“I do expect one thing: that the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience and service in the performance of the greater task which is a matter of to be or not to be. The front and the homeland, the transport system, administration, and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position, without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.*******“Furthermore, I expect the German legal profession to understand that the nation is not here for them, but that they are here for the nation; that is, the world, which includes Germany, must not decline in order that formal law may live, but that Germany must live, irrespective of the contradictions of formal justice. To quote one example, I fail to understand why a criminal who married in 1937, ill-treated his wife until she became insane and finally died as a result of the last act of ill-treatment, should be sentenced to 5 years in a penitentiary at a moment when tens of thousands of honorable German men must die to save the homeland from annihilation at the hands of bolshevism.“From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”[34]
“I do expect one thing: that the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience and service in the performance of the greater task which is a matter of to be or not to be. The front and the homeland, the transport system, administration, and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.
“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position, without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.
*******
“Furthermore, I expect the German legal profession to understand that the nation is not here for them, but that they are here for the nation; that is, the world, which includes Germany, must not decline in order that formal law may live, but that Germany must live, irrespective of the contradictions of formal justice. To quote one example, I fail to understand why a criminal who married in 1937, ill-treated his wife until she became insane and finally died as a result of the last act of ill-treatment, should be sentenced to 5 years in a penitentiary at a moment when tens of thousands of honorable German men must die to save the homeland from annihilation at the hands of bolshevism.
“From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”[34]
Immediately after Hitler’s speech, the Reichstag adopted the following resolutions:
“There can be no doubt in this present state of war, when the German nation wages its fight for its very existence, that the Fuehrer must exercise the right, which he claims, to do everything which serves or helps to achieve victory. Therefore, the Fuehrer, by his authority as the leader of the nation, supreme commander of the armed forces, head of the government, and in supreme possession of all executive power, as supremelaw lord, and as leader of the Party, has to be in a position to enforce, with all means which he may consider suitable, every German’s duties, whether he might be a common soldier or an officer, a subordinate or high civil servant or a judge, a leading or subordinate functionary of the Party, a worker or an employee. In case of violations of duties, he has the right to impose the proper penance, after a conscientious examination of the case. This can be done without consideration for the so-called civil service rights. In particular, he may remove anyone from his office, rank and his position, without resort to the established procedures.”[35]
“There can be no doubt in this present state of war, when the German nation wages its fight for its very existence, that the Fuehrer must exercise the right, which he claims, to do everything which serves or helps to achieve victory. Therefore, the Fuehrer, by his authority as the leader of the nation, supreme commander of the armed forces, head of the government, and in supreme possession of all executive power, as supremelaw lord, and as leader of the Party, has to be in a position to enforce, with all means which he may consider suitable, every German’s duties, whether he might be a common soldier or an officer, a subordinate or high civil servant or a judge, a leading or subordinate functionary of the Party, a worker or an employee. In case of violations of duties, he has the right to impose the proper penance, after a conscientious examination of the case. This can be done without consideration for the so-called civil service rights. In particular, he may remove anyone from his office, rank and his position, without resort to the established procedures.”[35]
This menacing blast from the Fuehrer, and the resolution of the Reichstag, wiped away the last remains of judicial independence in Germany. Furthermore, within a few months a complete reorganization of the upper levels of the Ministry of Justice took place. Schlegelberger, who had seen the storm coming and made desperate efforts to meet Hitler’s wishes, was nevertheless retired and replaced by Thierack. A special Hitler decree in August 1942 gave the new Reich Minister sweeping powers to bring the administration of justice into conformity with the needs of the regime; it read:
“A strong administration of justice is necessary for the fulfillment of the tasks of the Greater German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice, and to take all necessary measures in accordance with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.”[36]
“A strong administration of justice is necessary for the fulfillment of the tasks of the Greater German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice, and to take all necessary measures in accordance with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.”[36]
At the same time, Roland Freisler left the Justice Ministry to become president of the People’s Court, and the defendant Rothenberger took Freisler’s old job as under secretary. Earlier in the year, Rothenberger, previously president of the district court of appeals at Hamburg, had attracted the Fuehrer’s attention by submitting to him a long thesis on “judicial reform.” This thesis is a curious document; it speaks at length of the honor and dignity of the judges’ function and of the need for justice as the foundation of the Third Reich, but the reason it won the Fuehrer’s approval can perhaps be more clearly inferred from the two following quotations (NG-075, Pros. Ex. 27):
“The present crisis in the administration of justice today is close to such a climax. A totally new conception of the administration of justice must be created, particularly a NationalSocialist judiciary, and for this the druggist’s salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.“The criterion, however, for the functions of justice, and particularly of the judge in the National Socialist Reich, must be a justice which meets the demands of national socialism.“He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand, all outmoded institutions, concepts, and habits have been done away with—if need be, in a brutal manner—and if, on the other hand, institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation * * *.”
