Klemm maintains that his supervision of Departments III, IV, and V was

merely on paper. However, the testimony of Hecker does not bear this

out as regards Department V, nor does the testimony of Eggensperger.

During this period the decree against Poles and Jews was still being

enforced under the jurisdiction of the Ministry of Justice insofar as

any was left, outside the sphere of the Gestapo and the concentration

camps.

During this period the Ministry of Justice still dealt with Nacht und

Nebel cases. The defendant Klemm denies, in general, knowledge of NN

procedure. Fourteen exhibits have been introduced in this case showing

transactions concerning NN matters, subsequent to the time Klemm took

over the office of State Secretary. The defendant admits knowledge that

Nacht und Nebel prisoners were transferred from Essen to Silesia. He

admits refusal of spiritual care for NN prisoners by foreign clergymen.

He admits knowledge of a draft of a letter from Thierack to Bormann

to the effect that NN women who were not to be executed should be so

advised. He admits denying clemency to eight NN prisoners when he was

acting as deputy for Thierack. In the remaining 123 cases, clemency was

denied by Thierack when Klemm was presumably sitting in conference with

him.

Among the fourteen documents enumerated above is a report from the

defendant von Ammon, initialed by Klemm, relative to a trip concerning

NN matters. This report states (_NG-231, Pros. Ex. 332_):

“The Military Commander in Chief, France, is grateful for the

evidence which the military courts in occupied French territory

receive as a result of the activity of the general legal

authorities concerned with the prosecution and trial of NN cases

in occupied French territory.”

Klemm explains this document by stating that he merely approved the

trip. With the above explanations, Klemm’s counsel stated:

“These are the only documents which the prosecution has

submitted against you as far as NN cases are concerned.”

In view of the fact that Klemm was State Secretary when these matters

were disposed of and, nominally at least, charged with supervision of

Department IV where they were handled, this conclusion is not one which

this Tribunal accepts.

With regard to clemency during the time the defendant was State

Secretary, Klemm is shown to have dealt with clemency matters as the

advisor of Thierack when he was present and as his deputy in his

absence. He states that personally he dealt only with clear cases and,

further, that in clear cases clemency had been disapproved by seven

agencies before it became a clear case. He states that clear cases were

legally incontestable.

His testimony that in clear cases seven agencies disapproved clemency

during the period when he was State Secretary, does not conform to the

testimony of the defendant Lautz or with Exhibit 279 which Lautz cites.

Lautz’ testimony on this point is as follows:

“The examination of these clemency pleas for their correctness

was no longer possible for the prosecutions in the majority of

cases. The prosecutors now had to restrict themselves to adding

the pleas to their reports without changing them. The time limit

laid down in the decree was, as a rule, not adhered to because

the offices at the People’s Court and the Reich prosecution were

so overburdened that it was impossible for them to submit the

files within the time limit set. Owing to that, occasionally

there was sufficient time to make further investigations in the

matter of the clemency plea. However, the opinion of the court,

the prison, and all other agencies was no longer heard. They had

been of importance before.” (_Tr. p. 5947._)

Moreover, what may constitute a legally incontestable case is subject

to considerable speculation. Presumably a case based upon a confession

would be legally incontestable. Certainly it can hardly be assumed that

the defendant Klemm was unaware of the practice of the Gestapo with

regard to obtaining confessions. He had dealt with this matter during

his early period with the department of justice. It is hardly credible

that he believed that the police methods which at an earlier time were

subject to some scrutiny by the Ministry of Justice, had become less

harsh because the Gestapo, in October of 1940, was placed beyond the

jurisdiction of law. He must have been aware that a prolific source of

clear cases based on confessions and, therefore, legally incontestable,

came to him from the obscurity of the torture chamber.

During the time Klemm was State Secretary, the plan of the leaders of

the Nazi state to inspire the lynching of Allied fliers by the people

of Germany was inaugurated, and during this period the matter of

execution of approximately 800 political prisoners, prior to evacuation

of the penitentiary at Sonnenburg, took place. These matters will be

dealt with more fully hereafter.

As heretofore pointed out in this opinion, the essential elements to

prove a defendant guilty under the indictment in this case are that

a defendant had knowledge of an offense charged in the indictment

and established by the evidence, and that he was connected with the

commission of that offense.

As to the matter of knowledge of the defendant Klemm, aside from the

sources of knowledge heretofore pointed out in this opinion in regard

to all of the defendants herein, certain other facts are significant.

The defendant’s sources of information were of a wide scope. He had

been the liaison officer between the administration of justice and the

SA in Saxony and the legal advisor of the chief of the SA for Saxony.

On transfer to Berlin, he acted in the same capacity with the SA main

office for the Third Reich and was the liaison officer between the

Ministry of Justice and the SA Main office. In Holland he was head of

the department of legal matters under Seyss-Inquart. He served with the

Office of the Deputy of the Fuehrer and Party Chancellery from March

1941 to January 1944. There he was in charge of Group III-C. He was

the friend of Klopfer in charge of Group III and, from the evidence,

a trusted lieutenant of Bormann. Finally, he was State Secretary under

Thierack, whom he had known since he was his adjutant and personal

Referent in Saxony. In Berlin he lived with Thierack for the period in

which he was State Secretary.

Klemm’s career under the Third Reich moved smoothly from comparative

insignificance to the position of State Secretary in the Ministry of

Justice. His ascent was marked by no serious differences as to Party

policies. He was close to both Bormann and Thierack and ascended by

their favor. Under the circumstances it is not credible that he was

ignorant of the policies and methods of these ruthless figures.

The defendant lays great stress on an order of Hitler as to secrecy

and states that in connection with this order he adhered strictly to

it; that he did not attempt to hear anything outside of his official

duties. Such orders as to secrecy were not confined to Germany during

the war; they were standard procedure in other countries and by no

means excluded knowledge of secret matters derived from normal human

contacts, particularly friends and acquaintances in the higher levels

of state affairs. Further, the confidential position held by the

defendant gave him a wide scope as to secret matters within the sphere

of his official duties. As State Secretary of the Ministry of Justice

and deputy of the minister in his absence, the defendant’s official

duties required knowledge of the higher spheres of State policy.

More specifically, Klemm knew of abuses in concentration camps. He knew

of the practice of severe interrogations. He knew of the persecution

and oppression of the Jews and Poles and gypsies. He must be assumed

to have known, from the evidence, the general basis of Nacht und Nebel

procedure under the Department of Justice. Therefore, it becomes

important to consider his connection with the carrying out of these

crimes alleged in the indictment and established by the evidence in

this case.

It is clear from the evidence, heretofore outlined in part, that when

the defendant Klemm was in Holland he knew of the persecution of Jews

and he was connected to some extent with that persecution.

While he was in the Party Chancellery he wrote the letter, heretofore

pointed out, denying the application of the German juvenile law to

Poles, Jews, and gypsies. This Tribunal does not construe that letter

as a legal opinion but as an expression of Party policy, submitted

through the Party Chancellery to the Ministry of Justice to the effect

that minors of the prescribed races must be subject to the merciless

provisions of the decree against Poles and Jews. The argument that

they were necessarily excluded because they were foreigners, and

that the German Juvenile Act contemplated entrance into the Hitler

Youth, and similar provisions applicable only to Germans has little

significance when the letter itself expressly states that there were

no objections to applying the German Criminal Code for juveniles to

foreign juveniles, unless they were Poles, Jews, or gypsies. Further,

it can hardly be construed as a legal opinion as to gypsies in view

of the statement therein made that a special regulation will come

into effect which will prevent the German Criminal Code for juveniles

from applying to gypsies and those of gypsy descent merely because a

definite regulation is lacking.

While in the Party Chancellery, Klemm took part in drafting the law to

make treason retroactive and applying it to annexed territories, and

this draft bears his signature.

As State Secretary he knew of the NN procedure and was connected

therewith, particularly as to the approximately 123 NN prisoners

sentenced to death who were denied clemency while he sat in conference

with Thierack, and in the eight cases where he denied clemency as

deputy for Thierack.

As State Secretary in the Ministry of Justice, he necessarily exercised

supervision over the enforcement of the decree against Poles and Jews

and dealt with clemency matters pertaining to cases tried under that

decree.

In connection with the defendant Klemm, two other transactions

constituting crimes charged in the indictment are of particular

significance. The first of these is charged under the second count

of the indictment as a war crime against all the defendants and,

particularly under paragraph 18 of the indictment, charging the

defendant Klemm with special responsibility and participation. This

pertains to the inciting of the German population to murder Allied

airmen forced down within the Reich.

Evidence of this plan of the leaders of the German State is found as

follows: First in the correspondence relative to the treatment of

so-called “enemy terrorist airmen”. As part of this correspondence

from the deputy chief of the operations staff of the armed forces,

entitled “Secret matter”, dated 6 June 1944, and signed by General

Warlimont,[668] the following sentence is significant:

“Lynch justice should be considered as being the rule.” Further, a

draft of a letter, dated Salzburg, 20 June 1944, to the Chief of the

High Command of the Armed Forces, apparently drawn by the Foreign

Office, contains this paragraph:

“The above considerations warrant the general conclusion that

the cases of lynching ought to be stressed in the course of

this action. If the action is carried out to such an extent * *

* the deterring of enemy airmen is actually achieved.”

In furtherance of this plan, Goebbel’s speech of 27 May 1944 is cited

and the letter from the Chief of the Party Chancellery, Fuehrer

Headquarters, 30 May 1944, marked “Secret--not for publication,” and

bearing the initials of Thierack, concerning “the people’s judgment

of Anglo-American murders,” signed by Bormann, is significant,

particularly the following paragraph:

“No police or criminal proceedings have been taken against the

citizens who have taken part herein.”

The distribution of this circular was as follows: “Reichsleiter,

Gauleiter, Verbaendefuehrer, Kreisleiter,”[669] and contains the

following note to all Gauleiter and Kreisleiter, initialed by Thierack

and signed by Friedrichs:

“The Chief of the Party Chancellery requests that the

Kreisleiter inform the Ortsgruppenleiter only verbally of the

contents of this circular.”

Exhibit 109 [635-PS, Pros. Ex. 109] is of even greater significance.

This is a letter from the Reich Minister and chief of the Reich

Chancellery, dated 4 June 1944, to the Reich Minister of Justice, Dr.

Thierack, headed, “Regards people’s justice against Anglo-American

murders”. This letter is quoted in its entirety:

“The Chief of the Party Chancellery informed me about the

enclosed transcript of a secret circular letter and requested me

likewise to inform you.

“I herewith comply with this and beg you to consider how far you

want to instruct the courts and district attorneys with it.

“The Reich Leader and Chief of the German Police has, as I was

further told by executive leader Bormann, so instructed his

police leaders.”

It contains a handwritten note, initialed by Thierack as a signature

and also initialed by Klemm, which reads as follows:

“Return note with the addition that such cases are to be

submitted to me for the purpose of their examination for

quashing in case proceedings are pending.”

In this adroit plan to encourage the murder of Allied airmen and escape

the responsibility, therefore, under the recognized rules of warfare,

the procedures adopted by the Ministry of Justice were unique and

worthy of the legal minds of those who dealt with the matter. As shown

in the affidavit of Pejlovec, a secret directive was sent out by the

Ministry of Justice calling for reports in cases of the lynching of

Allied airmen. This directive was interpreted by Pejlovec to the effect

that no prosecutions were contemplated.

The witness Dr. Gustav Mitzschke, Referent in the legislative

department, testified that he was instructed to call upon the State

Secretary, which he did, and received the following instructions:

“When you talk to General Public Prosecutor Helm at Munich,

please tell him that in cases where Allied fliers have been

killed or ill-treated, the police and any other agencies

concerned are to pass on the files to the prosecution office,

and that the prosecution as quickly as possible must make a

report to the minister and also forward the files.”

Helm issued a directive to the prosecutors under him. This directive

called for reports and files in such cases and stated that they were

necessary because sometimes other factors, such as robbery or the use

of Allied uniforms to cover the murder of Germans, had to be considered.

Klemm stated that Mitzschke was directed to inform Helm that reports

were to be given in all cases.

The witness Helm stated that the note in conformity with Mitzschke’s

instructions as to the reports to be made was written and sent

out, he thinks, on the same day of Mitzschke’s visit and, in his

cross-examination he states that he is sure it was not later than the

day after Mitzschke’s visit.

The witness Hans Hagemann, general public prosecutor at Duesseldorf,

testified that he was directed that in such cases a report had to be

made to the Ministry of Justice. He also verified the secret decree

sent out by the Minister of Justice.

The nature of the reports called for, in itself, is not considered by

this Tribunal of particular importance. Thierack had directed Klemm,

as shown above, to submit to him reports as to cases pending “for

quashing.” The procedure followed by the Ministry went beyond this in

that it required reports and the transmittal of files of cases where no

indictment had as yet been issued. The Ministry of Justice thus took

over, in substance, the disposition of these cases and the prosecution

throughout Germany was thereby restricted in its normal duty of filing

indictments against those who had murdered Allied airmen and were

criminals under German law. From the evidence in this case and from

sources of judicial information, this Tribunal knows of many instances

of the lynching of Allied airmen by the German population. No case has

been brought to the attention of this Tribunal where an indictment

was actually filed for such offenses. What reports and files were

submitted to the Ministry of Justice we do not know, but it is obvious

that such reports as were made were allowed to die in the archives of

the Ministry.

There is evidence as to one case pertaining to this matter. The

defendant Klemm in his testimony refers to it. Around the turn of the

year 1944–45 in Kranenburg, in the district of the court of appeals,

Duesseldorf, an SA leader had shot two captured paratroopers in cold

blood. Regarding this, Klemm stated:

“We prosecuted that case and even though the police, as well

as the Party offices, offered considerable resistance, these

discussions were advanced energetically. I do not know of the

final outcome.”

