VII. OPINION AND JUDGMENT (continued 5)

One will seek in vain for any simple, frank, or direct statement by Rothenberger relative to any of the abuses of the Nazi system. His real attitude can only be extracted from the ambiguities of his evasive language. We quote from the record of the report made by Rothenberger to the judges on 27 January 1942 (NG-1106, Pros. Ex. 462):

“With regard to the matter it had to be considered whether or not any material claims made by the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve.”

In an early report to the Hamburg judges, Rothenberger discussed the opinion of the Ministry concerning the legal treatment of Jews. He stated that the fact that a debtor in a civil case is a Jew should as a rule be a reason for arresting him; that Jews may be heard as witnesses but extreme caution is to be exercised in weighing their testimony. He requested that no verdict should be passed in Hamburg when a condemnation was exclusively based on the testimony of a Jew, and that the judges be advised accordingly.

On 21 April 1943, as the result of a long period of inter-departmental discussions, a conference of the state secretaries was held. Rothenberger was at the time State Secretary in the Ministry of Justice and participated in the conference concerning the limitation of legal rights of Jews. Kaltenbrunner also participated. At this meeting consideration was given to drafts of a decree which had long been under discussion. Modifications were agreed upon and the result was the promulgation of the infamous 13th regulation under the Reich Citizenship Law which provided that criminal actions committed by Jews shall be punished by the police and that after the death of a Jew his property shall be confiscated.

We next consider Rothenberger’s activity concerning the deprivation of the rights of Jews in civil litigation. In the report of 5 January 1942 the defendant wrote:

“The lower courts do not grant to Jews the right to participate in court proceedings in forma pauperis. The district court suspended such a decision in one case. The refusal to grant this right of participation in court proceedings in forma pauperis is in accordance with today’s legal thinking. But since a direct legal basis is missing, the refusal is unsuitable. We therefore think it urgently necessary that a legal regulation or order is given on the basis of which the rights of a pauper can be denied to a Jew.” (Pros. Ex. 373, NG-392, document book 5-D, p. 331.)

Notwithstanding his statement of 5 January to the effect that it would be unsuitable to deprive Jews of this right without a legal regulation, we find that on 27 January 1942 the report of a conference shows the following (NG-1106, Pros. Ex. 462):

“The senator reported that the question of the poor law concerning Jews has gained significance again. With the district court there were two cases pending. He requested that contacts with the district court and with the local court judges be made at once so that a uniform line is followed to the effect that the Jews be denied the benefits of the poor law. It would be entirely out of the question that Jews be granted the benefits of the poor law subsequent to the present development. This would apply especially to Jews who had been evacuated, but in his opinion also to those who had not been evacuated.”

About this time a report concerning the claim of the Jewish plaintiff, Israel Prenzlau, came to the attention of the defendant Rothenberger. The Jew sought the right to proceed in forma pauperis. The report on the case contains the following statement by a Gau economic advisor, which is couched in the usual Nazi language of sinister ambiguity (NG-589, Pros. Ex. 372):

“In reply to your inquiry I state my point of view in detail.

“In a lawsuit between a German national and a Jew, I consider the settling of a dispute by compromise settlement in court inadmissible for political reasons. The German national, as party in the lawsuit, pursuant to his clearly defined conceptions of justice derived from his political schooling since 1933, can expect that the court will decide the case by a verdict, i.e., take a conclusive attitude toward the dispute in hand. What is expected is a decision which was arrived at not from purely legal points of view, as result of a legal train of thought, but which is an expression to the way in which National Socialist demands concerning the Jewish question are realized by German administrators of justice. Evading this decision by a compromise might mean encroaching upon the rights of a fellow citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people. I therefore consider it inadmissible.”

The report shows that upon receipt of the opinion of the Gau economic advisor, “the defendants thereupon refused settlement with the plaintiff and now deny that they owe him anything.” The court which had jurisdiction of the Prenzlau case granted to the plaintiff the right to proceed in forma pauperis. On 13 February 1942 having before him the report of the Gau economic advisor, the defendant Rothenberger wrote to the president of the district court, Hamburg, as follows:

“I do not intend to approach the economic advisor of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim, the son of the plaintiff, emigrated in the year 1938 and his property, therefore, surely being confiscated. I fail to understand why the court granted forma pauperis rights to the assignee, a Jew, without first consulting the authority for sequestration of property.”

A note dated 24 February shows that Rothenberger had issued a directive to two judges of his district to the effect that every case involving the claim of the right of Jews to proceed in forma pauperis must first be submitted to him. On 5 March 1942 a directive was issued from the Reich Ministry of Justice in substantial conformity with the recommendation of the defendant Rothenberger. It provided:

“In future the granting of rights of forma pauperis to Jews can only come into consideration if the carrying-out of the lawsuit is in the common interest, viz, in disputes concerning family rights (divorce in cases of mixed marriages, establishing the descent).”

After the enactment of the foregoing ordinance, and on 7 May 1942, a courageous president of the district court at Hamburg wrote to Rothenberger stating that in his opinion the right of Jews to proceed in forma pauperis would have to be granted. He added:

“I am convinced that it is in the common interest that an Aryan cannot evade without further ado a just claim against him merely for the reason that the court denies the forma pauperis right to Jews.”

Notwithstanding this protest, and on 22 May 1942, the defendant Rothenberger, in reliance upon the ordinance which was based upon his recommendation, wrote to the president of the district court of Hamburg that he considered it “adequate that the forma pauperis right granted to the plaintiff Prenzlau be canceled. Please have this taken into consideration by the court in a form which you deem appropriate.”

The foregoing narrative takes on additional significance when summarized. First, Rothenberger recommends to the Minister of Justice that it is desirable to deny to Jews the right to proceed in forma pauperis, but that such denial is inadmissible because there is no law to justify it. He recommends the passage of such a law. About 3 weeks later, no law having been passed, he recommends that the judges take a uniform line depriving the Jew of the right to proceed in forma pauperis. A specific case now arises in which the right was granted to a Jew, and the defendant Rothenberger receives veiled suggestions from the Gau economic advisor to the effect that defendants should not be allowed to compromise a case brought against them by a Jewish plaintiff because the court should decide against the Jew in any event on political grounds. Concerning this suggestion Rothenberger ventures no comment. The defendant in the Prenzlau case takes his cue from the advice of the economic advisor and denies liability; the court grants to the Jew the right to proceed in forma pauperis. Rothenberger criticizes this action, although the lower court had acted in strict conformity with the law. In March the awaited law excluding the Jew from the benefit of the poor-law is passed. In May, Rothenberger overrules the protest of a judge and directs the canceling of the order which was made by the lower court. This dictation by the defendant Rothenberger to other courts and judges of his district was not done in the course of a legal appeal from the lower court to the court over which he presided. It was done after the manner of a dictator directing an administrative inferior how to proceed.

Rothenberger not only participated in securing the enactment of a discriminatory law against Jews; he enforced it when enacted and, in the meantime, before its enactment, upon his own initiative he acted without authority of any law in denying to Jewish paupers the aid of the courts.

It is true that the denial to Jews of the right to proceed in civil litigation without advancement of costs appears to be a small matter compared to the extermination of Jews by the millions under other procedures. It is nevertheless a part of the government-organized plan for the persecution of the Jews, not only by murder and imprisonment but by depriving them of the means of livelihood and of equal rights in the courts of law.

The defendant Rothenberger testified that various judges reported to him “that they had heard rumors to the effect that everything was not quite all right in the concentration camps” and that they wished to inspect one. Accordingly, Rothenberger and the other judges visited the concentration camp at Neuengamme. He testified that they inquired about food conditions, accommodations, and the methods of work, and spoke to some inmates, and he asserts that they did not discover any abuses. This was in 1941. Again in 1942, according to his own testimony, the defendant visited Mauthausen concentration camp in company with Kaltenbrunner, who was later in charge of all concentration camps in Germany and has since suffered death by hanging. At Mauthausen concentration camp the defendant Rothenberger again inspected installations, conferred with inmates, and inquired as to the cause of detention of the inmates with whom he had talked. He states that from his spot checks he “could not find out that there was any case of a sentence being ‘corrected.’” Upon inquiry as to what the defendant meant by the “correction of sentences,” he answered:

“By correcting of a sentence we mean that when the court had pronounced a sentence, for example, had condemned somebody to be imprisoned for a term of 5 years—if the police now, after these 5 years had been served, if the police arrested this man and put him into a concentration camp—this is only an example of a correction. Or even if, and this is clearer, it happened that a person was acquitted by a court, and in spite of that the police put this man into a concentration camp. These are examples of correction of sentences.”

The defendant stated that he did not observe and could not discover any abuse at Mauthausen. In this connection the testimony of defense witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger on his visit to Mauthausen concentration camp. He testified that rumors were current in Germany to the effect that conditions were not what they should be in the concentration camps. Hartmann testifies that they went about the camp freely and observed everything closely. On cross-examination by the Tribunal, Hartmann testified as follows:[670]

“Q. * * * When you visited Mauthausen concentration camp, you knew, did you not, that the courts in the Ministry of Justice never sentenced convicted criminals to a concentration camp? * * *

“A. Yes.

“Q. Did Dr. Rothenberger know it?

“A. Yes.

