I had told Ferber that he should issue an arrest warrant, but Ferber
had told me that he did not know what reasons to give for it and that
subsequently I had handled the matter myself with a vicious remark and
had issued the arrest warrant. The background history of that arrest
warrant seems very dubious, but I don’t think it necessary to enter
into that. On 15 June 1942 I issued the arrest warrant and that arrest
warrant was based upon article 2, paragraph 1 of the insidious acts
law, and article 130a of the Penal Code. In the case of this article
130a of the Penal Code, we were concerned with the so-called Pulpit
Article, the offense of abusing the pulpit. It is of importance that
that article alone which would have supported the proceedings, is
a regulation which has nothing to do with national socialism, but
is an article which emanates from Bismarck’s time, the time of the
“Kulturkampf” [cultural struggle] in Germany, and the then liberal
democracy factions in Germany brought it about against clericalism.
This concept is found in article 130a. The arrest as far as facts
were concerned was not based upon the circumstances that Schosser
conducted that funeral for the Pole, but because as one could assume,
and certainly can assume today, but on his knowledge of the German
regulations and provisions and on announcing the intended funeral, and
the transfer of the body from the morgue to the cemetery in order to
persuade the German population to a far-reaching extent to participate,
and therefore, to indirectly demonstrate its opposition against the
regulations of the State. The funeral itself is not a matter for the
church, but a matter for the State for the government of Germany,
and the clergymen are only permitted to participate in the funeral,
and to perform the duties commensurate with religious custom, to say
the prayers, and everything that belongs with it. But the funeral
was actually carried out by the municipal office. The discussion of
such a matter and the announcement, conscious of the fact that it
would cause a disturbance among the population, that was against the
provisions of article 130a; and if this is connected with the intention
to demonstrate opposition against measures of the State, which was
certainly the case here, then the prerequisites required by law are
complied with, and I do not know of anything further to investigate;
but if all these elements are there, I have the obligation to issue the
arrest warrant, and on that basis I did.
Q. Now, the witness Schosser has pointed out that he had already been
arrested by the Gestapo, and that at that time he had been punished; he
had been sentenced to 14 days. Can you determine from the files whether
you issued the warrant of arrest before you knew of the police measures
against Schosser?
A. From the files it can be seen without doubt that when I issued the
warrant of arrest, I did not know anything about the occurrences at the
Gestapo office of Regensburg which found its climax in the protective
custody imposed upon Schosser for 14 days. That can be seen from the
following.
Q. When did you receive information about that from the Gestapo?
A. I was just going to say that because you have already asked me. On
15 June 1942 the prosecution sent the arrest warrant to the Secret
State Police at Regensburg. Subsequently, on 18 June 1942 the Secret
State Police Regensburg replied with the information that it did not
want to carry out the arrest at that time because a police measure
was imposed, that is to say, the protective custody for 14 days on
Schosser and returned the files together with the arrest warrant to
the senior public prosecutor and that is the way he was informed in
connection with that funeral. The Secret State Police already had taken
measures. I was not informed about these facts, as can be seen from the
file. Just the same, that arrest warrant was carried out, and that was
justified.
PRESIDING JUDGE BRAND: May I ask you a question. Would you
tell us in a few words the specific provision of the insidious acts law
which was violated in this case? I don’t understand that.
DEFENDANT ROTHAUG: That was article 2, section 1. I can read
it if you think it is desirable; I can quote it if you think it is
desirable.
PRESIDING JUDGE BRAND: I would like to hear that if it is
brief; I haven’t it before me.
DEFENDANT ROTHAUG: This is the provision. Schosser--
DR. KOESSL: Give the legal provisions, Witness.
DEFENDANT ROTHAUG: Yes, that is what it is. It is suspected
that Schosser made vicious remarks in public, derogatory remarks
about the leadership of the State, the NSDAP, its provisions and
institutions--
Q. Witness, will you please read the insidious acts law itself--rather
than--
A.--which are designed to undermine the confidence of the people in the
leadership. In connection with that I want to mention that we always
include the actual text of the law in the arrest warrant.
PRESIDING JUDGE BRAND: Give me the date of that law, please?
DR. KOESSL: The insidious acts law.
DEFENDANT ROTHAUG: The insidious acts law is of 20 December
1934; 20 December 1934.[547]
PRESIDING JUDGE BRAND: That is all.
DR. KOESSL: And now will you please tell us--
DEFENDANT ROTHAUG: The law speaks of statements, but the same
applies to behavior which permitted a conclusion, that is to say an act
which looked at on its own merits may be correct, but by the evaluation
which it is given by others, may have the character of a malicious act.
I have also explained that we were not informed about these matters.
The defendant was arrested and was questioned before the local court in
Weiden.
Q. Did he do anything about his arrest?
A. He filed a complaint against the arrest, he filed a complaint
against the arrest warrant; a decision was made.
Q. About that appeal, did you have anything to do with that decision?
A. That decision was formally not correct, but substantially it is very
interesting because by that decision the complaint against my arrest
warrant was rejected; and rejected by the one person who now charges
me with having issued that arrest warrant. That was signed--it happens
to be signed by Mr. Ferber, who asserts that I had pulled a dirty deal
with my arrest warrant.
Q. You yourself had nothing to do with that decision?
A. I had nothing to do with that decision; the case went on and was
soon suspended after the defendant had been interrogated, and that
was one thing we didn’t know when we issued the arrest warrant, he
explained that for quite some time he was in the army, and it was
granted him that he might not have been as well informed about the
entire atmosphere around the question of Poles in Germany as one would
have expected otherwise. The case was suspended on 27 August 1942, with
the reason that it could not be proved that the defendant intended to
demonstrate his opposition against the measures of the State concerning
Poles.
Q. You have been charged that because that case was not successful, you
had initiated a second proceeding, the one concerning the sermon. Will
you please, first state what the prosecution had decided already on 9
July 1942, that is to say, before the end of the first proceeding. You
find it on page 12 of the files, a disposition made by the prosecution
on 9 July.
A. That is the worst part of the charges which are raised against me
in this connection. As I have said, I can refute it by documents,
by just mentioning several documents in chronological order which
will clarify the connections. In the file concerned with the funeral
of the Pole, on page 12, 9 July 1942, there is a short disposition
on the part of the prosecutor where he requests a list of previous
connections and political record. Therefore, for that funeral case, one
wanted to have the political record of Schosser from the Party. The
prosecutor shouldn’t have done that really, but he was new there, and
he committed that blunder, and that was how the whole thing started. It
was prohibited to request any political record of a clergyman because
one considered--one knew generally that the clergy was against national
socialism; that was no secret; but now in spite of that, the Party
reacted upon that request and sent a certificate of that kind, not to
me, but to the prosecutor who requested it.
* * * * * * *
Q. What was the course of the second case, the case of the sermon? In
that case, serious charges were also made against you concerning the
treatment of the clergyman Schosser. Will you briefly describe the
course of those proceedings, and will you please state whether the part
you took in that case justifies the charge of being the main instigator
leveled against you?
A. In the further course of the proceedings that charge cannot be
considered since the proceedings were already started when the case
came before me. On 25 August 1942, I issued the arrest warrant. We did
not go as far at that time as the confession or the statements made by
Schosser in the trial would have permitted us to go. If we had assumed
that his entire sermon from beginning to end was directed against the
wolves in sheep’s clothing, we could have characterized the case as one
of high treason, and we would have had to pass it on for that reason
to the competent authority. We only assumed that in the course of the
sermon various doubtful statements had been made which had nothing to
do with God the Father, and that was how it came to trial.
Nothing further happened. Investigations were carried out such as in
every other case, and there was a defense counsel.
* * * * * * *
Q. Now we want to continue; where did the session take place in the
second case?
A. In the town hall court at Amberg.
Q. What parts of the population attended that session?
A. All categories of people. The court room was right in the center of
the town and when people had found out that there was something going
on, they just came.
Q. What was the composition of these people, according to their
denominations?
A. The great majority of the population was Catholic.
Q. Did you have to take certain considerations on account of that?
A. Of course. One had to avoid anything which could hurt the religious
feelings of these people. Cases against clergymen required a great
deal of caution and a great deal of tact so that no wrong impressions
were made, because it was generally considered undesirable to make the
impression, in any way, that it was intended to injure the religious
feelings of these people.
Q. What, in brief, were the charges against Schosser and how did he
defend himself against them?
A. The charges did not refer to the entire sermon, the subject of which
was false prophets, but two basic thoughts were mentioned. For one, the
thought that the leading individuals--meaning in the State--intended
to take the Catholic faith from the people. In addition to that,
the defendant also was charged with having attacked the principle
prevailing in Germany of religious freedom. That was the charge.
Q. Schosser asserts that his sermon itself was really not the focus
of interest; but that you had dealt emphatically with the matter of a
funeral, and you had included that in the case. Is that correct?
A. The matter of the funeral was not the subject of the indictment so
far as it was not considered a basis for any legal facts in connection
with it, but it was merely mentioned in the course of the trial. It is
correct that this matter was discussed in connection with the matters
contained in the indictment, but not in the manner that it was the most
important part of the trial. It was quite legally admissible to mention
it, as I have mentioned.
Q. Can you prove, from the files, that the prosecution submitted the
files concerning the sermon question to the court?
A. That can be seen from the file.
PRESIDING JUDGE BRAND: Is that file in evidence?
MR. WOOLEYHAN: No, Your Honor, it is not.
DR. KOESSL: The case was only discussed by the witness
Schosser.
DEFENDANT ROTHAUG: By an order in the file SG 948 from the
year 1942 (matter of the funeral), the prosecutor decided on 27 August
1942, under III, “Filed without subsidiary file”, that the matter SD
1312 of 1942--that is the sermon matter--after that file had been
returned, was to be attached. By way of that disposition, these files
concerning the funeral were submitted by the prosecution as material
evidence, together with the sermon file, with the consequence that
I received that material and had to discuss it with the prosecution
witness at the main trial. That was legally permitted at all times. The
judge was authorized to touch upon matters which had become either the
subject of amnesty, or where an acquittal had occurred, or on matters
referring to cases that had been suspended, or where a sentence had
been passed. He could touch upon all these matters in a different case
and discuss them for the purposes of the case at hand. Whether that
became the basis for an evaluation for that new trial--that, of course,
could only evolve from that main trial and the discussions therein.
Q. What was the basic purpose of discussing that question on your part?
A. The fundamental purpose of discussing these matters was to specify
the obligation that all individuals and all offices had to heed the
measures and regulations issued by the State, and the final purpose was
to establish what basic attitude the defendant himself had with regard
to that problem.
* * * * * * *
Q. Schosser says you had attacked him on account of his profession, and
you had attacked, in fact, the entire clerical profession. What was it
about these alleged attacks?
A. That just isn’t so. As was required for every case, the
interrogation was a conversation between myself and the defendant and,
in the course of that conversation, I went into the question that
people, if they wanted to go to church, wanted to hear about heavenly
matters and didn’t want to hear anything about politics. If he wanted
to deal with questions of that kind, he shouldn’t have become a
clergyman but a politician.
Q. In connection with the education of youth, you are supposed to
have reproached him that in the house of his parents, he hadn’t been
educated in the National Socialistic sense.
A. That kind of a conversation would have been straight nonsense
because Schosser was born in 1909 and, at that time, there was no such
thing as national socialism. Consequently, I could not blame him. * * *.
PRESIDING JUDGE BRAND: We understand your answer.
DR. KOESSL: It is also asserted that you reproached him that
the Catholics were saying that Protestants were going right to hell.
Quite briefly, please.
DEFENDANT ROTHAUG: That again was an entirely different
thought. I set forth that the German State has two great denominations
and many others and can, therefore, be neither Catholic or Protestant
but only absolutely neutral. It was, of course, up to him personally
in his clerical field to speak for the accuracy of his opinion and his
faith. If you are of the opinion that all those who are of a different
denomination will go to hell, it is impossible for the State to share
that opinion. As far as we are concerned, everybody will go right to
heaven.
Q. Another question, quite briefly. Will you tell us what was said
about Rosenberg?[548]
A. The name Rosenberg was brought in in the following manner. Schosser
himself referred to it because his line of defense was that he had not
intended to attack the Party by his statements but new [religious]
ideas [neopaganism] and that he particularly intended to turn against
Rosenberg with his statements. Thereupon, I told him that at any time
it was his right to refute the thoughts which Rosenberg developed in
his book, “Myths of the 20th Century,” in his sermons and to prove that
they were wrong, only he had to specify what he intended to refute
and whom he intended to refute because that, of course, was the most
important thing of the trial. He had to exclude any possibility that
these things might be carried into the general political field. That
was the basis for my thoughts.
Q. Under what provisions was Schosser sentenced?
A. On the basis of article 130a of the Criminal (Penal) Code and
article 2 of the Insidious Acts Law,[549] that is to say, according to
German law both provisions became applicable; as we would have said
technically, there was a sort of a legal connection between the two
laws.
Q. Would Schosser have been punishable if there hadn’t been an
Insidious Act Law?
A. Of course, on the basis of article 130a.
Q. As far as the facts are concerned, had the case Schosser been dealt
with leniently or severely?
A. As far as the facts were concerned, it had been dealt with most
leniently because the basis of suspicion was that the entire sermon
of the false prophets and the roving wolves in all its structure and
tendency was a political attack against the government. Schosser, when
he was heard here as a witness, more or less admitted that. In our
evaluation, however, we did not go that far, but we only referred to
these two basic attacks.
* * * * * * *
EXTRACT FROM THE TESTIMONY OF DEFENDANT KLEMM
CONCERNING PROSECUTION EXHIBIT 291 AND
LIMITATIONS ON DIVINE SERVICES[550]
_DIRECT EXAMINATION_
DR. SCHILF (counsel for defendant Klemm): The prosecution in
this connection submitted another document, Prosecution Exhibit 291,
that is Document NG-770.[551] It deals with the problem whether church
services could be held in penal institutions. I ask you whether you had
anything to do with that matter?
