“Whoever publicly, or as a German staying abroad, causes serious
danger to the reputation of the German nation by an untrue or
grossly inaccurate statement of a factual nature, shall be
punished by confinement in a penitentiary.”
The act was amended on 20 September 1944 as follows:
“In especially serious cases a German may be punished by
death.”[601]
By the act of 28 June 1935 it was provided:
“Whoever publicly profanes the German National Socialist Labor
Party, its subdivisions, symbols, standards, and banners, its
insignia or decorations, or maliciously and with premeditation
exposes them to contempt shall be punished by imprisonment.
“The offense shall be prosecuted only upon order of the Reich
Minister of Justice who shall issue such order in agreement with
the Fuehrer’s deputy.”[602]
By the law of 28 June 1935 it was provided:
“If the main proceedings show that the defendant committed an
act which deserves punishment according to the common sense of
the people but which is not declared punishable by the law, then
the court must investigate whether the underlying principle of a
penal law applies to this act and whether justice can be helped
to triumph by the proper application of this penal law. (Article
2 of the Penal Code.)”[603]
A decree of 1 December 1936 provides in part as follows:
“Section 1. (1) A German citizen who consciously and
unscrupulously, for his own gain or for other low motives,
contrary to legal provisions smuggles property abroad or leaves
property abroad and thus inflicts serious damage to German
economy is to be punished by death. His property will be
confiscated. The perpetrator is also punishable, if he commits
the misdeed abroad.”[604]
On 17 August 1938, more than a year before the invasion of Poland, a
decree was promulgated against undermining German military efficiency.
It provided in part:
“Section 5. (1) The following shall be guilty of undermining
German military efficiency, and shall be punished by death:
“1. Whoever openly solicits or incites others to evade the
fulfillment of compulsory military service in the German or an
allied armed force, or otherwise openly seeks to paralyze or
undermine the will of the German people or an allied nation to
self-assertion by bearing arms; * * *.”[605]
Under this law the death sentence was mandatory.
By the decree of 1 September 1939 the ears of the German people were
stopped lest they hear the truth:
“Section 1.--Deliberate listening to foreign stations is
prohibited. Violations are punishable by hard labor. In less
severe cases there can be a sentence of imprisonment. The radio
receivers used will be confiscated.
“Section 2.--Whoever deliberately spreads news from foreign
radio stations which is designed to undermine German military
efficiency will be punished by hard labor and in particularly
severe cases by death.”[606]
It is important to note that discretion as to penalty was vested in the
court.
On 5 September 1939, by the Decree Against Public Enemies, it was
provided that looting in liberated territory may be punished by
hanging. The following additional provisions are of importance because
of the arbitrary manner in which the instrument was construed and
applied by the courts. The provisions are as follows:
“Section 2.--Whoever commits a crime or offense against life,
limb or property, taking advantage of air raid protection
measures, is punishable by hard labor of up to 15 years or for
life, and in particularly severe cases punishable by death.
“Section 3.--Whoever commits arson or any other crime of public
danger, thereby undermining German military efficiency, will be
punished by death.
“Section 4.--Whoever commits a criminal act exploiting the
extraordinary conditions caused by war is punishable beyond the
regular punishment limits with hard labor of up to 15 years
or for life, or is punishable by death if the sound common
sense of the people requires it on account of the crime being
particularly despicable.”[607]
On 25 November 1939 the death penalty was authorized as punishment for
intentionally or negligently causing damage to war materials and the
like, if it endangers the fighting power of the German armed forces.
The death penalty was also authorized in case of anyone who “disturbs
or imperils” the ordinary function of an enterprise essential to the
defense of the Reich or to the supply of the population.[608]
On 5 December 1939 the death penalty was authorized for various crimes
of violence and it was provided that “this decree is also applicable to
crimes committed before it became valid”.
On 4 September 1941 the Criminal Code was supplemented and changed to
provide the death penalty for dangerous habitual criminals and sex
criminals “if necessitated for the protection of the national community
or by the desire for just expiation”. The decree was signed by Adolf
Hitler and by the defendant Dr. Schlegelberger in charge of the Reich
Ministry of Justice.
By the decree of 5 May 1944, the judges were substantially freed from
all restrictions as to the penalty to be invoked in criminal cases.
That decree reads as follows:
“With regard to all offenders who are guilty of causing serious
prejudice or seriously endangering the conduct of war, or the
security of the Reich, through an intentional criminal act, a
penalty may be imposed in excess of the regular penal limits
up to the statutory maximum for a given type of punishment, or
hard labor for a term or for life, or death, if the regular
statutory maximum limits are insufficient for expiation of the
act according to the sentiment of the people. The same shall
also apply to all offenses committed by negligence by which
one made himself guilty of a particularly grave prejudice or a
particularly serious danger to the conduct of war, or to the
security of the Reich.”[609]
On 20 August 1942 Hitler issued the famous decree which marks the
culmination of his systematic campaign to change the German judicial
system into an instrumentality of the NSDAP. The decree was as follows:
“A strong administration of justice is necessary for the
fulfillment of the tasks of the great German Reich. Therefore,
I commission and empower the Reich Minister of Justice to
establish a National Socialist Administration of Justice and to
take all necessary measures in accordance with my directives
and instructions made in agreement with the Reich Minister and
Chief of the Reich Chancellery and the Leader of the Party
Chancellery. He can hereby deviate from any existing law.”[610]
The statutes which we have reviewed were merely steps in the process
of increased severity of the criminal law and in the development of a
loose concept concerning the definition of crime. The latter concept
was especially evident in the statutes concerning the “sound sentiment
of the people”, crime by analogy, and undermining the military
efficiency of the nation. In place of the control of law there was
substituted the control of National Socialist ideology as a guide to
judicial action.
The Draconic laws to which we have referred were upon their face,
of general applicability. The discriminations on political, racial,
and religious grounds are to be found not in the text, but in the
application of the text.
But the Nazis were not content with statutes of a nondiscriminatory
nature even in view of the discriminatory manner in which they were
enforced. Coincidentally with the development of these laws and
decrees there arose another body of substantive law which expressly
discriminated against minority groups both within and without the
Reich, and which formed the basis for racial, religious, and political
persecution on a vast scale. On 7 April 1933, a decree by the Reich
government provided in part that--
“Article 2. Persons who, according to the Law for the
Restoration of the Professional Civil Service of 7 April
1933,[611] are of non-Aryan descent, may be refused permission
to practice law, even if there exists none of the reasons
enumerated in the Regulations for Lawyers. The same rule applies
in cases, as where a lawyer described in section 1, clause 2,
wishes to be admitted to another court. * * *”
“Article 3. Persons who are active in the Communistic sense are
excluded from the admission to the bar. Admissions already given
have to be revoked.”[612]
The act was implemented by the power of injunction. The fact that the
license to practice law had been canceled was also stated as a ground
for the cancellation of employment contracts and office leases.
On 15 September 1935, the Reichstag enacted the “Law for the Protection
of German Blood and Honor.” We quote--
“Article 1. (1) Marriages of Jews and citizens of German or
related blood are prohibited. Marriages which are concluded
nevertheless, are void even if they were concluded abroad in
order to circumvent this law.
“(2) Only the district attorney can sue for nullification of
marriage.
“Article 2. Sexual intercourse (except in marriage) between
Jews and German nationals of German or German-related blood is
forbidden.”
By other laws, as amended from time to time, non-Aryans were almost
completely expelled from public service. The number of non-Aryans in
schools and higher institutions of learning was restricted.[613] Jews
were excluded from the homestead law concerning peasantry.[614] Jewish
religious communities were regulated.[615] Jews were excluded from
certain industrial enterprises[616] and their rights as tenants were
restricted.[617]
By the act of 2 November 1942 it was provided--
“Section 1. A Jew who has his domicile abroad cannot be a
citizen of the Protectorate of Bohemia and Moravia. Domicile
abroad is established if a Jew was abroad under circumstances
which indicated that his tenure there is not of a temporary
nature.
“Section 2. A Jew loses his citizenship status in the
Protectorate if--
“(a) As of the effective date of this decree, he has an
established domicile abroad;
“(b) At a date subsequent to the effective date of this decree,
he establishes a domicile abroad.”
And by act of 25 November 1941 it was provided--
“Section 3. (1) The property of the Jew who is losing his
nationality under this amendment shall be forfeited for the
benefit of the Reich at the moment he loses his nationality. The
Reich further confiscates the property of Jews who are stateless
at the moment this amendment becomes effective, and who were
last of German nationality, if they have or take up their
regular residence abroad.
(2) The property thus forfeited shall serve the furthering of
all purposes in connection with the solution of the Jewish
question.
* * * * * * *
“Section 8. (1) It is for the chief of the Security Police and
the SD (of Reich Leader SS) to decide whether the conditions for
confiscation of property are given.
(2) The administration and liquidation of the forfeited property
is up to the Chief of the Regional Finance Office, Berlin.”[618]
The decree of 4 December 1941 “concerning the organization and criminal
jurisdiction against Poles and Jews in the Incorporated Eastern
Territories”,[619] marks perhaps the extreme limit to which the Nazi
government carried its statutory and decretal persecution of racial
and religious minorities, but it also introduces another element of
great importance. We refer to the extension of German laws to occupied
territory, to purportedly annexed territory, and to territory of the
so-called protectorates. The decree provides--
“(1) Poles and Jews in the Incorporated Eastern Territories
are to conduct themselves in conformity with the German laws
and with the regulations introduced for them by the German
authorities. They are to abstain from any conduct liable to
prejudice the sovereignty of the German Reich or the prestige of
the German people.
“(2) The death penalty shall be imposed on any Pole or Jew if he
commits an act of violence against a German on account of his
being of German blood.
“(3) A Pole or Jew shall be sentenced to death, or in less
serious cases to imprisonment, if he manifests anti-German
sentiments by malicious activities or incitement, particularly
by making anti-German utterances, or by removing or defacing
official notices of German authorities or offices, or if he,
by his conduct, lowers or prejudices the prestige or the well
being of the German Reich or the German people.
“(4) The death penalty, or in less serious cases imprisonment,
shall be imposed on any Jew or Pole:
* * * * * * *
“3. If he urges or incites to disobedience to any decree or
regulation issued by the German authorities;
“4. If he conspires to commit an act punishable under paragraphs
(2), (3) and (4), subsections 1 to 3, _or if he seriously
contemplates the carrying out of such an act_, or if he
offers himself to commit such an act, or accepts such an offer,
or if he obtains credible information of such act, or of the
intention of committing it, and fails to notify the authorities
or any person threatened thereby at a time when danger can still
be averted. [Emphasis added.]
“II. Punishment shall also be imposed on Poles or Jews if they
act contrary to German criminal law or commit any act for which
they deserve punishment in accordance with the fundamental
principles of German criminal law and in view of the interests
of the State in the Incorporated Eastern Territories.
“III. * * * (2) The death sentence shall be imposed in all cases
where it is prescribed by the law. Moreover, in these cases
where the law does not provide for the death sentence, it may
and shall be imposed if the offense points to particularly grave
for other reasons; the death sentence may also be passed upon
juvenile offenders.
* * * * * * *
“XIV. (1) The provisions contained in sections I-IV of this
decree apply also to those Poles and Jews who on 1 September
1939 were domiciled or had their residence within the territory
of the former Polish State, and who committed criminal offenses
in any part of the German Reich other than the Incorporated
Eastern Territories. * * *”
It will be observed that the title of the foregoing act refers to
“Poles and Jews in the Incorporated Eastern Territories”, but Article
XIV makes the decree also applicable to acts by Poles and Jews within
any part of the German Reich, if on 1 September 1939 they were
domiciled within the former Polish State. This section was repeatedly
employed by the courts in the prosecution of Poles.