The evidence in this case, as shown by the testimony of Hagemann,

indicates that during September of 1944, at the time of the Allied

parachute attack on Arnhem two captured Canadian paratroopers were shot

by one Kluetgen while a Kreisleiter stood by and either permitted or

encouraged the shooting.

The witness Hagemann undertook to investigate the matter but was unable

to do so fully because a Kreisleiter could not be so examined if he

refused to testify. It was necessary if the Kreisleiter was to be

examined to have the approval of the Party Chancellery. An application

was made for such consent but it was never given. Hagemann stated that

he made a report over the telephone to the Ministry about the case.

He believed he spoke with the defendant Mettgenberg. Afterwards he

made a written report to the Ministry of Justice. He told the Ministry

that he needed their support to obtain permission for the Kreisleiter

to testify. He received written instructions to clear up the case

completely, but since no approval was received to interrogate the

Kreisleiter, he could not continue the proceedings. He stated, that

again and again he requested the Ministry to obtain permission for

him to examine the Kreisleiter. When asked whether he heard from the

Ministry regarding this authority, he stated that he had not.

Permission to examine the Kreisleiter not having been obtained, he

was never examined. Up to the time of the capitulation of Germany, no

indictment had been filed against Kluetgen. This apparently was the

prosecution and energetic action on the part of the Ministry of Justice

to which Klemm referred in his testimony. In many cases discussed

before this Tribunal, indictment, trial, and final execution were

certainly more expeditiously handled.

In this plan to incite the population to murder Allied airmen, the

part of the Ministry of Justice was, to some extent, a negative one.

However, neither its action in calling for a report on pending

cases for quashing, nor its action in calling for reports and files

pertaining to all such incidents, was negative. Certainly the net

effect of the procedure followed by the Ministry of Justice resulted in

the suppression of effective action in such cases, as was contemplated

in the letter from the Reich Ministry and Chief of the Reich

Chancellery to the Ministry of Justice.

The defendant Klemm was familiar with the entire correspondence on

this matter. He specifically directed the witness Mitzschke to obtain

reports. His own testimony shows that he knew of the failure to take

effective action in the case cited, and it is the judgment of this

Tribunal that he knowingly was connected with the part of the Ministry

of Justice in the suppression of the punishment of those persons who

participated in the murder of Allied airmen.

The second transaction of particular importance with regard to the

defendant Klemm is connected with the penitentiary at Sonnenburg. The

record in this case shows that in the latter part of January 1945 this

great penal institution under the Ministry of Justice was evacuated and

that prior thereto, between seven and eight hundred political prisoners

therein were shot by the Gestapo.

Klemm denies knowledge of this matter and states:

“From the documents in this case only, particularly from the

affidavit of Leppin, I found out that over 800 persons were shot

at Sonnenburg.”

He testified further that about the middle of January, Thierack had

told him that Himmler had subordinated the prisoners at Sonnenburg

to his own command and that as Minister of Justice of the Reich he,

Thierack, could no longer do anything in regard to this institution. He

testified further:

“It is not only my opinion but it was absolutely clear that at

that time that penal institution was exclusively under the order

of Himmler.”

He stated that he spoke to Hansen about the subject of Sonnenburg

after this conversation with Thierack as to the change in authority,

and that Hansen knew about such change. He testified further “that the

prisoners were turned over to the Gestapo, I only found out here in

this courtroom.”

As to what occurred in the Ministry of Justice with regard to the

evacuation of Sonnenburg, the testimony of Robert Hecker is important.

Hecker was the Referent in the department of justice in Department V of

Berlin. Hecker testified in substance as follows: that in discussions

with Hansen, the general public prosecutor for the Kammergericht in

Berlin and the official under the Ministry of Justice responsible

for certain matters in penal institutions, Hansen told him it might

be necessary to evacuate Sonnenburg and that preliminary discussions

had been carried on; that he, Hansen, had discussed the matter with

the State Secretary with regard to the measures to be taken, and he

had misgivings and suggested to Hecker that Hecker discuss the matter

with the State Secretary. Hecker further stated that when he was the

official on duty one night for the Minister of Justice, he received a

telephone call from the director at Sonnenburg to the effect that a

Russian break-through had taken place and asking for instructions; that

he thereupon called Thierack at his home and asked for instructions and

Thierack stated that the institution would be defended, and that the

authorities at the institution were so informed. As the break-through

did not then threaten the penitentiary, this order was not carried

out. Hecker testified that later the director of the prison asked what

measures he should take if the occasion should arise and that thereupon

he called the general public prosecutor at the Kammergericht as to what

instructions had been issued. The general public prosecutor was away at

that time but the Referent who was present informed him that according

to the instructions issued, the police were supposed to be informed

in the case of evacuations. He testified further that Eggensperger, a

Referent in Department V of the Ministry of Justice, who was on duty

the night of the evacuation of Sonnenburg, had informed him the next

morning that the prison had been evacuated; that Eggensperger told

him that Hansen had called the night before, stating that the action

of turning the prisoners not to be evacuated over to the Gestapo was

under way and, when questioned as to whether it had been authorized by

the Ministry of Justice, Hansen had named Klemm as the person in the

Ministry who knew of and approved the transaction. He stated further

that Eggensperger had made a typewritten note reporting his telephone

conversation with Hansen and that he had received a copy of the note.

On cross-examination the witness Hecker testified in substance that

he was himself in charge of the problem of the evacuation of prisons.

When asked if he had heard that Himmler, in the middle of January, had

issued an order concerning Sonnenburg, he answered that he had not and

repeatedly denied any knowledge to the effect that Himmler had taken

charge at Sonnenburg, and stated that he had not heard any rumor in the

Ministry of Justice to the effect that Thierack had given up authority

to issue orders concerning Sonnenburg. He stated that the conversation

with Thierack over the telephone was at night and that Thierack had

merely answered briefly his inquiry, stating that the institution would

be defended. He testified that during the course of that night he

repeatedly spoke to the authorities in Sonnenburg penitentiary and that

he tried to contact the competent person in the Kammergericht, namely

Hansen, in regard to the matter. Hecker stated that the director of

the penitentiary knew that some kind of an agreement with the Gestapo

existed and what he should do in the case of an evacuation, and that

there were secret directives for evacuating penitentiaries and prisons.

As to the note made by Eggensperger, he stated that it included a

statement to the effect that the matter had been discussed between the

General Public Prosecutor and the State Secretary Klemm. When asked

about what happened to prisoners not evacuated, he replied that “as far

as I was informed, the prisoners were shot by the Gestapo.”

The testimony of Eggensperger in connection with the evacuation of

Sonnenburg is also significant. Eggensperger testified that he was an

official in the penal execution department of the Ministry of Justice;

that he was the official on duty for the entire Ministry of Justice to

whom telephone calls were channeled on the night that Hansen reported

the evacuation of Sonnenburg. Hansen called him during the night

and informed him that during that night the prisoners of Sonnenburg

penitentiary would be handed over to the Gestapo; that a detachment

of the Gestapo had already arrived at Sonnenburg; and that the action

was under way. “Hansen told me that this evacuation, or rather this

transfer of the prisoners being carried out, was because the enemy

constituted an immediate danger to the prison.” When asked whether

this directive had been approved by anyone in the Ministry of Justice,

Hansen answered, “Yes. This matter has been discussed with the State

Secretary Klemm.” He testified as to the note which he made reporting

the transaction, and that Hecker received a copy of this note. He

stated that he had been deeply impressed by the information which he

had received and asked Hecker if it was true that the State Secretary

knew anything about the matter and approved it, and when asked what

Hecker said, he answered:

“Hecker shrugged his shoulders. He looked at me and said, ‘Well,

Hansen has--’ Well, I can only give you the sense of what he

says, that Hansen has fooled this Under Secretary of State and

he has got around him, or he impressed him. I think he said,

‘Hansen has convinced the Under Secretary of State to approve

it.’”

He further stated that when he asked Hansen whether the minister or the

Ministry were familiar with the matter, he answered in the affirmative

and told him that the State Secretary knew about it and that he had put

this down in his file note.

On cross-examination when asked if, as a liaison officer in Berlin in

Department V, he reported repeatedly to the defendant Klemm in his

capacity as State Secretary, he answered, “Yes.” When asked with what

matters he was concerned, he answered, “Again and again there were

current matters which had to be discussed with the State Secretary who

wanted some information and some information I gave him myself. In

some complicated cases I asked the officials in charge to come in.”

The witness also testified that because of Klemm’s personality he,

Eggensperger, was quite surprised at the action of Klemm and that was

why he discussed the matter with Hecker in the morning. He testified

further that it was his duty to make the file note as to the telephone

conversation which he had received; that that file note was, he would

say, about a half of a typewritten page. When asked if the file note

included the name Klemm in connection with the fact that Hansen had

referred to him, he answered, “Yes.” When asked whether Hansen spoke

about an agreement, whether he used the word “agreement,” the witness

answered that while he could not state the exact word used, that Hansen

informed him that the matter had been discussed and approved, and

stated that Hansen “reported to me the execution of a directive which

had been issued.” He further stated:

“If you ask me concerning the execution, it was the report of a

general public prosecutor concerning an important occurrence in

a penitentiary. I would formulate it like that. It was his duty

to report this matter.”

When asked if the name Klemm was mentioned by Hansen because Hansen had

noticed that the witness had some doubts, the witness answered:

“I certainly didn’t ask him whether the State Secretary had a

report on that matter. I certainly asked him that the minister

knew about it, and therefore, it was striking that he did not

refer to the minister himself but rather to Klemm.”

He further testified:

“I was the only official, apart from Hecker, in Department V,

who had remained in Berlin, and in that capacity I maintained

contact between the Ministry--that is the RMJ--and the evacuated

divisions. If Hansen was given any instructions, then it was I

who passed them on to him. That brought about the fact that I

had frequent contact with him, particularly over the telephone.”

He stated further that he never heard of anybody being called to

account for the action taken in connection with the massacre at

Sonnenburg.

Pertaining to the question as to who had the authority to determine

what prisoners were to be evacuated in case of evacuation and what

prisoners were to be turned over to the Gestapo for liquidation,

[NG-030, Pros. Exhibit 290] is important.

This exhibit includes the directive from the Reich Ministry of Justice,

dated 5 February 1945, which is designated “Secret,” to the public

prosecutor in Linz, re: preparation for an evacuation of the penal

institution within the district of Oberlandesgericht Graz. This letter

shows enclosures. It states as follows:

“In view of the proximity of the front line I have advised the

public prosecutor in Graz to make the necessary preparations

for possible evacuation of the penal institutions within his

jurisdiction, and I have decided that your district shall be the

reception center for these institutions. You are requested to

take any steps which may be necessary for their reception, as it

might [become urgent at any moment. You will also get in touch]

with the public prosecution in Graz and exchange all necessary

particulars with him for the settlement of questions concerning

you both. For details I refer to the enclosed directives. You

are requested to keep me informed of whatever steps you take.”

It also includes a directive from the Reich Ministry of Justice

with the file mark “IV a 56/45 g,” dated Berlin, 12 February 1945,

marked “Secret,” and also contains the stamp of the Oberlandesgericht

president at Linz, “Received 9 March 1945.” It is designated,

“Relieving of the Penitentiaries.” It shows enclosures as follows:

“Additional copies for the public prosecutor and all independent penal

institutions.” This directive states, among other things:

“Foreigners can only be set free in full agreement with the

police authorities; otherwise they must be transferred to the

police.”

This directive is signed “Thierack.”

The exhibit contains further a directive to the public prosecutors,

Linz, and is in part as follows:

“To the: Public Prosecutors, Linz.

The authorities in charge of the independent

administrative offices.

Judges in charge of the juvenile prisons in Ottenheim

[and Mattighofen].

“For their knowledge and consideration. The circulars given in

the Reich ordinance of the Reich Ministers of Justice, dated 12

February, have been communicated as follows: * * *.”

This directive also contains a form to be used in connection with the

discharge of prisoners, designated: “Supplement to: Reich Ordinance of

Reich Ministers of Justice, dated 12 February 1945,” with the file mark

“IV a 56/45 g,” and has the seal of Linz showing receipt.

The exhibit also includes a directive of “Evacuation of the Judicial

Executive Institutions Within the General Plan for the Evacuation of

Threatened Territories in the Reich.” This is marked “Secret” and has

no heading, no date, and no signature (_NG-030, Pros. Ex. 290_).

This states, in paragraph 1:

“The evacuation of penal institutions lying within territories

threatened by enemy attack is a matter of concern for the

public prosecutors of the territories to be evacuated as well

as for those within the territories appointed for reception in

transit. This does not apply if the evacuation can be confined

to a change of locality within the Landesgericht itself. The

carrying out without friction of all measures of evacuation

therefore depends upon the close cooperation of the public

prosecutors concerned who must get in touch with each other on

all the particulars which are necessary for those measures.

The individual measures for evacuation must be left as far as

possible to the personal initiative of the public prosecutors

concerned, as only they possess the necessary knowledge of local

conditions and are able to bring about the required cooperation

with local administrative and Party offices. These directives

can only give an indication of what is to be done.”

From the import, a fair inference is that it was an enclosure to the

original letter of Thierack.

Further along, the document states:

“NN prisoners are not to be released under any circumstances.

They are to be rapidly transferred to territories which are not

in danger of enemy attack according to special orders.

“Foreigners are to be released only if they had their residence

in the Reich for many years, if they are especially reliable and

fulfill all the requirements under (_h_).

“Jews, Jewish persons of mixed race of the first degree, and

gypsies are not to be released.