DEFENDANT KLEMM: Yes, and I remember it quite well because
I had a rather hot argument with Thierack about that matter.[552]
Thierack, without informing me, prohibited that any church services
could be held in penal institutions. I found out about that
directive through the _Deutsche Justiz_--the periodical for
German Justice--of 1944, on page 270. I immediately went to Thierack
and referred to ethical reasons, but he did not abstain from his
intentions. Then I used stronger arguments. I told him that I knew from
the period of my work in the Party Chancellery that Hitler himself had
issued a strict order that during the war all measures which might
cause struggles with the church should be abstained from. Thierack
doubted that. I offered that I would get a written confirmation from
the Party Chancellery about that. He forbade that I write to the Party
Chancellery. I told him in the course of the conversation that I was
quite sure what the outcome of that matter would be. The moment one
bishop would turn to Hitler, Hitler on account of his basic attitude
would disavow Thierack.
A short time later when letters were received from German bishops,
from the Protestant side as well as from the Catholic side, I went to
Thierack and he became rather thoughtful and agreed to rescind the
former order. That happened in a very carefully stated form, but it
actually occurred. Especially for that matter, I claim a certain amount
of credit.
* * * * * * *
VI. FINAL STATEMENTS OF THE DEFENDANTS[553]
PRESIDING JUDGE BRAND: The record will show that the
defendants have already had the opportunity to testify at length under
oath, and they are now accorded the privilege, in each instance, of
making an unsworn statement for the benefit of the Tribunal.
We will hear the first defendant, Dr. Schlegelberger.
DEFENDANT SCHLEGELBERGER: These words of Pope Gregor VII are
world-famous: “I loved justice and hated arbitrariness; therefore, I
die in exile.”
I feel confident that your judgment will save me from that fate. But
I, too, in imprisonment, could not overcome the bitterness of being
rewarded for my hard struggle for justice by this period of shame and
misery. The charges and insults of the prosecutor do not apply to me.
My life is not compatible with the intention of crime. The attempt
to destroy the alleged myth around my person by showering abuse at
a man who has aged honorably was bound to fail. The Goering affair
has been cleared up as completely unexceptionable. The connection
between it, my draft of a law, and my resignation is based on a freely
invented malicious construction which lacks all foundation. In spite
of my advanced age my defense was easy for me. All I had to do was to
tell the Tribunal the truth. I have done so in the firm conviction
that truth will be victorious and with the undaunted pride of a clear
conscience.
PRESIDING JUDGE BRAND: The defendant Klemm may address the
Court.
DEFENDANT KLEMM: The prosecution has endeavored to show that
I am not worthy of credibility. In long winded arguments it endeavors
to connect a very few apparently positive points by combinations
which lack all foundation, both in factual and political respect.
Distortions and arbitrary additions have to serve this purpose. In
the case of Sonnenburg it is said that Hecker had stated that Hansen
had said that Klemm did not feel comfortable in connection with this
matter. Not a word to this effect is to be found in the transcript of
Hecker’s testimony. Although, in cross-examination, Hecker clearly
could not maintain the agreement as he described it in his affidavit,
the prosecution maintains the agreement, although its own witness,
Eggensperger, denied it as well. And now another final example.
Heydrich’s directives to his police agencies to take Jewish women
into protective custody is presented by the prosecution as being
an agreement with the judicial administration. There are many more
examples. But please let me say only the following with regard to what
the prosecution stated this morning. Due to the propaganda of the
State, we were convinced at the outbreak of the war that justice was
on our side. A dictatorship could not and does not permit its cards to
be shown. And, finally, we are not here charged with crimes against
peace. To what Mr. King said regarding Prosecution Exhibit 252,[554]
let me state the following: The list of 17 January 1945, containing
reports on death sentences, deals with a list of the Minister, for it
contains doubtful cases, and from that I gathered that it could not
be my list after I had also seen from the photostat that there were
several dates on the top of the list. Even if both lists should be from
1945, the same applies as with regard to the lists on pages 154 through
157 in document book 3-L, according to which separate reports were
made to me on individual cases and to the Minister on death sentences.
If the prosecution bases its case on the testimony of the witness
Altmeyer, this testimony has been refuted with overwhelming clarity by
the testimony of Hartmann, Franke, and Ehrhard, and the prosecution
overlooks that, in his cross-examination, the witness Altmeyer, in
particular had to deviate from his affidavit. The prosecution mentioned
furthermore a case of theft from airmen where proceedings were quashed.
I remember the case distinctly. An airplane had been destroyed, and
from the wreck objects had been stolen which had already been partly
destroyed by rain and fire. The proceedings were stopped because the
subjective prerequisites of theft could not be proved. The prosecution
has failed to show what this theft from a wrecked airplane had to do
with lynching of aviators. All in all, the result of the statements of
the prosecution is as follows: In this trial it was not only German
justice of the past years that was indicted, but the continental legal
system, a system in which for many decades the obedience to the law and
the norm created by the State has been the only task of the jurist.
Before 1933 I had been educated and trained in this school of thought.
What legal and factual opportunities were open to me I used in favor
of justice wherever I could do so. To revoke laws and norms which had
existed for years was not in my competency.
PRESIDING JUDGE BRAND: The defendant Rothenberger may address
the Tribunal.
DEFENDANT ROTHENBERGER: I was a National Socialist, and in
that respect I distinguish myself from those who for 10 years and
more were placed in leading positions in the Third Reich and today
say that they were not National Socialists. When I realized that
national socialism was destroying the very values for which I had
lived and for which it had promised to work, I decided with all my
energy to influence the development of national socialism in the sphere
of justice. I did not want to be a hanger-on. It was not my way to
content myself with tactical maneuvers or withdrawals, which gradually
brought about an undermining of the administration of German justice.
The struggle for the idea of the judiciary within the framework of a
totalitarian state I made the focal point of my life. And, therefore,
I consider myself to be under an obligation to declare today that the
German judge and his judgment, since 1933, were subjected to excessive
attacks from the Party and from the SS without being given any backing
from the leadership of the Ministry. Here lie the causes for my
actions. At the beginning, I believed that in a totalitarian state
there could exist a free judiciary. In the course of time I realized
that most of the Party leaders, and in particular the SS leaders,
found the very essence of the judiciary an obstacle in their way. I
did not wish it to be true that there should be no way to save my
Fatherland from such a dangerous development and therefore I clung to
Hitler. In so doing I found myself in the company of many clever people
in all spheres of human activity in Germany and abroad. As to whether
my reform of the administration of justice has been rightly called by
the prosecution a Nazi reform which--it is true--called itself National
Socialist, but which aimed at excluding the influence of the SS and the
Party from the administration of justice, and which contains not one
word against Jews or foreigners, but on the contrary claimed the entire
administration of penal justice, including that for foreigners and
Jews, for the judiciary--with confidence I leave it to the Tribunal to
decide that question.
I do not ignore today that my life work which has eaten up my nervous
strength was bound to fail; nor do I ignore that my aims were, at
times, in contradiction to the practice of life and also my own
attitude, but is it not always like that in the life of human beings
that just because there are such abuses and just because at times one’s
self is weak, one takes that very circumstance for a cause to set
up postulates which serve as aim and direction, but which we cannot
immediately, particularly in wartime, put into effect, since the power
of conditions is stronger than ourselves. And how far the power of the
SS and the Party had extended I realized as late as 1942 when I came
to Berlin and got an insight into conditions in the Reich. That Hitler
himself was a despot and that he coupled me together with a man who
showed himself to be a tool, without any will of his own, of Himmler
and Bormann, that was my tragic misfortune.
I had to experience one set-back after the other. At the very beginning
of my work I was compromised in the whole of the Reich by the well
known SD report of Himmler’s in October 1942, which prophesied that I
would soon resign, and the only positive point which kept me was the
hope and the confidence of the German judges.
There are only two charges of the prosecution which they made in their
final plea that I want to answer now. How can the prosecution from my
speeches in Hamm and Lueneburg, of the latter of which the text does
not even exist, conclude that I was in favor of exterminating the
Jews? Both speeches exclusively relate to degenerate and incorrigible
criminals. In the usage of the German language, they are antisocial
elements and for those elements I demanded, according to another
prosecution document, a judicial authority. And the second charge is
that I am a liar. The Jewish pogrom in 1938, they say, had been on
quite a different scale in Hamburg from the way I had described it. As
to how the Jewish question was handled in Hamburg you can see clearly
not only from a prosecution document but also from the affidavit by
the man whom the British, after the surrender, appointed Lord Mayor of
Hamburg. I am speaking of Mayor Petersen who is half-Jewish himself.
That in my struggle I was placed in outward contact with wrong, that
lay in the very nature of things. I assume responsibility for every
action of my own. The consequences which are now borne by the whole
German people justify the fact that former leading personalities also
bear the consequences. But I am of the opinion that crimes which were
committed by my greatest enemies behind my back cannot be held against
me. As soon as I heard of them I drew the consequences.
After 16 months, in 1943, Himmler, Thierack, and Bormann finally made
me unemployed. I was 47 years old at the time. Without overestimating
the power of my personality, the road for the wishes of those men,
concerning the administration of German justice, now lay open.
PRESIDING JUDGE BRAND: Defendant Lautz may now address the
court.
DEFENDANT LAUTZ: At the beginning of the prosecution’s oral
presentation, the chief prosecutor emphasized that the roles which the
defendants are assigned in these proceedings are new for them. That is
true, as far as this refers to the position which we now have to hold
before this Tribunal. Apart from that, we public prosecutors are quite
familiar with the role of defendants in criminal proceedings. A man
like myself who, in 25 long years, became acquainted with the fate of
men in prisons, in courtrooms, in penal institutions, and on the way to
the place of execution, knows very well the tragedy of this role and
one who, under the official robe, has preserved a human heart, will the
better recognize that not blind zeal for prosecution, but much rather
wisdom coupled with human understanding are best designed to serve the
aim of true judicial administration.
The German public prosecutors in their overwhelming majority recognized
this also in the Third Reich. Therefore, none of the charges made
against me here I feel to be more unjust than that, by filing malicious
indictments, I had done injustice for the sake of injustice. I trust,
however, that these proceedings have shown how unjust this charge is.
The office of a public prosecutor is a very hard one. It is easier
in peace than in wartime, but it became incredibly difficult during
a war which is without example in history and which has left our
Fatherland--which also meant everything to us public prosecutors--in
ruins.
PRESIDING JUDGE BRAND: Defendant Mettgenberg may address the
Tribunal.
DEFENDANT METTGENBERG: Your Honors. Novel, alien, and
unaccustomed as it was to the previous speaker, so it is to me the
situation in which I have found myself for months as a prisoner in the
dock; and that is what the prosecution said when this trial opened,
novel, alien, and unaccustomed were to me many things in this trial
which concludes today.
All the same I, for my part, have tried to make my contribution to the
correct carrying out of these proceedings; with complete frankness I
have described my past career, and I have given you my views concerning
the points with which the prosecution has charged me. There is nothing
I have to hide.
Now at the end of this trial the prosecution deemed it necessary, I
believe without regard to the evidence, to ask of you that you should
convict me for having committed war crimes. It may be that you will
convict me for having committed war crimes. It may be that that is the
duty of the prosecution. It is not for me to arrive at a judgment about
that. The prosecution must take the responsibility for their motion.
My defense counsel has asked you to acquit me. I too ask you to
acquit me, but Your Honors, I ask you for more than that. As far as
I am informed, it is in accordance with your legal views to acquit a
defendant if there is a reasonable doubt about his guilt. I am of the
opinion, and please do not think me arrogant, that I may expect you to
find that there is no reasonable doubt as to my innocence. Even after
careful and conscientious examination, such as I have given to my own
past, I believe I am justified in making this request.
PRESIDING JUDGE BRAND: The defendant von Ammon may address the
Tribunal.
DEFENDANT VON AMMON: I have nothing to add to the statements
made by me on 1 and 4 August under oath in the witness box.
PRESIDING JUDGE BRAND: Defendant Joel may address the Tribunal.
DEFENDANT JOEL: I wish to remain silent.
PRESIDING JUDGE BRAND: Defendant Rothaug may address the
Tribunal.
DEFENDANT ROTHAUG: Prosecutor King in his final plea mentioned
a death sentence passed by a French court against a president of a
court in Strasbourg. May I refer to the fact that this involves a
so-called _in absentia_ sentence in which the defendant had no
opportunity for his own defense whatsoever, because at that time he was
in a German internment camp and by sheer accident happened to read of
it in a newspaper.
I served my country throughout my life and in whatever position I was
assigned to, in faithfulness, with a pure heart, and without malice.
Seen from my present position you might consider this wrong, and you
could say I and all those who surrounded me should have been more
suspicious of developments as they took place. This prognosis in
retrospect is just as convincing as it is cheap. Nobody in our position
at that time could be of the opinion that the State which we served
could be accused of being altogether illegal and that the war that it
waged was a war of aggression, as is demonstrated today to all the
world. Therefore, it is no accident and no excuse that, apart from
defending myself against the flood of personal defamations which I
received from the circle of my previous friends and assistants, I am
now anxious to prove to you that both in the service as a judge and
prosecutor, I applied the laws of my country in the manner in which
they were intended, to the best of my conscience and belief. We were
guided by the practice of the Reich Supreme Court and went the same
way which was taken by the remaining 60 to 80 Special Courts in the
Reich. We were no specialists in crimes against humanity, and no proof
has been furnished in any single case that, in any connection, we had
applied an illegal method.