There was promulgated a thirteenth regulation under the Reich
citizenship law which illustrates the increasing severity by means of
which the government was attempting to reach a “solution of the Jewish
problem” under the impulsion of the progressively adverse military
situation. This regulation, under date of 1 July 1943, provides:
“Article 1. (1) Criminal actions committed by Jews shall be
punished by the police.
“(2) The provision of the Polish penal laws of 4 December 1941
(RGBl. I, p. 759) shall no longer apply to Jews.
“Article 2. (1) The property of a Jew shall be confiscated by
the Reich after his death.
* * * * * * *
“Article 3. The Reich Minister of the Interior with the
concurrence of the participating higher authorities of the Reich
shall issue the legal and administrative provisions for the
administration and enforcement of this regulation. In doing so
he shall determine to what extent the provisions shall apply to
Jewish nationals of foreign countries.”
By Article 4 it was provided that in the Protectorate of Bohemia and
Moravia the regulation shall apply where German administration and
German courts have jurisdiction. (1943 RGBl. I, p. 372.)
Not only did the Nazis enact special discriminatory laws against Poles
and Jews and political minorities; they also enacted discriminatory
laws in favor of members of the Party. By the decree of 17 October
1939, it was provided that “for the area of the Greater German Reich,
special jurisdiction in penal matters will be established for--
“1. Professional members of the Reich leadership of the SS.
“2. Professional members of the staffs of those Higher SS and
Police Chiefs who possess the authority of issuing orders in
those units which have been specially designated under numbers 3
to 6 below:
“3. Members of the SS units for special purposes;
“4. Members of the SS Death Head units (including their
reinforcements);
“5. Members of the SS Junker schools;
“6. Members of police units for special purposes.”
On 12 March 1938, the German Army invaded Austria. The methods
employed “were those of an aggressor.”[620] On the next day Austria
was incorporated in the German Reich. As a result of the Munich pact
of 29 September 1938, and of threatened invasion, Czechoslovakia
was compelled to cede the Sudetenland to Germany,[621] and on 16
March 1939, Bohemia and Moravia were incorporated in the Reich as a
protectorate. On 1 September 1939, Poland was invaded and thereafter
occupied and, later on, Germany, by military force, occupied all or
portions of Denmark, Norway, Belgium, the Netherlands, Luxembourg,
Yugoslavia, Greece, and Russia. These occupations and annexations
furnished the motive for an extension into many areas outside the old
Reich of the draconic and discriminatory German laws which had been
put in force within the old Reich. By the act of 14 April 1939, it was
provided:
“Article II, section 6 (2). Persons who are not German nationals
are subject to German jurisdiction for offenses--
“(a) to which German criminal law applies,
“(b) if they are prosecuted under a private action provided the
action has been brought by a German national.
* * * * * * *
“Section 7. German jurisdiction in the Protectorate of Bohemia
and Moravia excludes jurisdiction by the courts of the
Protectorate unless otherwise provided.”
The decree of 5 September 1939 against public enemies, _supra_,
was made “applicable in the Protectorate of Bohemia and Moravia and
also for those persons who are not German citizens.”
By a decree of 25 November 1939 concerning damage to war material, it
is provided in part:
“Section 2. Whoever disturbs or imperils the ordinary function
of an enterprise essential to the defense of the Reich or to
the supply of the population in that he made a thing serving
the enterprise completely or partially unusable or put it out
of commission, shall be punished by hard labor or in especially
serious cases by death.
* * * * * * *
“Section 6. In the Protectorate of Bohemia and Moravia the
provisions of sections 1, 2, * * * and 5 of this decree are
valid also for persons who are not nationals of the German
state.”
The “decree on the extension of the application of criminal law of 6
May 1940” provided in part:
[Article I, section 4] “German criminal law will be applied
to the following crimes committed by a foreigner abroad,
independently of the laws of the place of commitment:
“1. Crimes committed while holding a German governmental office,
as a German soldier or as member of the Reich Labor Service
(Reichsarbeitsdienst) or committed against a holder of a German
office of the State or the Party, against a German soldier or a
member of the Reich Labor Service, while on duty or relating to
his duty;
“2. Actions constituting treason or high treason against
Germany; * * *.”
* * * * * * *
[Article II] “Paragraph 153. * * * A crime committed by a
foreigner abroad will be prosecuted by the public prosecutor
only if so demanded by the Reich Ministry of Justice. The
public prosecutor may abstain from the prosecution of a crime
if the same crime has already been punished abroad and if the
punishment has been carried out and the sentence to be expected
in Germany would, after deducting the time served abroad, not be
heavy.”
The act of 25 November 1941, _supra_, concerning the confiscation
of Jewish property was made applicable in the Protectorate of Bohemia
and Moravia and in the Incorporated Eastern Territories.[622] Of
greatest significance in this category was the law against Poles and
Jews already cited in another connection. The thirteenth regulation
under the Reich Citizenship Law of 1 July 1943, _supra_, was also
made applicable within the Protectorate of Bohemia and Moravia “where
German administration and German courts have jurisdiction”. It was also
made applicable to Jews “who are citizens of the Protectorate”. (Sec.
4.)
Thus far we have taken note of the substantive criminal law and its
extension to occupied and annexed territories, but these laws were not
self-executing. For the accomplishment of the ends of aggressive war,
the elimination of political opposition and the extermination of Jews
in all of Europe, it was deemed necessary to harness the Ministry of
Justice and the entire court system for the enforcement of the penal
laws in accordance with National Socialist ideology.
By decree of 21 March 1933 Special Courts were established within
the district of every court of appeal. Their jurisdiction was
rapidly extended. It included the trial of cases arising under the
decree relating to the defense against insidious attacks against the
government of the national revolution.
The decree of 21 March 1933 provided in part:
“Section 3. (1) The Special Courts shall also be competent
if a crime within their jurisdiction represents also another
punishable deed.
“(2) If another punishable act is factually connected with
a crime within the jurisdiction of the Special Courts, the
proceedings on that other punishable deed against delinquents
and participants may be referred to the Special Court by way of
connection.”
* * * * * * *
“Section 9. (1) No hearings relating to the warrant of arrest
will be held.
* * * * * * *
“Section 10. For the defendant who has not yet chosen counsel,
counsel has to be appointed at the time when the date for the
trial is fixed.
“Section 11. A preliminary court investigation will not take
place. * * *
“Section 12. * * * (4) The term of the summons (section 217 of
the Code of Criminal Procedure) is 3 days. It can be shortened
to 24 hours.
“Section 13. The Special Court can refuse any offer of evidence,
if the court has come to the conviction that the evidence is not
necessary for clearing up the case.
“Section 14. The Special Court has to pass sentence even if
the trial results in showing the act of which the defendant is
accused, as not being under the jurisdiction of the Special
Court. This does not apply if the act constitutes a crime or
offense under the jurisdiction of the Supreme Court or the
courts of appeal; in this case the Special Court has to proceed
according to section 270, paragraph 1–2 of the Code of Criminal
Procedure.
“Section 16. (1) There is no legal appeal against decisions of
the Special Courts.
“(2) Applications for a reopening of the trial are to be
decided upon by the criminal chamber of the district court. The
reopening of the trial in favor of the defendant will also take
place if there are circumstances which point to the necessity of
reexamining the case in the ordinary procedure. The stipulation
of section 363 of the Code of Criminal Procedure remains
unaffected. If the application for the reopening of the trial
is justified, the trial will be ordered to take place before
the competent ordinary court.”[623]
Special Courts were also vested with jurisdiction under the law for the
protection against violent political acts of 4 April 1933 under which
the death penalty was authorized.[624]
On 1 September 1939 the Special Courts were given jurisdiction under
the law concerning listeners to foreign radio broadcasts, and the death
sentence was authorized in certain cases.[625] On 5 September 1939
jurisdiction of the Special Court was extended to cases of looting, and
the death sentence was authorized. Jurisdiction was also extended to
cases of criminal acts exploiting the extraordinary conditions caused
by the war. That act further provided:
[Article 5] “In all trials by Special Courts the verdict must
be pronounced at once without observation of time limitations
if the perpetrator is caught redhanded or if guilt is otherwise
obvious”.[626]
On 21 February 1940 the Special Courts were expressly given
jurisdiction concerning--
[Article 13] “1. Crime and offenses committed under the law of
20 December 1934 concerning treacherous attacks against State
and Party, and concerning protection of Party uniforms;
“2. Crimes under section 239a of the Reich Criminal Code and
under the law of 22 June 1938 concerning highway robbery by
means of highway traps;
“3. Crimes under the decree [1 September 1939] concerning
extraordinary measures in regard to radio;
“4. Crimes and offenses under the war economy decree of 4
September 1939;
“5. Crimes under section 1 of the decree of 5 September 1939
against public enemies;
“6. Crimes under sections 1 and 2 of the decree of 5 December
1939 against violent criminals.”[627]
The decree further provided:
[Article 14] (1) “The Special Court also has jurisdiction over
other crimes and offenses, if the prosecution is of the opinion
that immediate sentencing by the Special Court is indicated by
the gravity or the outrageousness of the act, on account of the
thereby-aroused public sentiment or in consideration of serious
threat to public order or security.”
[Article 23] “(1) In all proceedings before a Special Court the
sentence must be passed immediately without observation of any
reprieves, if the delinquent was caught in the very act or if
his guilt is self-evident otherwise.
“(2) In all other cases the term of summons shall be 24 hours.
(Articles 217, 218 of the Reich Code of Criminal Procedure
(Reichsstrafprozessordnung)).”
[Article 25] “(1) The Special Court must hand down a decision
in a case, even if the trial shows that the act with which the
accused is charged is of such a nature that the Special Court
is not competent to deal with it. If, however, the trial shows
that the act comes under the jurisdiction of the People’s Court,
the Special Court refers the matter to the latter court, by
decision; Article 270, section 2, of the Reich Code of Criminal
Procedure is applicable accordingly.
[Article 26] “(1) There is no legal appeal against a decision of
the Special Court.”
[Article 34] “The chief public prosecutor may lodge a petition
for nullification with the Supreme Court (Reichsgericht) against
a final judgment of a judge of the criminal court of the Special
Court, within 1 year from the date of its becoming final, if the
judgment is not justified because of an erroneous application of
law on the established facts.
[Article 35] “(1) The petition for nullification must be
submitted in writing to the Supreme Court. This court will
decide thereon by judgment based on a trial. With the consent of
the chief public prosecutor it can also reach a decision without
trial.
“2. The Supreme Court may order a postponement or an
interruption of the execution. It may order arrest or internment
even prior to the decision on the petition for nullification.
The criminal senate (Strafsenat) composed of three members
including the president, will decide thereon without a trial,
with reservations as to the regulations of article 124, section
3 of the Reich Code of Criminal Procedure.”[628]
The speed with which the Special Courts acted is of significance. In
view of the congested dockets of the Special Courts, Freisler, acting
for the Minister of Justice, ordered, “a Special Court is, as a rule,
to be considered overloaded if a monthly average of more than forty new
indictments has been filed with it.”
On 4 December 1941, in the law against Poles and Jews, _supra_, it
was provided:
“IV. The State prosecutor shall prosecute a Pole or a Jew if he
considers that punishment is in the public interest.
“V. (1) Poles and Jews shall be tried by a Special Court or by
the district judge.
* * * * * * *
“VI. (1) Every sentence will be enforced without delay. The
State prosecutor may, however, appeal from the sentence of a
district judge to the court of appeal. The appeal has to be
lodged within 2 weeks.
“(2) The right to lodge complaints which are to be heard by the
court of appeal is reserved exclusively to the State prosecutor.
“VII. Poles and Jews cannot challenge a German judge on account
of alleged partiality.
“VIII. * * * (2) During the preliminary inquiry, the State
prosecutor may order the arrest and any other coercive measures
permissible.
“IX. Poles and Jews are not sworn in as witnesses in criminal
proceedings. If the unsworn deposition made by them before the
court is found false, the provisions as prescribed for perjury
and false statements shall be applied accordingly.