“Q. Then you knew that these ten people that he talked with, and the one or two that you talked with, were not there by reason of any action on the part of the Ministry of Justice or the court, but were there only by reason of action by the police or by the Party, did you not?

“A. Yes. That was preventive custody undertaken by the police.”

The witness Hartmann testified further:

“Q. And they had already served their sentences as imposed by court before they were taken into this custody of the police, is that right?

“A. Yes. That is how I see it.

“Q. And at that time, these twelve people who had served their sentences and had been taken over by the police—that met with the approval of the defendant Dr. Rothenberger, as I understand you?

“A. Well [we] did not approve the concentration camp as an institution altogether, but first of all we wanted to achieve this—that it would no longer happen that a defendant was acquitted and then after acquittal the Gestapo arrested (him) in front of the courtroom. * * * In those cases, too, he did not approve the fact that these people were in a concentration camp because we were of the opinion that only the administration of justice should decide these questions of criminal law and nobody else. But according to the power conditions within the State, as they happened to exist, our interest was first of all to remove the worst evils.”

Upon redirect examination by counsel for the defendant Rothenberger, defense witness Hartmann testified as follows:

“Q. Therefore, sometimes was the situation for you and Dr. Rothenberger like this: that apparently you affirmed something with a smiling face, something which as a human being you had to disapprove of and reject?”

To this question the witness answered that Dr. Rothenberger “for reasons of power politics” had to accept the conditions though he did not approve them. After his inspection of Mauthausen concentration camp, Dr. Rothenberger took no action whatsoever with regard to the information which he had received.

It follows that the defendant Rothenberger, contrary to his sworn testimony, must have known that the inmates of the Mauthausen concentration camp were there by reason of the “correction of sentences” by the police, for the inmates were in the camp either without trial, or after acquittal, or after the expiration of their term of imprisonment.

It must be borne in mind that this inspection by the defendant Rothenberger was made at Mauthausen concentration camp, an institution which will go down in history as a human slaughter house and was made in company with the man who became the chief butcher.

We are compelled to conclude that Rothenberger was not candid in his testimony and that in denying knowledge of the institution of protective custody in its relationship with the concentration camps he classified himself as either a dupe or a knave. Nor can we believe that his trips to the camps were merely for pleasure or for general education. He also advised other judges to make like investigations. We concede that the concentration camps were not under the direct jurisdiction of the Reich Minister of Justice, but are unable to believe that an Under Secretary in the Ministry, who makes an official tour of inspection, is so feeble a person that he could not even raise his voice against the evil of which he certainly knew.

If the defendant Rothenberger disapproved of protective custody and the consequent employment of concentration camps, it must be because of a change in heart concerning which we have had no evidence. On 13 June 1941 Rothenberger wrote Secretary Freisler suggesting that many small cases were being tried by the Special Court and that this was not compatible with the importance of the court. He referred to minor offenses which came under the public enemy decree, “in which, however, protective custody will be requested by virtue of the offender’s past life and his character.” Again, he speaks of cases in which motion is made for the offender to be taken into protective custody.

On 5 January 1942 the defendant Rothenberger addressed a report on the general situation in the Hamburg area to the Reich Minister of Justice. From this document his attitude concerning the institution of protective custody may be ascertained. Concerning the “transfer to the public prosecutors of the right to decide about the duration of protective custody,” he said:

“In a certain connection with this problem is the transfer to the public prosecutor’s office of the right to decide about the duration of the protective custody. I regret that it is obvious that the courts are more cautious and reserved than they were previously in regard to the order of protective custody, because the duration of the protective custody is not any more within their control. This attitude of the courts cannot be approved, but it is psychologically understandable; I am afraid, that the reform effected the opposite of the intended more vigorous practice in regard to protective custody.”

In February 1939 the defendant Rothenberger and the Chief Public Prosecutor reported to the Hamburg judges upon a conference which had been held in Berlin. The record of the joint report in which Rothenberger participated is as follows (NG-629, Pros. Ex. 28):

“A report was then made on the discussions on protective custody. The ministry is of the opinion—also held here—that no objection can be raised to protective custody as long as it is purely protective, but that corrective measures, such as became known in certain cases, must not become a habit.”

In conclusion, the evidence discloses a personality full of complexities, contradictions, and inner conflict. He was kind to many half-Jews, and occasionally publicly aided them, yet he was instrumental in denying them the rights to which every litigant is entitled. He fulminated publicly against the “Schwarze Korps” for attacking the courts, yet he reproached judges for administering justice against Party officials and unquestionably used his influence toward achieving discriminatory action favorable to high Party officials and unfavorable to Poles and Jews. He wrote learnedly in favor of an independent judiciary, yet he ruled the judges of Hamburg with an iron hand. He protested vehemently against the practice of Party officials and Gestapo officers who interfered with the judges in pending cases, but he made arrangements with the Gestapo, the SS, and the SD whereby they were to come to him with their political affairs and then he instituted “preview and review” of sentences with the judges who were his inferiors. He thought concentration camps wrong but concluded that they were not objectionable if third degree methods did not become a habit.

Rothenberger was not happy with his work in Berlin. In his farewell speech on leaving Hamburg, he exuberantly exclaimed that he had been “an uncrowned king” in Hamburg, but he would have us believe that he received a crown of thorns in Berlin. Soon he learned of the utter brutality of the Nazi system and the cynical wickedness of Thierack and Himmler, whom he considered his personal enemies. He could not stomach what he saw, and they could not stomach him. The evidence satisfies us that Rothenberger was deceived and abused by his superiors; that evidence was “framed” against him; and that he was ultimately removed, in part at least, because he was not sufficiently brutal to satisfy the demands of the hour. He was retired to the apparently quiet life of a notary in Hamburg, but even then we find that he was receiving some pay as an Under Secretary and was assisting Gauleiter Kauffmann in political matters in that city.

The defendant Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and notwithstanding his many protestations to the contrary he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system. The defendant Rothenberger is guilty under counts two and three of the indictment.

THE DEFENDANT LAUTZ

The defendant Lautz from 20 September 1939 until the end of the war served as Chief Public Prosecutor at the People’s Court in Berlin. He joined the NSDAP in May 1933. During the period of his service the “higher officials” under his supervision increased from 25 to about 70. The office originally consisted of four departments which were later increased to five to correspond with the number of senates of the People’s Court. After the enlargement of the department there were five public prosecutors and one senior public prosecutor in each department. The defendants Barnickel and Rothaug were among the senior public prosecutors under the general supervision of the defendant Lautz. The crimes with which his office dealt were those over which the People’s Court had jurisdiction. Of particular interest here were the prosecutions for undermining the German defensive strength, high treason and treason, cases of attempted escape from the Reich by Poles and other foreigners, and NN cases.

A great number of prosecutions were brought under the decree of 17 August 1938 which provides that “Whoever * * * openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms” should be punished by death. This was the law which effectively destroyed the right of free speech in Germany. The prosecutor’s office was required to handle approximately 1,500 cases a month involving charges of this type. Under supervision of the defendant Lautz all of these charges had to be examined and assigned for trial to the People’s Court in serious cases, or to other courts. In the cases which were assigned to the People’s Court for trial “there was always the possibility that the death sentence would be pronounced.”

The defendant Lautz instructed his subordinates that only those cases were to be retained for trial before the People’s Court in which it was “possible to assume full responsibility if the People’s Court senate pronounces the death sentence.”

Lautz did not shirk responsibility for the acts of his deputies. He testified that the signature of his deputy “meant, of course, that I assumed responsibility for that matter.”

In connection with the work of his department it was the duty of the defendant Lautz to sign all indictments, all suspensions of proceedings, and all reports to his superior, the Minister of Justice. This work assumed such proportions that it became necessary to delegate parts thereof to his subordinates, but the defendant Lautz required that important matters be reported directly to him. In partial explanation of his activities and motives in connection with his enforcement of the law against undermining the military efficiency of the nation, Lautz stated:

“Just as I think it is a good thing that no one today can claim that this war was lost only through treason, I must also say that I regret that because of this war and through these death sentences many people, who were otherwise all right, had to lose their lives.”

As an illustration of the type of case which was prosecuted under this law, we cite the case of the defendant who said to a woman: “Don’t you know that a woman who takes on work sends another German soldier to his death?” This offense was described by Lautz and Rothaug as a serious case of undermining the military efficiency of the nation. The office of the Chief Public Prosecutor of the People’s Court was vested with a wide discretion in connection with the assignment of cases to the various courts for trial. It will be recalled that the malicious acts law of 20 December 1934 provided for punishment of persons who made false or treacherous statements “fit to injure the welfare or prestige of the government and of the Reich”, etc. Under this law moderate punishments by imprisonment were authorized, whereas, under the law against undermining the defensive strength of the nation, the death penalty was mandatory. If the prosecutor sent the case for trial to the People’s Court on the charge of undermining, instead of sending it to a lower court for trial under the malicious acts law, he determined for all practical purposes the character of the punishment to be inflicted, and yet the evidence satisfies us that there was no rule by which the cases were classified and that the fate of the victims depended merely on the opinion of the prosecutor as to the seriousness of the words spoken.