Thoughts of extermination were not represented in my sphere of
work, nor did we ever hear anything to the effect that in the field
of justice they played any part at all. We knew of shootings of
people who had been sentenced only to prison terms. That was openly
reported in the newspapers. Apart from that, these proceedings
applied to four people who, under my presidency, had been sentenced
to imprisonment--among them, the Eisenberger case mentioned here. But
I myself only heard of the inner connections of these events when
internal official files of the public prosecution became accessible to
me here. We saw and judged the facts in a different light. The country
was an area of warfare. I have experienced the terrors of Verdun. As
far as misery is concerned, it cannot be compared with the effects of
one single air raid, lasting 45 minutes, on the civilian life of this
city. The principle of war which threatens life itself had been made
the principle of life. We therefore understood, guided by this point of
view, that the laws required harsh proceedings in the case of crimes
which exploited conditions of war, and that habitual criminals, violent
criminals, and saboteurs of all kinds, in view of the decreased
security of the conditions as they existed in the country, had to be
held down. If, on the other hand, we are told that thereby we had
supported a war of aggression carried on by our government, then we
can only say “we did not know that.” Once war had come, the life and
existence of millions of peoples was involved, and we derived therefrom
the ethical justification for severity against individuals, which
stood in no proportion to what was at stake. The logical calculation
of war in regard to life is that hundreds of thousands of people are
sacrificed to save the lives of millions, and this principle was
transferred to the entire public life and in the field of criminal law,
this was tied to the concept of guilt. And that was how our work, our
activity, was understood. If today we are no longer understood, and if
attempts are made today to judge our actions as criminal, this is not
very surprising in view of a world which does not look too far below
the surface of things. For the catastrophe has made all our actions
appear in the destructive light of “in vain.” This qualification which
also has a demoralizing effect, disguises all connections which might
speak in our favor in the question of humanity. This is the tragedy of
our case, and we are convinced that Your Honors will not fail to see it.
PRESIDING JUDGE BRAND: Defendant Barnickel may address the
Tribunal.
DEFENDANT BARNICKEL: May it please the Court. The great
Frenchman Honoré de Balzac, for whom I have had a great respect since
the days of my youth, puts into the mouth of one of his characters
these words, “I believe justice to be a development of a divine idea
which is suspended above the world.” That idea, whether one shares
it or not, is certainly very beautiful. It remains beautiful even if
justice does not always reflect its divine origin. We jurists whom
fate had condemned to work in the Third Reich--and I am by no means
referring only to us who are here, I am referring to all of them--we
know what was the matter with the administration of justice in the
Third Reich. But in whatever way this administration of justice may
have worked, I believe one must view it in connection with the fate of
the German people. Professor Jahrreiss, to whom all of us in this trial
listened with interest, once coined the phrase that for decades the
German people had no longer known normal life. Every single one of us
actually experienced that himself. If I may make it more clear from the
example of my own life, I want to read a few sentences from my diary
for the last time. This is an entry which I made on 9 June 1942, and I
wrote it under the influence of a Swiss novel, the title of which is
“Amadeus”, and I quote:
“When I thought about it for longer as to what I liked so much
about ‘Amadeus’, this occurred to me, it is peace, the peace in
which these people live, and in which they can develop. Peace
which, to us Germans, has become something quite strange because
since 1914 we have not had it any more. Before that time we,
too, lived in such an atmosphere, but since then we have always
had war, or at least a pressure which was like war. From 1914
to 1918 there was a war on. In 1919 an intermediate phase set
in. From 1920 to 1923 there was the inflation. From 1924 to 1927
there was the deflation. From 1928 to 1929 there was a brief
recovery. From 1930 to 1932 there was a financial crisis and a
continuous political crisis. From 1933 to 1939 the German people
were molded into a new cast by force. From 1939 to 1942 there
was war. From 1942? Still war!
“I am 57 years of age today--at that time--18 years of that
were the years of my youth; 28 years were war years. For
11 years there was a real life. And these were the years
of development--of immaturity--years of struggle, years of
suffering and poverty. But in between there were also many happy
hours.”
That is how I looked at my life at the time. And it was similar for
every average German citizen. Every normal German longed for peace,
for peace which had become something quite strange to us, and every
German has that longing deep in him, just as I myself--but it was not
within his power to achieve that peace. We saw it merely like a ghost.
But the same fate which individuals have, is the fate of the spiritual
institutions of their nation. And the administration of justice, too,
shared our fate; it, too, was hemmed in in war and political violence,
which were foreign to its nature. No wonder that, at the end of that
last period of 30 years, justice, too, had been wrecked, just as
millions of people and their lives had been wrecked! Let us hope that
from that destruction, new life and new culture will develop. For,
after all, so far every generation has lived on the ruins which were
left by its predecessors, and built its houses from those ruins. Let
us hope that what we see in Germany at this moment is already part of
reconstruction and no longer of destruction, and also, I hope, that
we--as Balzac put it--one day again shall be able to believe that
justice is the development of a divine thought which is suspended above
the world!
PRESIDING JUDGE BRAND: Defendant Petersen may address the
Tribunal.
DEFENDANT PETERSEN: Your Honors, World War I signified a
deep cut in the history of the German people. There existed the great
danger for Germany of being swamped from the East. It was in the
hope to prevent this that I joined the NSDAP. Germany was to remain
one bulwark against bolshevism, a pillar of Western culture. I once
entertained the great hope that national socialism would contribute
its part toward this end. I do not want to describe my disappointment;
the way led past stations of terror. In all my actions I was guided
by the ideal of fulfilling my duty and of serving my country. It was
solely my conscience that formed the basis for my actions, irrespective
of whether I was an officer, SA leader, State counsellor, or only
an honorary associate judge of the People’s Court. I have nothing
further to add to this. My conscience is clear. Therefore, I am calmly
expecting your verdict.
PRESIDING JUDGE BRAND: The defendant Nebelung may address the
Tribunal.
DEFENDANT NEBELUNG: I was a German judge. I followed the laws
of my country and my knowledge and my conscience in passing judgment.
Germany has lost the war. If the law of the victors so demands of
you--I do not believe it does--then you must condemn my actions. In
this trial the tragedy of the office of the judge has been mentioned
frequently. Is that anything special? Does not every soldier find
himself in the same situation? I, too, have had that experience both as
a soldier and as a judge, but not here in prison, not in the dock, but
by the gun and on the bench. By that I want to say the tragedy does not
lie in the consequences. I do know how to bear the consequences of a
sentence, for I believe in the words of the German who was both a judge
and a poet, Theodor Storm, “One man asks, ‘What will happen next’?
while the other merely asks, ‘Is that right’? And that is how the free
man is distinguished from the serf.”
PRESIDING JUDGE BRAND: The defendant Cuhorst may address the
Tribunal.
DEFENDANT CUHORST: Your Honors, I have to add the following
brief words to the final plea of the defense counsel appointed on my
behalf. Indictment and prosecution statements reveal that in these
proceedings I am only _pars pro toto_. The prosecution with its
evidence is unable to prove any charge which would actually apply to
me. The prosecution in its final plea has failed to mention a whole
series of charges in the indictment, and others for the same reason,
namely, lack of evidence, it left in abeyance. In presenting its
evidence the prosecution not only ignored my evidence but also its own,
in part. What other reasons are there to explain that they submitted
in the course of the cross-examination Document No. 983 [_NG-983,
Pros. Ex. 570_], which reveals in an account of traveling expenses
that on 21 March 1943 I was absent for weeks in the East on an
official journey, and at the same time had the witness Eberhard Schwarz
testify with alleged full assurance that on 24 March 1943 I was in
Stuttgart and presided over the case against the foreigner Englert. The
prosecution has submitted the verdict in the case of Untermarchtal, but
what they said in the indictment about its contents is not contained
in the verdict, but just the contrary. This is the type of evidence
submitted if facts are involved. Only documents, not arguments with
many sources of error, can show the facts.
Justice, above all, penal justice, in Germany since 1918 was always
considered an institution not in accordance with the times due to
political attacks on its reputation, thus losing its reputation. In
spite of early hopes, also after 1933 this development continued,
and it still continues. Neither in 1937 did Guertner protect my
predecessor, nor in 1944 did Thierack protect me. The many stages
of this development pretended to have various good aims, but they
actually had only the one effect--to destroy what we call justice.
Contrary, for example, to the profession of a doctor, that of a penal
judge creates only few friends. A man who is acquitted takes his
acquittal for granted. The man who is sentenced, his defense counsel
considers the verdict as unjust or too severe. Confusion caused in
the transitional periods showed this in a particularly conspicuous
form. In spite of this dangerous situation for a criminal judge now
accused of being a criminal himself, no person ever convicted under my
jurisdiction has testified against me. Only a judge who is a saint is
free of errors. I never denied mine. The struggle for independence and
against destructive influences of the time has not left me unscathed.
They wanted to eliminate me from the Party and from my profession, and
an unfree minister and his accomplices removed me from office. The
prosecution witness against me was quite right who said: “He wanted
to maintain independence and he did maintain it.” Due to the collapse
of my Fatherland, I am again involved in struggles. I am involved
in an indictment against judges full of unexpected and excessive
charges. From 1933 to 1944, one side spoke of me as if I were strange,
suspiciously mild, unbearable, unsuitable for office, and detrimental
to the Party and so on. Today the strong terms read as follows:
Disgusting, exceptionally severe, convinced Nazi, and the like. Also
in my prison cell which has been my fate for almost 1 year, though
as a prisoner of war and an army officer I am subject to the Geneva
Convention, I accept these reproaches quietly. I have sworn the oath
to observe the law independently and to apply it irrespectively of the
person involved. I have duly observed this, and let the consequences
be whatever they may be. Either time will be able to bear judges who
do not bend themselves or the time is already here which has quite
different views. In handling these problems my own case is receding
to the background. The decision concerning the basic questions of the
entire problem of the judiciary brings the solution, also for me, of
the question--Am I as a judge a criminal? Before all the world, and
even where war opponents are concerned, a _judicium parium_ can
answer this tremendous question with one word only, namely, no.
PRESIDING JUDGE BRAND: The defendant Oeschey may address the
Tribunal.
DEFENDANT OESCHEY: May it please the Court, what need be
said in my case has been said by my defense counsel, and all that is
left for me is to agree to his statements, to give you the assurance
that I always acted in the belief and in the conviction that I was
doing right, by obeying the law to which I was subjected and applying
it in the manner in which my conscience told me to. And it is the
truth that it was a matter of conscience for me not to misuse the law
in a criminal way, but to apply it in accordance with the will of
the legislator, and to grant the offender a proper trial and a just
verdict. Therefore, my conscience knows that it is clear of the crimes
with which I am charged.
PRESIDING JUDGE BRAND: The defendant Altstoetter may address
the Tribunal.
DEFENDANT ALTSTOETTER: The charges which the prosecution has
raised against me because of my alleged participation in war crimes
and crimes against humanity and on account of my capacity as honorary
SS leader, do not apply to me. My conscience is free of any guilt. I
certainly do not propose to evade responsibility for my actions. On
the contrary! These proceedings gave me the possibility to justify my
actions before my people--by whom I stand even in these hard days--and
before the entire world, that is, my actions during the past regime,
and particularly so during the period of my activity in the Reich
Ministry of Justice, and to prove that I always only served law and
justice. For this reason I have done everything to give the best
contribution possible in order to bring out the truth in this trial
as far as I am concerned. As a witness in these proceedings I have
testified to the truth to the best of my knowledge and belief.
The prosecution knows this very well from my own interrogations
during preliminary proceedings and from the interrogations of
many collaborators and aides who, however, were not called by the
prosecution to appear as witnesses in court. The prosecution knows it
also from documents which must be in its possession, but which were not
submitted in evidence.
And, therefore, the fact hurts me all the more that in its final plea
the prosecution designates me as not worthy of credibility. I feel
obliged toward myself and also toward my children to protest with all
seriousness and with all emphasis against this charge of having lied. I
do not have to fear truth. I hate nothing more than lies. I feel secure
only under the protection of truth, for truth is the sister of justice.
But justice on the part of the prosecution must be claimed by me even
if here we are only experimental objects of international law as it is
aspired to, and of an embryonic international justice.
Furthermore, I feel obliged to refer to the following, let the
proceedings result as they may. There is the enormous danger that
German justice was shown here in a picture which, even referring to
the time between 1933 and 1945, is not identical with actual facts.
I know justice in all its different phases and organizations, and I
know that German administration of justice up to the very end was the
best administration of the Reich, and I know above all that the German
judges, even in hard times and particularly in these hardest times of
all, did their duty for right and justice up to the very end. All that
could be desired was that the courage which was shown among the German
judiciary at those times would have been shown everywhere. Then the
danger could never have arisen that here in this courtroom there might
arise the danger of a false picture of the German judge.
VII. OPINION AND JUDGMENT
Military Tribunal III was established on 14 February 1947 under General
Order No. 11, issued by command of the United States Military Governor
for Germany. The indictment was filed with the Secretary General of
Military Tribunals on 4 January 1947, and the case was assigned to
Tribunal III for trial. A copy of the indictment in the German language
was served upon each defendant at least 30 days before the commencement
of the trial. The defendants were arraigned on 17 February 1947, each
defendant entering a plea of “not guilty” to all charges preferred
against him. German counsel selected by the defendants were approved by
the Tribunal and have represented the respective defendants throughout
the trial.
The presentation of evidence in support of the charges was commenced
on 6 March 1947 and was followed by evidence for the defendants. The
taking of evidence was concluded on 13 October 1947. Copies of the
exhibits tendered by the prosecution were furnished in the German
language to the defendants prior to the time of the reception of the
exhibits in evidence. The Tribunal has heard the oral testimony of 138
witnesses. In addition it has received 641 documentary exhibits for
the prosecution and 1,452 for defendants, many of them of considerable
length. Some affidavits have been presented by the prosecution, but
they are few in comparison with the hundreds offered by the defense.
