VII. OPINION AND JUDGMENT (continued 2)

By other laws, as amended from time to time, non-Aryans were almost completely expelled from public service. The number of non-Aryans in schools and higher institutions of learning was restricted.[613] Jews were excluded from the homestead law concerning peasantry.[614] Jewish religious communities were regulated.[615] Jews were excluded from certain industrial enterprises[616] and their rights as tenants were restricted.[617]

By the act of 2 November 1942 it was provided—

“Section 1. A Jew who has his domicile abroad cannot be a citizen of the Protectorate of Bohemia and Moravia. Domicile abroad is established if a Jew was abroad under circumstances which indicated that his tenure there is not of a temporary nature.

“Section 2. A Jew loses his citizenship status in the Protectorate if—

“(a) As of the effective date of this decree, he has an established domicile abroad;

“(b) At a date subsequent to the effective date of this decree, he establishes a domicile abroad.”

And by act of 25 November 1941 it was provided—

“Section 3. (1) The property of the Jew who is losing his nationality under this amendment shall be forfeited for the benefit of the Reich at the moment he loses his nationality. The Reich further confiscates the property of Jews who are stateless at the moment this amendment becomes effective, and who were last of German nationality, if they have or take up their regular residence abroad.

(2) The property thus forfeited shall serve the furthering of all purposes in connection with the solution of the Jewish question.

*******

“Section 8. (1) It is for the chief of the Security Police and the SD (of Reich Leader SS) to decide whether the conditions for confiscation of property are given.

(2) The administration and liquidation of the forfeited property is up to the Chief of the Regional Finance Office, Berlin.”[618]

The decree of 4 December 1941 “concerning the organization and criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories”,[619] marks perhaps the extreme limit to which the Nazi government carried its statutory and decretal persecution of racial and religious minorities, but it also introduces another element of great importance. We refer to the extension of German laws to occupied territory, to purportedly annexed territory, and to territory of the so-called protectorates. The decree provides—

“(1) Poles and Jews in the Incorporated Eastern Territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They are to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.

“(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his being of German blood.

“(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious activities or incitement, particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or offices, or if he, by his conduct, lowers or prejudices the prestige or the well being of the German Reich or the German people.

“(4) The death penalty, or in less serious cases imprisonment, shall be imposed on any Jew or Pole:

*******

“3. If he urges or incites to disobedience to any decree or regulation issued by the German authorities;

“4. If he conspires to commit an act punishable under paragraphs (2), (3) and (4), subsections 1 to 3, or if he seriously contemplates the carrying out of such an act, or if he offers himself to commit such an act, or accepts such an offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted. [Emphasis added.]

“II. Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal law or commit any act for which they deserve punishment in accordance with the fundamental principles of German criminal law and in view of the interests of the State in the Incorporated Eastern Territories.

“III. * * * (2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover, in these cases where the law does not provide for the death sentence, it may and shall be imposed if the offense points to particularly grave for other reasons; the death sentence may also be passed upon juvenile offenders.

*******

“XIV. (1) The provisions contained in sections I-IV of this decree apply also to those Poles and Jews who on 1 September 1939 were domiciled or had their residence within the territory of the former Polish State, and who committed criminal offenses in any part of the German Reich other than the Incorporated Eastern Territories. * * *”

It will be observed that the title of the foregoing act refers to “Poles and Jews in the Incorporated Eastern Territories”, but Article XIV makes the decree also applicable to acts by Poles and Jews within any part of the German Reich, if on 1 September 1939 they were domiciled within the former Polish State. This section was repeatedly employed by the courts in the prosecution of Poles.

There was promulgated a thirteenth regulation under the Reich citizenship law which illustrates the increasing severity by means of which the government was attempting to reach a “solution of the Jewish problem” under the impulsion of the progressively adverse military situation. This regulation, under date of 1 July 1943, provides:

“Article 1. (1) Criminal actions committed by Jews shall be punished by the police.

“(2) The provision of the Polish penal laws of 4 December 1941 (RGBl. I, p. 759) shall no longer apply to Jews.

“Article 2. (1) The property of a Jew shall be confiscated by the Reich after his death.

*******

“Article 3. The Reich Minister of the Interior with the concurrence of the participating higher authorities of the Reich shall issue the legal and administrative provisions for the administration and enforcement of this regulation. In doing so he shall determine to what extent the provisions shall apply to Jewish nationals of foreign countries.”

By Article 4 it was provided that in the Protectorate of Bohemia and Moravia the regulation shall apply where German administration and German courts have jurisdiction. (1943 RGBl. I, p. 372.)

Not only did the Nazis enact special discriminatory laws against Poles and Jews and political minorities; they also enacted discriminatory laws in favor of members of the Party. By the decree of 17 October 1939, it was provided that “for the area of the Greater German Reich, special jurisdiction in penal matters will be established for—

“1. Professional members of the Reich leadership of the SS.

“2. Professional members of the staffs of those Higher SS and Police Chiefs who possess the authority of issuing orders in those units which have been specially designated under numbers 3 to 6 below:

“3. Members of the SS units for special purposes;

“4. Members of the SS Death Head units (including their reinforcements);

“5. Members of the SS Junker schools;

“6. Members of police units for special purposes.”

On 12 March 1938, the German Army invaded Austria. The methods employed “were those of an aggressor.”[620] On the next day Austria was incorporated in the German Reich. As a result of the Munich pact of 29 September 1938, and of threatened invasion, Czechoslovakia was compelled to cede the Sudetenland to Germany,[621] and on 16 March 1939, Bohemia and Moravia were incorporated in the Reich as a protectorate. On 1 September 1939, Poland was invaded and thereafter occupied and, later on, Germany, by military force, occupied all or portions of Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece, and Russia. These occupations and annexations furnished the motive for an extension into many areas outside the old Reich of the draconic and discriminatory German laws which had been put in force within the old Reich. By the act of 14 April 1939, it was provided:

“Article II, section 6 (2). Persons who are not German nationals are subject to German jurisdiction for offenses—

“(a) to which German criminal law applies,

“(b) if they are prosecuted under a private action provided the action has been brought by a German national.

*******

“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.”

The decree of 5 September 1939 against public enemies, supra, was made “applicable in the Protectorate of Bohemia and Moravia and also for those persons who are not German citizens.”

By a decree of 25 November 1939 concerning damage to war material, it is provided in part:

“Section 2. Whoever disturbs or imperils the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population in that he made a thing serving the enterprise completely or partially unusable or put it out of commission, shall be punished by hard labor or in especially serious cases by death.

*******

“Section 6. In the Protectorate of Bohemia and Moravia the provisions of sections 1, 2, * * * and 5 of this decree are valid also for persons who are not nationals of the German state.”

The “decree on the extension of the application of criminal law of 6 May 1940” provided in part:

[Article I, section 4] “German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:

“1. Crimes committed while holding a German governmental office, as a German soldier or as member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office of the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;

“2. Actions constituting treason or high treason against Germany; * * *.”

*******

[Article II] “Paragraph 153. * * * A crime committed by a foreigner abroad will be prosecuted by the public prosecutor only if so demanded by the Reich Ministry of Justice. The public prosecutor may abstain from the prosecution of a crime if the same crime has already been punished abroad and if the punishment has been carried out and the sentence to be expected in Germany would, after deducting the time served abroad, not be heavy.”

The act of 25 November 1941, supra, concerning the confiscation of Jewish property was made applicable in the Protectorate of Bohemia and Moravia and in the Incorporated Eastern Territories.[622] Of greatest significance in this category was the law against Poles and Jews already cited in another connection. The thirteenth regulation under the Reich Citizenship Law of 1 July 1943, supra, was also made applicable within the Protectorate of Bohemia and Moravia “where German administration and German courts have jurisdiction”. It was also made applicable to Jews “who are citizens of the Protectorate”. (Sec. 4.)

Thus far we have taken note of the substantive criminal law and its extension to occupied and annexed territories, but these laws were not self-executing. For the accomplishment of the ends of aggressive war, the elimination of political opposition and the extermination of Jews in all of Europe, it was deemed necessary to harness the Ministry of Justice and the entire court system for the enforcement of the penal laws in accordance with National Socialist ideology.