“X. (1) Only the State prosecutor may apply for the reopening
of a case. In a case tried before a Special Court, the decision
concerning an application for the reopening of the proceedings
rests with this court.
“(2) The right to lodge a plea of nullity rests with the State
prosecutor general. The decision on the plea rests with the
court of appeal.
“XI. Poles and Jews are not entitled to act as prosecutors
either in a principal or a subsidiary capacity.
“XII. The court and the State prosecutor shall conduct
proceedings within their discretion and according to the
principles of the German law of procedure. They may, however,
deviate from the provisions of the German law on the
organization of courts and on criminal procedure, whenever this
may appear to them advisable for the rapid and more efficient
conduct of proceedings.
* * * * * * *
“XV. Within the meaning of this decree, the term ‘Poles’
includes ‘Schutzangehoerige’ or those who are stateless.”[629]
It will be noted that the procedural rules became progressively more
summary and severe as the military situation became progressively more
critical.
A major development in the Nazification of the judicial system appears
in the establishment of the “People’s Court” which was subdivided into
a number of senates or departments. We quote:
“When the Supreme Court acquitted three of the four defendants
charged with complicity in the Reichstag fire, its jurisdiction
in cases of treason was thereafter taken away and given to a
newly established ‘People’s Court’ consisting of two judges and
five officials of the Party.”[630]
The act of 24 April 1934 which established the highly flexible
definitions of high treason also provided new judicial machinery for
enforcement.
“Article III, section 1. (1) For the trial of cases of high
treason the People’s Court is established.
“(2) Decisions of the People’s Court are made by five members
during the trial, by three members outside the trial. This
includes the president. The president and one further
member must be qualified judges. Several senates may be
established.”[631]
In section 3 (1) of article III it is provided that “the People’s Court
is competent for the investigation and decision in the first and last
instance in cases of high treason * * *”, and in other specified cases.
“Article III, section 3. (2) The People’s Court is also
competent in such cases where crimes or offenses subject to its
competence constitute at the same time another punishable act.
“(3) If another punishable act is in factual connection with a
crime or offense subject to the jurisdiction of the People’s
Court, the trial against the perpetrators and participants of
the other punishable act may be brought before the People’s
Court by way of combination of the respective cases.”
* * * * * * *
“[Article III] section 5. (2) Against the decisions of the
People’s Court no appeal is permitted.”
On 1 December 1936, the jurisdiction of the People’s Court was
extended to include violation of the law against economic sabotage.
(_supra._)
On 14 April 1939, the system was extended to Bohemia and Moravia. We
quote:
“[Section 1] (2) Furthermore, the Supreme Reich Court and the
People’s Court will carry out jurisdiction for the Protectorate
Bohemia and Moravia.”[632]
The extent of jurisdiction was defined as follows:
“Section 6. (1) German nationals are subject to German
jurisdiction in the Protectorate of Bohemia and Moravia.
“(2) Persons who are not German nationals are subject to German
jurisdiction for offenses--
“_1._ to which German criminal law applies,
“_2._ if they are prosecuted under a private action
provided the action has been brought by a German national.
* * * * * * *
“Section 7. German jurisdiction in the Protectorate of Bohemia
and Moravia excludes jurisdiction by the courts of the
Protectorate unless otherwise provided.
“Section 8. The German courts in the Protectorate of Bohemia
and Moravia administer justice in the name of the German
people.”[633]
By the law of 16 September 1939, provision was made for extraordinary
appeal against final judgments. We quote in part:
“Article 2, section 3. (1) Against legally valid sentences in
criminal proceedings the senior Reich prosecutor at the Reich
Supreme Court can file an appeal within one year after they have
been pronounced, if, because of serious misgiving, concerning
the justness of the sentence, he considers a new trial and a new
decision in the cases necessary.
“(2) On the basis of the appeal, the Special Penal Senate of the
Reich Supreme Court will try the cases a second time.
“(3) If the first sentence was passed by the People’s Court,
the appeal is to be filed by the senior Reich prosecutor at
the People’s Court, and the second trial is to be held by the
Special Senate of the People’s Court. The same applies to the
sentences of courts of appeal in cases which the senior Reich
prosecutor at the People’s Court had transferred to the public
prosecutor attached to the court of appeals, or which the
People’s Court had transferred for trial and sentencing to the
courts of appeal.
* * * * * * *
“Section 5. (1) The Special Senate of the People’s Court
consists of the president and of four members.”[634]
On 21 February 1940 the jurisdiction of the People’s Court was
redefined and again extended to cover high treason, treason, severe
cases of damaging war material, failure to report an intended crime,
crimes under section 5 (1) of the decree of 28 February 1933 concerning
protection of people and State; crimes of economic sabotage, crime of
undermining German military efficiency, and others.
On 6 May 1940 a broad decree was issued concerning the jurisdiction of
German courts for the “territory of the Greater German Reich.” That
decree provided:
“German criminal law will be applied to the crime of a German
national, no matter whether it is committed in Germany or
abroad. For a crime committed abroad, which according to the
laws of the place of commitment is not punishable, German
criminal law will not be applied, unless such action would
constitute a crime according to the sound sentiment for justice
of the German people on account of the particular conditions
prevailing at the place of commitment.”[635]
* * * * * * *
“Paragraph 4. German criminal law will be applied also in case
of crimes committed by a foreigner in Germany.
“German criminal law will be applied to crimes committed by a
foreigner abroad, if they are punishable according to the penal
code of the territory where they are committed, or if such
territory is not subject to any jurisdiction and if--
“1. the criminal has obtained German nationality after the
crime, or
“2. the crime is directed against the German people or a German
national, or
“3. the criminal is apprehended in Germany and is not
extradited, although the nature of his crime would permit an
extradition.
“German criminal law will be applied to the following crimes
committed by a foreigner abroad, independently of the laws of
the place of commitment:
“1. Crimes committed while holding a German governmental office,
as a German soldier or as a member of the Reich Labor Service
(Reichsarbeitsdienst) or committed against a holder of a German
office or the State or the Party, against a German soldier or a
member of the Reich Labor Service, while on duty or relating to
his duty;
“2. Actions constituting treason or high treason against
Germany,” and in other special cases.
Certain additional provisions intimately affecting the rights of
accused persons deserve special mention.
“Section 10. For the defendant, who has not yet chosen counsel,
counsel has to be appointed at the time when the date for the
trial is fixed.
“Section 11. A preliminary court investigation will not take
place. * * *”[636]
By a decree of the Reich Minister of Justice, Dr. Thierack, on 13
December 1944, it was provided:
“Article 2, paragraph 12. Limited admittance of defense counsel.
“(1) In any one criminal case, several lawyers or professional
representatives may not act side by side as chosen counsel for
one defendant.
“(2) The rules about obligatory representation by defense
counsel do not apply. The presiding judge appoints a defense
counsel for the whole or part of the proceedings if the
difficulty of the material or legal problems require assistance
by a defense counsel, or if the defendant, in due consideration
of his personality, is unable to defend himself personally. * *
*”[637]
On 16 February 1934 it was provided that:
“Article 2. The president of the Reich has the prerogatives for
_nulle prosequi_ and clemency (formerly held by the States).
“Amnesties can be promulgated only by Reich law.”[638]
This centralization of the clemency powers marks a radical departure
from the system which prevailed prior to 1933 and was the means by
which the will of Hitler became a dominating force in the Ministry of
Justice and in the courts. Other provisions are as follows:
“Even if the judgment has been contested only by the defendant
or his legal representative, or by the prosecution in his favor,
it can be changed against the interests of the defendant.[639]
“In penal matters for which the People’s Court, the superior
district court, or the court of assizes are competent,
preexamination is conducted upon application of the prosecution,
if, after due consideration, the prosecution thinks it necessary.
“In other penal matters as well, preexamination takes place on
application of the prosecution. The prosecution should make
such an application only if unusual circumstances make it
necessary to have a judge conduct such preexamination.”[640]
An illuminating comment on the law is made by a German text writer.
“A criminal case on which verdict has been passed must not
again become the subject of another criminal proceeding. This
exclusive effect pertains to the subject of the case both as
regards the crime and the criminal. * * * According to the
findings of the German supreme court and to the prevailing
theory in accord with these findings, the effect of _ne bis
in idem_ includes the history of the case submitted to
the court for verdict. * * * This theory, however, leads to
unbearable consequences. In order to avoid these unbearable
consequences some courts, recently, have permitted the breach of
the principle against double jeopardy in exceptional cases where
jeopardy of a second trial is necessitated by the sound sense of
justice. * * *”[641]
On 21 March 1942 Adolf Hitler promulgated a decree regarding the
simplification of the administration of justice. We quote the following
excerpts:
“In penal cases, * * * the formal opening of the main proceeding
must be eliminated. * * * (Sec. I.)
“Indictments and judicial decisions must be more tersely written
by restricting them to the absolutely necessary. (Sec. II.)
“The cooperation of professional associate judges in judicial
decisions must be restricted. (Sec. III.)
“I commission the Reich Minister of Justice, in agreement
with the Reich Minister and Chief of the Reich Chancellery
and with the Chief of the Party Chancellery, to issue the
legal provisions necessary for the execution of this decree.
I empower the Reich Minister of Justice to make the necessary
administrative provisions and to decide any doubtful questions
by administrative means. (Sec. VI.)”
On 13 August 1942 a decree was issued by the defendant
Schlegelberger as Reich Minister of Justice in charge of the
Ministry--
“Article 4. * * * Decisions by the criminal court, the Special
Court, and the criminal senate of the circuit courts of appeal
may be made solely by the president or his regular deputy, if
he considers the cooperation of his associates dispensable in
view of the simplicity of the nature and the legal status of the
case, and if the public prosecutor agrees.
“Article 5. Main proceeding without public prosecutor--In the
proceeding before the district judge, the public prosecutor may
renounce his participation in the main proceeding.
“Article 7 (2). The validity of an objection is decided on by
the president of the deciding court. The admissibility of an
appeal is decided on by the president of the court of appeal
(Berufungsstrafkammer); he is also authorized to bring about a
decision of the court. These decisions are not subject to any
proof, and are incontestable.
“Article 7 (3). Further objections will not be admitted.”
We have already quoted at length from the decree of 4 December 1941
concerning the organization of criminal jurisdiction against Poles
and Jews in the Incorporated Eastern Territories. That decree also
contained provisions for the establishment of martial law from which we
quote:
“Article XIII (1). Subject to the consent of the Reich Minister
of the Interior and the Reich Minister of Justice, the Reich
governor may, until further notice, enforce martial law in the
Incorporated Eastern Territories, either in the whole area under
his jurisdiction or in parts thereof, upon Poles and Jews guilty
of grave excesses against the Germans or of other offenses which
seriously endanger the German work of reconstruction.
“(2) The courts established under martial law impose the death
sentence. They may, however, dispense with punishment and refer
the case to the Secret State Police (Gestapo).”
A final step in the development of summary criminal procedure was taken
on 15 February 1945 by a decree of the Reich Minister of Justice, Dr.
Thierack. The decree provided:
“II. 1. The court martial consists of a judge of a criminal
court as president and of a member of the political leader
corps, or of a leader of another structural division of the
NSDAP and an officer of the Wehrmacht, the Waffen SS, or the
police, as associate judges. * * *
“III. 1. The courts martial have jurisdiction for all kinds of
crimes endangering the German fighting power or undermining the
people’s military efficiency. * * *
“IV. 1. The sentence of the court martial will be either death,
acquittal, or commitment to the regular court. The consent of
the Reich defense commissar is required. He gives orders for the
time, place, and kind of execution. * * *”[642]
Pursuant to a decree of the Fuehrer of 16 March 1939, the defendant
Schlegelberger, as Reich Minister of Justice in charge, together with
the Minister of the Interior and the Chief of the Armed Forces, Keitel,
issued a decree which reads in part as follows:
“Section 1. In case of direct attack by a non-German citizen
against the SS or the German Police or against any of their
members, the Reich Leader of the SS and the Chief of the German
Police in the Reich Ministry of the Interior may establish
the jurisdiction of a combined SS court and police court, by
declaring that special interests of parts of the SS or of the
Police require that judgment be given by an SS and police court.