Whenever possible, and in substantially all cases, applications of
defense counsel for the production in open court of persons who had
made affidavits in support of the prosecution have been granted and the
affiants have appeared for cross-examination. Affiants for the defense
were cross-examined orally by the prosecution in comparatively few
cases.
The defendant Carl Westphal died before the commencement of the trial.
On 22 August 1947, the Tribunal entered an order declaring a mistrial
as to the defendant, Karl Engert, who has been able to attend court
for only 2 days since 5 March 1947. The action was rendered necessary
under the provisions of article IV (_d_) of Military Government
Ordinance No. 7, and by reason of the serious and continuing illness of
said defendant.
The trial was conducted in two languages with simultaneous translations
of German into English and English into German throughout the
proceedings.
Under Military Government Order of 14 February 1947, the following were
designated as members of Military Tribunal III: Carrington T. Marshall,
presiding judge; James T. Brand, judge; Mallory B. Blair, judge; Justin
Woodward Harding, alternate judge. As thus constituted, the Tribunal
entered upon trial of the case. On 21 June 1947, General Order No. 52
was issued by the Office of Military Government for Germany as follows:
_“Pursuant to Military Government Ordinance No. 7_
“1. Effective as of 19 June 1947, pursuant to Military
Government Ordinance No. 7, 24 October 1946, entitled
‘Organization and Powers of Certain Military Tribunals’,
JAMES T. BRAND is appointed Presiding Judge of Military
Tribunal III, vice CARRINGTON T. MARSHALL, relieved
because of illness.
“2. JUSTIN WOODWARD HARDING, Alternate Judge, is
appointed Judge for Military Tribunal III.
“By command of GENERAL CLAY:
C. K. GAILEY
Brigadier General, GSC
Chief of Staff”
The trial has been continued before the Tribunal as thus reconstituted.
The evidence has been submitted, final arguments of counsel have been
concluded, and the Tribunal has heard a personal statement from each
defendant who desired to address it.
In rendering this judgment it should be said that the case against
the defendants is chiefly based upon captured German documents, the
authenticity of which is unchallenged.
The indictment contains four counts, as follows:
(1) Conspiracy to commit war crimes and crimes against humanity. The
charge embraces the period between January 1933 and April 1945.
(2) War crimes, to wit: violations of the laws and customs of war,
alleged to have been committed between September 1939 and April 1945.
(3) Crimes against humanity as defined by Control Council Law No. 10,
alleged to have been committed between September 1939 and April 1945.
(4) Membership of certain defendants in organizations which have been
declared to be criminal by the judgment of the International Military
Tribunal in the case against Goering, et al.
The sufficiency of count one of the indictment was challenged by the
defendants upon jurisdictional grounds, and on 11 July 1947, the
Tribunal made and entered the following order:
“Count one of the indictment in this case charges that the
defendants, acting pursuant to a common design, unlawfully,
willfully and knowingly did conspire and agree together to
commit war crimes and crimes against humanity as defined in
Control Council Law No. 10, article II. It is charged that the
alleged crime was committed between January 1933 and April 1945.
“It is the ruling of this Tribunal that neither the Charter of
the International Military Tribunal nor Control Council Law No.
10 has defined conspiracy to commit a war crime or crime against
humanity as a separate substantive crime; therefore, this
Tribunal has no jurisdiction to try any defendant upon a charge
of conspiracy considered as a separate substantive offense.
“Count one of the indictment, in addition to the separate
charge of conspiracy, also alleged unlawful participation in
the formulation and execution of plans to commit war crimes and
crimes against humanity which actually involved the commission
of such crimes. We, therefore, cannot properly strike the whole
of count one from the indictment, but, in so far as count one
charges the commission of the alleged crime of conspiracy as a
separate substantive offense, distinct from any war crime or
crime against humanity, the Tribunal will disregard that charge.
“This ruling must not be construed as limiting the force or
effect of article II, paragraph 2, of Control Council Law No.
10, or as denying to either prosecution or defense the right to
offer in evidence any facts or circumstances occurring either
before or after September 1939, if such facts or circumstances
tend to prove or to disprove the commission by any defendant
of war crimes or crimes against humanity as defined in Control
Council Law No. 10.”
_THE JURISDICTIONAL ENACTMENTS_
For convenient reference we have attached to this opinion copies
of the London Agreement of 8 August 1945, with the Charter of the
International Military Tribunal annexed thereto, Control Council Law
No. 10, Military Government Ordinance No. 7, and the indictment, which
are marked respectively Exhibits A, B, C, and D.[555]
The indictment alleges that the defendants committed crimes “as defined
in Control Council Law No. 10, duly enacted by the Allied Control
Council.” We therefore turn to that law.
The Allied Control Council is composed of the authorized
representatives of the four Powers: the United States, Great Britain,
France, and the Soviet Union.
The preamble to Control Council Law No. 10 is in part as follows:
“In order to give effect to the terms of the Moscow Declaration
of 30 October 1943 and the London Agreement of 8 August 1945,
and the Charter issued pursuant thereto and in order to
establish a uniform legal basis in Germany for the prosecution
of war criminals and other similar offenders, * * * the Control
Council enacts as follows:”
Article I reads in part as follows:
“The Moscow Declaration of 30 October 1943 ‘Concerning
Responsibility of Hitlerites for Committed Atrocities’ and the
London Agreement of 8 August 1945 ‘Concerning Prosecution and
Punishment of Major War Criminals of the European Axis’ are made
integral parts of this Law. * * *”
The London Agreement, supra, provides that the Charter of the
International Military Tribunal (hereinafter called the IMT Charter),
“shall form an integral part of this agreement.” (London Agreement,
art. II). Thus, it appears that the indictment is drawn under and
pursuant to the provisions of Control Council Law No. 10 (hereinafter
called C. C. Law 10), that C. C. Law 10 expressly incorporates the
London Agreement as a part thereof, and that the IMT Charter is a part
of the London Agreement.
Article II of C. C. Law 10 defines acts, each of which “is recognized
as a crime,” namely, (_a_) crimes against peace, (_b_) war crimes,
(_c_) crimes against humanity, (_d_) membership in criminal
organizations. We are concerned here with categories (_b_), (_c_), and
(_d_) only, each of which will receive later consideration.
_The Procedural Ordinance_
C. C. Law 10 provides that--
“1. Each occupying authority, within its zone of occupation,
“(_a_) shall have the right to cause persons within such
Zone suspected of having committed a crime, including those
charged with crime by one of the United Nations, to be arrested
* * *.
* * * * *
“(_d_) shall have the right to cause all persons so
arrested and charged, * * * to be brought to trial before an
appropriate tribunal. * * *
“2. The tribunal by which persons charged with offenses
hereunder shall be tried and the rules and procedure thereof
shall be determined or designated by each Zone Commander for his
respective Zone. * * * ”
Pursuant to the foregoing authority, Ordinance No. 7 was enacted by the
Military Governor of the American Zone. It provides:
“Article I
“The purpose of this Ordinance is to provide for the
establishment of military tribunals which shall have power to
try and punish persons charged with offenses recognized as
crimes in article II of Control Council Law No. 10, including
conspiracies to commit any such crimes. * * *
“Article II
“(_a_) Pursuant to the powers of the Military Governor for
the United States Zone of Occupation within Germany and further
pursuant to the powers conferred upon the Zone Commander by
Control Council Law No. 10 and articles 10 and 11 of the Charter
of the International Military Tribunal annexed to the London
Agreement of 8 August 1945 certain tribunals to be known as
‘Military Tribunals’ shall be established hereunder.”
The tribunals authorized by Ordinance No. 7 are dependent upon
the substantive jurisdictional provisions of C. C. Law 10 and are
thus based upon international authority and retain international
characteristics. It is provided that the United States Military
Governor may agree with other zone commanders for a joint trial.
(Ordinance 7, art. II, par. (_c_).) The Chief of Counsel for War
Crimes, United States, may invite others of the United Nations to
participate in the prosecution. (Ordinance 7, art. III, par. (_b_).)
The Ordinance provides:
“Article X
“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof
by any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No.
1 constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”
The sentences authorized by Ordinance No. 7 are made definite only by
reference to those provided for by C. C. Law 10. (Ordinance No. 7, Art.
XVI).
As thus established the Tribunal is authorized and empowered to try
and punish the major war criminals of the European Axis and “those
German officers and men and members of the Nazi Party who have been
responsible for, or have taken a consenting part in,” or have aided,
abetted, ordered, or have been connected with plans or enterprises
involving the commission of the offenses defined in C. C. Law 10.
SOURCE OF AUTHORITY OF C. C. LAW 10
Having identified the instruments which purport to establish the
jurisdiction of this Tribunal, we next consider the legal basis
of those instruments. The unconditional surrender of Germany took
place on 8 May 1945.[556] The surrender was preceded by the complete
disintegration of the central government and was followed by the
complete occupation of all of Germany. There were no opposing German
forces in the field; the officials who during the war had exercised
the powers of the Reich Government were either dead, in prison, or
in hiding. On 5 June 1945 the Allied Powers announced that they
“hereby assume supreme authority with respect to Germany, including
all the powers possessed by the German Government, the High Command,
and any state, municipal or local government or authority,” and
declared that “there is no central government or authority in Germany
capable of accepting responsibility for the maintenance of order, the
administration of the country, and compliance with the requirements
of the victorious powers.” The Four Powers further declared that they
“will hereafter determine the boundaries of Germany or any part thereof
and the status of Germany or of any area at present being a part of
German territory.”[557]
On 2 August 1945 at Berlin, President Truman, Generalissimo Stalin,
and Prime Minister Attlee, as heads of the Allied Powers, entered
into a written agreement setting forth the principles which were to
govern Germany during the initial control period. Reference to that
document will disclose the wide scope of authority and control which
was assumed and exercised by the Allied Powers. They assumed “supreme
authority” and declared that it was their purpose to accomplish
complete demilitarization of Germany; to destroy the National Socialist
Party, to prevent Nazi propaganda; to abolish all Nazi laws which
“established discrimination on grounds of race, creed, or political
opinion * * * whether legal, administrative, or otherwise”; to
control education; to reorganize the judicial system in accordance
with the principles of democracy and of equal rights; to accomplish
the decentralization of the political structure. The agreement
provided that “for the time being no central German government
shall be established”. In the economic field they assumed control
of “German industry and all economic and financial international
transactions”.[558] Finally, the Allies reaffirmed their intention to
bring the Nazi war criminals to swift and sure justice.
It is this fact of the complete disintegration of the government in
Germany, followed by unconditional surrender and by occupation of the
territory, which explains and justifies the assumption and exercise of
supreme governmental power by the Allies. The same fact distinguishes
the present occupation of Germany from the type of occupation which
occurs when, in the course of actual warfare, an invading army enters
and occupies the territory of another state, whose government is
still in existence and is in receipt of international recognition,
and whose armies, with those of its allies, are still in the field.
In the latter case the occupying power is subject to the limitations
imposed upon it by the Hague Convention and by the laws and customs
of war. In the former case (the occupation of Germany) the Allied
Powers were not subject to those limitations. By reason of the complete
breakdown of government, industry, agriculture, and supply, they were
under an imperative humanitarian duty of far wider scope to reorganize
government and industry and to foster local democratic governmental
agencies throughout the territory.
In support of the distinction made, we quote from two recent and
scholarly articles in “The American Journal of International Law.”
“On the other hand, a distinction is clearly warranted between
measures taken by the Allies prior to destruction of the German
Government and those taken thereafter. Only the former need
be tested by the Hague Regulations, which are inapplicable to
the situation now prevailing in Germany. Disappearance of the
German State as a belligerent entity, necessarily implied in the
Declaration of Berlin of 5 June 1945, signifies that a true
state of war--and hence _belligerent_ occupation--no longer
exists within the meaning of international law.”[559]
* * * * *
“Through the subjugation of Germany the outcome of the war has been
decided in the most definite manner possible. One of the prerogatives
of the Allies resulting from the subjugation is the right to occupy
German territory at their discretion. This occupation is, both legally
and factually, fundamentally different from the belligerent occupation
contemplated in the Hague Regulations, as can be seen from the
following observations.
“The provisions of the Hague Regulations restricting the rights of an
occupant refer to a belligerent who, favored by the changing fortunes
of war, actually exercises military authority over enemy territory and
thereby prevents the legitimate sovereign--who remains the legitimate
sovereign--from exercising his full authority. The Regulations draw
important legal conclusions from the fact that the legitimate sovereign
may at any moment himself be favored by the changing fortunes of
war, reconquer the territory, and put an end to the occupation. ‘The
occupation applies only to territory where such authority (i.e., the
military authority of the hostile state) is established and can be
exercised’ (_Art. 42, 2_). In other words, the Hague Regulations
think of an occupation which is a phase of an as yet undecided war.
Until 7 May 1945, the Allies were belligerent occupants in the
then occupied parts of Germany, and their rights and duties were
circumscribed by the respective provisions of the Hague Regulations.
As a result of the subjugation of Germany, the legal character of the
occupation of German territory was drastically changed.”[560]
The view expressed by the two authorities cited appears to have
the support of the International Military Tribunal judgment in the
case against Goering, et al. In that case the defendants contended
that Germany was not bound by the rules of land warfare in occupied
territory because Germany had completely subjugated those countries and
incorporated them into the German Reich. The Tribunal refers to the
“doctrine of subjugation, dependent as it is upon military conquest,”
and holds that it is unnecessary to decide whether the doctrine has
any application where the subjugation is the result of the crime of
aggressive war. The reason given is significant. The Tribunal said:
“The doctrine was never considered to be applicable so long
as there was an army in the field attempting to restore the
occupied countries to their true owners, and in this case,
therefore, the doctrine could not apply to any territories
occupied after 1 September 1939.”[561]
The clear implication from the foregoing is that the Rules of Land
Warfare apply to the conduct of a belligerent in occupied territory so
long as there is an army in the field attempting to restore the country
to its true owner, but that those rules do not apply when belligerency
is ended, there is no longer an army in the field, and, as in the case
of Germany, subjugation has occurred by virtue of military conquest.