The connection of the defendant Lautz with the illegal Nacht und Nebel procedure is established beyond question. The People’s Court acquired jurisdiction of NN cases under the decree of the Reich Minister of Justice of 14 October 1942. Lautz estimated that the total number of NN cases examined by his department was approximately one thousand, of which about two hundred were assigned to the People’s Court for trial, but he added that each case could concern several defendants. No good purpose will be served by a second review of the testimony concerning the Nacht und Nebel decree. In harmony with the decision in the case of the United States [et al.] vs. Goering, et al., this Tribunal finds that the secret procedure which was instituted and enforced through the Ministry of Justice constituted a war crime and a crime against humanity. The Chief Public Prosecutor of the People’s Court zealously enforced the provisions of this decree, and his conduct in so doing violated the laws and customs of war and the provisions of C. C. Law 10.

Treason Cases Involving Border Crossings by Poles

Lautz estimated that from 150 to 200 persons were prosecuted for leaving their places of work and attempting to escape from Germany by crossing the border into Switzerland. These cases were prosecuted under the provisions of penal code concerning treason and high treason.

On 24 February 1942 an indictment against the Pole Ledwon was filed by Parrisius as deputy for the defendant Lautz. The indictment was marked “Secret Treason Case”, and bore the stamp of the Chief Public Prosecutor at the People’s Court. A letter signed by Lautz bearing the same date was addressed to the presidents of the Second Senate of the People’s Court and advises them that he is sending to the court the indictment in the case Ledwon. The indictment alleges that on 28 July 1941 the accused left his place of work in Bavaria and attempted to escape by crossing the Reich border, and that he was stopped by a customs official whom he struck with his fist while evading the arrest. The indictment states that the reason given by the defendant Ledwon for his attempt to escape from Germany “does not deserve credence; it may rather be assumed that he intended to join the Polish Legion organized on the side of the hostile powers”. The indictment states that the defendant knew that the aim of the Polish Legion was to restore a Polish state. On the basis of the foregoing specific allegations, the indictment charges that the defendant prepared within Germany “(1) the highly treasonable enterprise to separate from the Reich by force a territory belonging to the Reich; (2) to have aided and abetted the enemy inside Germany during a war against the Reich, and thus, as a Pole, not to have behaved according to the German laws and to the directives of the German authorities; and (3) to have committed a violent attempt on a German official. * * *.” The indictment was brought under the provisions of sections 80, 83, and 91b of the penal code, and under the provisions of the law against Poles and Jews. Section 80 provides for the imposition of the death penalty upon anyone attempting by violence or threat of violence to detach from the Reich territory belonging to the Reich. Section 83 provides for the punishment of any person who solicits and incites an undertaking of high treason. Section 91b provides for imprisonment or death for any person who undertakes acts in favor of the enemy powers or causes a detriment against the armed forces of the Reich. On 10 August 1942 the case was tried. The court found the following facts: defendant was a Pole who lived in Poland on 1 September 1939. (See: Law against Poles and Jews.) After the Polish campaign the defendant reported “voluntarily” for work in Germany and then tried to leave the country. The court states further that “the prosecution charges the defendant with the intention of going to Switzerland in order to join the Polish Legion there.” It adds that the Polish Legion was interned in Switzerland and that many Poles had been caught at the frontier, some of whom could be convicted of planning to join the Polish Legion in Switzerland. The court, with unwanted candor, states that “the trial did not show any concrete evidence that the defendant * * * had any knowledge of a Polish Legion in Switzerland.” It held that due to lack of evidence “the defendant could not be convicted of the crime of preparation for treason and of treasonably aiding the enemy.” The opinion of the People’s Court continues (NG-355, Pros. Ex. 128):

“The defendant is, however, guilty according to the result of the trial, of an offense under the ordinance relating to the administration of penal law for Poles, of 4 December 1941. The general conditions of this ordinance are fulfilled, as the defendant is, by origin, education, and sentiment, a racial Pole and was on 1 September 1939 resident in the former Polish State. In leaving his place of work as an agricultural laborer, of his own accord, at the end of July, i. e., during the harvest, he disturbed the orderly procedure of the harvest work of his employer to the detriment of the harvest. His action moreover was detrimental to the whole of the German people, for in leaving his place of work in order to go abroad he deprived the German people forever of his labor. Germany, in order to cover her war needs and to ensure food supplies for the front as well as for home, however, needs all persons employed, including foreigners. Every worker who by escape abroad deprives the German war economy for good of his labor, reduces the number of badly needed manpower, and thus endangers the interest of the German people.”

The court held that it was irrelevant whether the Pole knocked the customs official down, because in any event he used force sufficient to prevent his arrest at the time. It observed that under the law against Poles and Jews “the only possible penalty is the death sentence, unless a less serious case can be made out in the defendant’s favor. The senate was not able to recognize such case.”

The opinion concludes as follows:

“But by using violence against the customs officer who was going to arrest him and thus resisting the legal German authority, he has proved himself such a fanatical and violent Pole that he has forfeited any right for leniency. In view of the heavy responsibility of the Polish nation for the bloodshed caused during the weeks of August and September 1939, it is the duty of every member of this nation to obey willingly the rules of the German authorities. A Pole who, on the contrary, uses violence against a German official can only be punished sufficiently by the highest degree of punishment. Accordingly, this has been imposed on the defendant.”

The Pole was sentenced to death.

We are not here to retry the case. We may, therefore, ignore the ridiculous charge that the defendant desired to join an interned legion and the allegation that he came to the Reich “voluntarily” after the invasion of Poland. We have already discussed the essential evil in the practice of prosecutors whereby they charged that Poles were guilty of high treason by attempting to separate from the Reich territory which had never been legally annexed to the Reich. In the Ledwon case the sinister subtlety of the Nazi procedure is laid bare. If the case had been brought only under the law against Poles and Jews, the People’s Court would not have had jurisdiction, so the defendant was charged with high treason for attempting to separate from the Reich, territory which did not belong to it. The proof of high treason failed. There remained only the charge that in attempting to escape from Germany and from forced labor there, the defendant assaulted a customs officer with his fist and that what he did was done as a Pole in violation of the law against Poles and Jews. It was under that discriminatory law that Ledwon was sentenced to death and executed. The defendant Lautz is guilty of participating in the national program of racial extermination of Poles by means of the perversion of the law of high treason.

In a similar case, upon an indictment signed by Parrisius and filed by authority of the defendant Lautz, the People’s Court sentenced three Poles to death upon a charge of preparation of high treason “because they, as Poles, harmed the welfare of the German people, and because in a treasonable way they helped the enemy and also prepared for high treason.” The specific facts found by the court were that the defendant Mazur and others attempted to cross the border into Switzerland for the purpose of joining the Polish Legion. By such conduct and by depriving the German Reich of the benefit of their labor, it was held that the efforts of the defendants aimed “at forcibly detaching the eastern regions incorporated in the Reich * * * from the German Reich.” The opinion contains an illuminating passage concerning treason committed by attempting to join an interned legion. We quote (NG-352, Pros. Ex. 129):

“After the defeat of France in the present war, as is known to the senate (court) from other proceedings, detachments of the Polish Legion crossed the border into Switzerland and were interned in camps. The legion continues under the command of Polish officers and is kept in readiness for military action against the Reich on the side of the enemy in the event of German troops invading Switzerland.”

The evidence of intent to join the interned legion is paltry, but as before we will not attempt to retry the case on the facts. The court held that according to the law against Poles, the death sentence must be imposed. We quote:

“They wanted to deprive the German nation forever of their labor. Thus, they have damaged the welfare of the German nation. This is an offense under the ordinance on the administration of penal law against Poles. * * *

“The precept of the Regulation of Penal law against Poles applies to the defendant’s offense, although it was committed before the regulation came into force for, according to article I of the Supplementary Regulation of 31 January 1942, the Regulation of Penal Law against Poles can be applied to offenses committed before the regulation was in force with the approval of the prosecutor. This approval has been given by the Reich Chief Prosecutor.”

In another, the Kalicki case, the record of which is marked “Secret,” three Poles were sentenced to death for preparation of high treason upon the same grounds as in the previous case. The court held that “the sentence to be pronounced has to be based on the ordinance concerning the administration of penal law against Poles, since this ordinance provides the heaviest penalty of all laws applicable to the case.” The evidence does not disclose that the defendant Lautz personally signed the indictment, but it was certainly filed under his authority. The question of clemency in the Kalicki case was presented to the defendant Rothenberger. On 28 July 1943 he wrote:

“ * * * I have decided upon authorization by the Fuehrer not to exercise my right of pardon but to let justice take its course.”

The defendant Lautz filed an indictment against the Pole, Bratek. The specific charge was leaving his work in Germany and attempting to cross the border into Switzerland to join the Polish Legion. The general charge was the treasonable attempt to separate from the Reich an area belonging to the Reich and the violation of the law against Poles and Jews. The court said (NG-595, Pros. Ex. 136):

“At the same time he has made himself guilty of a crime according to Article I, paragraph 3, last half sentence, of the Ordinance on the Administration of Penal Law Against Poles, issued 4 December 1941. Because, being a Pole, he has intentionally inflicted damage to the interests of the German people by malevolently leaving his important agricultural job, above all during harvest time, in September 1942, and by planning to rob the German people forever of his own labor by escaping abroad. * * *

“According to article 73, Penal Code, the penalty must be based on the ordinance concerning the administration of penal law against Poles which loc. cit. demands exclusively the death penalty as a rule, this being the most severe penal law applicable here.”