“This declaration shall be sent to the Reich Protector of
Bohemia and Moravia. The SS and police court, which shall have
jurisdiction in individual cases, shall be specified by the
Reich Leader of the SS and Chief of the German Police in the
Reich Ministry of the Interior.
“Section 2. If the offense directly injures the interests of the
armed forces, the Reich Leader of the SS and chief of the German
Police in the Reich Ministry of the Interior, and the chief of
the Supreme Command of the Armed Forces shall reach an agreement
as to whether the case shall be prosecuted by an SS and police
court or by a military court.[643]
“Article II. Exemption of the Reich court from being bound
to precedent sentence: The Reich Court as the highest German
tribunal must consider it its duty to effect an interpretation
of the law which takes into account the change of ideology and
of legal concepts which the new State has brought about. In
order to be able to accomplish this task without having to show
consideration for the jurisdiction of the past brought about by
other ideology and other legal concepts, it is ruled as follows:
“When a decision is made about a legal question, the Reich Court
can deviate from a decision laid down before this law went into
effect.”[644]
_THE LAW IN ACTION_
We pass now from the foregoing incomplete summary of Nazi legislation
to a consideration of the law in action, and of the influence of the
“Fuehrer principle” as it affected the officials of the Ministry of
Justice, prosecutors, and judges. Two basic principles controlled
conduct within the Ministry of Justice. The first concerned the
absolute power of Hitler in person or by delegated authority to enact,
enforce, and adjudicate law. The second concerned the incontestability
of such law. Both principles were expounded by the learned Professor
Jahrreiss, a witness for all of the defendants. Concerning the first
principle, Dr. Jahrreiss said:
“If now in the European meaning one asks about legal
restrictions, and first of all one asks about restrictions
of the German law, one will have to say that restrictions
under German law did not exist for Hitler. He was _legibus
solutus_ in the same meaning in which Louis XIV claimed that
for himself in France. Anybody who said something different
expresses a wish that does not describe the actual legal facts.”
Concerning the second principle, Jahrreiss supported the opinion of
Gerhard Anschuetz, “crown jurist of the Weimar Republic”, who holds
that if German laws were enacted by regular procedure, judicial
authorities were without power to challenge them on constitutional or
ethical grounds. Under the Nazi system, and even prior thereto, German
judges were also bound to apply German law even when in violation of
the principles of international law. As stated by Professor Jahrreiss:
“To express it differently, whether the law has been passed
by the State in such a way that it was inconsistent with
international law on purpose or not, that could not play
any part at all; and that was the legal state of affairs,
regrettable as it may be.”
This, however, is not to deny the superior authority of international
law. Again we quote a statement of extraordinary candor by Professor
Jahrreiss:
“On the other hand, certainly there were legal restrictions
for Hitler under international law. * * * He was bound by
international law. Therefore, he could commit acts violating
international law. Therefore, he could issue orders violating
international law to the Germans.”
The conclusion to be drawn from the evidence presented by the
defendants themselves is clear: In German legal theory Hitler’s law was
a shield to those who acted under it, but before a tribunal authorized
to enforce international law, Hitler’s decrees were a protection
neither to the Fuehrer himself nor to his subordinates, if in violation
of the law of the community of nations.
In German legal theory, Hitler was not only the supreme legislator,
he was also the supreme judge. On 26 April 1942 Hitler addressed the
Reichstag in part as follows:
“I do expect one thing: That the nation gives me the right to
intervene immediately and to take action myself wherever a
person has failed to render unqualified obedience. * * *”
“I therefore ask the German Reichstag to confirm expressly that
I have the legal right to keep everybody to his duty and to
cashier or remove from office or position without regard for
his person, or his established rights, whoever, in my view and
according to my considered opinion, has failed to do his duty.”
“* * * From now on, I shall intervene in these cases and remove
from office those judges who evidently do not understand the
demand of the hour.”
On the same day the Greater German Reichstag resolved in part as
follows:
“* * * the Fuehrer must have all the rights postulated by him
which serve to further or achieve victory. Therefore--without
being bound by existing legal regulations--in his capacity as
leader of the nation, Supreme Commander of the Armed Forces,
governmental chief and supreme executive chief, as supreme
justice[645], and leader of the Party--the Fuehrer must be in a
position to force with all means at his disposal every German,
if necessary, whether he be common soldier or officer, low or
high official or judge, leading or subordinate official of
the Party, worker or employee, to fulfill his duties. In case
of violation of these duties, the Fuehrer is entitled after
conscientious examination, regardless of so-called well-deserved
rights, to mete out due punishment, and to remove the offender
from his post, rank and position, without introducing prescribed
procedures.”
The assumption by Hitler of supreme governmental power in all
departments did not represent a new development based on the emergency
of war. The declaration of the Reichstag was only an echo of Hitler’s
declaration of 13 July 1934. After the mass murders of that date (the
Roehm purge) which were committed by Hitler’s express orders, he said:
“Whenever someone reproaches me with not having used the
ordinary court for their sentencing, I can only say: ‘In this
hour I am responsible for the fate of the German nation and
hence the supreme law lord[645] of the German people.’”
The conception of Hitler as the supreme judge was supported by the
defendant Rothenberger. We quote (_NG-075, Pros. Ex. 27_):
“However, something entirely different has occurred; with the
Fuehrer a man has risen within the German people who awakens the
oldest, long forgotten times. Here is a man who in his position
represents the ideal of the judge in its perfect sense, and
the German people elected him for their judge--first of all,
of course, as ‘judge’ over their fate in general, but also as
‘supreme magistrate[645] and judge.’”
In the same document the defendant Rothenberger expounded the National
Socialist theory of judicial independence. He said:
“Upon the fact that the judge can use his own discretion is
founded the magic of the word ‘judge.’”
He asserted that “every private and Party official must abstain from
all interference or influence upon the judgment,” but this statement
appears to be mere window-dressing, for after his assertion that a
judge “must judge like the Fuehrer”, he said:
“In order to guarantee this, a direct liaison officer without
any intermediate agency must be established between the Fuehrer
and the German judge, that is, also in the form of a judge, the
supreme judge in Germany, the ‘Judge of the Fuehrer’. He is to
convey to the German judge the will of the Fuehrer by authentic
explanation of the laws and regulations. At the same time he
must upon the request of the judge give binding information in
current trials concerning fundamental political, economic, or
legal problems which cannot be surveyed by the individual judge.”
Thus, it becomes clear that the Nazi theory of the judicial
independence was based upon the supreme independence of the Fuehrer,
which was to be channelized through the proposed liaison officer from
Fuehrer to judge.
On 13 November 1934, Goering, in an address before the Academy of
German Law, expressed similar sentiments concerning the position of
Hitler.
“Gentlemen, for the German nation this matter was settled by the
words of the judge in this hour, the Fuehrer, who stated that in
this hour of uttermost danger he alone, the Fuehrer elected by
the people, was the supreme and only judge of the German nation.”
The defendant Schlegelberger, on 10 March 1936 said:
“It should be emphasized, however, that in the sphere of the
law, also, it is the Fuehrer and he alone who sets the pace of
development.”
To the same effect we quote Reich Minister of Justice Dr. Thierack,
who, on 5 January 1943 said:
“So also with us the conviction has grown in these 10 years in
which the Fuehrer has led the German people that the Fuehrer is
the chief justice and the supreme judge of the German people.”
On 17 February 1943 the defendant Under Secretary Dr. Rothenberger
summed up his legal philosophy with the words (_NG-415, Pros. Ex.
26_):
“The judge is on principle bound by the law. The laws are the
orders of the Fuehrer.”
As will be seen, the foregoing pronouncement by the leaders in the
field of Nazi jurisprudence were not mere idle theories. Hitler did, in
fact, exercise the right assumed by him to act as supreme judge, and
in that capacity in many instances he controlled the decision of the
individual criminal cases.
The evidence demonstrates that Hitler and his top-ranking associates
were by no means content with the issuance of general directives for
the guidance of the judicial process. They tenaciously insisted upon
the right to interfere in individual criminal sentences. In discussing
the right to refuse confirmation of sentences imposed by criminal
courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr.
Lammers, Chief of the Reich Chancellery, as follows (_NG-102, Pros.
Ex. 75_):
“When the Fuehrer has expressly requested the right of
direct interference over all formal legal provisions, this
is emphasizing the very importance of the modification of a
judicial sentence.”
The Ministry of Justice was acutely conscious of the interference
by Hitler in the administration of criminal law. On 10 March 1941
Schlegelberger wrote to Reich Minister Lammers in part as follows
(_NG-152, Pros. Ex. 63_):
“It has come to my knowledge that just recently a number of
sentences passed have roused the strong disapproval of the
Fuehrer. I do not know exactly which sentences are concerned,
but I have ascertained for myself that now and then sentences
are pronounced, which are quite untenable. In such cases I
shall act with the utmost energy and decision. It is, however,
of vital importance for justice and its standing in the Reich,
that the head of the Ministry of Justice should know to which
sentences the Fuehrer objects, * * *.”
On the same date Schlegelberger wrote to Hitler in part as follows
(_NG-152, Pros. Ex. 63_):
“In the course of the verdicts pronounced daily, there are
still judgments which do not entirely comply with the necessary
requirements. In such cases I will take the necessary steps. * *
*
“Apart from this it is _desirable to educate the judges more
and more to a correct way of thinking, conscious of the national
destiny_. For this purpose it would be invaluable, if you, my
Fuehrer, could let me know if a verdict does not meet with your
approval. The judges are responsible to you, my Fuehrer; they
are conscious of this responsibility, and are firmly resolved
to discharge their duties accordingly. * * * Heil, my Fuehrer!”
[Emphasis added.]
Hitler not only complied with the foregoing request, but proceeded
beyond it. Upon his personal orders persons who had been sentenced to
prison terms were turned over to the Gestapo for execution. We quote
briefly from the testimony of Dr. Hans Gramm, who for many years was
personal Referent to the defendant Schlegelberger, and who testified in
his behalf.
“Q. Do you know anything about transfers of condemned persons to
the police, or to the Gestapo?
“A. I know that it frequently occurred that Hitler gave orders
to the police to call for people who had been sentenced to
prison terms. To be sure, it was an order from Hitler directed
to the police to the effect that the police had to take such and
such a man into their custody. These orders had rather short
limits. As a rule, there was only a time limit of 24 hours
before execution by the police, after which the police had to
report that it had been executed. These transfers, as far as
I can remember, took place only during the war.” (_Tr. pp.
4717–4718._)
This procedure was well-known in the Ministry of Justice. Gramm was
informed by the defendant Schlegelberger that the previous Reich
Minister of Justice, Dr. Guertner, had protested to Dr. Lammers against
this procedure and had received the reply--
“That the courts could not stand up to the special requirements
of the war, and that therefore these transfers would have to
continue.”
The only net result of the protest was that “from that time on in every
individual case when such a transfer had been ordered, the Ministry of
Justice was informed about that.”
The witness, Dr. Lammers, former Chief of the Reich Chancellery, whose
hostility toward the prosecution and evasiveness were obvious, conceded
that the practice was continued under Schlegelberger, though Lammers
stated that Schlegelberger never agreed to it.
By reference to case histories we will illustrate three different
methods by which Hitler, through the Ministry of Justice, imposed
his will in disregard of judicial proceedings. One, Schlitt, had
been sentenced to a prison term, as a result of which Schlegelberger
received a telephone call from Hitler protesting the sentence. In
response the defendant Schlegelberger on 24 March 1942 wrote in part as
follows (_NG-152, Pros. Ex. 63_):
“I entirely agree with your demand, my Fuehrer, for very severe
punishment for crime, and I assure you that the judges honestly
wish to comply with your demand. Constant instructions in order
to strengthen them in this intention and the increase of threats
of legal punishment have resulted in a considerable decrease of
the number of sentences to which objections have been made from
this point of view, out of a total annual number of more than
300,000.
