protective association of the German Reich and owes allegiance
to it. (2) Citizenship can also be obtained according to
regulations of the Reich and State citizenship law.
“2. (1) A Reich citizen [Reichsbuerger] is only a citizen of
German or related blood, who proves through his behaviour, that
he is willing and fit to serve the German people and Reich
faithfully. (2) Reich citizenship [Reichsbuergerrecht] will be
obtained through the award of a Reich citizenship letter. (3)
The Reich citizen is the sole bearer of full political rights to
the extent of the law.
“3. The Reich Minister of the Interior decrees in collaboration
with the deputy of the Fuehrer those legal and administrative
regulations necessary for the execution and supplementation of
this law.”
[94] A number of further decrees as well as other materials
concerning the application of the “Nuernberg Laws” in the
Incorporated Eastern Territories (Poland), are reproduced below
in section V D 2.
[95] This extract is taken from Prof. Arthur Brand’s book,
_The German Civil Service Law_, Berlin, 1937, p. 123.
The book contains the law with extensive annotations and
commentaries, as well as further regulations on the law.
[96] Note that the decree is dated 17 August 1938, at which time
it was signed by Hitler and Keitel. It was not promulgated in
the Reichsgesetzblatt, however, until 26 August 1939. The decree
had no general preamble. The earlier articles are entitled:
“1. Substantive law;” “2. Espionage;” “3. Guerrilla warfare;”
and “4. Acts contrary to decrees issued by the commanders in
occupied foreign territory.”
[97] Materials concerning the application of the law of
“undermining of military efficiency” are reproduced below in
section V-E.
[98] This decree was not published in the Reichsgesetzblatt.
It was taken from a letter of 9 September 1939 from Meissner,
chief of the Presidential Chancellery, transmitting this decree
to the chief of the Reich Chancellery and to the chief of the
Chancellery of the Fuehrer of the Nazi Party.
[99] Material concerning the application of laws on “public
enemies” is reproduced below in section V E.
[100] For other decrees concerning the establishment and
jurisdiction of “Special Courts,” see section C 3 below.
[101] Article 1 of this decree was also introduced as a part
of Document NG-715, Prosecution Exhibit 112. This decree and a
decree of 15 July 1942 extending the jurisdiction of SS courts
into Bohemia and Moravia (reproduced later in this section as
another part of Document NG-715, Prosecution Exhibit 112) were
the subject of questions put to the defendant Schlegelberger by
Judge Harding. This testimony is reproduced below in section V D
3.
[102] The SS Death Head units were in charge of the
concentration camps.
[103] Material concerning the application of the laws on “public
enemies” are reproduced below in section V E.
[104] The Reich Citizenship Law and the Law for the Protection
of German Blood and Honor, both announced in Nuernberg on 15
September 1939, were the basic parts of the so-called “Nuernberg
Laws.” See the Law for the Protection of German Blood and Honor,
reproduced earlier in this section also as a part of Document
NG-715, Prosecution Exhibit 112. Further decrees and other
materials concerning Jews are reproduced below in section V D 2.
[105] The reference is to Hitler’s speech to the Reichstag on
the same day, 26 April 1942. Extracts from this speech (Doc.
NG-752, Pros. Ex. 24) are reproduced below in section V C 2a.
[106] The decree of 17 October 1939 establishing special
jurisdiction in criminal proceedings against members of the SS
and members of police formations on special tasks, (Klemm Doc.
29, Klemm Ex. 29), is reproduced earlier in this section.
[107] Thierack at this time had just been appointed Reich
Minister of Justice. From late January 1941 until the middle of
August 1942, the defendant Schlegelberger had been acting Reich
Minister of Justice. Evidence concerning developments in the
administration of justice while Thierack was Reich Minister are
reproduced below in section V C3.
[108] Martin Bormann, tried _in absentia_ and sentenced to
death by the International Military Tribunal. See Trial of the
Major War Criminals, _op. cit._, volume I, page 367.
[109] Reproduced on page 184 as a part of Document NG-715,
Prosecution Exhibit 112.
[110] Reproduced on page 207 as a part of Document NG-715,
Prosecution Exhibit 112.
[111] At this time the defendant Klemm was one of several Under
Secretaries (Staatssekretaere) in the Reich Ministry of Justice.
[112] Reproduced on page 207 as a part of Doc. NG-715, Pros. Ex.
112.
[113] Complete testimony is recorded in the mimeographed
transcript, (31 July, 1 Aug. 1947), pages 6235–6271; 6274–6362.
[114] Defendant Mettgenberg later testified that in department
III of the Ministry of Justice he held the position of “Referent
for legislation in the field of international penal law” and
that in department IV he was “a subdepartment chief in charge
of a sphere of work which, above all, also concerned affairs of
international penal law” (Tr. p. 6251).
[115] For various periods of time under the Hitler regime, over
half of the defendants held one or more of the various titles
and positions which the defendant Mettgenberg here proceeds to
describe. For example, the defendant Joel was a Referent and
later a ministerial counsellor; the defendants von Ammon and
Westphal were ministerial counsellors; the defendant Mettgenberg
himself was a Ministerialdirigent; the defendants Altstoetter
and Engert were ministerial directors; and the defendants
Schlegelberger, Klemm and Rothenberger were Under Secretaries.
Only two persons held the position of Reich Minister of Justice
during the Hitler regime, Guertner and Thierack, both of whom
were dead by the time of the trial. The defendant Schlegelberger
was acting Reich Minister of Justice between the death of
Guertner in January 1941 and Thierack’s appointment as Minister
in August 1942.
[116] This summary and the following two charts are part of
the “Basic Information” submitted by the prosecution at the
beginning of the case as an aid to the understanding of the
evidence to be later submitted.
[117] This decree is reproduced on p. 218.
[118] This decree is reproduced on p. 231.
[119] For further information on this subject, see
contemporaneous documents below in section C5.
[120] The decree on court martial procedure is reproduced below
in section C6.
[121] A much enlarged copy of this chart was displayed in the
courtroom during several sessions of the trial as a visual aid
in argument and in the presentation of evidence.
[122] A number of the contemporaneous documents reproduced
later in this volume deal with trials held before Special
Courts. Among the specific cases treated herein are the
Katzenberger case (Doc. NG-270, Pros. Ex. 155, and Doc. NG-154,
Pros. Ex. 152), reproduced in part below in section V D2; the
Kaminska-Wdowen case (Doc. NG-457, Pros. Ex. 201) reproduced in
part below in section V D2; and the Father Schosser case (Doc.
NG-1808, Pros. Ex. 557) reproduced in part below in section V F.
[123] This law is reproduced on p. 173.
[124] This decree is reproduced on p. 185.
[125] This decree is reproduced on p. 187.
[126] This decree is reproduced on p. 188.
[127] These decrees, dated 5 September, 4 September, 6 December,
and 1 September 1939, respectively, are reproduced in section B,
above.
[128] This decree is reproduced on p. 218.
[129] This decree, dated 28 February 1933, is reproduced on p.
160.
[130] This decree, dated 20 December 1934, is reproduced on p.
173 under the title, _Law on Insidious Acts against State and
for the Protection of Party Uniforms_.
[131] A number of the contemporaneous documents reproduced
later in this volume deal with trials held before senates of
the People’s Court. Among the specific cases treated herein are
the Stenfanowicz-Lenczewski case (Doc. NG-351, Pros. Ex. 132),
reproduced below in section V D 2; the Bratek case (Doc. NG-595,
Pros. Ex. 136), reproduced in part below in section V E; the
Beck case (Doc. NG-381, Pros. Ex. 159), reproduced in part below
in section V E; and the Paschen case (Doc. NG-546, Pros. Ex.
141), reproduced below in section V E.
[132] The law of 24 April 1934 consists of three chapters
or parts (each divided into several articles and sections).
Chapter I broadened and redefined the concepts of high treason
and treason, according to National Socialist principles by
amended articles 80–93 of the Reich criminal code. Chapter I
is reproduced in part above in section B, Selected Laws and
Decrees. Chapter III of the law, reproduced here, established
a special judicial machinery to deal with high treason and
treason as newly defined in chapters I and II. Materials on the
application and interpretation of these provisions on treason
and high treason are reproduced below in section V E.
[133] This decree is reproduced on p. 160.
[134] From 1936 until 1942, Thierack was President of the
People’s Court. In 1942, Thierack became Reich Minister of
Justice, and Freisler, President of the People’s Court.
[135] This law is reproduced in part on p. 182.
[136] Decree of the Reich President for the protection of people
and State is reproduced on p. 160.
[137] The hereditary health courts dealt with sterilization
of human beings. Because of space limitations, a relatively
small amount of the evidence introduced in the Justice Case
has been reproduced in this volume. However, sterilization was
also the subject of charges in the Medical Case. See “Medical
Experiments--Experiments for Mass Sterilization” (sec. VII A 15,
Vol. I, pp. 694 ff., this series).
[138] Reference is made to the basic law of 14 July 1933,
reproduced in part immediately above.
[139] Dr. Conti was Reich Health Leader
(Reichsgesundheitsfuehrer). His activities came into issue in
the Medical Case, United States _vs._ Karl Brandt, et al.,
Volumes I and II, this series. Conti committed suicide in 1945
after Germany’s unconditional surrender.
[140] Complete testimony is recorded in the mimeographed
transcript, 25 and 26 June 1947, pages 4253–4364.
[141] Reference is made to the Law Concerning the Head of the
German Reich, 1 August 1934 (1934 Reichsgesetzblatt, pt. I,
p. 747). This law reads as follows: “Article 1. The office
of the Reich President is herewith united with that of the
Reich Chancellor. Therefore, the prerogatives hitherto held by
the Reich President are transferred to the Fuehrer and Reich
Chancellor, Adolf Hitler. He determines his deputy. Article 2.
This law becomes effective from the time of the death of Reich
President Hindenberg.” Hindenberg died on 2 August 1934. This
law was signed by Hitler and 14 Reich ministers.
[142] This act is reproduced on page 163.
[143] Article 53 reads--“The President of the Reich appoints
and dismisses the Chancellor of the Reich and, on the latter’s
recommendation, the ministers of the Reich.”
[144] Article 54 reads--“The Chancellor of the Reich and the
ministers of the Reich require the confidence of the Reichstag
in the administration of their office. Any one of them must
resign should the confidence of the Reichstag be withdrawn by an
express resolution.”
[145] Article 50 reads--“All orders and decrees of the
President of the Reich, including those relating to the armed
forces, require for their validity the countersignature of
the Chancellor or the competent minister of the Reich. The
countersignature entails the undertaking of responsibility.”
[146] Article 76 reads--“The constitution may be amended
by legislation. But decisions of the Reichstag as to such
amendments come into effect only if two-thirds of the legal
total of members be present, and if at least two-thirds of those
present have given their consent. Decisions of the Reichsrat in
favor of amendments of the constitution also require a majority
of two-third of the votes cast. Where an amendment of the
constitution is decided by an appeal to the people as the result
of a popular initiative, the consent of the majority of the
voters is necessary.
“Should the Reichstag have decided upon an alteration of the
constitution in spite of the objection of the Reichsrat, the
president of the Reich shall not promulgate the law if the
Reichsrat, within 2 weeks, demands an appeal to the people.”
[147] Article 102 reads--“Judges are independent and subject
only to the law.”
[148] The problem referred to by the witness was briefly the
following: The value of the German currency having fallen to
a very small fraction of its prewar value, debtors were able
to pay off debts by paying, in terms of purchasing power, only
a small fraction of the original debt. This brought hardship
to many creditors. Hence, the question was whether, under the
doctrine of “unjust enrichment,” or under some similar doctrine,
or by virtue of special legislation, these debts, particularly
toward creditors in the lower economic strata, should be
“revalued.”
[149] Article 48, paragraph 2, reads--“Where public security and
order are seriously disturbed or endangered within the Reich,
the President of the Reich may take the measures necessary for
their restoration, intervening in case of need with the help of
armed forces. For this purpose he is permitted, for the time
being, to abrogate either wholly or partially the fundamental
rights laid down in articles 114, 115, 117, 118, 123, 124, and
153.”
The articles subject to temporary suspension are quoted in the
footnote to the decree of 28 February 1933, the first decree
reproduced in section B, above.
[150] Article 43 reads--“The president of the Reich holds office
for 7 years. Reelection is permissible.