A secret communication by the defendant Lautz to the Reich Minister of Justice is of especial interest. The proposal under consideration as for the prosecution of certain Poles upon the charge of high treason on account of acts done in Poland before the war. In his discussion Lautz quotes from Himmler, the Foreign Office, and the president of the People’s Court. The facts on the basis of which opinions were expressed may be illustrated thus: Within Poland and before the war, a Pole institutes proceedings against a Polish citizen of German blood, charging the racial German with fifth column activities directed against Poland. During the war the Pole who instituted the prosecution against the racial German is captured. The question was: Can the Pole be prosecuted in a German court on a charge of high treason against the Reich, basing the charge on the fact that he had prosecuted the racial German in Poland? The German penal statute involved was section 91, paragraph 2, which provides that “whoever with the intention of causing a serious detriment to a national of the Reich, enters into relations as described in paragraph I shall be punished,” in especially serious cases by death. Himmler, as quoted by Lautz, discusses the basis for punishment by German courts of “an offender who has caused racial Germans to be punished or otherwise prosecuted by Polish authorities.” Himmler asserts that foreign police used methods against racial Germans which were contrary to international law and “the laws of minorities” and that such offenders deserve heavy punishment, but he also states that as far as racial Germans are concerned, section 91, paragraph 2, of the German Penal Code “is not directly applicable, as racial Germans, according to formal national laws were not German, but Polish, citizens. I can only express my opinion in the form of a suggestion, that in case of the betrayal of a racial German by the foreign Poles * * * section 91, paragraph 2, of the German Penal Code is to be applied * * *.” (Citing decisions of the People’s Court.) Himmler directly states that the provisions of section 91, paragraph 2, are “nonapplicable”. We emphasize the fact that the question under discussion related to the proposed prosecution of a Pole for acts committed before the war while Poland was in the exercise of its sovereign powers throughout its territory. The question could not well have related to acts done after Poland had been overrun and part of it purportedly annexed, for, at that time Polish authorities would have been in no position to prosecute racial Germans. Furthermore, in discussing the problem, Lautz mentions a case against the Pole Golek which had recently come into his hands on preliminary proceedings. He states that Golek in the years 1938 and 1939 in Poland had turned over to the police authorities a racial German of Polish nationality and had accused him of high treason committed in favor of the Reich.

Himmler, as quoted by Lautz, expressed the view that considerations of foreign policy would be opposed to the enactment of any German statute under which a Pole could be prosecuted by German authorities on account of acts of the kind indicated, but he added:

“I see here a task for the courts, an opportunity to fill a gap in the law, a gap caused by political reasons of state by creating a law in the appropriate cases.”

Himmler quoted from an opinion by the People’s Court in which it was said that the National Socialist State “feels it incumbent on itself, even in case of a conspiracy by a foreign government against one single Reich citizen, to give the threatened person its protection in accordance with penal law as far as this is possible from the home country.” It will be observed that this quotation relates to the protection of Reich citizens, not Polish citizens, who are only racial Germans. Himmler continued, however:

“The Reich made no secret of the fact that with regard to the protection of Germans, it does not only claim the right to protect Reich Germans but also racial Germans living on its borders.”

The defendant Lautz frankly expressed the view that the German statute defining treason did not cover the case under discussion. In this he was clearly correct. The German statute on treason had been extended to provide that “whoever with the intention of causing * * * any other serious detriment to the Reich, establishes relations with a foreign government, shall be punished by death.” This section was not applicable to the case under discussion because the charge to be preferred against the Pole was one of treason against an individual and not against the Reich. By the law of 24 April 1934 the concept of treason was also expanded to cover certain cases of causing serious detriment to a German national, but that law also was inapplicable to the case under discussion because the serious detriment had not been caused to a German national but only to a racial German. Insofar as the German statutes required punishment of acts done with the intention of causing serious detriment to a national of the Reich, they extended the concept of treason in a manner unknown to the criminal law of any civilized state, and this law was made applicable in occupied and purportedly annexed territory. Notwithstanding the extremes to which the German laws of treason were extended, the defendant Lautz stated that he agreed with the Reich Leader SS and the president of the People’s Court that a direct application of the German law of treason protects only German nationals and does not apply to racial Germans. He then stated:

“Furthermore, I concur with the conception that the general political development which has meanwhile come about, particularly during the last years, which has enabled the Reich largely to protect its racial members of foreign nationality to a greater extent than it has been possible hitherto, must be borne in mind in this particular instance. Therefore, I find it necessary, on principle, to protect by means of the German penal code those racial Germans who have seriously suffered through action such as mentioned in paragraph 92, subparagraph 2, of the Penal Code, provided that action deserves punishment in accordance with sound German sentiment, but where such punishment, considering the elements of wrongdoing of that particular case, cannot be brought home on the strength of any other directly applicable penal regulation.”

In conclusion the defendant Lautz stated that in the majority of cases which have been committed by foreign nationals abroad against racial Germans he would “have to report in each individual case.”

Stated in plain language, Lautz proposed that the courts should try and convict Poles for acts which violated no statute of any kind, if they deserved punishment according to sound German sentiment. This proposal violates every concept of justice and fair play wherever enforced, but when applied against a Pole for an act done in his own country in time of peace, the proposition becomes a monument to Nazi arrogance and criminality. Such a Pole owed no duty of loyalty to any state except Poland and was subject to the criminal jurisdiction of no state but Poland. The prosecution of the Pole Golek would constitute a palpable violation of the laws of war (see: citations to the Hague Convention, supra), and any official participating in such a proceeding would be guilty of a war crime under C. C. Law 10. The document discloses that cases similar to that of Golek had been tried by the People’s Court and that more prosecutions were expected in the future. As a witness, the defendant Lautz testified that “in several individual cases a decision had to be obtained from the minister.” We are justified in believing that Lautz’ expectations were fulfilled and that he participated in the prosecution of Golek and in similar cases.

We have cited a few cases which are typical of the activities of the prosecution before the People’s Court in innumerable cases. The captured documents which are in evidence establish that the defendant Lautz was criminally implicated in enforcing the law against Poles and Jews which we deem to be a part of the established governmental plan for the extermination of those races. He was an accessory to, and took a consenting part in, the crime of genocide.

He is likewise guilty of a violation of the laws and customs of war in connection with prosecutions under the Nacht und Nebel decree, and he participated in the perversion of the laws relating to treason and high treason under which Poles guilty of petty offenses were executed. The proof of his guilt is not, however, dependent solely on captured documents or the testimony of prosecution witnesses. He is convicted on the basis of his own sworn statements. Defendant is entitled to respect for his honesty, but we cannot disregard his incriminating admissions merely because we respect him for making them.

There is much to be said in mitigation of punishment. Lautz was not active in Party matters. He resisted all efforts of Party officials to influence his conduct but yielded to influence and guidance from Hitler through the Reich Ministry of Justice, believing that to be required under German law. He was a stern man and a relentless prosecutor, but it may be said in his favor that if German law were a defense, which it is not, many of his acts would be excusable.

We find the defendant Lautz guilty as charged upon counts two and three of the indictment.

THE DEFENDANT METTGENBERG

By his own sworn statement the defendant Wolfgang Mettgenberg frankly and fully admits his connection with the Hitler Night and Fog decree. His statements show that he exercised wide discretion and had extensive authority over the entire plan from the time the Night and Fog prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or imprisonment.

We will not reiterate the statements made by him in his sworn statement and hereinabove quoted. Suffice it to say that Mettgenberg held the position of Ministerialdirigent in Departments III and IV of the Reich Ministry of Justice. In Department III, for penal legislation, he dealt with international law, formulating secret, general, and circular directives. He was regarded as an eminent authority on international law. He handled Night and Fog cases and knew the purpose and procedure in such cases. He knew that the decree was based upon the Fuehrer’s order of 7 December 1941 to the OKW. He knew that an agreement existed between the Gestapo, the Reich Ministry of Justice, the Party Chancellery, and the OKW with respect to the purposes of the Night and Fog decree and the manner in which such matters were to be handled.

The defendant von Ammon was Ministerial Councillor in Mettgenberg’s subdivision and was in charge of the Night and Fog section as shown in this judgment. The two acted together on doubtful matters and referred difficult questions to competent officials in the Reich Ministry of Justice and the Party Chancellery, since both of these offices had to give their “agreement” in cases of malicious attacks upon the Reich or Nazi Party or in the Night and Fog cases. The NN cases came from the Wehrmacht but in some cases directly from the Gestapo. These cases were assigned to Special Courts at several places in Germany and to the People’s Court at Berlin by defendant von Ammon. Mettgenberg and von Ammon were sent to the Netherlands occupied territory because some German courts set up there were receiving Night and Fog cases in violation of the decree that they should be transferred to Germany. They held a conference at The Hague with the highest military justice authority and the heads of the German courts in the Netherlands, which resulted in a reference of the matter to the OKW at Berlin which agreed with Mettgenberg and von Ammon that “the same procedure should be used in the Netherlands as in other occupied territories, that is, that all Night and Fog matters should be transferred to Germany.”

In Department IV for penal administration, Mettgenberg’s work consisted of inspecting execution equipment. He witnessed one execution in 1944. He was entrusted with speeding up clemency applications because prisoners were escaping during air raids. Reich Minister Thierack called the defendant, Rothenberger, Under State Secretary, by telephone at Berlin and instructed him to make decisions concerning the clemency in death sentence cases presented by defendant Mettgenberg who made “reports lasting hours,” and then Rothenberger made the decisions.