By decree of 21 March 1933 Special Courts were established within the district of every court of appeal. Their jurisdiction was rapidly extended. It included the trial of cases arising under the decree relating to the defense against insidious attacks against the government of the national revolution.

The decree of 21 March 1933 provided in part:

“Section 3. (1) The Special Courts shall also be competent if a crime within their jurisdiction represents also another punishable deed.

“(2) If another punishable act is factually connected with a crime within the jurisdiction of the Special Courts, the proceedings on that other punishable deed against delinquents and participants may be referred to the Special Court by way of connection.”

*******

“Section 9. (1) No hearings relating to the warrant of arrest will be held.

*******

“Section 10. For the defendant who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.

“Section 11. A preliminary court investigation will not take place. * * *

“Section 12. * * * (4) The term of the summons (section 217 of the Code of Criminal Procedure) is 3 days. It can be shortened to 24 hours.

“Section 13. The Special Court can refuse any offer of evidence, if the court has come to the conviction that the evidence is not necessary for clearing up the case.

“Section 14. The Special Court has to pass sentence even if the trial results in showing the act of which the defendant is accused, as not being under the jurisdiction of the Special Court. This does not apply if the act constitutes a crime or offense under the jurisdiction of the Supreme Court or the courts of appeal; in this case the Special Court has to proceed according to section 270, paragraph 1–2 of the Code of Criminal Procedure.

“Section 16. (1) There is no legal appeal against decisions of the Special Courts.

“(2) Applications for a reopening of the trial are to be decided upon by the criminal chamber of the district court. The reopening of the trial in favor of the defendant will also take place if there are circumstances which point to the necessity of reexamining the case in the ordinary procedure. The stipulation of section 363 of the Code of Criminal Procedure remains unaffected. If the application for the reopening of the trial is justified, the trial will be ordered to take place before the competent ordinary court.”[623]

Special Courts were also vested with jurisdiction under the law for the protection against violent political acts of 4 April 1933 under which the death penalty was authorized.[624]

On 1 September 1939 the Special Courts were given jurisdiction under the law concerning listeners to foreign radio broadcasts, and the death sentence was authorized in certain cases.[625] On 5 September 1939 jurisdiction of the Special Court was extended to cases of looting, and the death sentence was authorized. Jurisdiction was also extended to cases of criminal acts exploiting the extraordinary conditions caused by the war. That act further provided:

[Article 5] “In all trials by Special Courts the verdict must be pronounced at once without observation of time limitations if the perpetrator is caught redhanded or if guilt is otherwise obvious”.[626]

On 21 February 1940 the Special Courts were expressly given jurisdiction concerning—

[Article 13] “1. Crime and offenses committed under the law of 20 December 1934 concerning treacherous attacks against State and Party, and concerning protection of Party uniforms;

“2. Crimes under section 239a of the Reich Criminal Code and under the law of 22 June 1938 concerning highway robbery by means of highway traps;

“3. Crimes under the decree [1 September 1939] concerning extraordinary measures in regard to radio;

“4. Crimes and offenses under the war economy decree of 4 September 1939;

“5. Crimes under section 1 of the decree of 5 September 1939 against public enemies;

“6. Crimes under sections 1 and 2 of the decree of 5 December 1939 against violent criminals.”[627]

The decree further provided:

[Article 14] (1) “The Special Court also has jurisdiction over other crimes and offenses, if the prosecution is of the opinion that immediate sentencing by the Special Court is indicated by the gravity or the outrageousness of the act, on account of the thereby-aroused public sentiment or in consideration of serious threat to public order or security.”

[Article 23] “(1) In all proceedings before a Special Court the sentence must be passed immediately without observation of any reprieves, if the delinquent was caught in the very act or if his guilt is self-evident otherwise.

“(2) In all other cases the term of summons shall be 24 hours. (Articles 217, 218 of the Reich Code of Criminal Procedure (Reichsstrafprozessordnung)).”

[Article 25] “(1) The Special Court must hand down a decision in a case, even if the trial shows that the act with which the accused is charged is of such a nature that the Special Court is not competent to deal with it. If, however, the trial shows that the act comes under the jurisdiction of the People’s Court, the Special Court refers the matter to the latter court, by decision; Article 270, section 2, of the Reich Code of Criminal Procedure is applicable accordingly.

[Article 26] “(1) There is no legal appeal against a decision of the Special Court.”

[Article 34] “The chief public prosecutor may lodge a petition for nullification with the Supreme Court (Reichsgericht) against a final judgment of a judge of the criminal court of the Special Court, within 1 year from the date of its becoming final, if the judgment is not justified because of an erroneous application of law on the established facts.

[Article 35] “(1) The petition for nullification must be submitted in writing to the Supreme Court. This court will decide thereon by judgment based on a trial. With the consent of the chief public prosecutor it can also reach a decision without trial.

“2. The Supreme Court may order a postponement or an interruption of the execution. It may order arrest or internment even prior to the decision on the petition for nullification. The criminal senate (Strafsenat) composed of three members including the president, will decide thereon without a trial, with reservations as to the regulations of article 124, section 3 of the Reich Code of Criminal Procedure.”[628]

The speed with which the Special Courts acted is of significance. In view of the congested dockets of the Special Courts, Freisler, acting for the Minister of Justice, ordered, “a Special Court is, as a rule, to be considered overloaded if a monthly average of more than forty new indictments has been filed with it.”

On 4 December 1941, in the law against Poles and Jews, supra, it was provided:

“IV. The State prosecutor shall prosecute a Pole or a Jew if he considers that punishment is in the public interest.

“V. (1) Poles and Jews shall be tried by a Special Court or by the district judge.

*******

“VI. (1) Every sentence will be enforced without delay. The State prosecutor may, however, appeal from the sentence of a district judge to the court of appeal. The appeal has to be lodged within 2 weeks.

“(2) The right to lodge complaints which are to be heard by the court of appeal is reserved exclusively to the State prosecutor.

“VII. Poles and Jews cannot challenge a German judge on account of alleged partiality.

“VIII. * * * (2) During the preliminary inquiry, the State prosecutor may order the arrest and any other coercive measures permissible.

“IX. Poles and Jews are not sworn in as witnesses in criminal proceedings. If the unsworn deposition made by them before the court is found false, the provisions as prescribed for perjury and false statements shall be applied accordingly.

“X. (1) Only the State prosecutor may apply for the reopening of a case. In a case tried before a Special Court, the decision concerning an application for the reopening of the proceedings rests with this court.

“(2) The right to lodge a plea of nullity rests with the State prosecutor general. The decision on the plea rests with the court of appeal.

“XI. Poles and Jews are not entitled to act as prosecutors either in a principal or a subsidiary capacity.

“XII. The court and the State prosecutor shall conduct proceedings within their discretion and according to the principles of the German law of procedure. They may, however, deviate from the provisions of the German law on the organization of courts and on criminal procedure, whenever this may appear to them advisable for the rapid and more efficient conduct of proceedings.

*******

“XV. Within the meaning of this decree, the term ‘Poles’ includes ‘Schutzangehoerige’ or those who are stateless.”[629]

It will be noted that the procedural rules became progressively more summary and severe as the military situation became progressively more critical.

A major development in the Nazification of the judicial system appears in the establishment of the “People’s Court” which was subdivided into a number of senates or departments. We quote:

“When the Supreme Court acquitted three of the four defendants charged with complicity in the Reichstag fire, its jurisdiction in cases of treason was thereafter taken away and given to a newly established ‘People’s Court’ consisting of two judges and five officials of the Party.”[630]

The act of 24 April 1934 which established the highly flexible definitions of high treason also provided new judicial machinery for enforcement.

“Article III, section 1. (1) For the trial of cases of high treason the People’s Court is established.

“(2) Decisions of the People’s Court are made by five members during the trial, by three members outside the trial. This includes the president. The president and one further member must be qualified judges. Several senates may be established.”[631]

In section 3 (1) of article III it is provided that “the People’s Court is competent for the investigation and decision in the first and last instance in cases of high treason * * *”, and in other specified cases.