“The present crisis in the administration of justice today is close to such a climax. A totally new conception of the administration of justice must be created, particularly a NationalSocialist judiciary, and for this the druggist’s salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.
“The criterion, however, for the functions of justice, and particularly of the judge in the National Socialist Reich, must be a justice which meets the demands of national socialism.
“He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand, all outmoded institutions, concepts, and habits have been done away with—if need be, in a brutal manner—and if, on the other hand, institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation * * *.”
At the time he was appointed Minister, Thierack also became the president of the German Academy of Law, and of the National Socialist Association of Jurists. The temper of the new administration of justice was reflected in Thierack’s announcement to the German Academy of Law as follows:
“The formulation of law is not a matter of science and a goal in itself, but rather a matter of political leadership and organization. Therefore, the activities of the Academy relating to the formulation of law must be coordinated with the aims of political leadership.”[37]
“The formulation of law is not a matter of science and a goal in itself, but rather a matter of political leadership and organization. Therefore, the activities of the Academy relating to the formulation of law must be coordinated with the aims of political leadership.”[37]
At the time of their appointments, Thierack and Rothenberger envisaged an ambitious program for simplifying the hierarchy of German courts, drastically reducing the number of judges, and “modernizing” the education and training of judges in accordance with prevailing political thought. Much of this program was never realized, but Thierack and Rothenberger did succeed in developing new devices for direct control of judicial decisions by the government. This has been also foreshadowed in Rothenberger’s thesis submitted to Hitler:
“* * * a judge who is in direct relation of fealty to the Fuehrer must judge ‘like the Fuehrer.’ In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer.’ He is to convey to the German judge the will of the Fuehrer by authentic explanation of thelaws and regulations. At the same time he must, upon the request of the judge, give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”
“* * * a judge who is in direct relation of fealty to the Fuehrer must judge ‘like the Fuehrer.’ In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer.’ He is to convey to the German judge the will of the Fuehrer by authentic explanation of thelaws and regulations. At the same time he must, upon the request of the judge, give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”
In part, this executive control was accomplished by conferences between the prosecutors and the judges, in which the prosecutor advised the judge what measure of sentence the Ministry of Justice thought fitting in a particular case. But an even more effective device was a series of confidential circulars to the judges known as Judges’ Letters (Richterbriefe) which Thierack dispatched, under his own signature as Minister of Justice, to the judges and prosecutors throughout the German judicial system. Thierack announced this forthcoming series in September 1942 in the following letter:
“To aid the judge in fulfilling his high duty in the life of our people, I decided to publish the Judges’ Letters. They shall be distributed to all German judges and prosecutors. These Judges’ Letters will contain decisions that seem to be especially worthwhile mentioning, on account of result or argumentation. On these decisions, I will show how a better decision might or should have been found; on the other hand, good, and for the national community, important decisions shall be cited as examples.“The Judges’ Letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They will rather tell how judicial authorities think National Socialist justice should be applied and thereby give the judge the inner security and freedom to come to the right decision.“The contents of these letters are confidential; the chief of an office shall keep them, and let every judge and prosecutor take notice of them against receipt.“For the publication of the Judges’ Letters, the collaboration of all the judges and prosecutors is needed. I expect that suitable decisions from all branches of justice will be presented to me. On publication, neither the judge nor the deciding court will be named.“I am convinced that the Judges’ Letters will help to influence the administration of justice uniformly according to National Socialist doctrines.”
“To aid the judge in fulfilling his high duty in the life of our people, I decided to publish the Judges’ Letters. They shall be distributed to all German judges and prosecutors. These Judges’ Letters will contain decisions that seem to be especially worthwhile mentioning, on account of result or argumentation. On these decisions, I will show how a better decision might or should have been found; on the other hand, good, and for the national community, important decisions shall be cited as examples.
“The Judges’ Letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They will rather tell how judicial authorities think National Socialist justice should be applied and thereby give the judge the inner security and freedom to come to the right decision.
“The contents of these letters are confidential; the chief of an office shall keep them, and let every judge and prosecutor take notice of them against receipt.
“For the publication of the Judges’ Letters, the collaboration of all the judges and prosecutors is needed. I expect that suitable decisions from all branches of justice will be presented to me. On publication, neither the judge nor the deciding court will be named.
“I am convinced that the Judges’ Letters will help to influence the administration of justice uniformly according to National Socialist doctrines.”
The first letter was published on 1 October 1942. In a sort of hortatory prelude, many thoughts and ideas from the Rothenberger thesis were embodied. Thereafter, a number of criminal cases and the sentences therein imposed were set forth and commented upon.