“I shall continue to try to reduce this number still more, and
if necessary, I shall not shrink from personal measures, as
before.
“In the criminal case against the building technician, Ewald
Schlitt, from Wilhelmshaven, I have applied through the public
prosecutor for an extraordinary plea for nullification against
the sentence, at the special senate of the Reich Court. I will
inform you of the verdict of the special senate immediately it
has been given.”
On 6 May 1942, Schlegelberger informed Hitler (_NG-102, Pros. Ex.
75_) that the 10-year sentence against Schlitt was “quashed within
10 days;” and that “Schlitt was sentenced to death and executed at
once.”
In the case against Anton Scharff, the sentence of 10 years’ penal
servitude had been imposed. Thereupon, on 25 May 1941, Bormann wrote to
Dr. Lammers (_NG-611, Pros. Ex. 64_): “The Fuehrer believes this
sentence entirely incomprehensible * * *. The Fuehrer requests that you
inform State Secretary Schlegelberger again of his point of view.”
On 28 June 1941, defendant Schlegelberger wrote Dr. Lammers (_NG-611,
Pros. Ex. 64_): “I am very obliged to the Fuehrer for informing me,
on my request, of his conception of atonements of black-out crimes in
reference to the sentence of the Munich Special Court against Anton
Scharff.
“I shall reinstruct the presidents of the courts of appeal and
the chief public prosecutors of this conception of the Fuehrer
as soon as possible.”
As a final illustration of a general practice, we refer to the case of
the Jew Luftgas, who had been sentenced to 2½ years imprisonment for
hoarding eggs. On 25 October 1941, Lammers notified Schlegelberger:
“The Fuehrer wishes that Luftgas be sentenced to death.” On 29 October
1941, Schlegelberger wrote Lammers: “* * * I have handed over to the
Gestapo for the purpose of execution the Jew Markus Luftgas who had
been sentenced to 2½ years of imprisonment * * *”.
Although Hitler’s personal intervention in criminal cases was a
matter of common occurrence, his chief control over the judiciary was
exercised by the delegation of his power to the Reich Minister of
Justice, who on 20 August 1942 was expressly authorized “to deviate
from any existing law.”
Among those of the Ministry of Justice who joined in the constant
pressure upon the judges in favor of more severe or more discriminatory
administration of justice, we find Thierack, Schlegelberger, Klemm,
Rothenberger, and Joel. Neither the threat of removal nor the sporadic
control of criminal justice in individual cases was sufficient to
satisfy the requirements of the Ministry of Justice. As stated by the
defendant Rothaug, “only during 1942, after Thierack took over the
Ministry, the ‘guidance’ of justice was begun. * * * There was an
attempt to guide the administration of justice uniformly from above.”
In September 1942 Thierack commenced the systematic distribution to the
German judges of Richterbriefe. The first letter to the judges under
date of 1 October 1942 called their attention to the fact that Hitler
was the supreme judge and that “leadership and judgeship have related
characters.” We quote (_NG-298, Pros. Ex. 81_):
“A corps of judges like this will not slavishly use the crutches
of law. It will not anxiously search for support by the law,
but, with a satisfaction in its responsibility, it will find
within the limits of the law the decision which is the most
satisfactory for the life of the community.”
In the Judges’ Letters Thierack discussed particular decisions which
had been made in the various courts and which failed to conform to
National Socialist ideology. As an illustration of the type of guidance
which was furnished by the Ministry of Justice to the German judiciary,
we cite a few instances from the Richterbriefe.
A letter to the judges of 1 October 1942 discusses a case decided in a
district court on 24 November 1941. A special coffee ration had been
distributed to the population of a certain town. A number of Jews
applied for the coffee ration, but did not receive it, being “excluded
from the distribution _per se_”. The food authorities imposed
fines upon the Jews for making the unsuccessful application. In 500
cases the Jews appealed to the court and the judge informed the food
authorities that the imposition of a fine could not be upheld for
legal reasons, one of which was the statute of limitations. In deciding
favorably to the Jews, the court wrote a lengthy opinion stating that
the interpretation on the part of the food authorities was absolutely
incompatible with the established facts. We quote, without comment, the
discussion of the Reich Minister of Justice concerning the manner in
which the case was decided (_NG-298, Pros. Ex. 81_):
“The ruling of the district court, in form and content matter,
borders on embarrassing a German administrative authority to
the advantage of Jewry. The judge should have asked himself
the question: What is the reaction of the Jew to this 20-page
long ruling, which certifies that he and the 500 other Jews
are right and that he won over a German authority, and does
not devote one word to the reaction of our own people to this
insolent and arrogant conduct of the Jews. Even if the judge was
convinced that the food office had arrived at a wrong judgment
of the legal position, and if he could not make up his mind
to wait with his decision until the question, if necessary,
was clarified by the higher authorities, he should have chosen
a form for his ruling which under any circumstances avoided
harming the prestige of the food office and thus putting the Jew
expressly in the right toward it.”
One of the Richterbriefe also discusses the case of a Jew who, after
the “Aryanization of his firm,” attempted to get funds transferred
to Holland without a permit. He also attempted to conceal some of
his assets. Concerning this case the judges of Germany received the
following “guidance” (_NG-298, Pros. Ex. 81_):
“The court applies the same criteria for the award of punishment
as it would if it were dealing with a German fellow citizen as
defendant. This cannot be sanctioned. The Jew is the enemy of
the German people, who has plotted, stirred up, and prolonged
this war. In doing so, he has brought unspeakable misery upon
our people.
“Not only is he of a different race, but he is also of inferior
race. Justice, which must not measure different matters by the
same standard, demands that just this racial aspect must be
considered in the award of punishment.”
Space does not permit the citation of other instances of this form of
perverted political guidance of the courts. Notwithstanding solemn
protestations on the part of the minister that the independence of
the judge was not to be affected, the evidence satisfies us beyond a
reasonable doubt that the purpose of the judicial guidance was sinister
and was known to be such by the Ministry of Justice and by the judges
who received the directions. If the letters [the Judges’ Letters]
had been written in good faith with the honest purpose of aiding
independent judges in the performance of their duties, there would
have been no occasion for the carefully guarded secrecy with which
the letters were distributed. A letter of 17 November 1942 instructs
the judges that the letters are to be “carefully locked up to avoid
that they get into the hands of unauthorized persons. The receivers
are subject to official secrecy as far as the contents of the judges’
letters are concerned.”
In a letter of 17 November 1942 Thierack instructs the judges that
“in cases where judges and prosecutors are suspected of political
unreliability they are to be excluded in a suitable manner from the
list of subscribers to the Judges’ Letters.”
Not being content with regimenting the judges and chief prosecutors and
making them subservient to the National Socialist administration of
justice, Dr. Thierack next took up the regimentation of the lawyers.
On 11 March 1943 he wrote to the various judges and prosecutors
announcing the proposed distribution of confidential lawyers’ letters.
An examination of those letters convinces the Tribunal that the actual,
though undeclared purpose, was to suggest to defense counsel that they
avoid any criticism of National Socialist justice and refrain from too
much ardor in the defense of persons charged with political crimes.
Not only did Thierack exert direct influence upon the judges, but he
employed as his representative the most sinister, brutal, and bloody
judge in the entire German judicial system. In a letter to Freisler,
president of the People’s Court, Thierack said that the judgment of
the People’s Court must be “in harmony with the leadership of the
State”. He urges Freisler to have every charge submitted to him and
to recognize the cases in which it was necessary “in confidential and
convincing discussion with the judge competent for the verdict to
emphasize what is necessary from the point of view of the State.” He
continues:
“As a general rule, the judge of the People’s Court must
get used to regarding the ideas and intentions of the State
leadership as the primary factor and the individual fate which
depends on him as only a secondary factor. * * *”
He continues:
“I will try to illustrate this with individual cases.
“1. If a Jew--and a leading Jew at that--is charged with high
treason--even if he is only an accomplice therein, he has behind
him the hate and the will of Jewry to exterminate the German
people. As a rule this will therefore be _high treason_ and
must be punished by the death penalty.”
He concludes with the following admonition to Freisler, which appears
to have been wholly unnecessary:
“In case you should ever be in doubt as to which line to follow
or which political necessities to take into consideration,
please address yourself to me in all confidence.”
It will be recalled that on 26 April 1942 Hitler stated that he would
remove from office “those judges who evidently do not understand the
demand of the hour.” The effect of this pronouncement upon such judges
as still retained ideals of judicial independence can scarcely be
overestimated. The defendant Rothenberger stated it was “absolutely
crushing.”
In a private letter to his brother, the defendant Oeschey expressed his
view of the situation created by Hitler’s interference in the following
words:
“After the well known Fuehrer speech things developed in a
frightful manner. I was never a supporter of the stubborn
doctrine of the independence of the judge which granted the
judge within the frame of the law the position of a public
servant, only subordinated to his conscience but otherwise
‘neutral’, that is, politically completely independent. * *
* Now it is an absurdity to tell the judge in an individual
case which is subject to his decision how he has to decide.
Such a system would make the judge superfluous; such things
have now come to pass. Naturally it was not done in an open
manner; but even the most camouflaged form could not hide the
fact that a directive was to be given. Thereby the office of
judge is naturally abolished and the proceedings in a trial
become a farce. I will not discuss who bears the guilt of such a
development.”
The threat alone of the removal was sufficient to impair the
independence of the judges, but the evidence discloses that measures
were actually carried out for the removal or transfer of judges
who proved unsatisfactory from the Party standpoint. On 29 March
1941 Schlegelberger received a letter from the chief of the Reich
Chancellery protesting against the sentence which had been imposed
against the Polish farmhand Wojcieck. The court at Lueneburg had
recognized some extenuating circumstances in the case. Schlegelberger
was advised as follows:
“The Fuehrer urges you immediately to take the steps necessary
to preclude repetition in other courts of the view of the
Lueneburg court.”
On 1 April 1941 Schlegelberger wrote to the Chief of the Reich
Chancellery informing him that “by means of a circular with the order
for immediate transmittal to all judges and public prosecutors, I
brought the mistake in the viewpoint as it is shown in this passage
of the court’s statement to the knowledge of the penal justice without
delay. I consider it impossible that such an incident will occur again.”
Schlegelberger ordered the responsible president of the appellate court
and the judges concerned in the case to report to him on the next day,
and on the third day of April 1941 he advised as follows:
“* * * I beg to inform you that the presiding judge of the
criminal division which passed the sentence in the case of the
Polish farmhand Wolay Wojciesk, is no longer chairman, and the
two associate judges have been replaced by other associate
judges.”
There is substantial evidence to the effect that the witness
Ostermeier, who was a judge on the Special Court in Nuernberg, was
removed from his office because of his lenient attitude in criminal
cases.
In a letter addressed to the Chief of the Reich Chancellery and to the
head of the Party Chancellery on 20 October 1942, Thierack discussed
the necessity of the removal or the transfer of officials in the
Ministry of Justice who are “not suited for the new tasks” and adds
that it may become necessary “in some particular cases to transfer or
retire such judges as cannot be kept in their present positions.” He
therefore asked approval “so that in urgent cases judges and officials
of the Reich administration of justice may be transferred by me to
other positions * * * or may be retired by me.”
On 3 March 1942 Bormann gave his approval in general terms to
Thierack’s proposal. A like approval was given by Dr. Lammers on 13
November 1942.
In connection with the discussion of removals, we find a list of
proposed staff reductions in which seventy-five judges and prosecutors
are named. Among the reasons stated for reduction we find the
following: persons of Jewish ancestry, 4; persons having a Jewish wife,
4; lack of cooperation with Party, 4; religious grounds, 1; not a Party
member, 20; pro-Jewish or pro-Pole, 4.
The conception of the national leadership of the Reich concerning the
function of the law under the influence of the Party ideology must also
be briefly noted.
On 22 July 1942 Reich Minister Dr. Goebbels addressed the members
of the People’s Court. The speech was reported in part as follows
(_NG-417, Pros. Ex. 23_):
“While making his decisions the judge had to proceed less from
the law than from the basic idea that the offender was to be
eliminated from the community. During a war it was not so much a
matter of whether a judgment was just or unjust but only whether
the decision was expedient. The State must ward off its internal
foes in the most efficient way and wipe them out entirely. The
idea that the judge must be convinced of the defendant’s guilt
must be discarded completely. The purpose of the administration
of the law was not in the first place retaliation or even
improvement but maintenance of the State. One must not proceed
from the law but from the resolution that the man must be wiped
out.”
On 14 September 1935 Hans Frank, Reichsleiter of the Nazi Party and
president of the Academy of German law, said (_NG-777, Pros. Ex.
19_):
“By means of the law of 18 June 1935, the liberalist foundation
of the old penal code ‘no penalty without a law’ was definitely
abandoned and replaced by the postulate, ‘no crime without
punishment’, which corresponds to our conception of the law.
“In the future, criminal behavior, even if it does not fall
under formal penal precepts, will receive the deserved
punishment if such behavior is considered punishable according
to the healthy feelings of the people.”
This is the Hans Frank (since hanged) who at his trial testified
concerning the racial persecution in which he had participated. He said:
“A thousand years will pass and this guilt of Germany will still
not be erased.”
On 10 March 1936 the defendant Schlegelberger said (_NG-538, Pros.
Ex. 21_):
“In the sphere of criminal law the road to a creation of justice
in harmony with the moral concepts of the new Reich has been
opened up by a new wording of section 2 of the criminal code,
whereby a person is also to be punished even if his deed is not
punishable according to the law, but if he deserves punishment
in accordance with the basic concepts of criminal law and the
sound instincts of the people. This new definition became
necessary because of the rigidity of the norm in force hitherto.”
Reich Minister Thierack on 5 January 1943 said (_NG-275, Pros Ex.
25_):
“The inner law of the guardian of justice is national socialism;
the written law is only to be an aid to the interpretation of
National Socialist ideas.”
In the words of the defendant Rothenberger the project was “to
‘organize’ Europe anew and to create a new world philosophy.” Again, he
said (_NG-075, Pros. Ex. 27_):
“* * * this reaction of ‘antagonism toward law’ is justified
because the _present moment_ absolutely demands a rigid
restriction of the power of law. He who is striding gigantically
toward a new world order cannot move in the limitation of an
orderly administration of justice.”
Strangely enough we find the Nazi judicial system condemned by a judge
who in practice was its most fanatical adherent. The defendant Rothaug
testified as follows:
“As of every other civil servant, of the judge there was
demanded not only obedience but also loyalty and an inner
connection with the doctrine of the State. The change-over
of the judiciary to that different intellectual level was
attempted _via_ the political factor of the administration
of justice, and that was when things came to grief; and it was
then that the notorious ‘back door’ which I have mentioned, took
effect.”
After discussing the extraordinary legal remedies by which final
judgments in criminal cases were set aside by means of the
nullification plea and the extraordinary objection, Rothaug said:
“As far as that went no objections could be made. What was more
dangerous was the influence by means of Judges’ Letters and the
guidance of jurisdiction.”
To the domination by Hitler and the political “guidance” of the
Ministry of Justice must be added the direct pressure of Party
functionaries and police officials. The record is replete with
testimony of specific instances of interference in the administration
of justice by officials of Party and police. But for the demonstration
of the viciousness and universality of the practice it is only
necessary to cite the words of the defendants themselves.
The defendant Rothenberger describes the manner in which the
“administration of justice was burdened by the Party and by the SS”,
and referred in his testimony to the “thousand little Hitlers who every
day jeopardized the independence of the individual judge.”
The defendant Schlegelberger spoke with more caution:
“If in a trial, testimonials of political conduct were submitted
for the characterization of the accused, it has to be left to
the judge’s dexterity to avoid conflict with the department
which furnishes the testimonial of political conduct.”
The defendant Lautz testified concerning attempted interference
with his duties by the SS. We have already quoted the opinion of the
defendant Oeschey as expressed in a letter to his brother.
A reliable witness, Dr. Hanns Anschuetz, testified:
“After the issuance of the German Civil Service Code, strong
pressure was brought to bear upon all officials, including
judges, to join the NSDAP, or not to reject requests to join;
otherwise there existed the danger that they might be retired
or dismissed. But once a Party member, a judge was under Party
discipline and Party jurisdiction, which dominated his entire
life as official and as private person.”
The witness Wilhelm Oehlicker, formerly a justice official and at
present judge in Hamburg, testified, that, “the longer the war
proceeded, in my opinion the more and more they (Party officials) tried
to interfere with the courts and influence the courts directly.”
The final degradation of the judiciary is disclosed in a secret
communication by Ministerial Director Letz of the Reich Ministry of
Justice to Dr. Vollmer, also a ministerial director in the department.
Not only were the judges “guided” and at times coerced; they were spied
upon. We quote:
“Moreover, I know from documents, which the minister produces
from time to time out of his private files, that the Security
Service takes up special problems of the administration of
justice with thoroughness and makes summarized situation reports
about them. As far as I am informed, a member of the Security
Service is attached to each judicial authority. This member is
obliged to give information under the seal of secrecy. This
procedure is secret and the person who gives the information is
not named. In this way we get, so to say, anonymous reports.
Reasons given for this procedure are of State political
interest. As long as the direct interests of the State security
are concerned, nothing can be said against it, especially in
wartime.”
In view of the conclusive proof of the sinister influences which were
in constant interplay between Hitler, his ministers, the Ministry
of Justice, the Party, the Gestapo, and the courts, we see no merit
in the suggestion that Nazi judges are entitled to the benefit of
the Anglo-American doctrine of judicial immunity. The doctrine that
judges are not personally liable for their judicial actions is based
on the concept of an independent judiciary administering impartial
justice. Furthermore, it has never prevented the prosecution of a judge
for malfeasance in office. If the evidence cited _supra_ does
not demonstrate the utter destruction of judicial independence and
impartiality, then we “never writ nor no man ever proved.” The function
of the Nazi courts was judicial only in a limited sense. They more
closely resembled administrative tribunals acting under directives from
above in a quasi-judicial manner.
In operation the Nazi system forced the judges into one of two
categories. In the first we find the judges who still retained ideals
of judicial independence and who administered justice with a measure
of impartiality and moderation. Judgments which they rendered were
set aside by the employment of the nullity plea and the extraordinary
objection. The defendants they sentenced were frequently transferred
to the Gestapo on completion of prison terms and were then shot or
sent to concentration camps. The judges themselves were threatened and
criticized and sometimes removed from office. In the other category
were the judges who with fanatical zeal enforced the will of the Party
with such severity that they experienced no difficulties and little
interference from party officials. To this group the defendants Rothaug
and Oeschey belonged.
We turn to a consideration and classification of the evidence. The
prosecution has introduced captured documents in great number which
establish the Draconic character of the Nazi criminal laws and prove
that the death penalty was imposed by courts in thousands of cases.
Cases in which the extreme penalty was imposed may in large measure be
classified in the following groups:
1. Cases against habitual criminals.
2. Cases of looting in the devastated areas of Germany; committed after
air raids and under cover of black-out.
3. Crimes against the war economy--rationing, hoarding, and the like.
4. Crimes amounting to an undermining of the defensive strength of the
nation; defeatist remarks, criticisms of Hitler, and the like.
5. Crimes of treason and high treason.
6. Crimes of various types committed by Poles, Jews, and other
foreigners.
7. Crimes committed under the Nacht und Nebel program, and similar
procedures.
Consideration will next be given to the first four groups as above set
forth. The Tribunal is keenly aware of the danger of incorporating in
the judgment as law its own moral convictions or even those of the
Anglo-American legal world. This we will not do. We may and do condemn
the Draconic laws and express abhorrence at the limitations imposed by
the Nazi regime upon freedom of speech and action, but the question
still remains unanswered: “Do those Draconic laws or the decisions
rendered under them constitute war crimes or crimes against humanity?”
Concerning the punishment of habitual criminals, we think the answer
is clear. In many civilized states statutory provisions require
the courts to impose sentences of life imprisonment upon proof of
conviction of three or more felonies. We are unable to say in one
breath that life imprisonment for habitual criminals is a salutary
and reasonable punishment in America in peace times, but that the
imposition of the death penalty was a crime against humanity in Germany
when the nation was in the throes of war. The same considerations apply
largely in the case of looting. Every nation recognizes the absolute
necessity of more stringent enforcement of the criminal law in times
of great emergency. Anyone who has seen the utter devastation of the
great cities of Germany must realize that the safety of the civilian
population demanded that the werewolves who roamed the streets of the
burning cities, robbing the dead, and plundering the ruined homes
should be severely punished. The same considerations apply, though in a
lesser degree, to prosecutions to hoarders and violators of war economy
decrees.
Questions of far greater difficulty are involved when we consider the
cases involving punishment for undermining military efficiency. The
limitations on freedom of speech which were imposed in the enforcement
of these laws are revolting to our sense of justice. A court would have
no hesitation in condemning them under any free constitution, including
that of the Weimar republic, if the limitations were applied in time
of peace; but even under the protection of the Constitution of the
United States a citizen is not wholly free to attack the Government or
to interfere with its military aims in time of war. In the face of a
real and present danger, freedom of speech may be somewhat restricted
even in America. Can we then say that in the throes of total war and in
the presence of impending disaster those officials who enforced these
savage laws in a last desperate effort to stave off defeat were guilty
of crimes against humanity?
It is persuasively urged that the fact that Germany was waging a
criminal war of aggression colors all of these acts with the dye of
criminality. To those who planned the war of aggression and who were
charged with and were guilty of the crime against the peace as defined
in the IMT Charter, this argument is conclusive, but these defendants
are not charged with crimes against the peace nor has it been proven
here that they knew that the war which they were supporting on the
home front was based upon a criminal conspiracy or was _per se_
a violation of international law. The lying propaganda of Hitler and
Goebbels concealed even from many public officials the criminal plans
of the inner circle of aggressors. If we should adopt the view that
by reason of the fact that the war was a criminal war of aggression
every act which would have been legal in a defensive war was illegal
in this one, we would be forced to the conclusion that every soldier
who marched under orders into occupied territory or who fought in the
homeland was a criminal and a murderer. The rules of land warfare
upon which the prosecution has relied would not be the measure of
conduct and the pronouncement of guilt in any case would become a mere
formality. In the opinion of the Tribunal the territory occupied and
annexed by Germany after September 1939 never became a part of Germany,
but for that conclusion we need not rest upon the doctrine that the
invasion was a crime against the peace. Such purported annexations in
the course of hostilities while armies are in the field are provisional
only, and dependent upon the final successful outcome of the war. If
the war succeeds, no one questions the validity of the annexation.
If it fails, the attempt to annex becomes abortive. In view of our
clear duty to move with caution in the recently charted field of
international affairs, we conclude that the domestic laws and judgments
in Germany which limited free speech in the emergency of war cannot be
condemned as crimes against humanity merely by invoking the doctrine
of aggressive war. All of the laws to which we have referred could be
and were applied in a discriminatory manner and in the case of many,
the Ministry of Justice and the courts enforced them by arbitrary and
brutal means, shocking to the conscience of mankind and punishable
here. We merely hold that under the particular facts of this case we
cannot convict any defendant merely because of the fact, without more,
that laws of the first four types were passed or enforced.
A different situation is presented when we consider the cases which
fall within types 5, 6, and 7.
_TREASON AND HIGH TREASON_
We have expressed the opinion that the purported annexation of
territory in the East which occurred in the course of war and while
opposing armies were still in the field was invalid and that in point
of law such territory never became a part of the Reich, but merely
remained in German military control under belligerent occupancy. On 27
October 1939 the Polish Ambassador at Washington informed the Secretary
of State that the German Reich had decreed the annexation of part of
the territory of the Polish republic. In acknowledging the receipt
of this information, Secretary Hull stated that he had “taken note
of the Polish government’s declaration that it considers this act as
illegal and therefore null and void.”[646] The foregoing fact alone
demonstrates that the Polish Government was still in existence and was
recognized by the Government of the United States. Sir Arnold D. McNair
expressed a principle which we believe to be incontestable in the
following words:
“A purported incorporation of occupied territory by a military
occupant into his own kingdom during the war is illegal and
ought not to receive any recognition. * * *”[647]
We recognize that in territory under belligerent occupation the
military authorities of the occupant may, under the laws and customs
of war, punish local residents who engage in fifth column activities
hostile to the occupant. It must be conceded that the right to punish
such activities depends upon the specific acts charged and not upon the
name by which these acts are described. It must also be conceded that
Poles who voluntarily entered the Alt [old] Reich could, under the laws
of war, be punished for the violation of nondiscriminatory German penal
statutes.
These considerations, however, do not justify the action of the Reich
prosecutors who in numerous cases charged Poles with high treason
under the following circumstances: Poles were charged with attempting
to escape from the Reich. The indictments in these cases alleged that
the defendants were guilty of attempting, by violence or threat of
violence, to detach from the Reich territory belonging to the Reich,
contrary to the express provisions of section 80 of the law of 24 April
1934. The territory which defendants were charged with attempting
to detach from the Reich consisted of portions of Poland, which the
Reich had illegally attempted to annex. If the theory of the German
prosecutors in these cases were carried to its logical conclusion it
would mean that every Polish soldier from the occupied territories
fighting for the restoration to Poland of territory belonging to it
would be guilty of high treason against the Reich and on capture, could
be shot. The theory of the Reich prosecutors carries with it its own
refutation.
Prosecution in these cases represented an unwarrantable extension of
the concept of high treason, which constituted in our opinion a war
crime and a crime against humanity. The wrong done in such prosecutions
was not merely in misnaming the offense of attempting to escape from
the Reich; the wrong was in falsely naming the act high treason and
thereby invoking the death penalty for a minor offense.
_MEMBERSHIP IN CRIMINAL ORGANIZATIONS_
C. C. Law 10, article II, paragraph 1(_d_), provides:
“1. Each of the following acts is recognized as a crime:
* * * * * * *
“(_d_) Membership in categories of a criminal group or
organization declared criminal by the International Military
Tribunal.”
Article 9 of the IMT Charter provides:
“At the trial of any individual member of any group or
organization the Tribunal may declare (in connection with any
act of which the individual may be convicted) that the group or
organization of which the individual was a member was a criminal
organization.”
Article 10 of the IMT Charter is as follows:
“In cases where a group or organization is declared criminal
by the Tribunal, the competent national authority of any
Signatory shall have the right to bring individuals to trial
for membership therein before national, military or occupation
courts. In any such case the criminal nature of the group or
organization is considered proved and shall not be questioned.”
Concerning the effect of the last quoted section, we quote from the
opinion of the IMT in the case of United States, et al., _vs._
Goering, et al., as follows:
“Article 10 of the Charter makes clear that the declaration of
criminality against an accused organization is final and cannot
be challenged in any subsequent criminal proceeding against a
member of the organization.”[648]
We quote further from the opinion in that case:
“In effect, therefore, a member of an organization which the
Tribunal has declared to be criminal may be subsequently
convicted of the crime of membership and be punished for that
crime by death. This is not to assume that international or
military courts which will try these individuals will not
exercise appropriate standards of justice. This is a far
reaching and novel procedure. Its application, unless properly
safeguarded, may produce great injustice.”
* * * * *
“A criminal organization is analogous to a criminal conspiracy
in that the essence of both is cooperation for criminal
purposes. There must be a group bound together and organized for
a common purpose. The group must be formed or used in connection
with the commission of crimes denounced by the Charter. Since
the declaration with respect to the organizations and groups
will, as has been pointed out, fix the criminality of its
members, that definition should exclude persons who had no
knowledge of the criminal purposes or acts of the organization
and those who were drafted by the state for membership, unless
they were personally implicated in the commission of acts
declared criminal by article 6 of the Charter as members of the
organization. Membership alone is not enough to come within the
scope of these declarations.”[649]
The Tribunal in that case recommended uniformity of treatment so far as
practicable in the administration of this law, recognizing, however,
that discretion in sentencing is vested in the courts. Certain groups
of the Leadership Corps, the SS, the Gestapo, the SD, were declared to
be criminal organizations by the judgment of the first International
Military Tribunal. The test to be applied in determining the guilt of
individual members of a criminal organization is repeatedly stated in
the opinion of the First International Military Tribunal. The test is
as follows: Those members of an organization which has been declared
criminal “who became or remained members of the organization with
knowledge that it was being used for the commission of acts declared
criminal by article 6 of the Charter, or who were personally implicated
as members of the organization in the commission of such crimes” are
declared punishable.
Certain categories of the Leadership Corps are defined in the First
International Military Tribunal judgment as criminal organizations. We
quote:
“The Gauleiter, the Kreisleiter, and the Ortsgruppenleiter
participated, to one degree or another, in these criminal
programs. The Reichsleitung as the staff organization of the
Party is also responsible for these criminal programs as well as
the heads of the various staff organizations of the Gauleiter
and Kreisleiter. The decision of the Tribunal on these staff
organizations includes only the Amtsleiter who were heads of
offices on the staffs of the Reichsleitung, Gauleitung, and
Kreisleitung. With respect to other staff officers and Party
organizations attached to the Leadership Corps other than
the Amtsleiter referred to above, the Tribunal will follow
the suggestion of the prosecution in excluding them from the
declaration.”[650]
In like manner certain categories of the SD were defined as criminal
organizations. Again, we quote:
“In dealing with the SD the Tribunal includes Aemter III, VI,
and VII of the RSHA, and all other members of the SD, including
all local representatives and agents, honorary or otherwise,
whether they were technically members of the SS or not, but not
including honorary informers who were not members of the SS and
members of the Abwehr who were transferred to the SD.”[651]
In like manner certain categories of the SS were declared to constitute
criminal organizations:
“In dealing with the SS the Tribunal includes all persons who
had been officially accepted as members of the SS including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf-Verbaende, and the members of any of the
different police forces who were members of the SS. The Tribunal
does not include the so-called SS riding units.”[652]
C. C. Law 10 provides that we are bound by the findings as to the
criminal nature of these groups or organizations. However, it should be
added that the criminality of these groups and organizations is also
established by the evidence which has been received in the pending
case. Certain of the defendants are charged in the indictment with
membership in the following groups or organizations which have been
declared and are now found to be criminal, to wit: The Leadership
Corps, the SD, and the SS. In passing upon these charges against the
respective defendants, the Tribunal will apply the tests of criminality
set forth above.
_CRIMES UNDER THE NIGHT AND FOG DECREE_
[_NACHT UND NEBEL ERLASS_]
Paragraph 13 of count two of the indictment charges in substance that
the Ministry of Justice participated with the OKW and the Gestapo in
the execution of the Hitler decree of Night and Fog whereby civilians
of occupied countries accused of alleged crimes in resistance
activities against German occupying forces were spirited away for
secret trial by special courts of the Ministry of Justice within the
Reich; that the victim’s whereabouts, trial, and subsequent disposition
were kept completely secret, thus serving the dual purpose of
terrorizing the victim’s relatives and associates and barring recourse
to evidence, witnesses, or counsel for defense. If the accused was
acquitted, or if convicted, after serving his sentence, he was handed
over to the Gestapo for “protective custody” for the duration of the
war. These proceedings resulted in the torture, ill treatment, and
murder of thousands of persons. These crimes and offenses are alleged
to be war crimes in violation of certain established international
rules and customs of warfare and as recognized in C. C. Law 10.
Paragraph 25 of count three of the indictment incorporates by reference
paragraph 13 of count two of the indictment and alleges that the same
acts, offenses, and crimes are crimes against humanity as defined by C.
C. Law 10. The same facts were introduced to prove both the war crimes
and crimes against humanity and the evidence will be so considered by
us.
Paragraph 13 of count two of the indictment which particularly
describes the Hitler NN plan or scheme, charges the defendants
Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and
Schlegelberger with “special responsibility for and participation in
these crimes”, which are alleged to be war crimes.
Paragraph 8 of count two of the indictment charges all of the
defendants with having committed the war crimes set forth in paragraphs
9 to 18 inclusive of count two, in that they were principals in,
accessories to, ordered, abetted, took a consenting part in, and were
connected with plans and enterprises involving the commission of
atrocities and offenses against persons, including but not limited to
murder, illegal imprisonment, brutalities, atrocities, transportation
of civilians, and other inhumane acts which were set out in paragraphs
9 to 18 inclusive of the indictment as war crimes against the civilian
population in occupied territories.
Paragraph 20 of count three of the indictment charges all of the
defendants with having committed the same acts as contained in
paragraph 8 of count two as being crimes against humanity. Paragraphs
21 to 30 inclusive of count three refer to and adopt the facts alleged
in paragraphs 9 to 18 inclusive of count two, and thus all defendants
are charged with having committed crimes against humanity upon the same
allegations of facts as are contained in paragraphs 9 to 18 inclusive
of count two.
In the foregoing manner all of the defendants are charged with having
participated in the execution or carrying out of the Hitler NN decree
and procedure either as war crimes or as crimes against humanity, and
all defendants are charged with having committed numerous other acts
which constitute war crimes and crimes against humanity against the
civilian population of occupied countries during the war period between
1 September 1939 and April 1945.
The Night and Fog decree arose as the plan or scheme of Hitler to
combat so-called resistance movements in occupied territories. Its
enforcement brought about a systematic rule of violence, brutality,
outrage, and terror against the civilian populations of territories
overrun and occupied by the Nazi armed forces. The IMT treated the
crimes committed under the Night and Fog decree as war crimes and found
as follows:
“The territories occupied by Germany were administered in
violation of the laws of war. The evidence is quite overwhelming
of a systematic rule of violence, brutality, and terror. On 7
December 1941 Hitler issued the directive since known as the
‘Nacht und Nebel Erlass’ (Night and Fog decree), under which
persons who committed offenses against the Reich or the German
forces in occupied territories, except where the death sentence
was certain, were to be taken secretly to Germany and handed
over to the SIPO and SD for trial and punishment in Germany.
This decree was signed by the defendant Keitel. After these
civilians arrived in Germany, no word of them was permitted to
reach the country from which they came, or their relatives; even
in cases when they died awaiting trial the families were not
informed, the purpose being to create anxiety in the minds of
the families of the arrested person. Hitler’s purpose in issuing
this decree was stated by the defendant Keitel in a covering
letter, dated 12 December 1941, to be as follows:
“‘Efficient and enduring intimidation can only be achieved
either by capital punishment or by measures by which the
relatives of the criminal and the population do not know the
fate of the criminal. This aim is achieved when the criminal is
transferred to Germany.’
* * * * * * *
“The brutal suppression of all opposition to the German
occupation was not confined to severe measures against suspected
members of resistance movements themselves, but was also
extended to their families.”[653]
The Tribunal also found that:
“One of the most notorious means of terrorizing the people
in occupied territories was the use of the concentration
camps.”[654]
Reference is here made to the detailed description by the IMT judgment
of the manner of operation of concentration camps and to the appalling
cruelties and horrors found to have been committed therein. Such
concentration camps were used extensively for the NN prisoners in the
execution of the Night and Fog decree as will be later shown.