“Article III, section 3. (2) The People’s Court is also competent in such cases where crimes or offenses subject to its competence constitute at the same time another punishable act.

“(3) If another punishable act is in factual connection with a crime or offense subject to the jurisdiction of the People’s Court, the trial against the perpetrators and participants of the other punishable act may be brought before the People’s Court by way of combination of the respective cases.”

*******

“[Article III] section 5. (2) Against the decisions of the People’s Court no appeal is permitted.”

On 1 December 1936, the jurisdiction of the People’s Court was extended to include violation of the law against economic sabotage. (supra.)

On 14 April 1939, the system was extended to Bohemia and Moravia. We quote:

“[Section 1] (2) Furthermore, the Supreme Reich Court and the People’s Court will carry out jurisdiction for the Protectorate Bohemia and Moravia.”[632]

The extent of jurisdiction was defined as follows:

“Section 6. (1) German nationals are subject to German jurisdiction in the Protectorate of Bohemia and Moravia.

“(2) Persons who are not German nationals are subject to German jurisdiction for offenses—

“1. to which German criminal law applies,

“2. if they are prosecuted under a private action provided the action has been brought by a German national.

*******

“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.

“Section 8. The German courts in the Protectorate of Bohemia and Moravia administer justice in the name of the German people.”[633]

By the law of 16 September 1939, provision was made for extraordinary appeal against final judgments. We quote in part:

“Article 2, section 3. (1) Against legally valid sentences in criminal proceedings the senior Reich prosecutor at the Reich Supreme Court can file an appeal within one year after they have been pronounced, if, because of serious misgiving, concerning the justness of the sentence, he considers a new trial and a new decision in the cases necessary.

“(2) On the basis of the appeal, the Special Penal Senate of the Reich Supreme Court will try the cases a second time.

“(3) If the first sentence was passed by the People’s Court, the appeal is to be filed by the senior Reich prosecutor at the People’s Court, and the second trial is to be held by the Special Senate of the People’s Court. The same applies to the sentences of courts of appeal in cases which the senior Reich prosecutor at the People’s Court had transferred to the public prosecutor attached to the court of appeals, or which the People’s Court had transferred for trial and sentencing to the courts of appeal.

*******

“Section 5. (1) The Special Senate of the People’s Court consists of the president and of four members.”[634]

On 21 February 1940 the jurisdiction of the People’s Court was redefined and again extended to cover high treason, treason, severe cases of damaging war material, failure to report an intended crime, crimes under section 5 (1) of the decree of 28 February 1933 concerning protection of people and State; crimes of economic sabotage, crime of undermining German military efficiency, and others.

On 6 May 1940 a broad decree was issued concerning the jurisdiction of German courts for the “territory of the Greater German Reich.” That decree provided:

“German criminal law will be applied to the crime of a German national, no matter whether it is committed in Germany or abroad. For a crime committed abroad, which according to the laws of the place of commitment is not punishable, German criminal law will not be applied, unless such action would constitute a crime according to the sound sentiment for justice of the German people on account of the particular conditions prevailing at the place of commitment.”[635]

*******

“Paragraph 4. German criminal law will be applied also in case of crimes committed by a foreigner in Germany.

“German criminal law will be applied to crimes committed by a foreigner abroad, if they are punishable according to the penal code of the territory where they are committed, or if such territory is not subject to any jurisdiction and if—

“1. the criminal has obtained German nationality after the crime, or

“2. the crime is directed against the German people or a German national, or

“3. the criminal is apprehended in Germany and is not extradited, although the nature of his crime would permit an extradition.

“German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:

“1. Crimes committed while holding a German governmental office, as a German soldier or as a member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office or the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;

“2. Actions constituting treason or high treason against Germany,” and in other special cases.

Certain additional provisions intimately affecting the rights of accused persons deserve special mention.

“Section 10. For the defendant, who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.

“Section 11. A preliminary court investigation will not take place. * * *”[636]

By a decree of the Reich Minister of Justice, Dr. Thierack, on 13 December 1944, it was provided:

“Article 2, paragraph 12. Limited admittance of defense counsel.

“(1) In any one criminal case, several lawyers or professional representatives may not act side by side as chosen counsel for one defendant.

“(2) The rules about obligatory representation by defense counsel do not apply. The presiding judge appoints a defense counsel for the whole or part of the proceedings if the difficulty of the material or legal problems require assistance by a defense counsel, or if the defendant, in due consideration of his personality, is unable to defend himself personally. * * *”[637]

On 16 February 1934 it was provided that:

“Article 2. The president of the Reich has the prerogatives for nulle prosequi and clemency (formerly held by the States).

“Amnesties can be promulgated only by Reich law.”[638]

This centralization of the clemency powers marks a radical departure from the system which prevailed prior to 1933 and was the means by which the will of Hitler became a dominating force in the Ministry of Justice and in the courts. Other provisions are as follows:

“Even if the judgment has been contested only by the defendant or his legal representative, or by the prosecution in his favor, it can be changed against the interests of the defendant.[639]

“In penal matters for which the People’s Court, the superior district court, or the court of assizes are competent, preexamination is conducted upon application of the prosecution, if, after due consideration, the prosecution thinks it necessary.

“In other penal matters as well, preexamination takes place on application of the prosecution. The prosecution should make such an application only if unusual circumstances make it necessary to have a judge conduct such preexamination.”[640]

An illuminating comment on the law is made by a German text writer.

“A criminal case on which verdict has been passed must not again become the subject of another criminal proceeding. This exclusive effect pertains to the subject of the case both as regards the crime and the criminal. * * * According to the findings of the German supreme court and to the prevailing theory in accord with these findings, the effect of ne bis in idem includes the history of the case submitted to the court for verdict. * * * This theory, however, leads to unbearable consequences. In order to avoid these unbearable consequences some courts, recently, have permitted the breach of the principle against double jeopardy in exceptional cases where jeopardy of a second trial is necessitated by the sound sense of justice. * * *”[641]

On 21 March 1942 Adolf Hitler promulgated a decree regarding the simplification of the administration of justice. We quote the following excerpts:

“In penal cases, * * * the formal opening of the main proceeding must be eliminated. * * * (Sec. I.)

“Indictments and judicial decisions must be more tersely written by restricting them to the absolutely necessary. (Sec. II.)

“The cooperation of professional associate judges in judicial decisions must be restricted. (Sec. III.)

“I commission the Reich Minister of Justice, in agreement with the Reich Minister and Chief of the Reich Chancellery and with the Chief of the Party Chancellery, to issue the legal provisions necessary for the execution of this decree. I empower the Reich Minister of Justice to make the necessary administrative provisions and to decide any doubtful questions by administrative means. (Sec. VI.)”

On 13 August 1942 a decree was issued by the defendant Schlegelberger as Reich Minister of Justice in charge of the Ministry—

“Article 4. * * * Decisions by the criminal court, the Special Court, and the criminal senate of the circuit courts of appeal may be made solely by the president or his regular deputy, if he considers the cooperation of his associates dispensable in view of the simplicity of the nature and the legal status of the case, and if the public prosecutor agrees.

“Article 5. Main proceeding without public prosecutor—In the proceeding before the district judge, the public prosecutor may renounce his participation in the main proceeding.

“Article 7 (2). The validity of an objection is decided on by the president of the deciding court. The admissibility of an appeal is decided on by the president of the court of appeal (Berufungsstrafkammer); he is also authorized to bring about a decision of the court. These decisions are not subject to any proof, and are incontestable.

“Article 7 (3). Further objections will not be admitted.”

We have already quoted at length from the decree of 4 December 1941 concerning the organization of criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories. That decree also contained provisions for the establishment of martial law from which we quote:

“Article XIII (1). Subject to the consent of the Reich Minister of the Interior and the Reich Minister of Justice, the Reich governor may, until further notice, enforce martial law in the Incorporated Eastern Territories, either in the whole area under his jurisdiction or in parts thereof, upon Poles and Jews guilty of grave excesses against the Germans or of other offenses which seriously endanger the German work of reconstruction.