Four cases dealing with crimes committed during black-outs were described; those decisions in which the death penalty had been imposed were approved, the others were all criticized for being too mild. Six cases dealing with sex offenses followed; the sentences in five of them were condemned as utterly inadequate. No case was cited where the sentence was thought too severe.
At the end of the letter, three cases dealing with Jews were discussed in great detail. One of these dealt with the racial law which required all Jews to adopt the surname “Sarah” or “Israel” according to their sex. A Jewish woman had neglected to apply to the telephone company to change her listing by the addition of the name “Sarah.” The district court sentenced her to a fine of thirty reichsmarks, or 19 days in prison. The court set forth in its opinion that certain other courts had construed the law as not requiring an application to change a telephone listing, and that the Jewess might have relied on these decisions. Thierack’s letter described the Jewess’ action as “typical Jewish camouflage in her business dealings” and stated that the lack of uniformity in the decisions in no way justified leniency in the punishment.
In the second case, a special coffee ration had been distributed in a certain town, in the autumn of 1940. A large number of Jews had applied to receive the ration. However, since Jews were automatically excluded from the distribution, they did not receive any coffee. The following year, the food authorities imposed a fine on the Jews for the offense of having applied for the coffee; thereupon several hundred Jews sought relief against the fine in the district court. The judge rescinded the fine on the basis of the statute of limitations and for other legal reasons, and expressed the opinion that the Jews had not committed any punishable act in merely applying for the coffee. On this decision, the Reich Minister’s letter commented as follows (NG-298, Pros. Ex. 81):
“The ruling of the local court, in form and content, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page-long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which, under any circumstances, avoided harming the prestigeof the food office and thus putting the Jew expressly in the right toward it.”
“The ruling of the local court, in form and content, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page-long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which, under any circumstances, avoided harming the prestigeof the food office and thus putting the Jew expressly in the right toward it.”
In the third case, a wealthy young Jew had committed certain violations of the German foreign currency regulations. The district court, although it found certain extenuating circumstances, imposed a heavy fine on the Jew and sentenced him to 2 years’ imprisonment. This decision particularly provoked the Reich Minister of Justice, who said (NG-298, Pros. Ex. 81):
“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of a different, but he is also of an inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment. Here, where a profiteering transaction typical of the defendant as a Jew, and to the disadvantage of the German people, had to be judged, the verdict, in awarding punishment, must take into consideration in the first place that the defendant for years had deprived the German people of considerable assets. * * * This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment.”
“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of a different, but he is also of an inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment. Here, where a profiteering transaction typical of the defendant as a Jew, and to the disadvantage of the German people, had to be judged, the verdict, in awarding punishment, must take into consideration in the first place that the defendant for years had deprived the German people of considerable assets. * * * This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment.”
Beginning with this issue in October 1942, the Judges’ Letters were issued regularly and continued to be filled with exhortations to the utmost ruthlessness in the imposition of sentences. Later on, they were supplemented by Lawyers’ Letters (Rechtsanwaltbriefe). As time went on, German criminal law and procedure scarcely retained any other elements than that of threatening wavering elements of the population into submission. The wholesale destruction of legal process culminated at the very end of the war in the creation of the emergency civilian courts martial, which have already been mentioned. These courts martial were given jurisdiction “for all kinds of crimes endangering the German fighting power or undermining the people’s defensive strength”[38]and, if they found the defendant guilty, could impose only the death sentence. The end of the war cut short the life of these tribunals, after ten weeks of judicial terrorism.
Throughout the war, the administrative and penal branches of the Ministry of Justice continued to cooperate in protecting loyal followers of the Third Reich from criminal prosecution for their innumerable atrocities against Poles, Jews, and other “undesirable elements.” At the successful conclusion of the Polish campaign,an unpublished decree suspended all prosecutions against racial Germans in Poland for any punishable offenses which they might have committed against Poles during the Polish war “due to anger aroused by the cruelties committed by the Poles.” In 1941, the defendant Schlegelberger assured Rudolf Hess that he would consider “benevolently” an amnesty in any particular case of atrocities committed after the conclusion of the Polish campaign. An example of this “benevolent consideration” may be worth noting. Two Germans, one of whom was a sergeant of police, shot two Polish priests in Poland in the spring of 1940 “for no reason other than hatred for the Catholic clergy.” A Special Court imposed 15 years’ penal servitude for manslaughter. After 2 years of the sentence had been served, Himmler asked that the Germans be pardoned, and that it be made possible for them to “win their reprieve” through service at the front. At Himmler’s request, the Ministry of Justice reduced the sentence to 5 years, and both men were released from confinement and assigned to duty in a Waffen SS [armed SS] unit.
