already been pointed out. But Rothaug’s knowledge was not limited
to those general sources. Rothaug was an official of considerable
importance in Nuernberg. He had many political and official contacts;
among these--he was the friend of Haberkern, Gau inspector of the
Gau Franconia; he was the friend and associate of Oeschey, Gau
legal advisor for the Gau Franconia; and was himself Gauwalter of
the Lawyers’ League. He was the “honorary collaborator” for the SD.
According to the witness Elkar, [he was] the agent of the SD for
Nuernberg and vicinity, this position was more important than that of
a confidential agent, and an honorary collaborator was active in SD
affairs. He testifies that Rothaug took the SS oath of secrecy.
Whether Rothaug knew of all the aspects of the crimes alleged, we need
not determine. He knew of crimes as established by the evidence, and it
is the function of this Tribunal to determine his connection, if any,
therewith.
The defendant is charged under counts two, three, and four of the
indictment. Under count four he is charged with being a member of the
Party Leadership Corps. He is not charged with membership in the SD.
The proof as to count four establishes that he was Gauwalter of the
Lawyers’ League. The Lawyers’ League was a formation of the Party and
not a part of the Leadership Corps as determined by the International
Military Tribunal in the case against Goering, et al.
As to counts two and four of the indictment, from the evidence
submitted, the Tribunal finds the defendant not guilty. The question of
the defendant’s guilt as to count three of the indictment remains to be
determined.
The evidence as to the character and activities of the defendant is
voluminous. We shall confine ourselves to the question as to whether
or not he took a consenting part in the plan for the persecution,
oppression, and extermination of Poles and Jews.
His attitude of virulent hostility toward these races is proved
from many sources and is in no wise shaken by the affidavits he has
submitted on his own behalf.
The evidence in this regard comes from his own associates--the judges,
prosecutors, defense counsel, medical experts, and others with whom he
dealt. Among, but not limited to these, we cite the evidence of Doebig,
Ferber, Bauer, Dorfmueller, Elkar, Engert, Groben, and Markl. In
particular the testimony of Father Schosser is important. He testified
as to many statements made by the defendant Rothaug during the trial
of his own case, showing the defendant’s hostility to Poles and his
general attitude toward them. He stated that concerning the Poles in
general, Rothaug expressed himself in the following manner:
“If he (Rothaug) had his way, then no Pole would be buried in a
German cemetery, and then he went on to make the remark which
everybody heard in that courtroom--that he would get up from his
coffin if there was a Pole being buried near to him. Rothaug
himself had to laugh because of this mean joke, and he went on
to say, ‘You have to be able to hate, because according to the
Bible, God is a hating God.’”
The testimony of Elkar is even more significant. He testifies that
Rothaug believed in severe measures against foreigners and particularly
against Poles and Jews, whom he felt should be treated differently
from German transgressors. Rothaug felt there was a gap in the law in
this respect. He states that Rothaug asserted that in his own court he
achieved this discrimination by interpretation of existing laws but
that other courts failed to do so. Such a gap, according to Rothaug,
should be closed by singling out Poles and Jews for special treatment.
Elkar testifies that recommendations were made by the defendant
Rothaug, through the witness, to higher levels and that the subsequent
decree of 1941 against Poles and Jews conformed to Rothaug’s ideas as
expressed and forwarded by the witness Elkar through SD channels to the
RSHA.
This animosity of the defendant to these races is further established
by documents in this case which show that his discrimination against
these races encompassed others who he felt lacked the necessary
harshness to carry out the policy of the Nazi State and Party toward
these people.
In this connection the communication of Oeschey to Deputy Gauleiter
Holz, concerning Doebig, is worthy of note. In this communication many
charges were made against Doebig for his failure to take action against
officials under him who had failed to carry out the Nazi programs
against Jews and Poles. Oeschey testified that these charges were
copied from a letter submitted to him by the defendant Rothaug and that
the defendant assumed responsibility for these charges. Rothaug denies
that he assumed responsibility or had anything to do with the charges
made, except in one immaterial instance. However, in the light of the
circumstances themselves, the Tribunal accepts Oeschey’s testimony
in this regard, particularly in view of the unimpeached affidavit
of Oeschey’s secretary to the effect that these charges were copied
directly by her from a letter of Rothaug’s.
Documentary proof of Rothaug’s attitude in this respect is further
found in the records of cases tried by him which hereafter will be
considered.
Proof as to his animus is not shaken by his own testimony. It is
confirmed by his testimony. He states:
“In my view, by introduction of the question of the so-called
incredibility of Poles, the whole problem is shifted onto
another plane. It is a matter of course that a nation, which
has been subjected by another nation, and which is in a state
of stress--that a citizen of such a country which had been
subjected to another _vis-à-vis_ the victorious nation,
finds himself in quite a different moral-ethical relationship.
It is useless to shut your eyes against reality. Of course,
he finds himself in a different moral relationship from the
relationship in which a German citizen would find himself. It is
so natural there is no point in ignoring it. There is no need to
lie.”
His explanations as to his feeling toward Poles, given in connection
with the Schosser arrest and trial are also most enlightening but too
extensive to quote here.
Concerning his participation in the Nazi policy of persecution
and extermination of persons of these races, we shall confine our
discussions to three cases which were tried by Rothaug as presiding
judge.
The first case to be considered is that of Durka and Struss. Our
knowledge of this case is based primarily upon the evidence of Hans
Kern, the defense counsel of one of these defendants; Hermann Markl,
the prosecutor in the case; and the testimony of the defendant Rothaug.
The essential facts are in substance as follows: Two Polish girls--one,
according to the testimony of Kern, 17 years of age, the other
somewhat older--were accused of starting a fire in an armament plant
in Bayreuth. This alleged fire did not do any material damage to the
plant, but they were in the vicinity when it started and were arrested
and interrogated by the Gestapo. Both gave alleged confessions to
the Gestapo. Almost immediately following this occurrence, they were
brought to Nuernberg by the Gestapo for trial before the Special Court.
Upon their arrival the prosecutor in the case, Markl, was directed to
draw up an indictment based upon the Gestapo interrogation. This was at
11 o’clock of the day they were tried.
The witness Kern was summoned by the defendant Rothaug to act as
defense counsel in the case approximately 2 hours before the case came
to trial. He informed Rothaug that he would not have time to prepare a
defense. According to Kern, Rothaug stated that if he did not take over
the defense, the trial would have to be conducted without a defense
counsel. According to Rothaug, he told Kern that he would get another
defense counsel. In either event the trial was to go on at once.
The trial itself, according to Kern, lasted about half an hour;
according to the defendant, approximately an hour; according to Markl,
it was conducted with the speed of a court martial.
The evidence consisted of the alleged confessions which one of the
defendants repudiated before the court. Rothaug states that he
thereupon called the Gestapo official who had obtained these alleged
confessions and questioned him under oath. According to Rothaug the
Gestapo official stated that the interrogations were perfectly regular.
There was also a letter in evidence which it was said the defendants
had tried to destroy before their capture. The witness Kern stated on
cross-examination that this letter had little materiality.
The defendant attempts to justify the speed of this trial upon
the legal requirements in existence at this time. He states, in
contradiction to the other witnesses, that a clear case of sabotage
was established. This Tribunal is not inclined to accept the defendant
Rothaug’s version of the facts which were established. Under the
circumstances and in the brief period of the trial, the Tribunal does
not believe the defendant could have established those facts from
evidence.
According to the witness Kern, one of the defendants was 17 years of
age. This assertion as to age was not disputed. A German 18 years of
age or thereunder would have come under the German Juvenile Act and
would not have been subject to trial before a Special Court or to
capital punishment. Whatever the age of the defendants in this case,
they were tried under the procedure described in the ordinance against
Poles and Jews which was in effect at this time, by a judge who did not
believe the statements of Polish defendants, according to the testimony
in this case. These two young Polish women were sentenced to death and
executed 4 days after trial. In the view of this Tribunal, based upon
the evidence, these two young women did not have what amounted to a
trial at all but were executed because they were Polish nationals in
conformity with the Nazi plan of persecution and extermination.
The second case to be considered is the Lopata case. This was a case
in which a young Polish farmhand, approximately 25 years of age, is
alleged to have made indecent advances to his employer’s wife.
He first was tried in the district court at Neumarkt. That court
sentenced him to a term of 2 years in the penitentiary. A nullity plea
was filed in this case before the Reich Supreme Court, and the Reich
Supreme Court returned the case to the Special Court at Nuernberg for
a new trial and sentence. The Reich Supreme Court stated that the
judgment of the lower court was defective, since it did not discuss in
detail whether the ordinance against public enemies was applicable and
stated that if such ordinance were applicable--a thing which seemed
probable, a much more severe sentence was deemed necessary.
The case was therefore again tried in violation of the fundamental
principles of justice that no man should be tried twice for the same
offense.
In the second trial of the case, the defendant Rothaug obligingly found
that the ordinance against public enemies had been violated.
In its reasons, the court states the facts on which the verdict was
based as follows:
“The wife of farmer Schwenzl, together with the accused and a
Polish girl, chopped straw in the barn. The accused was standing
on the righthand side of the machine to carry out the work.
Suddenly, in the middle of the work, the accused, without saying
anything, touched with his hand the genitals of the wife of
farmer Schwenzl, through her skirt. When she said, after this
unexpected action of the defendant, ‘You hog, do you think I am
not disgusted about anything; you think you can do that because
my husband is sick,’ the accused laughed and in spite of this
dissuasion touched again the genitals of the farmer’s wife above
her skirt. The wife of farmer Schwenzl slapped him after that.
In spite of this, the accused continued with his impertinent
behavior; for a third time he touched the genitals of the
farmer’s wife above the skirt.
* * * * * * *
“The accused did not make a complete confession. He states that
he only once, for fun, touched the farmer’s wife’s genitals
above the skirt.
“The court is convinced, on account of the testimony given
by the witness Therese Schwenzl, who makes a trustworthy
impression, that the affair occurred exactly as described by the
witness. Therefore, its findings were arrived at according to
the testimony given by her.”
The Polish woman who was present at the time of this alleged assault
is not listed as a witness. Rothaug has stated in his testimony before
this Court that he never had a Polish witness.
As for the reasons for bringing the defendant under the public enemy
ordinance, the following facts are stated in the reasons for the
verdict: Lopata having had some minor difficulties with the farmer
Schwenzl refused to eat his noon meal and induced the Polish servant
maid to do likewise. Thereupon, farmer Schwenzl, his employer, called
him to account in the stable. The defendant put up resistance to the
farmer’s “admonitions” by arming himself with a dung fork. It is
further stated that the Pole, at the threshold of the farm hallway,
again turned against his employer and let him go only when attacked by
the sheep dog which the farmer kept.
As to the actual reasons for the sentence of this Polish farmhand to
death, the following paragraphs are more significant:
“Thus, the defendant gives the impression of a thoroughly
degenerate personality, which is marked by excitability
and a definite trend to mendacity, or to lying. The whole
inferiority of the defendant, I would say, lies in the sphere of
character and is obviously based on his being a part of Polish
subhumanity, or in his belonging to Polish subhumanity.
“The drafting of men into the armed forces effected a heavy
labor shortage in all spheres of life at home, last but not
least in agriculture. To compensate this, Polish laborers, among
others, had to be used to a large extent, mainly as farmhands.
“These men cannot be supervised by the authorities to such an
extent as would be necessary due to their insubordinate and
criminal disposition.
* * * * * * *
“The action of the defendant constitutes a considerable
disturbance of the peace of the persons immediately concerned
by his mean actions. The rural population has the right to
expect that the strongest measures will be taken against such
terrorization by foreign elements. But beyond disregarding
the honor of the wife of farmer Schwenzl, the attack of the
defendant is directed against the purity of the German blood.
Looking at it from this point of view, the defendant showed such
insubordination within the German living space that his action
has to be considered as especially significant. * * *
“Accordingly, as outlined in article III, paragraph 2, second
sentence of the ordinance against Poles and Jews, the crime
of the defendant, which in connection with his other behavior
shows a climax of unheard-of impudence, has to be considered
as especially serious so that the death sentence had to be
passed as the only just expiation, which is also necessary in
the interest of the Reich security to deter Poles of similar
mentality.”
The defendant was sentenced under the ordinance against Poles and Jews
in the Incorporated Eastern Territories. The verdict was signed by the
defendant Rothaug, and an application for clemency was disapproved by
him.
When on the witness stand, the defendant Rothaug was asked the
following question by the court:
“* * * if Lopata had been a racial German, all other facts being
the same as they were in the Lopata case, is it your judgment
that the nullity plea would have been invoked and that the
Supreme Court would have ordered the case sent back to you for
another trial? I should like your opinion on that.”
Rothaug replied as follows to this question:
“Mr. President, this question is very interesting, but I cannot
even imagine that possibility even theoretically, because the
very elements which are of the greatest importance could not be
the same in the case of a German.”
Lopata was sentenced to death and subsequently executed.
The third case to be considered is that of Leo Katzenberger. The record
in this case shows that Lehmann Israel Katzenberger, commonly called
Leo Katzenberger, was a merchant and head of the Jewish community
in Nuernberg; that he was “sentenced to death for an offense under
paragraph 2, legally identical with an offense under paragraph 4 of the
decree against public enemies in connection with the offense of racial
pollution.” The trial was held in the public session on 13 March 1942.