The views which we have expressed are supported by modern scholars
of high standing in the field of international law. While they
differ somewhat in theory as to the present legal status of Germany
and concerning the situs of residual sovereignty, they appear to be
in accord in recognizing that the powers and rights of the Allied
Governments under existing conditions in Germany are not limited by
the provisions of the Hague Regulations concerning land warfare. For
reference see--
“The Legal Status of Germany According to the Declaration
of Berlin,” by Hans Kelsen, Professor of International Law,
University of California, American Journal of International Law,
1945.
“Germany’s Present Status,” by F. A. Mann, Doctor of Law
(Berlin) (London), paper read on 5 March 1947 before the Grotius
Society in London, published in Sueddeutsche Juristen-Zeitung
(Lawyers’ Journal of Southern Germany), volume 2, No. 9,
September 1947.
“The Influence of the Legal Position of Germany upon the War
Crimes Trial,” Dr. Hermann Mosler, Assistant Professor of the
University of Bonn, published in Sueddeutsche Juristen-Zeitung,
volume 2, No. 7, July 1947.
Article published in Neue Justiz (New Justice), by Dr. Alfons
Steininger, Berlin, volume I, No. 7, July 1947, pages 146–150.
In an article by George A. Zinn, Minister of Justice of Hessen,
entitled “Germany as the Problem of the Law of States,” the author
points out that if it be assumed that the present occupation of Germany
constitutes “belligerent occupation” in the traditional sense, then
all legal and constitutional changes brought about since 7 May 1945
would cease to be valid once the Allied troops were withdrawn and all
Nazi laws would again and automatically become the law of Germany, a
consummation devoutly to be avoided.
Both of the authorities first cited directly assert that the situation
at the time of the unconditional surrender resulted in the transfer of
sovereignty to the Allies. In this they are supported by the weighty
opinion of Lord Wright, eminent jurist of the British House of Lords
and head of the United Nations War Crimes Commission. For our purposes,
however, it is unnecessary to determine the present situs of “residual
sovereignty.” It is sufficient to hold that, by virtue of the situation
at the time of unconditional surrender, the Allied Powers were
provisionally in the exercise of supreme authority, valid and effective
until such time as, by treaty or otherwise, Germany shall be permitted
to exercise the full powers of sovereignty. We hold that the legal
right of the four Powers to enact C. C. Law 10 is established and that
the jurisdiction of this Tribunal to try persons charged as major war
criminals of the European Axis must be conceded.
We have considered it proper to set forth our views concerning the
nature and source of the authority of C. C. Law 10 in its aspect as
substantive legislation. It would have been possible to treat that law
as a binding rule regardless of the righteousness of its provisions,
but its justification must ultimately depend upon accepted principles
of justice and morality, and we are not content to treat the statute
as a mere rule of thumb to be blindly applied. We shall shortly
demonstrate that the IMT Charter and C. C. Law 10 provide for the
punishment of crimes against humanity. As set forth in the indictment,
the acts charged as crimes against humanity were committed before the
occupation of Germany. They were described as racial persecutions by
Nazi officials perpetrated upon German nationals. The crime of genocide
is an illustration. We think that a tribunal charged with the duty of
enforcing these rules will do well to consider, in determining the
degree of punishment to be imposed, the moral principles which underlie
the exercise of power. For that reason we have contrasted the situation
when Germany was in belligerent occupation of portions of Poland, with
the situation existing under the Four-Power occupation of Germany since
the surrender. The occupation of Poland by Germany was in every sense
belligerent occupation, precarious in character, while opposing armies
were still in the field. The German occupation of Poland was subject
to the limitations imposed by the Hague Convention and the laws and
customs of land warfare. In view of these limitations we doubt if any
person would contend that Germany, during that belligerent occupation,
could lawfully have provided tribunals for the punishment of Polish
officials who, before the occupation by Germany, had persecuted their
own people, to wit: Polish nationals. Now the Four Powers are providing
by C. C. Law 10 for the punishment of German officials who, before the
occupation of Germany, passed and enforced laws for the persecution
of German nationals upon racial grounds. It appears that it would be
equally difficult to justify such action of the Four Powers if the
situation here were the same as the situation which existed in Poland
under German occupation and if consequently the limitations of the
Hague Convention were applicable. For this reason it seems appropriate
to point out the distinction between the two situations. As we have
attempted to show, the moral and legal justification under principles
of international law which authorizes the broader scope of authority
under C. C. Law 10 is based on the fact that the Four Powers are not
now in belligerent occupation or subject to the limitations set forth
in the rules of land warfare. Rather, they have justly and legally
assumed the broader task in Germany which they have solemnly defined
and declared, to wit: the task of reorganizing the German Government
and economy and of punishing persons who, prior to the occupation,
were guilty of crimes against humanity committed against their own
nationals. We have pointed out that this difference in the nature of
the occupation is due to the unconditional surrender of Germany and
the ensuing chaos which required the Four Powers to assume provisional
supreme authority throughout the German Reich. We are not attempting to
pass judicially upon a question which is solely within the jurisdiction
of the political departments of the Four Powers. The fixing of the date
of the formal end of the war and similar matters will, of course, be
dependent upon the action of the political departments. We do not usurp
their function. We merely inquire, in the course of litigation when
the lives of men are dependent upon decisions which must be both legal
and just, whether the great objectives announced by the Four Powers
are themselves in harmony with the principles of international law and
morality.
In declaring that the expressed determination of the victors to punish
German officials who slaughtered their own nationals is in harmony
with international principles of justice, we usurp no power; we only
take judicial notice of the declarations already made by the chief
executives of the United States and her former Allies. The fact that C.
C. Law 10 on its face is limited to the punishment of German criminals
does not transform this Tribunal into a German court. The fact that the
four powers are exercising supreme legislative authority in governing
Germany and for the punishment of German criminals does not mean that
the jurisdiction of this Tribunal rests in the slightest degree upon
any German law, prerogative, or sovereignty. We sit as a Tribunal
drawing its sole power and jurisdiction from the will and command of
the Four occupying Powers.
Examination will disclose that C. C. Law 10 possesses a dual aspect.
In its first aspect and on its face it purports to be a statute
defining crimes and providing for the punishment of persons who violate
its provisions. It is the legislative product of the only body in
existence having and exercising general lawmaking power throughout the
Reich. The first International Military Tribunal in the case against
Goering, et al., recognized similar provisions of the IMT Charter as
binding legislative enactments. We quote:
“The making of the Charter was the exercise of the sovereign
legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of these
countries to legislate for the occupied territories has been
recognized by the civilized world.”[562]
“These provisions are binding upon the Tribunal _as the law to
be applied to the case_.”[563] [Emphasis added.]
Since the IMT Charter and C. C. Law 10 are the products of legislative
action by an international authority, it follows of necessity that
there is no national constitution of any one state which could be
invoked to invalidate the substantive provisions of such international
legislation. It can scarcely be argued that a court which owes its
existence and jurisdiction solely to the provisions of a given statute
could assume to exercise that jurisdiction and then, in the exercise
thereof, declare invalid the act to which it owes its existence.
Except as an aid to construction, we cannot and need not go behind the
statute. This was discussed authoritatively by the first International
Military Tribunal in connection with the contention of defendants that
the IMT Charter was invalid because it partook of the nature of _ex
post facto_ legislation. That Tribunal said: “The Charter makes the
planning or waging of a war of aggression or a war in violation of
international treaties a crime; and _it is, therefore, not strictly
necessary to consider whether and to what extent aggressive war was a
crime before the execution of the London Agreement_.”[564] [Emphasis
added.]
As recently said by an American authority--
“The Charter was, of course, binding upon the Tribunal in the
same way that a constitutional statute would bind a domestic
court.”[565]
In its aspect as a statute defining crime and providing punishment
the limited purpose of C. C. Law 10 is clearly set forth. It is an
exercise of supreme legislative power in and for Germany. It does not
purport to establish by legislative act any new crimes of international
applicability. The London Agreement refers to the trial of “those
German officers and men and members of the Nazi Party who have been
responsible for * * * atrocities.” C. C. Law 10 recites that it was
enacted to establish a “uniform legal basis _in Germany_” for the
prosecution of war criminals. [Emphasis added.]
Military Government Ordinance No. 7 was enacted pursuant to the powers
of the Military Government for the United States Zone of Occupation
“_within Germany_.” [Emphasis added.]
We concur in the view expressed by the first International Military
Tribunal as quoted above, but we observe that the decision was
supported on two grounds. The Tribunal in that case did not stop with
the declaration that it was bound by the IMT Charter as an exercise of
sovereign legislative power. The opinion went on to show that the IMT
Charter was also “the expression of international law existing at the
time of its creation.” All of the war crimes and many, if not all, of
the crimes against humanity as charged in the indictment in the case
at bar were, as we shall show, violative of preexisting principles of
international law. To the extent to which this is true, C. C. Law 10
may be deemed to be a codification rather than original substantive
legislation. Insofar as C. C. Law 10 may be thought to go beyond
established principles of international law, its authority, of course,
rests upon the exercise of the “sovereign legislative power” of the
countries to which the German Reich unconditionally surrendered.
We have discussed C. C. Law 10 in its first aspect as substantive
legislation. We now consider its other aspect. Entirely aside from
its character as substantive legislation, C. C. Law 10, together with
Ordinance No. 7, provides procedural means previously lacking for
the enforcement within Germany of certain rules of international law
which exist throughout the civilized world independently of any new
substantive legislation. (_Ex parte Quirin_, 317 U.S. 1; 87 L. ed.
3; 63 S. Ct. 2.) International law is not the product of statute. Its
content is not static. The absence from the world of any governmental
body authorized to enact substantive rules of international law has not
prevented the progressive development of that law. After the manner of
the English common law it has grown to meet the exigencies of changing
conditions.
It must be conceded that the circumstance which gives to principles of
international conduct the dignity and authority of law is their general
acceptance as such by civilized nations, which acceptance is manifested
by international treaties, conventions, authoritative textbooks,
practice, and judicial decisions.[566]
It does not, however, follow from the foregoing statements that general
acceptance of a rule of international conduct must be manifested by
express adoption thereof by all civilized states.
“The basis of the law, that is to say, what has given to some
principles of general applicability the quality or character of
law has been the acquiescence of the several independent states
which were to be governed thereby.”[567]
[Page 5]
“The requisite acquiescence on the part of individual states
has not been reflected in formal or specific approval of every
restriction which the acknowledged requirements of international
justice have appeared, under the circumstances of the particular
case, to dictate or imply. It has been rather a yielding to
principle, and by implication, to logical applications thereof
which have begotten deep-rooted and approved practices.”
[Page 9]
“It should be observed, however, that acquiescence in a proposal
may be inferred from the failure of interested states to make
appropriate objection to practical applications of it. Thus
it is that changes in the law may be wrought gradually and
imperceptibly, like those which by process of accretion alter
the course of a river and change an old boundary. Without
conventional arrangement, and by practices manifesting a common
and sharp deviation from rules once accepted as the law, the
community of states may in fact modify that which governs its
members.”
[Page 11]
“States may through the medium of an international organization
such as the League of Nations, itself the product of agreement,
find it expedient to create and accept fresh restraints that
ultimately win widest approval and acceptance as a part of
the law of nations. The acts of the organization may thus in
fact become sources of international law, at least in case the
members thereof have by their general agreement clothed it with
power to create and put into force fresh rules of restraint.”
* * * * *
“But international law is progressive. The period of growth
generally coincides with the period of world upheavals. The
pressure of necessity stimulates the impact of natural law and
of moral ideas and converts them into rules of law deliberately
and overtly recognized by the consensus of civilized mankind.
The experience of two great world wars within a quarter of
a century cannot fail to have deep repercussions on the
senses of the peoples and their demand for an international
law which reflects international justice. I am convinced that
international law has progressed, as it is bound to progress
if it is to be a living and operative force in these days of
widening sense of humanity.”[568]
For the reasons stated by Lord Wright, this growth by accretion has
been greatly accelerated since the First World War.[569] The IMT
Charter, the IMT judgment, and C. C. Law 10 are merely “great new
cases in the book of international law.” They constitute authoritative
recognition of principles of individual penal responsibility in
international affairs which, as we shall show, had been developing for
many years. Surely C. C. Law 10, which was enacted by the authorized
representatives of the four greatest Powers on earth, is entitled
to judicial respect when it states, “Each of the following acts is
_recognized_ as a crime.” [Emphasis added.] Surely the requisite
international approval and acquiescence is established when 23 states,
including all of the great powers, have approved the London Agreement
and the IMT Charter without dissent from any state. Surely the IMT
Charter must be deemed declaratory of the principles of international
law in view of its recognition as such by the General Assembly of the
United Nations. We quote:
“The General Assembly recognizes the obligation laid upon it
by article 13, paragraph 1 (a) of the Charter, to initiate
studies and make recommendations for the purpose of encouraging
the progressive development of international law and its
codification;
“Takes note of the agreement for the establishment of an
International Military Tribunal for the prosecution and
punishment of the major war criminals of the European Axis,
signed in London on 8 August 1945, and of the Charter annexed
thereto and of the fact that similar principles have been
adopted in the Charter of the International Military Tribunal
for the trial of the major war criminals in the Far East,
proclaimed at Tokyo on 19 January 1946;
“Therefore--
“Affirms the principles of international law recognized by
the Charter of the Nuernberg Tribunal and the judgment of the
Tribunal;
“Directs the Committee on Codification of International Law
established by the resolution of the General Assembly of
* * December 1946, to treat as a matter of primary importance
plans for the formulation, in the text of a general codification
of offenses against the peace and security of mankind, or of an
International Criminal Code, of the principles recognized in the
Charter of the Nuernberg Tribunal and in the judgment of the
Tribunal.”[570]
Before the International Military Tribunal had convened for the trial
of Goering, et al., the opinion had been expressed that through the
process of accretion the provisions of the IMT Charter and consequently
of C. C. Law 10 had already, in large measure, become incorporated into
the body of international law. We quote:
“I understand the Agreement to import that the three classes
of persons which it specifies are war criminals, that the acts
mentioned in classes (_a_), (_b_), and (_c_) are
crimes for which there is properly individual responsibility;
that they are not crimes because of the Agreement of the four
Governments, but that the Governments have scheduled them as
coming under the jurisdiction of the Tribunal because they are
already crimes by existing law. On any other assumption the
Court would not be a court of law but a manifestation of power.