After the advent of Thierack and Rothenberger, cooperation between the Ministry of Justice and Himmler’s police became even closer. On 18 September 1942 Thierack and Rothenberger held a long conference with Himmler and other high ranking SS leaders at Hitler’s headquarters. Thierack’s notes of the meeting included the following (654-PS, Pros. Ex. 39):
“1. Correction by special treatment at the hands of the police in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS, and myself:a.In principle, the Fuehrer’s time is no longer to be burdened with these matters.b.The Reich Minister of Justice will decide whether and when special treatment at the hands of the police is to be applied.c.The Reich Leader SS will send the reports, which he sent hitherto to Reichsleiter Bormann, to the Reich Minister of Justice.d.If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.e.If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.f.In cases where the Fuehrer’s decision on a mild sentence is sought through other channels (such as by a letter from aGauleiter) Reichsleiter Bormann will forward the report to the Reich Minister of Justice. The case will then be decided as already described by the Reich Leader SS and the Reich Minister of Justice.“2. Delivery of antisocial elements from the execution of their sentences to the Reich Leader SS to be worked to death. Persons under security detention—Jews, gypsies, Russians, and Ukrainians, Poles with more than 3-year sentences; Czechs and Germans with more than 8-year sentences—will be turned over without exception according to the decision of the Reich Minister of Justice. First of all, the worst antisocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann.*******“14. It is agreed that, in consideration of the intended aims of the government for the clearing up of the eastern problems, in future Jews, Poles, gypsies, Russians, and Ukrainians are no longer to be tried by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. This does not apply to civil lawsuits, nor to Poles whose names are registered for, or entered in the German Racial Lists.”[39]
“1. Correction by special treatment at the hands of the police in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS, and myself:
a.In principle, the Fuehrer’s time is no longer to be burdened with these matters.
b.The Reich Minister of Justice will decide whether and when special treatment at the hands of the police is to be applied.
c.The Reich Leader SS will send the reports, which he sent hitherto to Reichsleiter Bormann, to the Reich Minister of Justice.
d.If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.
e.If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.
f.In cases where the Fuehrer’s decision on a mild sentence is sought through other channels (such as by a letter from aGauleiter) Reichsleiter Bormann will forward the report to the Reich Minister of Justice. The case will then be decided as already described by the Reich Leader SS and the Reich Minister of Justice.
“2. Delivery of antisocial elements from the execution of their sentences to the Reich Leader SS to be worked to death. Persons under security detention—Jews, gypsies, Russians, and Ukrainians, Poles with more than 3-year sentences; Czechs and Germans with more than 8-year sentences—will be turned over without exception according to the decision of the Reich Minister of Justice. First of all, the worst antisocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann.
*******
“14. It is agreed that, in consideration of the intended aims of the government for the clearing up of the eastern problems, in future Jews, Poles, gypsies, Russians, and Ukrainians are no longer to be tried by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. This does not apply to civil lawsuits, nor to Poles whose names are registered for, or entered in the German Racial Lists.”[39]
We said at the outset that the defendants and their colleagues accomplished the complete overthrow of justice and law in Germany. The foregoing recital of the steps in this process and the proof to be introduced will, we think, make this abundantly clear. The Third Reich became a realm of despotism, death, and finally, of despair.
But the very perversion and brutality of the Nazi penal system may lead us to think of it as aimless cruelty, which it is not. Fanatical, ruthless, and even unbalanced as the German leaders might have been, they were never purposeless. Law and justice were destroyed for a reason. They were destroyed because by their very nature they stood athwart the path of conquest, destruction, and extermination which the lords of the Third Reich were determined to follow. The Nazi Special Courts, double jeopardy, the flouting of the letter and the spirit of the law—those things were not ends in themselves. They were methods deliberately adopted for the purpose of causing death, torture, and enslavement. Now that we have traced the steps in the conspiracy, it is timely that we examine the murders and other atrocities which were its intended and actual outcome.
COUNTS TWO AND THREE
WAR CRIMES AND CRIMES AGAINST HUMANITY
Two facts stand out when we study the crimes charged in this indictment. First, the diabolical novelty presented by the designed use of a nation’s system of justice and its machinery by the governing power of that nation, as a weapon of destruction—an instrumentality of murder, kidnapping, slavery, torture, brutality, and larceny. Second, the mass character, and therefore the enormity of the crimes committed by these defendants with this new weapon—this headman’s axe fashioned from the scales of justice in a forge, stoked with national greed and racial bigotry and hatred, fanned by blasts of directed propaganda and shaped by the calculated blows of designedly infamous legislation, controlled and dominated courts, and a studied effort to make ineffective or to eliminate completely, the defensive aids customarily enjoyed by defendants in the courts of civilized nations.
These facts in turn have the definite effect of confusing and dulling the minds of lawyers and laymen alike, so that they do not clearly understand either the right and the power of this Tribunal to try these defendants under international law or the simple standards by which their crimes can be measured and judged.