“(2) The courts established under martial law impose the death sentence. They may, however, dispense with punishment and refer the case to the Secret State Police (Gestapo).”

A final step in the development of summary criminal procedure was taken on 15 February 1945 by a decree of the Reich Minister of Justice, Dr. Thierack. The decree provided:

“II. 1. The court martial consists of a judge of a criminal court as president and of a member of the political leader corps, or of a leader of another structural division of the NSDAP and an officer of the Wehrmacht, the Waffen SS, or the police, as associate judges. * * *

“III. 1. The courts martial have jurisdiction for all kinds of crimes endangering the German fighting power or undermining the people’s military efficiency. * * *

“IV. 1. The sentence of the court martial will be either death, acquittal, or commitment to the regular court. The consent of the Reich defense commissar is required. He gives orders for the time, place, and kind of execution. * * *”[642]

Pursuant to a decree of the Fuehrer of 16 March 1939, the defendant Schlegelberger, as Reich Minister of Justice in charge, together with the Minister of the Interior and the Chief of the Armed Forces, Keitel, issued a decree which reads in part as follows:

“Section 1. In case of direct attack by a non-German citizen against the SS or the German Police or against any of their members, the Reich Leader of the SS and the Chief of the German Police in the Reich Ministry of the Interior may establish the jurisdiction of a combined SS court and police court, by declaring that special interests of parts of the SS or of the Police require that judgment be given by an SS and police court.

“This declaration shall be sent to the Reich Protector of Bohemia and Moravia. The SS and police court, which shall have jurisdiction in individual cases, shall be specified by the Reich Leader of the SS and Chief of the German Police in the Reich Ministry of the Interior.

“Section 2. If the offense directly injures the interests of the armed forces, the Reich Leader of the SS and chief of the German Police in the Reich Ministry of the Interior, and the chief of the Supreme Command of the Armed Forces shall reach an agreement as to whether the case shall be prosecuted by an SS and police court or by a military court.[643]

“Article II. Exemption of the Reich court from being bound to precedent sentence: The Reich Court as the highest German tribunal must consider it its duty to effect an interpretation of the law which takes into account the change of ideology and of legal concepts which the new State has brought about. In order to be able to accomplish this task without having to show consideration for the jurisdiction of the past brought about by other ideology and other legal concepts, it is ruled as follows:

“When a decision is made about a legal question, the Reich Court can deviate from a decision laid down before this law went into effect.”[644]

THE LAW IN ACTION

We pass now from the foregoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutors, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning the first principle, Dr. Jahrreiss said:

“If now in the European meaning one asks about legal restrictions, and first of all one asks about restrictions of the German law, one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.”

Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “crown jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law. As stated by Professor Jahrreiss:

“To express it differently, whether the law has been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.”

This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:

“On the other hand, certainly there were legal restrictions for Hitler under international law. * * * He was bound by international law. Therefore, he could commit acts violating international law. Therefore, he could issue orders violating international law to the Germans.”

The conclusion to be drawn from the evidence presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a tribunal authorized to enforce international law, Hitler’s decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.

In German legal theory, Hitler was not only the supreme legislator, he was also the supreme judge. On 26 April 1942 Hitler addressed the Reichstag in part as follows:

“I do expect one thing: That the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience. * * *”

“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person, or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.”

“* * * From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”

[** no indent]On the same day the Greater German Reichstag resolved in part as follows:

“* * * the Fuehrer must have all the rights postulated by him which serve to further or achieve victory. Therefore—without being bound by existing legal regulations—in his capacity as leader of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme executive chief, as supreme justice[645], and leader of the Party—the Fuehrer must be in a position to force with all means at his disposal every German, if necessary, whether he be common soldier or officer, low or high official or judge, leading or subordinate official of the Party, worker or employee, to fulfill his duties. In case of violation of these duties, the Fuehrer is entitled after conscientious examination, regardless of so-called well-deserved rights, to mete out due punishment, and to remove the offender from his post, rank and position, without introducing prescribed procedures.”

The assumption by Hitler of supreme governmental power in all departments did not represent a new development based on the emergency of war. The declaration of the Reichstag was only an echo of Hitler’s declaration of 13 July 1934. After the mass murders of that date (the Roehm purge) which were committed by Hitler’s express orders, he said:

“Whenever someone reproaches me with not having used the ordinary court for their sentencing, I can only say: ‘In this hour I am responsible for the fate of the German nation and hence the supreme law lord[645] of the German people.’”

The conception of Hitler as the supreme judge was supported by the defendant Rothenberger. We quote (NG-075, Pros. Ex. 27):

“However, something entirely different has occurred; with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge—first of all, of course, as ‘judge’ over their fate in general, but also as ‘supreme magistrate[645] and judge.’”

In the same document the defendant Rothenberger expounded the National Socialist theory of judicial independence. He said:

“Upon the fact that the judge can use his own discretion is founded the magic of the word ‘judge.’”

He asserted that “every private and Party official must abstain from all interference or influence upon the judgment,” but this statement appears to be mere window-dressing, for after his assertion that a judge “must judge like the Fuehrer”, he said:

“In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer’. He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must upon the request of the judge give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”

Thus, it becomes clear that the Nazi theory of the judicial independence was based upon the supreme independence of the Fuehrer, which was to be channelized through the proposed liaison officer from Fuehrer to judge.

On 13 November 1934, Goering, in an address before the Academy of German Law, expressed similar sentiments concerning the position of Hitler.

“Gentlemen, for the German nation this matter was settled by the words of the judge in this hour, the Fuehrer, who stated that in this hour of uttermost danger he alone, the Fuehrer elected by the people, was the supreme and only judge of the German nation.”

The defendant Schlegelberger, on 10 March 1936 said:

“It should be emphasized, however, that in the sphere of the law, also, it is the Fuehrer and he alone who sets the pace of development.”

To the same effect we quote Reich Minister of Justice Dr. Thierack, who, on 5 January 1943 said:

“So also with us the conviction has grown in these 10 years in which the Fuehrer has led the German people that the Fuehrer is the chief justice and the supreme judge of the German people.”

On 17 February 1943 the defendant Under Secretary Dr. Rothenberger summed up his legal philosophy with the words (NG-415, Pros. Ex. 26):

“The judge is on principle bound by the law. The laws are the orders of the Fuehrer.”

As will be seen, the foregoing pronouncement by the leaders in the field of Nazi jurisprudence were not mere idle theories. Hitler did, in fact, exercise the right assumed by him to act as supreme judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.

The evidence demonstrates that Hitler and his top-ranking associates were by no means content with the issuance of general directives for the guidance of the judicial process. They tenaciously insisted upon the right to interfere in individual criminal sentences. In discussing the right to refuse confirmation of sentences imposed by criminal courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr. Lammers, Chief of the Reich Chancellery, as follows (NG-102, Pros. Ex. 75):

“When the Fuehrer has expressly requested the right of direct interference over all formal legal provisions, this is emphasizing the very importance of the modification of a judicial sentence.”

The Ministry of Justice was acutely conscious of the interference by Hitler in the administration of criminal law. On 10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as follows (NG-152, Pros. Ex. 63):

“It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced, which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects, * * *.”

On the same date Schlegelberger wrote to Hitler in part as follows (NG-152, Pros. Ex. 63):

“In the course of the verdicts pronounced daily, there are still judgments which do not entirely comply with the necessary requirements. In such cases I will take the necessary steps. * * *

“Apart from this it is desirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable, if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility, and are firmly resolved to discharge their duties accordingly. * * * Heil, my Fuehrer!” [Emphasis added.]

Hitler not only complied with the foregoing request, but proceeded beyond it. Upon his personal orders persons who had been sentenced to prison terms were turned over to the Gestapo for execution. We quote briefly from the testimony of Dr. Hans Gramm, who for many years was personal Referent to the defendant Schlegelberger, and who testified in his behalf.

“Q. Do you know anything about transfers of condemned persons to the police, or to the Gestapo?

“A. I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and such a man into their custody. These orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed. These transfers, as far as I can remember, took place only during the war.” (Tr. pp. 4717–4718.)