The evidence does not positively show that clemency cases presented by Mettgenberg and passed upon by Rothenberger were NN cases. We think, however, that the only conclusion that can be reached from Mettgenberg’s testimony during the trial is that Rothenberger passed upon all clemency matters presented to him by Mettgenberg which included NN cases. Mettgenberg stated that he was appointed to speed up clemency matters due to air raids and that he took the matter up with the Reich Minister of Justice, Thierack, who at the time called Rothenberger on the telephone and told him to receive and pass upon the clemency matters submitted. Mettgenberg testified that he did present clemency matters to Rothenberger by telephone conversations which lasted for several hours and that Rothenberger then made the decisions.

The defendant Mettgenberg assumed the burden of defending the illegality of the Night and Fog proceedings under the Ministry of Justice not only for himself but for all defendants connected therewith. He prefaced this defense with the following statement:

“Today I am still of the view which I expressed in my affidavit. My view is that it was regrettable because the courts, in these matters, could not completely do justice to their foremost task, the finding of the truth. Now that I believe I have heard everything and believe myself to be able to survey the whole matter, I have to say that as concerns the various evils between which one had to choose, a transfer of the NN cases to the administration of justice was, after all, the lesser evil, so that this emergency solution which was made was probably the only possible solution.” (Tr. pp. 6269–6270.)

With respect to the legal foundation for the NN cases, three laws or decrees are presented as justifying the proceedings. The first is article 161 of the Military Penal Code which dates back to the 1870’s and which, as amended, provides:

“A foreigner or a German who, in a foreign territory occupied by German troops, acts against German troops or their members or against an authority established by order of the Fuehrer and thereby commits an act which is punishable according to the laws of the Reich, is to be punished, just as if that act would have been committed by him within the territory of the Reich.”

Whether this law violates international law of war need not be determined here because the defendants did not act under it in the execution and enforcement of the Hitler Night and Fog decree. Nor does this law authorize the execution and enforcement of any such decree.

The second legal ground presented is article 3, section 2 of the Code of Penal Procedure of 17 August 1938 which provides for the punishment of criminal acts committed in the areas of military operations in occupied territory by foreigners or Germans and further provides that:

“If a requirement of warfare demands it, * * * they may turn over the prosecution to the ordinary courts in the rear army area.”

There can be no criticism of this law. It was not applied in any respect in the Night and Fog cases; hence, it constitutes no defense for the manner in which the Night and Fog decree was carried out.

The third legal foundation for the proceeding is based upon the claim that the Hitler decree of 7 December 1941 was a legal regulation for the handling of offenses against the Reich or against the occupation forces of the German Army in occupied areas. With respect to this decree we are convinced that it has no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations as heretofore set out in this judgment.

The defendant Mettgenberg referred to and approved the testimony of the defendant Schlegelberger which states “that the NN prisoners were expected to be, and were, tried materially according to the same regulations which would have been applied to them by the courts martial in the occupied territories” and that, accordingly, “the rules of procedure had been curtailed to the utmost extent.” This court martial procedure was shown to have been used in the prosecution of NN persons who had been charged with high treason or preparation of treason against the Reich.

Mettgenberg testified as to the troubles the department had with the Gestapo because the Gestapo insisted that they had already investigated the facts as to each NN prisoner and that these facts should be accepted without further trial. This practice was not acceptable to the Ministry of Justice. As to other difficulties in securing proper evidence, Mettgenberg testified:

“Even though investigations were first of all carried out in the occupied territories before the NN prisoners were transferred to Germany, yet it was a matter of course that that evidence was not always without gaps.”

These “gaps” in the evidence were shown by [NG-261 and NG-264] Prosecution Exhibits 334 and 335 in which the public prosecutor at Katowice complained of the difficulty of securing sufficient proof due to the utter secrecy of the proceedings. The Gestapo alone presented the evidence by “rather dubious police transcripts” and “such police records occasionally had been obtained by inadmissible means.” Mettgenberg testified that defendant von Ammon made an official trip to Upper Silesia to discuss these matters with the chief judge in Belgium and northern France “to remedy that state of affairs.” This action did not take place until 30 June 1944, which was only a few months before the Night and Fog matters were taken out of the hands of the Ministry of Justice, and all prisoners then held by the Ministry of Justice were transferred to the Gestapo to be placed in concentration camps.

Mettgenberg also testified to the difficulties experienced with the Gestapo arising out of the fact that the Gestapo transferred many of these prisoners directly to concentration camps and thereby retained control over them. Nothing was done about the fact that the police took the NN prisoners into police custody and retained them in police custody.

We find defendant Mettgenberg to be guilty under counts two and three of the indictment. The evidence shows beyond a reasonable doubt that he acted as a principal, aided, abetted, and was connected with the execution and carrying out of the Hitler Night and Fog decree in violation of numerous principles of international law, as has been heretofore pointed out in this judgment.

THE DEFENDANT VON AMMON

From his own sworn statements we gain the following information concerning the defendant von Ammon. He joined the SA in December 1933, in which organization he held the rank of Scharfuehrer. He joined the NSDAP in May 1937. He was called to the Reich Ministry of Justice as of 1 January 1935, became a Landgerichtsrat on 1 February 1935, and Landgerichtsdirektor on 1 July 1937. His main activity in the Ministry during that period concerned “questions of international legal usage in penal matters”

After the Austrian Anschluss he was employed as liaison officer of Department III (penal matters) in connection with Department VIII (Austria), in the Reich Ministry of Justice. He was consultant in the department for the administration of penal law under Ministerialdirektor Crohne. He was transferred to the Munich Court of Appeals as Oberlandesgerichtsrat where he served until June 1940, at which time he was recalled to the Reich Ministry of Justice. As of 1 March 1943 he was appointed Ministerial Counsellor in the Ministry of Justice. He states (NG-852, Pros. Ex. 55):

“From 1942 onward I dealt mainly with Nacht und Nebel cases in the occupied territories. In my capacity as consultant for Nacht und Nebel cases I made several duty trips to the occupied territories and took part in discussions in Paris and Holland which dealt with questions of Nacht und Nebel proceedings.”

The broad scope and the variety of the official activities of von Ammon may be illustrated by reference to reports which he made to officials of the Ministry of Justice during the year 1944. On 14 January 1944 he reported at the Ministry upon “jurisdiction of Denmark”. On 10 February he reported to the minister on “Competence for Prosecution of NN Cases.” On 31 May, under the heading “Submissions to the State Secretary” (Klemm), he reported on “Action Against Stateless Jews, Admission of Legal Procedure.” Under the heading “Reports to the State Secretary” for 21 June 1944, he reported on “Pastoral Service for NN Prisoners”, after which in handwriting appears the word “rejection”. Under the heading “Submissions to the Minister” for 26 July, he reported on “Proceedings of State Police in Lower Styria.” Under the heading “Reports to the Ministers” of 5 October, he reported on “Taking Over of Criminal Proceedings from the Eastern Districts.” Under the heading “Formal Verbal Reports to the Minister” of 3 November 1944, he reported on “Liquidation of Offenses from the Eastern Territories.” On 10 January 1945 it appears that he made a verbal report on the “Taking Over Administration of Penal Justice of the Minister for the East.”

The prosecution introduced in evidence a captured document of 142 pages in length, containing lists of many hundreds of death sentences which were submitted to the Minister of Justice and at times to State Secretary Klemm for final disposition. The cases were classified as “clear” or as “doubtful.” The former, “clear,” outnumbered the latter. An examination of the document discloses that between 14 January 1944 and 16 November of the same year the defendant von Ammon made twenty-four reports on cases in which persons from the occupied territories had been sentenced to death under the Nacht und Nebel procedure. The death sentences averaged more than one for every 3 days of the entire period.

In a notice addressed to Under Secretary Rothenberger, and to Minister Thierack, von Ammon reported that on 1 September 1942, in Kiel, Essen, and Cologne cases were pending against 1,456 persons charged under the Night and Fog decree.

In view of the fact that von Ammon was in charge of Nacht und Nebel procedure from 1942 until the end of the war, it is clear that we have in evidence only incomplete records of the activities of this defendant in connection with the Night and Fog decree. The fragmentary character of the captured documents which have been submitted renders it impossible to give a complete picture of this criminal activity. The illustrations which we have given and which cover only a portion of the time involved will, however, serve as an indication of the scope of the activities which were under the direction of the defendants Mettgenberg and von Ammon. Von Ammon also participated in a lengthy secret correspondence concerning the transfer of NN cases to the Special Court at Oppeln and the necessity of allocating additional judges and public prosecutors to that court in view of the resultant increase in the volume of work.

The defendant von Ammon held an executive position of responsibility involving the exercise of personal discretion. Within the ministry he was in charge of the section which handled Night and Fog cases. The defendant Mettgenberg stated that the Night and Fog section within his subdivision was headed by von Ammon and that whenever von Ammon had doubts concerning the handling of individual cases joint discussions were held. We quote:

“When he had no doubts he could decide on matters himself.”