It follows, therefore, that we should now pause at the threshold of this trial to make clear the authority under and by which we act, and the time honored standards under which we shall assert and prove the guilt of these defendants.
A concise review of recent history will be helpful and therefore proper.
On 30 October 1943 Prime Minister Churchill, Premier Stalin, and President Roosevelt issued their Moscow Declaration. That part which is pertinent to an understanding of what we do here reads as follows:
“The above Declaration is without prejudice to the case of the major criminals whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies.”[40]
“The above Declaration is without prejudice to the case of the major criminals whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies.”[40]
It is clear that those criminals whose offenses have no particular geographical localization, are to be “punished,” not necessarily tried, by the “joint decision,” not necessarily a joint or international tribunal, of the Allies. The basic policy to punish is thus clearly laid down.
Thereafter, the same three powers met at Potsdam after theunconditional surrender of Germany. At this meeting representatives of the French nation also participated. There agreements and understandings relative to the future policies to be pursued by those governments toward Germany and war criminals were reached. Two of them should be recalled, because they throw light upon the stature and the international character of this Tribunal and also of the purpose behind the definition of the crimes for the commission of which these defendants have been indicted and are being tried.
In the statement released at Potsdam on 2 August 1945, they said:
“The three governments have taken note of the discussions which have been proceeding in recent weeks in London * * * with the view to reaching agreement on the methods of trial of those major war criminals whose crimes under the Moscow Declaration of October 1943 have no particular geographical localization, * * * they regard it as a matter of great importance that the trial of those major criminals shall begin at the earliest possible date.”
“The three governments have taken note of the discussions which have been proceeding in recent weeks in London * * * with the view to reaching agreement on the methods of trial of those major war criminals whose crimes under the Moscow Declaration of October 1943 have no particular geographical localization, * * * they regard it as a matter of great importance that the trial of those major criminals shall begin at the earliest possible date.”
We thus see that the three powers have now advanced from their thinking at Moscow, in that they have determined the method by which these criminals are to be “punished.” But the method of trial is still to be the result of the “joint decision” of the powers who signed the Moscow Declaration, concurred in by the representatives of the French nation. The decision to try by judicial proceeding came six days later at London.
But another significant decision was reached at Potsdam. The powers concerned reached agreement on “The Political and Economic Principles to Govern the Treatment of Germany in the Initial Control Period.” Among these we find the following which are pertinent to an understanding of what we do here.
“A. Political Principles“1. In accordance with the agreement, * * * supreme authority in Germany is exercised, on instructions from their respective governments, by the commanders-in-chief of the armed forces (of the governments concerned) each in his own zone of occupation and also jointly, in matters affecting Germany as a whole, in their capacity as member of the Control Council.“2. So far as practicable, there shall be uniformity of treatment of the German population throughout Germany.“3. The purposes of the occupation of Germany by which the Control Council shall be guided are:*******“(III) To destroy the National Socialist Party and its affiliated and supervised organizations, to dissolve all Nazi institutions, to insure they are not revived in any form, * * *.“(IV) To prepare for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life in Germany.”
“A. Political Principles
“1. In accordance with the agreement, * * * supreme authority in Germany is exercised, on instructions from their respective governments, by the commanders-in-chief of the armed forces (of the governments concerned) each in his own zone of occupation and also jointly, in matters affecting Germany as a whole, in their capacity as member of the Control Council.
“2. So far as practicable, there shall be uniformity of treatment of the German population throughout Germany.
“3. The purposes of the occupation of Germany by which the Control Council shall be guided are:
*******
“(III) To destroy the National Socialist Party and its affiliated and supervised organizations, to dissolve all Nazi institutions, to insure they are not revived in any form, * * *.
“(IV) To prepare for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life in Germany.”
On 8 August 1945 the powers which were represented at Potsdam, through their equally accredited representatives, brought forth at London an agreement which in its preamble refers to “major war criminals,” and in article I, to “war criminals.” The agreement also contemplated an International Military Tribunal for the trial of such criminals and for a charter to define the constitution, jurisdiction, and functions of that Tribunal, which charter was in fact made a part of said agreement on the same day. Two things deserve our attention at this point. The charter defined crimes and thus fixed an objective standard by which “war criminals” were to be identified. The adjective “major” was thereupon immediately relegated to the role of superficial invective or at most to that of fixing a comparative standard of criminal importance, measured solely by the judgment of the committee of chief prosecutors or the practical and mechanical necessities of the actual trial. The crimes of most of these defendants are so great that if they choose, they may consider themselves slighted by the committee of chief prosecutors. The prosecution in this case shall do its ethical best to see that they were not fortunate.
On 20 December 1945, the same three Allied Powers which had issued the Moscow Declaration, and the same four Powers which had reached the Potsdam Agreements and entered into the London Agreement and created the Charter of the International Military Tribunal, also enacted Law No. 10 of the Control Council for Germany.