The principles which are declared in the Agreement are not laid
down as an arbitrary direction to the Court but are intended
to define and do, in my opinion, accurately define what is the
existing international law on these matters.”[571]
A similar view was expressed in the judgment of the International
Military Tribunal. We quote:
“The Charter is not an arbitrary exercise of power on the part
of the victorious nations, but in the view of the Tribunal,
as will be shown, it is the expression of international law
existing at the time of its creation; and to that extent is
itself a contribution to international law.”[572]
We are empowered to determine the guilt or innocence of persons accused
of acts described as “war crimes” and “crimes against humanity”
under rules of international law. At this point, in connection with
cherished doctrines of national sovereignty, it is important to
distinguish between the rules of common international law which are of
universal and superior authority on the one hand, and the provisions
for enforcement of those rules which are by no means universal on the
other. As to the superior authority of international law, we quote:
“If there exists a body of international law, which states,
from a sense of legal obligation do in fact observe in
their relations with each other, and which they are unable
individually to alter or destroy, that law must necessarily be
regarded as the law of each political entity deemed to be a
state, and as prevailing throughout places under its control.
This is true although there be no local affirmative action
indicating the adoption by the individual state of international
law.
“International law, as the local law of each state, is
necessarily superior to any administrative regulation or statute
or public act at variance with it. There can be no conflict on
an equal plane.”[573]
This universality and superiority of international law does not
necessarily imply universality of its enforcement. As to the punishment
of persons guilty of violating the laws and customs of war (war crimes
in the narrow sense), it has always been recognized that tribunals may
be established and punishment imposed by the state into whose hands the
perpetrators fall. These rules of international law were recognized
as paramount, and jurisdiction to enforce them by the injured
belligerent government, whether within the territorial boundaries of
the state or in occupied territory, has been unquestioned. (_Ex parte
Quirin, supra_; In re: Yamashita, 327 U.S. 1, 90 L. ed.) However,
enforcement of international law has been traditionally subject to
practical limitations. Within the territorial boundaries of a state
having a recognized, functioning government presently in the exercise
of sovereign power throughout its territory, a violator of the rules
of international law could be punished only by the authority of the
officials of that state. The law is universal, but such a state
reserves unto itself the exclusive power within its boundaries to apply
or withhold sanctions. Thus, notwithstanding the paramount authority
of the substantive rules of common international law, the doctrines
of national sovereignty have been preserved through the control of
enforcement machinery. It must be admitted that Germans were not the
only ones who were guilty of committing war crimes; other violators of
international law could, no doubt, be tried and punished by the state
of which they were nationals, by the offended state if it can secure
jurisdiction of the person, or by an international tribunal if of
competent authorized jurisdiction.
Applying these principles, it appears that the power to punish
violators of international law in Germany is not solely dependent on
the enactment of rules of substantive penal law applicable only in
Germany. Nor is the apparent immunity from prosecution of criminals in
other states based on the absence there of the rules of international
law which we enforce here. Only by giving consideration to the
extraordinary and temporary situation in Germany can the procedure here
be harmonized with established principles of national sovereignty. In
Germany an international body (the Control Council) has assumed and
exercised the power to establish judicial machinery for the punishment
of those who have violated the rules of the common international law, a
power which no international authority without consent could assume or
exercise within a state having a national government presently in the
exercise of its sovereign powers.
_Construction of C. C. Law 10 War Crimes and Crimes
Against Humanity_
We next approach the problem of the construction of C. C. Law 10, for
whatever the scope of international common law may be, the power to
enforce it in this case is defined and limited by the terms of the
jurisdictional act.
The first penal provision of C. C. Law No. 10, with which we are
concerned is as follows:
“Article II
“1.--Each of the following acts is recognized as a crime:
* * * * * * *
(_b_) _War Crimes._ Atrocities or offences against
persons or property constituting violations of the laws or
customs of war, including but not limited to, murder, ill
treatment or deportation to slave labour or for any other
purpose, of civilian population from occupied territory, murder
or ill treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private property,
wanton destruction of cities, towns or villages, or devastation
not justified by military necessity.”
Here we observe the controlling effect of common international law
as such, for the statutes by which we are governed have adopted and
incorporated the rules of international law as the rules by which war
crimes are to be identified. This legislative practice by which the
laws or customs of war are incorporated by reference into a statute
is not unknown in the United States. (See cases cited in _Ex parte
Quirin, supra_.)
The scope of inquiry as to war crimes is, of course, limited by the
provisions, properly construed, of the IMT Charter and C. C. Law 10.
In this particular, the two enactments are in substantial harmony.
Both indicate by inclusion and exclusion the intent that the term “war
crimes” shall be employed to cover acts in violation of the laws and
customs of war directed against non-Germans, and shall not include
atrocities committed by Germans against their own nationals. It will
be observed that article 6 of the IMT Charter enumerates as war crimes
acts against prisoners of war, persons on the seas, hostages, wanton
destruction of cities and the like, devastation not justified by
military necessity, plunder of public or private property (obviously
not property of Germany or Germans), and “ill-treatment or deportation
to slave labor or for any other purpose of civilian population _of
or in_ occupied territory.” [Emphasis added.] C. C. Law 10,
_supra_, employs similar language. It reads--
“ * * * ill treatment or deportation to slave labour or for
any other purpose, _of civilian population from occupied
territory_.” [Emphasis added.]
This legislative intent becomes more manifest when we consider the
provisions of the IMT Charter and of C. C. Law 10 which deal with
crimes against humanity. Article 6 of the IMT Charter defines crimes
against humanity, as follows:
“ * * * murder, extermination, enslavement, deportation, and
other inhumane acts committed against any civilian population,
before or during the war; or persecutions on political, racial
or religious grounds in execution of or in connection with any
crime within the jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpetrated.”
C. C. Law 10 defines as criminal:
“ * * * Atrocities and offences, including but not limited to
murder, extermination, enslavement, deportation, imprisonment,
torture, rape, or other inhumane acts committed against any
civilian population, or persecutions on political, racial or
religious grounds whether or not in violation of the domestic
laws of the country where perpetrated.”
Obviously, these sections are not surplusage. They supplement the
preceding sections on war crimes and include within their prohibition
not only war crimes, but also acts not included within the preceding
definitions of war crimes. In place of atrocities committed against
civilians of or in or from occupied territory, these sections prohibit
atrocities “against any civilian population.” Again, persecutions on
racial, religious, or political grounds are within our jurisdiction
“whether or not in violation of the domestic laws of the country
where perpetrated.” We have already demonstrated that C. C. Law 10
is specifically directed to the punishment of German criminals. It
is therefore clear that the intent of the statute on crimes against
humanity is to punish for persecutions and the like, whether in
accord with or in violation of the domestic laws of the country where
perpetrated, to wit: Germany. The intent was to provide that compliance
with German law should be no defense. Article III of C. C. Law 10
clearly demonstrates that acts by Germans against German nationals may
constitute crimes against humanity within the jurisdiction of this
Tribunal to punish. That article provides that each occupying authority
within its zone of occupation shall have the right to cause persons
suspected of having committed a crime to be arrested and “(_d_)
shall have the right to cause all persons so arrested * * * to be
brought to trial * * *. Such Tribunal may, in the case of crimes
committed by persons of German citizenship or nationality against other
persons of German citizenship or nationality, or stateless persons, be
a German court, if authorized by the occupying authorities.”
As recently asserted by General Telford Taylor before Tribunal IV, in
the case of the United States _vs._ Flick, et al.:[574]
“This constitutes an explicit recognition that acts committed
by Germans against other Germans are punishable as crimes under
Law No. 10, according to the definitions contained therein,
since only such crimes may be tried by German courts, in the
discretion of the occupying power. If the occupying power fails
to authorize German courts to try crimes committed by Germans
against other Germans (and in the American Zone of Occupation
no such authorization has been given), then these cases are
tried only before non-German tribunals, such as these military
tribunals.”
Our jurisdiction to try persons charged with crimes against humanity
is limited in scope, both by definition and illustration, as appears
from C. C. Law 10. It is not the isolated crime by a private German
individual which is condemned, nor is it the isolated crime perpetrated
by the German Reich through its officers against a private individual.
It is significant that the enactment employs the words “against any
civilian population” instead of “against any civilian individual.”
The provision is directed against offenses and inhumane acts and
persecutions on political, racial, or religious grounds systematically
organized and conducted by or with the approval of government.
The opinion of the first International Military Tribunal in the case
against Goering, et al., lends support to our conclusion. That opinion
recognized the distinction between war crimes and crimes against
humanity, and said:
“* * * insofar as the inhumane acts charged in the indictment,
and committed after the beginning of the war, did not constitute
war crimes, they were all committed in execution of, or in
connection with, the aggressive war, and therefore constituted
crimes against humanity.”[575]
The evidence to be later reviewed establishes that certain inhumane
acts charged in count three of the indictment were committed in
execution of, and in connection with, aggressive war and were therefore
crimes against humanity even under the provisions of the IMT Charter,
but it must be noted that C. C. Law 10 differs materially from the
Charter. The latter defines crimes against humanity as inhumane acts,
etc., committed “in execution of, or in connection with, any crime
within the jurisdiction of the tribunal”, whereas in C. C. Law 10 the
words last quoted are deliberately omitted from the definition.
_THE EX POST FACTO PRINCIPLE_
The defendants claim protection under the principle _nullum crimen
sine lege_, though they withheld from others the benefit of that
rule during the Hitler regime. Obviously the principle in question
constitutes no limitation upon the power or right of the Tribunal
to punish acts which can properly be held to have been violations
of international law when committed. By way of illustration, we
observe that C. C. Law 10, article II, paragraph 1(_b_), “_War
Crimes_,” has by reference incorporated the rules by which war
crimes are to be identified. In all such cases it remains only for the
Tribunal, after the manner of the common law, to determine the content
of those rules under the impact of changing conditions.
Whatever view may be held as to the nature and source of our authority
under C. C. Law 10 and under common international law, the _ex post
facto_ rule, properly understood, constitutes no legal nor moral
barrier to prosecution in this case.
Under written constitutions the _ex post facto_ rule condemns
statutes which define as criminal, acts committed before the law
was passed, but the _ex post facto_ rule cannot apply in the
international field as it does under constitutional mandate in the
domestic field. Even in the domestic field the prohibition of the
rule does not apply to the decisions of common law courts, though the
question at issue be novel. International law is not the product of
statute for the simple reason that there is as yet no world authority
empowered to enact statutes of universal application. International
law is the product of multipartite treaties, conventions, judicial
decisions and customs which have received international acceptance
or acquiescence. It would be sheer absurdity to suggest that the
_ex post facto_ rule, as known to constitutional states, could
be applied to a treaty, a custom, or a common law decision of an
international tribunal, or to the international acquiescence which
follows the event. To have attempted to apply the _ex post facto_
principle to judicial decisions of common international law would
have been to strangle that law at birth. As applied in the field
of international law, the principle _nullum crimen sine lege_
received its true interpretation in the opinion of the IMT in the case
versus Goering, et al. The question arose with reference to crimes
against the peace, but the opinion expressed is equally applicable to
war crimes and crimes against humanity. The Tribunal said:
“In the first place, it is to be observed that the maxim
_nullum crimen sine lege_ is not a limitation of
sovereignty, but is in general a principle of justice. To assert
that it is unjust to punish those who in defiance of treaties
and assurances have attacked neighboring states without warning
is obviously untrue, for in such circumstances the attacker must
know that he is doing wrong, and so far from it being unjust to
punish him, it would be unjust if his wrong were allowed to go
unpunished.”[576]
To the same effect we quote the distinguished statesman and
international authority, Henry L. Stimson--
“A mistaken appeal to this principle has been the cause of much
confusion about the Nuremberg trial. It is argued that parts
of the Tribunal’s Charter, written in 1945, make crimes out
of what before were activities beyond the scope of national
and international law. Were this an exact statement of the
situation we might well be concerned, but it is not. It rests
on a misconception of the whole nature of the law of nations.
International law is not a body of authoritative codes or
statutes; it is the gradual expression, case by case, of the
moral judgments of the civilized world. As such, it corresponds
precisely to the common law of Anglo-American tradition. We can
understand the law of Nuremberg only if we see it for what it
is--a great new case in the book of international law, and not a
formal enforcement of codified statutes. A look at the charges
will show what I mean.