“For Polish subjects, who are protected personnel, a release may

be considered only if the requirements made under (_h_)

apply to them after the strictest investigation. The same

applies to people living in the Protectorate of Bohemia and

Moravia. Poles who have been sentenced to at least 1 year

internment in a disciplinary camp, may also be turned over

to the police, with an interruption, if necessary, in the

execution of their sentence. This can only be done if an

agreement is reached with the commander of the Security Police

and the SD.”

Under the heading of “Carrying-out the evacuation” is stated

(_NG-030, Pros. Ex. 290_):

“As soon as orders for evacuation are issued, the evacuation

has to be carried out in full accordance with the plans agreed

upon. In many cases, it is true, prevailing conditions will

necessitate deviations and improvisations. Should it become

impossible, for any reasons, to bring the prisoners back to the

extent agreed upon, those prisoners who are not outspokenly

asocial or hostile to the State, are to be released in good

time so that they will not fall into the hands of the enemy.

The elements mentioned before, however, must be turned over

to the police for their removal, and if this is not possible

they must be rendered harmless by shooting. All traces of the

extermination are to be carefully removed.”

Further documents in this exhibit, issued at Linz, show that by

agreement and orders of the defense commissioner, orders were issued

by the prosecutor at Linz which appear to implement the preceding

document. On 14 April 1945 the chief public prosecutor at Linz made an

official report to the Reich Ministry of Justice showing steps which he

had taken.

The significant directives of the Minister of Justice above quoted

were issued shortly after the incident at Sonnenburg and concerned

the disposition of prisoners in the penitentiaries of the Reich in

areas threatened by the Allied advance. It is also significant that

the defendant Klemm who denies all connection with or authority over

the penitentiary at Sonnenburg in late January 1945 subsequently on

11 February 1945 ordered the evacuation of the prison at Bautzen,

including the discharge of certain prisoners and the transfer of those

not so discharged to Waldheim; and that around Easter of 1945 he

ordered the evacuation of the prison at Rothenfeld and instructed the

matron as to the disposition of the prisoners.

It is the contention of the defendant that Hansen was an unreliable

person who falsely used the name of the State Secretary. It is to

be noted, however, that the testimony does not show that Hansen was

undertaking to obtain from Eggensperger authority for some contemplated

action under alleged authority from the State Secretary. Hansen called

Eggensperger who was the official on duty at the Ministry of Justice to

make an official report of an action which was already under way and

when questioned as to his authority, he cited the approval of the State

Secretary. His report was embodied in an official note as he could

assume it would be. This note stated that the action taken was based

upon the approval of the State Secretary. Surely Hansen, an official

under the Minister of Justice, whatever his character might have been,

would never have dared to use falsely an alleged authority by the State

Secretary to account for the liquidation of some 800 people and then

make an official report that, according to all normal procedure, would

come directly into the hands of the State Secretary.

This Tribunal is asked to believe that in the middle of January,

Himmler took over the operations of the penitentiary at Sonnenburg and

that the first time that the State Secretary, the defendant Klemm,

heard of the liquidation of those who were not evacuated was in this

trial. That Himmler controlled evacuations within the area of his

command was shown by evidence in this case and can be assumed from the

nature of the evacuation. An evacuation is a matter of military concern

since it involves interference on the roads with military operations

and transport. The operational control of a penal institution is an

entirely different matter. In the middle of January, Himmler was in

command of an army which was having considerable difficulty and he was

scarcely in a position to assume the functions and responsibilities

in the Ministry of Justice as regards the operations of a penal

institution. Certainly if he did so it is strange that Eggensperger,

a Referent in Department V dealing with penal institutions, or

Hecker, also in Department V and in charge of evacuations of penal

institutions, or the director of the institution at Sonnenburg, knew

nothing about this transfer of authority some two weeks after it is

alleged to have been made. It was also strange that Hansen, who is

alleged to have known of this transfer of authority, would call the

Ministry of Justice and make an official report as to the transaction

on the night when it was under way and cite as his authority for his

connection therewith the State Secretary. That the defendant Klemm knew

nothing about the liquidation of some 800 people in this institution

until he learned it in this trial, overtaxes the credulity of this

Tribunal. Even in Nazi Germany the evacuation of a penal institution

and the liquidation of 800 people could hardly have escaped the

attention of the Minister of Justice himself or his State Secretary

charged with supervision of Department V which was competent for penal

institutions. Exhibit 290, herein extensively quoted, shows that the

operations of penal institutions and the disposition of the inmates

remained a function of the Ministry of Justice, and it is the opinion

of this Tribunal that the Ministry of Justice was, at the time of the

evacuation of Sonnenburg, responsible for the turning over of the

inmates to the Gestapo for liquidation, and that the defendant, Klemm,

approved in substance, if not in detail, this transaction.

When Rothenberger was ousted as State Secretary because he was not

brutal enough, it was Klemm who was chosen to carry on the Thierack

program in closest cooperation with the heads of the Nazi conspiracy.

Klemm was in the inner circle of the Nazi war criminals. He must share

with his dead friend, Thierack, (with whom he had lived), and his

missing friend, Bormann, the responsibility, at a high policy level,

for the crimes committed in the name of justice which fill the pages

of this record. We find no evidence warranting mitigation of his

punishment.

Upon the evidence in this case it is the judgment of this Tribunal

that the defendant, Klemm, is guilty under counts two and three of the

indictment.

_THE DEFENDANT ROTHENBERGER_

From his own sworn statements we derive the following information

concerning the defendant Rothenberger. He joined the NSDAP on 1 May

1933 “for reasons of full conviction.” From 1937 until 1942 he held the

position of Gau Rechtsamtleiter. He states: “As such I also belonged

to the Leadership Corps.” Parenthetically, it should be stated that

the organization within the Leadership Corps to which he belonged has

been declared criminal by the judgment of the first International

Military Tribunal, and that membership therein with knowledge of

its illegal activities is a punishable crime under C. C. Law 10. We

consider the interesting fact of his membership in the Leadership Corps

no further, solely because defendant Rothenberger was not charged in

the indictment with membership in a criminal organization. He was a

Dienstleiter in the NSDAP during 1942 and 1943. From 1934 to 1942 he

was Gaufuehrer in the National Socialist Jurists’ League. In 1931 he

became Landgerichtsdirektor, and in 1933 Justiz-Senator in Hamburg.

From 1935 to 1942 he was president of the district court of appeals

in Hamburg. In 1942 he was appointed Under Secretary in the Ministry

of Justice under Thierack. He remained in that office until he left

the Ministry in December 1943, after which he served as a notary in

Hamburg. Thus, it is established by his own evidence that while serving

as president of the district court of appeals he was also actively

engaged as a Party official. Other evidence discloses the wide extent

to which the interests and demands of the Ministry of Justice, the

Party, the Gau Leadership, the SS, the SD, and the Gestapo affected

his conduct in matters pertaining to the administration of justice.

Rothenberger took over the Gau Leadership of the National Socialist

Lawyers’ League at the request of Gauleiter Kauffmann, who was the

representative of German sovereignty in the Gau and who was, for all

intents and purposes, a local dictator. As Gaufuehrer during the period

following the seizure of power, Rothenberger had ample opportunity to

learn of the corruption which permeated the administration of justice.

He testified:

“It has been emphasized here time and again how during the

first period, after the revolution of 1933, every Kreisleiter

attempted to interfere in court proceedings; the Gestapo tried

to revise sentences, and it is known how the NSRB, the National

Socialist Jurists’ League, tried to gain influence with the

Gauleiter or the Reichsstatthalter in order to act against the

administration of justice.”

Concerning the dual capacity in which he served, he said:

“On account of the identity, of course, between president of the

district court of appeals and Gaufuehrer, I was envied by all

other district courts of appeal because they continually had to

struggle against the Party while I was saved this struggle.”

In August 1939, on the eve of war, Rothenberger was in conference with

officials of the SS and expressed to them the wish to be able to fall

back on the information apparatus of the SD, and offered to furnish to

the SD copies of “such sentences as are significant on account of their

importance for the carrying-out of the National Socialist ideas in the

field of the administration of justice.” Rothenberger testified that

during the first few years after the seizure of power, there was the

usual system of SD informers in Hamburg. The unsatisfactory personnel

in the SD was removed by Reichsstatthalter Kauffmann, and the defendant

Rothenberger nominated in their place individuals who, he said, “were

judges and who I knew would never submit reports which were against the

administration of justice.” He states also:

“In the meantime, the directive had been sent down from the

Reich Ministry of Justice to the effect that the SD should be

considered and used as a source of information of the State by

agencies of the administration of justice.”

While he was president of the district court of appeals at Hamburg, and

during the war, this ardent advocate of judicial independence was not

adverse to acting as the agent of Gauleiter Kauffmann. On 19 September

1939 Kauffmann, as Reichsstatthalter and defense commissioner, issued

an order as follows:

“The president of the Hanseatic Court of Appeals, Senator Dr.

Rothenberger, is acting on my order and is entitled to demand

information in matters concerning the special courts and to

inspect documents of every kind. All administrative offices as

well as the offices of the NSDAP are requested to assist him in

his work.”

On 26 September 1939 Rothenberger, as president of the Hanseatic Court

of Appeals, notified the Prosecutor General of Kauffmann’s order and

requested that a copy of the indictment “in all politically important

cases or cases which are of special interest to the public should be

sent to him.” In a report to Schlegelberger of 11 May 1942 he spoke of

the “crushing effect” of the Fuehrer’s speech of 26 April 1942 and of

the feeling of consequent insecurity on the part of the judges, and

said:

“I have therefore assumed responsibility for each verdict which

the judges discuss with me before passing it.”

In the same report he states that on 6 May 1942 he made arrangements

with all senior police officers, senior SS, senior officers of the

criminal police, of the Secret State Police, and of the SD “to

the effect that every complaint about juridical measures taken by

judges was to be referred to me before the police would take action

(especially regarding execution of sentence).”

In June 1942 Rothenberger reported to the defendant Schlegelberger

that he had made similar arrangements in Bremen with the Kreisleiter,

president of the police, leader of the Secret State Police (Gestapo),

and the leader of the SD. He reported to Schlegelberger:

“In view of the present situation, I am intensifying the

internal direction and control of jurisdiction which I have

considered to be my main task since 1933.”

On 7 May 1942 Rothenberger issued an order in which he stated his

intention to inform himself prior to the proceedings on cases which

are of political significance “or which involve the possibility of a

certain conflict between formal law and the instinctive reactions of

the people or National Socialist ideology.” He directed that reports

be submitted to him which must be in sufficient detail in order, as he

said, “to enable my deputy to judge the necessity of my intervention.”

By reference to his own words we have already set forth Rothenberger’s

expressed convictions as to the duty of a judge as the “vassal” of the

Fuehrer to decide cases as the Fuehrer would decide. The conclusion

which we are compelled to draw from a great mass of evidence is not

that Rothenberger objected to the exertion of influence upon the courts

by Hitler, the Party leaders, or the Gestapo, but that he wished that

influence to be channeled through him personally rather than directed

in a more public way at each individual judge. On the one hand he

established liaison with the Party officials and the police, and on

the other he organized the system of guidance of the judges who were

his subordinates in the Hamburg area. He testifies that he considered

the system of conferences between judges and prosecutors before trial,

during trial and sometimes after trial, but before the consultation of

the judges, to be wrong, and states that he considered it more correct,

in view of the situation, that such a discussion should take place a

long time before the trial and not between individual judges and the

prosecutor, “but on a higher level, namely, between the chiefs of the

offices, so that there would be no possibility to exert an influence on

the individual judge in any way.” Concerning his dictatorial attitude

toward the other judges, Rothenberger testified: “Of course, guidance

is guidance, and absolute and complete independence of the judge is

possible only in normal conditions of peace, and we did not have these

conditions after the Hitler speech.”

The guidance system instituted by the defendant Rothenberger was not

limited to conferences concerning pending cases of political importance

before trial. We are convinced from the evidence that he used his

influence with the subordinate judges in his district to protect Party

members who had been charged or convicted of crime, that on occasions

he severely criticized judges for decisions rendered against Party

officials, and on at least one occasion was instrumental in having a

judge removed from his position because he had insisted upon proceeding

with a criminal case against a Party official.

As further illustration of the character of control which was exercised

by Rothenberger over the other judges in his district, reference is

made to his letter of 7 May 1942 addressed to the judges in Hamburg and

Bremen in which he announced that a conference would be held for the

discussion of cases fixed for the following week. We quote (_NG-389,

Pros. Ex. 76_):

“A few cues to matters which will come up will be given, file

numbers quoted, and comments made in a few key words.”

He especially required of the judges that they report to him concerning

penal cases against Poles, Jews, and other foreigners, and “penal

and civil cases in which persons are involved who are State or Party

officials, or NSDAP functionaries, or who hold some other eminent

position in public life.”

One will seek in vain for any simple, frank, or direct statement by

Rothenberger relative to any of the abuses of the Nazi system. His real

attitude can only be extracted from the ambiguities of his evasive

language. We quote from the record of the report made by Rothenberger

to the judges on 27 January 1942 (_NG-1106, Pros. Ex. 462_):

“With regard to the matter it had to be considered whether or

not any material claims made by the Jews could still be answered

in the affirmative. Concerning this question, it might, however,

be practical to maintain a certain reserve.”

In an early report to the Hamburg judges, Rothenberger discussed the

opinion of the Ministry concerning the legal treatment of Jews. He

stated that the fact that a debtor in a civil case is a Jew should as a

rule be a reason for arresting him; that Jews may be heard as witnesses

but extreme caution is to be exercised in weighing their testimony.

He requested that no verdict should be passed in Hamburg when a

condemnation was exclusively based on the testimony of a Jew, and that

the judges be advised accordingly.