Law No. 10 provided for this Tribunal and the method by which it was thereafter to be brought into existence; defined the crimes over which it exercises jurisdiction, and adequately described the persons it had jurisdiction to try and punish and the punishment it was authorized to impose. The preamble clearly discloses that Law No. 10 was enacted and therefore this Court was created to accomplish two purposes, first—
“In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945 and the Charter issued pursuant thereto,”
“In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945 and the Charter issued pursuant thereto,”
and second,
“In order to establish auniform legal basisin Germany for the prosecution of war criminals and other similar offenders,other than those dealt with by the International Military Tribunal.”
“In order to establish auniform legal basisin Germany for the prosecution of war criminals and other similar offenders,other than those dealt with by the International Military Tribunal.”
Although this preamble does not expressly say so, it is clear that the second purpose is to implement the Potsdam Agreement, which required “uniform treatment of the German population throughout Germany” as an inter-allied multipowered policy. The policy was thus made inter-allied. The method of implementing it was all that was delegated as a matter of right, not power, to the several contracting nations acting within their zones of occupation through their zonal commander. This Tribunal therefore is international in its source as well as in its jurisdiction over subject matter and persons.
On 30 September and 1 October 1946, approximately 13 months after the London Agreement and Charter were created and more than 9 months after Law No. 10 was promulgated, the International Military Tribunal rendered its decision and judgment upon the individual defendants whom it found guilty.
After the judgment of the International Military Tribunal on 18 October 1946, the Zone Commander of the American Zone, for the purpose of implementing Law No. 10 of the Inter-Allied Control Council for Germany, and to carry out the purposes therein stated and previously agreed upon by the four signatory powers at London and Potsdam, promulgated Ordinance No. 7, concerning the organization and powers of certain military tribunals. That ordinance brought this Tribunal into existence and laid down many of the procedures under which it operates, but it did not restrict nor limit its jurisdiction over persons or subject matter set out in Law No. 10 nor did it define new crimes.
Nothing that has been done since the four Powers adopted the London Agreement and Charter has operated to materially limit the jurisdiction over persons and subject matter of this Tribunal from that conferred upon the International Military Tribunal by those international instruments.
A study of the charter, Law No. 10 and Ordinance No. 7 discloses that Law No. 10, article II, paragraph 5 tolls any and all statutes of limitations for the period from 30 January 1933 to 1 July 1945. It also contains provisions which have the effect of depriving this Tribunal of recognizing as a valid defense in this trial any immunity, pardon or amnesty granted to any of these defendants by the Nazi government. This is a limitation not imposed by the charter upon the International Military Tribunal.
Likewise, Ordinance No. 7, article X is in no wise a limitation upon the powers of this Court to determine the guilt or innocence of these defendants.[41]It reads as follows:
“The determinations of the International Military Tribunal in the judgments in Case No. 1 that invasions, aggressive acts, aggressive wars, crimes, atrocities or inhumane acts were planned or occurred, shall be binding on the tribunals established hereunder and shall not be questioned except insofar as the participation therein or knowledge thereof by any particular person may be concerned. Statements of the International Military Tribunal in the judgment in Case No. 1 constitute proof of the facts stated, in the absence of substantial new evidence to the contrary.”
“The determinations of the International Military Tribunal in the judgments in Case No. 1 that invasions, aggressive acts, aggressive wars, crimes, atrocities or inhumane acts were planned or occurred, shall be binding on the tribunals established hereunder and shall not be questioned except insofar as the participation therein or knowledge thereof by any particular person may be concerned. Statements of the International Military Tribunal in the judgment in Case No. 1 constitute proof of the facts stated, in the absence of substantial new evidence to the contrary.”
This provision is couched in language calculated to adequately safeguard the rights of defendants, so that, by the same reasoning, it cannot be said to operate as an oppressive rule, which in any material manner unduly restricts this Court in making its own ultimate determination as to the guilt or innocence of these defendants. It is a reasonable rule designed to avoid undue repetitious production of acknowledged facts in the trial of this cause. As such it does not detract from the dignity of this Court nor affect the concurrent nature of the jurisdiction which this Court enjoys in relation to the International Military Tribunal.
In conclusion, therefore, we take the position that this Tribunal, like the International Military Tribunal, derives from the “joint decision” of the signers of the Moscow Declaration and of the French nation; that the subject matter over which it has jurisdiction, the crimes which it has jurisdiction to try, are codified by the same powers, and that it has jurisdiction over the same persons, those persons who are charged by indictment with having committed these crimes. These are the basic elements upon which concurrent jurisdiction as a matter of law has always been determined to exist by all courts which have had occasion to decide this question.