“The president of the Reich may, upon the motion of the
Reichstag, be removed from office before the expiration of his
term by the vote of the people. The resolution of the Reichstag
requires to be carried by a two-thirds’ majority. Upon the
adoption of such a resolution, the president of the Reich is
prevented from the further exercise of his office. Refusal to
remove him from office, expressed by the vote of the people, is
equivalent to reelection, and entails the dissolution of the
Reichstag.
“Penal proceedings may not be taken against the president of the
Reich without the consent of the Reichstag.”
[151] The “red folder” contained the order of the Reich
President dissolving the Parliament (Reichstag). In some
instances, the Reich Chancellor would bring the “red folder”
with him into a session of the Reichstag, thus indicating that
the Reich President had already signed but not yet promulgated
the order dissolving the Reichstag and making it clear to the
Reichstag that an adverse vote would lead to the dissolution of
the Reichstag.
[152] Paragraph 3 of article 48 reads: “The President of the
Reich must, without delay, inform the Reichstag of any measures
taken in accordance with paragraph 1 or 2 of this article. Such
measures shall be abrogated up on the demand of the Reichstag.”
[153] In a previous section of his testimony, the witness had
differentiated between the ordinary private citizen, who was
affected by many norms only indirectly, and such categories as
the soldiers and the public employees, who were more directly
affected by certain norms.
[154] Article 4 reads: “The generally recognized rules of
international law are valid as binding constituent parts of the
law of the German Reich.”
[155] Article 4 is quoted in footnote immediately preceding.
Article 45, paragraph 3, reads: “Alliances and treaties with
foreign states which refer to matters in which the Reich has
legislative power require the consent of the Reichstag.”
[156] Other extracts from the testimony of defendant
Schlegelberger appear below in sections V B, V C 2 a, V D 2, V D
3, and V E. His entire testimony is recorded in the mimeographed
transcript (26, 27, 30 June, 1 July 1947, pp. 4367–4568).
[157] The portions of the record omitted here pertain to such
matters as the order of trial and the offers of documents. At
this point no testimony has been omitted.
[158] Reproduced below in section V C 1 a.
[159] Reproduced below in section V C 1 a.
[160] Opening statement for the prosecution, section III A,
above.
[161] Hans Frank, former head of the National Socialist Legal
Workers’ Association, and of the German Academy of Law, Reich
Minister and Governor General of the Government General (Poland).
[162] Prior to the Hitler regime, the administration of justice
was largely in the hands of the German Laender (States). When
Hitler abrogated the federal system, he also centralized the
administration of justice.
[163] Decree of the Fuehrer and Reich Chancellor concerning
Appointment of Civil Servants and Termination of Civil Service
Status, (Schlegelberger 127, Schlegelberger Def. Ex. 123), is
reproduced above in section IV B.
[164] According to the testimony of prosecution witness Ferber
(Tr. p. 1325) Heller and his mistress were riders in a taxicab.
[165] The defendant Westphal committed suicide in Nuernberg jail
after indictment but before the arraignment.
[166] Counsel refers to the testimony of the prosecution witness
Karl Ferber, (31 March, 1, 3, 8 April 1947, pp. 1312–1315,
1319–1466, 1576–1630, 1665–1746). None of his testimony has been
reproduced herein.
[167] Reproduced below in Section V C 2 a.
[168] Trial of the Major War Criminals, _op. cit._, volume
I, page 275.
[169] Three of the defendants in the Medical case were tried
and convicted upon charges of participation in the euthanasia
program. (See United States _vs._ Karl Brandt, et al., Vol.
I, p. 794, and Vol. II, p. 171 ff., this series.) Concerning the
time when Guertner received a copy of a Hitler notice regarding
euthanasia, the prosecution in the Justice Case introduced the
following document (630-PS, Pros. Ex. 383), the original of
which was on the letterhead of “A. Hitler” and dated Berlin, 1
September 1939:
Reichsleiter Bouhler and Dr. Brandt, M.D. are charged with the
responsibility of enlarging the authority of certain physicians
to be designated by name in such a manner that persons who
according to human judgment are incurable can, upon a most
careful diagnosis of their condition of sickness, be accorded a
mercy death.
[Signed] A. HITLER
[Handwritten note] Given to me by Bouhler on 27 August 1940.
[Signed] DR. GUERTNER III a 3/ 41g R s /
[170] Trial of the Major War Criminals, op. cit., page 182.
[171] Reproduced below in section VC3a.
[172] Reproduced above in section IVB.
[173] This document is a letter of 14 September 1937 from Thierack, at
that time President of the People’s Court, to Lammers, Chief of the
Reich Chancellery, in which Thierack suggested that Hitler address a
further meeting of the members of the People’s Court in connection with
their “fight against treason.” This exhibit is not reproduced herein.
[174] Thierack became Reich Minister of Justice in August 1942.
[175] The defendant refers to the showing before the Tribunal of a
German sound film showing scenes from the actual trial of some of the
persons allegedly involved in the attempt upon Hitler’s life on 20 July
1944 (NG-1019, Pros. Ex. 192). In that trial, Freisler acted as the
presiding judge of the People’s Court.
[176] Testimony is recorded in the mimeographed transcript, 28 April
1947, pp. 2675–2691; 2716–2729.
[177] This resolution is reproduced on page 204.
[178] Hitler’s speech to the Reichstag on 26 April 1942 (NG-752, Pros.
Ex. 24) is reproduced below in section VC2a.
[179] Dr. Ferdinand Behl testified as a prosecution witness. His
testimony is not reproduced herein. It is recorded in the mimeographed
transcript, 18–21 March 1947, pp. 562–826.
[180] The first mentioned law is reproduced in full on page 167, and
the second in part on page 172.
[181] This document is the Second Law concerning the transfer of
administration of justice to the Reich, dated 5 December 1934. Extracts
from this law are reproduced as a part of Doc. NG-715, Pros. Ex. 112,
on p. 172.
[182] Higher officials belong to the top group of German Civil
Servants. See table on German Civil Service Ranks in the appendix.
[183] Reproduced below in section V F.
[184] Extracts from the testimony of Father Schosser are reproduced
below in section V F. Further testimony of defendant Schlegelberger,
dealing with treatment of Jews, is also reproduced below, section V D 2.
[185] This order was printed in _German Justice_ (Deutsche
Justiz), 1934, 96th year, pp. 341 ff.
[186] In the IMT trial, this document was identified as Document
3751-PS and introduced in evidence as Exhibit USA-828.
[187] Wilhelm Frick was one of the defendants sentenced to death by
the International Military Tribunal. Concerning Frick’s relation to
concentration camps, the IMT stated, “From the many complaints he
received, and from the testimony of witnesses, the Tribunal concludes
that he knew of atrocities committed in these camps.” (Trial of the
Major War Criminals, op. cit., vol. I, p. 300.)
[188] The enclosure was not offered in evidence.
[189] This document was taken from “General Collection of Regulations,”
a secret publication of the Reich Security Main Office (RSHA) compiling
numerous regulations of concern to the various police agencies.
[190] The introductory paragraphs of this regulation were omitted from
the document as introduced in evidence by the defense. These paragraphs
read as follows:
“The following regulations regarding protective custody go into effect
on 1 February 1938. At the same time, the following are rescinded:
“a. My decree of 12 April 1934--I 3311 A/28.2 along with the supplement
of 26 April 1934 and 10 July 1934 (directed to governments of the
states and to the Reichstatthalters).
“b. My decree of 12 April 1935--VI B 757A/3014 along with the
supplementary decree of 1 June 1935 VI B 11568/3014 (directed to the
governments of the states, Reichstatthalters, Prussian presidents of
government districts).
“c. My decree of 17 June 1935--III P 3311/329 (directed to the state
government and the Reichstatthalter).
“d. The decree of office of Secret State Police of 3 July 1934--B Nr.
19582 II I D (directed to the presidents of the Prussian government
districts).
“e. The decree of the Political Police Commander of the Lands of 9
September 1935--B. Nr. 37840/35 II I D (directed to the political
police of the states and the Prussian State police offices).”
[191] Although the term Generalstaatsanwalt may be translated literally
as state chief attorney, the term was ordinarily translated at the
trial as “attorney general” or “chief public prosecutor.” Similarly,
Staatsanwalt has ordinarily been translated as “attorney general” or
“public prosecutor.”
[192] Defense counsel often reproduced in their document books
documents which had previously been introduced as prosecution exhibits,
and in these cases the document ordinarily acquired both a prosecution
and a defense exhibit number.
[193] Document reproduced immediately above reports on two meetings of
this conference.
[194] Document is not signed.
[195] The reference is to the widespread acts of violence against Jews
during this time, a period often referred to as “Crystal Week” because
of the large number of windows in Jewish stores which were broken.
[196] Further parts of this report, dealing with the question of “race
pollution” and the treatment of Jews, are reproduced below in section V
D 2.
[197] The exact status of the enclosures mentioned is not known.
Since the letter itself was only a draft, the marginal notes of which
indicate that it was submitted to Dr. Guertner’s consideration more
than once, it is not clear whether the original list mentioned was
initially compiled and then substituted by a completely new list, or
whether the list compiled initially was merely revised by new additions
as time passed. However, it should be pointed out that the list
reproduced below, and which was submitted as part of the file as found
by Allied authorities, contains entries as late as 30 January 1940. It
should also be noted that the three cases specifically mentioned in the
draft letter of 30 November 1939 (Latacz, Jacobs, and Gluth) are all
cases mentioned in the following list.
[198] The initials indicate that Dr. Crohne, a department chief in the
Reich Ministry of Justice, proposed this draft or, in any event saw it
before it was shown to Reich Minister Guertner. Dr. Crohne was chief,
first of Department III, and later of Department IV, in the Reich
Ministry of Justice.
[199] Concerning this list, see footnote on preceding page.
[200] Otto Meissner was Chief of the Presidential Chancellery of the
Fuehrer and Reich Chancellor. He was a defendant in Case 11, United
States _vs._ Ernst von Weizsaecker et al. See volumes XII-XIV,
this series.
[201] Concerning the relation of the extermination program to
transfers of certain groups to the Reich Leader SS, two documents
written by Thierack, Reich Minister of Justice, are especially
enlightening--Thierack’s memorandum concerning his conference with
Himmler and others on 18 September 1942, which mentions “special
treatment” (654-PS, Pros. Ex. 39), reproduced below in section V C 3 a;
Thierack’s letter of 13 October 1942 to Bormann, which mentions “the
extermination of members of these nationalities,” referring to Poles,
Russians, Jews, and gypsies (NG-558, Pros. Ex. 143), reproduced below
in section V D 2.
[202] See related documents in section V D, below, concerning the
treatment of Poles, Jews, and others.
[203] Other extracts from the testimony of defendant Schlegelberger are
reproduced above in section IV E, and below in sections V C 2a, V D 2,
V D 3, V E.
[204] Reproduced earlier in this section.
[205] Reproduced below in section VC2a.
[206] Article 340 of the Reich Criminal (Penal) Code provides as
follows: “An Official who in the exercise of or in connection with the
exercise of his office intentionally commits or causes to be committed
a bodily injury shall be punished by imprisonment for not less than 3
months. If there are extenuating circumstances, the punishment may be
reduced to 1 day imprisonment or to a fine.
“If the bodily injury is serious, confinement in a penitentiary for
not less than 2 years shall be imposed. If there are extenuating
circumstances, the punishment shall be imprisonment for not less than 3
months.” (Taken from Klemm Doc. 26, Klemm Ex. 26.)
[207] Highest court in Berlin.
[208] The enclosure is reproduced following this letter.
[209] Here follow the names, followed by initials, of 23 department
chiefs and assistants, including the names of defendants Klemm and
Mettgenberg.
[210] Both directives were taken from “Ordinances, Regulations,
Announcements,” pages 377 and 378, issued by the Chancellery of the
Nazi Party and published by the Central Publishing Office of the NSDAP,
Frz. Eher Successor, G.m.b.H., Munich.
[211] Concerning the later establishment of special jurisdiction in
criminal proceedings against members of the SS and members of police
formations on special tasks, see the decree of 17 December 1939, (Klemm
Doc. 29, Klemm Ex. 29), reproduced above in section IV B.
[212] Stahlhelm (Steel Helmet), an organization of German Veterans of
World War I.
[213] Rudolf Hess, one of the defendants before the International
Military Tribunal. See Trial of the Major War Criminals, op. cit.,
volumes I-XLII.
