular, the defense will attempt to give the Tribunal a picture of the actual workings of the Ministry of Justice. Within the framework of a bureaucratic organization the sphere of activity of a minister, an under secretary, division chiefs, subdivision chiefs, a Referenten, and co-workers [Mitarbeiter], will be defined and certain organizational changes wrought in the course of time will be taken in consideration. The scope of authority pertaining to the superior-subordinate relationship is also of importance. Of equal importance are the limits of signing power fixed for each individual official of the Ministry of Justice as well as the degree of responsibility he assumed whenever he affixed his signature. A signature does not always imply the assumption of a responsibility nor does it always signify that someone in particular was charged with the handling or discharging of a specific task. A document has quite frequently been submitted to an official of the Ministry of Justice for the sole purpose of having him take official notice of its contents, i.e., the only object being to apprise the official in question of some measure or other. This method of passing on information, of course, could serve many other purposes which remain to be discussed. A simple request, however, to take official notice, combined with an accompanying acknowledgment of receipt signed by an official, never meant that the official had, by affixing his signature, assumed responsibility for the matter on hand. Finally, there remains the problem of throwing light upon the relationship existing between individual departments of the Ministry of Justice and that of defining the meaning and aim of a cosignature. The act of cosigning indicated primarily that the subject matter and its treatment as viewed in the light of the cosigner’s own field of activity, i.e., from an expert’s point of view alone, gave rise to no objections.

A study of departmental limitations will afford insight into the nature of the judiciary in its relationship with, and its dependency on, other Reich Ministries and Party offices. An understanding of the reciprocal connection between the Ministry of Justice and the Reich Ministry of the Interior, as well as the limitations imposed upon both will yield enlightening information on many questions. We shall also find these necessary connections with other Ministries existing before 1933 and thereby refute the assumption of the prosecution that these intersectional connections which are to be found in any system of government constitute a creation of the Nazis and were adopted by them for the purpose of achieving their own ends. It will be necessary, in this connection, not only to discuss the strictly legal aspects involved, but also to show what the actual conditions were with respect to power and authority. We will have to reconstruct the events as they occurred at that time in a state under dictatorship and show what legal consequences a necessary examination conducted from the viewpoint of constitutional law will yield. The question will be raised as to what would have been the consequences of a failure to comply with an order, and would obedience, therefore, legally exclude guilt. A factor of great importance in considering that problem is the determination of the relationship between the judiciary and the police. The effective role played by Himmler, as chief of the entire police force, must also be taken into consideration. The full presentation of facts will show how the police interloped in affairs of the judiciary, and how this interference led, during the course of the years, to an appreciable weakening of the position held by the judiciary. We shall see what means were and had to be employed to fight that battle. The contrast between the position of the justice administration which was weak by nature and that of the police which was equipped with all the instruments of power it employed ruthlessly through the offices of Himmler and Hitler will become manifest. Again and again one will perceive how the judiciary was confronted with accomplished facts, how it strove to defend or recapture lost ground, how all of its activities, as a matter of fact, were overshadowed by the constant pressure and expansionistic aims brought into play by the police. It will be shown how everyone in the Ministry sought to retain as a last bulwark the concept of the constitutional state for practical usage. It will be brought out how the police, beginning with the protective custody order and ending up with the establishment of its own preserve in the concentration camps and the subsequent creation of its own SS jurisdiction over its members finally secured their exemption from the judiciary. Yet in spite of the constant rivalry between the judiciary and the police we must not lose sight of the fact that certain contacts between both offices had to be maintained because of the very nature of German criminal procedure. Since the judiciary had no investigation agencies of its own, it was dependent upon the cooperation of the police in that respect. Finally, I shall also show how Himmler attempted to wrest all public prosecutor offices from the justice administration for systematic absorption by his police machine, although he did not succeed in doing so. When the unique position held by the judiciary within the entire administrative system is made clear in the presentation, one will become aware of the difficulties of the situation in which the judiciary found itself in this battle. We need but have a clear conception of the difference in denotation of the terms “dictatorship” and “justice” in order to gain an appreciation of the difficulties of that situation. The dictatorship derived both stimulus and pattern from the Party in its manifold manifestations. We will show up the predominance and influence of the Party offices, some of which were legally established, and demonstrate how both expanded in all directions and by the employment of any and all means through the person of the Fuehrer of the Party, namely the dictator.

The defense will show, at the proper time, how the Party sought to push its interests ruthlessly in opposition to the judiciary. The activities of the Party constituted a perpetual obstacle to the progressive administration of justice. It will be shown how the Gauleiter, either directly or indirectly through Bormann, deliberately added fuel to Hitler’s repugnance against the judiciary and thereby shoved the Reich Ministry of Justice into a spot similar to that of an isolated animal at bay.

The various aspects just outlined will also furnish us with a broad foundation for those laws to which objections were raised in the indictment, and the substance of which we shall subject to an exhaustive examination.

We will show, when dealing with the problem of violation of the principle nullum crimen sine lege, that all those laws with which the indictment is concerned and which had been made retroactive do not furnish a basis for punishment. The punishable offense itself, to which they referred, had already been made punishable by laws in force at the time the deed was committed.

The rules of penal laws were not only already part and parcel of the general body of law, but had also been fixed long before by virtue of positive law at the time the appropriate supplementary laws went into effect. In every instance revisions were applied only to the evaluation of a crime in relation to the amount of punishment. Since the prescribed rules of the German Penal Code, generally speaking, did not allow a judge much leeway in awarding punishment, it was found necessary to provide for changes with regard to the fixing of penalties.

We will show that conditions of public distress in Germany were in each instance responsible for the changes and, furthermore, that these legislative measures were, above all, inspired by criminological propositions that had played an important part in scientific discussions long before 1933. We will also show that the drafting of such legislative measures was strongly influenced by the knowledge and experience of other countries.

We shall have to proceed from the assumption that a retroactive measure characterized only by an increase in severity of punishment does not constitute a violation of the principle nullum crimen sine lege according to common German continental legal conceptions.

If the prosecution should construe the substance of various laws as crimes against humanity, we will have to enter into an investigation of the actual living conditions which gave rise to the necessity for the legislation of strict measures. One of the cardinal determinants of any system of penal law is the principle of the deterrent influence of punishment. Variations in the forms and uses of deterrents are at all times dictated by circumstances. Thus, when living conditions everywhere are at high tension, deterrents, if they are to be effective at all, must be accompanied by a corresponding increase in severity of legislative measures.

Some of the legal terms found in German court decisions that are to be examined by the Court will require explanation. Such terms as “dangerous habitual criminal,” “perpetrators of crimes of violence,” “juvenile major criminals,” “public enemies,” “asocials,” and “criminal type” [Taetertyp]. In defining these terms it will become apparent that they were used as necessary aids in the quest for laws and that they represented, by no means, a one-sided attempt at increasing the harshness of measures in the administration of justice. These terms were established for the purpose of setting up clear-cut, definable boundary lines encompassing a definite group of major criminals. Such a move paved the way for pronouncements of restricted judgments, i.e., less severe ones upon those who did not fall within that group.

In answer to the question of sterilization, we shall outline its historical development in Germany and other countries both in theory and practice. We will find that sterilization, as a program, was advocated long before 1933 in Germany and even found champions in Socialist and church groups. Closer examination of the law under consideration will reveal the great care and caution exercised in hedging in its specific provisions. Should the law itself, however, lie beyond the pale of any possible extensive explanation, we shall then furnish proof that it has never been misapplied for political or race-political purposes.

The subject of euthanasia will be dealt with at length and judged with fairness and justice. We will show that the measures originated with Hitler himself, and in the Chancellery of the Fuehrer. We will also show—and this is symptomatic of the position held by the judiciary in the administration—that the judiciary did not receive word of the existence of those measures directly but in trailing stages from outside sources. We will bring out how the Ministry of Justice attempted to thwart the execution of those measures, and then disclose how those same attempts led to a premature discontinuance of the program. In order to decide the question of whether the judiciary is responsible for these measures, which they neither caused to be put in effect nor carried out, we again must consider the actual existing facts.

A trial which concerns verdicts rendered by various courts calls for a study of the organization of these courts as well as their manner of functioning. We will deal with the structure of the Special Courts and of the People’s Court as well as the courts before them. We will consider whether the Special Courts are extraordinary courts in the sense of the indictment, which were prohibited by the constitution. We will also define the term “extraordinary court,” and we shall see that a court which has not been established for the purpose of bringing certain persons to trial, but for the purpose of passing judgment on certain punishable acts cannot be considered an extraordinary court. The legal regulations which are prescribed for proceedings in Special Courts and which deviate from regulations prescribed for regular proceedings will be scrutinized with regard to extent and purpose. We will deal with the structure of the People’s Court in like manner.

In order to discuss these questions, it will also be necessary to give the Tribunal a clear-cut, plastic picture of German criminal procedure. We hope to be able to achieve this by interrogating an expert on the characteristic features of German criminal procedure. Thus, we will be able to show the fundamental differences between German and Anglo-American criminal procedure. We will become acquainted with the preliminary proceedings as well as with the actual main proceedings. Preliminary proceedings are in the hands of the public prosecutor. The necessary investigations to ascertain the facts of the case must be carried out with the aid of the police and through its own or judicial interrogations. The public prosecutor is bound by law to an objective consideration of the matter. The prosecutor in so doing of course represents the instance which later on submits the indictment in court; yet he is under obligation to draw up the indictment not as an agent of an interested party, which he will represent later on in the main proceedings, but as a purely objective agent engaged in clearing up the facts of the case. He is also charged with procuring and submitting facts which serve the purpose of the defense. After the facts of the case have been established in this manner and the transcript of the interrogations of the defendant, the witnesses, and the experts as well as the record on any inspections, seizures, or searches have been recorded to the court, then the public prosecutor draws up a written indictment and submits to the court the documents which contain the entire material collected by him with the request that a date be set for the trial. In considering the question whether action should be brought, or whether proceedings should be quashed beforehand, he must take into consideration whether the findings are sufficient to justify the suspicion that a punishable act has been committed. This question will then be examined by the court, which has to decide on the opening date of the trial. If, in the opinion of the court, the findings as laid down in the documents are not sufficient to warrant a conviction of the accused, then the court may decide against instituting trial or it may request the public prosecutor to collect further material, which will be of an exonerating nature also. After the trial has been ordered, the proceedings are entirely in the hands of the judge, and in the case of the courts attended by several judges [Kollegialgerichten], in the hands of the presiding judge. By studying the documents, the court finds out how the preliminary proceedings were conducted as well as the results obtained. However, except in a few instances, the court may make use of the preliminary proceedings for informational purposes only, so to speak, only as a jumping-off point for the main proceedings, which alone are decisive for the final decision. In these main proceedings the oral principle alone applies. Only that which is presented at these proceedings by the defendant himself, by witnesses, experts, and documents can be considered by the court in passing judgment, but not the interrogation transcript of the police or the public prosecutor. The presiding judge guides the proceedings. He examines the defendant who can make statements pertaining to the case in question, but who may not take the stand as a witness as is the case in American proceedings and who can also not be sworn in. Should the public prosecutor or the counsel for the defense desire to ask questions of the defendant, they may do so only through the presiding judge. The examination of the defendant is followed by the hearing of the witnesses and of the experts. This is also carried on by the judge. The public prosecutor and the defense counsel have the right to put pertinent questions to the witnesses and to the experts, which the judge must permit in accordance with the regulations within the framework of the code of criminal procedure.

The role played by the counsel for the defense must be described in detail. In comparison with his role in the Anglo-American procedure, he is not so important here. Whereas in Anglo-American procedures the prosecution as well as the defense, so to speak as two parties, submit their case for the decision of the court, in German procedures the investigation of the facts of the case in the trial, the rules concerning the extent of evidence to be collected, the serving of summons to witnesses for the prosecution and defense, without the prosecution or the defense filing any requests, are in the hands of the court. According to that, the public prosecutor and the counsel for the defense in reality only support the court in investigating the facts of the case, which is the duty of the court itself. Because of this role played by the counsel for the defense, it follows that in German criminal proceedings the defendant is represented by a counsel only in a comparatively small percentage of cases, and in all the other cases the defendant just does not employ a counsel for his defense.

The question regarding the contesting of a verdict rendered by a court of first instance demands thorough clarification. In this connection, we will demonstrate the meaning and the purpose of the nullity plea and of the extraordinary objection. We will prove that it was not National Socialistic thinking in terms of violence [Gewaltdenken] which gave rise and impulse to their introduction, but rather considerations regarding the technique of procedure. By extending the competency of such courts, which had to decide only in one instance, the necessity arose for a higher instance to be able to take care of reviewing decisions. To be sure, considerably eased regulations regarding the review of verdict rendered by special courts had already been introduced when these courts were first established. However, these regulations proved by providing a resumption of proceedings [Wiederaufnahme des Verfahrens] insufficient in practice, particularly after it became evident that economic offenses called for uniform laws throughout Germany. Considerable divergence insofar as the legal interpretation of the new laws was concerned and with regard to the meting out of punishment became apparent in the procedure of the different courts, through a constant surveillance, which became especially necessary in view of the changing economic conditions. To obtain uniformity in this respect, new opportunities for additional legal redresses were created. We shall demonstrate that the nullity plea is a method of procedure which has been taken over from the former Austrian law. The diversity in legal conceptions concerning the principle of ne bis in idem [double jeopardy] with regard to legal remedies will be treated in this respect.

The indictment also makes it necessary for us to decide how far a state may and can consider itself competent to extend its power to punish [Strafgewalt] acts committed abroad. Is it consistent with international law to prosecute foreigners for punishable acts committed abroad? The extent to which a state may take it upon itself to take action for acts committed abroad depends on whether such state inclines toward the principle of personality [Personalitaetsprinzip], the principle of territoriality [Territorialitaetsprinzip], the principle of protective law [Schutzrechtsgrundsatz], or the principle of universal law [Weltrechtsgrundsatz]. As can be seen from a study of comparative law and from the history of law, diverse and variable opinions are held about this in the different countries, and the science of international law after the First World War shows this in particular. We shall point out the basic principles which are contained in sections 3 and 4 of the Penal Code of 1870, and we shall find again in the Supplementary Law (Novelle) of 6 May 1940, which extends the sphere of authority of the penal law, and which is now being assailed by the prosecution, ideas drafted for the reform of the penal law conceived long before 1933. Article 153a of the Code of Criminal Procedure is, to a certain degree, intended to act as a safety valve against a too exaggerated application, and has in fact greatly reduced prosecutions, and it shall be dealt with in this context.

The discussion on the introduction of German law and the establishment of German courts in the Protectorate will cover the three decrees of the Ministry of Justice, which were also issued as a result of a decree published by Hitler in the form of a law, and an ordinance supplementing this decree, both of which were not countersigned by the Reich Ministry of Justice. In this connection, it is necessary to clarify the international relations existing between the so-called Protectorate and the German Reich. Are we concerned with a bilateral international treaty negotiated between Hacha and Hitler, an intervention, an annexation, or an occupation? From the subjective point of view, what the German public and what the defendants actually knew about conditions then prevailing will be decisive in each case. We shall have to discuss here and at other occasions—and this is not dependent on the above—whether within the scope of the indictment concerning a crime against humanity, the actually selected form of legislation and administration of justice is not also justified in its scope under different international conditions. Can one, to give an example, consider it inhuman if members of the Protectorate were subjected to the provisions of the German Criminal (Penal) Code regarding treason and high treason, if the provisions of the law governing occupied territories would also have justified the same penalties for aiding and abetting a hostile army?

With regard to the introduction of German law in the Eastern territories we must first of all consider that they were essentially divided into the following three groups, namely:

1. Territories which were part of the Union of Soviet Republics after September 1939;

2. The so-called Congress Poland [Kongresspolen], the principal part of the Polish Republic, which was administered under the designation of Government General, and finally;

3. The western parts of Poland, which before 1918 were made up mainly of the German provinces of Poznan, Upper Silesia, and other small parts of provinces. German jurisdiction was introduced only in areas mentioned under 3, and they were designated as “Incorporated Eastern Territories.” The former Russian territories mentioned under 1 were subordinate to the military and civilian governors, and the Government General mentioned under 2 to Governor General Dr. Frank. Both these groups were completely outside the administrative competency, or even the sphere of influence, of the Reich Ministry of Justice.

If, therefore, we have to concern ourselves with the question of the introduction of German jurisprudence only in the so-called Incorporated Eastern Territories, then we shall call attention to a point of view widespread in science and actual application, whereby a declaration of war renders treaties [staatsrechtliche Vertraege] meaningless between the parties at war. Not only was this point of view especially advocated in a detailed justification by the Reichsgericht, as the German Supreme Court, already after 1918, but it was also championed in French works on international law, as for instance in Foignet’s Droit International Public [International Public Law]. It will be shown that other states have in fact also accepted this point of view. The recognition that this viewpoint concerning international relations was actually followed in practice will be shown by an agreement concluded between Germany and the Soviet Union, which pertains to judicial procedure in civilian matters in Polish territories incorporated into the Soviet Union in 1940.

The answer to the question—which has already come up many times during the examination of witnesses by the Court—namely the question, whether it was permissible to apply the criminal ordinance for Poles [Polenstrafrechtsverordnung] also to those Poles who did not come to Germany of their own volition, will depend on whether we consider the introduction of German jurisdiction in the above-mentioned extent admissible. I don’t believe that the evidence presented by the prosecution covers a case which proves that a Pole who did not come to Germany voluntarily, was sentenced. Generally speaking however, we will have to take into consideration the fact that the Pole who came to Germany was subject to that law which then applied in his former place of residence.

So that the jurisdiction in so-called Night and Fog [Nacht und Nebelsachen—NN] cases, can be judged, we shall put in evidence that in the main the military courts alone were competent. Section 3, paragraph 2, of the Decree for Military Jurisdiction During Wartime [Kriegsstrafverfahrensordnung] formed the legal basis for handing over those cases to the general courts. This decree concerning military jurisdiction during wartime and special operations was issued on 17 August 1938, and published in the Reich Law Gazette 1939, part I, page 1457. It was only signed by the Fuehrer and Reichskanzler and by the Chef des Oberkommandos der Wehrmacht [Chief of the Supreme Command of the Armed Forces].

This decree fixes the scope of military jurisdiction and subordinates all foreigners and Germans to this military jurisdiction for all criminal offenses committed by them in the area of operations. According to section 3, paragraph 2, of this decree, military courts however are to prosecute such crimes only if it is judged necessary for military reasons. It is within their discretion to turn over the prosecution of criminal cases to the general courts.

On the basis of this legal foundation, and in accordance with an agreement between the Chief of the Armed Forces Legal Department, Dr. Lehmann—who has appeared here before the Tribunal as witness—and the former Under Secretary Dr. Freisler, prisoners held in Night and Fog cases were placed before a German court in the sense of paragraph 30 of the Hague Regulations on Land Warfare.

The fact that the proceedings [of an NN case] were kept secret in all its phases was justified for military reasons. According to paragraph 6 of the basic treaty of the Hague Regulations on Land Warfare, military interests come first, and then comes the protection of the civilian population. The administrators of justice could not decide about the scope of the military interests. It could never be the task of the civilian judicial authorities to judge whether the military commanders correctly interpreted the competition of military necessity in the sense of subparagraph 8 of the introduction to the basic treaty of the Hague Regulations on Land Warfare.

Within the framework of these military necessities we will also clarify the motive of intimidation which follows from this. A deterrent could, according to the views of the parties concerned, be achieved only by the severest punishment, with a judgment in the enemy country. The legal basis for this was given without more ado in accordance with those existing provisions of military law which correspond to international law. It concerned cases throughout which can be punished with death, according to general military law, such as espionage, sabotage, aid and comfort to the enemy, and illegal possession of arms. Is it then a violation of the law of humanity if allowance was made for the principle of a deterrent in another manner, and standards were introduced into the proceedings before the courts in Germany which, regarded absolutely, are attacked by the prosecution, but which have been introduced here to avoid an administration of justice which would pronounce the death sentence excessively? We will prove that in the proceedings before the Night and Fog courts, sentences of imprisonment were pronounced in an overwhelming proportion, and that the quota of death sentences was very small. It will be clearly shown that the deviations from the normal proceedings which were shown by the Night and Fog proceedings were all conditioned by the principle of secrecy. A full consideration of German criminal procedure will show that many limitations in the leading principles of German criminal procedure mean either no disadvantage at all, or at any rate merely a far lower degree of disadvantage than it may appear to a person accustomed to thinking only along American principles of procedure.

Article 3, paragraph 2 of the Rules of Military Criminal Procedure will also prove that the Night and Fog prisoners had been handed over to the civil authorities only for the purpose of the execution of the criminal proceedings, and that moreover the power of disposal over these prisoners was reserved for the offices of the Wehrmacht.

When we see that the Night and Fog proceedings had been taken over by the judicial administration by virtue of an order of the Fuehrer and by virtue of the delegation of the military authorities competent therefor, the question of the relationship of international law to the German State law will also be submitted for consideration. The German science of political and international law has always unanimously advocated the view that state law takes precedence over international law. This would be of significance in each case for the question of a consciousness of injustice on the part of the defendants.

The prosecution has also concerned itself with “lynch justice” [Lynchjustiz]. The defense will present documents proving that the judicial authorities criminally prosecuted, in spite of the violent opposition of the Gauleiter concerned, Germans who had mistreated or shot Allied fliers forced to abandon their planes, and that they protected Germans who treated such Allied fliers humanely. This positive attitude of the judicial offices will constitute an illustration of the relations of the powers [Machtverhaeltnisse] at that time. The Party and the police in their attitude were opposed to each other. The leader of the Party Chancellery had ordered all State and Party offices not to interfere with the execution of “lynch justice” on Allied fliers. The Minister of Justice could not ignore this order. He applied it in a manner that could be interpreted as quashing the proceedings. This weakening of an order instigated by the Party and the cases in practice mentioned show here, too, the basic tendency in the consideration of the actual relation of the powers.

Arguments from the aspect of reprisal will also be made, which are supplementary to the question of “lynch justice.”

The German Law of Pardons needs also to be presented and dealt with in detail, since it represents the basis, after all, for the proper evaluation of numerous documents presented by the prosecution, including the report lists of the Reich Ministry of Justice in matters of the death sentence. It has been fully codified, and we will refer to the numerous legal provisions. The entire system of pardon will justify the statement that it was most painstakingly built up with every safety measure and must withstand any criticism as a system. The law of pardon was incumbent upon the head of the State. Hitler transferred his executive power to Reich Minister Thierack, even for death sentences, whereas the latter’s predecessor in office, Reich Minister Guertner, and after his death, Under Secretary Schlegelberger, were restricted in the execution of the law of pardon in that they could recommend to Hitler to pardon a person sentenced to death, but they themselves could not pardon a person. What resulted is necessarily an orientation toward the utmost which could be obtained from Hitler. The manner they used and how the whole tendency on the part of the participating offices was to exhaust fully the possibilities for pardon which were offered will be shown in the evidence.

From the individual provisions we will see that in matters of death sentences, for example, the Oberstaatsanwalt, regardless of whether the condemned person had personally submitted a petition for pardon, had to make a thorough report on the question of pardon after he first gathered the attitude of the court, the presiding judge, the prison authorities, the police, and still other offices prescribed in special cases. This report goes to the Generalstaatsanwalt who on his part must then state in detail his attitude about the pardon report. In the Reich Ministry of Justice, special Referenten had been appointed for dealing with pardon questions. These Referenten were supported by numerous co-workers. The co-worker had to present an opinion with an exact report of the facts, an opinion on the legal question of the individual case, a criticism of the judgment with regard to the factual and legal aspects, and a detailed statement on the question of pardon. The Referent, on his part, as well as the division chief, had to add their attitude to this opinion. Only if all reporting offices, the co-worker, the Referent, and the division chief unanimously recommended that the sentence be carried out was the matter designated as a so-called smooth affair [glatte Sache]. In this case the Referent in charge of death sentences reported personally to the Minister, calling special attention to all the circumstances of the case worth remarking on. On the other hand, even if one of all these participants recommended commuting the death sentence to a prison sentence, then the co-worker had to present his detailed opinion in person to the Minister; and the Referent, the division chief, and the under secretary stated their attitude at the request of the Minister.

The same procedure was also used in principle in cases of so-called immediate execution [Blitzvollstreckung]. This concerned cases from the last years of the war, in which the facts of the case and the legal question to be decided on were straightforward; moreover, it concerned cases in which, on account of the fact that the deed had caused considerable stir among the public, a special deterrent effect should be obtained by carrying out the sentence as soon as possible after the deed had been committed and judged. The only difference in dealing with these immediate executions and the usual procedure was that all reports and opinions were given by telephone, telegraph, teletype, or verbally, and on account of its being a straightforward case no files were submitted.

The indictment also contains the charge that the amnesty laws were administered according to political view. The provisions in question will be discussed in detail when the evidence is presented.

Hitler’s constitutional right to quash pending criminal proceedings [Abolitionsrecht] will be shown in its practical meaning.

Regarding the carrying-out of sentences we will deal with the legal provisions and the regulations applicable in penal institutions. The defense will prove that no crimes against humanity were committed in penal institutions of justice by its officials with the exception of occasional violations which are unavoidable even under the best directions. The rules of the strict legal provisions of the German Penal Law against the ill-treatment of prisoners will emphasize this point. The cases mentioned which date from the last days before the collapse offer, as a singular sign of that moment, no basis for a general judgment of the German execution of punishment and will be referred to as each individual case comes up.

The action of the Spruchrichter dealt with in the indictment and the charges raised in this connection will bring the legal position of the German judge up for discussion. We shall see the judge as an independent official who is not bound to directives but only to the law. We will discuss the positivism of the German interpretation of law. We will deal with the prosecution’s charges arising from the directing regulations. We will show that they are merely a reference to the motive and aims of the law in question, and that they, to some extent, give a clear conception of the policy of the legislator regarding crime. They are a clue to the way in which the legislator imagines punishment should be awarded by the judge. They are in no case a general directive or a directive pertaining to an individual case.

In dealing with the position of the public prosecutors we will refer to the principle of legality which is laid down by law, and according to which the public prosecutor was bound to prefer a charge as soon as there was sufficient suspicion that the criminal facts as laid down in a legal provision existed.

In conclusion the defense will also deal with the legal questions, arising from Control Council Law No. 10 itself. We know that the Tribunal has been called together in order to pass judgment on the basis of this law.

On the basis of this actual fact and in compliance therewith, we will for practical reasons refrain from repeating the relevant objections already raised in the proceedings before the IMT and other proceedings before similar Tribunals in session. On account of these considerations we will restrict ourselves to the real legal questions as to whether an indictment is permissible from the point of view of conspiracy in war crimes and crimes against humanity of Control Council Law No. 10. In this respect my colleague, Dr. Haensel, will provide detailed statements hereon in due course.

At the beginning of the evidence for the defense and in connection with the opening statements on behalf of the individual defendants, the defense intends to call in two experts for the legal questions of general interest, namely Dr. Jahrreiss, Professor of Public and International Law at the University of Cologne, and Dr. Niethammer of Tuebingen, formerly attorney at law, now Honorary Professor of Criminal Law and Criminal Procedure.

As far as documents being introduced with regard to the general questions discussed—

We will not be able to produce Dr. Jahrreiss at this time. Professor Jahrreiss cannot get away; he will only be available later on in July, and perhaps a suitable moment will come then when he can be examined when we have dealt with the cases of the officials of the Ministry of Justice.[72]

As far as documents being introduced with regard to general questions discussed, they will be handed over during the defense of the individual defendants. For the purpose of survey we will at the conclusion hand over the documents relative to a particular subject compiled in a special document book.

The defense has distributed the subjects which have arisen as a result of my survey among the individual counsel for the defense. Counsel in question will go into these cases during the proceedings and in particular at the time of the closing statement.

The subjects are classified in the following manner:

1. General questions on public law and international penal law—Dr. Schilf.

2. Legislative—machinery and technique—myself [Dr. Kubuschok].

3. Relationship between judicial authorities and police—myself.

4. Relationship between judicial authorities and the Ministry of Propaganda and the news service in the Nazi State—Dr. Schilf.

5. System and structure of Reich Administration of Justice—Dr. Schilf.

6. Introduction of German law and German jurisdiction in the Protectorate and the Occupied Eastern Territories—myself.

7. Sovereignty of justice in the incorporated and occupied territories—myself.

8. German court organization, Special Courts and People’s Court—Dr. Brieger and Dr. Grube.

9. German criminal procedure—Dr. Doetzer.

10. Extraordinary objection—Dr. Grube.

11. Nullity plea—Dr. Schilf.

12. Retrospectiveness of penal laws and legal analogy—Dr. Aschenauer and Dr. Schilf.

13. Types of perpetrators—Dr. Schubert.

14. Military penal law—Dr. Koessl.

15. Independence of judges and directive measures—Dr. Aschenauer and Dr. Schilf.

16. Law of pardon—myself.

17. Execution of sentence—Dr. Marx.

18. Lynch law—Dr. Orth.

19. Sterilization and Euthanasia—Dr. Orth and myself.

20. Conspiracy and Control Council Law No. 10—Dr. Haensel, Dr. Doetzer, and Dr. Wandschneider.

May I now begin making my statement for the defendant Schlegelberger?

Presiding Judge Brand: Do you have that in the translated form for us? We have it, thank you.

C. Opening Statement for the Defendant Schlegelberger[73]

Dr. Kubuschok: If, in my statement concerning the defense in general,[74] I have just pointed out that the administration of justice in the National Socialist State cannot be judged separately but must be judged in the light of the whole administration of the Reich and its head, the dictatorship, I shall have to refer thus in defending the defendant Schlegelberger again and again to his personality, quite apart from dealing with the objective facts as propounded by the prosecution in order to judge and interpret actions in their proper light.

Franz Schlegelberger was, after many years of service to both the administration of justice and the jurisprudence, already Under Secretary when Hitler came to power. He kept this position until August 1942 when Hitler, according to his pronouncements wanted to build up a National Socialist administration of justice. Schlegelberger had always been dealing with civil law. We will outline this, his activity, in general. When in January 1941 after the death of the Minister of Justice Guertner, he took over the administration of the Ministry of Justice as the then oldest Under Secretary according to rank, so to speak; only then did he, in this position, and to the extent of that position, have to deal with criminal cases.

If the prosecution on account of this, his position, has indicted him on these individual counts and included him in the common legal framework of conspiracy, the defense will first of all show that Control Council Law No. 10 does not provide a legal basis for an indictment of conspiracy to war crimes and crimes against humanity. My colleague, Dr. Haensel, responsible for the entire defense, has taken over this subject and will make the necessary statements and put forward motions. In addition, I, myself, will submit sufficient evidence to prove that with a person of Schlegelberger’s caliber, conspiracy and violent thinking are incompatible. I shall submit proof, as to his basic attitude during the whole of his tenure of office, that he could never have either favored or promoted principles of violent thinking, that on the contrary, all his activities were aimed at preventing or at least modifying the course set by Hitler’s dictatorship. We shall see, how he wrestled with the opposing forces of the Party, and how unequally distributed the powers were, and how his defensive attitude was breached but forcibly. We shall learn how much Hitler had always disliked the administration of justice and its expert administrators, and that, at a time, when not only the whole of the administration in Germany but also the entire public life, even to a certain extent private life, had already been “coordinated” and shaped according to National Socialist ideas. On 20 August 1942, he had to realize the fact that he had to build up a “National Socialist administration of justice.” Does this not constitute the truest judgment of Schlegelberger that he be judged by a man, who after all, was best qualified to judge? Is it not evident that the administration of justice under Guertner and Schlegelberger had done their utmost to face the avalanche? Is Hitler not best qualified to testify against the charges brought by the prosecution, namely that Schlegelberger had lent himself to the carrying out of National Socialist ideas of violence as personified by Hitler?

With this point of view in mind we shall have to judge the defendant Schlegelberger: A man, known to us only by his work, performed with integrity, and whose activities, viewed from National Socialist aspects, Hitler criticized in the above-mentioned way both in his Reichstag speech on 26 April 1942 and in his decree of 20 August 1942. Such a person has a right to point out: “The charges brought by the prosecution which superficially regarded, appear to be against me, and the charges that the prosecution has brought against me in order to incriminate me for my 10 years of service as Under Secretary cannot be judged as isolated facts and without considering motives but must be evaluated as a whole.” Thus, we will best be able to gain breathing space after the speech of the prosecution, which is necessary in order to reach impartial judgment and which culminates in the conclusion that Schlegelberger “had indeed played a prominent part in the destruction of German law,” a reproach which he rightly rejects: with which also the statement of the British Broadcasting Corporation on the occasion of his retirement from office in August 1942, namely, that with Schlegelberger, the last judge in Germany, had disappeared—is incompatible.

Schlegelberger, under secretary for civil law, certainly knew how to supervise the orphaned Ministry of Justice for a year and a half in an administrative capacity. The one who succeeded him, his appearance already threateningly forecast, and to the stemming of whose course Schlegelberger devoted his whole self, escaped judgment. The aspect of being the representative [Gesichtspunkt der Repraesentanz] which obviously has influenced the prosecution essentially, has to be disregarded.

We will also have to take the fact into account, that Schlegelberger’s position as interim administrator of the Reich Ministry of Justice, did by no means equal that of a minister. If, in spite of these hectic times when everything was being infected by the National Socialist virus, he succeeded in retaining the position taken over from Guertner, his decision alone to remain in office until the limits of what could normally be expected of anyone, certainly not an easy decision, would fully justify this step. Judging by his personality and studying in detail the real and true situation during those years we shall explain what really was behind the Rostock speech mentioned by the prosecution. Evidence will be offered as to Schlegelberger’s real relations with the Party and how this was evident in the policy he pursued concerning questions of personnel.

His attitude toward Hitler will be subject to a careful examination. We shall be unable to do justice to this task if we do not also acquaint ourselves with those who blindly followed Hitler, and rendered the task of Schlegelberger and prior to that, Guertner’s, so difficult. Freisler, his antipode, whom Hitler by entrusting him with all matters concerning criminal law had made into a guardian of National Socialist ideas within the Ministry of Justice and all the other party officials who hated the last bulwark of constitutional thought.

With reference to individual counts of the indictment I shall point out that as “seditious undermining of the military power” [Wehrkraftzersetzung], so-called passive defeatism only became a punishable offense in 1943, and it was precisely for this purpose that the competency of the People’s Court was established as per decree of 29 January 1943. The practice of seditious undermining of the military power, to which the indictment refers, therefore did not take place until Schlegelberger’s retirement. At the time of Schlegelberger’s tenure of office these cases of defeatism were judged according to the Insidious Statement Law [Heimtueckegesetz] and were not punishable by death but by a maximum penalty of 5 years’ imprisonment. The extension of the German criminal jurisdiction to include crimes committed abroad as well was practiced before Schlegelberger took over the administration.

I shall deal in detail with the legal question of the extension of German law to the occupied territories and I shall throw some light on the origin and the application of the ordinance concerning crimes of Poles and Jews. I shall show by means of the documents already submitted by the prosecution what demands were made by the Party concerning the treatment of the Poles and Jews and how these requests were opposed by law and in practice. Schlegelberger’s general attitude toward the Jewish question will be the subject of the discussion.

Even if the prosecution connects the defendant Schlegelberger with the extradition to the police of so-called asocial persons as well as of Poles and of Jews, the defense will prove that those orders were only given according to an agreement made between Himmler and Thierack in September 1942. Previous, special cases only concerned direct orders by Hitler given to the police and which could not be prevented by the administration of justice. We shall see that the police had started during the time of Guertner to remove prisoners from the prison by command of Hitler if Hitler considered the sentence passed during the criminal proceedings, a too mild one. Only in order to prevent this if possible or at least to restrict it did Guertner insist that he be informed of this order at the same time as were the police. It was only because of that request that the administration of justice dealt with these matters at all. It will be proved that everything possible was done in order to prevent extraditions to the police.

I shall also speak of the practice of granting pardons and find here also a confirmation of Schlegelberger’s general attitude.

The indictment also deals with the so-called euthanasia. We shall see that Schlegelberger opposed the carrying out of the euthanasia program soon after taking over the administration. He obviously succeeded, for we shall establish that the measures were stopped in August 1941 and were only started again at the time of Thierack as can be seen from the meeting described by the witness Suchomel.

Concerning sterilization, we shall offer abundant evidence to prove that the practice of the courts for protecting the hereditary health of the German people was unobjectionable, that those courts had examined conscientiously whether evidence as to the facts required by the law had been submitted and especially sterilization for political or racial reasons was never decreed. I shall produce a witness to show that this procedure had been carried out in an unobjectionable way, even where Jews were concerned.

Regarding the question of the Night and Fog cases, it will be explained for what reasons and with which results the Night and Fog cases were taken over by the general courts. It also will be set forth what regulations were in force up to the date of Schlegelberger’s retiring from office. The extent and the consequences of restricting the proceedings necessitated by maintaining secrecy will be explained.

By submitting documents I shall present evidence about the political development of the National Socialist State and the structure of its administration. I shall present documents referring to legal provisions and their explanations concerning the questions raised by the prosecution. Finally, I shall submit several affidavits which deal with certain questions and help to form a judgment of Schlegelberger’s entire personality. I shall produce a witness for the political and administrative conditions in the National Socialist State. Another witness will, as already mentioned, give evidence on the practice of the courts for the protecting of hereditary health of the German people and on general questions regarding sterilization. Finally, I shall name as witness the personal Referent of the defendant who for many years held this position up to the time of Schlegelberger’s retirement from office, and who by virtue of his knowledge gained through professional and personal experience will be able to give evidence on numerous questions which have to be discussed.

D. Opening Statement for Defendant Klemm[75]

Dr. Schilf: May it please the Tribunal. By way of introduction, I should like to call attention to the fact that the indictment also clearly implies with regard to my client Herbert Klemm that, permeated as he was with National Socialist convictions, his one endeavor was to realize, by judicial methods and throughout the judicial field, the aims of National Socialist despotism. The indictment also, indeed, implies that he was acquainted himself from the start in detail with the great extent of these aims. The prosecution has tried, in connection with each action and with each event that came to light anywhere in the files, to refer everything with which my client was concerned back to that fundamental conception. Yet in my opinion the prosecution does not make any effort to embark upon proof that the defendants had come to a mutual agreement in their own minds, such as must constitute the prerequisite for the conspiracy of justice, for the furtherance of the Hitler regime as alleged by the indictment. Instead, the prosecution is content to trace in every statement and every action simply a sign of malicious intent and bad faith without stopping to consider how such actions are to be estimated in the light of historical development and within the limits of the phenomenon as a whole and the practical possibilities. Just as the indictment desires to see in the legislative power [Rechtsschoepfung] conferred upon the judge by the alteration of paragraph 2 of the German Criminal Code an example of the judicial intention to try cases unrestrictedly and arbitrarily, without attention to legal guaranties, so also my client Klemm is credited with completely false motives in detail. Just as it will be proved by the defense that such legislative power for the judge had already been planned, long before 1933, in draft proposals for reform, with the object of creating the necessary synthesis between merely codified law and the actual development of law through the giving of legal judgments, so also shall I show, in my defense of the defendant Klemm, in general, that he, too, was concerned, in his measures, with the preservation of real justice. Reference will therefore inevitably be made to the background of historical development behind the measures with which he is charged, to the related points in the German legal system, and to the actual distribution of power existing during the Hitler regime. In this connection a great deal will depend on the view that is taken of his position, his potential influence and the limits of his authority.

In particular, I shall divide the subject matter of my proof into sections.

In the first place, it will be necessary to begin with the fact that, outwardly, the defendant Klemm has to bear a certain amount of odium: he had joined the NSDAP before it took over power, and he remained in it until the capitulation; he was at first Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice, he was chief of liaison with the SA and reached high rank in that organization, he was a group leader in the Party Chancellery, and he was finally to become Under Secretary in the Reich Ministry of Justice, the last position he held, and a personal friend of and very close collaborator with Thierack, the Minister. The indictment evidently intends, by giving this outward impression, to exhibit Klemm as a man who considered justice to be a means, and treated it as a means, to exclusively political ends. I shall prove that this was not the case. In order to demonstrate the seeming contradiction between outward appearance and actual private character, I consider it my duty to give the Tribunal a comprehensive picture of the personality of my client as a jurist and as a man. It will become evident that he was and remained a simple and straightforward person, even after he rose higher in his career, that he was a man of sensitive disposition and refined feeling and always endeavored to act objectively and above all justly. I shall therefore have to ask my client to explain in the witness box the ideas he had conceived as to the aims of the NSDAP, the hopes he had before him in the legal and political field, and the way in which he believed it possible that the political intentions of the leadership of the state could be combined with the idea that law has to prevail. He will have to explain to the Tribunal how many things he actually did not know in order to enable us to gain an accurate picture of the situation at that time and of the developments.

So far as the separate phases of the activity of the defendant Klemm are concerned, it must be said—

The indictment takes as the first phase his activity as Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice. The two charges specially raised against him in this field are concerned with the so-called “more severe interrogations” through organs of the Gestapo and with the fact that he was the Ministry’s chief of liaison with the SA. I shall prove that it was not the duty of the defendant to suggest in certain cases “more severe interrogations,” in other words, maltreatment of prisoners by the Gestapo. It was, on the contrary, his duty to prosecute such cases through criminal proceedings, since also the Gestapo and its organs were prohibited from ill-treating prisoners. In this connection I shall be able to take the opportunity to describe the attitude of my client by reference to the documents which were submitted in the IMT trial. It was the defendant Klemm who as an official in the Ministry of Justice of Saxony suggested the strict prosecution which was made so much of both in indictment and in the judgment given in the IMT trial of those SA men who had rendered themselves guilty of ill-treatment of prisoners in the concentration camp at Hohenstein in Saxony. There is no ground for the assumption that Klemm’s attitude changed at a later date, when he worked in the Reich Ministry of Justice.

The position of a chief of liaison between the Ministry and the SA leaders will be described by me through reference to the documents. The judiciary as a public authority, had the duty to inform the SA leaders of any prosecution or condemnation of a member of the SA. It was the purpose of such information to give the SA leaders the possibility of removing criminal elements from their ranks. This purpose was known to the Reich Ministry of Justice. The chief offices of both organizations had to exchange information and experience and were obliged to ascertain in which special cases they had to be interested. It was necessary to appoint a special Referent for this purpose, merely in order to simplify the handling of these matters. This post was filled by my client Klemm, since he was simultaneously both a member of the SA and of the Ministry of Justice. I hope, indeed, to prove with special effect that it was absolutely opposed to Klemm’s conception of his office as such a liaison chief to suppress criminal proceedings against SA members or protect them against prosecution, but that on the contrary he thought it necessary to support vigorously the interests of justice against the SA leaders. An individual case will give me the opportunity to demonstrate how also in this field Klemm was guided by legal consideration alone, and this individual case will be symptomatic of the attitude of my client.

In order to be able to judge correctly the activity of my client in the Party Chancellery, I consider it my duty to describe first of all the sphere of work and problems with which the Chancellery itself had to deal. This seems to me all the more necessary, as evidently completely false ideas of this organization are prevalent. I shall therefore have to show that by reason of legal regulations the latter had to take part in all the legislative and administrative work done by the Ministry of Justice and that it was not simply an office that carried out tasks concerned purely with Party politics. In the constitutional structure of the Third Reich, the Party Chancellery had to perform public functions. I may already at this point draw the attention of the Tribunal to the fact that my client is not affected by count four of the indictment, in spite of the fact that he was employed in the Chancellery of the Party. It is indeed a significant indication that the prosecution has formed an incorrect view of the Party Chancellery, if an official could be employed there who did not belong to the corps of leaders of the Party.

An explanation of the bureaucratic structure of the Party cannot be avoided; its division into separate departments and groups will have to be described. The defendant Klemm was at the head of only a subordinate group in the Party Chancellery. Its number was IIIc. I would ask the Tribunal to be so good as to take due note of this number IIIc in my speech for the defense, so far as the latter is concerned with the Party Chancellery, and also when I come to explain the documents relative to the Party Chancellery. My client was employed exclusively in this legal group. This outward sign alone is an important circumstance to be considered in arriving at a correct estimate of the work of my client. The special task of this Group IIIc was to deal with all matters which affected law, codification, and the administrative work of the Ministry of Justice. The officials in this legal group remained, as did Klemm also, officials of the Ministry of Justice; they were merely delegated by that ministry. They also therefore represented in the Party Chancellery the idea of justice and the concerns of their own ministry. Whenever different questions were raised in Group IIIc, for example, questions as to the legal disposition of the affairs of foreign peoples, a different department or group of the Party Chancellery dealt officially with and decided upon the matter. Owing to this restriction of the field of their work the legal group could only raise objections against the treatment of any matter in another department if formal questions were handled. The legal group had no right of appeal if a matter had been decided on principle by other groups. Thus, it will be shown that the decree about penal law with regard to Poles was not dealt with or decided upon in Klemm’s legal group but in Group IIIa of the Party Chancellery, which was concerned with questions on ethnic origin [Volkstumsfragen]. The defendant Klemm, therefore, could not exercise any influence whatever, during the period of his employment in the Party Chancellery, on the provisions of this law.

Through further evidence it will be made clear that Klemm’s position in the Party Chancellery, as a consequence of the latter’s special method of working, could only have slight influence on decisive matters. Really important affairs concerned with politics or both politics and law, so far as they may interest the Tribunal and the prosecution, were not handled by the legal group headed by Klemm.

The officials of the Party Chancellery, so far as they were group leaders, had no influence whatsoever on politics. On the contrary, this was done by the Party’s own office. The latter had no state functions as had the Party Chancellery. The NSDAP had offices for agricultural policy, people’s welfare, people’s health, a national legal office, an organization of Germans living abroad, and many more. There the political principles were planned, there the influence was exercised that found expression in the sentence: “The Party gives orders to the State.” All these offices of the NSDAP must be separated clearly from the Party Chancellery with its function of a public nature. These Party offices transmitted their plans through the competent “Reichsleiter” directly to Hitler as the Party leader and head of State.

Also the position of Bormann must be explained. He also had a variety of offices and functions as Reich leader, secretary of the Fuehrer, and leader of the Party Chancellery. At the time when Klemm was working in the Party Chancellery, Bormann was regularly in the Fuehrer’s headquarters and thus away from Munich. All important questions of a general nature, also those affecting justice and its policies and organizations went directly to Bormann in the Fuehrer’s headquarters. There Bormann himself ordered that most of the matters be handled at once. In such cases Klemm’s legal group often received no information at all of his decision, or at the most a copy subsequently. When Bormann transferred a job to the legal group in Munich he included as a rule instructions for the handling of the matter. When things were handled in this way by Bormann no objections could be raised. Moreover, the evidence I will produce will destroy the rumor that my client had close contact with Bormann. They disliked each other very much. The main reason was that Klemm did not accede willingly enough to the wishes of Bormann. It occurred only very rarely that Klemm reported to Bormann. To a much greater extent than other subdepartment heads of the Party Chancellery, Klemm also informed Bormann about his own point of view.

After I shall have tried to clarify the unclear and dark picture of the Party Chancellery, I shall discuss in detail the working method of my client and I will outline in what matters he participated and how far he is, therefore, responsible and in what matters he did not participate.

(a) A series of documents submitted by the prosecution carry the dictation symbol of Bormann; I shall show that all these documents can have nothing to do with my client, Klemm. They were prepared solely by Bormann and his staff at the Fuehrer headquarters. No copy was sent to the Party Chancellery at Munich, so that the legal group never received any knowledge of them. This is the reason why it is so important to draw attention to the symbol of the legal group, namely, IIIc. Klemm neither prepared, nor had any knowledge of, any letters of the Party Chancellery which do not bear this file number. Just as an example I mention Thierack’s letter to Bormann on the collaboration of the judicial authorities in the extermination of Poles, Jews, and gypsies (NG-199, 199A, Pros. Ex. 243). As “Top Secret Reich Matter” this writing never reached section IIIc of the Party Chancellery.

(b) I will show that the defendant cannot be held responsible for a possible crime in which the huge organization of the Party Chancellery may have been involved, but not the defendant, if he had never participated in the planning, and if he could never have received information about it. It is my opinion that this is also not possible by using the concept of conspiracy or the broadly defined forms of participation according to the Law No. 10 of Control Council. Such a reasoning is not possible especially if I will prove how strongly Klemm advocated—especially in the Party Chancellery—the idea that law has to prevail in a state, and how he tried to prevent that Party organs be influenced in any unfavorable way. Every day the Group IIIc received complaints against the justice, the judges, and against the offices of the administration of justice which wanted to influence pending proceedings or even to change sentences which had already been passed. Work in connection with such complaints made up the biggest part of the working time of this group. In all these cases the complaints were rejected by stating that the judge is independent. I shall submit evidence to show that the Party Chancellery, particularly Group IIIc, expressly forbade all political leaders (that is, the Fuehrer Corps of the NSDAP) to interfere in the jurisdiction. It will be demonstrated that this circular decree was issued on Klemm’s initiative. I shall disprove the assertion of the prosecution and shall show that my client advocated emphatically the punishment of Party members who were found guilty of an offense. Accordingly, Klemm did not use his position in the Party Chancellery to keep justice under pressure but on the contrary tried to promote the interests of justice and the idea that law has to prevail in a state. In the year 1941, for example, he succeeded in persuading Bormann in a memorandum to reject the plans of Himmler, who attempted already at that time to transfer the jurisdiction over the Poles to his police.

(c) The documents submitted by the prosecution, so far as they really affect the legal group of the Party Chancellery, will not be able to invalidate my above assertions. When I will submit the evidence for the defense I will have the opportunity to explain the purpose and the context of these documents. It will be possible to correct many misinterpretations.

In this connection it seems to be necessary to explain briefly the fact that Klemm’s influence in the Party Chancellery was never so great that it could have played any part in the appointment of Thierack to Minister of Justice in the year 1942. Many a person who could not know the actual events and their background may have had some fantastic ideas in this respect. The explanations of the defense will destroy these conceptions.

(d) With regard to the activity of my client as Under Secretary in the Reich Ministry of Justice, it will be the task of the legal presentation to separate those actions and measures for which he is responsible from those for which he is not responsible. Also with regard to this point I shall emphasize my point of view that on basis of Law No. 10 of the Control Council, my client cannot be held responsible for what he himself did neither instigate nor approve. In order to be able to find the facts which will serve as the basis for such legal arguments, I must give you during the proceedings of evidence a detailed picture of my client’s position as Under Secretary, of his working field, and of the extent of his personal influence. Even externally the position of the Under Secretary had changed considerably since the appointment of Thierack. While before this time the Under Secretary in the Ministry of Justice stood on principle between a section chief and the minister, after that time his function declined to the extent of being a figure [figurehead] beside the minister. Formerly the Under Secretary had a broad working field and had authority to make important decisions himself, and only the most important matters reached the minister himself, such as bills or critical matters with regard to policies of the State and of justice. Thierack himself on the other hand, handled all matters with regard to the administration of penal law which the section chief was not permitted or did not want to decide, and he degraded the under secretary to a position in which the latter could merely give his opinion like any other expert. It is correct, that from an external point of view the working field of my client seemed to be greater than that of his predecessor, Dr. Rothenberger. The sections of Ministries III (legislation in the sphere of criminal law), IV (administration of criminal law), and V (execution of sentences), which were not under the latter’s jurisdiction were formally reassigned to Klemm. This seeming extension—my client was thus practically in charge of the whole Ministry of Justice with all its main sections but with the exception of section XV (section for secret matters) which was already in the process of dissolution—actually resulted in a curtailment of his executive powers. Only in a limited field did he receive the authority to make independent decisions, namely as chief of section II, which was concerned mainly with educational problems and whereby Klemm was entitled in personnel matters to propose appointment and promotion of officials up to the grade of Landgerichtsdirektor and officials of equivalent rank. In all other fields he was subjected to the domineering orders of the minister in the same way as every other official of the Ministry. Although he could call for the report of an expert and could thus bring a matter to be decided within his sphere, he was prevented from doing so if the minister himself reserved the final word for himself. Through presentation of my evidence it will be made clear how Thierack, because of his previous career, directed his interest, perhaps his only interest, to problems of criminal law and execution of sentences.

Thus, we will recognize that the above-mentioned main sections of the Ministry were only formally under the jurisdiction of Klemm and that no change “in the line of the direction of justice,” as Thierack expressed it in a discussion of the section leaders on 7 January 1944 (NG-195, Ex. 45) resulted from the appointment of a new Under Secretary. It will be proved through the evidence how little the Under Secretary could care for other sections, and that because of the external circumstances, as for instance the evacuation of whole sections from Berlin, he was only rarely present at conferences with the minister or was left out intentionally.

(e) This limitation of the tasks of the under secretary through the organization was furthered through the personal qualities of the Minister, Thierack. A picture of Thierack will result from the documents and the statements of witnesses. He was an autocratic, brutal, and even a rude person. He pursued his views and objectives with remarkable stubbornness. Accordingly, he was hardly to be persuaded from an opinion once formed. He tolerated no one next to himself in his struggle for power. For such a person it must have been easy to suppress such a soft and yielding personality as Klemm. Thierack was not interested in problems of the jurisprudence in concepts of law. He thought that he was a politician and merely a practitioner of the administration of justice. The contrast in the characters had an especially unfavorable effect on Klemm’s method of working since Thierack thought he could treat Klemm merely as an official dependent on him personally. That resulted from the previous personal relations of the two men. When Thierack filled the post of Minister of Justice for Saxony immediately after the seizure of power by the NSDAP, Klemm was his adjutant. When Klemm after many years again had to come into personal contact with Thierack through his appointment to under secretary, he was in the opinion of Thierack, not more than his adjutant again. When he contacted his Under Secretary Klemm, his manners were just as rough as in his contact with other subordinate officials. Even in the presence of other officials he showed tactlessness, and treated him, too, with disdain and certainly not as a “friend and confidant,” as the prosecution obviously assumes. Thierack would not attach such weight to an opinion voiced by Klemm as would have been appropriate because of the latter’s official position. In my defense plea this personal relationship is of importance, so that it must also be shown that Thierack was an extremely reserved person. He disclosed his plans and intentions to nobody before they were carried out. He kept the most important political-judicial events and decisions secret even from his under secretary. When he received the visits of other Ministers, or higher Party and SS officials nobody else was present as a rule. This was particularly true in his contacts with Himmler and the people surrounding him, such as Kaltenbrunner. Of the contents of the discussions Klemm like the other officials of the Ministry was not informed until a decree of Thierack was published for the individual sections of the Ministry.

As to the outside Thierack used Klemm only if he considered it as advisable to emphasize his position as Under Secretary. Thus, Klemm signed legal decrees not really as deputy of the Minister who was absent, but only when Thierack thought that he should put his signature under a document of little significance. Klemm had to sign the correspondence with other ministries if Thierack preferred this procedure for reasons of prestige. This is the only reason for the fact that the so-called directing letters [Lenkungsbriefe] to the presidents of the Appellate Courts Stuttgart and Hamburg do not bear Thierack’s name but that of Klemm in spite of the fact that it was Thierack who, in individual reports, complained about the sentences as being too light.

(f) Starting from this general statement with regard to the evidence concerning Klemm’s position as Under Secretary, I will have to discuss in detail the documents submitted by the prosecution and the statements of the witnesses. Here it will be proved that the main counts of the indictment have no relation at all to the activities of my client. Almost all the measures which the prosecution declared as objectionable, were completed when Klemm took over the position of Under Secretary. The special regulations against members of foreign nations were issued, the Jews were already excluded from the jurisdiction of the justice authorities, the so-called transfer of asocial “prisoners to the police”—handled by department XV, which was never subordinated to Klemm, not even formally—was carried out. My client practically had nothing to do anymore with the Nacht und Nebel cases. The interpretation of the laws by the courts was distinctly crystallized; a steady practice had already developed during the preceding 4 years of war, when the sentences became more severe because of the conditions caused by the war. The prosecution did not submit any evidence showing that Klemm during his time in office as under secretary advocated more severe sentences, especially in cases of high treason. The award of punishment and the granting of clemency took place in accordance with distinctly developed standards. In this connection I will have to demonstrate in detail the proceedings which developed for the clemency questions in cases where a death sentence had been imposed. It will be proved that Klemm did not adopt Thierack’s severity-on-principle [grundsaetzliche Haerte], but that on the contrary, especially if the absence of the Minister offered an opportunity, he was inclined to be lenient. Impressive examples for this fact will be given to the Court from the document book of the prosecution 3-L, Document NG-414, Prosecution Exhibit 252.

In this connection the opportunity will arise to prove in general that it is only a mere assertion of the prosecution that the Ministry of Justice illegally ordered that a death sentence be carried out. Klemm did not participate in the issuance of directives concerning the clearing of jails when the enemy approached. These were affairs which were ordered by the executive department of the ministry (Dept. V). Evidence will be submitted which will prove that my client had practically nothing to do with Department V. They will prove that all decisions in these questions were always made by Thierack, without consulting his Under Secretary. Concerning the individual case about the illegal murder in the penitentiary Sonnenburg, the evidence obtained up to now through the cross-examinations of witnesses will be supported by additional evidence. It will clearly be shown that the Ministry of Justice was not responsible for these measures. It will be seen that Klemm did not know anything about the common plan of the Reich defense commissioner and the general public prosecutor and that therefore, he did not have the possibility to prevent that their intentions were carried out.

By reference to individual cases I will prove that, in accordance with the plea made by the entire defense the judiciary did not do anything which made the lynching of Allied fliers who were shot down possible. The contrary will be proved. It was Klemm who ordered that criminal proceedings should be started against Germans who had killed Allied fliers illegally. The disputes with the Party offices with regard to these orders will be shown. Furthermore, it will be proved that Klemm saw to it that Germans, who treated bailed-out enemy fliers decently were protected from subordinated authorities of justice who showed over-great zeal.

(g) When discussing the individual counts of the indictment I will try to find the basis of the evidence for subsequent legal considerations. This includes especially the question, whether it can be at all important for the judging of the facts of a crime, to examine the actions of a superior Minister in which the subordinate Under Secretary had also no part. Here the problem will not be the importance of an order with regard to criminal law, but it will be discussed that the necessary causal connection is missing. Going further we will have the opportunity to produce evidence before this Tribunal with regard to the subjective side.

I will demonstrate that Klemm, due to his conviction that law had to prevail in the state and due to his generally decent human attitude interceded on behalf of the law. It will be proved that my client was held in high regard by his co-workers in the Ministry, that he tried in many individual cases to mitigate the fundamental harshness of Minister Thierack who was severe on principle, that he always was ready to listen to other officials, that he always was ready to accept sensible suggestions; in general he was thus just the opposite of Thierack. This attitude also showed results, as will be proved, in the sphere of personnel policy. On principle he did not give any preference for positions to so-called “old Party members.” In case of promotions and appointments he recommended persons who did not belong to the NSDAP. I shall be able to show cases where he also recommended persons who were on the other side [gegnerischen Lager], if they had special professional qualifications. He tried to aid officials of justice who, for political reasons, were personally in difficulties.

(h) Extended fields which Klemm handled in the Ministry of Justice have not been mentioned by the prosecution. When submitting evidence I will have the opportunity to show especially that my client had to spend most of his working time in the Ministry for Department II of the Ministry. This department handled all questions which were concerned with the general training of all German jurists. Here the special difficulties which arose with regard to the personnel of the authorities of justice on account of the events of the war had to be surmounted. The evidence will show that my client in training the young jurists omitted all politics, that his work was absolutely unpolitical. Thus, the so-called ideological training and examinations which were very much favored in the time shortly after the assumption of power of the NSDAP and which found a specially exact expression in the “Referendar Lager [camp for prospective lawyers] Hanns Kerrl” were excluded from the professional education of the jurist. At the time when Klemm, at the beginning of the year 1944, took over his position in the ministry, all these things had been settled a long time ago. The most urgent practical problems, where one should get young judges, when and in what manner young jurists should make their examinations, how former soldiers were to be treated, and similar questions belonged to Klemm’s working field. This was practical work, also this field had nothing to do with “politics.” Thus, if the picture and the activity of my client will be made clear to the Tribunal, then it will be proved that it is not a cheap attempt of throwing the blame upon dead persons, then it will become clear that it has been tried to make my client here in the dock the deputy of Thierack and perhaps also of Bormann. Klemm is, however, not responsible for their guilt.

E. Opening Statement for Defendant Rothenberger[76]

Dr. Wandschneider: May I begin my opening statement? At the beginning of my opening statement I want to say a few words about the task of the defense as I see it.

I. The task of the defense

With the presentation of its theory of proof [Beweistheorie], the defense really starts its task in this trial. It is confronted with an indictment presented in the name of the world community against the justice officials in National Socialist Germany and referring to the moral conscience of just this world community. This situation requires a few words about the duties and position of the German defense in this trial. It is a cheap trick, if Germans now, subsequently, merely because the National Socialistic State has collapsed, declare very simply and without resistance that Hitler was “not right,” and if these same Germans during the National Socialist regime, completely renouncing their own attitude and personality, were opportunists and cooperated with the entire National Socialist Policy with just as little resistance. Such a confession on the part of the defense, which would be considered suitable only because the sentence of the International Military Tribunal established the amoral character of national socialism, would also be a cheap trick and valueless. Opinions are not formed on the basis of outward conditions, but on the basis of one’s own knowledge. Of course, we do know on the basis of our knowledge that under national socialism the basic rights and worth of the free individual and of the human community whose interests are inextricably bound together became corrupt and were destroyed and that is, by misuse and waste of the most valuable sources of power of the German nation itself and of other non-German nations. Only self-recognition, self-education, and efficient responsible cooperation of all members of a community lead to a really democratic way of life and state.

The above statements which were made in order to be honest and above board have not been made from the standpoint of any disinterested neutral third party. How could a German defense counsel be inwardly untouched by the arguments of the prosecution, regardless of whether and to what extent he, as a German, considers himself “guilty.” In view of the fact that the German people were entangled into error, misery, and guilt, should he not feel even more that he is one of them, and should he not try to gain that which cannot be lost—self-reflection, principles, and dignity. The defense wishes to thank the Tribunal for having given it full opportunity to represent the interests of its client in this spirit during this trial.