On 21 April 1943, as the result of a long period of inter-departmental

discussions, a conference of the state secretaries was held.

Rothenberger was at the time State Secretary in the Ministry of

Justice and participated in the conference concerning the limitation

of legal rights of Jews. Kaltenbrunner also participated. At this

meeting consideration was given to drafts of a decree which had long

been under discussion. Modifications were agreed upon and the result

was the promulgation of the infamous 13th regulation under the Reich

Citizenship Law which provided that criminal actions committed by Jews

shall be punished by the police and that after the death of a Jew his

property shall be confiscated.

We next consider Rothenberger’s activity concerning the deprivation of

the rights of Jews in civil litigation. In the report of 5 January 1942

the defendant wrote:

“The lower courts do not grant to Jews the right to participate

in court proceedings in _forma pauperis_. The district

court suspended such a decision in one case. The refusal to

grant this right of participation in court proceedings in

_forma pauperis_ is in accordance with today’s legal

thinking. But since a direct legal basis is missing, the refusal

is unsuitable. We therefore think it urgently necessary that a

legal regulation or order is given on the basis of which the

rights of a pauper can be denied to a Jew.” (_Pros. Ex. 373,

NG-392, document book 5-D, p. 331._)

Notwithstanding his statement of 5 January to the effect that it would

be unsuitable to deprive Jews of this right without a legal regulation,

we find that on 27 January 1942 the report of a conference shows the

following (_NG-1106, Pros. Ex. 462_):

“The senator reported that the question of the poor law

concerning Jews has gained significance again. With the district

court there were two cases pending. He requested that contacts

with the district court and with the local court judges be made

at once so that a uniform line is followed to the effect that

the Jews be denied the benefits of the poor law. It would be

entirely out of the question that Jews be granted the benefits

of the poor law subsequent to the present development. This

would apply especially to Jews who had been evacuated, but in

his opinion also to those who had not been evacuated.”

About this time a report concerning the claim of the Jewish plaintiff,

Israel Prenzlau, came to the attention of the defendant Rothenberger.

The Jew sought the right to proceed in _forma pauperis_. The

report on the case contains the following statement by a Gau economic

advisor, which is couched in the usual Nazi language of sinister

ambiguity (_NG-589, Pros. Ex. 372_):

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

“In a lawsuit between a German national and a Jew, I consider

the settling of a dispute by compromise settlement in court

inadmissible for political reasons. The German national,

as party in the lawsuit, pursuant to his clearly defined

conceptions of justice derived from his political schooling

since 1933, can expect that the court will decide the case by a

verdict, i.e., take a conclusive attitude toward the dispute in

hand. What is expected is a decision which was arrived at not

from purely legal points of view, as result of a legal train of

thought, but which is an expression to the way in which National

Socialist demands concerning the Jewish question are realized

by German administrators of justice. Evading this decision by a

compromise might mean encroaching upon the rights of a fellow

citizen in favor of a Jew. This kind of settlement would be in

contradiction to the sound sentiments of the people. I therefore

consider it inadmissible.”

The report shows that upon receipt of the opinion of the Gau economic

advisor, “the defendants thereupon refused settlement with the

plaintiff and now deny that they owe him anything.” The court which had

jurisdiction of the Prenzlau case granted to the plaintiff the right

to proceed in _forma pauperis_. On 13 February 1942 having before

him the report of the Gau economic advisor, the defendant Rothenberger

wrote to the president of the district court, Hamburg, as follows:

“I do not intend to approach the economic advisor of the Gau

for the time being, seeing from the documents that the ultimate

beneficiary of the claim, the son of the plaintiff, emigrated

in the year 1938 and his property, therefore, surely being

confiscated. I fail to understand why the court granted _forma

pauperis_ rights to the assignee, a Jew, without first

consulting the authority for sequestration of property.”

A note dated 24 February shows that Rothenberger had issued a directive

to two judges of his district to the effect that every case involving

the claim of the right of Jews to proceed in _forma pauperis_

must first be submitted to him. On 5 March 1942 a directive was issued

from the Reich Ministry of Justice in substantial conformity with the

recommendation of the defendant Rothenberger. It provided:

“In future the granting of rights of _forma pauperis_ to

Jews can only come into consideration if the carrying-out of the

lawsuit is in the common interest, viz, in disputes concerning

family rights (divorce in cases of mixed marriages, establishing

the descent).”

After the enactment of the foregoing ordinance, and on 7 May 1942,

a courageous president of the district court at Hamburg wrote to

Rothenberger stating that in his opinion the right of Jews to proceed

in _forma pauperis_ would have to be granted. He added:

“I am convinced that it is in the common interest that an Aryan

cannot evade without further ado a just claim against him merely

for the reason that the court denies the _forma pauperis_

right to Jews.”

Notwithstanding this protest, and on 22 May 1942, the defendant

Rothenberger, in reliance upon the ordinance which was based upon his

recommendation, wrote to the president of the district court of Hamburg

that he considered it “adequate that the _forma pauperis_ right

granted to the plaintiff Prenzlau be canceled. Please have this taken

into consideration by the court in a form which you deem appropriate.”

The foregoing narrative takes on additional significance when

summarized. First, Rothenberger recommends to the Minister of Justice

that it is desirable to deny to Jews the right to proceed in _forma

pauperis_, but that such denial is inadmissible because there is no

law to justify it. He recommends the passage of such a law. About 3

weeks later, no law having been passed, he recommends that the judges

take a uniform line depriving the Jew of the right to proceed in

_forma pauperis_. A specific case now arises in which the right

was granted to a Jew, and the defendant Rothenberger receives veiled

suggestions from the Gau economic advisor to the effect that defendants

should not be allowed to compromise a case brought against them by a

Jewish plaintiff because the court should decide against the Jew in

any event on political grounds. Concerning this suggestion Rothenberger

ventures no comment. The defendant in the Prenzlau case takes his cue

from the advice of the economic advisor and denies liability; the

court grants to the Jew the right to proceed in _forma pauperis_.

Rothenberger criticizes this action, although the lower court had

acted in strict conformity with the law. In March the awaited law

excluding the Jew from the benefit of the poor-law is passed. In May,

Rothenberger overrules the protest of a judge and directs the canceling

of the order which was made by the lower court. This dictation by the

defendant Rothenberger to other courts and judges of his district

was not done in the course of a legal appeal from the lower court to

the court over which he presided. It was done after the manner of a

dictator directing an administrative inferior how to proceed.

Rothenberger not only participated in securing the enactment of a

discriminatory law against Jews; he enforced it when enacted and, in

the meantime, before its enactment, upon his own initiative he acted

without authority of any law in denying to Jewish paupers the aid of

the courts.

It is true that the denial to Jews of the right to proceed in civil

litigation without advancement of costs appears to be a small matter

compared to the extermination of Jews by the millions under other

procedures. It is nevertheless a part of the government-organized plan

for the persecution of the Jews, not only by murder and imprisonment

but by depriving them of the means of livelihood and of equal rights in

the courts of law.

The defendant Rothenberger testified that various judges reported to

him “that they had heard rumors to the effect that everything was not

quite all right in the concentration camps” and that they wished to

inspect one. Accordingly, Rothenberger and the other judges visited the

concentration camp at Neuengamme. He testified that they inquired about

food conditions, accommodations, and the methods of work, and spoke to

some inmates, and he asserts that they did not discover any abuses.

This was in 1941. Again in 1942, according to his own testimony,

the defendant visited Mauthausen concentration camp in company with

Kaltenbrunner, who was later in charge of all concentration camps

in Germany and has since suffered death by hanging. At Mauthausen

concentration camp the defendant Rothenberger again inspected

installations, conferred with inmates, and inquired as to the cause of

detention of the inmates with whom he had talked. He states that from

his spot checks he “could not find out that there was any case of a

sentence being ‘corrected.’” Upon inquiry as to what the defendant

meant by the “correction of sentences,” he answered:

“By correcting of a sentence we mean that when the court had

pronounced a sentence, for example, had condemned somebody to be

imprisoned for a term of 5 years--if the police now, after these

5 years had been served, if the police arrested this man and

put him into a concentration camp--this is only an example of a

correction. Or even if, and this is clearer, it happened that a

person was acquitted by a court, and in spite of that the police

put this man into a concentration camp. These are examples of

correction of sentences.”

The defendant stated that he did not observe and could not discover

any abuse at Mauthausen. In this connection the testimony of defense

witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger

on his visit to Mauthausen concentration camp. He testified that rumors

were current in Germany to the effect that conditions were not what

they should be in the concentration camps. Hartmann testifies that

they went about the camp freely and observed everything closely. On

cross-examination by the Tribunal, Hartmann testified as follows:[670]

“Q. * * * When you visited Mauthausen concentration camp, you

knew, did you not, that the courts in the Ministry of Justice

never sentenced convicted criminals to a concentration camp? * *

*

“A. Yes.

“Q. Did Dr. Rothenberger know it?

“A. Yes.

“Q. Then you knew that these ten people that he talked with, and

the one or two that you talked with, were not there by reason of

any action on the part of the Ministry of Justice or the court,

but were there only by reason of action by the police or by the

Party, did you not?

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

The witness Hartmann testified further:

“Q. And they had already served their sentences as imposed by

court before they were taken into this custody of the police, is

that right?

“A. Yes. That is how I see it.

“Q. And at that time, these twelve people who had served their

sentences and had been taken over by the police--that met with

the approval of the defendant Dr. Rothenberger, as I understand

you?

“A. Well [we] did not approve the concentration camp as an

institution altogether, but first of all we wanted to achieve

this--that it would no longer happen that a defendant was

acquitted and then after acquittal the Gestapo arrested (him) in

front of the courtroom. * * * In those cases, too, he did not

approve the fact that these people were in a concentration camp

because we were of the opinion that only the administration of

justice should decide these questions of criminal law and nobody

else. But according to the power conditions within the State, as

they happened to exist, our interest was first of all to remove

the worst evils.”

Upon redirect examination by counsel for the defendant Rothenberger,

defense witness Hartmann testified as follows:

“Q. Therefore, sometimes was the situation for you and Dr.

Rothenberger like this: that apparently you affirmed something

with a smiling face, something which as a human being you had to

disapprove of and reject?”

To this question the witness answered that Dr. Rothenberger “for

reasons of power politics” had to accept the conditions though he did

not approve them. After his inspection of Mauthausen concentration

camp, Dr. Rothenberger took no action whatsoever with regard to the

information which he had received.

It follows that the defendant Rothenberger, contrary to his sworn

testimony, must have known that the inmates of the Mauthausen

concentration camp were there by reason of the “correction of

sentences” by the police, for the inmates were in the camp either

without trial, or after acquittal, or after the expiration of their

term of imprisonment.

It must be borne in mind that this inspection by the defendant

Rothenberger was made at Mauthausen concentration camp, an institution

which will go down in history as a human slaughter house and was made

in company with the man who became the chief butcher.

We are compelled to conclude that Rothenberger was not candid in

his testimony and that in denying knowledge of the institution of

protective custody in its relationship with the concentration camps

he classified himself as either a dupe or a knave. Nor can we believe

that his trips to the camps were merely for pleasure or for general

education. He also advised other judges to make like investigations.

We concede that the concentration camps were not under the direct

jurisdiction of the Reich Minister of Justice, but are unable to

believe that an Under Secretary in the Ministry, who makes an official

tour of inspection, is so feeble a person that he could not even raise

his voice against the evil of which he certainly knew.

If the defendant Rothenberger disapproved of protective custody and

the consequent employment of concentration camps, it must be because

of a change in heart concerning which we have had no evidence. On 13

June 1941 Rothenberger wrote Secretary Freisler suggesting that many

small cases were being tried by the Special Court and that this was

not compatible with the importance of the court. He referred to minor

offenses which came under the public enemy decree, “in which, however,

protective custody will be requested by virtue of the offender’s past

life and his character.” Again, he speaks of cases in which motion is

made for the offender to be taken into protective custody.

On 5 January 1942 the defendant Rothenberger addressed a report on

the general situation in the Hamburg area to the Reich Minister of

Justice. From this document his attitude concerning the institution

of protective custody may be ascertained. Concerning the “transfer to

the public prosecutors of the right to decide about the duration of

protective custody,” he said:

“In a certain connection with this problem is the transfer to

the public prosecutor’s office of the right to decide about the

duration of the protective custody. I regret that it is obvious

that the courts are more cautious and reserved than they were

previously in regard to the order of protective custody, because

the duration of the protective custody is not any more within

their control. This attitude of the courts cannot be approved,

but it is psychologically understandable; I am afraid, that

the reform effected the opposite of the intended more vigorous

practice in regard to protective custody.”

In February 1939 the defendant Rothenberger and the Chief Public

Prosecutor reported to the Hamburg judges upon a conference which

had been held in Berlin. The record of the joint report in which

Rothenberger participated is as follows (_NG-629, Pros. Ex. 28_):

“A report was then made on the discussions on protective

custody. The ministry is of the opinion--also held here--that no

objection can be raised to protective custody as long as it is

purely protective, but that corrective measures, such as became

known in certain cases, must not become a habit.”

In conclusion, the evidence discloses a personality full of

complexities, contradictions, and inner conflict. He was kind to

many half-Jews, and occasionally publicly aided them, yet he was

instrumental in denying them the rights to which every litigant is

entitled. He fulminated publicly against the “Schwarze Korps” for

attacking the courts, yet he reproached judges for administering

justice against Party officials and unquestionably used his influence

toward achieving discriminatory action favorable to high Party

officials and unfavorable to Poles and Jews. He wrote learnedly in

favor of an independent judiciary, yet he ruled the judges of Hamburg

with an iron hand. He protested vehemently against the practice of

Party officials and Gestapo officers who interfered with the judges in

pending cases, but he made arrangements with the Gestapo, the SS, and

the SD whereby they were to come to him with their political affairs

and then he instituted “preview and review” of sentences with the

judges who were his inferiors. He thought concentration camps wrong but

concluded that they were not objectionable if third degree methods did

not become a habit.