* * * * *
“It was the Nazi confidence that we would never chase and catch
them, and not a misunderstanding of our opinion of them, that
led them to commit their crimes. Our offense was thus that of
the man who passed by on the other side. That we have finally
recognized our negligence and named the criminals for what they
are is a piece of righteousness too long delayed by fear.”[577]
That the conception of retrospective legislation which prevails under
constitutional provisions in the United States does not receive
complete recognition in other enlightened legal systems is illustrated
by the decision in Phillips _vs._ Eyre, L.R. 6 Q.B. 1 [27
(1870–71)] described by Lord Wright as “a case of great authority.” We
quote:
“In fine, allowing the general inexpediency of retrospective
legislation, it cannot be pronounced naturally or necessarily
unjust. There may be occasions and circumstances involving the
safety of the state, or even the conduct of individual subjects,
the justice of which, prospective laws made for ordinary
occasions and the usual exigencies of society for want of
prevision fail to meet, and in which * * * the inconvenience and
wrong, _summum jus summa injuria_.”
We quote with approval the words of Sir David Maxwell-Fyfe:
“With regard to ‘crimes against humanity’, this at any rate is
clear. The Nazis, when they persecuted and murdered countless
Jews and political opponents in Germany, knew that what they
were doing was wrong and that their actions were crimes which
had been condemned by the criminal law of every civilized state.
When these crimes were mixed with the preparation for aggressive
war and later with the commission of war crimes in occupied
territories, it cannot be a matter of complaint that a procedure
is established for their punishment.”[578]
Concerning the mooted _ex post facto_ issue, Professor Wechsler of
Columbia University writes:
“These are, indeed, the issues that are currently mooted. But
there are elements in the debate that should lead us to be
suspicious of the issues as they are drawn in these terms. For,
most of those who mount the attack on one or another of these
contentions hasten to assure us that their plea is not one of
immunity for the defendants; they argue only that they should
have been disposed of politically, that is, dispatched out of
hand. This is a curious position indeed. A punitive enterprise
launched on the basis of general rules, administered in an
adversary proceeding under a separation of prosecutive and
adjudicative powers is, in the name of law and justice, asserted
to be less desirable than an _ex parte_ execution list or a
drumhead court martial constituted in the immediate aftermath of
the war. I state my view reservedly when I say that history will
accept no conception of law, politics or justice that supports a
submission in these terms.”
Again, he says:
“There is, indeed, too large a disposition among the defenders
of Nuremberg to look for stray tags of international
pronouncements and reason therefrom that the law of Nuremberg
was previously fully laid down. If the Kellogg-Briand Pact or
a general conception of international obligation sufficed to
authorize England, and would have authorized us, to declare war
on Germany in defense of Poland--and in this enterprise to kill
countless thousands of German soldiers and civilians--can it be
possible that it failed to authorize punitive action against
individual Germans judicially determined to be responsible
for the Polish attack? To be sure, we would demand a more
explicit authorization for punishment in domestic law, for we
have adopted for the protection of individuals a prophylactic
principle absolutely forbidding retroactivity that we can afford
to carry to that extreme. International society, being less
stable, can afford less luxury. We admit that in other respects.
Why should we deny it here?”[579]
Many of the laws of the Weimar era which were enacted for the
protection of human rights have never been repealed. Many acts
constituting war crimes or crimes against humanity as defined in C.
C. Law 10 were committed or permitted in direct violation also of the
provisions of the German criminal law. It is true that this Tribunal
can try no defendant merely because of a violation of the German penal
code, but it is equally true that the rule against retrospective
legislation, as a rule of justice and fair play, should be no defense
if the act which he committed in violation of C. C. Law 10 was also
known to him to be a punishable crime under his own domestic law.
As a principle of justice and fair play, the rule in question will
be given full effect. As applied in the field of international law
that principle requires proof before conviction that the accused knew
or should have known that in matters of international concern he was
guilty of participation in a nationally organized system of injustice
and persecution shocking to the moral sense of mankind, and that he
knew or should have known that he would be subject to punishment
if caught. Whether it be considered codification or substantive
legislation, no person who knowingly committed the acts made punishable
by C. C. Law 10 can assert that he did not know that he would be
brought to account for his acts. Notice of intent to punish was
repeatedly given by the only means available in international affairs,
namely, the solemn warning of the governments of the states at war
with Germany. Not only were the defendants warned of swift retribution
by the express declaration of the Allies at Moscow of 30 October
1943. Long prior to the Second World War the principle of personal
responsibility had been recognized.
“The Council of the Conference of Paris of 1919 undertook, with
the aid of the Commission on the Responsibility of the Authors
of the War and on Enforcement of Penalties, to incorporate
in the treaty of peace arrangements for the punishment
of individuals charged with responsibility for certain
offenses.”[580]
That Commission on Responsibility of Authors of the War found that--
“The war was carried on by the central empires, together with
their allies, Turkey and Bulgaria, by barbarous or illegitimate
methods in violation of the established laws and customs of war
and the elementary laws of humanity.”[581]
As its conclusion, the Commission solemnly declared:
“All persons belonging to enemy countries, however high their
position may have been, without distinction of rank, including
Chiefs of States, who have been guilty of offences against the
laws and customs of war or the laws of humanity, are liable to
criminal prosecution.”[582]
The American members of that Commission, though in substantial accord
with the finding, nevertheless expressed a reservation as to “the laws
of humanity.” The express wording of the London Charter and of C. C.
Law 10 constitutes clear evidence of the fact that the position of the
American Government is now in harmony with the Declaration of the Paris
Commission concerning the “laws of humanity.” We quote further from the
report of the Paris Commission:
“Every belligerent has, according to international law, the
power and authority to try the individuals alleged to be guilty
of the crimes of which an enumeration has been given in chapter
II on Violations of the Laws and Customs of War, if such persons
have been taken prisoners or have otherwise fallen into its
power. Each belligerent has, or has power to set up, pursuant to
its own legislation, an appropriate tribunal, military or civil,
for the trial of cases.”[583]
According to the Treaty of Versailles, article 228, the German
Government itself “recognized the right to the Allied and associated
powers to bring before military tribunals persons accused of offenses
against the laws and customs of war. Such persons who might be found
guilty were to be sentenced to punishments ‘laid down by law’.”[584]
Some Germans were, in fact, tried for the commission of such crimes.
The foregoing considerations demonstrate that the principle _nullum
crimen sine lege_, when properly understood and applied, constitutes
no legal or moral barrier to prosecution in the case at bar.
CRIMES AGAINST HUMANITY AS VIOLATIVE
OF INTERNATIONAL LAW
C. C. Law 10 is not limited to the punishment of persons guilty of
violating the laws and customs of war in the narrow sense; furthermore,
it can no longer be said that violations of the laws and customs of
war are the only offenses recognized by common international law. The
force of circumstance, the grim fact of world-wide interdependence, and
the moral pressure of public opinion have resulted in international
recognition that certain crimes against humanity committed by Nazi
authority against German nationals constituted violations not alone of
statute but also of common international law. We quote:
“If a state is unhampered in its activities that affect the
interests of any other, it is due to the circumstance that the
practice of nations has not established that the welfare of the
international society is adversely affected thereby. Hence that
society has not been incited or aroused to endeavor to impose
restraints; and by its law none are imposed. The Covenant of the
League of Nations takes exact cognizance of the situation in
its reference to disputes ‘which arise out of a matter which by
international law is solely within the domestic jurisdiction’
of a party thereto. It is that law which as a product of the
acquiescence of states permits the particular activity of the
individual state to be deemed a domestic one.
“In as much as changing estimates are to be anticipated, and
as the evolution of thought in this regard appears to be
constant and is perhaps now more obvious than at any time since
the United States came into being, the circumstance that at
any given period the solution of a particular question is by
international law deemed to be solely within the control or
jurisdiction of one state, gives frail assurance that it will
always be so regarded.“[585]
“The family of nations is not unconcerned with the life and
experience of the private individual in his relationships with
the state of which he is a national. Evidence of concern has
become increasingly abundant since World War I, and is reflected
in treaties through which that conflict was brought to a close,
particularly in provisions designed to safeguard the racial,
linguistic and religious minorities inhabiting the territories
of certain states, and in the terms of part XIII of the Treaty
of Versailles, of June 28, 1919, in respect to labour, as well
as in article XXIII of that treaty embraced in the Covenant of
the League of Nations.”[586]
“The nature and extent of the latitude accorded a state in the
treatment of its own nationals has been observed elsewhere. It
has been seen that certain forms or degrees of harsh treatment
of such individuals may be deemed to attain an international
significance because of their direct and adverse effect upon
the rights and interests of the outside world. For that reason
it would be unscientific to declare at this day that tyrannical
conduct, or massacres, or religious persecutions are wholly
unrelated to the foreign relations of the territorial sovereign
which is guilty of them. If it can be shown that such acts
are immediately and necessarily injurious to the nationals of
a particular foreign state, grounds for interference by it
may be acknowledged. Again, the society of nations, acting
collectively, may not unreasonably maintain that a state
yielding to such excesses renders itself unfit to perform its
international obligations, especially in so far as they pertain
to the protection of foreign life and property within its
domain.[587] The property of interference obviously demands in
every case a convincing showing that there is in fact a causal
connection between the harsh treatment complained of, and the
outside state that essays to thwart it.
The international concern over the commission of crimes against
humanity has been greatly intensified in recent years. The fact of
such concern is not a recent phenomenon, however. England, France, and
Russia intervened to end the atrocities in the Greco-Turkish warfare in
1827.[588]
President Van Buren, through his Secretary of State, intervened with
the Sultan of Turkey in 1840 in behalf of the persecuted Jews of
Damascus and Rhodes.[589]
The French intervened and by force undertook to check religious
atrocities in Lebanon, in 1861.[590]
Various nations directed protests to the governments of Russia and
Rumania with respect to pogroms and atrocities against Jews. Similar
protests were made to the government of Turkey on behalf of the
persecuted Christian minorities. In 1872 the United States, Germany,
and five other powers protested to Rumania; and in 1915, the German
Government joined in a remonstrance to Turkey on account of similar
persecutions.[591]
In 1902 the American Secretary of State, John Hay, addressed to Rumania
a remonstrance “in the name of humanity” against Jewish persecutions,
saying, “This government cannot be a tacit party to such international
wrongs.”
Again, in connection with the Kishenef [Kishinev] and other massacres
in Russia in 1903, President Theodore Roosevelt stated:
“* * * Nevertheless there are occasional crimes committed on so
vast a scale and of such peculiar horror as to make us doubt
whether it is not our manifest duty to endeavor at least to show
our disapproval of the deed and our sympathy with those who have
suffered by it. The cases must be extreme in which such a course
is justifiable. * * * The cases in which we could interfere by
force of arms as we interfered to put a stop to intolerable
conditions in Cuba are necessarily very few. * * *”[592]
Concerning the American intervention in Cuba in 1898, President
McKinley stated:
“First. In the cause of humanity and to put an end to the
barbarities, bloodshed, starvation, and horrible miseries now
existing there, and which the parties to the conflict are either
unable or unwilling to stop or mitigate. It is no answer to say
this is all in another country, belonging to another nation,
and therefore none of our business. It is specially our duty,
for it is right at our door.”[593]
The same principle was recognized as early as 1878 by a learned German
professor of law, who wrote:
“States are allowed to interfere in the name of international
law if ‘humanity rights’ are violated to the detriment of any
single race.”[594]
Finally, we quote the words of Sir Hartley Shawcross, the British Chief
Prosecutor at the trial of Goering, et al.:
“The rights of humanitarian intervention on behalf of the
rights of man trampled upon by a state in a manner shocking
the sense of mankind has long been considered to form part of
the [recognized] law of nations. Here, too, the Charter merely
develops a preexisting principle.”[595]
We hold that crimes against humanity as defined in C. C. Law 10
must be strictly construed to exclude isolated cases of atrocity or
persecution whether committed by private individuals or by governmental
authority. As we construe it, that section provides for punishment of
crimes committed against German nationals only where there is proof
of conscious participation in systematic government organized or
approved procedures amounting to atrocities and offenses of the kind
specified in the act and committed against populations or amounting to
persecutions on political, racial, or religious grounds.
Thus, the statute is limited by construction to the type of criminal
activity which prior to 1939 was and still is a matter of international
concern. Whether or not such atrocities constitute technical violations
of laws and customs of war, they were acts of such scope and
malevolence, and they so clearly imperiled the peace of the world that
they must be deemed to have become violations of international law.
This principle was recognized although it was misapplied by the Third
Reich. Hitler expressly justified his early acts of aggression against
Czechoslovakia on the ground that the alleged persecution of racial
Germans by the government of that country was a matter of international
concern warranting intervention by Germany. Organized Czechoslovakian
persecution of racial Germans in Sudetenland was a fiction supported
by “framed” incidents, but the principle invoked by Hitler was the one
which we have recognized, namely, that government organized racial
persecutions are violations of international law.
As the prime illustration of a crime against humanity under C. C.
Law 10, which by reason of its magnitude and its international
repercussions has been recognized as a violation of common
international law, we cite “genocide” which will shortly receive our
full consideration. A resolution recently adopted by the General
Assembly of the United Nations is in part as follows:
“Genocide is a denial of the right of existence of entire
human groups, as homicide is a denial of the right to live of
individual human beings; such denial of the right of existence
shocks the conscience of mankind, results in great losses
to humanity in the form of cultural and other contributions
represented by these human groups, and is contrary to moral law
and to the spirit and aims of the United Nations.
“Many instances of such crimes of genocide have occurred when
racial, religious, political, and other groups have been
destroyed, entirely or in part.
“The punishment of the crime of genocide is a matter of
international concern.
“The General Assembly therefore--
“Affirms that genocide is a crime under international law which
the civilized world condemns, and for the commission of which
principals and accomplices--whether private individuals, public
officials, or statesmen, and whether the crime is committed
on religious, racial, political or any other grounds--are
punishable; * * *.”[596]
The General Assembly is not an international legislature, but it is
the most authoritative organ in existence for the interpretation of
world opinion. Its recognition of genocide as an international crime is
persuasive evidence of the fact. We approve and adopt its conclusions.