Katzenberger’s age at that time was over 68 years.
The offense of racial pollution with which he was charged comes under
article 2 of the Law for the Protection of German Blood and Honor. This
section reads as follows:
“Sexual intercourse (except in marriage) between Jews and German
nationals of German or German-related blood is forbidden.”
The applicable sections of the Decree Against Public Enemies reads as
follows:
“Section 2
“Crimes During Air Raids
“Whoever commits a crime or offense against the body, life, or
property, taking advantage of air raid protection measures, is
punishable by hard labor of up to 15 years, or for life, and in
particularly severe cases, punishable by death.
* * * * * * *
“Section 4
“Exploitation of the State of War a Reason
for More Severe Punishment
“Whoever commits a criminal act exploiting the extraordinary
conditions caused by war is punishable beyond the regular
punishment limits with hard labor of up to 15 years, or for
life, or is punishable by death if the sound common sense of the
people requires it on account of the crime being particularly
despicable.”
The evidence in this case, aside from the record, is based primarily
upon the testimony of Hans Groben, the investigating judge who first
investigated the case; Hermann Markl, the official who prosecuted the
case; Karl Ferber, who was one of the associate judges in the trial;
Heinz Hoffmann, who was the other associate judge in the trial; Armin
Baur, who was medical expert in the trial; Georg Engert, who dealt with
clemency proceedings; and Otto Ankenbrand, another investigating judge.
The salient facts established in connection with this case are in
substance as follows: Sometime in the first half of the year 1941 the
witness Groben issued a warrant of arrest against Katzenberger, who was
accused of having had intimate relations with the photographer Seiler.
According to the results of the police inquiry, actual intercourse had
not been proved, and Katzenberger denied the charge. Upon Groben’s
advice, Katzenberger agreed that he would not move against the
warrant of arrest at that time but would await the results of further
investigation. These further investigations were very lengthy, although
Groben pressed the public prosecutor for speed. The police, in spite
of their efforts, were unable to get further material evidence, and it
became apparent that the way to clarify the situation was to take the
sworn statement of Seiler, and this was done.
In her sworn statement she said that Katzenberger had known both her
and her family for many years before she had come to Nuernberg and
that his relationship to her was a friendly and fatherly one and
denied the charge of sexual intercourse. The evidence also showed that
Katzenberger had given Seiler financial assistance on various occasions
and that he was administrator of the property where Seiler lived, which
was owned by a firm of which he was a partner. Upon Seiler’s statement,
Groben informed Dr. Herz, counsel for Katzenberger, of the result and
suggested that it was the right time to move against the warrant of
arrest.
When this was done, Rothaug learned of it and ordered that the
Katzenberger case be transferred from the criminal divisional court
to the Special Court. The first indictment was withdrawn, and another
indictment was prepared for the Special Court.
The witness Markl states that Rothaug dominated the prosecution,
especially through his close friendship with the senior public
prosecutor, Dr. Schroeder, who was the superior of Markl.
The indictment before the Special Court was prepared according to the
orders of Rothaug, and Katzenberger was not charged only with race
defilement in this new indictment, but there was also an additional
charge under the decree against public enemies, which made the death
sentence permissible. The new indictment also joined the Seiler woman
on a charge of perjury. The effect of joining Seiler in the charge
against Katzenberger was to preclude her from being a witness for
the defendant, and such a combination was contrary to established
practice. Rothaug at this time told Markl that there was sufficient
proof of sexual intercourse between Seiler and Katzenberger to convince
him, and that he was prepared to condemn Katzenberger to death. Markl
informed the Ministry of Justice of Rothaug’s intended procedure
against Katzenberger and was told that if Rothaug so desired it, the
procedure would be approved.
Prior to the trial, the defendant Rothaug called on Dr. Armin Baur,
medical counsellor for the Nuernberg Court, as the medical expert for
the Katzenberger case. He stated to Baur that he wanted to pronounce a
death sentence and that it was, therefore, necessary for the defendant
to be examined. This examination, Rothaug stated, was a mere formality
since Katzenberger “would be beheaded anyhow.” To the doctor’s reproach
that Katzenberger was old, and it seemed questionable whether he could
be charged with race defilement, Rothaug stated:
“It is sufficient for me that the swine said that a German girl
had sat upon his lap.”
The trial itself, as testified to by many witnesses, was in the nature
of a political demonstration. High Party officials attended, including
Reich Inspector Oexle. Part of the group of Party officials appeared in
uniform.
During the proceedings, Rothaug tried with all his power to encourage
the witnesses to make incriminating statements against the defendants.
Both defendants were hardly heard by the court. Their statements were
passed over or disregarded. During the course of the trial, Rothaug
took the opportunity to give the audience a National Socialist lecture
on the subject of the Jewish question. The witnesses found great
difficulty in giving testimony because of the way in which the trial
was conducted, since Rothaug constantly anticipated the evaluation of
the facts and gave expression to his own opinions.
Because of the way the trial was conducted, it was apparent that the
sentence which would be imposed was the death sentence.
After the introduction of evidence was concluded, a recess was taken,
during which time the prosecutor Markl appeared in the consultation
room and Rothaug made it clear to him that he expected the prosecution
to ask for a death sentence against Katzenberger and a term in the
penitentiary for Seiler. Rothaug at this time also gave him suggestions
as to what he should include in his arguments.
The reasons for the verdict were drawn up by Ferber. They were based
upon the notes of Rothaug as to what should be included. Considerable
space is given to Katzenberger’s ancestry and the fact that he was
of the Mosaic faith, although that fact was admitted by Katzenberger.
Such space is also given to the relationship between Katzenberger and
Seiler. That there was no proof of actual sexual intercourse is clear
from the opinion. The proof seems to have gone little farther than the
fact that the defendant Seiler had at times sat upon Katzenberger’s
lap and that he had kissed her, which facts were also admitted. Many
assumptions were made in the reasons stated which obviously are not
borne out by the evidence. The court even goes back to the time prior
to the passage of the law for the protection of German Blood and Honor,
during which Katzenberger had known Seiler. It draws the conclusion
apparently without evidence, that their relationship for a period of
approximately 10 years, had always been of a sexual nature. The opinion
undertakes to bring the case under the decision of the Reich Supreme
Court that actual sexual intercourse need not be proved, provided the
acts are sexual in nature.
Having wandered far afield from the proof to arrive at this conclusion
as to the matter of racial pollution, the court then proceeds to go
far afield in order to bring the case under the decree against public
enemies. Here the essential facts proved were that the defendant
Seiler’s husband was at the front and that Katzenberger, on one or
possibly two occasions, had visited her after dark. On both points the
following paragraphs of the opinion are enlightening (_NG-154, Pros.
Ex. 152_):
“Looked at from this point of view, Katzenberger’s conduct is
particularly contemptible. Together with his offense of racial
pollution he is also guilty of an offense under paragraph 4 of
the ordinance against people’s parasites.[671] It should be
noted here that the national community is in need of increased
legal protection from all crimes attempting to destroy or
undermine its inner cohesion.
“On several occasions since the outbreak of war the defendant
Katzenberger crept into Seiler’s flat after dark. In those cases
the defendant exploited the measures taken for the protection
in air raids. His chances were further improved by the absence
of the bright street lighting which exists in the street along
Spittlertorgraben in peacetime. He exploited this fact fully
aware of its significance because thus he instinctively escaped
during his excursions being observed by people in the street.
“The visits paid by Katzenberger to Seiler under the protection
of the black-out served at least the purpose of keeping
relations going. It does not matter whether during these visits
extra-marital sexual relations took place or whether they only
conversed as when the husband was present, as Katzenberger
claims. The request to interrogate the husband was therefore
overruled. The court holds the view the defendant’s actions,
done with a purpose within a definite plan, amount to a crime
against the body according to paragraph 2 of the ordinance
against people’s parasites. The law of 15 September 1935 has
been passed to protect German blood and German honor. The Jew’s
racial pollution amounts to a grave attack on the purity of
German blood, the object of the attack being the body of a
German woman. The general need for protection therefore makes
appear as unimportant the behavior of the other partner in
racial pollution who anyway is not liable to prosecution. The
fact that racial pollution occurred up to at least 1939–1940
becomes clear from statements made by the witness Zeuschel to
whom the defendant repeatedly and consistently admitted that up
to the end of 1939 and the beginning of 1940 she was used to
sitting on the Jew’s lap and exchanging caresses as described
above.
“Thus, the defendant committed an offense also under paragraph 2
of the ordinance against people’s parasites.
“The personal character of the male defendant also stamps him
as a people’s parasite. The racial pollution practiced by him
through many years grew, by exploiting wartime conditions,
into an attitude inimical to the nation, into an attack on the
security of the national community, during an emergency.
“This was why the defendant Katzenberger had to be sentenced
both on a charge of racial pollution and of an offense under
paragraphs 2 and 4 of the ordinance against people’s parasites,
the two charges being taken in conjunction according to
paragraph 73 of the criminal code.
* * * * * * *
“In passing sentence the court was guided by these
considerations: The political life of the German people under
national socialism is based on the community. One fundamental
factor of the life of the national community is race. If a Jew
commits racial pollution with a German woman, this amounts to
polluting the German race and, by polluting a German woman,
to a grave attack on the purity of German blood. The need for
protection is particularly strong.
“Katzenberger has been practicing pollution for years. He was
well acquainted with the point of view taken by patriotic German
men and women as regards racial questions, and he knew that by
this conduct he insulted the patriotic feelings of the German
people. Nor did he mend his ways after the National Socialist
revolution of 1933, after the passing of the law for the
protection of German blood, in 1935, after the action against
Jews in 1938, or the outbreak of war in 1939.
“The court therefore regards it as indicated, as the only
feasible answer to the frivolous conduct of the defendant, to
pass death sentence, as the heaviest punishment provided by
paragraph 4 of the decree against public enemies. His case
takes on the complexion of a particularly grave crime as he was
to be sentenced in connection with the offense of committing
racial pollution, under paragraph 2 of the Decree Against
Public Enemies, especially if one takes into consideration the
defendant’s character and the accumulative nature of commission.
This is why the defendant is liable to the death penalty which
the law provides for only such cases. Dr. Baur, the medical
expert, describes the defendants fully responsible.”
We have gone to some extent into the evidence of this case to show the
nature of the proceedings and the animus of the defendant Rothaug.
One undisputed fact, however, is sufficient to establish this case
as being an act in furtherance of the Nazi program to persecute and
exterminate Jews. That fact is that nobody but a Jew could have been
tried for racial pollution. To this offense was added the charge that
it was committed by Katzenberger through exploiting war conditions and
the black-out. This brought the offense under the ordinance against
public enemies and made the offense capital. Katzenberger was tried
and executed only because he was a Jew. As stated by Elkar in his
testimony, Rothaug achieved the final result by interpretations of
existing laws as he boasted to Elkar he was able to do.
This Tribunal is not concerned with the legal incontestability under
German law of these cases above discussed. The evidence establishes
beyond a reasonable doubt that Katzenberger was condemned and executed
because he was a Jew; and Durka, Struss, and Lopata met the same fate
because they were Poles. Their execution was in conformity with the
policy of the Nazi State of persecution, torture, and extermination
of these races. The defendant Rothaug was the knowing and willing
instrument in that program of persecution and extermination.
From the evidence it is clear that these trials lacked the essential
elements of legality. In these cases the defendant’s court, in spite
of the legal sophistries which he employed, was merely an instrument
in the program of the leaders of the Nazi State of persecution and
extermination. That the number the defendant could wipe out within
his competency was smaller than the number involved in the mass
persecutions and exterminations by the leaders whom he served, does
not mitigate his contribution to the program of those leaders. His acts
were more terrible in that those who might have hoped for a last refuge
in the institutions of justice found these institutions turned against
them and a part of the program of terror and oppression.
The individual cases in which Rothaug applied the cruel and
discriminatory law against Poles and Jews cannot be considered in
isolation. It is of the essence of the charges against him that he
participated in the national program of racial persecution. It is of
the essence of the proof that he identified himself with this national
program and gave himself utterly to its accomplishment. He participated
in the crime of genocide.
Again, in determining the degree of guilt the Tribunal has considered
the entire record of his activities, not alone under the head of racial
persecution but in other respects also. Despite protestations that
his judgments were based solely upon evidence introduced in court, we
are firmly convinced that in numberless cases Rothaug’s opinions were
formed and decisions made, and in many instances publicly or privately
announced before the trial had even commenced and certainly before
it was concluded. He was in constant contact with his confidential
assistant Elkar, a member of the criminal SD, who sat with him in
weekly conferences in the chambers of the court. He formed his
opinions from dubious records submitted to him before trial. By his
manner and methods he made his court an instrumentality of terror and
won the fear and hatred of the population. From the evidence of his
closest associates as well as his victims, we find that Oswald Rothaug
represented in Germany the personification of the secret Nazi intrigue
and cruelty. He was and is a sadistic and evil man. Under any civilized
judicial system he could have been impeached and removed from office
or convicted of malfeasance in office on account of the scheming
malevolence with which he administered injustice.