Rothenberger was not happy with his work in Berlin. In his farewell

speech on leaving Hamburg, he exuberantly exclaimed that he had been

“an uncrowned king” in Hamburg, but he would have us believe that he

received a crown of thorns in Berlin. Soon he learned of the utter

brutality of the Nazi system and the cynical wickedness of Thierack and

Himmler, whom he considered his personal enemies. He could not stomach

what he saw, and they could not stomach him. The evidence satisfies

us that Rothenberger was deceived and abused by his superiors; that

evidence was “framed” against him; and that he was ultimately removed,

in part at least, because he was not sufficiently brutal to satisfy

the demands of the hour. He was retired to the apparently quiet life

of a notary in Hamburg, but even then we find that he was receiving

some pay as an Under Secretary and was assisting Gauleiter Kauffmann in

political matters in that city.

The defendant Rothenberger is guilty of taking a minor but consenting

part in the Night and Fog program. He aided and abetted in the program

of racial persecution, and notwithstanding his many protestations to

the contrary he materially contributed toward the prostitution of

the Ministry of Justice and the courts and their subordination to

the arbitrary will of Hitler, the Party minions, and the police. He

participated in the corruption and perversion of the judicial system.

The defendant Rothenberger is guilty under counts two and three of the

indictment.

_THE DEFENDANT LAUTZ_

The defendant Lautz from 20 September 1939 until the end of the war

served as Chief Public Prosecutor at the People’s Court in Berlin.

He joined the NSDAP in May 1933. During the period of his service the

“higher officials” under his supervision increased from 25 to about

70. The office originally consisted of four departments which were

later increased to five to correspond with the number of senates of

the People’s Court. After the enlargement of the department there

were five public prosecutors and one senior public prosecutor in each

department. The defendants Barnickel and Rothaug were among the senior

public prosecutors under the general supervision of the defendant

Lautz. The crimes with which his office dealt were those over which

the People’s Court had jurisdiction. Of particular interest here were

the prosecutions for undermining the German defensive strength, high

treason and treason, cases of attempted escape from the Reich by Poles

and other foreigners, and NN cases.

A great number of prosecutions were brought under the decree of 17

August 1938 which provides that “Whoever * * * openly seeks to paralyze

or undermine the will of the German people or an allied nation to

self-assertion by bearing arms” should be punished by death. This

was the law which effectively destroyed the right of free speech in

Germany. The prosecutor’s office was required to handle approximately

1,500 cases a month involving charges of this type. Under supervision

of the defendant Lautz all of these charges had to be examined and

assigned for trial to the People’s Court in serious cases, or to other

courts. In the cases which were assigned to the People’s Court for

trial “there was always the possibility that the death sentence would

be pronounced.”

The defendant Lautz instructed his subordinates that only those cases

were to be retained for trial before the People’s Court in which it was

“possible to assume full responsibility if the People’s Court senate

pronounces the death sentence.”

Lautz did not shirk responsibility for the acts of his deputies. He

testified that the signature of his deputy “meant, of course, that I

assumed responsibility for that matter.”

In connection with the work of his department it was the duty of

the defendant Lautz to sign all indictments, all suspensions of

proceedings, and all reports to his superior, the Minister of Justice.

This work assumed such proportions that it became necessary to delegate

parts thereof to his subordinates, but the defendant Lautz required

that important matters be reported directly to him. In partial

explanation of his activities and motives in connection with his

enforcement of the law against undermining the military efficiency of

the nation, Lautz stated:

“Just as I think it is a good thing that no one today can claim

that this war was lost only through treason, I must also say

that I regret that because of this war and through these death

sentences many people, who were otherwise all right, had to lose

their lives.”

As an illustration of the type of case which was prosecuted under this

law, we cite the case of the defendant who said to a woman: “Don’t you

know that a woman who takes on work sends another German soldier to his

death?” This offense was described by Lautz and Rothaug as a serious

case of undermining the military efficiency of the nation. The office

of the Chief Public Prosecutor of the People’s Court was vested with

a wide discretion in connection with the assignment of cases to the

various courts for trial. It will be recalled that the malicious acts

law of 20 December 1934 provided for punishment of persons who made

false or treacherous statements “fit to injure the welfare or prestige

of the government and of the Reich”, etc. Under this law moderate

punishments by imprisonment were authorized, whereas, under the law

against undermining the defensive strength of the nation, the death

penalty was mandatory. If the prosecutor sent the case for trial to the

People’s Court on the charge of undermining, instead of sending it to a

lower court for trial under the malicious acts law, he determined for

all practical purposes the character of the punishment to be inflicted,

and yet the evidence satisfies us that there was no rule by which the

cases were classified and that the fate of the victims depended merely

on the opinion of the prosecutor as to the seriousness of the words

spoken.

The connection of the defendant Lautz with the illegal Nacht und Nebel

procedure is established beyond question. The People’s Court acquired

jurisdiction of NN cases under the decree of the Reich Minister of

Justice of 14 October 1942. Lautz estimated that the total number of

NN cases examined by his department was approximately one thousand, of

which about two hundred were assigned to the People’s Court for trial,

but he added that each case could concern several defendants. No good

purpose will be served by a second review of the testimony concerning

the Nacht und Nebel decree. In harmony with the decision in the case of

the United States [et al.] _vs._ Goering, et al., this Tribunal

finds that the secret procedure which was instituted and enforced

through the Ministry of Justice constituted a war crime and a crime

against humanity. The Chief Public Prosecutor of the People’s Court

zealously enforced the provisions of this decree, and his conduct in so

doing violated the laws and customs of war and the provisions of C. C.

Law 10.

_Treason Cases Involving Border Crossings by Poles_

Lautz estimated that from 150 to 200 persons were prosecuted for

leaving their places of work and attempting to escape from Germany by

crossing the border into Switzerland. These cases were prosecuted under

the provisions of penal code concerning treason and high treason.

On 24 February 1942 an indictment against the Pole Ledwon was filed

by Parrisius as deputy for the defendant Lautz. The indictment was

marked “Secret Treason Case”, and bore the stamp of the Chief Public

Prosecutor at the People’s Court. A letter signed by Lautz bearing

the same date was addressed to the presidents of the Second Senate of

the People’s Court and advises them that he is sending to the court

the indictment in the case Ledwon. The indictment alleges that on 28

July 1941 the accused left his place of work in Bavaria and attempted

to escape by crossing the Reich border, and that he was stopped by

a customs official whom he struck with his fist while evading the

arrest. The indictment states that the reason given by the defendant

Ledwon for his attempt to escape from Germany “does not deserve

credence; it may rather be assumed that he intended to join the Polish

Legion organized on the side of the hostile powers”. The indictment

states that the defendant knew that the aim of the Polish Legion was

to restore a Polish state. On the basis of the foregoing specific

allegations, the indictment charges that the defendant prepared

within Germany “(1) the highly treasonable enterprise to separate

from the Reich by force a territory belonging to the Reich; (2) to

have aided and abetted the enemy inside Germany during a war against

the Reich, and thus, as a Pole, not to have behaved according to the

German laws and to the directives of the German authorities; and (3)

to have committed a violent attempt on a German official. * * *.” The

indictment was brought under the provisions of sections 80, 83, and

91b of the penal code, and under the provisions of the law against

Poles and Jews. Section 80 provides for the imposition of the death

penalty upon anyone attempting by violence or threat of violence to

detach from the Reich territory belonging to the Reich. Section 83

provides for the punishment of any person who solicits and incites an

undertaking of high treason. Section 91b provides for imprisonment or

death for any person who undertakes acts in favor of the enemy powers

or causes a detriment against the armed forces of the Reich. On 10

August 1942 the case was tried. The court found the following facts:

defendant was a Pole who lived in Poland on 1 September 1939. (See:

Law against Poles and Jews.) After the Polish campaign the defendant

reported “voluntarily” for work in Germany and then tried to leave the

country. The court states further that “the prosecution charges the

defendant with the intention of going to Switzerland in order to join

the Polish Legion there.” It adds that the Polish Legion was interned

in Switzerland and that many Poles had been caught at the frontier,

some of whom could be convicted of planning to join the Polish Legion

in Switzerland. The court, with unwanted candor, states that “the

trial did not show any concrete evidence that the defendant * * * had

any knowledge of a Polish Legion in Switzerland.” It held that due to

lack of evidence “the defendant could not be convicted of the crime

of preparation for treason and of treasonably aiding the enemy.” The

opinion of the People’s Court continues (_NG-355, Pros. Ex. 128_):

“The defendant is, however, guilty according to the result of

the trial, of an offense under the ordinance relating to the

administration of penal law for Poles, of 4 December 1941. The

general conditions of this ordinance are fulfilled, as the

defendant is, by origin, education, and sentiment, a racial Pole

and was on 1 September 1939 resident in the former Polish State.

In leaving his place of work as an agricultural laborer, of

his own accord, at the end of July, i. e., during the harvest,

he disturbed the orderly procedure of the harvest work of his

employer to the detriment of the harvest. His action moreover

was detrimental to the whole of the German people, for in

leaving his place of work in order to go abroad he deprived the

German people forever of his labor. Germany, in order to cover

her war needs and to ensure food supplies for the front as well

as for home, however, needs all persons employed, including

foreigners. Every worker who by escape abroad deprives the

German war economy for good of his labor, reduces the number of

badly needed manpower, and thus endangers the interest of the

German people.”

The court held that it was irrelevant whether the Pole knocked the

customs official down, because in any event he used force sufficient to

prevent his arrest at the time. It observed that under the law against

Poles and Jews “the only possible penalty is the death sentence, unless

a less serious case can be made out in the defendant’s favor. The

senate was not able to recognize such case.”

The opinion concludes as follows:

“But by using violence against the customs officer who was going

to arrest him and thus resisting the legal German authority,

he has proved himself such a fanatical and violent Pole that

he has forfeited any right for leniency. In view of the heavy

responsibility of the Polish nation for the bloodshed caused

during the weeks of August and September 1939, it is the duty of

every member of this nation to obey willingly the rules of the

German authorities. A Pole who, on the contrary, uses violence

against a German official can only be punished sufficiently by

the highest degree of punishment. Accordingly, this has been

imposed on the defendant.”

The Pole was sentenced to death.

We are not here to retry the case. We may, therefore, ignore the

ridiculous charge that the defendant desired to join an interned legion

and the allegation that he came to the Reich “voluntarily” after the

invasion of Poland. We have already discussed the essential evil in the

practice of prosecutors whereby they charged that Poles were guilty of

high treason by attempting to separate from the Reich territory which

had never been legally annexed to the Reich. In the Ledwon case the

sinister subtlety of the Nazi procedure is laid bare. If the case had

been brought only under the law against Poles and Jews, the People’s

Court would not have had jurisdiction, so the defendant was charged

with high treason for attempting to separate from the Reich, territory

which did not belong to it. The proof of high treason failed. There

remained only the charge that in attempting to escape from Germany and

from forced labor there, the defendant assaulted a customs officer with

his fist and that what he did was done as a Pole in violation of the

law against Poles and Jews. It was under that discriminatory law that

Ledwon was sentenced to death and executed. The defendant Lautz is

guilty of participating in the national program of racial extermination

of Poles by means of the perversion of the law of high treason.

In a similar case, upon an indictment signed by Parrisius and filed by

authority of the defendant Lautz, the People’s Court sentenced three

Poles to death upon a charge of preparation of high treason “because

they, as Poles, harmed the welfare of the German people, and because

in a treasonable way they helped the enemy and also prepared for high

treason.” The specific facts found by the court were that the defendant

Mazur and others attempted to cross the border into Switzerland for the

purpose of joining the Polish Legion. By such conduct and by depriving

the German Reich of the benefit of their labor, it was held that the

efforts of the defendants aimed “at forcibly detaching the eastern

regions incorporated in the Reich * * * from the German Reich.” The

opinion contains an illuminating passage concerning treason committed

by attempting to join an interned legion. We quote (_NG-352, Pros.

Ex. 129_):

“After the defeat of France in the present war, as is known

to the senate (court) from other proceedings, detachments of

the Polish Legion crossed the border into Switzerland and were

interned in camps. The legion continues under the command of

Polish officers and is kept in readiness for military action

against the Reich on the side of the enemy in the event of

German troops invading Switzerland.”

The evidence of intent to join the interned legion is paltry, but as

before we will not attempt to retry the case on the facts. The court

held that according to the law against Poles, the death sentence must

be imposed. We quote:

“They wanted to deprive the German nation forever of their

labor. Thus, they have damaged the welfare of the German nation.

This is an offense under the ordinance on the administration of

penal law against Poles. * * *

“The precept of the Regulation of Penal law against Poles

applies to the defendant’s offense, although it was committed

before the regulation came into force for, according to article

I of the Supplementary Regulation of 31 January 1942, the

Regulation of Penal Law against Poles can be applied to offenses

committed before the regulation was in force with the approval

of the prosecutor. This approval has been given by the Reich

Chief Prosecutor.”

In another, the Kalicki case, the record of which is marked “Secret,”

three Poles were sentenced to death for preparation of high treason

upon the same grounds as in the previous case. The court held that “the

sentence to be pronounced has to be based on the ordinance concerning

the administration of penal law against Poles, since this ordinance

provides the heaviest penalty of all laws applicable to the case.” The

evidence does not disclose that the defendant Lautz personally signed

the indictment, but it was certainly filed under his authority. The

question of clemency in the Kalicki case was presented to the defendant

Rothenberger. On 28 July 1943 he wrote:

“ * * * I have decided upon authorization by the Fuehrer not to

exercise my right of pardon but to let justice take its course.”