This procedure was well-known in the Ministry of Justice. Gramm was informed by the defendant Schlegelberger that the previous Reich Minister of Justice, Dr. Guertner, had protested to Dr. Lammers against this procedure and had received the reply—

“That the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue.”

The only net result of the protest was that “from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.”

The witness, Dr. Lammers, former Chief of the Reich Chancellery, whose hostility toward the prosecution and evasiveness were obvious, conceded that the practice was continued under Schlegelberger, though Lammers stated that Schlegelberger never agreed to it.

By reference to case histories we will illustrate three different methods by which Hitler, through the Ministry of Justice, imposed his will in disregard of judicial proceedings. One, Schlitt, had been sentenced to a prison term, as a result of which Schlegelberger received a telephone call from Hitler protesting the sentence. In response the defendant Schlegelberger on 24 March 1942 wrote in part as follows (NG-152, Pros. Ex. 63):

“I entirely agree with your demand, my Fuehrer, for very severe punishment for crime, and I assure you that the judges honestly wish to comply with your demand. Constant instructions in order to strengthen them in this intention and the increase of threats of legal punishment have resulted in a considerable decrease of the number of sentences to which objections have been made from this point of view, out of a total annual number of more than 300,000.

“I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures, as before.

“In the criminal case against the building technician, Ewald Schlitt, from Wilhelmshaven, I have applied through the public prosecutor for an extraordinary plea for nullification against the sentence, at the special senate of the Reich Court. I will inform you of the verdict of the special senate immediately it has been given.”

On 6 May 1942, Schlegelberger informed Hitler (NG-102, Pros. Ex. 75) that the 10-year sentence against Schlitt was “quashed within 10 days;” and that “Schlitt was sentenced to death and executed at once.”

In the case against Anton Scharff, the sentence of 10 years’ penal servitude had been imposed. Thereupon, on 25 May 1941, Bormann wrote to Dr. Lammers (NG-611, Pros. Ex. 64): “The Fuehrer believes this sentence entirely incomprehensible * * *. The Fuehrer requests that you inform State Secretary Schlegelberger again of his point of view.”

On 28 June 1941, defendant Schlegelberger wrote Dr. Lammers (NG-611, Pros. Ex. 64): “I am very obliged to the Fuehrer for informing me, on my request, of his conception of atonements of black-out crimes in reference to the sentence of the Munich Special Court against Anton Scharff.

“I shall reinstruct the presidents of the courts of appeal and the chief public prosecutors of this conception of the Fuehrer as soon as possible.”

As a final illustration of a general practice, we refer to the case of the Jew Luftgas, who had been sentenced to 2½ years imprisonment for hoarding eggs. On 25 October 1941, Lammers notified Schlegelberger: “The Fuehrer wishes that Luftgas be sentenced to death.” On 29 October 1941, Schlegelberger wrote Lammers: “* * * I have handed over to the Gestapo for the purpose of execution the Jew Markus Luftgas who had been sentenced to 2½ years of imprisonment * * *”.

Although Hitler’s personal intervention in criminal cases was a matter of common occurrence, his chief control over the judiciary was exercised by the delegation of his power to the Reich Minister of Justice, who on 20 August 1942 was expressly authorized “to deviate from any existing law.”

Among those of the Ministry of Justice who joined in the constant pressure upon the judges in favor of more severe or more discriminatory administration of justice, we find Thierack, Schlegelberger, Klemm, Rothenberger, and Joel. Neither the threat of removal nor the sporadic control of criminal justice in individual cases was sufficient to satisfy the requirements of the Ministry of Justice. As stated by the defendant Rothaug, “only during 1942, after Thierack took over the Ministry, the ‘guidance’ of justice was begun. * * * There was an attempt to guide the administration of justice uniformly from above.”

In September 1942 Thierack commenced the systematic distribution to the German judges of Richterbriefe. The first letter to the judges under date of 1 October 1942 called their attention to the fact that Hitler was the supreme judge and that “leadership and judgeship have related characters.” We quote (NG-298, Pros. Ex. 81):

“A corps of judges like this will not slavishly use the crutches of law. It will not anxiously search for support by the law, but, with a satisfaction in its responsibility, it will find within the limits of the law the decision which is the most satisfactory for the life of the community.”

In the Judges’ Letters Thierack discussed particular decisions which had been made in the various courts and which failed to conform to National Socialist ideology. As an illustration of the type of guidance which was furnished by the Ministry of Justice to the German judiciary, we cite a few instances from the Richterbriefe.

A letter to the judges of 1 October 1942 discusses a case decided in a district court on 24 November 1941. A special coffee ration had been distributed to the population of a certain town. A number of Jews applied for the coffee ration, but did not receive it, being “excluded from the distribution per se”. The food authorities imposed fines upon the Jews for making the unsuccessful application. In 500 cases the Jews appealed to the court and the judge informed the food authorities that the imposition of a fine could not be upheld for legal reasons, one of which was the statute of limitations. In deciding favorably to the Jews, the court wrote a lengthy opinion stating that the interpretation on the part of the food authorities was absolutely incompatible with the established facts. We quote, without comment, the discussion of the Reich Minister of Justice concerning the manner in which the case was decided (NG-298, Pros. Ex. 81):

“The ruling of the district court, in form and content matter, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right toward it.”

One of the Richterbriefe also discusses the case of a Jew who, after the “Aryanization of his firm,” attempted to get funds transferred to Holland without a permit. He also attempted to conceal some of his assets. Concerning this case the judges of Germany received the following “guidance” (NG-298, Pros. Ex. 81):

“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people.

“Not only is he of a different race, but he is also of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment.”

Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the minister that the independence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions. If the letters [the Judges’ Letters] had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be “carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges’ letters are concerned.”

In a letter of 17 November 1942 Thierack instructs the judges that “in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the Judges’ Letters.”

Not being content with regimenting the judges and chief prosecutors and making them subservient to the National Socialist administration of justice, Dr. Thierack next took up the regimentation of the lawyers. On 11 March 1943 he wrote to the various judges and prosecutors announcing the proposed distribution of confidential lawyers’ letters. An examination of those letters convinces the Tribunal that the actual, though undeclared purpose, was to suggest to defense counsel that they avoid any criticism of National Socialist justice and refrain from too much ardor in the defense of persons charged with political crimes.

Not only did Thierack exert direct influence upon the judges, but he employed as his representative the most sinister, brutal, and bloody judge in the entire German judicial system. In a letter to Freisler, president of the People’s Court, Thierack said that the judgment of the People’s Court must be “in harmony with the leadership of the State”. He urges Freisler to have every charge submitted to him and to recognize the cases in which it was necessary “in confidential and convincing discussion with the judge competent for the verdict to emphasize what is necessary from the point of view of the State.” He continues:

“As a general rule, the judge of the People’s Court must get used to regarding the ideas and intentions of the State leadership as the primary factor and the individual fate which depends on him as only a secondary factor. * * *”

He continues:

“I will try to illustrate this with individual cases.

“1. If a Jew—and a leading Jew at that—is charged with high treason—even if he is only an accomplice therein, he has behind him the hate and the will of Jewry to exterminate the German people. As a rule this will therefore be high treason and must be punished by the death penalty.”

He concludes with the following admonition to Freisler, which appears to have been wholly unnecessary:

“In case you should ever be in doubt as to which line to follow or which political necessities to take into consideration, please address yourself to me in all confidence.”

It will be recalled that on 26 April 1942 Hitler stated that he would remove from office “those judges who evidently do not understand the demand of the hour.” The effect of this pronouncement upon such judges as still retained ideals of judicial independence can scarcely be overestimated. The defendant Rothenberger stated it was “absolutely crushing.”

In a private letter to his brother, the defendant Oeschey expressed his view of the situation created by Hitler’s interference in the following words:

“After the well known Fuehrer speech things developed in a frightful manner. I was never a supporter of the stubborn doctrine of the independence of the judge which granted the judge within the frame of the law the position of a public servant, only subordinated to his conscience but otherwise ‘neutral’, that is, politically completely independent. * * * Now it is an absurdity to tell the judge in an individual case which is subject to his decision how he has to decide. Such a system would make the judge superfluous; such things have now come to pass. Naturally it was not done in an open manner; but even the most camouflaged form could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished and the proceedings in a trial become a farce. I will not discuss who bears the guilt of such a development.”