Upon the evidence in this case it is the judgment of this Tribunal that
the defendant Rothaug is guilty under count three of the indictment. In
his case we find no mitigating circumstances; no extenuation.
_THE DEFENDANT BARNICKEL_
The evidence has not convinced the Tribunal beyond a reasonable doubt
of the guilt of the defendant Barnickel. He is therefore acquitted on
all counts.
_THE DEFENDANT PETERSEN_
Upon the evidence submitted, it is the judgment of this Tribunal that
the defendant Hans Petersen is not guilty under any of the counts
charged against him in the indictment.
_THE DEFENDANT NEBELUNG_
Upon the evidence submitted, it is the judgment of this Tribunal that
the defendant Nebelung is not guilty under any of the counts charged
against him in the indictment.
_THE DEFENDANT CUHORST_
The defendant Cuhorst is charged under counts two, three, and four of
the indictment.
There is no evidence in this case to substantiate the charge under
count two of the indictment.
As to count four, the proof establishes that Cuhorst was a
Gaustellenleiter and so a member of the Gau staff and a “sponsoring”
member of the SS. His function as Gaustellenleiter was that of a public
propaganda speaker.
In its judgment the International Military Tribunal, in defining the
members of the Party Leadership Corps who came under its decision as
being members of a criminal organization, states the following:
“The decision of the Tribunal on these staff organizations
includes only the Amtsleiter who were heads of offices on the
staffs of the Reichsleitung, Gauleitung, and Kreisleitung.
With respect to other staff officers and Party organizations
attached to the Leadership Corps other than the Amtsleiter
referred to above, the Tribunal will follow the suggestion of
the prosecution in excluding them from the declaration.”
There is no evidence in this case which shows that the office of
Gaustellenleiter was the head of any office on the staff of the
Gauleitung.
With regard to the SS the judgment of the International Military
Tribunal is as follows:
“The Tribunal declares to be criminal within the meaning of
the Charter the group composed of those persons who had been
officially accepted as members of the SS as enumerated in the
preceding paragraph who became or remained members of the
organization with knowledge that it was being used for the
commission of acts declared criminal by Article 6 of the Charter
* * *.”[672]
Referring back to the membership enumerated, the judgment declares:
“In dealing with the SS, the Tribunal includes all persons who
had been officially accepted as members of the SS, including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf-Verbaende, and the members of any of the
different police forces who were members of the SS.”[673]
It is not believed by this Tribunal that a sponsoring membership is
included in this definition.
The Tribunal therefore finds the defendant Cuhorst not guilty under
counts two and four of the indictment.
As to count three the problem is considerably more complicated.
There are many affidavits and much testimony in the record as to the
defendant’s character as a fanatical Nazi and a ruthless judge. There
is also much evidence as to the arbitrary, unfair, and unjudicial
manner in which he conducted his trials. Some of the evidence against
him was weakened on cross-examination, but the general picture given of
him as such a judge is one which the Tribunal accepts.
The cases to be considered as connecting him with crimes established
in this case under count three involve the question as to whether the
evidence establishes his connection with the persecution of Poles. In
this connection we have given particular consideration to the Skowron
and Pietra cases.
Unfortunately the records of the Special Court at Stuttgart were
destroyed at the time that the Palace of Justice in Stuttgart was
burned. There are therefore no records available as to the cases tried
by Cuhorst.
From the evidence available, this Tribunal does not consider that it
can say beyond a reasonable doubt that the defendant was guilty of
inflicting the punishments which he imposed on racial grounds or that
it can say beyond a reasonable doubt that he used the discriminatory
provisions of the decree against Poles and Jews to the prejudice of the
Poles whom he tried.
While the defendant Cuhorst followed a misguided fanaticism, certain
things can be said in his favor. He was severely criticized for his
leniency by the defendant Klemm in a number of cases which he tried.
He was tried by a Party court for statements considered to reflect
upon the Party, which he made in a trial involving Party officials.
Subsequently he was relieved as a judge in Stuttgart because he
apparently did not conform to what the State and Party demanded of a
judge.
This Tribunal does not consider itself commissioned to try the
conscience of a man or to condemn a man merely for a course of conduct
foreign to its own conception of the law, it is limited to the
evidence before it as to the commission of certain alleged offenses.
Upon the evidence before it, it is the judgment of this Tribunal that
the defendant Cuhorst has not been proved guilty beyond a reasonable
doubt of the crimes alleged and that he be, therefore, acquitted on the
charges against him.
_THE DEFENDANT OESCHEY_
The defendant Oeschey joined the NSDAP on 1 December 1931. He was war
representative for the Gau Main Office for legal aid and legal advice.
After filling other offices he was appointed on 1 January 1939 to
the office of senior judge of the district court at Nuernberg, which
office he held until 1 April 1941. He was then appointed district court
director at the same court. He was a presiding judge of the Special
Court in Nuernberg.
By decree of 30 July 1940 of the Reich legal office of the NSDAP, he
was provisionally commissioned with the direction of the legal office
of the NSDAP in the Franconia Gau, and the leadership of the Franconia
Gau in the NSRB, the National Socialist Lawyers’ League. He carried out
his duties in the Leadership Corps of the Party at the same time that
he was serving as a judge of the Special Court. His personnel file in
the Reich Ministry of Justice shows that he was highly recommended for
his Party reliability by at least five different public officials.
He was drafted into the army in February 1945, and remained in the
army until the end of the war; however, he was released for the period
from 4 April until 14 April 1945, during which time he functioned
as chairman of the civilian court martial at Nuernberg. The record
discloses that he and the defendant Rothaug were the guiding, if not
controlling, spirits of the Special Court at Nuernberg, which was known
as the most brutal of the special courts in Germany.
Among many cases which gave evidence of his arbitrary character we will
give detailed attention to two:
In March 1943, Sofie Kaminska, a widowed Polish farm laborer, and
Wasyl Wdowen, a Ukrainian, were indicted before the Special Court at
Nuernberg for alleged crimes as follows:
Kaminska for a violation of the law against Poles and Jews in
connection with the crime of assault and battery and threat and
resistance to an officer; Wdowen for the alleged crime of being
accessory to a crime according to the law against Poles and Jews,
and for attempting to free a prisoner. The case was tried before the
Special Court, the defendant Oeschey presiding.
The facts on which the sentence was based may, with complete fairness
to the defendant Oeschey, be very briefly summarized. Shortly after
the invasion of Poland, Kaminska “came to Germany, being committed to
work there.” Kaminska and Wdowen were lovers. They were both working
for a farmer, Gundel. They demanded pay from Gundel, which was refused,
and they became more insistent. “The defendant Wdowen actually gave
the farmer a push.” “In his distress Gundel called for help of the
Pfc. Anton Wanner who was in uniform and happened to be spending his
leave there.” A quarrel followed. Kaminska slapped the soldier’s face,
and the soldier slapped her face. During the dispute the soldier’s
combat infantryman’s badge fell to the ground. There were various
demonstrations; the soldier drew his bayonet, and Kaminska ran out of
the room and took a hoe, but did not get a chance to attack the soldier
because he closed the door. Shortly thereafter, the soldier was riding
on his bicycle and the Pole, Kaminska, threw a stone at him without,
however, hitting him. The next day a police official came out to the
farm and arrested Kaminska who followed him “unwillingly.” Wdowen,
contrary to the instructions of the police officer, followed them.
The policeman slapped Wdowen’s face twice to force him to turn back.
Nevertheless, Wdowen followed to the door of the cell and attempted
to assist the Polish woman, Kaminska, in resisting imprisonment. The
very most that can possibly be said of the evidence, as stated by the
defendant Oeschey himself, is that there was a good squabble with
mutual recriminations and threats. It is to be understood that many of
the statements heretofore made, as quoted from the opinion, were denied
by the defendants in that case but, as before stated, we do not retry
the case upon the facts. The court argues at great length concerning
the claim of the prosecution that the stone weighed a half a pound and
should be considered equal to a cutting or thrusting weapon. The court
said:
“The defendant had the insolence to attack a German soldier; she
took up an offensive position which would have led to a great
blood bath if the soldier had not evaded the stone which was
hurled at him.”
The court said of Kaminska (_NG-457, Pros. Ex. 201_): “She thereby
characterizes herself as a Polish violent criminal,” and then stated:
“As the defendant on 1 September 1939 was a resident in the
territory of the former Polish state, she had to be found
guilty, in application of paragraphs II, III, and XIV of the
Penal Law against Poles, of a crime of assault and battery in
coincidence with a crime of threat, a crime under paragraph 1,
section 1, of the law against violent criminals, and of a crime
of offering resistance to the authority of a state.”
The fact that the discriminatory law against Poles was invoked in this
case is established. The opinion signed by Oeschey states:
“Under paragraph III, section 2, of the Penal Law against Poles,
the death sentence must be passed if the law threatens with it.”
Concerning Wdowen, who was a Ukrainian and therefore could not be
sentenced under the law against Poles, the court commented on the
fact that he knew that the Germany economy, on account of wartime
conditions, was dependent on foreign labor, “in particular, labor from
the eastern territories.” The court drew the conclusion that Wdowen,
who had used at most only a little force in attempting to protect
Kaminska, was guilty of having taken advantage of extraordinary wartime
conditions and of violating the law against violent criminals. Both
defendants were sentenced to death by the defendant Oeschey. The
associated judges in the Kaminska and Wdowen case were Doctors Gros and
Pfaff. They are guilty of having signed the judgment. Both submitted
affidavits and both were cross-examined before this Tribunal. Dr. Gros
stated that Oeschey demanded the severest countermeasures in similar
cases. “We associate judges were powerless toward such an attitude. It
must be mentioned that none of the defendants had criminal records, and
that they were eliminated in a most objectionable way by Oeschey for
racial and political reasons.”
The other associate judge, Dr. Theodor Pfaff, spoke of the Kaminska
case as “the most terrible of my entire career. * * * The sentence of
death and the consequent execution of these Poles offended my sense of
ethics and has continually preyed upon my conscience. I would like to
state here that Oeschey forced his will upon us.”
The two associate judges are to be condemned for their spineless
attitude in submitting to the domination of the defendant Oeschey, but
we cannot fail to give weight to their statements, which in effect
amount to confessions of their own wrongdoing.
In this case Oeschey, with evil intent, participated in the
government-organized system for the racial persecution of Poles. This
is also a case of such a perversion of the judicial process as to shock
the conscience of mankind.
The progressive degeneration in the administration of justice came to
a climax in 1944 and 1945. A decree by Thierack on 13 December 1944
abrogated the rules concerning the obligatory representation of accused
persons by defense counsel. It was left for the judge to decide whether
defense counsel was required. On 15 February 1945 as a final measure
of desperation and in the face of imminent defeat, the law was passed
for the establishment of civilian courts martial. The statute provided
that sentence should be either death, acquittal, or commitment to the
regular court. Pursuant to this law Gauleiter Holz set up a drumhead
court martial in Nuernberg. It consisted of the defendant Oeschey
as presiding judge, with Gau Inspector Haberkern and a major in the
Wehrmacht as associate judges. On 2 April 1945 Karl Schroeder was
appointed prosecutor. The judges and prosecutor then went to the office
of the Gauleiter, where he delivered a speech in which he stated:
“That the main point was to stop the American advance; one could
count upon introduction of new weapons, and that he expected
that the court martial would give the necessary support to the
army at the front by applying the severest measures.”
The officials were sworn in on 3 April. The affidavit of Schroeder, who
later appeared for cross-examination, discloses that Holz intended that
the first case be tried on the third day of April. Schroeder stated
this would be impossible because he would need time to examine the
case. The first case to be tried was that of Count Montgelas. Schroeder
states that the case was the most difficult in his practice, but that
it had to be tried “because the Gauleitung pressed for a quick decision
of this matter”. The defendant Oeschey testified concerning the court
martial procedure as follows:
“Proceedings were to follow the provisions laid down in the Code
of Criminal Procedure which had been very strongly simplified.
Nevertheless, the court martial had observed in its proceedings
the most important principles of protecting the interest of
the defendant. The defendant’s right to be heard, oral trial,
admission of defense counsel, thorough presentation of evidence,
a freedom of the judge to go into the evidence, a vote among the
judges, and so forth.”
The procedure followed by Oeschey as presiding judge in the case
Montgelas did not conform to the foregoing statement. Count Montgelas
had for some time been represented by defense counsel Eichinger, who
had an office in the courthouse adjacent to that of the prosecutor, and
who had had dealings with the prosecutor concerning the Montgelas case.
The defendant Oeschey testified that he had directed that Eichinger
be notified concerning the trial, but in any event Eichinger was not
notified and Oeschey informed the prosecutor that he would conduct the
trial without defense counsel because the “legal prerequisites for
trial without defense counsel did exist.” He apparently had reference
to Thierack’s decree of 13 December 1944, _supra_.[674] Eichinger,
as attorney for Count Montgelas, received his first information
concerning the trial after Montgelas had been convicted and shot.
The statute creating civilian courts martial specifically provided that
they should consist of “a judge of a criminal court, as president * *
*.” At the time of his appointment, Oeschey was a soldier serving in
the Wehrmacht and was not a judge of a criminal court. He testified
that the statute meant only that it was necessary “that a man be
appointed who has the qualifications to exercise the function of a
judge.”
The Nuernberg civilian court martial functioned for the first time on
5 April, held ten sessions, and disposed of twelve defendants, ten of
whom were charged with political offenses. On 16 April the American
Army was approaching Nuernberg, and on that date at noon the civilian
court martial ceased to function.
An exhibit was offered in evidence containing the results of an
official investigation of the defendant Oeschey and prosecutor
Schroeder for perversion of justice, conducted in August 1946, before
German judicial authorities. An objection to the receipt of the exhibit
was first made by counsel for Oeschey but was later withdrawn. The
exhibit was received and is before us for consideration. From this
exhibit we learn that Dr. Wilhelm Eser was the investigating judge
in the Montgelas case. He states that at the hearing of Montgelas
a Gestapo official was present, and that if Montgelas had not been
arrested the official would have taken him back to the Gestapo “as it
was demanded in the record of the investigation * * *.” Eichinger,
who appeared as a witness before this Tribunal, had been employed in
February by Countess Montgelas to defend her husband. He stated that he
had conferred with Prosecutor Dr. Mueller and had been informed that
the prosecutor recognized--
“* * * the competence of the People’s Court and therefore he had
submitted the record of the case to the chief public prosecutor
at the People’s Court for a decision. I asked him to inform
me immediately after the record was returned, respectively,
after receiving the decision of the chief public prosecutor. He
promised me this, and I was completely reassured.”
At this time Montgelas was in the sick ward of the prison for solitary
confinement. On 10 April Eichinger went to the prison office to
examine the files in the Montgelas case, whereupon the director of
Nuernberg prison informed me confidentially that Count Montgelas had
been summoned before the court martial on 5 April at 2 p.m., sentenced
to death, and shot the next day. The crime for which Count Montgelas
had been shot consisted of remarks made by him in a private room in
the Grand Hotel to a lady, Mrs. Pfleger, of Bamberg. The Count had
made insulting remarks concerning Hitler, among others to the effect
that his true name was Schickelgruber. He also expressed approval of
the attempt upon Hitler’s life of 20 July 1944. We are convinced from
the testimony of Eichinger before this Tribunal that if any serious
effort had been made he could have been notified prior to the trial of
his client. Eichinger expressed the opinion with which this Tribunal
concurs, that a summons issued at 1400 hours to appear at 1500 hours
before a court martial is an offense against justice. The only witness
who appeared against Count Montgelas was an SS Fuehrer, who had been
shadowing him for many days in an attempt to secure evidence against
him. By concealing himself in an adjoining room and by the use of a
mechanical device, he was able to overhear the conversation between
Montgelas and the lady and to testify concerning it. Eichinger states
that the statements of the SS Fuehrer who was the eavesdropper at
the hotel were “in important points contradictory” to the statements
Montgelas had made to his attorney and that the latter had already
proposed to summon the lady with whom Montgelas had conversed as a
rebuttal witness in behalf of the Count.
The wife of the martyr Montgelas stated in the official investigation
that Chief Prosecutor Schroeder told her that “there had not been time
to comply with my husband’s urgent request to get a defense counsel.”
Schroeder also told the Countess that she was not to be given any
information on the disposal of the body of her husband because he had
died a dishonorable death. Thus, on the last days of the war, when the
American Army was almost at the gates of Nuernberg, and within a month
of the total collapse of German opposition, a sick man, after solitary
confinement, is indicted on 3 April, tried on 5 April, and shot on 6
April without the knowledge of his counsel in secret proceedings, and
without the benefit of witnesses who would have testified for him. Such
a mock trial is not a judicial proceeding but a murder.
It is provided in C. C. Law 10 that persecutions on political as well
as racial grounds are recognized as crimes. While the mere fact alone
that Montgelas was prosecuted for remarks hostile to the Nazi regime
may not constitute a violation of C. C. Law 10, the circumstances under
which the defendant was brought to trial and the manner in which he was
tried convince us that Montgelas was not convicted for undermining the
already collapsed defensive strength of the defeated nation, but on the
contrary, that the law was deliberately invoked by Gauleiter Holz and
enforced by Oeschey as a last vengeful act of political persecution. If
the provisions of C. C. Law 10 do not cover this case, we do not know
what kind of political persecution it would cover.
We have already indicated that we will not convict any defendant merely
because of the fact, without more, that he participated in the passing
or enforcement of laws for the punishment of habitual criminals,
looters, hoarders, or those guilty of undermining the defensive
strength of the nation, but we also stated that these laws were in many
instances applied in an arbitrary and brutal manner shocking to the
conscience of mankind and punishable here. This was the situation in a
number of cases tried by Rothaug and Oeschey, but concerning which we
have no transcript of testimony and we must therefore of necessity rely
upon statements of associates and close observers. In this connection
we shall have reference to affidavits and to testimony of associates of
the defendant Oeschey. We shall refer to statements of affiants only in
those cases in which the affiant was also brought to court and verbally
cross-examined concerning his statements.
Dr. Hermann Mueller was a prosecutor at the Special Court in Nuernberg.
He said:
“He (Oeschey) frequently insulted the defendants and presented
the crimes to them as if these crimes were already a proven
fact. His behavior was often so extreme that one might well
believe he was a psychopathic case. The abusive insults that
he inflicted upon the defendants were, to the highest degree,
unworthy of a court trial. He wielded such influence over the
form of the administration of justice through his close Party
affiliations that the other officials of equal rank at the
Nuernberg administration of criminal justice were almost always
forced to yield.”
Mueller mentions several cases in which Oeschey announced before trial
that the defendant would be executed. In a case against Schnaus he
states that Oeschey--
“* * * told me that, as a result of a discussion with government
officials, he was certain to obtain the death sentence. At that
time I was still unaware of the changed situation at the Special
Court occasioned by the war, and turned to my immediate superior
for information. He then informed me of the very close relations
existing between judges and the prosecutors.”
Concerning the case Montgelas, Mueller stated:
“Concerning the case of Montgelas it must be pointed out that
this was a case of political extermination, which was handled in
a most hideous fashion.”
Again, he said:
“Oeschey was the most brutal judge that I have ever known in
my life and a most willing instrument of the Nazi terroristic
justice.”
Dr. Armin Baur was the medical officer at the Special Court. He said:
“One always had the impression that the verdict was already
previously decided upon and that Oeschey and Rothaug were just
playing cat and mouse with the defendants for hours. No occasion
was missed to insult the defendants in the filthiest way.”
This medical expert dealt with cases which were tried both by Rothaug
and by Oeschey. In the Katzenberger case the defendant Rothaug told the
doctor that he wanted the defendant examined but that the examination
was a matter of pure formality because the Jew “would be beheaded
anyhow,” and he added, “It is sufficient for me that the swine said
that a German girl sat on his lap.” Dr. Baur states that “foreigners
were generally dealt with by Rothaug and Oeschey as inferior beings
whose task it was only to serve the German master race.”
Hans Kern, defense counsel, stated “that foreigners were told at the
beginning and throughout the trial that they were to be annihilated.”
Again he said:
“Rothaug and Oeschey declined, as a matter of principle, to
believe Polish citizens who were under accusation. They were
branded as liars. It was assumed that their innate tendency made
liars of them.”
He described Oeschey as a “notorious Pole baiter.”
Dr. Gustav Kunz, leading court doctor at Nuernberg, was an excellent
and reliable witness. He stated:
“Insult, humiliation, and mental torture of the defendants
were routine and the two judges, especially Oeschey, did not
even renounce them in cases in which--according to the legal
situation--the verdict had to be and actually was acquittal or
an insignificant sentence.”
Kurt Hoffmann, prosecutor at Nuernberg, states that Oeschey was severe
as to the German defendants and was--
“* * * even more severe with regard to sentences against
foreigners and much more furious in his conduct of their trials,
especially in the case of Poles.”
Adolf Paulus, former public prosecutor, speaks of the “brutality of
which only Oeschey was capable.”
Friedrich Doebig, who was president of the district court of appeals at
Nuernberg, later senate president of the Reich Supreme Court, stated
that “Oeschey like Rothaug was a fanatical Nazi, who consistently
interpreted and enforced the law in accord with Nazi ideologies.”
Dr. Herbert Lipps served with defendant Oeschey on the Special Court,
Nuernberg. He states that Oeschey was autocratic and would not tolerate
contradiction.
“Defendants were insulted by Oeschey in the most abusive manner
and death candidates were told by Oeschey right at the beginning
of the session that they had forfeited their lives.
“Toward foreigners, particularly Poles, Oeschey was especially
rigorous and here upheld the National Socialist theory of
liquidating where nationals of the occupied territories were
concerned. I remember a case in which a Polish farmhand was
ill-treated by his employer and defended himself. Oeschey told
the defendant that a Pole was not allowed to oppose a German.”
Dr. Franz Gros was an associate judge at Nuernberg. He states that
Oeschey followed the harsh procedural methods of Rothaug and was a
“fanatic National Socialist who pursued his dishonorable motives with
conviction and who willingly lent his hand to blood-thirsty National
Socialist jurisdiction.”
Dr. Pfaff was an associate judge at Nuernberg and corroborates the
statements of Dr. Gros.
Dr. Joseph Mayer was a Referent in the prosecutor’s office at
Nuernberg. Concerning Oeschey, he said:
“Oeschey * * * was obviously of Rothaug’s school. Outwardly he
gave the impression of being morose and unrelenting. I cannot
remember ever having had a personal conversation with him. As
a rule he began the proceedings with a preconceived opinion
to which he adhered. Anyone who tried to oppose this opinion
was overridden by him in the most brutal way. He insulted the
defendants all the time in a most offensive manner, informing
them repeatedly all the way through, what he intended to do with
them. He had an extensive vocabulary of invectives for that
purpose, the use of which he developed to a fine art. * * * It
was literally tormenting if one had to listen to this tirade
often for hours at a time. When his face became distorted into a
repulsive mask by his continual scolding and abusive language,
Faust’s words to Mephistopheles would often quite involuntarily
come to my mind: ‘Thou freak of filth and fire.’”
Joseph Eichinger, defense attorney at Nuernberg, stated:
“His prejudice was so strong that he did not consider,
seriously, the statements of the defense and dismissed them
rudely or ironically. Even during the trial he repeatedly
addressed the defendant thus: ‘People such as you deserve to
be exterminated,’ ‘You will be convicted;’ or he called the
defendant insulting and humiliating names such as ‘criminal,’ or
‘scoundrel,’ ‘enemy of the people.’”
Again, he said:
“As leader of the Gau legal office (Gaurechtsamt) and, after the
latter’s disbanding, as member in the Gau staff (Gaustab), he
enjoyed a special position of power which enabled him to hold
the defense strongly in check; it was well known that a sign
from the Gau authorities, instigated by Oeschey, was sufficient
to have a lawyer turned over to the Gestapo.
“I had the impression that he supported, knowingly and
willingly, the policy of Hitler to ‘decimate’ (Dezimierung)
aliens, especially Poles, by increasing the number of death
sentences against them * * *.”
On cross-examination Eichinger admitted that he did not know of any
lawyer who had been turned over to the Gestapo by Oeschey. It is
clear that in his statements Eichinger was relying only upon general
information as the basis of his opinion. We think, however, that his
opinion merits consideration.
Dr. Karl Mayer, defense counsel, said that Rothaug was judge of the
worst Special Court in Germany and used to tell defendants even
during the trial that they would be exterminated. He adds that after
Rothaug was transferred to Berlin, Oeschey even surpassed him in the
spitefulness of his manner. Space does not permit the discussion
of the other cases which illustrate Oeschey’s ruthless exercise of
arbitrary power. Mention should, however, be made of the trial of a
group of foreign boys who had some fights with boys in the Nuernberg
Hitler Youth Home. Dr. Mueller characterizes the action of the boys as
harmless pranks. At worst they were indulging in street fights with the
Hitler Youth. Oeschey held that they constituted a resistance movement
and several of the boys were sentenced to death.
The defendant Oeschey is charged under count four of the indictment
with being a member of the Party Leadership Corps at Gau level within
the definition of the membership declared criminal according to the
judgment of the first International Military Tribunal in the case
against Goering, et al.
We have previously quoted the findings of the first International
Military Tribunal which define the organizations and groups within
the Leadership Corps which are declared to be criminal. Oeschey was
provisionally commissioned with the direction of the legal office of
the NSDAP in the Franconia Gau and served in that official capacity for
a long time. In his testimony he states that from 1940 to 1942 he was
solely in charge of the Gau legal office as section chief. The evidence
clearly establishes the defendant’s voluntary membership as the chief
of a Gau staff office subsequent to 1 September 1939. The judgment of
the first International Military Tribunal lists among the criminal
activities of the Party Leadership Corps the following:
“The Leadership Corps played its part in the persecution
of the Jews. It was involved in the economic and political
discrimination against the Jews which was put into effect
shortly after the Nazis came into power. The Gestapo and SD were
instructed to coordinate with the Gauleiter and Kreisleiter the
measures taken in the pogroms of 9 and 10 November 1938. The
Leadership Corps was also used to prevent German public opinion
from reacting against the measures taken against the Jews in the
East. On 9 October 1942, a confidential information bulletin
was sent to all Gauleiter and Kreisleiter entitled ‘Preparatory
measures for the final solution of the Jewish question in
Europe--rumors concerning the conditions of the Jews in the
East.’ This bulletin stated that rumors were being started by
returning soldiers concerning the conditions of Jews in the East
which some Germans might not understand, and outlined in detail
the official explanation to be given. This bulletin contained no
explicit statement that the Jews were being exterminated, but
it did indicate they were going to labor camps, and spoke of
their complete segregation and elimination and the necessity of
ruthless severity. * * *
“The Leadership Corps played an important part in the
administration of the slave labor program. A Sauckel decree
dated 6 April 1942 appointed the Gauleiter as plenipotentiary
for labor mobilization for their Gaue with authority to
coordinate all agencies dealing with labor questions in their
Gaue, with specific authority over the employment of foreign
workers, including their conditions of work, feeding, and
housing. Under this authority the Gauleiter assumed control over
the allocation of labor in their Gaue, including the forced
laborers from foreign countries. In carrying out this task the
Gauleiter used many Party offices within their Gaue, including
subordinate political leaders. For example, Sauckel’s decree of
8 September 1942, relating to the allocation for household labor
of 400,000 women laborers brought in from the East, established
a procedure under which applications filed for such workers
should be passed on by the Kreisleiter, whose judgment was final.
“Under Sauckel’s directive the Leadership Corps was directly
concerned with the treatment given foreign workers, and the
Gauleiter were specifically instructed to prevent ‘politically
inept factory heads’ from giving ‘too much consideration to the
care of eastern workers’. * * *
“The Leadership Corps was directly concerned with the treatment
of prisoners of war. On 5 November 1941 Bormann transmitted a
directive down to the level of Kreisleiter instructing them to
insure compliance by the army with the recent directives of the
department of the interior ordering that dead Russian prisoners
of war should be buried wrapped in tar paper in a remote place
without any ceremony or any decorations of their graves. On 25
November 1943 Bormann sent a circular instructing the Gauleiter
to report any lenient treatment of prisoners of war. On 13
September 1944 Bormann sent a directive down to the level of
Kreisleiter ordering that liaison be established between the
Kreisleiter and the guards of the prisoners of war in order
‘better to assimilate the commitment of the prisoners of war to
the political and economic demands’. * * *
“The machinery of the Leadership Corps was also utilized in
attempts made to deprive Allied airmen of the protection to
which they were entitled under the Geneva Convention. On 13
March 1940 a directive of Hess, transmitted instructions through
the Leadership Corps down to the Blockleiter for the guidance of
the civilian population in case of the landing of enemy planes
or parachutists, which stated that enemy parachutists were to be
immediately arrested or ‘made harmless.’”[675]
As to his knowledge, the defendant Oeschey joined the NSDAP on 1
December 1931. He was head of the Lawyers’ League for the Gau Franconia
and a judicial officer of considerable importance within the Gau. These
offices would provide additional sources of information as to the
crimes outlined. Furthermore, these crimes were of such wide scope and
so intimately connected with the activities of the Gauleitung that it
would be impossible for a man of the defendant’s intelligence not to
have known of the commission of these crimes, at least in part if not
entirely.
We find the defendant Oeschey guilty under counts three and four of
the indictment. In view of the sadistic attitude and conduct of the
defendant, we know of no just reason for any mitigation of punishment.
_THE DEFENDANT ALTSTOETTER_
Joseph Altstoetter was born 4 January 1892. He was educated for the
bar and passed the State examination in jurisprudence in Munich. He
subsequently served in the Bavarian and in the Reich Ministries of
Justice.
In 1932 he was promoted and sent to the Reich Supreme Court in Leipzig.
In 1933 he was a member of the appeals criminal senate. In 1936 he
was a member of the Reich Labor Court. From 1939 to 1943 he served
with the Wehrmacht. In 1943 he was assigned to the Reich Ministry of
Justice where he was made chief of the civil law and procedure division
in the Ministry of Justice with the title of Ministerialdirektor and
served in that capacity until the surrender. He had been a member of
the Stahlhelm prior to the Nazi rise to power. When the Stahlhelm was
absorbed into the Nazi organization, he automatically became a member
of the SA. Prior to May 1937 he resigned from the SA to become a member
of the general SS. His membership in the SS, from his personnel files,
dates from 15 May 1937. He applied for membership in the NSDAP in 1938
and his membership was dated back to 1 May 1937. He was awarded the
Golden Party Badge for service to the Party.
Upon the evidence in this case it is the judgment of this Tribunal that
the defendant Altstoetter is not guilty under counts two and three of
the indictment.
The question which remains to be determined as to the defendant
Altstoetter is whether, knowing of its criminal activities as defined
by the London Charter, he joined or retained membership in the SS, an
organization defined as criminal by the International Military Tribunal
in the case of Goering, et al.
The evidence in this case as to his connection with the SS is found
primarily in his personnel record which covers a great many pages, in
his correspondence with SS leaders, and his own testimony. From this
evidence it appears that the defendant, upon the request of Himmler,
joined the SS in May 1937. He stated that Himmler told him he would
receive a rank commensurate with his civil status. The record does
not indicate what rank in the SS was commensurate with his civil
status as a member of the Reich Supreme Court, but on 20 April 1938
he was promoted to Untersturmfuehrer, which corresponds to a second
lieutenant in the army. He was subsequently promoted on 20 April 1939
to Obersturmfuehrer; on 20 April 1940 to Hauptsturmfuehrer. On 12 March
1943, according to a letter to the SS Main Personnel Office, signed
by Himmler, he was promoted to Sturmbannfuehrer, effective 25 January
1943 and, by the same letter, to Obersturmbannfuehrer as of 20 April
1943, and it was directed that he be issued a skull and crossbones
ring. In June 1943 he wrote to the Chief of the SS Main Office, SS
Gruppenfuehrer Berger, thanking him for this ring bestowed by the Reich
Leader SS. In this letter he wrote:
“Both this promotion and the honoring of this decoration with
the skull and crossbone ring I will take not only as a token of
the Reich Leader’s most distinct proof of trust in me, but also
as an incentive for further active proof of my loyalty and for
strictest adherence to my duties in my career as an SS man.”
On 11 February 1944 he wrote SS Gruppenfuehrer and Lieutenant General
of the Waffen SS, Professor Dr. Karl Gebhardt, a letter containing the
following paragraph:
“One more personal remark--You kindly promoted me SS
Oberfuehrer. It is not that far yet. At least, I did not get to
know it until now. I merely tell you this because I do not want
to claim anything for me which does not correspond to facts.”
By letter dated 16 June 1944 he was notified that the Reich Leader SS
had promoted him to the rank of Oberfuehrer, effective 21 June 1944.
The defendant stated that he was assigned to the legal staff of the
48th Standarte and later to the legal staff of the SS Main Office.
He stated that he had no actual duties. However, part of his service
credentials, dated 14 March 1939, under the heading of qualifications,
signed by Dalski, SS Obersturmbannfuehrer, the following is stated:
“SS Untersturmfuehrer Altstoetter is frank, honest, and helpful.
His ideology is firmly established on a National Socialist
basis. A. was a leader of the staff of the 48th Standarte and
there at all times performed his duties in a satisfactory
manner.”
In a report from Leipzig, dated 10 June 1939, it is stated that he was
awarded the “badge of honor for legal service, in silver”, effective 19
April 1938, signed Sachse, SS Untersturmfuehrer and Adjutant.
The defendant was evidently highly regarded by Himmler who, on 18
September 1942, at a meeting with Thierack and Rothenberger, referred
to him as a reliable SS Obersturmfuehrer.
It also appears that his appointment to the Ministry of Justice was at
the suggestion of Himmler and that the defendant’s relationship with
Himmler was one which Thierack fostered for purposes of his own.
At the instance of Thierack, he visited Himmler at his headquarters and
was present at a speech given by Himmler at Kochem, where he attended a
dinner for twelve people, including SS Standartenfuehrer Rudolf Brandt
and SS Obergruppenfuehrer Pohl.
He visited Berger, a high SS official, at Berger’s request. He
carried on considerable correspondence with high officials in the
SS, including Himmler, SS Gruppenfuehrer Professor Dr. Gebhardt, SS
Gruppenfuehrer Berger, and Kaltenbrunner, Chief of the Security Police
and SD.
On 25 May 1940 Altstoetter wrote to the Reich Leader SS as follows:
“If I can contribute my small part towards helping our Fuehrer
to accomplish his great task for the benefit of our nation, this
causes me particular joy and satisfaction, especially in my
capacity as SS officer.”
According to a letter to Gebhardt, Himmler had instructed the SS
leaders to request Altstoetter’s advice in certain matters.
On 6 June 1944 he wrote Gebhardt, congratulating him upon a recent
award. In this letter he states:
“I am especially glad about your distinction, especially because
I do not see only in it a recognition of your great war service
as a physician and surgeon but also as a research scientist and
organizer and which is attributed to our old and trusty friend.”
The evidence in this case clearly establishes that the defendant joined
and retained his membership in the SS on a voluntary basis. In fact it
appears that he took considerable interest in his SS rank and honors.
The remaining fact to be determined is whether he had knowledge of
the criminal activities of the SS as defined in the London Charter.
In this connection we quote certain extracts from the judgment of the
International Military Tribunal in the case of Goering, et al., as to
the SS--
“Criminal activities: SS units were active participants in
the steps leading up to aggressive war. The Verfuegungstruppe
was used in the occupation of the Sudetenland, of Bohemia and
Moravia, and in Memel. The Henlein Free Corps was under the
jurisdiction of the Reich Leader SS for operations in the
Sudetenland in 1938, and the Volksdeutsche Mittelstelle financed
fifth column activities there.
“The SS was even a more general participant in the commission
of war crimes and crimes against humanity. Through its control
over the organization of the police, particularly the Security
Police and SD, the SS was involved in all the crimes which
have been outlined in the section of this judgment dealing
with the Gestapo and SD. * * * The Race and Settlement Office
of the SS, together with the Volksdeutsche Mittelstelle were
active in carrying out schemes for Germanization of occupied
territories according to the racial principles of the Nazi Party
and were involved in the deportation of Jews and other foreign
nationals. Units of the Waffen SS and Einsatzgruppen operating
directly under the SS Main Office were used to carry out these
plans. These units were also involved in the widespread murder
and ill-treatment of the civilian population of occupied
territories. * * *
“From 1934 onward the SS was responsible for the guarding and
administration of concentration camps. The evidence leaves no
doubt that the consistently brutal treatment of the inmates of
concentration camps was carried out as a result of the general
policy of the SS, which was that the inmates were racial
inferiors to be treated only with contempt. There is evidence
that where manpower considerations permitted, Himmler wanted to
rotate guard battalions so that all members of the SS would be
instructed as to the proper attitude to take to inferior races.
After 1942 when the concentration camps were placed under the
control of the WVHA they were used as a source of slave labor.
An agreement made with the Ministry of Justice on 18 September
1942 provided that antisocial elements who had. finished prison
sentences were to be delivered to the SS to be worked to death.
* * *
“The SS played a particularly significant role in the
persecution of the Jews. The SS was directly involved in the
demonstrations of 10 November 1938. The evacuation of the
Jews from occupied territories was carried out under the
directions of the SS with the assistance of SS police units. The
extermination of the Jews was carried out under the direction of
the SS central organizations. It was actually put into effect by
SS formations. * * *
“It is impossible to single out any one portion of the SS which
was not involved in these criminal activities. The Allgemeine SS
was an active participant in the persecution of the Jews and was
used as a source of concentration camp guards. * * *
“The Tribunal finds that knowledge of these criminal activities
was sufficiently general to justify declaring that the SS was
a criminal organization to the extent hereinafter described.
It does appear that an attempt was made to keep secret some
phases of its activities, but its criminal programs were so
widespread, and involved slaughter on such a gigantic scale,
that its criminal activities must have been widely known. It
must be recognized, moreover, that the criminal activities of
the SS followed quite logically from the principles on which
it was organized. Every effort had been made to make the SS
a highly disciplined organization composed of the elite of
national socialism. Himmler had stated that there were people
in Germany ‘who become sick when they see these black coats’,
and that he did not expect that ‘they should be loved by too
many’. * * * Himmler in a series of speeches made in 1943,
indicated his pride in the ability of the SS to carry out these
criminal acts. He encouraged his men to be ‘tough and ruthless’;
he spoke of shooting ‘thousands of leading Poles’, and thanked
them for their cooperation and lack of squeamishness at the
sight of hundreds and thousands of corpses of their victims. He
extolled ruthlessness in exterminating the Jewish race and later
described this process as ‘delousing’. These speeches show that
the general attitude prevailing in the SS was consistent with
these criminal acts. * * *
“In dealing with the SS the Tribunal includes all persons who
had been officially accepted as members of the SS, including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf Verbaende, and the members of any of the
different police forces who were members of the SS. * * *
“The Tribunal declares to be criminal within the meaning of
the Charter the group composed of those persons who had been
officially accepted as members of the SS as enumerated in the
preceding paragraph who became or remained members of the
organization with knowledge that it was being used for the
commission of acts declared criminal by article 6 of the Charter
* * *.”[676]
In this regard the Tribunal is of the opinion that the activities of
the SS and the crimes which it committed as pointed out by the judgment
of the International Military Tribunal above quoted are of so wide a
scope that no person of the defendant’s intelligence, and one who had
achieved the rank of Oberfuehrer in the SS, could have been unaware of
its illegal activities, particularly a member of the organization from
1937 until the surrender. According to his own statement, he joined the
SS with misgivings, not only on religious grounds but also because of
practices of the police as to protective custody in concentration camps.
Altstoetter not only had contacts with the high ranking officials
of the SS, as above stated, but was himself a high official in the
Ministry of Justice stationed in Berlin from June 1943 until the
surrender. He attended conferences of the department chiefs in the
Ministry of Justice and was necessarily associated with the officials
of the Ministry, including those in charge of penal matters.
The record in this case shows as part of the defense of many of
those on trial here that they claim to have constantly resisted the
encroachment of the police under Himmler and the illegal acts of the
police.
Documentary evidence shows that the defendant knew of the evacuation of
Jews in Austria and had correspondence with the Chief of the Security
Police and Security Service regarding witnesses for the hereditary
biological courts. This correspondence states:
“If the Residents’ Registration Office or another police office
gives the information that a Jew has been deported, all other
inquiries as to his place of abode as well as applications for
his admission of hearing or examination are superfluous. On the
contrary, it has to be assumed that the Jew is not attainable
for the taking of evidence.”
It also quotes this significant paragraph:
“If in an individual case it is to the interest of the public
to make an exception and to render possible the taking of
evidence by special provision of persons to accompany and means
of transportation for the Jew, a report has to be submitted
to me in which the importance of the case is explained. In
all cases offices must refrain from direct application to the
offices of the police, especially also to the Central Office for
the Regulation of the Jewish Problem in Bohemia and Moravia at
Prague, for information on the place of abode of deported Jews
and their admission, hearing, or examination.”
He was a member of the SS at the time of the pogroms in November 1938,
“Crystal Week,” in which the IMT found the SS to have had an important
part. Surely whether or not he took a part in such activities or
approved of them, he must have known of that part which was played by
an organization of which he was an officer. As a lawyer he knew that in
October of 1940 the SS was placed beyond reach of the law. As a lawyer
he certainly knew that by the thirteenth amendment to the citizenship
law the Jews were turned over to the police and so finally deprived of
the scanty legal protection they had theretofore had. He also knew,
for it was part of the same law, of the sinister provisions for the
confiscation of property upon death of the Jewish owners, by the police.
Notwithstanding these facts, he maintained his friendly relations with
the leaders of the SS, including Himmler, Kaltenbrunner, Gebhardt, and
Berger. He refers to Himmler, one of the most sinister figures in the
Third Reich, as his “old and trusty friend.” He accepted and retained
his membership in the SS, perhaps the major instrument of Himmler’s
power. Conceding that the defendant did not know of the ultimate mass
murders in the concentration camps and by the Einsatzgruppen, he knew
the policies of the SS and, in part, its crimes. Nevertheless he
accepted its insignia, its rank, its honors, and its contacts with the
high figures of the Nazi regime. These were of no small significance in
Nazi Germany. For that price he gave his name as a soldier and a jurist
of note and so helped to cloak the shameful deeds of that organization
from the eyes of the German people.
Upon the evidence in this case it is the judgment of this Tribunal that
the defendant Altstoetter is guilty under count four of the indictment.
This Tribunal has held that it has no jurisdiction to try any defendant
for the crime of conspiracy as a separate substantive offense, but we
recognize that there are allegations in count one of the indictment
which constitute charges of direct commission of war crimes and crimes
against humanity. However, after eliminating the conspiracy charge
from count one, we find that all other alleged criminal acts therein
set forth and committed after 1 September 1939 are also charged as
crimes in the subsequent counts of the indictment. We therefore find it
unnecessary to pass formally upon the remaining charges in count one.
Our pronouncements of guilt or innocence under counts two, three, and
four dispose of all issues which have been submitted to us.
Concerning those defendants who have been found guilty, our conclusions
are not based solely upon the facts which we have set forth in the
separate discussions of the individual defendants. In the course of
9 months devoted to the trial and consideration of this case, we
have reached conclusions based upon evidence and observation of the
defendants which cannot fully be documented within the limitations of
time and space allotted to us. As we have said, the defendants are
not charged with specific overt acts against named victims. They are
charged with criminal participation in government-organized atrocities
and persecutions unmatched in the annals of history. Our judgments are
based upon a consideration of all of the evidence which tends to throw
light upon the part which these defendants played in the entire tragic
drama. We shall, in pronouncing sentence, give due consideration to
circumstances of mitigation and to the proven character and motives of
the respective defendants.
[Signed] JAMES T. BRAND
Presiding Judge
MALLORY B. BLAIR
Judge
JUSTIN W. HARDING
Judge
VIII. SEPARATE OPINION BY JUDGE BLAIR
OPINION OF MALLORY B. BLAIR, JUDGE OF
MILITARY TRIBUNAL III
I concur in the final judgment and verdict filed herein, which I have
signed. A difference of view has arisen, however, with respect to
certain findings and conclusions made in the judgment under the title
“Source of Authority of Control Council Law No. 10”. Under this title
a lengthy and able discussion is made in the judgment concerning the
effect and meaning of the term “unconditional surrender” of Germany to
the Allied Powers. From the meaning given to the term of “unconditional
surrender” of the armed forces of the Hitler regime and the collapse
of his totalitarian government in Germany, the view is expressed that
a distinction arises between measures taken by the Allied Powers prior
to the destruction of the German Government and those taken afterwards;
and that only the former may be tested by the Hague Regulations
because they relate only to a belligerent occupation. To support this
view, quotations are made from articles expressing views of certain
text writers, which articles are published in the American Journal of
International Law. The judgment then adopts the view expressed in the
quoted texts, which is admittedly contrary to the views of the equally
scholarly writers whose articles are also cited.
The foregoing decision is made to depend upon a determination of the
present character or status of the occupation of Germany by the Allied
Powers; that is, whether or not it is a belligerent occupation. This
interesting but academic discussion of the question has no possible
relation to or connection with the “source of authority of Control
Council Law No. 10,” which is the question posed in the judgment. No
authority or jurisdiction to determine the question of the present
status of belligerency of the occupation of Germany has been given
this Tribunal. This question of present belligerency of occupation
rests solely within the jurisdiction of the military occupants and
the executives of the nations which the members of the Allied Control
Council represent. The determination by this Tribunal that the present
occupation of Germany by the Allied Powers is not belligerent may
possibly involve serious complications with respect to matters solely
within the jurisdiction of the military and executive departments of
the governments of the Allied Powers.
If, however, any possible questions are here present for determination
with respect to (1) the character of the present status of occupation
of Germany; and (2) the present status of belligerency, such questions
can only relate to the rights of the victorious belligerent to exercise
control over Germany. Such matters as regard the American Zone are
controlled by both the written and unwritten laws, rules, and customs
of warfare and by the rights and obligations of a victorious occupant
under international law. The determination of these matters has not
been entrusted to this Tribunal. This Tribunal has not been given
any jurisdiction to exercise any sovereign power of Germany; nor
has it been given any jurisdiction to determine that because of the
unconditional surrender Germany’s sovereignty was thereby transferred
to the victorious Allied Powers. These matters are controlled in the
American Zone by the Basic Field Manual [27-10] on Rules of Land
Warfare issued (1940) by The Judge Advocate General of the United
States Army.
As concerns questions of transfer of sovereignty of a defeated
belligerent to the victorious belligerent, the foregoing rules of land
warfare provide--
“_273. Does not transfer sovereignty._--Being an incident
of war, military occupation confers upon the invading force
the right to exercise control for the period of occupation.
It does not transfer the sovereignty to the occupant, but
simply the authority or power to exercise some of the rights
of sovereignty. The exercise of these rights results from the
established power of the occupant and from the necessity for
maintaining law and order, indispensable to both the inhabitants
and to the occupying force.
“_274. Distinguished from invasion._--The state of
invasion corresponds with the period of resistance. Invasion
is not necessarily occupation, although it precedes it and
may frequently coincide with it. An invader may push rapidly
through a large portion of enemy country without establishing
that effective control which is essential to the status of
occupation. He may send small raiding parties or flying columns,
reconnoitering detachments, etc., into or through a district
where they may be temporarily located and exercise control, yet
when they pass on it cannot be said that such district is under
his military occupation.
“_275. Distinguished from subjugation or
conquest._--Military occupation in a foreign war, being
based upon the fact of possession of _enemy_ territory,
necessarily implies that the sovereignty of the occupied
territory is not vested in the occupying power. The occupation
is essentially provisional.
“On the other hand, subjugation or conquest implies a transfer
of sovereignty. Ordinarily, however, such transfer is effected
by a treaty of peace. When sovereignty passes, military
occupation, as such, must of course cease; although the
territory may, and usually does for a period at least, continue
to be governed through military agencies which have such powers
as the President or Congress may prescribe.”
And as concerns the administration of occupied territory, the same
rules of land warfare require--
“_285. The laws in force._--The principal object of the
occupant is to provide for the security of the invading army
and to contribute to its support and efficiency and the success
of its operations. In restoring public order and safety he
will continue in force the ordinary civil and criminal laws of
the occupied territory which do not conflict with this object.
These laws will be administered by the local officials as far
as practicable. All crimes not of a military nature and which
do not affect the safety of the invading army are left to the
jurisdiction of the local courts.
“_286. Power to suspend and promulgate laws._--The military
occupant may suspend existing laws and promulgate new ones when
the exigencies of the military service demand such action.”
Manifestly this Tribunal, created for the sole purpose of trying and
punishing war criminals in the broadest sense of that term as used
in Control Council Law No. 10, has not by such law been given any
jurisdiction to determine matters relating to the far reaching power
or authority which the foregoing rules authorize a military occupant
to exercise provisionally. In consequence, the lengthy discussion
of the far reaching power or authority which the Allied Powers are
now exercising in Germany has no material relation to any question
before us for determination, and particularly the question of the
“source of the authority of Control Council Law No. 10”. Certainly
this Tribunal has no jurisdiction to determine whether or not the
military or executive authorities have exceeded their authority or
whether or not they are exercising in fact the sovereign authority of
Germany, or whether by her unconditional surrender Germany has lost all
sovereignty. The exercise of such powers has to do with provisional
matters of occupation and operates presently and in future. Our
jurisdiction extends to the trial of war criminals for crimes committed
during the war and before the unconditional surrender of Germany. This
jurisdiction is determined by entirely different laws.
Under the foregoing rules of military operation there is no rule which
would, because of the unconditional surrender of the German armed
forces, transfer the sovereignty of Germany to the Allied occupants,
or to either of them, in their respective zones of occupation. It
may here be pointed out that the report of 1919 by the Commission on
Responsibility of the Authors of War and Enforcement of Penalties lists
among other war crimes in violation of international law or of the laws
and customs of land warfare,“(10) the usurpation of sovereignty during
military occupation.” This rule is incident to military occupation
and was clearly intended to protect the inhabitants of any occupied
territory against the unnecessary exercise of sovereignty by a military
occupant. As concerns this Military Tribunal in the American Zone of
Occupation, the problem is dealt with and concluded by the above-quoted
rules (285–286), relating to administration of occupied territory.
No attempt has been made by the Allied Powers, or either of them, to
exercise the sovereign authority of Germany, except in the limited
sense provided for by the foregoing rules of land warfare. On 30
January 1946 the Allied Control Council enacted Law No. 11 which
repealed most of the enactments of the Nazi regime and continued in
force in all of Germany the great body of criminal law contained in
the German Criminal Code of 1871 with amendments thereto. This is in
accord with the provisions of the above-quoted rule 285. Thus in the
American Zone there has been continued in force the ordinary civil and
criminal laws of the German states, each of which has been recognized
as a sovereign power. These laws are being administered by German
local and state officials as far as can practicably be done, with the
avowed intention of the Allied Powers, and each of them, to surrender
all powers now exercised as a military occupant, particularly when the
all-Nazi militaristic influence in public, private, and cultured life
of Germany has been destroyed, and when Nazi war criminals have been
punished as they justly deserve to be punished.
Furthermore, as concerns the American Zone of Occupation, the
punishment of war leaders or criminals is being and will be carried out
by four separate procedures--
(1) Major German war leaders or criminals are tried by this and similar
military tribunals set up under Control Council Law No. 10 and Military
Government Ordinance No. 7, limited to the crimes or offenses therein
defined or recognized.
(2) The trials of Germans for the commission of war crimes against
American military personnel and for atrocities or crimes committed in
concentration camps in the area captured or occupied by the American
armed forces, are tried by special military courts set up at the
direction of the zone commander, with the theater judge advocate in
charge of the prosecution of the cases.
(3) Germans who are charged with committing crimes against humanity
upon other Germans, in violation of German law, are tried by the
ordinary German criminal courts.
(4) Other Germans who were actively responsible for the crimes of the
Hitler or Nazi regime, or who actively participated in the Nazi plans
or schemes, are tried by German tribunals under the Law for Liberation
from National Socialism and Militarism of 5 March 1946.
The purpose of the foregoing program is to carry out the objectives of
the Potsdam Agreement that “war criminals and those participating in
planning or carrying out Nazi enterprises involving or resulting in
atrocities or war crimes, shall be arrested and brought to judgment.”
The Potsdam Agreement related to punishment of all Axis war criminals.
Control Council Law No. 10 sets up the machinery to apply the Potsdam
Agreement to European Axis war criminals and particularly to German war
criminals.
The judgment further declares, however, that “in the case of Germany,
subjugation has occurred by virtue of military conquest.” This holding
is based upon the previous declarations that at the time of the
unconditional surrender of the German armed forces the Nazi government
had completely disintegrated, requiring the victorious belligerent to
take over the complete exercise and control of governmental affairs
of Germany, and thereby resulting in the transfer of her sovereignty
to the victorious Allied Powers. In this holding, the judgment simply
attempts to apply the provisions of rule 275 that “subjugation or
conquest implies a transfer of sovereignty.” Obviously this rule
implies that the question of subjugation is one of fact or intention
to be determined by the successful belligerent. There has been no act
or declaration of the Allied Powers, either before or since their
occupation of Germany under the terms of the unconditional surrender,
which could possibly be construed as showing that they intend by the
subjugation and occupation of Germany to transfer her sovereignty to
themselves. To the contrary every declaration that has been made by
the Allied Powers with respect to their occupancy of Germany and the
enactment of laws for her control during the occupation has emphasized
the fact that the ultimate purpose of such occupancy is to destroy
the Nazi form of government and militarism in Germany so that as thus
extirpated from these influences she may take her place in the comity
of the nations of the world.
The declaration made in the judgment that Germany has been subjugated
by military conquest and that therefore her sovereignty has been
transferred to the successful belligerent Allied Powers cannot be
sustained either as a matter of fact or under any construction of
the foregoing rules of land warfare. The control and operation of
Germany under the Allied Powers’ occupation is provisional. It does
not transfer any sovereign power of Germany other than for the limited
purpose of keeping the peace during occupancy, and for the ultimate
rectification of the evils brought about by the Nazi regime and
militarism, and in order to destroy such influences and to aid in the
establishment of a government in and for Germany under which she may in
the future earn her place in the comity of nations. In any event this
Tribunal has no power or jurisdiction to determine such questions.
The judgment further declares that Control Council Law No. 10 has a
dual aspect. The judgment states:
“In its first aspect and on its face it purports to be a statute
defining crimes and providing for the punishment of persons who
violate its provisions. It is the legislative product of the
only body in existence having and exercising general lawmaking
power throughout the Reich.”
Obviously this aspect or theory of reasoning is predicated upon the
previous declarations that since at the time of the unconditional
surrender the Nazi government had completely collapsed, and that,
since the Allied Powers assumed the entire control of the governmental
function of Germany, her sovereignty was thereby transferred to the
Allied Powers. It is then declared that Control Council Law No. 10
was enacted by the Allied Control Council in and for Germany in the
exercise of this transferred German sovereignty. Under this reasoning
Control Council Law No. 10 merely became a local law in and for
Germany because Germany, in the exercise of her national governmental
sovereignty, could not enact the law as international law. Nor can the
Allied Control Council in the exercise of the transferred sovereignty
of Germany enact international law.
The judgment further declares that the same and only supreme
legislative authority in and for Germany, the Allied Control Council,
gave this Tribunal jurisdiction and authority to enforce the local
German law so enacted by it and to punish crimes in violation of it,
including crimes by German nationals against German nationals as
authorized by Control Council Law No. 10. From the foregoing premise
the conclusion is inescapable that the Allied Control Council in the
exercise of the sovereign power of Germany has enacted the law in and
for Germany and has authorized this Tribunal to punish criminals who
violated the law in the manner of a German police court.
The foregoing conclusion is based upon the articles by Freeman and
Fried, from which quotations are made in the judgment. This same
theory by Fried has been expressed in a subsequent statement wherein
he states, after reviewing the foregoing facts with respect to the
unconditional surrender of the armed forces and the disintegration of
the Nazi government, that--
“This Tribunal (III) has the double quality of being an
international court and, owing to the special situation of
Germany at the present time, also a German court.”
This is the only possible conclusion that can be reached in the
premises stated.
The second aspect of Control Council Law No. 10 is declared by the
judgment to be as follows:
“We have discussed C. C. Law 10 in its first aspect as
substantive legislation. We now consider its other aspect.
Entirely aside from its character as substantive legislation, C.
C. Law 10, together with Ordinance No. 7, provides procedural
means previously lacking for the enforcement within Germany
of certain rules of international law which exist throughout
the civilized world independently of any new substantive
legislation.”
There can be no serious disagreement as regards this aspect or theory
of Control Council Law No. 10, but it is contrary to the first aspect
or theory of the law. The two aspects are diametrically opposed to
each other as to the “source of authority for Control Council No.
10.” They are so conflicting with respect to the claims that the law
is both local law and international law that either one or the other
aspect cannot exist. The legislature of a national state cannot by a
legislative act make international law binding upon other nations. Only
an international legislative body may so legislate and no such body has
ever existed.
With regard to the premises supporting the view that Control Council
Law No. 10 has two aspects, the judgment apparently contains other
conflicting statements with respect to the “source of authority for
Control Council Law No. 10” and also with respect to the basis of the
authority of the legislative body to enact the law. The judgment states
at one place--
“International law is not the product of statute. Its content
is not static. The absence from the world of any governmental
body authorized to enact substantive rules of international law
has not prevented the progressive development of that law. After
the manner of the English common law, it has grown to meet the
exigencies of changing conditions.”
The judgment recites at another point--
“Since the Charter IMT and C. C. Law 10 are the product of
legislative action by an international authority, it follows
of necessity that there is no national constitution of any one
state which could be invoked to invalidate the substantive
provisions of such international legislation.”
At still another place the judgment recites--
“In its aspect as a statute defining crime and providing
punishment the limited purpose of C. C. Law 10 is clearly set
forth. It is an exercise of supreme legislative power in and for
Germany. It does not purport to establish by legislative act any
new crimes of international applicability.”
Still at another place in the judgment it is declared that--
“Only by giving consideration to the extraordinary and temporary
situation in Germany can the procedure here be harmonized with
established principles of national sovereignty. In Germany
an international body (the Control Council) has assumed and
exercised the power to establish judicial machinery for the
punishment of those who have violated the rules of the common
international law, a power which no international authority
without consent could assume or exercise within a state having a
national government presently in the exercise of its sovereign
powers.”
Thus, in the first quotation, the judgment states that there has never
been an international legislature and that, therefore, international
law is not the product of statute; whereas, in the second quotation,
it is contended that Control Council Law No. 10 is “the product of
legislative action by an international authority.” The third recitation
is that Control Council Law No. 10 “is an exercise of supreme
legislative power in and for Germany.”
The fourth quotation doubts the legality of our procedure unless
the international body in Germany (the Allied Control Council) has
assumed and exercised the power to establish judicial machinery for
punishment of crimes in violation of international law. The source of
the authority to set up courts and machinery for punishment of German
war criminals does not depend in any manner upon the exercise of any
sovereign power of Germany. This matter will be later discussed.
With these conflicting conclusions as to the source of authority of
Control Council Law No. 10, I must respectfully disagree. But the
judgment saves itself from them by finally waiving them aside and
holding as follows:
“For our purposes, however, it is unnecessary to determine
the present situs of ‘residual sovereignty’. It is sufficient
to hold that, by virtue of the situation at the time of
unconditional surrender, the Allied Powers were provisionally
in the exercise of supreme authority, valid and effective
until such time as, by treaty or otherwise, Germany shall be
permitted to exercise the full powers of sovereignty. We hold
that the legal right of the Four Powers to enact C. C. Law 10 is
established and that the jurisdiction of this Tribunal to try
persons charged as major war criminals of the European Axis must
be conceded.”
The judgment makes the further and additional declaration that--
“The fact that the Four Powers are exercising supreme
legislative authority in governing Germany and for the
punishment of German criminals does not mean that the
jurisdiction of this Tribunal rests in the slightest degree
upon any German law, prerogative, or sovereignty. We sit as a
Tribunal drawing its sole power and jurisdiction from the will
and command of the victor states. The power and right exerted is
that of victors, not of the vanquished.”
With these declarations there is no disagreement. They waive and
completely nullify the foregoing conflicting declarations of the
judgment with regard to the “source of authority of Control Council Law
No. 10” and that its enactment was the exercise of German sovereignty
by the four Allied Powers.
It is my view that the jurisdiction of this Tribunal is limited to the
area or field of international law which relates to the punishment of
war criminals in the fullest sense of that term. The source of its
Charter and jurisdiction to try and punish European Axis war criminals
is as follows:
_Charter and Jurisdiction of this Tribunal_
The charter and jurisdiction of this Military Tribunal are found within
the framework of four instruments or documents: (1) Allied Control
Council Law No. 10; (2) Military Government Ordinance No. 7; (3) the
Charter of the International Military Tribunal; and (4) the judgment of
the International Military Tribunal. These instruments and documents
confer power or jurisdiction upon this Tribunal to try and punish
certain European Axis war criminals. The source of Control Council Law
No. 10 and Ordinance 7 and the authority to enact or issue them are
found in certain unilateral agreements, instruments, and documents of
the Allied Powers to which brief reference will be here made.
By the Moscow Declaration of 30 October 1943 on German war atrocities
and crimes, the three Allied Powers (the United Kingdom, the United
States, and the Soviet Union) declared that at the time of granting
any armistice to Germany, “those German officers and men and the
members of the Nazi Party who have been responsible for or have taken
a consenting part in” committing such atrocities or crimes will
be adjudged and punished for their abominable deeds. By the Yalta
Conference of 11 February 1945 the same three Powers declared that only
“the unconditional surrender” of the Axis powers will be accepted. The
plan for enforcing the unconditional surrender terms was agreed upon
and provides that the Allied Powers will each occupy a separate zone of
Germany with coordinated administration and control through a Central
Control Council composed of the supreme commanders at Berlin. France
was to be invited to take over a zone of occupation and to participate
as a fourth member of the Control Council for Germany. Among other
things, the Allied Powers declared that they intended to “bring all war
criminals to just and swift punishment.” They further declared that
they intended “to destroy German militarism and nazism and to insure
that Germany will never again be able to disturb the peace of the
world.” With these provisional matters we are not concerned here.
The German armed forces unconditionally surrendered on 8 May 1945.
France accepted the invitation to become a fourth member of the Allied
Control Council and later took over a zone of occupation.
By the Potsdam Agreement of 5 June 1945 and the declaration of the
Joint Chiefs of Staff of 2 August 1945 at Berlin, the then Four
Allied Powers expressly declared and provided that the punishment of
European Axis war criminals “was made a primary task of the military
occupation of Germany.” They further declared that certain far reaching
provisional measures would be undertaken in Germany to rid her people
of nazism and of militarism and to insure the peace and safety of the
world, and so that the German people thus extirpated will in the future
take their place in the comity of nations. With these latter provisions
we are not here concerned. The Allied Control Council for Germany is
composed of the Joint Chiefs of Staff of the Four Allied Powers.
By the London Agreement of 8 August 1945, the Four Allied Powers
referred to the Moscow Declaration and authorized, after consultation
with the Allied Control Council for Germany, the establishment of an
International Military Tribunal to try certain of the European Axis
war criminals. The Charter of the Tribunal was attached to and made
a part of the London Agreement. This Charter described the power and
jurisdiction of the Tribunal and defined or recognized the crimes for
which the European Axis war criminals were to be tried.
The foregoing avowed policy of the Allied Powers for the punishment
of European war criminals or enemy persons was thereafter approved
and sanctioned by 19 of the United Nations in accordance with the
provisions of article V of the London Agreement.
The International Military Tribunal was duly created and held its first
session on 18 October 1945. The actual trial began on 20 November 1945
of 22 alleged major war criminals; and by the judgment of 1 October
1946 some of them were given death sentences; some of them were given
life imprisonment; some were given lesser prison terms; and others of
them were acquitted.
After the foregoing trial began, the Allied Control Council for
Occupied Germany met and on 20 December 1945 enacted Control Council
Law No. 10, which defined the jurisdiction of this and similar military
tribunals and recognized as crimes to be tried by them--
1. Crimes against peace;
2. War crimes;
3. Crimes against humanity; and
4. Membership in categories of a criminal group or organization
declared criminal by the International Military Tribunal.
Control Council Law No. 10 recognizes as a crime, membership in any
organization declared to be criminal by the International Military
Tribunal.
Article 9 of the London Charter provides that the IMT may declare
any group or organization of which an individual was a member to be
a criminal organization. Article 10 provides that the IMT may also
declare membership in an organization found by it to be criminal to be
a crime. This the IMT did and further declared that its Charter makes
the declaration of criminality against an accused organization final.
The IMT then fixed the character of membership which would be regarded
as criminal, and expressly limited its declaration of group criminality
to persons who became or remained members of the organization with
knowledge that it was being used for criminal acts or who were
personally implicated as members of the organization in the commission
of such crimes. These findings and conclusions of the IMT are binding
upon this Tribunal.
The Control Council declared that this law or procedure was intended to
reach the German war criminals to be tried by the occupying powers of
Germany in their respective zones of occupation. The preamble stated
that the law was enacted by the authority of and to give effect to
the Moscow Declaration, the London Agreement, and the Charter of the
International Military Tribunal. Thus, the avowed purpose of the Allied
Powers to punish German war criminals was given quadripartite agreement
and application under Control Council Law No. 10.
Military Government Ordinance No. 7 was issued on 26 October 1946
“pursuant to the powers of the Military Governor of the United States
Zone of Occupation within Germany, and further pursuant to the power
conferred upon the Zone Commander by Control Council Law No. 10,
and articles 10 and 11 of the Charter of the International Military
Tribunal annexed to the London Agreement of 8 August 1945,” authorizing
the establishment of certain “tribunals to be known as Military
Tribunals”. Accordingly, Military Tribunal III was established on 13
February 1947, by virtue of the provisions of said Military Government
Ordinance No. 7, “with powers to try and punish persons charged with
offenses recognized as crimes in article II of Control Council Law No.
10, including conspiracies to commit such crimes.” And article X of
Ordinance No. 7 provides that--
“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof of
any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No. 1
shall constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”
As so created and established this and other similar military tribunals
are international in character and jurisdiction. They are authorized
and empowered to try and punish the “major war criminals of the
European Axis”; to try and punish “those German officers and men and
members of the Nazi Party who have been responsible for, and have taken
a consenting part in,” and have aided, abetted, ordered, or have been
connected with plans or enterprises involving the commission of any
offense recognized in Control Council Law No. 10 as a crime.
The jurisdiction and power of this and similar tribunals to try and
punish war criminals find full support in established international law
relating to warfare. This law is that during hostilities and before
their formal termination belligerents have concurrent jurisdiction over
war crimes committed by the captured enemy persons in their territory
or against their nationals in time of war. Accordingly, it has been
generally recognized that belligerents during the war may legitimately
try and punish enemy persons charged with infractions of the rules of
war, if the accused is a prisoner of war and if the act charged has
been made a penal offense by the generally accepted laws and customs
of war. In such cases the accused usually is tried before the court,
commission, or tribunal set up by and adjudged in accordance with the
laws and procedure of the victor. After armistice or peace agreement
the matter of punishment of war crimes is determined by the terms
thereof.
The foregoing law was applied by the judgment of the International
Military Tribunal, which after referring to the Charter creating it,
declared that--
“The Charter is not an arbitrary exercise of power on the part
of the victorious nations, but in the view of the Tribunal,
as will be shown, it is the expression of international law
existing at the time of its creation; and to that extent is
itself a contribution to international law.
“The Signatory Powers created this Tribunal, defined the law it
was to administer, and made regulations for the proper conduct
of the trial. In doing so, they have done together what any one
of them might have done singly; for it is not to be doubted
that any nation has the right thus to set up special courts to
administer law. With regard to the constitution of the court,
all that the defendants are entitled to ask is to receive a fair
trial on the facts and law.”[677]
Even prior to the foregoing IMT judgment, Lord Chief Justice Wright
had so construed the London Charter in an article appearing in volume
62 of the Law Quarterly Review, January 1946, page 41. He limits the
discussion to the punishment of war criminals. He there states that--
“All I am here concerned with is a limited area of international
law, that relating to the trial and punishment of war criminals
in the full sense of that term, as adopted in the Agreement
of 8 August 1945, made in London between the Governments
of the United Kingdom, of the United States, of the French
Republic, and of the Union of Soviet Socialist Republics, which
established a Tribunal for the trial and punishment of the major
war criminals of the European Axis countries. The Agreement
includes as falling within the jurisdiction of the Tribunal
persons who committed the following crimes: (a) crimes against
peace, which means in effect planning, preparation, initiation,
or waging of a war of aggression; (b) war crimes, by which term
is meant mainly violation of the laws and customs of war; (c)
crimes against humanity, in particular murder, extermination,
enslavement, deportation and other inhumane acts committed
against any civilian population.
“The Tribunal so established is described in the Agreement
as an International Military Tribunal. Such an International
Tribunal is intended to act under international law. It is
clearly to be a judicial tribunal constituted to apply and
enforce the appropriate rules of international law. I understand
the Agreement to import that the three classes of persons which
it specifies are war criminals, that the acts mentioned in
classes (a), (b), and (c) are crimes for which there is properly
individual responsibility; that they are not crimes because of
the agreement of the four governments, but that the governments
have scheduled them as coming under the jurisdiction of the
Tribunal because they are already crimes by existing law. On
any other assumption the court would not be a court of law but
a manifestation of power. The principles which are declared in
the Agreement are not laid down as an arbitrary direction to
the court but are intended to define and do, in my opinion,
accurately define what is the existing international law on
these matters.”
Similar holdings may be made with respect to Control Council Law No. 10
which recognizes the same basic crimes to be tried by this Tribunal as
were recognized by the London Charter. Each such law is an expression
of the treaties, rules, and customs of international law on crimes
against peace, war crimes, and crimes against humanity; each is in
effect and purpose a listing of crimes in violation of preexisting
international law and each “to that extent is itself a contribution to
international law.” (IMT judgment, _supra_.) But IMT did not rest
its declaration of authority and its procedure upon the Charter which
created it, but on the contrary, discussed at length the matters before
it from the standpoint of preexisting international law. No defendant
was convicted by the International Military Tribunal except for crimes
in violation of preexisting international law which they held to
exist even as to crimes against peace. It supported its judgment that
each crime was based upon preexisting international law or custom of
war, discussing at length the matter of violation of international
treaties and agreements, particularly the Hague Conventions of 1899 and
1907, the Peace Conference of 1919, the violation of the Versailles
Treaty, the various treaties of mutual guarantee, arbitration, and
nonaggression, and the Kellogg-Briand Pact.[678]
Under American law (National Defense Act of 4 June 1920) a military
court or commission may be set up to try persons in the custody of the
United States Government or its armed forces for crimes in violation
of international law. The right to punish such war criminals is not
dependent upon any question of unconditional surrender or of whether
hostilities have ceased. As regards these matters, in the recent
case of Yamashita, the United States Supreme Court makes several
pronouncements applicable here, as follows:
“The trial and punishment of enemy combatants who have committed
violations of the law of war is thus not only a part of the
conduct of war operating as a preventive measure against such
violation, but is an exercise of the authority sanctioned by
Congress to administer the system of military justice recognized
by law of war, that sanction is without qualification as to the
exercise of this authority so long as a state of war exists,
from its declaration until peace is proclaimed. Articles of War,
articles 2, 15.
* * * * * * *
“The mere fact that hostilities have ceased does not preclude
the trial of offenders against the law of war before a military
commission, at least until peace has been officially recognized
by treaty or proclamation of the political branch of the
government. Articles of War, article 15.
“The extent to which power to prosecute violations of the laws
of war shall be exercised before peace is declared rests, not
with courts, but with the political branch of the government,
and may itself be governed by terms of an armistice or a treaty
of peace.”[679]
The importance of the Yamashita decision is apparent. The International
Military Tribunal was established by the London Agreement, 8 August
1945, with its Charter annexed thereto. On entirely similar principles
the Charter of the International Military Tribunal, or other tribunals
or commissions, for the trial of major war criminals in the Far East
was proclaimed on 19 January 1946. These tribunals or commissions
of similar principles were all established in accordance with the
Berlin Agreement of 2 August 1945, which defined the meaning of the
unconditional surrender of the armed forces of the Axis Powers,
and declared that the Allied Powers intended to punish captured
war criminals of the European Axis Powers. All such commissions or
tribunals are deemed to exercise military powers and therefore are
described as “Military Tribunals.” This includes the tribunals created
under the provisions of Control Council Law No. 10 and Ordinance 7.
The judges of these Tribunals set up under Law No. 10 and Ordinance 7
are appointed by the War Department, by the acts of the Secretary of
War, by the President of the United States as Commander-in-Chief of the
Armed Forces, and by the Commanding General of the American Zone of
Occupation in Germany. These judges take an oath to faithfully perform
the task thus assigned to them to the best of their ability.
The Supreme Court of the United States had previously applied the rule
announced in the Yamashita case in the case of Quirin and six others
(_317 U. S. 1_). The court declared that:
“The ‘law of war’ includes that part of the law of nations which
prescribes for the conduct of war the status, rights, and duties
of enemy nations as well as of enemy individuals.
“Under the ‘law of war’ lawful combatants are subject to
capture and detention as prisoners of war by opposing military
forces and unlawful combatants are likewise subject to capture
and detention but in addition they are subject to trial and
punishment by military tribunals for acts which render their
belligerency unlawful.”
This authority is expressly conferred by article 15 of the Articles of
War enacted by Congress on 4 June 1920.
It may be here again observed that international law is an unwritten
law. There has never been an international legislative authority.
The law of nations is founded upon various international rules and
customs, which gradually obtain universal recognition and thus become
international law. Likewise the law of war is built upon treaties
and upon the usages, customs, and practices of warfare by civilized
nations, which gradually obtain universal recognition, and also become
established by the general principles of justice as applied by jurists
and military courts, tribunals, or commissions. And as held by the IMT:
“The Signatory Powers created this Tribunal, defined the law it
was to administer, and made regulations for the proper conduct
of the trial. In doing so, they have done together what any one
of them might have done singly; for it is not to be doubted
that any nation has the right thus to set up special courts to
administer law. With regard to the constitution of the court,
all that the defendants are entitled to ask is to receive a fair
trial on the facts and law.”[680]
After the unconditional surrender, the Allied Powers have obtained the
actual custody of many of the leaders of the German Government, and
the German armies, and many of those who were active participants in
nameless atrocities against prisoners of war, other persons alleged
in the indictment, and civilians of invaded countries, and the power
to try such Axis war criminals must be conceded. This power to try
these crimes could have been exercised as an entirely military one,
but such a method would not accord with Anglo-Saxon or United States
ideology. It has been planned to conduct orderly trials, and fair
trials, in accordance with the American concepts of due process, giving
the accused the benefit of indictment, notice, counsel of their own
choosing, witnesses in their behalf, proof beyond a reasonable doubt,
and judgment by experienced jurists who are under the obligations of a
solemn oath to render even and exact justice. Surely this is giving to
the accused rights which they denied to their helpless victims.
It may be here observed that each of the defendants in this case has
been captured or arrested and is now in the custody and jurisdiction of
this Tribunal. Each of them has been charged by the indictment in this
case with having committed two or more of the offenses recognized as
crimes by the foregoing instruments which define and limit the Charter
and jurisdiction of this Tribunal and which authorize this Tribunal to
try and punish any individual found guilty of having committed such
crimes or offenses. There has been no formal declaration of peace and
officially a state of war still exists between the Allied Powers and
Germany.
Under the doctrine of the Quirin and Yamashita cases, the Allied
Powers, or either of them, have the right to try and punish individual
defendants in this case. These cases hold that where individual
offenders are charged with offenses against the laws of nations, and
particularly the laws of war, they may be tried by military tribunals
or courts set up by the offended government or belligerent power. In
such cases no question as to the character of military occupation nor
as to the character of belligerency is involved, or whether or not
hostilities have ceased. These cases recognize the right to try and
punish individuals who are in the custody and jurisdiction of such
military court or commission so long as peace has not been officially
declared by the authorities competent to conclude such matters.
After armistice or peace agreement, the matter of punishing war
criminals is a question for the parties making the peace agreement to
determine. In consequence, the question of whether hostilities have
ceased is not material. And as is so ably said in the Yamashita case
(_66 S. Ct. 340_)--
“The extent to which power to prosecute violations of the laws
of war shall be exercised before peace is declared rests, not
with courts, but with the political branch of the Government
and may itself be governed by terms of an armistice or a treaty
of peace.”
_Conspiracy_
Count one of the indictment charged the defendants with having,
pursuant to a common design, conspired and agreed together and with
each other and with divers other persons to commit war crimes and
crimes against humanity, as defined in article II of Control Council
Law No. 10, in that each of the defendants participated either
as a principal, or an accessory, or ordered and abetted, or took
a consenting part in, or was connected with plans or enterprises
involving the commission of the war crimes and crimes against
humanity as set forth in the indictment; and that each defendant so
participating was therefore responsible for his own acts and for the
acts of all other defendants in the commission of the crimes.
This Tribunal has ruled that under no provision of Law No. 10 was
conspiracy made a separate substantive and punishable crime. But the
defendants may be punished for having committed war crimes or crimes
against humanity by acts constituting a conspiracy to commit them.
Under the foregoing allegations of count one, the defendants are
charged with having committed war crimes and crimes against humanity by
acts constituting a conspiracy to commit them. This Tribunal has not
applied or convicted any defendant under the conspiracy charge of the
indictment. All defendants convicted, save one, have been convicted
under a plan or scheme to commit the alleged war crimes or crimes
against humanity. The same facts are alleged and proved as constituting
a conspiracy to commit the same war crimes and crimes against humanity.
The same facts under which certain defendants were convicted of having
committed war crimes and crimes against humanity by carrying out the
Night and Fog decree were alleged and, by the same evidence, proved to
be a common design or conspiracy to commit such crimes. The same is
true of the plan or scheme to persecute and exterminate Poles and Jews
upon racial grounds.