We have belabored this question of the equal dignity and concurrent jurisdiction of this Tribunal with that of the International Military Tribunal for reasons which are legal and also arise from the standpoint of policy. To us they seem important and because they do, a due regard for the candor owed to this Tribunal and to the world obligates us to state them.
Mr. LaFollette: First, we believe that this Tribunal has the right and power to decide all questions of law, other than the “criminal nature” of those groups or organizations which the International Military Tribunal found to be criminal, and as distinguished from the ultimate facts set out in Ordinance No. 7, article X, as original questions of law which it has the right to decide, contrary to the decisions reached by the International Military Tribunal, if it is convinced that a proper interpretationof the Charter and Law No. 10, or of the ultimate facts to be inferred from the evidence in this case, require it logically, and therefore, by the exercise of intellectual integrity, to reach a contrary decision. We do not deny the persuasive authority of the decision and judgment of the International Military Tribunal, but we point out that between the International Military Tribunal and this Tribunal the relationship of a court of superior jurisdiction to that of one of inferior jurisdiction does not exist in fact or in law. Therefore the decision and judgment of the International Military Tribunal is not binding upon this Court; except to the extent fixed by said article X and the other provisions which are referred to.
Second, from the standpoint of policy the prosecution believes it owes it not only to this Tribunal but to the world to establish the concurrent jurisdiction and therefore the equal dignity of this Tribunal and of the proceedings before it, with those before the International Military Tribunal, which preceded it. We try here war criminals charged with the commission of international crimes, codified as such, by the same nations which codified the crimes for which the International Military Tribunal tried the defendants indicted and arraigned before it. This is not an American side show, national in character. On the contrary, it is the avowed program of the Government of the United States to carry on the obligation assumed at Moscow in 1943 by living up to the inter-Allied agreements made at Potsdam in 1945. Finally, we assert the high character of this Tribunal and therefore of the proceeding before it, in order that we ourselves may understand the high judicial character of our actions and the obligations of candor and ethical conduct which these proceedings of necessity impose upon counsel appearing before this bar.
We try these defendants, therefore, in a Court whose authoritative source and whose jurisdiction over subject matter and persons is equal to, and concurrent with, the International Military Tribunal (IMT). We try them for crimes, war crimes, and crimes against humanity, which were unlawful, as alleged in the indictment, when committed because they were in violation of the “universal moral judgment of mankind” as attested by the judicial decision of the International Military Tribunal.
We try them in an international court for crimes under international law which finds its authority not in power or force, but in the universal moral judgment of mankind.
We shall now present our general theory of the prosecution’s case. In doing so, we shall outline the broad legal principles which establish the relevancy of our evidence to the crimes charged. We shall not, at this time, except perhaps for the purpose of illustration,relate it to each of these defendants. That will be done adequately enough to satisfy the Court and disconcert the defendants when we sum up.
In count two of this indictment, we charge these defendants with the commission of war crimes as defined in article II, paragraph 1(b) of Law No. 10, and in count three we charge them with the commission of crimes against humanity as defined in Law No. 10, article II, paragraph 1(c). We have demonstrated that as we have charged these crimes in this indictment, we only ask for convictions for the same crimes for which the defendants before the IMT were tried; therefore, we adopt basically the following statements from the decision of the IMT:
“With respect to war crimes, however, as has already been pointed out, the crimes defined by article 6, section (b) of the Charter [which are the same crimes defined by Law No. 10, article II, paragraph 1(b)] were already recognized as war crimes under international law.”[42]
“With respect to war crimes, however, as has already been pointed out, the crimes defined by article 6, section (b) of the Charter [which are the same crimes defined by Law No. 10, article II, paragraph 1(b)] were already recognized as war crimes under international law.”[42]
There’s a parenthetical statement in there, Your Honors will note.
“But it is argued that the Hague Convention does not apply in this case, because of the ‘general participation’ clause of article 2 of the Hague Convention of 1907. * * *.“In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.“A further submission was made that Germany was no longer bound by the Rules of Land Warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were a part of Germany. * * *. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that theseterritories were never added to the Reich, but a mere protectorate was established over them.“* * * but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.”[43]
“But it is argued that the Hague Convention does not apply in this case, because of the ‘general participation’ clause of article 2 of the Hague Convention of 1907. * * *.
“In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.
“A further submission was made that Germany was no longer bound by the Rules of Land Warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were a part of Germany. * * *. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that theseterritories were never added to the Reich, but a mere protectorate was established over them.
“* * * but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.”[43]
It is proper to point out also, that in order to establish the guilt of any of these defendants for crimes against humanity, it is not necessary that they themselves shall be indicted for or convicted of a crime against peace; that is, the waging of aggressive war, which the IMT held began on 1 September 1939.