[214] Complete testimony is recorded in the mimeographed transcript, 30
April, 1 May 1947, pages 2884–2938.
[215] Otto Ohlendorf, defendant in the Einsatzgruppen Case, United
States _vs._ Otto Ohlendorf, et al., Case 9, volume IV, this
series.
[216] “Decree concerning the administration of Penal Justice against
Poles and Jews in the Incorporated Eastern Territories” of 4 December
1941. It is reproduced below as a part of NG-715, Prosecution Exhibit
112, page 632.
[217] The opinion and judgment in the Katzenberger case, one of the
trials in which defendant Rothaug was presiding judge, is reproduced
below in section D 2, (NG-154, Pros. Ex. 152).
[218] Reference is made to cases under the “Law on Insidious Acts
Against State and Party and for the Protection of Party Uniforms,” 20
Dec. 1934, (1393-PS, Pros. Ex. 508), reproduced above in section IV B.
[219] The role of the Party Chancellery in connection with legal
matters is discussed in the extracts from the testimony of defendant
Klemm reproduced below in section V D 2.
[220] Further extracts from the testimony of the defendant Klemm
are reproduced below in sections V C 3, V D 2, and V F. His entire
testimony is recorded in the mimeographed transcript, 3, 7, 8, 10,
11, 14, 15 July and 23 September 1947, pages 4784–4822; 4891–5025;
5027–5090; 5094–5199; 9383–9396.
[221] The defendant Klemm held a number of different official positions
during the Hitler regime, the last of which was Under Secretary in the
Reich Ministry of Justice. Extracts from his testimony reproduced later
in this volume deal with his activities during periods when he held
other positions.
[222] Reproduced earlier in this section.
[223] Further extracts from the testimony of the defendant Rothenberger
are reproduced below in sections C 2 b, C 3 a and D 2. Rothenberger’s
entire testimony appears in the mimeographed transcript, 16–18, 21,
and 22 July, 24 September 1947, pages 5324–5381; 5400–5484; 5495–5581;
9438–9478; 9512–9515.
[224] In the preceding part of his direct examination, defendant
Rothenberger testified that he had previously held the following
positions, among others: judge from 1925–1927; government counselor
(Regierungsrat and subsequently Oberregierungsrat) in the justice
administration of Hamburg from 1927–1930; and district court director
in Hamburg after 1931 (tr. 5327–5331).
[225] Later Governor General of German occupied Poland. Frank was tried
and sentenced to death by the International Military Tribunal. Thierack
later succeeded Frank as leader of the NSRB, and in 1944, Thierack
appointed the defendant Klemm as his deputy in this organization.
[226] This is a report of a conference on 22 August 1939 between
defendant Rothenberger and the SD chief in Hamburg. It is reproduced
earlier in this section.
[227] Further extracts from the testimony of defendant Rothaug are
reproduced later in this section and in sections V D 2, V E, and V F.
Complete testimony is recorded in the mimeographed transcript, 11–14,
18–22, 25, and 26 August 1947, pages 6754–6917, 6928–7016, 7179–7395,
7406–7470, 7474–7636, 7640–7648.
[228] Extracts from the testimony of the prosecution witness Elkar are
reproduced earlier in this section.
[229] Testimony of Dr. Karl Ferber, a prosecution witness, is not
reproduced herein.
[230] Doebig was a prosecution witness. His testimony is recorded in
the mimeographed transcript 9, 10 August 1947, pages 1750–1872.
[231] In German legal terminology a judgment or an interlocutory ruling
is described as “rechtskraeftig” if all regular means of opposing
or altering it (by such means as objection and appeal) have been
exhausted, or if the period of time within which objection or appeal
can be taken has lapsed. The term “rechtskraeftig” in this trial,
Justice Case, was usually translated as “final.”
[232] Further extracts from the testimony of the defendant Lautz are
reproduced below in section V E. His entire testimony is recorded in
the mimeographed transcript (23, 24, 25, 28 July 1947, pages 5761–5775,
5781–6054).
[233] Concerning the purpose of the extraordinary objection, the
defendant Schlegelberger stated the following in a letter to Hitler
on 6 May 1942: “In order to accelerate the setting aside of such
decisions [judgments not accomplishing the unrelenting punishment of
criminals], you, my Fuehrer, created the extraordinary objection to the
Reich Supreme Court. With the help of this legal resource the judgment
against Schlitt, which you mentioned in the session of the Reichstag,
was quashed within 10 days by sentence of the Reich Supreme Court.
Schlitt was sentenced to death and executed at once.” (See Doc. NG-102,
Pros. Ex. 75, reproduced in sec. V C 2 a.)
[234] Dr. Escher acted as a defense lawyer for a number of accused
persons during the Nazi regime and executed a number of affidavits
concerning his experiences which were introduced as exhibits by the
prosecution. Extracts from Dr. Escher’s cross-examination concerning
his affidavit on the nullity plea appear immediately below.
[235] This decree is reproduced in part immediately above.
[236] Complete testimony is recorded in mimeographed transcript 23 May
1947, pages 3628–3641.
[237] Reproduced in part just above.
[238] Tr. 6885–6886, (12 Aug 1947). Further extracts from the testimony
of defendant Rothaug are reproduced earlier in this section, and below
in sections V D 2, V E, and V F.
[239] The letter to Hitler is reproduced immediately above.
[240] 1940 appears in the original, but obviously 1941 was intended.
[241] Testimony of defendant Schlegelberger concerning this document
(Tr. p. 4462) is reproduced above in section V B where Schlegelberger
discusses the question of the transfer of persons to the Gestapo.
[242] The newspaper clipping is reproduced on following page.
[243] Schaub was Hitler’s adjutant.
[244] Extracts from this document were also submitted as Document
Petersen 2, Petersen Exhibit 5.
[245] This extract is taken from the speech as reported in the
“Voelkischer Beobachter,” South German Edition, page 3, for 27 April
1942.
[246] In a unanimous decision on the same day as this speech, the
Reichstag granted Hitler power to take action “without being bound
by existing legal regulations” and “regardless of so-called well
established right.” The Reichstag decision is reproduced on page 204 as
a part of Document NG-715, Prosecution Exhibit 112.
[247] Excerpts from parts of this correspondence not reproduced in this
exhibit are quoted in the extracts from Schlegelberger’s testimony
reproduced at the end of this section.
[248] Pertinent parts of Hitler’s speech are contained in Document
NG-752, Prosecution Exhibit 24, reproduced immediately above.
[249] See section V C 1 b, “New devices to change final court
decisions--extraordinary objection and nullity plea,” for further
information concerning this subject.
[250] Not reproduced herein. This letter transmitted Schlegelberger’s
letter to Hitler and the decree on right of confirmation, both
reproduced immediately above.
[251] The decision of the Greater German Reichstag, 26 April 1942,
promulgating Hitler’s authority to act “without being bound by existing
law,” is reproduced as part of Document NG-715, Prosecution Exhibit
112, on page 204.
[252] On 26 April 1942, Hitler made a speech to the Reichstag, which
discussed, among other things, the role of persons concerned with the
administration of justice. Extracts from this speech (NG-752, Pros. Ex.
24) are reproduced earlier in this section. Concerning Hitler’s speech,
see also the letter of 7 July 1942 from the President of the Court of
Appeal in Hamm to the defendant Schlegelberger (NG-395, Pros. Ex. 74)
reproduced later in this section.
[253] Concerning the treatment of so-called “asocial elements,” see
Thierack’s memorandum on decisions made in conference with Himmler on
18 September 1942 (654-PS, Pros. Ex. 39), reproduced in section V C 3
a, and Crohne’s notes on a conference of 9 October 1942 (662-PS, Pros.
Ex. 263), reproduced in section V D 2.
[254] Numerous persons have stated that Hitler died in the air-raid
shelters under the garden of the Reich Chancellery just before
Germany’s unconditional surrender to the Allies in 1945.
[255] Thierack became Reich Minister of Justice in August 1942. From
March 1941 until Thierack’s appointment, the defendant Schlegelberger
had been Acting Reich Minister of Justice.
[256] Further extracts from the testimony of defendant Schlegelberger
are reproduced above in sections IV E and V B, and below in sections V
D 2, V D 3 and V E.
[257] These documents are reproduced in this section with the exception
of Document NG-505, Prosecution Exhibit 71, which is reproduced below
in section V D 2. It is a letter signed by defendant Schlegelberger
concerning “mild sentences against Poles,” dated 24 July 1941.
[258] Reproduced above in this section.
[259] For testimony of defendant Schlegelberger on the general question
of transfer of persons to the police, see extracts from his testimony
reproduced in section V B.
[260] Not to be mistaken for Martin Bormann, chief of the Party
Chancellery, whose name appears in a number of the contemporaneous
documents reproduced herein.
[261] Cf. Rothenberger’s “Reflections on a National Socialist Judicial
Reform,” Document NG-075, Prosecution Exhibit 27, reproduced above.
[262] Not to be confused with The Enabling Act of 24 March 1933
reproduced on page 163 (Doc. NG-715, Pros. Ex. 112).
[263] Other extracts from the testimony of the defendant Rothenberger
appear in sections V C 1 a, V C 3 a and V D 2.
[264] Reproduced earlier in this section.
[265] See the extracts from the testimony of defendant Rothenberger
reproduced in section V C 1 a.
[266] Earlier in his direct examination the defendant Rothenberger
had testified--“In 1929 I was in England for about 8 months. There
I studied the organization and structure of the English courts, the
position of the English judges, the positions of the masters and the
registrars, and the relations of the barristers and solicitors to the
court. I studied these in detail. I worked at the high court of justice
with a barrister and with a solicitor. * * *” (Tr. p. 5331).
[267] Reproduced in section C 2 b, above.
[268] Reference is made to Rothenberger’s “Reflections on a National
Socialist Judicial Reform,” (Doc. NG-075, Pros. Ex. 27), reproduced at
the beginning of this section.
[269] Extracts from this speech as reported in the “Voelkischer
Beobachter” are reproduced in section V C 2 a (Doc. NG-752, Pros. Ex.
24).
[270] Reich Minister Thierack’s minutes concerning this conference are
reproduced immediately below (Doc. 654-PS, Pros. Ex. 39).
[271] See the testimony of defendant Rothenberger concerning this
notation and Thierack’s minutes of the meeting, reproduced later in
this section.
[272] Thierack wrote a letter to Bormann on this subject on 13
October 1942, entitled “Administration of Criminal Justice against
Poles, Russians, Jews, and Gypsies.” (See Doc. NG-558, Pros. Ex. 143,
reproduced in section V D 2.)
[273] Kuemmerlein was Thierack’s adjutant.
[274] SS General Otto Ohlendorf was commanding officer of Einsatzgruppe
D, one of the special task forces assigned to exterminate “undesirable
elements” in the East. He was also chief of Office III of the Reich
Security Main Office (RSHA) from 1939–1943. Ohlendorf and a number of
his codefendants were sentenced to death in the Einsatzgruppen Case
(United States _vs._ Otto Ohlendorf, et al., Case 9, vol. IV, this
series).
[275] This document is referred to in the testimony of defendant
Schlegelberger, reproduced in section IV E.
[276] The IMT in its judgment found Gauleiter to be within the group
of persons of the Leadership Corps of the Nazi Party declared by the
Tribunal to be criminal. See Trial of the Major War Criminals, op.
cit., volume I, pages 257–262.
[277] Further extracts from the testimony of defendant Rothenberger are
reproduced in sections V C 1 a, V C 2 b, and V D 2.
[278] Document NG-059, Prosecution Exhibit 38, and Document 654-PS,
Prosecution Exhibit 39, are reproduced above in this section.
[279] Reference is made to Rothenberger’s “Reflections on a National
Socialist Judicial Reform,” (NG-075, Pros. Ex. 27), reproduced at the
beginning of section V C 2 b.
[280] Reproduced in section V C 2 a. It is a situation report of 4 July
1941 from defendant Rothenberger to defendant Schlegelberger.
[281] Document 654-PS, Prosecution Exhibit 39, reproduced earlier in
this section.
[282] Prosecution Exhibit 38, the first document reproduced in this
section.
[283] Document 648-PS, Prosecution Exhibit 264, reproduced in section V
B.
[284] Document 701-PS, Prosecution Exhibit 268, reproduced in section V
B.
[285] Document NG-558, Prosecution Exhibit 143, reproduced in section V
D 2.
[286] This section of the document discusses the interpretation of the
“Decree against Public Enemies,” 5 September 1939, reproduced as a part
of Document NG-715, Prosecution Exhibit 112, on page 188.
[287] This announcement was taken from “Ordinances, Regulations,
Directives,” 1942, (vol. II, p. 377 ff.), issued by the Nazi Party
Chancellery and published by the Central Publishing Office of the
NSDAP, Frz. Eher Successor, G.m.b.H., Munich.
[288] The technical German term for this type of letter was
“Lenkungsbrief” (“guidance letter” or “directing letter”). They
differed from the “Judges’ Letters” of Thierack insofar as they were
not circulated generally but rather addressed to specific courts. See
the extracts from the testimony of defendant Klemm reproduced later in
this section for discussion of these letters.
[289] A list of 28 more cases follows.
[290] This is the abbreviated designation for the “Decree concerning
special criminal law in time of war and special emergency,” signed on
17 August 1938 but not promulgated until 26 August 1939. The pertinent
provisions of article 5 of this law, which define the crime of
“undermining the German military efficiency” are reproduced as a part
of Document NG-715, Prosecution Exhibit 112, on page 184.
[291] Further extracts from the testimony of defendant Klemm are
reproduced in sections V C 1 a, V C 3 d, V D 2, and V F.
[292] Klemm and his counsel divided Klemm’s direct examination
principally into four phases of activity during the Hitler regime.
Klemm testified that the first phase included two different
assignments. From 1933 until March 1935, he was personal Referent and
adjutant to Thierack who was at that time, Minister of Justice for
Saxony. From March 1935 until he was conscripted as a soldier, Klemm
testified that he was an official in Department III (later Department
IV) of the Reich Ministry of Justice in Berlin. He testified that here
he reached the rank of ministerial counsellor and acted as liaison
officer between the Ministry and the supreme leadership of the SA
(Storm Troops) of the Nazi Party. The second phase, Klemm testified,
was an assignment on the staff of the German civilian administration
in the Netherlands from July 1940 to March 1941, where he introduced
German penal administration for German citizens in Holland and acted
as liaison between Reich Commissioner Seyss-Inquart and the Dutch
administration of justice. Klemm testified that the third phase was
from 17 March 1941 to January 1944. During this period he was on the
staff of the deputy of the Fuehrer (Rudolf Hess, until Hess flew to
Scotland on 10 May 1941) and then on the staff of the Party Chancellery
(which was created with Martin Bormann as its chief after Hess’ flight
to England). Here Klemm was the chief of Group III-C, administration of
justice, of the Party Chancellery. (See Klemm’s testimony reproduced in
section V D 2.) Klemm testified that the fourth and last phase began
when in January 1944, Thierack, at that time Reich Minister of Justice,
had him appointed Under Secretary in the Reich Ministry of Justice
as successor to defendant Rothenberger. (See the extracts from the
testimony of defendant Rothenberger reproduced in section V C 3 a.) In
1944 and early 1945, Klemm resided in Thierack’s house in Berlin.
[293] This is a Judge’s Letter, issued for March and April 1944. It was
entitled “Plunderers and public enemies during air raids,” and contains
26 case histories with comments by the Reich Minister of Justice. It is
not reproduced herein.
[294] Guidance letters of 5 July 1944 and of 1 March 1945 reproduced
earlier in this section.
[295] Mr. LaFollette, Deputy Chief Counsel, stated the following
concerning the prosecution’s purpose in offering this document in
evidence: “I briefly stated this morning with reference to the other
brief [Judges’ Letters] and to this brief [Lawyers’ Letter] that the
prosecution offers them as evidence for the purpose of showing that
there was a direct controlled judiciary and bar. We are not offering
these documents as evidence of any particular act contained therein,
but since we offer them, we are to some extent bound by them and our
purpose of offering them is to prove there was a connection” (Tr. p.
412). Mr. LaFollette also stated that this was the only Lawyers’ Letter
known to the prosecution.
[296] General Warlimont was convicted for his participation in the
“Terror Flier” program in the High Command Case, United States vs.
Wilhelm von Leeb, et al., Case 12, volumes X and XI. Extracts from his
testimony on this question are reproduced in section VII C 5, volume X,
this series.
[297] Kaltenbrunner was appointed chief of the Security Police and SD
and head of the Reich Security Main Office (RSHA) on 30 January 1943.
He was sentenced to death by the International Military Tribunal. See
Trial of the Major War Criminals, op. cit., volume I, page 365.
[298] Karl Ritter was ambassador for special assignments in the
German Foreign Office from 1939–1945, and liaison officer between
von Ribbentrop, the Foreign Minister, and Keitel, the Chief of the
High Command of the Armed Forces (OKW). Ritter was a defendant in the
Ministries Case, United States _vs._ Ernst von Weizsaecker, et
al., Case 11, volumes XII-XIV, this series.
[299] “Special treatment by the SD” generally meant killing of
the persons in question by the Security Service. This subject is
extensively treated in the High Command Case, United States _vs._
Wilhelm von Leeb, et al., Case 12, volumes X and XI, this series.
[300] Concerning the scope of the physical distribution of this
circular, see the discussion in the judgment of the IMT concerning “The
Leadership Corps of the Nazi Party.” Under the heading “Structure and
component parts,” the IMT stated that “The Kreisleiter were the lowest
members of the Party hierarchy who were full-time paid employees”
(Trial of the Major War Criminals, op. cit., vol. I, p. 257).
[301] Helmuth Friedrichs, Chief of the Division II, the party-political
division, of the Nazi Party Chancellery.
[302] The circular letter, Document NG-364, Prosecution Exhibit 108, is
reproduced above in this section.
[303] Complete testimony is recorded in the mimeographed transcript, 22
September 1947, pages 9302–9315.
[304] The actual directive of Thierack was not found or introduced in
evidence. However, see Thierack’s handwritten note on Document 635-PS,
Prosecution Exhibit 109, reproduced immediately above.
[305] Ludwig Kluettgen was tried and sentenced to death by a General
Military Government Court at Dachau, Germany, 11 and 12 August 1947.
His execution was carried out on 29 October 1948.
[306] Further extracts from the testimony of the defendant Klemm are
reproduced above in sections V C 1 a and V C 3 b, and below in sections
V D 2 and V F.
[307] These documents are reproduced earlier in this section.
[308] At the time the defendant Klemm was Under Secretary in the Reich
Ministry of Justice.
[309] See Klemm Document 68a, Klemm Exhibit 68a, the first document
reproduced in this section.
[310] Translation of entire document appears in Nazi Conspiracy and
Aggression, (U.S. Government Printing Office, Washington, 1946) volume
IV, pages 186–189.
[311] These documents are reproduced above in this section.
[312] The first part of this report on the conference is reproduced in
section B. It dealt with attacks on judicial actions in the official
SS magazine and questions of prosecuting those who committed criminal
offenses during the widespread violence against Jews during “Crystal
Week,” 9–11 November 1938.
[313] Document is not signed.
[314] Paragraph (5) is not included in original document.
[315] This ordinance was promulgated in the 1938 Reichsgesetzblatt,
part I, page 1044. It provided that beginning 1 January 1939, male Jews
must add “Israel” and female Jews “Sara” as their first or middle names
unless they already used such names. This provision applied to all
German Jews but not to Jews in Austria or Jews of foreign nationality.
The aim was to identify Jewish persons as Jews by their names.
[316] At this time the Reich Minister of the Interior was Frick and
the Fuehrer’s Deputy was Hess. Both were tried in Nuernberg before the
International Military Tribunal.
[317] Only the third draft (_c_) is reproduced herein.
[318] The text of the decree of 21 March 1933 is reproduced on page 218.
[319] Document 1393-PS, Prosecution Exhibit 508, reproduced above in
section IV B.
[320] Reproduced in part as a part of Document NG-715, Prosecution
Exhibit 112, on page 182.
[321] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 185.
[322] Ibid., p. 187.
[323] Ibid., p. 188.
[324] Reproduced in part as a part of Doc. NG-715, Pros. Ex. 112, on p.
192.
[325] Ibid., p. 193.
[326] Reproduced as a part of Doc. NG-715, Pros. Ex. 112, on p. 218.
[327] Part of the background of this decree is shown by the letter of
defendant Schlegelberger to the Reich Minister of the Interior and to
the Fuehrer’s deputy of 3 February 1940, which transmitted a proposed
draft for this decree (NG-880, Pros. Ex. 459) reproduced in part
earlier in this section.
[328] Articles I and III of this decree were omitted from the document
as offered in evidence by defense counsel. Article I is entitled,
“Introduction of Reich Legal Regulations” and lists a large number of
Reich laws most of which are contained in article 1 of the proposed
draft of the Reich Ministry of Justice (NG-880, Pros. Ex. 459)
reproduced in part earlier in this section.
[329] Document Schlegelberger 60, Schlegelberger Exhibit 26, reproduced
in part earlier in this section.
[330] Schlegelberger’s draft (NG-331, Pros. Ex. 343) is reproduced
following this letter.
[331] Defendant Schlegelberger testified concerning this document and
his draft of a proposed ordinance (NG-331, Pros. Ex. 343, immediately
following). The pertinent extracts from Schlegelberger’s testimony are
reproduced near the end of this section. The decree ultimately issued
by the Ministerial Council for the Defense of the Reich was dated 4
December 1941. It is reproduced on page 632.
[332] The transmittal letter from Schlegelberger to Lammers (NG-144,
Pros. Ex. 199) appears immediately above. File notes of the Reich
Chancellery concerning Schlegelberger’s draft (NG-130, Pros. Ex. 200)
are reproduced just below.
[333] Document Schlegelberger 60, Schlegelberger Ex. 26, reproduced
earlier in this section.
[334] This draft by defendant Schlegelberger (NG-331, Pros. Ex. 343) is
reproduced immediately above.
[335] Schlegelberger’s explanatory letter of 17 April 1941 (NG-144,
Pros. Ex. 199) is reproduced above in this section.
[336] Hans Frank, Governor General of Poland, was a defendant before
the International Military Tribunal. See Trial of the Major War
Criminals, op. cit., volumes I-XLII.
[337] Words denoting colors are explained in the testimony of defendant
Klemm on pp. 589 ff.
[338] Document NG-144, Prosecution Exhibit 199, reproduced earlier in
this section.
[339] The enclosure was not a part of this document as offered in
evidence.
[340] The text of the Reich Citizenship Law is reproduced on page 180.
[341] Id.
[342] Document Schlegelberger 60, Schlegelberger Exhibit 26, reproduced
in part above in this section.
[343] Stuckart was a defendant in the Ministries Case (United States
_vs._ Ernst von Weizsaecker, et al., Vols. XII-XIV, this series).
[344] On the same day, 31 May 1941, the three persons signing this
decree also signed a “second decree for the execution of the Law
for the Protection of German Blood and Honor,” which is reproduced
immediately below.
[345] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 188.
[346] This circular letter was discussed during the direct examination
of defendant Schlegelberger in connection with a number of other
documents reproduced above in section C 2 a.
[347] A supplementary decree of 31 January 1942, signed by defendant
Schlegelberger and Dr. Pfundner of the Reich Ministry of Interior, is
reproduced later in this section (NG-665, Pros. Ex. 346).
[348] Document Schlegelberger 60, Schlegelberger Exhibit 26, reproduced
earlier in this section.
[349] This article was published in the periodical “German Justice
[Deutsche Justiz], Administration of Justice and Judicial Policy,”
104th year, Edition A, Number 2, Berlin, 9 January 1942, (p. 25 ff.).
[350] Proceedings started by the injured in order to force the public
prosecutor to lodge an indictment.
[351] This decree is reproduced as a part of Document NG-715,
Prosecution Exhibit 112, on page 632.
[352] Under German law, “Armenrecht,” or the benefits of the _forma
pauperis_, are to be granted to plaintiffs or defendants who are
destitute. The benefits consist, principally, of the exemption from
court fees and the assignment of an _ex officio_ lawyer, free of
cost, where representation by counsel is required by law.
[353] Of the seven persons to whose attention the copies of this letter
were sent, two were tried in Nuernberg--Dr. Stuckart in the Ministries
Case (United States _vs._ Ernst von Weizsaecker, et al., vols.
XII-XIV, this series); and SS General Hofmann in the RuSHA Case (United
States _vs._ Ulrich Greifelt, et al., vols. IV-V, this series).
The activities of Luther, Under Secretary in the Foreign Office, were
often brought into issue in the Ministries Case.
[354] First degree presumably those with two non-Aryan grandparents and
second degree with only one.
[355] Julius Streicher, editor of “Der Stuermer” and Gauleiter of
Franconia, the province in which Nuernberg is located, was sentenced to
death by the International Military Tribunal.
[356] This is one of a number of opinions and sentences by
extraordinary German courts which were received in evidence. In some of
these cases one of the defendants sat as presiding judge or as a member
of the court. In some the defendant Lautz or one of his representatives
acted as prosecutor. For an opinion and sentence of the Nuernberg
Special Court in which the defendant Oeschey presided, see the Kaminska
case, decided on 29 October 1943 (NG-457, Pros. Ex. 201), reproduced
later in this section.
[357] “Law for the Protection of German Blood and Honor,” 15 September
1935, one of the two original Nuernberg laws, is reproduced on page 180
(NG-715, Pros. Ex. 112).
[358] See Document NG-129, Prosecution Exhibit 355, reproduced
immediately above.
[359] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 632.
[360] This supplementary decree, signed by defendant Schlegelberger and
Dr. Pfundner, is reproduced earlier in this section (NG-665, Pros. Ex.
346).
[361] In discussing this subject with Himmler, the Reich Leader SS, on
18 September 1942, Thierack used the words “special treatment at the
hands of the police,” and “delivery of asocial elements * * * to the
Reich Leader SS to be worked to death.” See Thierack’s memorandum of
his conference with Himmler, Document 654-PS, Prosecution Exhibit 39,
reproduced in section V C 3 a.
[362] Not counting the small number of sentences on the basis of former
Polish, Austrian, or Czech law, as well as the decrees of the Reich
Protector of Bohemia and Moravia.
[363] Not reproduced herein.
[364] Reproduced at the end of this document.
[365] It will be noted that the statistics do not include persons
_outside_ the Greater German Reich, for example, in the Government
General.
[366] Including dual punishment. Compare also annotation 1 of chart 1.
[Chart 1 is not reproduced herein.]
[367] Sentenced by virtue of the Penal Ordinance for Poles, dated 12
April 1941.
[368] Selections from the correspondence of various Reich authorities
concerning the drafting of this law are reproduced immediately below in
Document NG-151, Prosecution Exhibit 204.
[369] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 632.
[370] The thirteenth regulation under the Reich Citizenship Law, dated
1 July 1943 (NG-715, Pros. Ex. 112), is reproduced immediately above.
[371] The German word “Rechtsmittel” is a technical term, meaning
“writs” (such as writ of appeal, writ of certiorari, writ asking
for a revision) which aims at changing a decision of a court, be
it a judgment or an interlocutory ruling. In the present case, the
term “Rechtsmittel” was usually translated, “legal rights” or “legal
remedies.”
[372] The letter of 12 August 1942, with enclosed draft, of the
Goebbels ministry, was not a part of the document introduced in
evidence.
[373] This letter is reproduced immediately below.
[374] By this time, measures for the “final solution” of the Jewish
question were well under way. See, for example, the following
contemporaneous documents reproduced earlier in this volume: 654-PS,
Prosecution Exhibit 39 (sec. V C 3 a); 648-PS, Prosecution Exhibit 264
(sec. V B); and NG-558, Prosecution Exhibit 143, reproduced previously
in this section. See also the materials contained in the volumes on the
Pohl Case, United States _vs._ Oswald Pohl, et al., Volume V, this
series, and the Ministries Case, United States _vs._ Ernst von
Weizsaecker, et al., Volumes XII-XIV, this series.
[375] The decree of 5 August 1943 was not with the copy of the document
introduced in evidence.
[376] Dr. Vollmer was a Ministerialdirektor in the Reich Ministry
of Justice and chief of division IV--penal jurisdiction and penal
legislation.
[377] For an opinion and judgment of the Nuernberg Special Court, with
defendant Rothaug presiding, see Document NG-154, Prosecution Exhibit
152, reproduced earlier in this section.
[378] The testimony of defendant Oeschey concerning this case is
reproduced subsequently in this section.
[379] Dr. Franz Gros was called as a prosecution witness concerning
this case. His testimony, none of which is reproduced herein, is
recorded in the mimeographed transcript (30 April 1947), pages
2826–2882.
[380] Dr. Theodor Pfaff was called as a prosecution witness concerning
this case. His testimony, none of which is reproduced herein, is
recorded in the mimeographed transcript (27 May 1947), pages 3642–3650.
[381] The words which appear italicized and in parentheses were crossed
out in the original.
[382] The proposed insert appears at the end of the document.
[383] Further extracts from the testimony of the defendant
Schlegelberger are reproduced above in sections IV E, V B, and V C 2 a;
and below in sections V D 3 and V E.
[384] The reference is to the “Decree concerning the Administration
of Penal Justice against Poles and Jews in the Incorporated Eastern
Territories,” reproduced on page 632 (NG-715, Pros. Ex. 112).
[385] Document NG-219, Prosecution Exhibit 42, reproduced above in
section C 3 a.
[386] Document Schlegelberger 79, Schlegelberger Exhibit 72, was a
law of 25 March 1939 amending the German Civil Service Law. Document
Schlegelberger 80, Schlegelberger Exhibit 73, was the third law
amending the German Civil Service Law of 21 October 1941, neither of
which are reproduced.
[387] Reproduced earlier in this subsection.
[388] For contemporaneous documents concerning labor camps in
German-occupied Poland, see the Pohl Case, United States _vs._
Oswald Pohl, et al., Volume V, this series.
[389] Document NG-151, Prosecution Exhibit 204 is reproduced previously
in this section.
[390] Schlegelberger refers to his letter of 13 August 1942 to the
Reich Minister of Public Enlightenment and Propaganda, Dr. Goebbels,
making specific proposals for the wording of the decree. This letter is
reproduced earlier in this section as part of a lengthy correspondence
on the matter (Doc. NG-151, Pros. Ex. 204).
[391] Schlegelberger refers to decisions taken by Thierack after
consultations with Reich Leader SS Himmler on 18 September 1942. See
Thierack’s own memorandum of this conference (654-PS, Pros. Ex. 39)
reproduced in section C 3 a, and Thierack’s letter to Bormann of 13
October 1942 (NG-558, Pros. Ex. 143) reproduced earlier in this section.
[392] Reproduced earlier in this section.
[393] The reference is to a provision in German law whereby a person
who has been granted the benefits of the _forma pauperis_ but who,
later on, ceases to be poor, must pay the court and lawyer’s fees from
which he had been exempted.
[394] Document NG-880, Prosecution Exhibit 459, is reproduced earlier
in this section.
[395] Document Schlegelberger 60, later received in evidence as
Schlegelberger Defense Exhibit 26, is reproduced earlier in this
section.
[396] Here defense counsel makes two erroneous references, as both
the contemporaneous documents and Schlegelberger’s ensuing testimony
show. The pertinent penal ordinance concerning Poles and Jews was
promulgated on 4 December 1941, and it was introduced in evidence
as part of Document NG-715, Prosecution Exhibit 112, reproduced on
page 632. On the other hand, Prosecution Exhibit 343, which defense
counsel mentions, is a draft for a penal ordinance on Poles and Jews
by defendant Schlegelberger. He transmitted this draft to the Reich
Chancellery on 17 April 1941 with a long letter of explanation (NG-144,
Pros. Ex. 199). Both the transmittal letter by Schlegelberger and the
proposed draft are reproduced earlier in this section, and both are
discussed in the following testimony by the defendant.
[397] Document NG-227, Prosecution Exhibit 341, is not reproduced
herein. It contains, among other items, a note prepared in the Reich
Ministry of Justice, dated 26 November 1940, stating that “the Deputy
of the Fuehrer [Rudolf Hess] thinks it best to rescind the application
of the German Penal Code in the new eastern provinces and to create a
penal code a special dominating principle of which must be to deter
by fear and there must be a possibility of pronouncing a sentence of
corporal punishment. The law of criminal procedure must not allow for
obstruction; here the deputy of the Fuehrer is in favor of police
courts martial rather than law courts.”
[398] This draft (NG-331, Pros. Ex. 343) is reproduced earlier in
this section just following Schlegelberger’s letter of 17 April 1941
(NG-144, Pros. Ex. 199) transmitting the draft to Lammers, Chief of the
Reich Chancellery.
[399] Document NG-144, Prosecution Exhibit 199, dated 17 April 1941,
reproduced earlier in this section.
[400] Decree concerning the administration of penal justice against
Poles and Jews, 4 December 1941 (NG-715, Pros. Ex. 112), reproduced on
page 632.
[401] Extracts from this article were offered in evidence as Document
Schlegelberger 61, Schlegelberger Exhibit 27, reproduced earlier in
this section.
[402] This is an undated table entitled “Death Sentences.” It lists
115 persons delivered to jail between 24 April 1942 and 1 September
1944, all having been sentenced by the Special Court in Stuttgart.
However, in a column headed “Execution,” the table shows that five of
the cases were either sentences for a term of years or possibly cases
where death sentences were changed to imprisonment for a term of years.
The entry under the heading “Execution” for the two cases mentioned by
Schlegelberger are for Pitra, “8 years’ prison camp” and Wozniak, “5
years’ prison camp, beginning September 1942.”
[403] Reference is made to article I of the Supplementary Decree
concerning the Administration of Penal Justice against Poles and
Jews in the Incorporated Eastern Territories, a decree signed by the
defendant Schlegelberger and Dr. Pfundner. This decree (NG-665, Pros.
Ex. 346) is reproduced earlier in this section.
[404] Reproduced earlier in this section.
[405] The two original Nuernberg laws, the Reich Citizenship Law
and the Law for the Protection of German Blood and Honor, were both
announced at Nuernberg on 15 September 1935. The second law is
reproduced as a part of Document NG-715, Prosecution Exhibit 112, on
page 180.
[406] This document is reproduced earlier in this section.
[407] Other extracts from the testimony of the defendant Klemm are
reproduced above in sections V C 1 a, V C 3 b, V C 3 d, and below in
section V F.
[408] Concerning the earlier phases of Klemm’s activities, see the
footnote appearing at the beginning of the extracts from Klemm’s
testimony which are reproduced above in section V C 3 b. There was
still a fourth phase to Klemm’s activities, for in January 1944 he was
appointed Under Secretary in the Reich Ministry of Justice.
[409] Hess landed in Scotland on 10 May 1941.
[410] 1933 Reichsgesetzblatt, 1 December 1933, part I, page 1016.
[411] Reproduced above in section C 3 d.
[412] Reproduced above in this section.
[413] Reproduced above in section C 2 a.
[414] Reproduced below in subsection E.
[415] Reproduced above in this section.
[416] Circular letter of 10 March 1944, reproduced above in this
section.
[417] Reproduced above in this section.
[418] Further extracts from Rothaug’s testimony are reproduced in
sections V C 1 a, V C 1 b, V E, and V F.
[419] See the opinion and judgment in the Katzenberger case (NG-154,
Pros. Ex. 152), reproduced earlier in this section. Rothaug was
presiding judge in the Katzenberger case.
[420] These were all prosecution witnesses and none of their testimony
is reproduced herein. Their testimony is recorded in the mimeographed
transcript as follows: Dr. Karl Ferber, (31 Mar, 1, 3, 8 Apr 47), pages
1312–1315, 1319–1466, 1576–1630, 1665–1746; Irene Seiler, (26 Mar
1947), pages 1025–1057; and Armin Baur, (23 May 1947), pages 3598–3606.
[421] Extracts from the pertinent article in “Der Stuermer” concerning
the Katzenberger case are reproduced above in this section (NG-270,
Pros. Ex. 155).
[422] Further extracts from the testimony of defendant Rothenberger
appear in sections V C 1 a, V C 2 b, and V C 3 a.
[423] Reproduced in part in section V B. This document was also
introduced as Document, Rothenberger 3, Rothenberger Exhibit 3.
[424] Reproduced above in this section.