We have already set forth at length the statement of von Ammon concerning his knowledge and activities and his misgivings concerning the entire procedure. The defendants von Ammon and Mettgenberg were the representatives of the Reich Ministry of Justice at a conference at The Hague on 2 November 1943 concerning “New Regulations for Dealing with Night and Fog Cases from the Netherlands”. Von Ammon states that assurance was given by Mettgenberg and himself that close connection would be maintained between the judicial authorities at Essen and the German authorities in the Netherlands in the handling of NN cases. We have already quoted a note signed by von Ammon wherein he remarked that it was “rather awkward” that the defendants should learn the details of their charges only during the trial and commented on the insufficiency of the translation facilities in the trial of French NN prisoners. Von Ammon is chargeable with actual knowledge concerning the systematic abuse of the judicial process in these cases.

In respect to his other activities we refer to our general discussion under the heading “Night and Fog.” We find the defendant von Ammon guilty of war crimes and crimes against humanity under counts two and three of the indictment.

THE DEFENDANT JOEL

The professional career of the defendant Guenther Joel in the Third Reich proceeded at the same pace as his career as a Party man; in fact, even before the war years his professional career merged with his career in Nazi organizations, and to be more precise, in the SS and the SD—the organization which the IMT judgment has declared to be criminal.

He became a member of the NSDAP on 1 May 1933 and entered the Ministry of Justice as a junior public prosecutor (Gerichtsassessor) on 7 August 1933. In quick succession he became assistant public prosecutor (1 September 1933), public prosecutor (1 January 1934), senior public prosecutor (1 February 1935), and chief public prosecutor (1 November 1936).

Between August 1933 and October 1937, Joel was the chief of a newly created subdepartment of the Reich Ministry of Justice, the Central Public Prosecution (Zentralstaatsanwaltschaft). In October 1937 this subdepartment was dissolved, but the Reich Minister of Justice, Guertner, reserved the right to assign Joel as “Referent” for special cases and subsequently made use of this right. After the dissolution of the Central Public Prosecution, Joel worked as “Referent” in the Ministry’s Penal Department III (later renumbered IV).

By a formal letter of appointment, dated 19 December 1937 and signed by Minister Guertner, Joel was, in addition to his other duties, appointed liaison officer between the Reich Ministry of Justice and the SS, including the SD, as well as the Gestapo. A few months later, namely, in a letter of 2 May 1938, signed by Heydrich, Joel was, effective 30 January 1938, admitted to the SS and, effective the same day, promoted to the rank of SS Untersturmfuehrer and given the position of leader (Fuehrer) in the SD Main Office (Security Service Main Office).

His SS personnel record shows how quickly he climbed to high positions in the SS and the SD: on 11 September 1938 he became SS Obersturmfuehrer; on 30 January 1939, SS Hauptsturmfuehrer; on 26 September 1940, SS Sturmbannfuehrer—holding all these ranks as leader in the SD Main Office.

The record shows that in his capacity as SS officer Joel was, between 2 and 8 May 1939, sent on an official mission for the Security Office (SD). An official letter from the Reich Leader of SS, Chief of the Security Service Main Office, dated 28 April 1939, so notified the Reich Minister of Justice. Again, on 4 July 1940, the Chief of the Security Police and the Security Service informed the Reich Ministry of Justice that Joel had been “put on the list of indispensable persons on behalf of the Reich Leader SS and Chief of the German Police,” thereby reserving to the Security Police and the Security Service the indispensable service of Joel and freeing him from military service.

But in his answer, dated 11 July 1940, to this request, Freisler, Under Secretary of the Ministry of Justice, asked:

“To refrain from calling upon SS Captain Joel, senior public prosecutor, for taking over duties for the Reich Leader SS and Chief of the German Police. Dr. Joel, as you know, is entrusted with extremely important reports at my ministry.”

The nature of these reports will be later discussed.

On 1 May 1941 Joel was promoted to ministerial counsellor. He remained with the Reich Ministry of Justice until 12 May 1943.

The reason for his leaving the Ministry was that on 7 May 1943 he was appointed attorney general to supreme provincial court of appeals in Hamm (Westphalia). By letter dated Fuehrer Headquarters, 12 May 1943, Bormann, Chief of the Party Chancellery (sentenced to death in absentia by the IMT) personally confirmed his appointment. It should be added that a few weeks earlier, by letter of 13 March 1943 to Reich Minister of Justice, Thierack, the Gauleiter of Westphalia, Alfred Meyer, also formally endorsed Joel’s appointment for attorney general at Hamm, in his own name and in the name of deputy Gauleiter Hoffmann, in charge of the administration of the Gau Westphalia-South.

Shortly after this new appointment, namely, as of 9 November 1943, Joel was promoted to the high rank of SS Obersturmbannfuehrer, which appointment was approved by Himmler. His political and Party career went hand in hand with his professional career, and his promotions were made by or approved by such high ranking Nazi officials as Himmler, Bormann, Heydrich, Thierack, and Freisler—whose desperate and despicable characters are known to the world; the record in this case is replete with many atrocities and crimes committed by these leaders and members of organizations which have been declared criminal by the IMT. Thus, Joel continued to the end as the confidant and trusted protegé of these most outstanding and notorious criminals of all time.

It will be remembered that ever since December 1937, Joel in his several capacities at the Ministry of Justice had, in addition to his other duties, acted as liaison officer between the ministry and the SS, the SD, and the Gestapo. To this position a successor, Chief Public Prosecutor Franke, was appointed on 1 August 1943. Joel claims that in fact he had ceased to act as such liaison officer when Thierack assumed office as Reich Minister of Justice in August 1942. However, the record shows that even after that time Joel made numerous reports, some of which are mentioned below, relating to the execution of death penalties imposed under the law against Poles and Jews, and relating to the transfer of Poles who had received mild sentences, or had been acquitted, or had served their term, to the Gestapo. These were the very duties which he had to perform in the Reich Ministry as liaison officer. Even after Thierack’s appointment as minister, Joel was connected with the interests of the Reich Security Office, and his work was productive and satisfactory in the carrying out of the plan or scheme of racial persecution and extermination of Poles and Jews. On 17 August 1943, defendant Rothenberger inducted defendant Joel into his office as general public prosecutor at Hamm, praised him in the highest terms, and referred to him as an SS member and also to his rank of SS Obersturmbannfuehrer. As late as 1945, when the question of military service for Joel again arose, Gauleiter Hoffmann of South Westphalia intervened in a letter to the Reich Ministry of Justice, referring to the fact that Joel was known to be a member of the Waffen SS, and that if he were to go into military service he would undoubtedly be assigned to the SS activities.

Under our discussion of the Night and Fog decree, reference is made to several documents which show Joel as having aided, abetted, participated in, and having been connected with, the Night and Fog scheme or plan.

Rudolf Lehmann, lieutenant general of the legal department of the armed forces, stated under oath:

“These cases were, as I seem to remember, handled by von Ammon, also of that same division of the Reich Ministry of Justice. General Public Prosecutor Joel, who was in the Ministry of Justice until sometime in 1943, would be able to supply further details on this ‘Nacht und Nebel’ matter. Joel was general public prosecutor in Hamm, and a court handling ‘Nacht und Nebel’ cases was located at Hamm. Other courts handling ‘Nacht und Nebel’ cases were located at Cologne, Breslau, and at one or two other places unknown to me but which can be named by Joel.”

Joel became chief prosecutor of the court of appeals in Hamm, covering all of Westphalia and the district of Essen, on 17 August 1943, which office he continued to hold until the end of the war. In this position he was in charge of the Night and Fog program for the Special Courts in Hamm and Essen until 15 March 1944 when these courts were transferred farther east to Oppeln in the Katowice district. Reports of Joel show that he attended conferences both in Hamm and in Belgium on Night and Fog matters. The record also shows that the district of which he was the highest, and therefore the most responsible, prosecuting authority was, in area and population, one of the largest in Germany. He had under his supervision the senior public prosecutors and their staffs at the Special Courts at Hamm and in Essen. It was his task to supervise the work of all prosecutors assigned to his office. The Special Courts in Hamm and Essen tried more Night and Fog cases than the combined total of all other Special Courts and the People’s Court. In law, Joel must be held to have had the responsibility of these cases. The record further shows that Joel assumed this responsibility.

A letter addressed to Joel, dated 20 January 1944, stated that in the future all Night and Fog persons who were upon trial acquitted or who had served their sentences, must be turned over for custody to the Gestapo.

A letter dated 26 January 1944 from Joel to the Reich Minister of Justice complained about the delay which the defendant Lautz, chief prosecutor at the People’s Court, caused by his failure to return files in NN cases. Joel pointed out that 84 Night and Fog prisoners who had been held near Hamm since 1941 were still there.

In November 1943 defendants von Ammon and Mettgenberg came to Hamm enroute back to Berlin from the conferences they had attended in Holland. The purpose of their visit to Joel was to determine whether there was any available space in prison for the keeping of additional Night and Fog prisoners to be transported from the Netherlands. Joel assured them that more prisoners could be accommodated and even opposed the view of his Oberlandesgericht who stated they should not be sent to the Hamm area. They were sent to that area. In December 1943 Joel attended a conference in Brussels which he reported upon after his return to Hamm, pertaining to Night and Fog prisoners who were sent from Belgium.

The categorical denial of Joel of ever having transferred an NN prisoner or of ever having tried an NN prisoner or of ever having issued an order to transfer an NN prisoner who had been acquitted or who had served his sentence, to Gestapo custody is no defense of his activities in connection with the custody, trial, execution, or transfer of NN prisoners after they had served their sentences or had been acquitted to the Gestapo.