The defendant Lautz filed an indictment against the Pole, Bratek. The

specific charge was leaving his work in Germany and attempting to cross

the border into Switzerland to join the Polish Legion. The general

charge was the treasonable attempt to separate from the Reich an area

belonging to the Reich and the violation of the law against Poles and

Jews. The court said (_NG-595, Pros. Ex. 136_):

“At the same time he has made himself guilty of a crime

according to Article I, paragraph 3, last half sentence, of

the Ordinance on the Administration of Penal Law Against

Poles, issued 4 December 1941. Because, being a Pole, he has

intentionally inflicted damage to the interests of the German

people by malevolently leaving his important agricultural

job, above all during harvest time, in September 1942, and by

planning to rob the German people forever of his own labor by

escaping abroad. * * *

“According to article 73, Penal Code, the penalty must be based

on the ordinance concerning the administration of penal law

against Poles which _loc. cit._ demands exclusively the

death penalty as a rule, this being the most severe penal law

applicable here.”

A secret communication by the defendant Lautz to the Reich Minister of

Justice is of especial interest. The proposal under consideration as

for the prosecution of certain Poles upon the charge of high treason

on account of acts done in Poland before the war. In his discussion

Lautz quotes from Himmler, the Foreign Office, and the president of

the People’s Court. The facts on the basis of which opinions were

expressed may be illustrated thus: Within Poland and before the war, a

Pole institutes proceedings against a Polish citizen of German blood,

charging the racial German with fifth column activities directed

against Poland. During the war the Pole who instituted the prosecution

against the racial German is captured. The question was: Can the Pole

be prosecuted in a German court on a charge of high treason against

the Reich, basing the charge on the fact that he had prosecuted the

racial German in Poland? The German penal statute involved was section

91, paragraph 2, which provides that “whoever with the intention of

causing a serious detriment to a national of the Reich, enters into

relations as described in paragraph I shall be punished,” in especially

serious cases by death. Himmler, as quoted by Lautz, discusses the

basis for punishment by German courts of “an offender who has caused

racial Germans to be punished or otherwise prosecuted by Polish

authorities.” Himmler asserts that foreign police used methods against

racial Germans which were contrary to international law and “the laws

of minorities” and that such offenders deserve heavy punishment, but

he also states that as far as racial Germans are concerned, section

91, paragraph 2, of the German Penal Code “is not directly applicable,

as racial Germans, according to formal national laws were not German,

but Polish, citizens. I can only express my opinion in the form of a

suggestion, that in case of the betrayal of a racial German by the

foreign Poles * * * section 91, paragraph 2, of the German Penal Code

is to be applied * * *.” (Citing decisions of the People’s Court.)

Himmler directly states that the provisions of section 91, paragraph

2, are “nonapplicable”. We emphasize the fact that the question under

discussion related to the proposed prosecution of a Pole for acts

committed before the war while Poland was in the exercise of its

sovereign powers throughout its territory. The question could not well

have related to acts done after Poland had been overrun and part of

it purportedly annexed, for, at that time Polish authorities would

have been in no position to prosecute racial Germans. Furthermore, in

discussing the problem, Lautz mentions a case against the Pole Golek

which had recently come into his hands on preliminary proceedings. He

states that Golek in the years 1938 and 1939 in Poland had turned over

to the police authorities a racial German of Polish nationality and had

accused him of high treason committed in favor of the Reich.

Himmler, as quoted by Lautz, expressed the view that considerations of

foreign policy would be opposed to the enactment of any German statute

under which a Pole could be prosecuted by German authorities on account

of acts of the kind indicated, but he added:

“I see here a task for the courts, an opportunity to fill a

gap in the law, a gap caused by political reasons of state by

creating a law in the appropriate cases.”

Himmler quoted from an opinion by the People’s Court in which it was

said that the National Socialist State “feels it incumbent on itself,

even in case of a conspiracy by a foreign government against one

single Reich citizen, to give the threatened person its protection in

accordance with penal law as far as this is possible from the home

country.” It will be observed that this quotation relates to the

protection of Reich citizens, not Polish citizens, who are only racial

Germans. Himmler continued, however:

“The Reich made no secret of the fact that with regard to the

protection of Germans, it does not only claim the right to

protect Reich Germans but also racial Germans living on its

borders.”

The defendant Lautz frankly expressed the view that the German statute

defining treason did not cover the case under discussion. In this he

was clearly correct. The German statute on treason had been extended

to provide that “whoever with the intention of causing * * * any

other serious detriment to the Reich, establishes relations with a

foreign government, shall be punished by death.” This section was

not applicable to the case under discussion because the charge to be

preferred against the Pole was one of treason against an individual

and not against the Reich. By the law of 24 April 1934 the concept of

treason was also expanded to cover certain cases of causing serious

detriment to a German national, but that law also was inapplicable to

the case under discussion because the serious detriment had not been

caused to a German national but only to a racial German. Insofar as the

German statutes required punishment of acts done with the intention of

causing serious detriment to a national of the Reich, they extended

the concept of treason in a manner unknown to the criminal law of any

civilized state, and this law was made applicable in occupied and

purportedly annexed territory. Notwithstanding the extremes to which

the German laws of treason were extended, the defendant Lautz stated

that he agreed with the Reich Leader SS and the president of the

People’s Court that a direct application of the German law of treason

protects only German nationals and does not apply to racial Germans. He

then stated:

“Furthermore, I concur with the conception that the general

political development which has meanwhile come about,

particularly during the last years, which has enabled the Reich

largely to protect its racial members of foreign nationality to

a greater extent than it has been possible hitherto, must be

borne in mind in this particular instance. Therefore, I find

it necessary, on principle, to protect by means of the German

penal code those racial Germans who have seriously suffered

through action such as mentioned in paragraph 92, subparagraph

2, of the Penal Code, provided that action deserves punishment

in accordance with sound German sentiment, but where such

punishment, considering the elements of wrongdoing of that

particular case, cannot be brought home on the strength of any

other directly applicable penal regulation.”

In conclusion the defendant Lautz stated that in the majority of cases

which have been committed by foreign nationals abroad against racial

Germans he would “have to report in each individual case.”

Stated in plain language, Lautz proposed that the courts should try

and convict Poles for acts which violated no statute of any kind, if

they deserved punishment according to sound German sentiment. This

proposal violates every concept of justice and fair play wherever

enforced, but when applied against a Pole for an act done in his own

country in time of peace, the proposition becomes a monument to Nazi

arrogance and criminality. Such a Pole owed no duty of loyalty to any

state except Poland and was subject to the criminal jurisdiction of no

state but Poland. The prosecution of the Pole Golek would constitute

a palpable violation of the laws of war (see: citations to the Hague

Convention, _supra_), and any official participating in such a

proceeding would be guilty of a war crime under C. C. Law 10. The

document discloses that cases similar to that of Golek had been tried

by the People’s Court and that more prosecutions were expected in the

future. As a witness, the defendant Lautz testified that “in several

individual cases a decision had to be obtained from the minister.” We

are justified in believing that Lautz’ expectations were fulfilled and

that he participated in the prosecution of Golek and in similar cases.

We have cited a few cases which are typical of the activities of

the prosecution before the People’s Court in innumerable cases. The

captured documents which are in evidence establish that the defendant

Lautz was criminally implicated in enforcing the law against Poles and

Jews which we deem to be a part of the established governmental plan

for the extermination of those races. He was an accessory to, and took

a consenting part in, the crime of genocide.

He is likewise guilty of a violation of the laws and customs of war

in connection with prosecutions under the Nacht und Nebel decree, and

he participated in the perversion of the laws relating to treason and

high treason under which Poles guilty of petty offenses were executed.

The proof of his guilt is not, however, dependent solely on captured

documents or the testimony of prosecution witnesses. He is convicted on

the basis of his own sworn statements. Defendant is entitled to respect

for his honesty, but we cannot disregard his incriminating admissions

merely because we respect him for making them.

There is much to be said in mitigation of punishment. Lautz was not

active in Party matters. He resisted all efforts of Party officials to

influence his conduct but yielded to influence and guidance from Hitler

through the Reich Ministry of Justice, believing that to be required

under German law. He was a stern man and a relentless prosecutor, but

it may be said in his favor that if German law were a defense, which it

is not, many of his acts would be excusable.

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

of the indictment.

_THE DEFENDANT METTGENBERG_

By his own sworn statement the defendant Wolfgang Mettgenberg frankly

and fully admits his connection with the Hitler Night and Fog decree.

His statements show that he exercised wide discretion and had extensive

authority over the entire plan from the time the Night and Fog prisoner

was arrested in occupied territory and continuously after his transfer

to Germany, his trial, and execution or imprisonment.

We will not reiterate the statements made by him in his sworn statement

and hereinabove quoted. Suffice it to say that Mettgenberg held the

position of Ministerialdirigent in Departments III and IV of the Reich

Ministry of Justice. In Department III, for penal legislation, he dealt

with international law, formulating secret, general, and circular

directives. He was regarded as an eminent authority on international

law. He handled Night and Fog cases and knew the purpose and procedure

in such cases. He knew that the decree was based upon the Fuehrer’s

order of 7 December 1941 to the OKW. He knew that an agreement

existed between the Gestapo, the Reich Ministry of Justice, the Party

Chancellery, and the OKW with respect to the purposes of the Night and

Fog decree and the manner in which such matters were to be handled.

The defendant von Ammon was Ministerial Councillor in Mettgenberg’s

subdivision and was in charge of the Night and Fog section as shown in

this judgment. The two acted together on doubtful matters and referred

difficult questions to competent officials in the Reich Ministry of

Justice and the Party Chancellery, since both of these offices had to

give their “agreement” in cases of malicious attacks upon the Reich

or Nazi Party or in the Night and Fog cases. The NN cases came from

the Wehrmacht but in some cases directly from the Gestapo. These cases

were assigned to Special Courts at several places in Germany and to

the People’s Court at Berlin by defendant von Ammon. Mettgenberg and

von Ammon were sent to the Netherlands occupied territory because

some German courts set up there were receiving Night and Fog cases in

violation of the decree that they should be transferred to Germany.

They held a conference at The Hague with the highest military justice

authority and the heads of the German courts in the Netherlands, which

resulted in a reference of the matter to the OKW at Berlin which agreed

with Mettgenberg and von Ammon that “the same procedure should be used

in the Netherlands as in other occupied territories, that is, that all

Night and Fog matters should be transferred to Germany.”

In Department IV for penal administration, Mettgenberg’s work consisted

of inspecting execution equipment. He witnessed one execution in

1944. He was entrusted with speeding up clemency applications because

prisoners were escaping during air raids. Reich Minister Thierack

called the defendant, Rothenberger, Under State Secretary, by telephone

at Berlin and instructed him to make decisions concerning the clemency

in death sentence cases presented by defendant Mettgenberg who made

“reports lasting hours,” and then Rothenberger made the decisions.

The evidence does not positively show that clemency cases presented

by Mettgenberg and passed upon by Rothenberger were NN cases. We

think, however, that the only conclusion that can be reached from

Mettgenberg’s testimony during the trial is that Rothenberger passed

upon all clemency matters presented to him by Mettgenberg which

included NN cases. Mettgenberg stated that he was appointed to speed

up clemency matters due to air raids and that he took the matter up

with the Reich Minister of Justice, Thierack, who at the time called

Rothenberger on the telephone and told him to receive and pass upon the

clemency matters submitted. Mettgenberg testified that he did present

clemency matters to Rothenberger by telephone conversations which

lasted for several hours and that Rothenberger then made the decisions.

The defendant Mettgenberg assumed the burden of defending the

illegality of the Night and Fog proceedings under the Ministry

of Justice not only for himself but for all defendants connected

therewith. He prefaced this defense with the following statement:

“Today I am still of the view which I expressed in my affidavit.

My view is that it was regrettable because the courts, in these

matters, could not completely do justice to their foremost

task, the finding of the truth. Now that I believe I have heard

everything and believe myself to be able to survey the whole

matter, I have to say that as concerns the various evils between

which one had to choose, a transfer of the NN cases to the

administration of justice was, after all, the lesser evil, so

that this emergency solution which was made was probably the

only possible solution.” (_Tr. pp. 6269–6270._)

With respect to the legal foundation for the NN cases, three laws or

decrees are presented as justifying the proceedings. The first is

article 161 of the Military Penal Code which dates back to the 1870’s

and which, as amended, provides:

“A foreigner or a German who, in a foreign territory occupied

by German troops, acts against German troops or their members

or against an authority established by order of the Fuehrer and

thereby commits an act which is punishable according to the laws

of the Reich, is to be punished, just as if that act would have

been committed by him within the territory of the Reich.”

Whether this law violates international law of war need not be

determined here because the defendants did not act under it in the

execution and enforcement of the Hitler Night and Fog decree. Nor does

this law authorize the execution and enforcement of any such decree.

The second legal ground presented is article 3, section 2 of the Code

of Penal Procedure of 17 August 1938 which provides for the punishment

of criminal acts committed in the areas of military operations in

occupied territory by foreigners or Germans and further provides that:

“If a requirement of warfare demands it, * * * they may turn

over the prosecution to the ordinary courts in the rear army

area.”

There can be no criticism of this law. It was not applied in any

respect in the Night and Fog cases; hence, it constitutes no defense

for the manner in which the Night and Fog decree was carried out.