[425] Document NG-392, Prosecution Exhibit 373, is not reproduced
herein. It is a situation report of 5 January 1942 from defendant
Rothenberger to defendant Schlegelberger. The item of this report
concerning privileges of Jews in court proceedings is the following:
“VII. The lower courts do not grant to Jews the right to participate
in court proceedings in _forma pauperis_. The district court
suspended such a decision in one case. The refusal to grant this right
of participation in court proceedings in _forma pauperis_ is in
accordance with today’s legal thinking. But since a direct legal basis
is missing, the refusal is unsuitable. We therefore think it urgently
necessary that a legal regulation or order is given, on the basis of
which the rights of a pauper can be denied to a Jew.”
[426] Document NG-1106, Prosecution Exhibit 462, reproduced in part
above in this section.
[427] Reproduced above in this section.
[428] In January 1944, at Thierack’s request, defendant Klemm was made
Under Secretary.
[429] Document NG-1656, Prosecution Exhibit 535, above, earlier in this
section.
[430] Further testimony of defendant Rothenberger denying knowledge of
“final liquidation” measures of Poles and Jews is reproduced in section
V C 3 a.
[431] Complete testimony is recorded in the mimeographed transcript,
(9, 10, 11, 12, and 15 Sep 1947), pages 8510–8548, 8559–8805.
[432] From these official files only the opinion and sentence of the
Nuernberg Special Court has been reproduced herein. See Document
NG-457, Prosecution Exhibit 201, reproduced in part above in this
section.
[433] Actually only the first two of these three exhibits are
affidavits. Document NG-650, Prosecution Exhibit 229, is an affidavit
of Associate Judge Dr. Franz Gros. Document NG-635, Prosecution Exhibit
235, is an affidavit of Associate Judge Dr. Theodor Pfaff. Gros and
Pfaff were the two associate judges sitting in the Kaminska-Wdowen
case with defendant Oeschey. Both were called as witnesses before the
Tribunal. (Gros, 30 Apr 1947, tr. pp. 2826–2882) (Pfaff, 27 May 1947,
tr. pp. 3642–3650). The third mentioned exhibit, Document NG-2245,
Prosecution Exhibit 635, is a newspaper clipping of 25 August 1942.
None of these three exhibits and none of the testimony of Gros and
Pfaff is reproduced herein.
[434] Associate Judge Dr. Franz Gros. In addition, the second associate
judge was also heard. See footnote 2.
[435] Decree concerning the Administration of Penal Justice against
Poles and Jews in the Incorporated Eastern Territories, 4 December
1941, reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 632.
[436] SG 256/1943 is the file number of the Kaminska-Wdowen case. See
Document NG-457, Prosecution Exhibit 201, reproduced in part above in
this section.
[437] Counsel refers to the two associate judges in the case, both of
whom testified in the justice trial.
[438] Reproduced as part of Document NG-715, Prosecution Exhibit 112,
on page 193.
[439] Decree of 5 September 1939, reproduced as part of Document
NG-715, Prosecution Exhibit 112, on page 188.
[440] Complete testimony is recorded in mimeographed transcript, 15 and
16 September 1947, pp. 8841–8962.
[441] Reproduced above in this section.
[442] Decree of 1 July 1943, reproduced as part of Document NG-715,
Prosecution Exhibit 112, on page 685.
[443] The defendant Altstoetter, as this time a Ministerial Director,
was Chief of Department VI of the Reich Ministry of Justice. Department
VI was concerned with civil law; commercial and economic law; racial
legislation; public administrative law and international law;
international law and international treaties; constitution of the
courts; and administration of civil law.
[444] The State in its capacity as carrier of rights and duties of a
financial-legal nature.
[445] Document NG-900, reproduced above in this section.
[446] Lieutenant General Rudolf Lehmann was head of the armed forces
legal section. Lehmann also had the title of judge advocate general
(Generaloberstabsrichter) and Ministerialdirektor. Lehmann, whose name
comes up in ensuing documents, was sentenced to 7 years’ imprisonment
by Tribunal V in the High Command Case. Extracts from Lehmann’s
testimony concerning the Night and Fog decree appear near the end of
this section and more lengthy testimony by Lehmann on the same and
related subjects appears in the materials on the High Command Case,
United States _vs._ Wilhelm von Leeb, et al., Volumes X-XI, this
series.
[447] This decree was the Night and Fog decree (1733-PS, Pros. Ex. 303)
reproduced immediately below.
[448] This implementation decree is contained as the enclosure to
Document 669-PS, Prosecution Exhibit 305 reproduced below after the
Night and Fog decree.
[449] Distribution appears at end of document.
[450] Sometimes referred to as Document 665-PS. See transcript, 21
April 1947, page 2440.
[451] Defendant Schlegelberger testified that he signed the proposed
executive order and that it was the same as the draft submitted in the
document book, i.e., the draft enclosed hereto. See extracts from the
testimony of defendant Schlegelberger reproduced later in this section.
[452] SS General Pohl, Chief of the SS Economic and Administrative Main
Office, and a number of his subordinates, were tried in the Pohl Case
(United States _vs._ Oswald Pohl, et al., Vol. V, this series).
[453] Request addition of case, as soon as available settled. [Signed]
Ebersberg 12 Sept.
[454] Document NG-232, Prosecution Exhibit 308, reproduced earlier in
this section.
[455] Goebel was president of the Essen Special Court and also held the
title of District Court Director.
[456] Items _a_ and _b_ crossed out in original document.
[457] Bracketed excerpt is part of handwritten note partially illegible
on document.
[458] The enclosures were not a part of the document received in
evidence.
[459] (in the case of Breslau as of 31 March 1944)
[460] This document was introduced in evidence during the
cross-examination of defendant von Ammon. See extracts from his
testimony reproduced at the end of this section.
[461] Complete testimony appears in the mimeographed transcript (23, 24
Apr. 47), pages 2586–2643.
[462] This affidavit is not reproduced herein.
[463] Extracts from the testimony of the defendant Schlegelberger have
been reproduced above in several sections, including IV E, V B, V C 2
A, V D 2, and V E.
[464] Reference is made to the draft contained in Document NG-077,
Prosecution Exhibit 306, a letter of 16 December 1941, from the Reich
Ministry of Justice. This document is reproduced earlier in this
section.
[465] Trial of the Major War Criminals, op. cit., volume I, page 232
and following.
[466] Special jurisdiction of the SS was established by a decree of
17 October 1939, entitled “Decree on Special Jurisdiction in Criminal
Proceedings against Members of the SS and Members of Police Formations
on Special Tasks.” This decree (Klemm 29, Klemm Ex. 29) is reproduced
in section IV B.
[467] Judge Harding refers to Article 1 which with other parts is
reproduced as Document Klemm 29, Klemm Ex. 29 on page 190.
[468] This decree is reproduced as a part of Document NG-715,
Prosecution Exhibit 112, on page 205.
[469] The entire testimony appears in the mimeographed transcript (1–4
Aug 1947), pages 6377–6473.
[470] Document NG-988, Prosecution Exhibit 510 consists of over
one hundred mimeographed pages, dealing with the organization of
Departments III, IV, V, and VI of the Reich Ministry of Justice. It is
not reproduced herein.
[471] Document NG-232, Prosecution Exhibit 308, reproduced above in
this section.
[472] See, for example, Document NG-205, Prosecution Exhibit 328, a
secret directive of 21 January 1944, reproduced above in this section.
[473] Document NG-077, Prosecution Exhibit 306, reproduced above in
this section.
[474] Document NG-232, Prosecution Exhibit 308, reproduced above in
this section.
[475] This exhibit is a draft dated 16 December 1941 which was later
published as an executory decree on 6 February 1942.
[476] Document NG-486, Prosecution Exhibit 337, not reproduced herein.
[477] The testimony of defendant Mettgenberg appears in the
mimeographed transcript (31 Jul–1 Aug 1947) pages 6235–6271; 6274–6362.
The testimony referred to is not reproduced herein.
[478] Document NG-205, Prosecution Exhibit 328, reproduced above in
this section.
[479] Document von Ammon 4, von Ammon Exhibit 2. This affidavit, except
for the parts quoted, is not reproduced herein.
[480] Document NG-269, Prosecution Exhibit 319, reproduced above in
this section.
[481] Document NG-255, Prosecution Exhibit 314, reproduced in part
above in this section. The report referred to here is not reproduced
herein.
[482] Extracts from the testimony of prosecution witness Lehmann are
reproduced above in this section.
[483] Document NG-232, Prosecution Exhibit 308, reproduced above in
this section.
[484] Document NG-255, Prosecution Exhibit 314, reproduced in part
above in this section. This letter referred to here is not reproduced
herein.
[485] Document NG-077, Prosecution Exhibit 306, reproduced above in
this section. Note entry on document indicating that it was dispatched.
[486] Document NG-253, Prosecution Exhibit 317, reproduced in part
above in this section.
[487] This note is a part of Document NG-253, Prosecution Exhibit 317,
reproduced above in this section.
[488] Document NG-486, Prosecution Exhibit 337, not reproduced herein.
[489] Roemer’s testimony appears in the mimeographed transcript (24 Apr
1947), pages 2652–2672.
[490] The testimony of defendant Lautz appears in the mimeographed
transcript (23–25, and 28 Jul 1947), pages 5761–5775; 5781–6054.
[491] Pastor Martin Niemoeller, Protestant clergyman in Berlin-Dahlen
at the time of his arrest.
[492] Robert Hecker was an official of Department V (which dealt with
the execution of court sentences). The chief of Department V was
defendant Engert. The entire testimony of prosecution witness Hecker is
recorded in the mimeographed transcript (18 Apr, 9 and 12 May, and 7
Jul 1947), pages 2363–2386, 3047–3083, 3111–3114, and 4823–4870.
[493] Document NG-737, an affidavit by Hecker, not reproduced herein.
[494] Document NG-1886, Prosecution Exhibit 546, reproduced above in
this section.
[495] This letter was written before the promulgation of the Decree
concerning the administration of penal justice against Poles and Jews
in the Incorporated Eastern Territories of 4 December 1941, reproduced
as a part of Document NG-715, Prosecution Exhibit 112, on page 632. The
first four sections of the decree also applied to Poles domiciled or
residing in Poland on 1 September 1939 “and who committed punishable
acts in any part of the German Reich other than the Incorporated
Eastern Territories.” (Sec. XIV.)
[496] GewVVO, abbreviation for “Verordnung gegen
Gewaltverbrecher”--Decree against Violent Criminals--dated 5 December
1939. Article 1 of this decree makes the death penalty mandatory for
acts of “armed violence” as defined therein. The decree is reproduced
as part of Document NG-715, Prosecution Exhibit 112, on page 193.
[497] VVO, abbreviation for “Verordnung gegen Volksschaedlinge”--Decree
against Public Enemies--dated 5 September 1939. Article 4 of this
decree makes the death sentence possible but not mandatory. The decree
is reproduced as part of Document NG-715, Prosecution Exhibit 112, on
page 188.
[498] Reference is made to the articles of the Reich Penal Code
defining treason. The provisions of this code concerning “high
treason” and “treason” were amended early in the Hitler regime by
the law of 24 April 1934, “amending provisions of criminal law and
criminal procedure.” This same law established the People’s Court with
competence in treason cases. Provisions of this law defining treason
are reproduced on page 169 as a part of Document NG-715, Prosecution
Exhibit 112, and the provisions establishing the People’s Court are
reproduced on page 23, as part of the same document. Article 91 of
the Reich Penal Code, as amended by the law of 24 April 1934 reads,
“(1) Whoever established contact with a foreign government or a person
acting for a foreign government with the intention of causing a war or
forcible measures against the Reich or other serious disadvantages to
the Reich, will be punished by death. (2) Whoever established contact
of the kind described in paragraph (1) with the intention of causing
serious disadvantages for a national of the Reich, will be punished
with hard labor for life or for not less than 5 years.”
[499] Article 2 of the Reich Penal Code, as amended by the “Law
Amending the Penal Code” of 28 June 1935, introduced the principle
of “creation of law by analogous application of penal laws,” and
declared punishable any act “which deserves punishment according to the
fundamental idea of a penal law or the sound sentiment of the people.”
Extracts from this amending law are reproduced on page 176, as part
of Document NG-715, Prosecution Exhibit 112. Article 91, paragraph
2, of the Reich Criminal (Penal) Code, as amended, established the
principle that intentional causing of “serious disadvantages for
a national of the Reich” in connection with a foreign government
was treasonable. This provision, however, did not go so far as to
declare that acts against “ethnic Germans of foreign nationality”
could constitute treason against Germany. Hence, the discussion of
Article 2 of the Reich Penal Code as amended with its provision for
punishment “according to the fundamental idea of a penal law or the
sound sentiment of the people” and the “creation of law by analogous
application of penal law.”
[500] This decree of 4 December 1941 is reproduced as part of Document
NG-715, Prosecution Exhibit 112, on page 632.
[501] Concerning the “nullity plea,” see section V C 1 b.
[502] The decree of 5 September 1939 is reproduced as part of Document
NG-715, Prosecution Exhibit 112, on page 188.
[503] The relevant provisions of this law are reproduced on page 231 as
part of Document NG-715, Prosecution Exhibit 112.
[504] The various articles of the Reich Penal Code mentioned in this
sentence are all contained in the law of 24 April 1934, amending
provisions of criminal law and criminal procedure. This law amended
numerous articles of the Reich Penal Code. It is reproduced as part of
Document NG-715, Prosecution Exhibit 112, on page 169.
[505] This decree, entitled “Decree concerning the Administration
of Penal Justice against Poles and Jews in the Incorporated Eastern
Territories,” is reproduced as part of Document NG-715, Prosecution
Exhibit 112, on page 632.
[506] Political organization founded by the Austrian Government in 1934
after the dissolution of the Social Democratic Party and the National
Socialist Party.
[507] Reference is made to the “Law on Insidious Acts against State and
Party, and for the Protection of Party Uniforms,” Document 1393-PS,
Prosecution Exhibit 508, reproduced in section IV-B.
[508] Reference is made to the “Decree concerning Special Criminal
Law in Wartime,” 17 August 1938, the relevant provisions of which are
reproduced on page 184, as part of Document NG-715, Prosecution Exhibit
112. Article 5 of this decree is entitled “Undermining of Military
Efficiency.”
[509] All italicized parts in this portion of the document are
handwritten in the original.
[510] Bracketed text is crossed out in original document.
[511] Concerning this document, see extracts from the testimony of
defendant Lautz reproduced below in this section.
[512] The first-mentioned law, Document 1393-PS, Prosecution Exhibit
508, is reproduced in section IV B, and extracts from the second
mentioned law, as a part of Document NG-715, Prosecution Exhibit 112,
on page 184. Article 2, paragraph 1 of the law of 20 December 1934
provides that “Whoever makes statements showing a malicious, inciting
or low-minded attitude toward leading personalities of the State or the
NSDAP, or about orders issued by them, or about institutions created
by them which are apt to undermine the confidence of the people in its
political leadership, shall be punished with imprisonment.” The decree
of 17 August 1938 on special criminal law in wartime established and
defined the new offense of “undermining of military efficiency” and
makes the death sentence mandatory. In view of the different penalty
under the two laws, the question of indicting a person who allegedly
made defeatist remarks under the one law or the other was most
significant.
[513] Concerning Judges’ Letters, see the materials in section V C 3 b.
[514] A town west of Smolensk where a mass grave of 10,000 Polish army
officers was found. See Trial of Major War Criminals, op. cit., volume
XXIII, page 426.
[515] The reference is to the act of 20 December 1934, which does not
provide for the death penalty.
[516] The reference is to the decree of 17 August 1938, which makes the
death penalty mandatory.
[517] Extracts from the testimony of defendant Schlegelberger have also
been reproduced in sections IV E, V B, V C 2 a, V D 2, and V D 3.
[518] Reproduced above in this section.
[519] Extracts from the testimony of defendant Lautz are also
reproduced in section C 1 b. His entire testimony is recorded in the
mimeographed transcript 23–25, 28 July 1947, pages 5761–5775; 5781–6054.
[520] Decree concerning special criminal law in time of war and special
emergency, 17 August 1938, reproduced in part as a part of Document
NG-715, Prosecution Exhibit 112, on page 184.
[521] Document NG-1474, Prosecution Exhibit 515, is not reproduced
herein. The cross-examination of Dr. Horst Guenther Franke concerning
this affidavit is recorded in the mimeographed transcript, 22 September
1947, pages 9265–9280. The affiant Dr. Franke was the official in the
Reich Ministry of Justice who succeeded defendant Joel in the fall of
1943 as chief of the ministry section dealing with crimes against war
economy.
[522] Document NG-510, Prosecution Exhibit 97, a decree of 8 March 1943
by Thierack further defining the jurisdiction of the People’s Court in
case of “subversive undermining of German military efficiency.” This
decree is not reproduced herein.
[523] Document NG-671, Prosecution Exhibit 220, reproduced in part
above.
[524] Prior to his assignment in the Reich Ministry of Justice,
defendant Rothaug had been presiding judge of the Nuernberg Special
Court.
[525] Document NG-659, Prosecution Exhibit 126, an affidavit of
defendant Lautz dated 17 January 1947, is not reproduced herein.
[526] Bruno Gruenwald appeared as a prosecution witness. His testimony
is recorded in the mimeographed transcript, 3 June 1947, pages
3879–3910.
[527] These exhibits are all reproduced herein in whole or in part.
Document NG-676, Prosecution Exhibit 178, is a letter of 5 July 1944
from the defendant Klemm to the president of the district court of
appeal and the attorney general in Stuttgart concerning cases of
defeatism (sec. V C 3 b); Document NG-627, Prosecution Exhibit 474,
is a letter of 1 March 1945 from defendant Klemm to the president of
the district court of appeal and the attorney general in Hamburg,
concerning dangerously lenient sentences (sec. V C 3 b); and Document
NG-674, Prosecution Exhibit 100, is a report of a conference held in
Weimar on 3 and 4 February 1944 concerning undermining morale and
malicious political acts (sec. V E).
[528] Document NG-685, Prosecution Exhibit 259, reproduced in part at
the beginning of this section.
[529] Document NG-595, Prosecution Exhibit 136, reproduced above.
[530] Reference is made to the law of 24 April 1934 “amending
provisions of criminal law and criminal procedure,” the pertinent
parts of which are reproduced on page 169 as part of Document NG-715,
Prosecution Exhibit 112. This law expanded the previously existing
concepts of treason and high treason.
[531] Report contained in Document NG-548, Prosecution Exhibit 347,
reproduced above in this section.
[532] Complete testimony is reproduced in the mimeographed transcript
(26–28 Aug 1947), pages 7649–7752, 7780–7901.
[533] Extracts from the official files in the Beck case are reproduced
above in this section.
[534] Presiding Judge Brand refers to defendant Barnickel’s letter of
30 July 1943 to the Reich Chief Prosecutor at the People’s Court in
which he enclosed the indictment in the Beck case. This is reproduced
earlier in this section as a part of Document NG-381, Prosecution
Exhibit 159.
[535] Other extracts from the testimony of defendant Rothaug appear in
sections V C 1 A, V C 1 B, V D 2, and V F.
[536] Extracts from the official files in the Lopata case are contained
in Document NG-337, Prosecution Exhibit 186, reproduced above in this
section. The defendant Rothaug was presiding judge of the Special Court
which sentenced Lopata to death upon a second trial in April 1942.
[537] At the first recess, the prosecution called Mr. Arnold
Buchthal, one of the prosecution’s research analysts, as an expert
witness concerning the translation and meaning of the disputed
words “Polnisches Untermenschentum.” Until 1939, Buchthal had lived
in Germany, Austria, and Switzerland; and German was his native
language. He testified that the literal translation of “Polnisches
Untermenschentum” was “Polish subhumanity;” that he had never heard
the expression “Untermenschentum” used in Germany before 1933; that
after 1933 the context in which the word was used was always political,
referring to Jews, Czechs, Poles, or Communists. On cross-examination,
Buchthal said that the word might have been used occasionally in the
technical language of the criminologist, but certainly not frequently.
(_Tr. 7471–7474._)
[538] For the decree establishing the nullity plea and other material
concerning its application, see section V C 1 b.
[539] Document 1393-PS, Prosecution Exhibit 508, reproduced in section
IV B.
[540] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 160.
[541] This law of 20 December 1934, Document 1393-PS, Prosecution
Exhibit 508, is reproduced in section IV B.
[542] This document is discussed in extracts from the testimony of
defendant Klemm, reproduced below in this section.
[543] Entire testimony is recorded in the mimeographed transcript (9
May 1947) pages 3021–3046.
[544] The reference is to Article 130a of the Reich Penal Code,
which was inserted into the Code by the Law of 26 February 1876:
“Imprudent Discussion of State Affairs by Ministers of Religion
(Kanzelmissbrauch). 130a. A clergyman or other minister of religion
who in the exercise of his calling or on the occasion of such exercise
makes affairs of state a subject of his announcement or discussion
in a manner endangering public peace either before a crowd or before
several people assembled in a church or other place assigned for
religious meetings, shall be punished by imprisonment or confinement in
a fortress not to exceed 2 years. A similar punishment shall be imposed
upon a clergyman or minister of religion who, in the exercise of his
calling or on the occasion of such exercise, issues or distributes
writings in which affairs of state are made the subject of announcement
or discussion in a manner endangering public peace.”
[545] Further extracts from the testimony of defendant Rothaug appear
in sections V C 1 a, V C 1 b, V D 2, and V E.
[546] Dr. Karl Ferber’s testimony is recorded in the mimeographed
transcript (31 Mar., 1, 3, 8 Apr. 1947), pages 1312–1315, 1319–1466,
1576–1630, 1665–1746. Ferber was a district court director
(Landgerichtsdirektor) and associate judge of the Nuernberg Special
Court. He was called a prosecution witness. Ferber referred to the case
of a second Catholic Priest named Froehlich who had buried a Pole in
Roding (Upper Palatinate), mimeographed transcript, pages 1352–1354,
1743–1744.
[547] The text of this law, Document 1393-PS, Prosecution Exhibit 508,
is reproduced above in section IV B.
[548] Reference is made to Alfred Rosenberg who was tried and sentenced
to death by the International Military Tribunal. See Trial of the Major
War Criminals, _op. cit._, Volumes I-XLII.
[549] The text of article 130a of the Reich Penal Code is reproduced
in a footnote earlier in this section. The Insidious Acts Law of 20
December 1934, Document 1393-PS, Prosecution Exhibit 508, is reproduced
in section IV B.
[550] Further extracts from the testimony of the defendant Klemm appear
in sections V C 1 A, V C 3 B, V C 3 D, and V D 2.
[551] Reproduced above in this section.
[552] At this time the defendant Klemm was Under Secretary in the Reich
Ministry of Justice.
[553] Tr. pp. 10587–10604, 18 October 1947.
[554] Document NG-414, Prosecution Exhibit 252, has not been reproduced
in this volume because of its great length and because it has been
impossible, in view of space limitations, to include any considerable
amount of evidence concerning clemency matters--a topic frequently
in issue in the Justice Case. The document in question is 142 pages
in the original German and 162 pages in the English translation. It
consists of file notes of the Reich Ministry of Justice concerning
“Reports to the Minister of Justice,” “Reports to the Under Secretary”
(Staatssekretaer), and “Death Sentence Reports” for the following
dates: 24 and 27 January 1944; 10, 22, and 29 February 1944; 8, 17, and
29 March 1944; 5, 18, and 26 April 1944; 3, 12, and 31 May 1944; 2, 8,
16, 21, and 30 June 1944; 2 and 17 August 1944; 22 and 29 September
1944; 5, 12, 19, and 27 October 1944; 10, 16, and 29 November 1944;
7, 15, and 21 December 1944; and 4, 10, 17, and 24 January 1945. The
“Death Sentence Reports” list the names (usually only the family name)
of persons sentenced to death, dividing the death sentences into
“doubtful” and “clear cut” cases, and grouping the sentences mainly
under the following categories: “high treason cases,” “treason cases,”
and cases involving “undermining the military efficiency.” On the
reports a diagonal line was drawn indicating that the death sentence
was confirmed. For example, the list of 17 January 1945, mentioned
specifically by the defendant Klemm in his final statement, shows the
following diagonal lines in the category “high treason cases.” (For
typographical reasons, the diagonal lines have here been indicated
before the respective letter or figure, whereas on the original
document, the diagonal lines were drawn through them.)
/a. _doubtful_
Hauke Death
Ritter Death
Schellenberger Death
Giezelt Death
/b. _clear cut_
/1. Hoehn Death
Schultz Death
Seiffert Death
/2. Kroeger Death
Splenemann Death
Fuebinger Death
/3. Boecker Death
Kaess Death
/4. Luedtke Death
/5. Haitzmann Death
Bueschinger Death
Hauberger Death
The document shows that between 24 January 1944 and 24 January 1945,
death sentences of more than 2,500 persons were confirmed. The largest
number confirmed appears on the report of 22 September 1944, 128 cases;
and the smallest number appears on the report of 4 January 1945, 25
cases. The report for 17 January 1945, mentioned specifically by the
defendant Klemm, shows that 49 death sentences were confirmed.
[555] All the documents referred to are reproduced in the preface
portion of this volume and are not reproduced as a part of this
judgment. See Table of Contents.
[556] Text is reproduced in “The Axis in Defeat,” Department of State
Publication No. 2423 (Government Printing Office, Washington, D. C.),
pages 24 and 25.
[557] Ibid., pages 62 and 63.
[558] Ibid, page 10 et seq.
[559] Alwyn V. Freeman, “War Crimes by Enemy Nationals Administering
Justice in Occupied Territory,” The American Journal of International
Law, XLI, July 1947, 605.
[560] John H. E. Fried, “Transfer of Civilian Manpower from Occupied
Territory,” The American Journal of International Law, XL, April 1946,
326–327.
[561] Trial of the Major War Criminals, op. cit., judgment, volume I,
page 254.
[562] Ibid., p. 218.
[563] Ibid., p. 174.
[564] Ibid., p. 219.
[565] Herbert Wechsler, “The Issues of the Nuremberg Trial,” Political
Science Quarterly, LXII, No. 1, March 1947, 14.
[566] Hackworth, “Digest of International Law”, (Government Printing
Office, Washington, 1940), volume 1, pages 1–4.
[567] Hyde, “International Law”, (2d rev. ed., Boston, Little, Brown &
Co., 1945), volume 1, page 4.
[568] Lord Wright, “War Crimes under International Law,” The Law
Quarterly Review, LXII, January 1946, 51.
[569] Hyde, op. cit., page 2.
[570] Philip C. Jessup, “The Crime of Aggression and the Future of
International Law,” Political Science Quarterly, LXII (Mar 1947), No.
1, page 2, citing Journal of the United Nations, No. 58, Supp. A-A/P.
V./55, page 485.
[571] Lord Wright, op. cit., page 41.
[572] Trial of the Major War Criminals, op. cit., volume I, page 218.
[573] Hyde, op. cit., pages 16 and 17.
[574] Case 5, Volume VI, this series.
[575] Trial of the Major War Criminals, op. cit., volume I, pages 254
and 255.
[576] Ibid., p. 219.
[577] The Nuremberg Trial: “Landmark in Law”; Foreign Affairs, January
1947, pages 180 and 184.
[578] Maxwell-Fyfe, foreword to “The Nuremberg Trial” (London, Penguin
Books, 1947), by R. W. Cooper.
[579] Wechsler, op. cit., pages 23–25.
[580] Hyde, op. cit., volume III, page 2409.
[581] Ibid., pages 2409 and 2410.
[582] American Journal of International Law, Vol. 14 (1920), p. 117.
[583] Hyde, op. cit., page 2412.
[584] Ibid., page 2414.
[585] Ibid., volume I, pages 7 and 8.
[586] Ibid., p. 38.
[587] “Since the World War of 1914–1918, there has developed in many
quarters evidence of what might be called an international interest
and concern in relation to what was previously regarded as belonging
exclusively to the domestic affairs of the individual state; and with
that interest there has been manifest also an increasing readiness to
seek and find a connection between domestic abuses and the maintenance
of the general peace. See article XI of the Covenant of the League of
Nations, United States Treaty, volume III, 3339.” (Hyde, “International
Law,” 2d rev. ed., vol. I, pages 249–250.)
[588] Oppenheim, “International Law”, volume I, (3d ed.) (Longmans,
Green & Co., London, 1920), page 229.
[589] State Department Publication No. 9, pages 153 and 154.
[590] Norman Bentwich, “The League of Nations and Racial Persecution in
Germany,” Problems of Peace and War, XIX, (London, 1934), page 75 and
following.
[591] Ibid.
[592] President’s Message to Congress, 1904. “The Works of Theodore
Roosevelt, Presidential Addresses and State Papers”, (P. F. Collier &
Son, New York), volume III, pages 178 and 179.
[593] President’s Special Message of 11 April 1898. Hyde, op. cit.,
volume 1, page 259.
[594] J. Bluntschli, Professor of Law, Heidelberg University, in “Das
Moderne Voelkerrecht der Civilisierten Staaten,” (3d ed.) page 270
(1878). Professor Bluntschli was a Swiss national.
[595] Trial of the Major War Criminals, op. cit., volume III, page 92.
[596] Journal of the United Nations, No. 58, Supp. A-C/P. V./55, page
485; as cited in Political Science Quarterly (Mar 1947), volume LXII,
No. 1, page 3.
[597] Trial of the Major War Criminals, op. cit., judgment, volume I,
page 178.
[598] 1934 RGBl. I, p. 75.
[599] Law of 4 April 1933, 1933 RGBl. I, page 162.
[600] Law of 24 April 1934, 1934 RGBl. I, page 341. Most of the laws
and decrees mentioned herein are reproduced as parts of document
NG-715, Prosecution Exhibit 112. (See footnote on p. 231.)
[601] 1944 RGBl. I, p. 225.
[602] 1935 RGBl. I, p. 839.
[603] 1935 RGBl. I, p. 844, art. 267a.
[604] 1936 RGBl. I, p. 999.
[605] 1939 RGBl. I, p. 1455.
[606] Ibid., p. 1683.
[607] Ibid., p. 1679.
[608] 1939 RGBl. I, p. 2319.
[609] 1944 RGBl. I, p. 115.
[610] 1942 RGBl. I, p. 535.
[611] 1933 RGBl. I, p. 175.
[612] Ibid., p. 188.
[613] 1933 RGBl. I, p. 225.
[614] Ibid., p. 685.
[615] 1938 RGBl. I, p. 338.
[616] Ibid., p. 1580.
[617] 1939 RGBl. I, p. 864.
[618] 1942 RGBl. I, p. 722.
[619] This decree was also known as the “decree concerning the
administration of penal justice against Poles and Jews in the
Incorporated Eastern Territories.”
[620] Trials of the Major War Criminals, op. cit., judgment, volume I,
page 194.
[621] Ibid., p. 197.
[622] 1941 RGBl. I, p. 722.
[623] 1933 RGBl. I, p. 136.
[624] Ibid., p. 162.
[625] 1939 RGBl. I, p. 1683.
[626] 1939 RGBl. I, p. 1679.
[627] 1940 RGBl. I, p. 405.
[628] Id.
[629] 1941 RGBl. I, p. 759.
[630] Trial of the Major War Criminals, op. cit., volume I, page 179.
[631] 1934 RGBl. I, p. 341.
[632] 1939 RGBl. I, p. 752.
[633] Id.
[634] Ibid., p. 1841.
[635] 1940 RGBl. I, p. 754.
[636] 1933 RGBl. I, p. 136.
[637] 1944 RGBl. I, p. 339.
[638] 1934 RGBl. I, p. 91.
[639] [Article 1, 4, b] Law of 28 June 1935; 1935 RGBl. I, page 844.
[640] Ibid., article 4, 1, a.
[641] “German Criminal Procedure,” by Heinrich Henkel, (Hamburg 1943)
pages 440–442.
[642] 1945 RGBl. I, p. 30.
[643] 1942 RGBl. I, p. 475.
[644] Law of 28 June 1935; 1935 RGBl. I, p. 844.
[645] The three expressions “supreme justice,” “supreme law lord” and
“supreme magistrate” are three different translations of the German
term “Oberster Gerichtsherr.”
[646] Department of State Bulletin, 4 November 1939, page 458, cited in
Hyde’s International Law, Volume 1 (2d rev. ed.), page 391.
[647] “Legal Effects of War” (2d ed.) (Cambridge, 1940), footnote on
page 320.
[648] Trial of the Major War Criminals, op. cit., volume I, page 255.
[649] Ibid., p. 256.
[650] Ibid., p. 261.
[651] Ibid., pp. 267–268.
[652] Ibid., p. 273.
[653] Ibid., pp. 232–233.
[654] Ibid., p. 234.
[655] Ibid., p. 266.
[656] Trial of the Major War Criminals, op. cit., Volume I, page 266.
[657] Ibid., pp. 235–236.
[658] Ibid., pp. 222–223.
[659] Rosenberg, _Der Mythus des 20. Jahrhunderts_, (Munich 1935),
page 114 (1st Ed., 1930), cited in National Socialism, Department of
State Publication 1864 (U. S. Government Printing Office, Washington
1943), page 31.
[660] Ernst Kaltenbrunner, a defendant before the IMT, was sentenced to
death. See Trial of the Major War Criminals, op. cit., volume I, page
365.
[661] 1938 RGBl. I, p. 1581.
[662] Complete testimony of defense witness Hans Heinrich Schulz is
recorded in the mimeographed transcript, 25 September 1947. (Tr. pp.
9530–9552.)
[663] Complete testimony of defense witness Hans Heinrich Lammers is
recorded in the mimeographed transcript 22 July 1947, pages 5582–5620.
[664] Hyde, op. cit., volume III (2d rev. ed.), page 1714.
[665] Trial of the Major War Criminals, op. cit., volume I, pp. 234,
235, and 237.
[666] 1935 RGBl. I, page 844.
[667] This date is evidently a recording error, in as much as the
decrees mentioned were published in 1940 and 1941.
[668] General Warlimont was a defendant in the High Command Case
(United States _vs._ Wilhelm von Leeb, et al., Case 12, vols.
X-XI, this series).
[669] The reference is to the highest and higher leaders of the
National Socialist German Workers’ Party.
[670] Complete testimony of defense witness Hans Hartmann is recorded
in the mimeographed transcript, 17 September 1947, pages 8999–9068.
[671] Popular name for the decree against public enemies.
[672] Trial of the Major War Criminals, op. cit., volume I, page 273.
[673] Ibid.
[674] 1944 RGBl. I, page 339.
[675] Trials of the Major War Criminals, op. cit., volume I, pages
259–261.
[676] Ibid., pp. 270–273.
[677] Ibid., p. 218.
[678] Ibid., pp. 216–218.
[679] Supreme Court decision re Yamashita; 66 S. Ct. 340.
[680] Trial of the Major War Criminals, op. cit., volume I, page 218.
[681] Trial of the Major War Criminals, op. cit., volume I, page 226.
[682] Session of the Tribunal on 4 December 1947, Transcript pages
10934–10936.
[683] At the time this volume was nearing completion, further action on
these sentences was taken by the United States High Commissioner for
Germany. His decision upon review of these sentences will be included
in section XXV, volume XV, this series.
[684] In Berlin--Kammergerichtspraesident.
[685] The German Civil Service is divided into two main groups:
Beamte (officials) and Angestellte (employees). Beamte are classified
according to four levels: Beamte of “unteren Dienstes” (lower level),
“einfachen mittleren Dienstes” (intermediate level), “gehobenen
mittleren Dienstes” (upper level), and “hoeheren Dienstes” (higher
level). Angestellte are mainly custodial employees, workers, and
minor clerks, but also include some specialists who do not have
Beamten-status.
[686] Officials of the “lower level” are usually clerical employees
and are usually addressed with the title of their position (such as
“Buerovorsteher”--chief clerk).
[687] Usually carries a prefix such as “Justiz,” “Regierung,”
“Verwaltung,” “Ministerial,” etc.
[688] Equivalent to a senior colonel.
[689] For detailed information on German court system see “A Brief
Summary of the Court System,” in section IV C 2.
[690] Term “Assessor” is also used in connection with probational
appointments in the administrative career service and the teaching
career in university-level institutions.
[691] Literal translation of “Rechtswahrer” is “one who guards the
observation of law.”
[692] For offenses included in “Wehrkraftzersetzung” see NG-715,
Prosecution Exhibit 112, in section IV B, pages 192 and 193.
Transcriber’s Notes:
1. Obvious printers’, punctuation and spelling errors have been
corrected silently.
2. Where hyphenation is in doubt, it has been retained as in the
original.
3. Some hyphenated and non-hyphenated versions of the same words have
been retained as in the original.
4. Superscripts are represented using the caret character, e.g. D^r. or
X^{xx}.
5. Italics are shown as _xxx_.
6. Bold print is shown as =xxx=.