The high office which he held required him to supervise and properly handle Night and Fog cases filed in the courts where he was chief prosecutor. He had numerous assistants whom he necessarily had to entrust with the prosecution and carrying out of the Night and Fog program and cases arising thereunder. The fact that Joel did not actually try the Night and Fog cases himself has no significance. He did supervise the men who tried and had executed some of them and imprisoned others and transferred others who were not guilty of any crime or who had served their sentence, to the Gestapo and concentration camps.

The defendant Joel is chargeable with knowledge that the Night and Fog program from its inception to its final conclusion constituted a violation of the laws and customs of war.

We turn now to the other activities here under indictment of the defendant Joel.

We direct attention to a document from the Reich Ministry of Justice which contains the program for conferences among the officials of the Ministry. In each instance the name of the official who is to report is set opposite the subject for discussion. From this we gain some information as to the scope of the work assigned to Joel.

According to this program Joel was scheduled to report upon the following subjects. We quote:

“Nullification plea, Maslanka.

“Nullification plea, Beyer Bosich (Italian) article 4, VVO.

“Matter of clemency Pongratz (70 year old farmer, non-delivery).

“Handing-over of Poles to the State Police (cases Bartosinski and Marcziniak).

“Lenzinger Zoowoll AG (Lenzinger Artificial Wool, Ltd.).

“Treatment of Jews and Poles, as well as Russians. Internal order of the Reich Leader SS.

“Bartosinski, Pole, shall be transferred from criminal custody (3 years’ penal camp on account of sexual intercourse) to State Police.

“Marasyak, Pole, wanted to marry German maid in France. Detention pending investigation. State Police demands him turned in.

“Should there be any reports during the war on the question of mercy for Poles who have been sentenced to death on account of the possession of weapons and other offenses and who have been pardoned to 5 years’ penal servitude with the reserve of an investigation after 2 to 3 years?

“Extortion of food ration cards, Mrs. Ritter. Chorlow, Russian from the district of Kursk, article 2, VVO. State Police wants to punish with police measures.

“Jakubowski, Pole, has raped German woman. He has been executed by hanging. The criminal police asks for a burial certificate.

“Uschako, workman, from the East, from old Soviet Russian territory, has stolen a jacket. The Secret State Police sent him to a labor education camp and requests cancellation of the order to inflict 1-month imprisonment.”

Another significant incident relates to the case of two “deserving National Socialists.” Our source of knowledge is a brief document signed by the defendant Joel. The facts stated are that a policeman and a temporary mayor “shot two Polish priests for no reason other than hatred for the Catholic clergy.” On 11 June 1940, the two murderers were sentenced to 15 years’ penal servitude for manslaughter. Joel states that more than 2 years of the sentence had been served and that the Reich Leader SS asked for pardon. The document concludes as follows:

“Penal servitude changed to 5 years’ imprisonment each. Postponement of the serving of the sentence and of the defamatory consequences for the duration of stay in a Waffen SS probation unit. Further pardon in the case of the probation. (Signed) Dr. Joel”

As early as 1937 it is clear that Joel had knowledge of conditions in concentration camps. A document marked “For the time of circulation: Secret! to III-a: After circulation in sealed envelope to the Gestapo general files”, contains the following:

“2. As far as reports concerning executions when escaping from concentration camps, etc., suicides in K.Z.’s (concentration camps) arrive, they shall continue to be dealt with by the specialist competent for the respective subject. The general consultant for political criminal matters, however, is to be informed of the reports. They are to be submitted to him [at] once.”

This order was circulated to all specialists for political criminal matters. Joel was listed as a political specialist.

An official report on a meeting of the presidential board of 1 February 1939 shows that a report was given by the Chief Public Prosecutor on developments in connection with the events of 9 to 11 November 1938 (the Jewish pogrom). We quote:

“The Reich Minister of Justice and Senior Public Prosecutor Joel pointed out that it was impossible, of course, to handle this matter in the usual judicial manner; if the top men disregarded legal principles, it was impossible to prosecute people concerned with the execution. For instance, the viewpoint of violation of the public peace should be dropped. This is legally justified inter alia by the fact that the culprits were not conscious of any violation, since they were acting under orders. As far as the criminal offenses committed on that occasion are concerned, trifles should be dropped. Otherwise, however, proceedings can only be quashed by the Fuehrer, whereas serious criminal offenses such as rape and race defilement must be prosecuted. The order to prosecute is issued in any case by the minister after the culprits, if they are members of the Party or of any organization, have been excluded by a special department of the Supreme Party Tribunal in Berlin.”

It is self-evident that if prosecution was to take place only after a Party tribunal had excluded them, they would live a long and happy life of freedom.

Defendant Joel became a Referent in the Reich Ministry of Justice with authority and duty to review penal cases from the Incorporated Eastern Territories after the occupation of Poland. In this capacity he handled many of the cases tried pursuant to the decree against Poles and Jews. In defense of these acts, Joel testified that “he felt obligated by the existing laws and so complied with them.” Joel did not have the same view as other officials that after the surrender of the Polish nation the nationals of the annexed part of Poland became German nationals. He testified that such a Polish citizen after 1 September 1939 remained a Polish national and that “a Polish national is never a German.” Joel frankly admitted that he knew he was not dealing with Germans but with foreign nationals.

In his capacity as Referent for the Incorporated Eastern Territories Joel, as liaison officer between the Reich Ministry of Justice and the Gestapo, took part in conferences with others from Department IV concerning the disposition of such Jewish and Polish cases. In one instance he reported having discussed an order of Himmler’s as to the treatment Poles and Jews should receive. In another instance he reported ordering the transfer of Poles who had been sentenced to a penal camp for 3 years to the Gestapo.

As a witness, Schlegelberger testified concerning transfers to the police, which he described as “a very sad chapter for anyone who has a sense of justice.” Guertner protested against this procedure and made compilations of press reports concerning executions by the police.

“Lammers actually submitted these compilations to Hitler but told Guertner later Hitler had said that he had not given a general directive to carry out these shootings, but in individual cases he could not do without these measures because the courts, that was military courts as well as civil courts, were not able to take care of the special conditions as created by the war. And, Lammers at the same time announced that Hitler in a further case had already ordered the execution by shooting.”

Schlegelberger testified further that after an order had been made for the transfer of a prisoner to the police, there was a time limit of 24 hours, at the end of which the police were required to report that the order had been executed. Schlegelberger states that Guertner charged the defendant Joel with the mission of representing the Ministry of Justice with the police in connection with these transfers. It appears that the Ministry of Justice, through Joel, was able to intervene in some cases and to prevent the transfers. Schlegelberger testified:

“* * * the attempts to intervene on the part of the Ministry of Justice were successful in some cases but, if all possibilities had been exhausted, and if in spite of that he had not succeeded in having the order issued by the police withdrawn, nothing was left but to issue the instructions to the executing authority not to offer any resistance but to hand the man over to the police when they requested him.”

Notwithstanding the reluctance with which the officials of the Ministry of Justice acted, it appears from the foregoing that they did cooperate in the transfer of prisoners to the police.

From 10 September 1942 to March 1943, Joel reviewed 105 death sentences passed by courts in the Incorporated Eastern Territories and in most cases gave final authorization for their execution.

In his capacity as such Referent, Joel reviewed and passed upon 16 death sentences of Poles who had committed alleged crimes against the Reich or the German occupation forces. One of these Poles was born in Cleveland, Ohio, in the United States, and his death sentence was commuted to life imprisonment because Joel was fearful his execution would involve the Reich in international complications. The remaining 15 Poles were executed.

As Referent, Joel was shown by captured official documents to have had knowledge that many Jewish and Polish political prisoners were being executed under the law against Jews and Poles. This matter was called to his attention because of a dispute as to who should handle the corpses of the executed prisoners. One main difficulty was that, under Himmler’s orders, these corpses were to be turned over to the Secret Police for disposition. The mayor and police of Posen [Poznan] refused to handle the corpses of Poles and Jews who were not executed as political prisoners. Joel was thereupon instructed to handle the matter temporarily and to work out a permanent plan for such burials, which he later assisted in doing.

As Referent in the department of justice and as liaison officer between the department and the SS, Joel obtained extensive information and exercised far-reaching power in the execution of the law against Jews and Poles. He therefore took an active part in the execution of the plan or scheme for the persecution and extermination of Jews and Poles.

Concerning Joel’s membership in the SS and SD, a consideration of all of the evidence convinces us beyond a reasonable doubt that he retained such membership with full knowledge of the criminal character of those organizations. No man who had his intimate contacts with the Reich Security Main Office, the SS, the SD, and the Gestapo could possibly have been in ignorance of the general character of those organizations.

We find defendant Joel guilty under counts two, three, and four.

THE DEFENDANT ROTHAUG

Oswald Rothaug was born 17 May 1897. His education was interrupted from 1916 to 1918 while he was in the army. He passed the final law examination in 1922 and the State examination for the higher administration of justice in 1925.

He joined the NSDAP in the spring of 1938 and the membership was made effective from May 1937.