In the trial before the IMT the record discloses that seven defendants were convicted of crimes against humanity, who either were not indicted for, or were found not guilty of, participation in a conspiracy to commit crimes against peace or of the commission of a crime against peace.
We want to discuss briefly the substantive law under which we try this case.
Law No. 10, article II, paragraph 2 is part of the substantive law under which this indictment is brought. An effective presentation of the meaning and effect of this paragraph is aided by presenting those parts of it which are relevant to this case verbatim at this time:
“Any person without regard to nationality or the capacity in which he acted is deemed to have committed a crime as defined in paragraph 1 of this article, if he was (a) a principal, or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or * * *.”[44]
“Any person without regard to nationality or the capacity in which he acted is deemed to have committed a crime as defined in paragraph 1 of this article, if he was (a) a principal, or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or * * *.”[44]
Clause (f) of the above paragraph applies only to crimes against peace, for which none of these defendants is indicted.
We are not concerned in this opening statement with discussing niceties of legal draftsmanship nor shall we now use American legal terminology to describe the ultimate relationship of defendants, whose guilt is fixed by paragraph 2 of article II to the overt act; namely, any crime as defined in paragraph 1 of articleII. But we are concerned with offering to this Court our observation upon its legal effect.
We do not concern ourselves now with principals or accessories. We do discuss the relationships arising out of the words “abetted” and the relationships set out in clauses (c), (d), and (e), paragraph 2 to the overt act. At the threshold, we point out that the crime, which defendants who occupy any of the relationships last referred to are guilty of committing, isany crime as defined in paragraph 1 of article II. The proof must show that a crime as defined in Law No. 10, article II, paragraph (1), that is, a crime within the jurisdiction of this Tribunal, was committed, but if it was committed by any of the defendants or a person other than the defendants in the dock or any of them, and any of these defendants abetted the doing of that act, was connected with a plan or enterprise to commit it, consented to its commission, or was a member of any organization or group connected with the commission of any crime within the jurisdiction of the Tribunal, he is guilty of committing that crime.
The IMT has given two persuasive interpretations of the meaning of the words “being connected with” which we cite.
In the case of the defendant Streicher who was found guilty of committing crimes against humanity, the IMT said:
“Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes, as defined in the charter, and constitutes a crime against humanity.”[45]
“Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes, as defined in the charter, and constitutes a crime against humanity.”[45]
The case of von Schirach is also most enlightening. Anschluss with Austria took place on 12 March 1938. Von Schirach was appointed Gauleiter of Vienna in July 1940. Von Schirach was found guilty of committing crimes against humanity.
The IMT said:[46]
“As has already been seen, Austria was occupied pursuant to a common plan of aggression. Its occupation is, therefore, a ‘crime within the jurisdiction of the Tribunal’, as that term is used in article 6 (c) of the Charter. As a result, ‘murder, extermination, enslavement, deportation and other inhumane acts,’ and ‘persecutions on political, racial or religious grounds’ in connection with this occupation constitute a crime against humanity under that article.”*******“The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated inthis deportation after he had become Gauleiter of Vienna. He knew that the best the Jews could hope for was a miserable existence in the ghettos of the East. Bulletins describing the Jewish extermination were in his office.”[47]
“As has already been seen, Austria was occupied pursuant to a common plan of aggression. Its occupation is, therefore, a ‘crime within the jurisdiction of the Tribunal’, as that term is used in article 6 (c) of the Charter. As a result, ‘murder, extermination, enslavement, deportation and other inhumane acts,’ and ‘persecutions on political, racial or religious grounds’ in connection with this occupation constitute a crime against humanity under that article.”
*******
“The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated inthis deportation after he had become Gauleiter of Vienna. He knew that the best the Jews could hope for was a miserable existence in the ghettos of the East. Bulletins describing the Jewish extermination were in his office.”[47]
It seems clear from these cases that there need be no prearrangement with, or subsequent request by, the person or persons who actually commit the crime and a defendant, to make him guilty as the IMT interpreted the words “being connected with.” It would appear to be sufficient that the defendant knew that a crime was being committed, and with that knowledge acted in relation to it in any of the relationships set out in paragraph 2 of article II which we have heretofore been discussing.
We think it is also helpful to call to the attention of the Court one rule of evidence by which the existence of a conspiracy, that is, the relationship of individuals to the doing of the overt act, is held to be established.
The case from which we quote arose out of the activities of the Ku Klux Klan during the height of its power in Indiana. The people of the United States, on that occasion, at least, had enough courage and foresight not to let that organization acquire the control of all of its judicial system, the way the people of Germany let these defendants and their fellow Nazis acquire control of and pervert theirs. Consequently, our incipient Nazis were tried. The court in the cited case held that the proof of the doing of the overt act was in itself evidence of the intent of the conspirators to commit the act so as to establish their intent to conspire. I quote from the decision: