VI. FINAL STATEMENTS OF THE DEFENDANTS[553]

VI. FINAL STATEMENTS OF THE DEFENDANTS[553]

Presiding Judge Brand: The record will show that the defendants have already had the opportunity to testify at length under oath, and they are now accorded the privilege, in each instance, of making an unsworn statement for the benefit of the Tribunal.

We will hear the first defendant, Dr. Schlegelberger.

Defendant Schlegelberger: These words of Pope Gregor VII are world-famous: “I loved justice and hated arbitrariness; therefore, I die in exile.”

I feel confident that your judgment will save me from that fate. But I, too, in imprisonment, could not overcome the bitterness of being rewarded for my hard struggle for justice by this period of shame and misery. The charges and insults of the prosecutor do not apply to me. My life is not compatible with the intention of crime. The attempt to destroy the alleged myth around my person by showering abuse at a man who has aged honorably was bound to fail. The Goering affair has been cleared up as completely unexceptionable. The connection between it, my draft of a law, and my resignation is based on a freely invented malicious construction which lacks all foundation. In spite of my advanced age my defense was easy for me. All I had to do was to tell the Tribunal the truth. I have done so in the firm conviction that truth will be victorious and with the undaunted pride of a clear conscience.

Presiding Judge Brand: The defendant Klemm may address the Court.

Defendant Klemm: The prosecution has endeavored to show that I am not worthy of credibility. In long winded arguments it endeavors to connect a very few apparently positive points by combinations which lack all foundation, both in factual and political respect. Distortions and arbitrary additions have to serve this purpose. In the case of Sonnenburg it is said that Hecker had stated that Hansen had said that Klemm did not feel comfortable in connection with this matter. Not a word to this effect is to be found in the transcript of Hecker’s testimony. Although, in cross-examination, Hecker clearly could not maintain the agreement as he described it in his affidavit, the prosecution maintains the agreement, although its own witness, Eggensperger, denied it as well. And now another final example. Heydrich’s directives to his police agencies to take Jewish women into protective custody is presented by the prosecution as being an agreement with the judicial administration. There are many more examples. But please let me say only the following with regard to what the prosecution stated this morning. Due to the propaganda of the State, we were convinced at the outbreak of the war that justice was on our side. A dictatorship could not and does not permit its cards to be shown. And, finally, we are not here charged with crimes against peace. To what Mr. King said regarding Prosecution Exhibit 252,[554] let me state the following: The list of 17 January 1945, containing reports on death sentences, deals with a list of the Minister, for it contains doubtful cases, and from that I gathered that it could not be my list after I had also seen from the photostat that there were several dates on the top of the list. Even if both lists should be from 1945, the same applies as with regard to the lists on pages 154 through 157 in document book 3-L, according to which separate reports were made to me on individual cases and to the Minister on death sentences. If the prosecution bases its case on the testimony of the witness Altmeyer, this testimony has been refuted with overwhelming clarity by the testimony of Hartmann, Franke, and Ehrhard, and the prosecution overlooks that, in his cross-examination, the witness Altmeyer, in particular had to deviate from his affidavit. The prosecution mentioned furthermore a case of theft from airmen where proceedings were quashed. I remember the case distinctly. An airplane had been destroyed, and from the wreck objects had been stolen which had already been partly destroyed by rain and fire. The proceedings were stopped because the subjective prerequisites of theft could not be proved. The prosecution has failed to show what this theft from a wrecked airplane had to do with lynching of aviators. All in all, the result of the statements of the prosecution is as follows: In this trial it was not only German justice of the past years that was indicted, but the continental legal system, a system in which for many decades the obedience to the law and the norm created by the State has been the only task of the jurist. Before 1933 I had been educated and trained in this school of thought. What legal and factual opportunities were open to me I used in favor of justice wherever I could do so. To revoke laws and norms which had existed for years was not in my competency.

Presiding Judge Brand: The defendant Rothenberger may address the Tribunal.

Defendant Rothenberger: I was a National Socialist, and in that respect I distinguish myself from those who for 10 years and more were placed in leading positions in the Third Reich and today say that they were not National Socialists. When I realized that national socialism was destroying the very values for which I had lived and for which it had promised to work, I decided with all my energy to influence the development of national socialism in the sphere of justice. I did not want to be a hanger-on. It was not my way to content myself with tactical maneuvers or withdrawals, which gradually brought about an undermining of the administration of German justice. The struggle for the idea of the judiciary within the framework of a totalitarian state I made the focal point of my life. And, therefore, I consider myself to be under an obligation to declare today that the German judge and his judgment, since 1933, were subjected to excessive attacks from the Party and from the SS without being given any backing from the leadership of the Ministry. Here lie the causes for my actions. At the beginning, I believed that in a totalitarian state there could exist a free judiciary. In the course of time I realized that most of the Party leaders, and in particular the SS leaders, found the very essence of the judiciary an obstacle in their way. I did not wish it to be true that there should be no way to save my Fatherland from such a dangerous development and therefore I clung to Hitler. In so doing I found myself in the company of many clever people in all spheres of human activity in Germany and abroad. As to whether my reform of the administration of justice has been rightly called by the prosecution a Nazi reform which—it is true—called itself National Socialist, but which aimed at excluding the influence of the SS and the Party from the administration of justice, and which contains not one word against Jews or foreigners, but on the contrary claimed the entire administration of penal justice, including that for foreigners and Jews, for the judiciary—with confidence I leave it to the Tribunal to decide that question.

I do not ignore today that my life work which has eaten up my nervous strength was bound to fail; nor do I ignore that my aims were, at times, in contradiction to the practice of life and also my own attitude, but is it not always like that in the life of human beings that just because there are such abuses and just because at times one’s self is weak, one takes that very circumstance for a cause to set up postulates which serve as aim and direction, but which we cannot immediately, particularly in wartime, put into effect, since the power of conditions is stronger than ourselves. And how far the power of the SS and the Party had extended I realized as late as 1942 when I came to Berlin and got an insight into conditions in the Reich. That Hitler himself was a despot and that he coupled me together with a man who showed himself to be a tool, without any will of his own, of Himmler and Bormann, that was my tragic misfortune.

I had to experience one set-back after the other. At the very beginning of my work I was compromised in the whole of the Reich by the well known SD report of Himmler’s in October 1942, which prophesied that I would soon resign, and the only positive point which kept me was the hope and the confidence of the German judges.

There are only two charges of the prosecution which they made in their final plea that I want to answer now. How can the prosecution from my speeches in Hamm and Lueneburg, of the latter of which the text does not even exist, conclude that I was in favor of exterminating the Jews? Both speeches exclusively relate to degenerate and incorrigible criminals. In the usage of the German language, they are antisocial elements and for those elements I demanded, according to another prosecution document, a judicial authority. And the second charge is that I am a liar. The Jewish pogrom in 1938, they say, had been on quite a different scale in Hamburg from the way I had described it. As to how the Jewish question was handled in Hamburg you can see clearly not only from a prosecution document but also from the affidavit by the man whom the British, after the surrender, appointed Lord Mayor of Hamburg. I am speaking of Mayor Petersen who is half-Jewish himself.

That in my struggle I was placed in outward contact with wrong, that lay in the very nature of things. I assume responsibility for every action of my own. The consequences which are now borne by the whole German people justify the fact that former leading personalities also bear the consequences. But I am of the opinion that crimes which were committed by my greatest enemies behind my back cannot be held against me. As soon as I heard of them I drew the consequences.

After 16 months, in 1943, Himmler, Thierack, and Bormann finally made me unemployed. I was 47 years old at the time. Without overestimating the power of my personality, the road for the wishes of those men, concerning the administration of German justice, now lay open.

Presiding Judge Brand: Defendant Lautz may now address the court.

Defendant Lautz: At the beginning of the prosecution’s oral presentation, the chief prosecutor emphasized that the roles which the defendants are assigned in these proceedings are new for them. That is true, as far as this refers to the position which we now have to hold before this Tribunal. Apart from that, we public prosecutors are quite familiar with the role of defendants in criminal proceedings. A man like myself who, in 25 long years, became acquainted with the fate of men in prisons, in courtrooms, in penal institutions, and on the way to the place of execution, knows very well the tragedy of this role and one who, under the official robe, has preserved a human heart, will the better recognize that not blind zeal for prosecution, but much rather wisdom coupled with human understanding are best designed to serve the aim of true judicial administration.

The German public prosecutors in their overwhelming majority recognized this also in the Third Reich. Therefore, none of the charges made against me here I feel to be more unjust than that, by filing malicious indictments, I had done injustice for the sake of injustice. I trust, however, that these proceedings have shown how unjust this charge is. The office of a public prosecutor is a very hard one. It is easier in peace than in wartime, but it became incredibly difficult during a war which is without example in history and which has left our Fatherland—which also meant everything to us public prosecutors—in ruins.

Presiding Judge Brand: Defendant Mettgenberg may address the Tribunal.

Defendant Mettgenberg: Your Honors. Novel, alien, and unaccustomed as it was to the previous speaker, so it is to me the situation in which I have found myself for months as a prisoner in the dock; and that is what the prosecution said when this trial opened, novel, alien, and unaccustomed were to me many things in this trial which concludes today.

All the same I, for my part, have tried to make my contribution to the correct carrying out of these proceedings; with complete frankness I have described my past career, and I have given you my views concerning the points with which the prosecution has charged me. There is nothing I have to hide.

Now at the end of this trial the prosecution deemed it necessary, I believe without regard to the evidence, to ask of you that you should convict me for having committed war crimes. It may be that you will convict me for having committed war crimes. It may be that that is the duty of the prosecution. It is not for me to arrive at a judgment about that. The prosecution must take the responsibility for their motion.

My defense counsel has asked you to acquit me. I too ask you to acquit me, but Your Honors, I ask you for more than that. As far as I am informed, it is in accordance with your legal views to acquit a defendant if there is a reasonable doubt about his guilt. I am of the opinion, and please do not think me arrogant, that I may expect you to find that there is no reasonable doubt as to my innocence. Even after careful and conscientious examination, such as I have given to my own past, I believe I am justified in making this request.

Presiding Judge Brand: The defendant von Ammon may address the Tribunal.

Defendant von Ammon: I have nothing to add to the statements made by me on 1 and 4 August under oath in the witness box.

Presiding Judge Brand: Defendant Joel may address the Tribunal.

Defendant Joel: I wish to remain silent.

Presiding Judge Brand: Defendant Rothaug may address the Tribunal.

Defendant Rothaug: Prosecutor King in his final plea mentioned a death sentence passed by a French court against a president of a court in Strasbourg. May I refer to the fact that this involves a so-called in absentia sentence in which the defendant had no opportunity for his own defense whatsoever, because at that time he was in a German internment camp and by sheer accident happened to read of it in a newspaper.

I served my country throughout my life and in whatever position I was assigned to, in faithfulness, with a pure heart, and without malice. Seen from my present position you might consider this wrong, and you could say I and all those who surrounded me should have been more suspicious of developments as they took place. This prognosis in retrospect is just as convincing as it is cheap. Nobody in our position at that time could be of the opinion that the State which we served could be accused of being altogether illegal and that the war that it waged was a war of aggression, as is demonstrated today to all the world. Therefore, it is no accident and no excuse that, apart from defending myself against the flood of personal defamations which I received from the circle of my previous friends and assistants, I am now anxious to prove to you that both in the service as a judge and prosecutor, I applied the laws of my country in the manner in which they were intended, to the best of my conscience and belief. We were guided by the practice of the Reich Supreme Court and went the same way which was taken by the remaining 60 to 80 Special Courts in the Reich. We were no specialists in crimes against humanity, and no proof has been furnished in any single case that, in any connection, we had applied an illegal method.

Thoughts of extermination were not represented in my sphere of work, nor did we ever hear anything to the effect that in the field of justice they played any part at all. We knew of shootings of people who had been sentenced only to prison terms. That was openly reported in the newspapers. Apart from that, these proceedings applied to four people who, under my presidency, had been sentenced to imprisonment—among them, the Eisenberger case mentioned here. But I myself only heard of the inner connections of these events when internal official files of the public prosecution became accessible to me here. We saw and judged the facts in a different light. The country was an area of warfare. I have experienced the terrors of Verdun. As far as misery is concerned, it cannot be compared with the effects of one single air raid, lasting 45 minutes, on the civilian life of this city. The principle of war which threatens life itself had been made the principle of life. We therefore understood, guided by this point of view, that the laws required harsh proceedings in the case of crimes which exploited conditions of war, and that habitual criminals, violent criminals, and saboteurs of all kinds, in view of the decreased security of the conditions as they existed in the country, had to be held down. If, on the other hand, we are told that thereby we had supported a war of aggression carried on by our government, then we can only say “we did not know that.” Once war had come, the life and existence of millions of peoples was involved, and we derived therefrom the ethical justification for severity against individuals, which stood in no proportion to what was at stake. The logical calculation of war in regard to life is that hundreds of thousands of people are sacrificed to save the lives of millions, and this principle was transferred to the entire public life and in the field of criminal law, this was tied to the concept of guilt. And that was how our work, our activity, was understood. If today we are no longer understood, and if attempts are made today to judge our actions as criminal, this is not very surprising in view of a world which does not look too far below the surface of things. For the catastrophe has made all our actions appear in the destructive light of “in vain.” This qualification which also has a demoralizing effect, disguises all connections which might speak in our favor in the question of humanity. This is the tragedy of our case, and we are convinced that Your Honors will not fail to see it.

Presiding Judge Brand: Defendant Barnickel may address the Tribunal.

Defendant Barnickel: May it please the Court. The great Frenchman Honoré de Balzac, for whom I have had a great respect since the days of my youth, puts into the mouth of one of his characters these words, “I believe justice to be a development of a divine idea which is suspended above the world.” That idea, whether one shares it or not, is certainly very beautiful. It remains beautiful even if justice does not always reflect its divine origin. We jurists whom fate had condemned to work in the Third Reich—and I am by no means referring only to us who are here, I am referring to all of them—we know what was the matter with the administration of justice in the Third Reich. But in whatever way this administration of justice may have worked, I believe one must view it in connection with the fate of the German people. Professor Jahrreiss, to whom all of us in this trial listened with interest, once coined the phrase that for decades the German people had no longer known normal life. Every single one of us actually experienced that himself. If I may make it more clear from the example of my own life, I want to read a few sentences from my diary for the last time. This is an entry which I made on 9 June 1942, and I wrote it under the influence of a Swiss novel, the title of which is “Amadeus”, and I quote:

“When I thought about it for longer as to what I liked so much about ‘Amadeus’, this occurred to me, it is peace, the peace in which these people live, and in which they can develop. Peace which, to us Germans, has become something quite strange because since 1914 we have not had it any more. Before that time we, too, lived in such an atmosphere, but since then we have always had war, or at least a pressure which was like war. From 1914 to 1918 there was a war on. In 1919 an intermediate phase set in. From 1920 to 1923 there was the inflation. From 1924 to 1927 there was the deflation. From 1928 to 1929 there was a brief recovery. From 1930 to 1932 there was a financial crisis and a continuous political crisis. From 1933 to 1939 the German people were molded into a new cast by force. From 1939 to 1942 there was war. From 1942? Still war!

“I am 57 years of age today—at that time—18 years of that were the years of my youth; 28 years were war years. For 11 years there was a real life. And these were the years of development—of immaturity—years of struggle, years of suffering and poverty. But in between there were also many happy hours.”

That is how I looked at my life at the time. And it was similar for every average German citizen. Every normal German longed for peace, for peace which had become something quite strange to us, and every German has that longing deep in him, just as I myself—but it was not within his power to achieve that peace. We saw it merely like a ghost. But the same fate which individuals have, is the fate of the spiritual institutions of their nation. And the administration of justice, too, shared our fate; it, too, was hemmed in in war and political violence, which were foreign to its nature. No wonder that, at the end of that last period of 30 years, justice, too, had been wrecked, just as millions of people and their lives had been wrecked! Let us hope that from that destruction, new life and new culture will develop. For, after all, so far every generation has lived on the ruins which were left by its predecessors, and built its houses from those ruins. Let us hope that what we see in Germany at this moment is already part of reconstruction and no longer of destruction, and also, I hope, that we—as Balzac put it—one day again shall be able to believe that justice is the development of a divine thought which is suspended above the world!

Presiding Judge Brand: Defendant Petersen may address the Tribunal.

Defendant Petersen: Your Honors, World War I signified a deep cut in the history of the German people. There existed the great danger for Germany of being swamped from the East. It was in the hope to prevent this that I joined the NSDAP. Germany was to remain one bulwark against bolshevism, a pillar of Western culture. I once entertained the great hope that national socialism would contribute its part toward this end. I do not want to describe my disappointment; the way led past stations of terror. In all my actions I was guided by the ideal of fulfilling my duty and of serving my country. It was solely my conscience that formed the basis for my actions, irrespective of whether I was an officer, SA leader, State counsellor, or only an honorary associate judge of the People’s Court. I have nothing further to add to this. My conscience is clear. Therefore, I am calmly expecting your verdict.

Presiding Judge Brand: The defendant Nebelung may address the Tribunal.

Defendant Nebelung: I was a German judge. I followed the laws of my country and my knowledge and my conscience in passing judgment. Germany has lost the war. If the law of the victors so demands of you—I do not believe it does—then you must condemn my actions. In this trial the tragedy of the office of the judge has been mentioned frequently. Is that anything special? Does not every soldier find himself in the same situation? I, too, have had that experience both as a soldier and as a judge, but not here in prison, not in the dock, but by the gun and on the bench. By that I want to say the tragedy does not lie in the consequences. I do know how to bear the consequences of a sentence, for I believe in the words of the German who was both a judge and a poet, Theodor Storm, “One man asks, ‘What will happen next’? while the other merely asks, ‘Is that right’? And that is how the free man is distinguished from the serf.”

Presiding Judge Brand: The defendant Cuhorst may address the Tribunal.

Defendant Cuhorst: Your Honors, I have to add the following brief words to the final plea of the defense counsel appointed on my behalf. Indictment and prosecution statements reveal that in these proceedings I am only pars pro toto. The prosecution with its evidence is unable to prove any charge which would actually apply to me. The prosecution in its final plea has failed to mention a whole series of charges in the indictment, and others for the same reason, namely, lack of evidence, it left in abeyance. In presenting its evidence the prosecution not only ignored my evidence but also its own, in part. What other reasons are there to explain that they submitted in the course of the cross-examination Document No. 983 [NG-983, Pros. Ex. 570], which reveals in an account of traveling expenses that on 21 March 1943 I was absent for weeks in the East on an official journey, and at the same time had the witness Eberhard Schwarz testify with alleged full assurance that on 24 March 1943 I was in Stuttgart and presided over the case against the foreigner Englert. The prosecution has submitted the verdict in the case of Untermarchtal, but what they said in the indictment about its contents is not contained in the verdict, but just the contrary. This is the type of evidence submitted if facts are involved. Only documents, not arguments with many sources of error, can show the facts.

Justice, above all, penal justice, in Germany since 1918 was always considered an institution not in accordance with the times due to political attacks on its reputation, thus losing its reputation. In spite of early hopes, also after 1933 this development continued, and it still continues. Neither in 1937 did Guertner protect my predecessor, nor in 1944 did Thierack protect me. The many stages of this development pretended to have various good aims, but they actually had only the one effect—to destroy what we call justice. Contrary, for example, to the profession of a doctor, that of a penal judge creates only few friends. A man who is acquitted takes his acquittal for granted. The man who is sentenced, his defense counsel considers the verdict as unjust or too severe. Confusion caused in the transitional periods showed this in a particularly conspicuous form. In spite of this dangerous situation for a criminal judge now accused of being a criminal himself, no person ever convicted under my jurisdiction has testified against me. Only a judge who is a saint is free of errors. I never denied mine. The struggle for independence and against destructive influences of the time has not left me unscathed. They wanted to eliminate me from the Party and from my profession, and an unfree minister and his accomplices removed me from office. The prosecution witness against me was quite right who said: “He wanted to maintain independence and he did maintain it.” Due to the collapse of my Fatherland, I am again involved in struggles. I am involved in an indictment against judges full of unexpected and excessive charges. From 1933 to 1944, one side spoke of me as if I were strange, suspiciously mild, unbearable, unsuitable for office, and detrimental to the Party and so on. Today the strong terms read as follows: Disgusting, exceptionally severe, convinced Nazi, and the like. Also in my prison cell which has been my fate for almost 1 year, though as a prisoner of war and an army officer I am subject to the Geneva Convention, I accept these reproaches quietly. I have sworn the oath to observe the law independently and to apply it irrespectively of the person involved. I have duly observed this, and let the consequences be whatever they may be. Either time will be able to bear judges who do not bend themselves or the time is already here which has quite different views. In handling these problems my own case is receding to the background. The decision concerning the basic questions of the entire problem of the judiciary brings the solution, also for me, of the question—Am I as a judge a criminal? Before all the world, and even where war opponents are concerned, a judicium parium can answer this tremendous question with one word only, namely, no.

Presiding Judge Brand: The defendant Oeschey may address the Tribunal.

Defendant Oeschey: May it please the Court, what need be said in my case has been said by my defense counsel, and all that is left for me is to agree to his statements, to give you the assurance that I always acted in the belief and in the conviction that I was doing right, by obeying the law to which I was subjected and applying it in the manner in which my conscience told me to. And it is the truth that it was a matter of conscience for me not to misuse the law in a criminal way, but to apply it in accordance with the will of the legislator, and to grant the offender a proper trial and a just verdict. Therefore, my conscience knows that it is clear of the crimes with which I am charged.

Presiding Judge Brand: The defendant Altstoetter may address the Tribunal.

Defendant Altstoetter: The charges which the prosecution has raised against me because of my alleged participation in war crimes and crimes against humanity and on account of my capacity as honorary SS leader, do not apply to me. My conscience is free of any guilt. I certainly do not propose to evade responsibility for my actions. On the contrary! These proceedings gave me the possibility to justify my actions before my people—by whom I stand even in these hard days—and before the entire world, that is, my actions during the past regime, and particularly so during the period of my activity in the Reich Ministry of Justice, and to prove that I always only served law and justice. For this reason I have done everything to give the best contribution possible in order to bring out the truth in this trial as far as I am concerned. As a witness in these proceedings I have testified to the truth to the best of my knowledge and belief.

The prosecution knows this very well from my own interrogations during preliminary proceedings and from the interrogations of many collaborators and aides who, however, were not called by the prosecution to appear as witnesses in court. The prosecution knows it also from documents which must be in its possession, but which were not submitted in evidence.

And, therefore, the fact hurts me all the more that in its final plea the prosecution designates me as not worthy of credibility. I feel obliged toward myself and also toward my children to protest with all seriousness and with all emphasis against this charge of having lied. I do not have to fear truth. I hate nothing more than lies. I feel secure only under the protection of truth, for truth is the sister of justice. But justice on the part of the prosecution must be claimed by me even if here we are only experimental objects of international law as it is aspired to, and of an embryonic international justice.

Furthermore, I feel obliged to refer to the following, let the proceedings result as they may. There is the enormous danger that German justice was shown here in a picture which, even referring to the time between 1933 and 1945, is not identical with actual facts. I know justice in all its different phases and organizations, and I know that German administration of justice up to the very end was the best administration of the Reich, and I know above all that the German judges, even in hard times and particularly in these hardest times of all, did their duty for right and justice up to the very end. All that could be desired was that the courage which was shown among the German judiciary at those times would have been shown everywhere. Then the danger could never have arisen that here in this courtroom there might arise the danger of a false picture of the German judge.