Rothaug was a member of the National Socialist Jurists’ League and the National Socialist Public Welfare Association. In his affidavit he denies belonging to the SD. However, the testimony of Elkar and his own admission on the witness stand establishes that he was an “honorary collaborator” for the SD on legal matters.

In December 1925 he began his career as a jurist, first as an assistant to an attorney in Ansbach and later as assistant judge at various courts. In 1927 he became public prosecutor in Hof in charge of criminal cases. From 1929 to 1933 he officiated as counsellor at the local court in Nuernberg. In June 1933 he became senior public prosecutor in the public prosecution in Nuernberg. Here he was the official in charge of general criminal cases, assistant of the Chief Public Prosecutor handling examination of suspensions of proceedings and of petitions for pardon. From November to April 1937 he officiated as counsellor of the district court in Schweinfurt. He was legal advisor in the civil and penal chamber and at the Court of Assizes, as well as chairman of the lay assessors’ court. From April 1937 to May 1943 he was director of the district court in Nuernberg, except for a period in August and September of 1939 when he was in the Wehrmacht. During this time he was chairman of the Court of Assizes, of a penal chamber, and of the Special Court.

From May 1943 to April 1945 he was public prosecutor of the public prosecution at the People’s Court in Berlin. Here, as head of Department I he handled for a time cases of high treason in the southern Reich territory, and from January 1944 cases concerning the undermining of public morale in the Reich territory.

Crimes charged in the indictment, as heretofore stated in this opinion, have been established by the evidence in this case. The questions, therefore, to be determined as to the defendant Rothaug are: first, whether he had knowledge of any crime so established; and second, whether he was a participant in or took a consenting part in its commission.

Rothaug’s sources of knowledge have, with those of all the defendants, already been pointed out. But Rothaug’s knowledge was not limited to those general sources. Rothaug was an official of considerable importance in Nuernberg. He had many political and official contacts; among these—he was the friend of Haberkern, Gau inspector of the Gau Franconia; he was the friend and associate of Oeschey, Gau legal advisor for the Gau Franconia; and was himself Gauwalter of the Lawyers’ League. He was the “honorary collaborator” for the SD. According to the witness Elkar, [he was] the agent of the SD for Nuernberg and vicinity, this position was more important than that of a confidential agent, and an honorary collaborator was active in SD affairs. He testifies that Rothaug took the SS oath of secrecy.

Whether Rothaug knew of all the aspects of the crimes alleged, we need not determine. He knew of crimes as established by the evidence, and it is the function of this Tribunal to determine his connection, if any, therewith.

The defendant is charged under counts two, three, and four of the indictment. Under count four he is charged with being a member of the Party Leadership Corps. He is not charged with membership in the SD. The proof as to count four establishes that he was Gauwalter of the Lawyers’ League. The Lawyers’ League was a formation of the Party and not a part of the Leadership Corps as determined by the International Military Tribunal in the case against Goering, et al.

As to counts two and four of the indictment, from the evidence submitted, the Tribunal finds the defendant not guilty. The question of the defendant’s guilt as to count three of the indictment remains to be determined.

The evidence as to the character and activities of the defendant is voluminous. We shall confine ourselves to the question as to whether or not he took a consenting part in the plan for the persecution, oppression, and extermination of Poles and Jews.

His attitude of virulent hostility toward these races is proved from many sources and is in no wise shaken by the affidavits he has submitted on his own behalf.

The evidence in this regard comes from his own associates—the judges, prosecutors, defense counsel, medical experts, and others with whom he dealt. Among, but not limited to these, we cite the evidence of Doebig, Ferber, Bauer, Dorfmueller, Elkar, Engert, Groben, and Markl. In particular the testimony of Father Schosser is important. He testified as to many statements made by the defendant Rothaug during the trial of his own case, showing the defendant’s hostility to Poles and his general attitude toward them. He stated that concerning the Poles in general, Rothaug expressed himself in the following manner:

“If he (Rothaug) had his way, then no Pole would be buried in a German cemetery, and then he went on to make the remark which everybody heard in that courtroom—that he would get up from his coffin if there was a Pole being buried near to him. Rothaug himself had to laugh because of this mean joke, and he went on to say, ‘You have to be able to hate, because according to the Bible, God is a hating God.’”

The testimony of Elkar is even more significant. He testifies that Rothaug believed in severe measures against foreigners and particularly against Poles and Jews, whom he felt should be treated differently from German transgressors. Rothaug felt there was a gap in the law in this respect. He states that Rothaug asserted that in his own court he achieved this discrimination by interpretation of existing laws but that other courts failed to do so. Such a gap, according to Rothaug, should be closed by singling out Poles and Jews for special treatment. Elkar testifies that recommendations were made by the defendant Rothaug, through the witness, to higher levels and that the subsequent decree of 1941 against Poles and Jews conformed to Rothaug’s ideas as expressed and forwarded by the witness Elkar through SD channels to the RSHA.

This animosity of the defendant to these races is further established by documents in this case which show that his discrimination against these races encompassed others who he felt lacked the necessary harshness to carry out the policy of the Nazi State and Party toward these people.

In this connection the communication of Oeschey to Deputy Gauleiter Holz, concerning Doebig, is worthy of note. In this communication many charges were made against Doebig for his failure to take action against officials under him who had failed to carry out the Nazi programs against Jews and Poles. Oeschey testified that these charges were copied from a letter submitted to him by the defendant Rothaug and that the defendant assumed responsibility for these charges. Rothaug denies that he assumed responsibility or had anything to do with the charges made, except in one immaterial instance. However, in the light of the circumstances themselves, the Tribunal accepts Oeschey’s testimony in this regard, particularly in view of the unimpeached affidavit of Oeschey’s secretary to the effect that these charges were copied directly by her from a letter of Rothaug’s.

Documentary proof of Rothaug’s attitude in this respect is further found in the records of cases tried by him which hereafter will be considered.

Proof as to his animus is not shaken by his own testimony. It is confirmed by his testimony. He states:

“In my view, by introduction of the question of the so-called incredibility of Poles, the whole problem is shifted onto another plane. It is a matter of course that a nation, which has been subjected by another nation, and which is in a state of stress—that a citizen of such a country which had been subjected to another vis-à-vis the victorious nation, finds himself in quite a different moral-ethical relationship. It is useless to shut your eyes against reality. Of course, he finds himself in a different moral relationship from the relationship in which a German citizen would find himself. It is so natural there is no point in ignoring it. There is no need to lie.”

His explanations as to his feeling toward Poles, given in connection with the Schosser arrest and trial are also most enlightening but too extensive to quote here.

Concerning his participation in the Nazi policy of persecution and extermination of persons of these races, we shall confine our discussions to three cases which were tried by Rothaug as presiding judge.

The first case to be considered is that of Durka and Struss. Our knowledge of this case is based primarily upon the evidence of Hans Kern, the defense counsel of one of these defendants; Hermann Markl, the prosecutor in the case; and the testimony of the defendant Rothaug.

The essential facts are in substance as follows: Two Polish girls—one, according to the testimony of Kern, 17 years of age, the other somewhat older—were accused of starting a fire in an armament plant in Bayreuth. This alleged fire did not do any material damage to the plant, but they were in the vicinity when it started and were arrested and interrogated by the Gestapo. Both gave alleged confessions to the Gestapo. Almost immediately following this occurrence, they were brought to Nuernberg by the Gestapo for trial before the Special Court.

Upon their arrival the prosecutor in the case, Markl, was directed to draw up an indictment based upon the Gestapo interrogation. This was at 11 o’clock of the day they were tried.

The witness Kern was summoned by the defendant Rothaug to act as defense counsel in the case approximately 2 hours before the case came to trial. He informed Rothaug that he would not have time to prepare a defense. According to Kern, Rothaug stated that if he did not take over the defense, the trial would have to be conducted without a defense counsel. According to Rothaug, he told Kern that he would get another defense counsel. In either event the trial was to go on at once.

The trial itself, according to Kern, lasted about half an hour; according to the defendant, approximately an hour; according to Markl, it was conducted with the speed of a court martial.

The evidence consisted of the alleged confessions which one of the defendants repudiated before the court. Rothaug states that he thereupon called the Gestapo official who had obtained these alleged confessions and questioned him under oath. According to Rothaug the Gestapo official stated that the interrogations were perfectly regular. There was also a letter in evidence which it was said the defendants had tried to destroy before their capture. The witness Kern stated on cross-examination that this letter had little materiality.

The defendant attempts to justify the speed of this trial upon the legal requirements in existence at this time. He states, in contradiction to the other witnesses, that a clear case of sabotage was established. This Tribunal is not inclined to accept the defendant Rothaug’s version of the facts which were established. Under the circumstances and in the brief period of the trial, the Tribunal does not believe the defendant could have established those facts from evidence.

According to the witness Kern, one of the defendants was 17 years of age. This assertion as to age was not disputed. A German 18 years of age or thereunder would have come under the German Juvenile Act and would not have been subject to trial before a Special Court or to capital punishment. Whatever the age of the defendants in this case, they were tried under the procedure described in the ordinance against Poles and Jews which was in effect at this time, by a judge who did not believe the statements of Polish defendants, according to the testimony in this case. These two young Polish women were sentenced to death and executed 4 days after trial. In the view of this Tribunal, based upon the evidence, these two young women did not have what amounted to a trial at all but were executed because they were Polish nationals in conformity with the Nazi plan of persecution and extermination.