The third legal foundation for the proceeding is based upon the claim

that the Hitler decree of 7 December 1941 was a legal regulation for

the handling of offenses against the Reich or against the occupation

forces of the German Army in occupied areas. With respect to this

decree we are convinced that it has no legal basis either under the

international law of warfare or under the international common law

as recognized by all civilized nations as heretofore set out in this

judgment.

The defendant Mettgenberg referred to and approved the testimony of

the defendant Schlegelberger which states “that the NN prisoners were

expected to be, and were, tried materially according to the same

regulations which would have been applied to them by the courts martial

in the occupied territories” and that, accordingly, “the rules of

procedure had been curtailed to the utmost extent.” This court martial

procedure was shown to have been used in the prosecution of NN persons

who had been charged with high treason or preparation of treason

against the Reich.

Mettgenberg testified as to the troubles the department had with the

Gestapo because the Gestapo insisted that they had already investigated

the facts as to each NN prisoner and that these facts should be

accepted without further trial. This practice was not acceptable to

the Ministry of Justice. As to other difficulties in securing proper

evidence, Mettgenberg testified:

“Even though investigations were first of all carried out in the

occupied territories before the NN prisoners were transferred to

Germany, yet it was a matter of course that that evidence was

not always without gaps.”

These “gaps” in the evidence were shown by [NG-261 and NG-264]

Prosecution Exhibits 334 and 335 in which the public prosecutor at

Katowice complained of the difficulty of securing sufficient proof due

to the utter secrecy of the proceedings. The Gestapo alone presented

the evidence by “rather dubious police transcripts” and “such police

records occasionally had been obtained by inadmissible means.”

Mettgenberg testified that defendant von Ammon made an official trip to

Upper Silesia to discuss these matters with the chief judge in Belgium

and northern France “to remedy that state of affairs.” This action did

not take place until 30 June 1944, which was only a few months before

the Night and Fog matters were taken out of the hands of the Ministry

of Justice, and all prisoners then held by the Ministry of Justice were

transferred to the Gestapo to be placed in concentration camps.

Mettgenberg also testified to the difficulties experienced with the

Gestapo arising out of the fact that the Gestapo transferred many of

these prisoners directly to concentration camps and thereby retained

control over them. Nothing was done about the fact that the police

took the NN prisoners into police custody and retained them in police

custody.

We find defendant Mettgenberg to be guilty under counts two and three

of the indictment. The evidence shows beyond a reasonable doubt that

he acted as a principal, aided, abetted, and was connected with the

execution and carrying out of the Hitler Night and Fog decree in

violation of numerous principles of international law, as has been

heretofore pointed out in this judgment.

_THE DEFENDANT VON AMMON_

From his own sworn statements we gain the following information

concerning the defendant von Ammon. He joined the SA in December 1933,

in which organization he held the rank of Scharfuehrer. He joined the

NSDAP in May 1937. He was called to the Reich Ministry of Justice as

of 1 January 1935, became a Landgerichtsrat on 1 February 1935, and

Landgerichtsdirektor on 1 July 1937. His main activity in the Ministry

during that period concerned “questions of international legal usage in

penal matters”

After the Austrian Anschluss he was employed as liaison officer of

Department III (penal matters) in connection with Department VIII

(Austria), in the Reich Ministry of Justice. He was consultant

in the department for the administration of penal law under

Ministerialdirektor Crohne. He was transferred to the Munich Court of

Appeals as Oberlandesgerichtsrat where he served until June 1940, at

which time he was recalled to the Reich Ministry of Justice. As of 1

March 1943 he was appointed Ministerial Counsellor in the Ministry of

Justice. He states (_NG-852, Pros. Ex. 55_):

“From 1942 onward I dealt mainly with Nacht und Nebel cases

in the occupied territories. In my capacity as consultant for

Nacht und Nebel cases I made several duty trips to the occupied

territories and took part in discussions in Paris and Holland

which dealt with questions of Nacht und Nebel proceedings.”

The broad scope and the variety of the official activities of von Ammon

may be illustrated by reference to reports which he made to officials

of the Ministry of Justice during the year 1944. On 14 January 1944

he reported at the Ministry upon “jurisdiction of Denmark”. On 10

February he reported to the minister on “Competence for Prosecution

of NN Cases.” On 31 May, under the heading “Submissions to the State

Secretary” (Klemm), he reported on “Action Against Stateless Jews,

Admission of Legal Procedure.” Under the heading “Reports to the State

Secretary” for 21 June 1944, he reported on “Pastoral Service for NN

Prisoners”, after which in handwriting appears the word “rejection”.

Under the heading “Submissions to the Minister” for 26 July, he

reported on “Proceedings of State Police in Lower Styria.” Under the

heading “Reports to the Ministers” of 5 October, he reported on “Taking

Over of Criminal Proceedings from the Eastern Districts.” Under the

heading “Formal Verbal Reports to the Minister” of 3 November 1944, he

reported on “Liquidation of Offenses from the Eastern Territories.” On

10 January 1945 it appears that he made a verbal report on the “Taking

Over Administration of Penal Justice of the Minister for the East.”

The prosecution introduced in evidence a captured document of 142

pages in length, containing lists of many hundreds of death sentences

which were submitted to the Minister of Justice and at times to State

Secretary Klemm for final disposition. The cases were classified

as “clear” or as “doubtful.” The former, “clear,” outnumbered the

latter. An examination of the document discloses that between 14

January 1944 and 16 November of the same year the defendant von Ammon

made twenty-four reports on cases in which persons from the occupied

territories had been sentenced to death under the Nacht und Nebel

procedure. The death sentences averaged more than one for every 3 days

of the entire period.

In a notice addressed to Under Secretary Rothenberger, and to Minister

Thierack, von Ammon reported that on 1 September 1942, in Kiel, Essen,

and Cologne cases were pending against 1,456 persons charged under the

Night and Fog decree.

In view of the fact that von Ammon was in charge of Nacht und Nebel

procedure from 1942 until the end of the war, it is clear that we

have in evidence only incomplete records of the activities of this

defendant in connection with the Night and Fog decree. The fragmentary

character of the captured documents which have been submitted renders

it impossible to give a complete picture of this criminal activity. The

illustrations which we have given and which cover only a portion of

the time involved will, however, serve as an indication of the scope

of the activities which were under the direction of the defendants

Mettgenberg and von Ammon. Von Ammon also participated in a lengthy

secret correspondence concerning the transfer of NN cases to the

Special Court at Oppeln and the necessity of allocating additional

judges and public prosecutors to that court in view of the resultant

increase in the volume of work.

The defendant von Ammon held an executive position of responsibility

involving the exercise of personal discretion. Within the ministry he

was in charge of the section which handled Night and Fog cases. The

defendant Mettgenberg stated that the Night and Fog section within his

subdivision was headed by von Ammon and that whenever von Ammon had

doubts concerning the handling of individual cases joint discussions

were held. We quote:

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

We have already set forth at length the statement of von Ammon

concerning his knowledge and activities and his misgivings concerning

the entire procedure. The defendants von Ammon and Mettgenberg were the

representatives of the Reich Ministry of Justice at a conference at

The Hague on 2 November 1943 concerning “New Regulations for Dealing

with Night and Fog Cases from the Netherlands”. Von Ammon states that

assurance was given by Mettgenberg and himself that close connection

would be maintained between the judicial authorities at Essen and the

German authorities in the Netherlands in the handling of NN cases. We

have already quoted a note signed by von Ammon wherein he remarked that

it was “rather awkward” that the defendants should learn the details of

their charges only during the trial and commented on the insufficiency

of the translation facilities in the trial of French NN prisoners. Von

Ammon is chargeable with actual knowledge concerning the systematic

abuse of the judicial process in these cases.

In respect to his other activities we refer to our general discussion

under the heading “Night and Fog.” We find the defendant von Ammon

guilty of war crimes and crimes against humanity under counts two and

three of the indictment.

_THE DEFENDANT JOEL_

The professional career of the defendant Guenther Joel in the Third

Reich proceeded at the same pace as his career as a Party man; in fact,

even before the war years his professional career merged with his

career in Nazi organizations, and to be more precise, in the SS and the

SD--the organization which the IMT judgment has declared to be criminal.

He became a member of the NSDAP on 1 May 1933 and entered the Ministry

of Justice as a junior public prosecutor (Gerichtsassessor) on 7

August 1933. In quick succession he became assistant public prosecutor

(1 September 1933), public prosecutor (1 January 1934), senior public

prosecutor (1 February 1935), and chief public prosecutor (1 November

1936).

Between August 1933 and October 1937, Joel was the chief of a newly

created subdepartment of the Reich Ministry of Justice, the Central

Public Prosecution (Zentralstaatsanwaltschaft). In October 1937 this

subdepartment was dissolved, but the Reich Minister of Justice,

Guertner, reserved the right to assign Joel as “Referent” for special

cases and subsequently made use of this right. After the dissolution

of the Central Public Prosecution, Joel worked as “Referent” in the

Ministry’s Penal Department III (later renumbered IV).

By a formal letter of appointment, dated 19 December 1937 and signed by

Minister Guertner, Joel was, in addition to his other duties, appointed

liaison officer between the Reich Ministry of Justice and the SS,

including the SD, as well as the Gestapo. A few months later, namely,

in a letter of 2 May 1938, signed by Heydrich, Joel was, effective 30

January 1938, admitted to the SS and, effective the same day, promoted

to the rank of SS Untersturmfuehrer and given the position of leader

(Fuehrer) in the SD Main Office (Security Service Main Office).

His SS personnel record shows how quickly he climbed to high

positions in the SS and the SD: on 11 September 1938 he became SS

Obersturmfuehrer; on 30 January 1939, SS Hauptsturmfuehrer; on 26

September 1940, SS Sturmbannfuehrer--holding all these ranks as leader

in the SD Main Office.

The record shows that in his capacity as SS officer Joel was, between

2 and 8 May 1939, sent on an official mission for the Security Office

(SD). An official letter from the Reich Leader of SS, Chief of the

Security Service Main Office, dated 28 April 1939, so notified the

Reich Minister of Justice. Again, on 4 July 1940, the Chief of the

Security Police and the Security Service informed the Reich Ministry of

Justice that Joel had been “put on the list of indispensable persons

on behalf of the Reich Leader SS and Chief of the German Police,”

thereby reserving to the Security Police and the Security Service the

indispensable service of Joel and freeing him from military service.

But in his answer, dated 11 July 1940, to this request, Freisler, Under

Secretary of the Ministry of Justice, asked:

“To refrain from calling upon SS Captain Joel, senior public

prosecutor, for taking over duties for the Reich Leader SS and

Chief of the German Police. Dr. Joel, as you know, is entrusted

with extremely important reports at my ministry.”

The nature of these reports will be later discussed.

On 1 May 1941 Joel was promoted to ministerial counsellor. He remained

with the Reich Ministry of Justice until 12 May 1943.

The reason for his leaving the Ministry was that on 7 May 1943 he was

appointed attorney general to supreme provincial court of appeals in

Hamm (Westphalia). By letter dated Fuehrer Headquarters, 12 May 1943,

Bormann, Chief of the Party Chancellery (sentenced to death in absentia

by the IMT) personally confirmed his appointment. It should be added

that a few weeks earlier, by letter of 13 March 1943 to Reich Minister

of Justice, Thierack, the Gauleiter of Westphalia, Alfred Meyer, also

formally endorsed Joel’s appointment for attorney general at Hamm, in

his own name and in the name of deputy Gauleiter Hoffmann, in charge of

the administration of the Gau Westphalia-South.

Shortly after this new appointment, namely, as of 9 November 1943,

Joel was promoted to the high rank of SS Obersturmbannfuehrer, which

appointment was approved by Himmler. His political and Party career

went hand in hand with his professional career, and his promotions

were made by or approved by such high ranking Nazi officials as

Himmler, Bormann, Heydrich, Thierack, and Freisler--whose desperate and

despicable characters are known to the world; the record in this case

is replete with many atrocities and crimes committed by these leaders

and members of organizations which have been declared criminal by the

IMT. Thus, Joel continued to the end as the confidant and trusted

protegé of these most outstanding and notorious criminals of all time.

It will be remembered that ever since December 1937, Joel in his

several capacities at the Ministry of Justice had, in addition to his

other duties, acted as liaison officer between the ministry and the SS,

the SD, and the Gestapo. To this position a successor, Chief Public

Prosecutor Franke, was appointed on 1 August 1943. Joel claims that

in fact he had ceased to act as such liaison officer when Thierack

assumed office as Reich Minister of Justice in August 1942. However,

the record shows that even after that time Joel made numerous reports,

some of which are mentioned below, relating to the execution of death

penalties imposed under the law against Poles and Jews, and relating

to the transfer of Poles who had received mild sentences, or had been

acquitted, or had served their term, to the Gestapo. These were the

very duties which he had to perform in the Reich Ministry as liaison

officer. Even after Thierack’s appointment as minister, Joel was

connected with the interests of the Reich Security Office, and his work

was productive and satisfactory in the carrying out of the plan or

scheme of racial persecution and extermination of Poles and Jews. On

17 August 1943, defendant Rothenberger inducted defendant Joel into his

office as general public prosecutor at Hamm, praised him in the highest

terms, and referred to him as an SS member and also to his rank of SS

Obersturmbannfuehrer. As late as 1945, when the question of military

service for Joel again arose, Gauleiter Hoffmann of South Westphalia

intervened in a letter to the Reich Ministry of Justice, referring to

the fact that Joel was known to be a member of the Waffen SS, and that

if he were to go into military service he would undoubtedly be assigned

to the SS activities.

Under our discussion of the Night and Fog decree, reference is made

to several documents which show Joel as having aided, abetted,

participated in, and having been connected with, the Night and Fog

scheme or plan.

Rudolf Lehmann, lieutenant general of the legal department of the armed

forces, stated under oath:

“These cases were, as I seem to remember, handled by von Ammon,

also of that same division of the Reich Ministry of Justice.

General Public Prosecutor Joel, who was in the Ministry of

Justice until sometime in 1943, would be able to supply further

details on this ‘Nacht und Nebel’ matter. Joel was general

public prosecutor in Hamm, and a court handling ‘Nacht und

Nebel’ cases was located at Hamm. Other courts handling ‘Nacht

und Nebel’ cases were located at Cologne, Breslau, and at one or

two other places unknown to me but which can be named by Joel.”

Joel became chief prosecutor of the court of appeals in Hamm, covering

all of Westphalia and the district of Essen, on 17 August 1943, which

office he continued to hold until the end of the war. In this position

he was in charge of the Night and Fog program for the Special Courts in

Hamm and Essen until 15 March 1944 when these courts were transferred

farther east to Oppeln in the Katowice district. Reports of Joel show

that he attended conferences both in Hamm and in Belgium on Night and

Fog matters. The record also shows that the district of which he was

the highest, and therefore the most responsible, prosecuting authority

was, in area and population, one of the largest in Germany. He had

under his supervision the senior public prosecutors and their staffs at

the Special Courts at Hamm and in Essen. It was his task to supervise

the work of all prosecutors assigned to his office. The Special Courts

in Hamm and Essen tried more Night and Fog cases than the combined

total of all other Special Courts and the People’s Court. In law, Joel

must be held to have had the responsibility of these cases. The record

further shows that Joel assumed this responsibility.

A letter addressed to Joel, dated 20 January 1944, stated that in the

future all Night and Fog persons who were upon trial acquitted or who

had served their sentences, must be turned over for custody to the

Gestapo.

A letter dated 26 January 1944 from Joel to the Reich Minister of

Justice complained about the delay which the defendant Lautz, chief

prosecutor at the People’s Court, caused by his failure to return files

in NN cases. Joel pointed out that 84 Night and Fog prisoners who had

been held near Hamm since 1941 were still there.

In November 1943 defendants von Ammon and Mettgenberg came to Hamm

enroute back to Berlin from the conferences they had attended in

Holland. The purpose of their visit to Joel was to determine whether

there was any available space in prison for the keeping of additional

Night and Fog prisoners to be transported from the Netherlands. Joel

assured them that more prisoners could be accommodated and even opposed

the view of his Oberlandesgericht who stated they should not be sent

to the Hamm area. They were sent to that area. In December 1943 Joel

attended a conference in Brussels which he reported upon after his

return to Hamm, pertaining to Night and Fog prisoners who were sent

from Belgium.

The categorical denial of Joel of ever having transferred an NN

prisoner or of ever having tried an NN prisoner or of ever having

issued an order to transfer an NN prisoner who had been acquitted

or who had served his sentence, to Gestapo custody is no defense of

his activities in connection with the custody, trial, execution, or

transfer of NN prisoners after they had served their sentences or had

been acquitted to the Gestapo.

The high office which he held required him to supervise and properly

handle Night and Fog cases filed in the courts where he was chief

prosecutor. He had numerous assistants whom he necessarily had to

entrust with the prosecution and carrying out of the Night and Fog

program and cases arising thereunder. The fact that Joel did not

actually try the Night and Fog cases himself has no significance.

He did supervise the men who tried and had executed some of them

and imprisoned others and transferred others who were not guilty

of any crime or who had served their sentence, to the Gestapo and

concentration camps.

The defendant Joel is chargeable with knowledge that the Night and

Fog program from its inception to its final conclusion constituted a

violation of the laws and customs of war.

We turn now to the other activities here under indictment of the

defendant Joel.

We direct attention to a document from the Reich Ministry of Justice

which contains the program for conferences among the officials of the

Ministry. In each instance the name of the official who is to report

is set opposite the subject for discussion. From this we gain some

information as to the scope of the work assigned to Joel.

According to this program Joel was scheduled to report upon the

following subjects. We quote:

“Nullification plea, Maslanka.

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

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

“Handing-over of Poles to the State Police (cases Bartosinski

and Marcziniak).

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

“Treatment of Jews and Poles, as well as Russians. Internal

order of the Reich Leader SS.

“Bartosinski, Pole, shall be transferred from criminal custody

(3 years’ penal camp on account of sexual intercourse) to State

Police.

“Marasyak, Pole, wanted to marry German maid in France.

Detention pending investigation. State Police demands him turned

in.

“Should there be any reports during the war on the question of

mercy for Poles who have been sentenced to death on account of

the possession of weapons and other offenses and who have been

pardoned to 5 years’ penal servitude with the reserve of an

investigation after 2 to 3 years?

“Extortion of food ration cards, Mrs. Ritter. Chorlow, Russian

from the district of Kursk, article 2, VVO. State Police wants

to punish with police measures.

“Jakubowski, Pole, has raped German woman. He has been executed

by hanging. The criminal police asks for a burial certificate.

“Uschako, workman, from the East, from old Soviet Russian

territory, has stolen a jacket. The Secret State Police sent him

to a labor education camp and requests cancellation of the order

to inflict 1-month imprisonment.”

Another significant incident relates to the case of two “deserving

National Socialists.” Our source of knowledge is a brief document

signed by the defendant Joel. The facts stated are that a policeman and

a temporary mayor “shot two Polish priests for no reason other than

hatred for the Catholic clergy.” On 11 June 1940, the two murderers

were sentenced to 15 years’ penal servitude for manslaughter. Joel

states that more than 2 years of the sentence had been served and that

the Reich Leader SS asked for pardon. The document concludes as follows:

“Penal servitude changed to 5 years’ imprisonment each.

Postponement of the serving of the sentence and of the

defamatory consequences for the duration of stay in a Waffen SS

probation unit. Further pardon in the case of the probation.

(Signed) Dr. Joel”

As early as 1937 it is clear that Joel had knowledge of conditions in

concentration camps. A document marked “For the time of circulation:

Secret! to III-a: After circulation in sealed envelope to the Gestapo

general files”, contains the following:

“2. As far as reports concerning executions when escaping from

concentration camps, etc., suicides in K.Z.’s (concentration

camps) arrive, they shall continue to be dealt with by the

specialist competent for the respective subject. The general

consultant for political criminal matters, however, is to be

informed of the reports. They are to be submitted to him [at]

once.”

This order was circulated to all specialists for political criminal

matters. Joel was listed as a political specialist.

An official report on a meeting of the presidential board of 1 February

1939 shows that a report was given by the Chief Public Prosecutor on

developments in connection with the events of 9 to 11 November 1938

(the Jewish pogrom). We quote:

“The Reich Minister of Justice and Senior Public Prosecutor Joel

pointed out that it was impossible, of course, to handle this

matter in the usual judicial manner; if the top men disregarded

legal principles, it was impossible to prosecute people

concerned with the execution. For instance, the viewpoint of

violation of the public peace should be dropped. This is legally

justified _inter alia_ by the fact that the culprits were

not conscious of any violation, since they were acting under

orders. As far as the criminal offenses committed on that

occasion are concerned, trifles should be dropped. Otherwise,

however, proceedings can only be quashed by the Fuehrer, whereas

serious criminal offenses such as rape and race defilement must

be prosecuted. The order to prosecute is issued in any case by

the minister after the culprits, if they are members of the

Party or of any organization, have been excluded by a special

department of the Supreme Party Tribunal in Berlin.”

It is self-evident that if prosecution was to take place only after a

Party tribunal had excluded them, they would live a long and happy life

of freedom.

Defendant Joel became a Referent in the Reich Ministry of Justice with

authority and duty to review penal cases from the Incorporated Eastern

Territories after the occupation of Poland. In this capacity he handled

many of the cases tried pursuant to the decree against Poles and Jews.

In defense of these acts, Joel testified that “he felt obligated by the

existing laws and so complied with them.” Joel did not have the same

view as other officials that after the surrender of the Polish nation

the nationals of the annexed part of Poland became German nationals. He

testified that such a Polish citizen after 1 September 1939 remained a

Polish national and that “a Polish national is never a German.” Joel

frankly admitted that he knew he was not dealing with Germans but with

foreign nationals.

In his capacity as Referent for the Incorporated Eastern Territories

Joel, as liaison officer between the Reich Ministry of Justice and

the Gestapo, took part in conferences with others from Department IV

concerning the disposition of such Jewish and Polish cases. In one

instance he reported having discussed an order of Himmler’s as to

the treatment Poles and Jews should receive. In another instance he

reported ordering the transfer of Poles who had been sentenced to a

penal camp for 3 years to the Gestapo.

As a witness, Schlegelberger testified concerning transfers to the

police, which he described as “a very sad chapter for anyone who has a

sense of justice.” Guertner protested against this procedure and made

compilations of press reports concerning executions by the police.

“Lammers actually submitted these compilations to Hitler but

told Guertner later Hitler had said that he had not given

a general directive to carry out these shootings, but in

individual cases he could not do without these measures because

the courts, that was military courts as well as civil courts,

were not able to take care of the special conditions as created

by the war. And, Lammers at the same time announced that Hitler

in a further case had already ordered the execution by shooting.”

Schlegelberger testified further that after an order had been made for

the transfer of a prisoner to the police, there was a time limit of 24

hours, at the end of which the police were required to report that the

order had been executed. Schlegelberger states that Guertner charged

the defendant Joel with the mission of representing the Ministry of

Justice with the police in connection with these transfers. It appears

that the Ministry of Justice, through Joel, was able to intervene in

some cases and to prevent the transfers. Schlegelberger testified:

“* * * the attempts to intervene on the part of the Ministry of

Justice were successful in some cases but, if all possibilities

had been exhausted, and if in spite of that he had not

succeeded in having the order issued by the police withdrawn,

nothing was left but to issue the instructions to the executing

authority not to offer any resistance but to hand the man over

to the police when they requested him.”

Notwithstanding the reluctance with which the officials of the Ministry

of Justice acted, it appears from the foregoing that they did cooperate

in the transfer of prisoners to the police.

From 10 September 1942 to March 1943, Joel reviewed 105 death sentences

passed by courts in the Incorporated Eastern Territories and in most

cases gave final authorization for their execution.

In his capacity as such Referent, Joel reviewed and passed upon 16

death sentences of Poles who had committed alleged crimes against the

Reich or the German occupation forces. One of these Poles was born

in Cleveland, Ohio, in the United States, and his death sentence was

commuted to life imprisonment because Joel was fearful his execution

would involve the Reich in international complications. The remaining

15 Poles were executed.

As Referent, Joel was shown by captured official documents to have had

knowledge that many Jewish and Polish political prisoners were being

executed under the law against Jews and Poles. This matter was called

to his attention because of a dispute as to who should handle the

corpses of the executed prisoners. One main difficulty was that, under

Himmler’s orders, these corpses were to be turned over to the Secret

Police for disposition. The mayor and police of Posen [Poznan] refused

to handle the corpses of Poles and Jews who were not executed as

political prisoners. Joel was thereupon instructed to handle the matter

temporarily and to work out a permanent plan for such burials, which he

later assisted in doing.

As Referent in the department of justice and as liaison officer between

the department and the SS, Joel obtained extensive information and

exercised far-reaching power in the execution of the law against Jews

and Poles. He therefore took an active part in the execution of the

plan or scheme for the persecution and extermination of Jews and Poles.

Concerning Joel’s membership in the SS and SD, a consideration of all

of the evidence convinces us beyond a reasonable doubt that he retained

such membership with full knowledge of the criminal character of those

organizations. No man who had his intimate contacts with the Reich

Security Main Office, the SS, the SD, and the Gestapo could possibly

have been in ignorance of the general character of those organizations.

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

_THE DEFENDANT ROTHAUG_

Oswald Rothaug was born 17 May 1897. His education was interrupted

from 1916 to 1918 while he was in the army. He passed the final

law examination in 1922 and the State examination for the higher

administration of justice in 1925.

He joined the NSDAP in the spring of 1938 and the membership was made

effective from May 1937.

Rothaug was a member of the National Socialist Jurists’ League and the

National Socialist Public Welfare Association. In his affidavit he

denies belonging to the SD. However, the testimony of Elkar and his own

admission on the witness stand establishes that he was an “honorary

collaborator” for the SD on legal matters.

In December 1925 he began his career as a jurist, first as an

assistant to an attorney in Ansbach and later as assistant judge at

various courts. In 1927 he became public prosecutor in Hof in charge

of criminal cases. From 1929 to 1933 he officiated as counsellor at

the local court in Nuernberg. In June 1933 he became senior public

prosecutor in the public prosecution in Nuernberg. Here he was the

official in charge of general criminal cases, assistant of the Chief

Public Prosecutor handling examination of suspensions of proceedings

and of petitions for pardon. From November to April 1937 he officiated

as counsellor of the district court in Schweinfurt. He was legal

advisor in the civil and penal chamber and at the Court of Assizes, as

well as chairman of the lay assessors’ court. From April 1937 to May

1943 he was director of the district court in Nuernberg, except for a

period in August and September of 1939 when he was in the Wehrmacht.

During this time he was chairman of the Court of Assizes, of a penal

chamber, and of the Special Court.

From May 1943 to April 1945 he was public prosecutor of the public

prosecution at the People’s Court in Berlin. Here, as head of

Department I he handled for a time cases of high treason in the

southern Reich territory, and from January 1944 cases concerning the

undermining of public morale in the Reich territory.

Crimes charged in the indictment, as heretofore stated in this opinion,

have been established by the evidence in this case. The questions,

therefore, to be determined as to the defendant Rothaug are: first,

whether he had knowledge of any crime so established; and second,

whether he was a participant in or took a consenting part in its

commission.