The threat alone of the removal was sufficient to impair the independence of the judges, but the evidence discloses that measures were actually carried out for the removal or transfer of judges who proved unsatisfactory from the Party standpoint. On 29 March 1941 Schlegelberger received a letter from the chief of the Reich Chancellery protesting against the sentence which had been imposed against the Polish farmhand Wojcieck. The court at Lueneburg had recognized some extenuating circumstances in the case. Schlegelberger was advised as follows:

“The Fuehrer urges you immediately to take the steps necessary to preclude repetition in other courts of the view of the Lueneburg court.”

On 1 April 1941 Schlegelberger wrote to the Chief of the Reich Chancellery informing him that “by means of a circular with the order for immediate transmittal to all judges and public prosecutors, I brought the mistake in the viewpoint as it is shown in this passage of the court’s statement to the knowledge of the penal justice without delay. I consider it impossible that such an incident will occur again.”

Schlegelberger ordered the responsible president of the appellate court and the judges concerned in the case to report to him on the next day, and on the third day of April 1941 he advised as follows:

“* * * I beg to inform you that the presiding judge of the criminal division which passed the sentence in the case of the Polish farmhand Wolay Wojciesk, is no longer chairman, and the two associate judges have been replaced by other associate judges.”

There is substantial evidence to the effect that the witness Ostermeier, who was a judge on the Special Court in Nuernberg, was removed from his office because of his lenient attitude in criminal cases.

In a letter addressed to the Chief of the Reich Chancellery and to the head of the Party Chancellery on 20 October 1942, Thierack discussed the necessity of the removal or the transfer of officials in the Ministry of Justice who are “not suited for the new tasks” and adds that it may become necessary “in some particular cases to transfer or retire such judges as cannot be kept in their present positions.” He therefore asked approval “so that in urgent cases judges and officials of the Reich administration of justice may be transferred by me to other positions * * * or may be retired by me.”

On 3 March 1942 Bormann gave his approval in general terms to Thierack’s proposal. A like approval was given by Dr. Lammers on 13 November 1942.

In connection with the discussion of removals, we find a list of proposed staff reductions in which seventy-five judges and prosecutors are named. Among the reasons stated for reduction we find the following: persons of Jewish ancestry, 4; persons having a Jewish wife, 4; lack of cooperation with Party, 4; religious grounds, 1; not a Party member, 20; pro-Jewish or pro-Pole, 4.

The conception of the national leadership of the Reich concerning the function of the law under the influence of the Party ideology must also be briefly noted.

On 22 July 1942 Reich Minister Dr. Goebbels addressed the members of the People’s Court. The speech was reported in part as follows (NG-417, Pros. Ex. 23):

“While making his decisions the judge had to proceed less from the law than from the basic idea that the offender was to be eliminated from the community. During a war it was not so much a matter of whether a judgment was just or unjust but only whether the decision was expedient. The State must ward off its internal foes in the most efficient way and wipe them out entirely. The idea that the judge must be convinced of the defendant’s guilt must be discarded completely. The purpose of the administration of the law was not in the first place retaliation or even improvement but maintenance of the State. One must not proceed from the law but from the resolution that the man must be wiped out.”

On 14 September 1935 Hans Frank, Reichsleiter of the Nazi Party and president of the Academy of German law, said (NG-777, Pros. Ex. 19):

“By means of the law of 18 June 1935, the liberalist foundation of the old penal code ‘no penalty without a law’ was definitely abandoned and replaced by the postulate, ‘no crime without punishment’, which corresponds to our conception of the law.

“In the future, criminal behavior, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behavior is considered punishable according to the healthy feelings of the people.”

This is the Hans Frank (since hanged) who at his trial testified concerning the racial persecution in which he had participated. He said:

“A thousand years will pass and this guilt of Germany will still not be erased.”

On 10 March 1936 the defendant Schlegelberger said (NG-538, Pros. Ex. 21):

“In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the new Reich has been opened up by a new wording of section 2 of the criminal code, whereby a person is also to be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.”

Reich Minister Thierack on 5 January 1943 said (NG-275, Pros Ex. 25):

“The inner law of the guardian of justice is national socialism; the written law is only to be an aid to the interpretation of National Socialist ideas.”

In the words of the defendant Rothenberger the project was “to ‘organize’ Europe anew and to create a new world philosophy.” Again, he said (NG-075, Pros. Ex. 27):

“* * * this reaction of ‘antagonism toward law’ is justified because the present moment absolutely demands a rigid restriction of the power of law. He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice.”

Strangely enough we find the Nazi judicial system condemned by a judge who in practice was its most fanatical adherent. The defendant Rothaug testified as follows:

“As of every other civil servant, of the judge there was demanded not only obedience but also loyalty and an inner connection with the doctrine of the State. The change-over of the judiciary to that different intellectual level was attempted via the political factor of the administration of justice, and that was when things came to grief; and it was then that the notorious ‘back door’ which I have mentioned, took effect.”

After discussing the extraordinary legal remedies by which final judgments in criminal cases were set aside by means of the nullification plea and the extraordinary objection, Rothaug said:

“As far as that went no objections could be made. What was more dangerous was the influence by means of Judges’ Letters and the guidance of jurisdiction.”

To the domination by Hitler and the political “guidance” of the Ministry of Justice must be added the direct pressure of Party functionaries and police officials. The record is replete with testimony of specific instances of interference in the administration of justice by officials of Party and police. But for the demonstration of the viciousness and universality of the practice it is only necessary to cite the words of the defendants themselves.

The defendant Rothenberger describes the manner in which the “administration of justice was burdened by the Party and by the SS”, and referred in his testimony to the “thousand little Hitlers who every day jeopardized the independence of the individual judge.”

The defendant Schlegelberger spoke with more caution:

“If in a trial, testimonials of political conduct were submitted for the characterization of the accused, it has to be left to the judge’s dexterity to avoid conflict with the department which furnishes the testimonial of political conduct.”

The defendant Lautz testified concerning attempted interference with his duties by the SS. We have already quoted the opinion of the defendant Oeschey as expressed in a letter to his brother.

A reliable witness, Dr. Hanns Anschuetz, testified:

“After the issuance of the German Civil Service Code, strong pressure was brought to bear upon all officials, including judges, to join the NSDAP, or not to reject requests to join; otherwise there existed the danger that they might be retired or dismissed. But once a Party member, a judge was under Party discipline and Party jurisdiction, which dominated his entire life as official and as private person.”

The witness Wilhelm Oehlicker, formerly a justice official and at present judge in Hamburg, testified, that, “the longer the war proceeded, in my opinion the more and more they (Party officials) tried to interfere with the courts and influence the courts directly.”

The final degradation of the judiciary is disclosed in a secret communication by Ministerial Director Letz of the Reich Ministry of Justice to Dr. Vollmer, also a ministerial director in the department. Not only were the judges “guided” and at times coerced; they were spied upon. We quote:

“Moreover, I know from documents, which the minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes summarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. This procedure is secret and the person who gives the information is not named. In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as the direct interests of the State security are concerned, nothing can be said against it, especially in wartime.”

In view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity. The doctrine that judges are not personally liable for their judicial actions is based on the concept of an independent judiciary administering impartial justice. Furthermore, it has never prevented the prosecution of a judge for malfeasance in office. If the evidence cited supra does not demonstrate the utter destruction of judicial independence and impartiality, then we “never writ nor no man ever proved.” The function of the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner.

In operation the Nazi system forced the judges into one of two categories. In the first we find the judges who still retained ideals of judicial independence and who administered justice with a measure of impartiality and moderation. Judgments which they rendered were set aside by the employment of the nullity plea and the extraordinary objection. The defendants they sentenced were frequently transferred to the Gestapo on completion of prison terms and were then shot or sent to concentration camps. The judges themselves were threatened and criticized and sometimes removed from office. In the other category were the judges who with fanatical zeal enforced the will of the Party with such severity that they experienced no difficulties and little interference from party officials. To this group the defendants Rothaug and Oeschey belonged.

We turn to a consideration and classification of the evidence. The prosecution has introduced captured documents in great number which establish the Draconic character of the Nazi criminal laws and prove that the death penalty was imposed by courts in thousands of cases. Cases in which the extreme penalty was imposed may in large measure be classified in the following groups:

1. Cases against habitual criminals.

2. Cases of looting in the devastated areas of Germany; committed after air raids and under cover of black-out.

3. Crimes against the war economy—rationing, hoarding, and the like.

4. Crimes amounting to an undermining of the defensive strength of the nation; defeatist remarks, criticisms of Hitler, and the like.

5. Crimes of treason and high treason.

6. Crimes of various types committed by Poles, Jews, and other foreigners.

7. Crimes committed under the Nacht und Nebel program, and similar procedures.

Consideration will next be given to the first four groups as above set forth. The Tribunal is keenly aware of the danger of incorporating in the judgment as law its own moral convictions or even those of the Anglo-American legal world. This we will not do. We may and do condemn the Draconic laws and express abhorrence at the limitations imposed by the Nazi regime upon freedom of speech and action, but the question still remains unanswered: “Do those Draconic laws or the decisions rendered under them constitute war crimes or crimes against humanity?”

Concerning the punishment of habitual criminals, we think the answer is clear. In many civilized states statutory provisions require the courts to impose sentences of life imprisonment upon proof of conviction of three or more felonies. We are unable to say in one breath that life imprisonment for habitual criminals is a salutary and reasonable punishment in America in peace times, but that the imposition of the death penalty was a crime against humanity in Germany when the nation was in the throes of war. The same considerations apply largely in the case of looting. Every nation recognizes the absolute necessity of more stringent enforcement of the criminal law in times of great emergency. Anyone who has seen the utter devastation of the great cities of Germany must realize that the safety of the civilian population demanded that the werewolves who roamed the streets of the burning cities, robbing the dead, and plundering the ruined homes should be severely punished. The same considerations apply, though in a lesser degree, to prosecutions to hoarders and violators of war economy decrees.

Questions of far greater difficulty are involved when we consider the cases involving punishment for undermining military efficiency. The limitations on freedom of speech which were imposed in the enforcement of these laws are revolting to our sense of justice. A court would have no hesitation in condemning them under any free constitution, including that of the Weimar republic, if the limitations were applied in time of peace; but even under the protection of the Constitution of the United States a citizen is not wholly free to attack the Government or to interfere with its military aims in time of war. In the face of a real and present danger, freedom of speech may be somewhat restricted even in America. Can we then say that in the throes of total war and in the presence of impending disaster those officials who enforced these savage laws in a last desperate effort to stave off defeat were guilty of crimes against humanity?

It is persuasively urged that the fact that Germany was waging a criminal war of aggression colors all of these acts with the dye of criminality. To those who planned the war of aggression and who were charged with and were guilty of the crime against the peace as defined in the IMT Charter, this argument is conclusive, but these defendants are not charged with crimes against the peace nor has it been proven here that they knew that the war which they were supporting on the home front was based upon a criminal conspiracy or was per se a violation of international law. The lying propaganda of Hitler and Goebbels concealed even from many public officials the criminal plans of the inner circle of aggressors. If we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality. In the opinion of the Tribunal the territory occupied and annexed by Germany after September 1939 never became a part of Germany, but for that conclusion we need not rest upon the doctrine that the invasion was a crime against the peace. Such purported annexations in the course of hostilities while armies are in the field are provisional only, and dependent upon the final successful outcome of the war. If the war succeeds, no one questions the validity of the annexation. If it fails, the attempt to annex becomes abortive. In view of our clear duty to move with caution in the recently charted field of international affairs, we conclude that the domestic laws and judgments in Germany which limited free speech in the emergency of war cannot be condemned as crimes against humanity merely by invoking the doctrine of aggressive war. All of the laws to which we have referred could be and were applied in a discriminatory manner and in the case of many, the Ministry of Justice and the courts enforced them by arbitrary and brutal means, shocking to the conscience of mankind and punishable here. We merely hold that under the particular facts of this case we cannot convict any defendant merely because of the fact, without more, that laws of the first four types were passed or enforced.

A different situation is presented when we consider the cases which fall within types 5, 6, and 7.

TREASON AND HIGH TREASON

We have expressed the opinion that the purported annexation of territory in the East which occurred in the course of war and while opposing armies were still in the field was invalid and that in point of law such territory never became a part of the Reich, but merely remained in German military control under belligerent occupancy. On 27 October 1939 the Polish Ambassador at Washington informed the Secretary of State that the German Reich had decreed the annexation of part of the territory of the Polish republic. In acknowledging the receipt of this information, Secretary Hull stated that he had “taken note of the Polish government’s declaration that it considers this act as illegal and therefore null and void.”[646] The foregoing fact alone demonstrates that the Polish Government was still in existence and was recognized by the Government of the United States. Sir Arnold D. McNair expressed a principle which we believe to be incontestable in the following words:

“A purported incorporation of occupied territory by a military occupant into his own kingdom during the war is illegal and ought not to receive any recognition. * * *”[647]

We recognize that in territory under belligerent occupation the military authorities of the occupant may, under the laws and customs of war, punish local residents who engage in fifth column activities hostile to the occupant. It must be conceded that the right to punish such activities depends upon the specific acts charged and not upon the name by which these acts are described. It must also be conceded that Poles who voluntarily entered the Alt [old] Reich could, under the laws of war, be punished for the violation of nondiscriminatory German penal statutes.

These considerations, however, do not justify the action of the Reich prosecutors who in numerous cases charged Poles with high treason under the following circumstances: Poles were charged with attempting to escape from the Reich. The indictments in these cases alleged that the defendants were guilty of attempting, by violence or threat of violence, to detach from the Reich territory belonging to the Reich, contrary to the express provisions of section 80 of the law of 24 April 1934. The territory which defendants were charged with attempting to detach from the Reich consisted of portions of Poland, which the Reich had illegally attempted to annex. If the theory of the German prosecutors in these cases were carried to its logical conclusion it would mean that every Polish soldier from the occupied territories fighting for the restoration to Poland of territory belonging to it would be guilty of high treason against the Reich and on capture, could be shot. The theory of the Reich prosecutors carries with it its own refutation.

Prosecution in these cases represented an unwarrantable extension of the concept of high treason, which constituted in our opinion a war crime and a crime against humanity. The wrong done in such prosecutions was not merely in misnaming the offense of attempting to escape from the Reich; the wrong was in falsely naming the act high treason and thereby invoking the death penalty for a minor offense.

MEMBERSHIP IN CRIMINAL ORGANIZATIONS

C. C. Law 10, article II, paragraph 1(d), provides:

“1. Each of the following acts is recognized as a crime:

*******

“(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.”

Article 9 of the IMT Charter provides:

“At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.”

Article 10 of the IMT Charter is as follows:

“In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.”

Concerning the effect of the last quoted section, we quote from the opinion of the IMT in the case of United States, et al., vs. Goering, et al., as follows:

“Article 10 of the Charter makes clear that the declaration of criminality against an accused organization is final and cannot be challenged in any subsequent criminal proceeding against a member of the organization.”[648]

We quote further from the opinion in that case:

“In effect, therefore, a member of an organization which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that crime by death. This is not to assume that international or military courts which will try these individuals will not exercise appropriate standards of justice. This is a far reaching and novel procedure. Its application, unless properly safeguarded, may produce great injustice.”

*******

“A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the state for membership, unless they were personally implicated in the commission of acts declared criminal by article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations.”[649]

The Tribunal in that case recommended uniformity of treatment so far as practicable in the administration of this law, recognizing, however, that discretion in sentencing is vested in the courts. Certain groups of the Leadership Corps, the SS, the Gestapo, the SD, were declared to be criminal organizations by the judgment of the first International Military Tribunal. The test to be applied in determining the guilt of individual members of a criminal organization is repeatedly stated in the opinion of the First International Military Tribunal. The test is as follows: Those members of an organization which has been declared criminal “who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes” are declared punishable.

Certain categories of the Leadership Corps are defined in the First International Military Tribunal judgment as criminal organizations. We quote:

“The Gauleiter, the Kreisleiter, and the Ortsgruppenleiter participated, to one degree or another, in these criminal programs. The Reichsleitung as the staff organization of the Party is also responsible for these criminal programs as well as the heads of the various staff organizations of the Gauleiter and Kreisleiter. The decision of the Tribunal on these staff organizations includes only the Amtsleiter who were heads of offices on the staffs of the Reichsleitung, Gauleitung, and Kreisleitung. With respect to other staff officers and Party organizations attached to the Leadership Corps other than the Amtsleiter referred to above, the Tribunal will follow the suggestion of the prosecution in excluding them from the declaration.”[650]

In like manner certain categories of the SD were defined as criminal organizations. Again, we quote:

“In dealing with the SD the Tribunal includes Aemter III, VI, and VII of the RSHA, and all other members of the SD, including all local representatives and agents, honorary or otherwise, whether they were technically members of the SS or not, but not including honorary informers who were not members of the SS and members of the Abwehr who were transferred to the SD.”[651]

In like manner certain categories of the SS were declared to constitute criminal organizations:

“In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf-Verbaende, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called SS riding units.”[652]

C. C. Law 10 provides that we are bound by the findings as to the criminal nature of these groups or organizations. However, it should be added that the criminality of these groups and organizations is also established by the evidence which has been received in the pending case. Certain of the defendants are charged in the indictment with membership in the following groups or organizations which have been declared and are now found to be criminal, to wit: The Leadership Corps, the SD, and the SS. In passing upon these charges against the respective defendants, the Tribunal will apply the tests of criminality set forth above.

CRIMES UNDER THE NIGHT AND FOG DECREE [NACHT UND NEBEL ERLASS]

Paragraph 13 of count two of the indictment charges in substance that the Ministry of Justice participated with the OKW and the Gestapo in the execution of the Hitler decree of Night and Fog whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts of the Ministry of Justice within the Reich; that the victim’s whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victim’s relatives and associates and barring recourse to evidence, witnesses, or counsel for defense. If the accused was acquitted, or if convicted, after serving his sentence, he was handed over to the Gestapo for “protective custody” for the duration of the war. These proceedings resulted in the torture, ill treatment, and murder of thousands of persons. These crimes and offenses are alleged to be war crimes in violation of certain established international rules and customs of warfare and as recognized in C. C. Law 10.

Paragraph 25 of count three of the indictment incorporates by reference paragraph 13 of count two of the indictment and alleges that the same acts, offenses, and crimes are crimes against humanity as defined by C. C. Law 10. The same facts were introduced to prove both the war crimes and crimes against humanity and the evidence will be so considered by us.

Paragraph 13 of count two of the indictment which particularly describes the Hitler NN plan or scheme, charges the defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger with “special responsibility for and participation in these crimes”, which are alleged to be war crimes.

Paragraph 8 of count two of the indictment charges all of the defendants with having committed the war crimes set forth in paragraphs 9 to 18 inclusive of count two, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of atrocities and offenses against persons, including but not limited to murder, illegal imprisonment, brutalities, atrocities, transportation of civilians, and other inhumane acts which were set out in paragraphs 9 to 18 inclusive of the indictment as war crimes against the civilian population in occupied territories.

Paragraph 20 of count three of the indictment charges all of the defendants with having committed the same acts as contained in paragraph 8 of count two as being crimes against humanity. Paragraphs 21 to 30 inclusive of count three refer to and adopt the facts alleged in paragraphs 9 to 18 inclusive of count two, and thus all defendants are charged with having committed crimes against humanity upon the same allegations of facts as are contained in paragraphs 9 to 18 inclusive of count two.

In the foregoing manner all of the defendants are charged with having participated in the execution or carrying out of the Hitler NN decree and procedure either as war crimes or as crimes against humanity, and all defendants are charged with having committed numerous other acts which constitute war crimes and crimes against humanity against the civilian population of occupied countries during the war period between 1 September 1939 and April 1945.

The Night and Fog decree arose as the plan or scheme of Hitler to combat so-called resistance movements in occupied territories. Its enforcement brought about a systematic rule of violence, brutality, outrage, and terror against the civilian populations of territories overrun and occupied by the Nazi armed forces. The IMT treated the crimes committed under the Night and Fog decree as war crimes and found as follows:

“The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality, and terror. On 7 December 1941 Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (Night and Fog decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial and punishment in Germany. This decree was signed by the defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the families of the arrested person. Hitler’s purpose in issuing this decree was stated by the defendant Keitel in a covering letter, dated 12 December 1941, to be as follows:

“‘Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany.’

*******

“The brutal suppression of all opposition to the German occupation was not confined to severe measures against suspected members of resistance movements themselves, but was also extended to their families.”[653]

The Tribunal also found that:

“One of the most notorious means of terrorizing the people in occupied territories was the use of the concentration camps.”[654]

Reference is here made to the detailed description by the IMT judgment of the manner of operation of concentration camps and to the appalling cruelties and horrors found to have been committed therein. Such concentration camps were used extensively for the NN prisoners in the execution of the Night and Fog decree as will be later shown.

The IMT further found that the manner of arrest and imprisonment of Night and Fog prisoners before they were transferred to Germany was illegal, as follows:

“The local units of the Security Police and SD continued their work in the occupied territories after they had ceased to be an area of operations. The Security Police and SD engaged in widespread arrests of the civilian population of these occupied countries, imprisoned many of them under inhumane conditions, and subjected them to brutal third degree methods, and sent many of them to concentration camps. Local units of the Security Police and SD were also involved in the shooting of hostages, the imprisonment of relatives, the execution of persons charged as terrorists and saboteurs without a trial, and the enforcement of the Nacht und Nebel decree under which persons charged with a type of offenses believed to endanger the security of the occupying forces were either executed within a week or secretly removed to Germany without being permitted to communicate with their family and friends.”[655]

The foregoing quotations from the IMT judgment will suffice to show the illegality and cruelty of the entire NN plan or scheme. The transfer of NN prisoners to Germany and the enforcement of the plan or scheme did not cleanse it of its iniquity or render it legal in any respect.

The evidence herein adduced sustains the foregoing findings and conclusions of the IMT. In fact the same documents, or copies thereof, referred to and quoted from in the IMT judgment were introduced in evidence in this case. In addition, a large number of captured documents and oral testimony were introduced showing the origin and purpose of the Night and Fog plan or scheme, and showing without dispute that certain of the defendants with full knowledge of the illegality of the plan or scheme under international law of war and with full knowledge of the intended terrorism, cruelty, and other inhumane principles of the plan or scheme became either a principal, or aided and abetted, or took a consenting part in, or were connected with the execution of the illegal, cruel, and inhumane plan or scheme.

Hitler’s decree was signed by Keitel on 7 December 1941 and was enclosed in Keitel’s covering letter of 12 December 1941, which was referred to and quoted from in the IMT judgment. The Hitler decree states that since the opening of the Russian campaign Communist and anti-German elements have increased their assaults against the Reich and the occupation power in the occupied territories and that the most severe measures should be directed against these malefactors “to intimidate them”. The decree further declares in substance (1733-PS, Pros. Ex. 303):

“1. Criminal acts committed by non-German civilians directed against the Reich or occupation forces endangering their safety or striking power should require the application of the death penalty in principle.

“2. Such criminal acts will be tried in occupied territories only when it appears probable that the death sentence will be passed and carried out without delay. Otherwise the offenders will be carried to Germany.

“3. Offenders taken to Germany are subject to court martial procedures there only in case that particular military concern should require it. German and foreign agencies will declare upon inquiries of such offenders that the state of the proceedings would not allow further information.

“4. Commanders in chief in occupied territories and the justiciaries within their jurisdiction will be held personally responsible for the execution of this decree.

“5. The chief of the OKW will decide in which of the occupied territories this decree will be applied. He is authorized to furnish explanations and further information and to issue directives for its execution.”