Whether the crime against humanity is the product of statute or of
common international law, or, as we believe, of both, we find no
injustice to persons tried for such crimes. They are chargeable with
knowledge that such acts were wrong and were punishable when committed.
The defendants contend that they should not be found guilty because
they acted within the authority and by the command of German laws and
decrees. Concerning crimes against humanity, C. C. Law 10 provides for
punishment whether or not the acts were in violation of the domestic
laws of the country where perpetrated (C. C. Law 10, art. II, par.
1(_c_)). That enactment also provides “the fact that any person
acted pursuant to the order of his Government or of a superior does not
free him from responsibility for a crime, but may be considered in
mitigation.” (C. C. Law 10, art. II, par. 4(_b_).)
The foregoing provisions constitute a sufficient, but not the
entire, answer to the contention of the defendants. The argument
that compliance with German law is a defense to the charge rests
on a misconception of the basic theory which supports our entire
proceedings. The Nuernberg Tribunals are not German courts. They are
not enforcing German law. The charges are not based on violation
by the defendants of German law. On the contrary, the jurisdiction
of this Tribunal rests on international authority. It enforces the
law as declared by the IMT Charter and C. C. Law 10, and within the
limitations on the power conferred, it enforces international law as
superior in authority to any German statute or decree. It is true,
as defendants contend, that German courts under the Third Reich
were required to follow German law (i.e., the expressed will of
Hitler) even when it was contrary to international law. But no such
limitation can be applied to this Tribunal. Here we have the paramount
substantive law, plus a Tribunal authorized and required to apply it
notwithstanding the inconsistent provisions of German local law. The
very essence of the prosecution case is that the laws, the Hitlerian
decrees and the Draconic, corrupt, and perverted Nazi judicial system
themselves constituted the substance of war crimes and crimes against
humanity and that participation in the enactment and enforcement
of them amounts to complicity in crime. We have pointed out that
governmental participation is a material element of the crime against
humanity. Only when official organs of sovereignty participated in
atrocities and persecutions did those crimes assume international
proportions. It can scarcely be said that governmental participation,
the proof of which is necessary for conviction, can also be a defense
to the charge.
Frank recognition of the following facts is essential. The
jurisdictional enactments of the Control Council, the form of the
indictment, and the judicial procedure prescribed for this Tribunal
are not governed by the familiar rules of American criminal law and
procedure. This Tribunal, although composed of American judges schooled
in the system and rules of the common law, is sitting by virtue of
international authority and can carry with it only the broad principles
of justice and fair play which underlie all civilized concepts of law
and procedure.
No defendant is specifically charged in the indictment with the
murder or abuse of any particular person. If he were, the indictment
would, no doubt, name the alleged victim. Simple murder and isolated
instances of atrocities do not constitute the gravamen of the charge.
Defendants are charged with crimes of such immensity that mere
specific instances of criminality appear insignificant by comparison.
The charge, in brief, is that of conscious participation in a nation
wide government-organized system of cruelty and injustice, in violation
of the laws of war and of humanity, and perpetrated in the name of
law by the authority of the Ministry of Justice, and through the
instrumentality of the courts. The dagger of the assassin was concealed
beneath the robe of the jurist. The record is replete with evidence
of specific criminal acts, but they are not the crimes charged in the
indictment. They constitute evidence of the intentional participation
of the defendants and serve as illustrations of the nature and effect
of the greater crimes charged in the indictment. Thus it is that the
apparent generality of the indictment was not only necessary but
proper. No indictment couched in specific terms and in the manner of
the common law could have encompassed within practicable limits the
generality of the offense with which these defendants stand charged.
The prosecution has introduced evidence concerning acts which occurred
before the outbreak of the war in 1939. Some such acts are relevant
upon the charges contained in counts two, three, and four, but as
stated by the prosecution, “None of these acts is charged as an
independent offense in this particular indictment.” We direct our
consideration to the issue of guilt or innocence after the outbreak of
the war in accordance with the specific limitations of time set forth
in counts two, three, and four of the indictment. In measuring the
conduct of the individual defendants by the standards of C. C. Law 10,
we are also to be guided by article II, paragraph 2 of that law, which
provides that a person “is deemed to have committed a crime as defined
in paragraph 1 of this article, if he was (_a_) a principal or
(_b_) was an accessory to the commission of any such crime or
ordered or abetted the same or (_c_) took a consenting part
therein or (_d_) was connected with plans or enterprises involving
its commission or (_e_) was a member of any organization or group
connected with the commission of any such crime * * *.”
Before considering the progressive degeneration of the judicial system
under Nazi rule, it should be observed that at least on paper the
Germans had developed, under the Weimar republic, a civilized and
enlightened system of jurisprudence. A few illustrations will suffice.
The power of judicial appointment and the independence of the judges
was jealously guarded by the individual states within the Reich. The
following acts were declared criminal under the provisions of the
German criminal code:
The acceptance of bribes or inducements by a judge, offered for
the purpose of influencing his decision--Section 334.
Action by an official, who, in the conduct or decision of a
case, deliberately makes himself guilty of diverting the law to
the disadvantage of one of the parties--Section 336.
The securing of a confession by duress--Section 343.
The act of an official who, in the exercise of his duty in a
criminal proceeding, knowingly causes any person to escape
penalty provided by law--Section 346.
Action by a superior officer who intentionally induces * * * his
subordinate to commit a punishable act in office, or knowingly
connives at such a punishable offense on the part of his
subordinate--Section 357.
In the Weimar constitution it was provided that “the generally accepted
rules of international law are to be considered as binding, integral
parts of the law of the German Reich.” (Art. 4.)
The Constitution also guaranteed to all Germans--
Equality before the law (Art. 109);
Citizenship, the right of travel and emigration (Arts. 110, 111, and 112);
Freedom of person (Art. 114);
Freedom of speech, assembly, and association (Arts. 118, 123, and 124);
Right of just compensation for property expropriated (Art. 153);
Right of inheritance (Art. 154);
There were, however, in the Weimar constitution the germs of the
disease from which it died. In article 48 of the constitution it was
provided:
“The Reich President may, if the public safety and order of the
German Reich are considerably disturbed or endangered, take such
measures as are necessary to restore public safety and order. If
necessary, he may intervene with the help of the armed forces.
For this purpose he may temporarily suspend, either partially or
wholly, the fundamental rights established in articles 114, 115,
117, 118, 123, 124, and 153.”
A review of the evidence will disclose that substantially every
principle of justice which was enunciated in the above-mentioned laws
and constitutional provisions was after 1933 violated by the Hitler
regime.
The first step in the march toward absolutism was of necessity the
assumption and consolidation of power. It was deemed essential that
the government be authorized to make laws by decree, unhampered by
the limitations of the Weimar republic, by the Reichstag, or by
the independent action of the several German States (Laender). To
accomplish this end on 28 February 1933 a decree was promulgated over
the signature of President von Hindenburg, Chancellor Hitler, Reich
Minister of the Interior Frick, and Reich Minister of Justice Guertner.
Briefly stated, this decree expressly suspended the provisions of the
Weimar constitution guaranteeing personal liberty, free speech, press,
assembly, association, privacy of communication, freedom of search, and
inviolability of property rights. The decree further provided that the
Reich government might, to restore public security, temporarily take
over the powers of the highest State authority. It was declared in the
preamble that the decree was passed “in virtue of article 48 (2) of
the Weimar constitution.” This is the article to which we previously
referred and which authorized the Reichspraesident to suspend the very
provisions which were in fact stricken down by the Hitler decree of 28
February. The decree was reinforced on 24 March 1933 by the act of an
intimidated Reichstag. The enactment was subtly drawn to accomplish a
double purpose. It provided that “laws decreed by the government may
deviate from the constitution”, but the act did not stop there; it also
provided that “laws of the Reich can be decreed by the government apart
from the procedure provided by the Constitution.” We quote in part--
“Article 1.--Laws of the Reich can be decreed, apart from the
procedure provided by the constitution of the Reich, also by the
government of the Reich. This also applies to the laws mentioned
in articles 85, paragraph 2, and 87 of the constitution of the
Reich.
“Article 2.--The laws decreed by the government of the Reich may
deviate from the constitution of the Reich as far as they do not
concern the institution of the Reichstag and the Reich council
as such. The rights of the Reichspraesident remain untouched.
“Article 3.--Articles 68 through 77 of the constitution of the
Reich do not apply to laws decreed by the government of the
Reich.”
Though the Enabling Act expressly repealed only a small portion of the
constitution, nevertheless that portion which was repealed cleared the
procedural way for the nullification of the rest if and when decrees
should be promulgated by “the government.” On 14 July 1933 a law was
passed declaring the Nationalsozialistische Deutsche Arbeiterpartei
(NSDAP) to be the only political party and making it a crime to
maintain or form any other political party.[597] Thus, it was made
doubly sure that any legislation thereafter enacted by the Reichstag
would be in harmony with the will of the government.
Although the process by which the Hitler regime came into power was
tainted with illegality and duress, nevertheless the power thus
seized was later consolidated and the regime thereafter did receive
the organized support of the German people and recognition by foreign
powers. On 30 January 1934, more than 10 months after the enactment
of the enabling act, and subsequent to the Reichstag election of
12 November 1933, the Reichstag passed an act by unanimous vote
providing that “the sovereign powers of the Laender are transferred
to the Reich,” and further providing that “the Reich government may
issue new constitutional laws.” The act was regularly signed by Reich
President von Hindenburg, and by Reich Chancellor Hitler, and Minister
Frick.[598] The provisions of the Enabling Act were renewed by acts of
the Reichstag on 30 January 1937 and again on 30 January 1939.
On 14 June 1942, Dr. Lammers, Reich Minister and Chief of the Reich
Chancellery, stated that they would “stress the fact that the Fuehrer
himself and the Reich cabinet should not be eliminated from the powers
of legislation.”
The conduct of the defendants must be seen in a context of preparation
for aggressive war, and must be interpreted as within the framework
of the criminal law and judicial system of the Third Reich. We shall,
therefore, next consider the legal and judicial process by which the
entire judicial system was transformed into a tool for the propagation
of the National Socialist ideology, the extermination of opposition
thereto, and the advancement of plans for aggressive war and world
conquest. Though the overt acts with which defendants are charged
occurred after September 1939, the evidence now to be considered will
make clear the conditions under which the defendants acted and will
show knowledge, intent, and motive on their part, for in the period of
preparation some of the defendants played a leading part in molding the
judicial system which they later employed.
Beginning in 1933, there developed side by side two processes by which
the Ministry of Justice and the courts were equipped for terroristic
functions in support of the Nazi regime. By the first, the power
of life and death was ever more broadly vested in the courts. By
the second, the penal laws were extended in such inconclusive and
indefinite terms as to vest in the judges the widest discretion in the
choice of law to be applied, and in the construction of the chosen law
in any given case. In 1933, by the law for the “Protection against
Violent Political Acts,” the death sentence was authorized, though not
required, as to a number of crimes “whenever milder penalty has been
prescribed hitherto.”[599]
On 24 April 1934, the definition of high treason was greatly expanded
and the death sentence was authorized, though not required, in numerous
instances. The manner in which this law was applied renders it
all-important. The following provisions, among others, illustrate the
scope of the amended law and the discretionary power of the judge:
“83. Whoever publicly incites to or solicits an undertaking of
high treason shall be punished by confinement in a penitentiary
not to exceed 10 years.
“Whoever prepares an undertaking of high treason in any other
way shall be punished in like manner.
“The death penalty, or confinement in a penitentiary for life,
or for not less than 2 years, shall be inflicted:
“(1) if the act was directed toward establishing or maintaining
an organized combination for the preparation of high treason or
* * * * * * *
“(3) if the act was directed toward influencing the masses by
making or distributing writings, recordings, or pictures, or by
the installation of wireless telegraph or telephone, or
“(4) if the act was committed abroad or was committed in such
a manner that the offender undertook to import writings,
recordings, or pictures from abroad or for the purpose of
distribution within the country.”[600]
On 20 December 1934, the government promulgated the following enactment
“Law on Treacherous Acts against State and Party and for the Protection
of Party Uniforms,” which provided in part as follows:
“Chapter 1. Article 1. (1) Unless heavier punishment is
sanctioned under the authority of a law previously established,
imprisonment not to exceed 2 years shall be imposed upon anybody
deliberately making false or grievous statements, fit to injure
the welfare or the prestige of the government of the Reich, the
National Socialist Workers’ Party, or its agencies. If such
statements are made or circulated in public, imprisonment for
not less than 3 months shall be imposed.
“Article 2. (1) Anyone who makes or circulates statements
proving a malicious, baiting or low-minded attitude toward
leading personalities of the State or the NSDAP, or toward
orders issued by them or toward institutions created by
them--fit to undermine the confidence of the people in its
political leadership--shall be punished with imprisonment.
“(2) Statements of this kind which are not made in public shall
warrant the same punishment--provided the offender figures on
his statements eventually being circulated in public.”
A decisive step was taken by the “Law to Change the Penal Code,” which
was promulgated on 28 June 1935 by Adolf Hitler as Fuehrer and Reich
Chancellor, and by Dr. Guertner as Reich Minister of Justice. Article 2
of that enactment is as follows:
“Article 2. Whoever commits an act which the law declares
as punishable or which deserves punishment according to the
fundamental idea of a penal law and the sound concept of
the people, shall be punished. If no specific penal law can
be directly applied to this act, then it shall be punished
according to the law whose underlying principle can be most
readily applied to the act.”
In substance, this edict constituted a complete repudiation of the rule
that criminal statutes should be definite and certain and vested in the
judge a wide discretion in which Party political ideology and influence
were substituted for the control of law as the guide to judicial
decision.