The IMT further found that the manner of arrest and imprisonment of
Night and Fog prisoners before they were transferred to Germany was
illegal, as follows:
“The local units of the Security Police and SD continued their
work in the occupied territories after they had ceased to be
an area of operations. The Security Police and SD engaged in
widespread arrests of the civilian population of these occupied
countries, imprisoned many of them under inhumane conditions,
and subjected them to brutal third degree methods, and sent many
of them to concentration camps. Local units of the Security
Police and SD were also involved in the shooting of hostages,
the imprisonment of relatives, the execution of persons charged
as terrorists and saboteurs without a trial, and the enforcement
of the Nacht und Nebel decree under which persons charged with
a type of offenses believed to endanger the security of the
occupying forces were either executed within a week or secretly
removed to Germany without being permitted to communicate with
their family and friends.”[655]
The foregoing quotations from the IMT judgment will suffice to show the
illegality and cruelty of the entire NN plan or scheme. The transfer of
NN prisoners to Germany and the enforcement of the plan or scheme did
not cleanse it of its iniquity or render it legal in any respect.
The evidence herein adduced sustains the foregoing findings and
conclusions of the IMT. In fact the same documents, or copies thereof,
referred to and quoted from in the IMT judgment were introduced
in evidence in this case. In addition, a large number of captured
documents and oral testimony were introduced showing the origin and
purpose of the Night and Fog plan or scheme, and showing without
dispute that certain of the defendants with full knowledge of the
illegality of the plan or scheme under international law of war and
with full knowledge of the intended terrorism, cruelty, and other
inhumane principles of the plan or scheme became either a principal, or
aided and abetted, or took a consenting part in, or were connected with
the execution of the illegal, cruel, and inhumane plan or scheme.
Hitler’s decree was signed by Keitel on 7 December 1941 and was
enclosed in Keitel’s covering letter of 12 December 1941, which was
referred to and quoted from in the IMT judgment. The Hitler decree
states that since the opening of the Russian campaign Communist and
anti-German elements have increased their assaults against the Reich
and the occupation power in the occupied territories and that the most
severe measures should be directed against these malefactors “to
intimidate them”. The decree further declares in substance (_1733-PS,
Pros. Ex. 303_):
“1. Criminal acts committed by non-German civilians directed
against the Reich or occupation forces endangering their safety
or striking power should require the application of the death
penalty in principle.
“2. Such criminal acts will be tried in occupied territories
only when it appears probable that the death sentence will be
passed and carried out without delay. Otherwise the offenders
will be carried to Germany.
“3. Offenders taken to Germany are subject to court martial
procedures there only in case that particular military concern
should require it. German and foreign agencies will declare upon
inquiries of such offenders that the state of the proceedings
would not allow further information.
“4. Commanders in chief in occupied territories and the
justiciaries within their jurisdiction will be held personally
responsible for the execution of this decree.
“5. The chief of the OKW will decide in which of the occupied
territories this decree will be applied. He is authorized to
furnish explanations and further information and to issue
directives for its execution.”
In addition to the Hitler decree there were also enclosed in Keitel’s
letter of 12 December 1941 the “First Decree” of directives concerning
the prosecution of crimes against the Reich or occupation power in
occupied territories under the Hitler decree. This first Decree was
signed by Keitel and was marked “Secret.” It contains seven sections
relating to the crimes intended to be prosecuted under the Hitler
decree and the manner and place of trials and execution of sentences.
Section I of the first decree declares that the directive will be as a
rule applicable in cases of: (_671-PS, Pros. Ex. 304._)
1. Assault with intent to kill.
2. Espionage.
3. Sabotage.
4. Communist activity.
5. Crimes likely to disturb the peace.
6. Favoritism toward the enemy, the following means: Smuggling of men
and women; the attempt to enlist in an enemy army; and the support of
members of the enemy army (parachutists, etc.).
7. Illegal possession of arms.
Section II of the secret decree declares that the culprits are not to
be tried in occupied territories unless it is probable that a death
sentence will be pronounced, and it must be possible to carry out the
execution of the death sentence at once; in general, a week after the
capture of the culprit. It further states:
“Special political scruples against the immediate execution of
the death sentence should not exist.”
Section III of the first directive declares that the judge in agreement
with the intelligence office of the Wehrmacht decides whether the
condition for a trial in occupied territories exists.
Section IV declares that the culprits who are to be taken to Germany
will be subjected there to military court proceedings if the OKW or the
superior commanding officer declares decisions according to section III
(above) that special military reasons require the military proceedings.
In such instances the culprits are to be designated “prisoners of the
Wehrmacht” to the Secret Field Police. If such declaration is not made,
the order that the culprit is to be taken to Germany will be treated as
transferring according to the intentions of the decree.
Section V declares that “the judicial proceedings in Germany will be
carried out under strictest exclusion of the public because of the
danger for the State’s security. Foreign witnesses may be questioned at
the main proceedings only with the permission of the Wehrmacht.”
Section VI of the first decree declares that former decrees concerning
the situation in Norway and concerning Communists and rebel movements
in the occupied territories are superseded by these directives and
executive order.
Section VII of the secret decree declares that the directives will
become effective 3 weeks after they are signed and that the directives
will be applied in all occupied territories with the exception of
Denmark until further notice. The orders issued for the newly occupied
Eastern territories are not affected by these directives. The order was
expressly made effective in Norway, Holland, France, Bohemia, Moravia,
and the Ukraine occupied areas. In actual operation, Belgium and all
other of the western occupied countries came within the decree.
The Hitler decree was sent to the Reich Minister of Justice on 12
December 1941 endorsed for the attention of defendant Schlegelberger.
On the same day (12 December 1941) Keitel informed other ministries of
Hitler’s decree, directing that all such information proceedings were
to be conducted in absolute secrecy.
On 16 December 1941, officials of the Ministry of Justice (Schaefer and
Grau, associates of defendant Mettgenberg in Department III) drafted
a proposed order for the execution of the Hitler NN decree by the
Ministry of Justice, the courts, and the Reich prosecution. This was
forwarded to General Lehmann, head of the OKW legal department for his
approval.
Other correspondence took place between the Reich Ministry of Justice
and the OKW relating to the final draft of the Night and Fog order.
This correspondence occurred between 16 December and 25 December 1941.
It related to the reservation of the competency of the Ministry of
Justice or Under Secretary of State Freisler in the execution of the
Hitler decree. These reservations were incorporated in a circular
decree dated 6 February 1942, supplementing NN regulations as follows
(_NG-232, Pros. Ex. 308_):
“Circular Decree:
“On the execution of the executive decree of 6 February 1942,
relating to the directives issued by the Fuehrer and Supreme
Commander of the Wehrmacht for the prosecution of criminal
acts against the Reich or the occupation power in the occupied
territories.
“For the further execution of the directives mentioned before I
ordain:
“1. Competent for the handling of the cases transferred to
ordinary courts including their eventual retrial are: the
Special Court and the chief prosecutor in Cologne as far as they
originate from the occupied Belgian and Netherlands territories,
the Special Court and the chief prosecutor in Dortmund; as far
as they originate from the occupied Norwegian territories, the
Special Court and the chief prosecutor in Kiel; for the rest,
the Special Court and the attorney general at the county court,
Berlin. In special cases I reserve for myself the decision of
competence for each individual case.
“2. The chief prosecutor will inform me of the indictment, the
intended plea, and the sentence as well as of his intention to
refrain from any accusation in a specific case.
“3. The choice of a defense counsel will require the agreement
of the presiding judge who makes his decision only with the
consent of the prosecutor. The agreement may be withdrawn.
“4. Warrants of arrests will be suspended only with my
consent. If such is intended, the prosecutor will report to me
beforehand. He will furthermore ask for my decision before using
foreign evidence or before agreeing to its being used by the
tribunal.
“5. Inquiries concerning the accused person or the pending trial
from other sources than those Wehrmacht and police agencies
dealing with the case will be answered by merely stating that
* * * is arrested and the state of the trial does not allow
further information.”
This supplementary decree was signed for Dr. Freisler by chief
secretary of the ministerial office.
The letter of the same Dr. Freisler to Minister of Justice Thierack
dated 14 October 1942, shows that in accordance with his promise
to Thierack he had conducted preliminary proceedings through Reich
departmental officials and with Lehmann, Chief of the Legal Division
of the OKW, concerning the matter of the Ministry of Justice taking
over the Night and Fog proceedings under the Hitler decree. Such top
secret negotiations had lasted for several months. The last conference
was held on 7 February 1942. On that day the final decree was
drafted, approved, and was “the decree of 7 February 1942, signed by
Schlegelberger” as Acting Minister of Justice. Defendant Schlegelberger
testified that he signed the decree. He thereby brought about the
enforcement by the Ministry of Justice, the courts, and the prosecutors
of a systematic rule of violence, brutality, outrage, and terror
against the civilian population of territories overrun by the Nazi
armed forces resulting in the ill-treatment, death, or imprisonment of
thousands of civilians of occupied territories.
The taking over of the enforcement of the Hitler NN decree was based
solely upon the afore-mentioned secret agreement, plan, or scheme. All
of the defendants who entered into the plan or scheme, or who took part
in enforcing or carrying it out knew that its enforcement violated
international law of war. They also knew, which was evident from the
language of the decree, that it was a hard, cruel, and inhumane plan
or scheme and was intended to serve as a terroristic measure in aid of
the military operations and the waging of war by the Nazi regime. We
will at this point let some of those who originated the plan or scheme
or who took part in its execution relate its history and its illegal,
cruel, and inhumane purposes.
Rudolf Lehmann, who was Chief of the Legal Division of the OKW,
testified concerning the Nacht und Nebel Decree of 7 December 1941. He
stated that even before the beginning of the war and more particularly
after the beginning of the war, there was a controversy between Hitler
and his generals on the one part and between Hitler and the Gestapo on
the other part as to the part which should be performed by the military
department of justice. He testified:
“Hitler held it against the administration of justice by the
armed forces and within the armed forces that they did not
sufficiently support his manner of conducting the war.”
He further testified that Hitler had--
“Used the expression that the military justice indeed sabotaged
his conduct of war. These reproaches first emanated from the
Polish campaign. There the military justice--the justice
administration of the armed forces--was reprimanded that it had
not acted sufficiently severe against members of bands. The next
reprimands of that kind occurred during the French campaign.”
Lehmann further testified that Keitel had passed on to him a directive
which he had received from Hitler in October of 1941. This directive
was quite long in which Hitler referred to the resistance movement in
France, which he stated was a tremendous danger for the German troops
and that new means would have to be found to combat this danger.
There was therefore a discussion of the resistance movement. The army
was opposed to the plan because it involved them in violations of
international law of war. It was then suggested in the discussion that
the Gestapo should be given that power. But even in this Hitler’s ideas
were overruled. It was at this point that he, Lehmann, suggested that
the matters--
“Should continue to be dealt with by judges, and since the
aversion of Hitler against the armed forces justice was known,
it could be assumed that he would still prefer civilian courts
than us.”
Lehmann further testified that Hitler--
“Attributed a higher political reliability to civilian justice
later because later he took all political criminal cases away
from us and gave it to civilian justice.”
At this point Lehmann discussed the matter with Under Secretary
Freisler because Freisler dealt with the criminal cases in the
Ministry. He was told by Freisler that the matter would have to be
taken up with Schlegelberger. Lehmann further testified:
“I discussed with him the proposition that the cases which
the military courts in France would not keep should be taken
over and dealt with by and tried by the civilian justice
administration. I can only say that Freisler told me that first
he had to think it over; and secondly, he had to discuss it with
Under Secretary Schlegelberger who was at that time in charge of
the Ministry. * * * Freisler told me that he had to ask the man
who was in charge of the Ministry, the acting minister * * * for
permission and authority on behalf of the Ministry of Justice
to try the Nacht und Nebel cases. * * * As I was informed about
the routine in the Ministry, Schlegelberger, who was then acting
Minister of Justice, was in my opinion the only person who could
consent to take over these Nacht und Nebel cases by the Ministry
of Justice.”
Lehmann further testified: