“True it is, that if the evidence is as consistent with the innocence of the appellant as with his guilt, no conviction can be had. It is equally true that overt acts of the parties may be considered with other evidence and attending circumstances in determining whether a conspiracy exists,and where the overt acts are of the character which are usually, if not necessarily, done pursuant to a previous scheme and plan, proof of the acts has a tendency to show such preexisting conspiracy, so that when proved they may be considered as evidence of the conspiracy charged.”[48]
“True it is, that if the evidence is as consistent with the innocence of the appellant as with his guilt, no conviction can be had. It is equally true that overt acts of the parties may be considered with other evidence and attending circumstances in determining whether a conspiracy exists,and where the overt acts are of the character which are usually, if not necessarily, done pursuant to a previous scheme and plan, proof of the acts has a tendency to show such preexisting conspiracy, so that when proved they may be considered as evidence of the conspiracy charged.”[48]
We point out that proof of murders, enslavement, kidnapping, and mayhem, which are a few of the crimes committed through the device of a so-called legal and judicial process, are competent evidence that the preceding acts which perverted a judicial system into a means for committing such crimes were part of a plan and enterprise to make the commission of those crimes possible.
Presiding Judge Marshall: You are not giving the citation of the Indiana case?
Mr. LaFollette: I beg your pardon, Your Honor. It’s a C.C.A. case.
Presiding Judge Marshall: What was the page of the Federal second?
Mr. LaFollette: 365. This mimeograph may not be completely correct. I am sure that’s right. Otherwise, if that should not be correct I will advise the Court.
The overt acts are evidence under counts two and three of this indictment not only of the intent with which the preceding acts were done, but also of the fact that each of those defendants who knew that the preceding acts were being performed—and it is legally inconceivable to believe that they did not know—had knowledge of the fact that there was probable danger that the preceding acts would result in the overt crimes or that the preceding acts, being unlawfuleo ipsoand therefore felonious, would result in the overt acts as the natural consequence of preceding felonious acts. This is murder—whenever a homicide resulted from the foregoing act. And the murder being “an act usually done pursuant to” the “previous scheme and plans” establishes the guilty intent of each and all of the defendants to commit that murder who stood in any of the relationships to the murder defined in paragraph 2, article II of Law No. 10.
We have also said that it is an inevitable result of the murder of hundreds of thousands and millions of humans that such mass murder dulls our realization that the basic simple principles of the law which define the crime of murder of a single human furnish the standard by which was determined the guilt of those who have murdered those humans.
A review of these basic rules is therefore proper.
In 1877 Mr. Justice Stephen undertook to restate the English common law of homicide as he then found it. He states that an unlawful homicide, without adequate provocation, was murder, if it followed from an act accompanied by one of the following states of mind: (1) an intention to cause the death of or grievous bodily harm to any person; (2) knowledge that the act will probably cause either of the results, even though the actor hopes that they might not occur or is indifferent about them; or (3) an intention to commit a felony or to resist a peace officer in the execution of his duty.
As to the first category, no one can quarrel and there is evidence to support the commission of such murders by individual defendants.
As to the second category, Mr. Justice Holmes thought that the actor’s awareness of the danger was immaterial, that the standard was completely objective. In Comm.vs.Pierce (1884) 138 Mass. 165, page 178, he stated his view succinctly—
“When the jury are asked whether a stick of a certain size was a deadly weapon they are not further asked whether the defendant knew it was so.”
“When the jury are asked whether a stick of a certain size was a deadly weapon they are not further asked whether the defendant knew it was so.”
In any event, in this case before this Tribunal, we shall ask the Court to bear in mind that lawyers, by the very nature of their legal training and experience, knew that the enactment ofex post factolaws, specially designed racial legislation and other legislation directly designed to restrict and destroy the right to make an adequate defense to a criminal charge; the handpicking of judges and their control by state and party; the submergence of the courts and prosecutors to the superior authority of the police; pretrial agreement of judges and prosecutor on judgment and penalty; unlawful extraterritorial extension of German law and the issuance of the Nacht und Nebel [Night and Fog] decree contrary to the laws of war, would probably cause death of human beings, subjected to such a perverted judicial system. These defendants are not farmers or factory workers.
As to the third category, that of homicide resulting from the intention to commit a felony or while resisting arrest, it is not amiss to point out that those who are connected with a plan to extend, or who consent to, or abet the unlawful extension of German law and German courts into overrun countries contrary to the laws of war, are doing acts which amount to larceny while armed or robbery; and that those individuals who commit acts which abet or are connected with the waging of an aggressive war or a plan to do so, or who consent thereto, are resisting the efforts of the peace enforcing nations of the world to arrest the criminal. The evidence in this case will establish the unprovocated homicide of countless numbers as the result of the doing of such acts by these defendants which are clearly felony murders.
These are but the most apparent applications of the three categories of murder to the evidence in this case. Time will not permit our further exemplifying them now. They will be presented adequately when we summarize the evidence. We do not wish to be understood by furnishing these few examples as having exhausted the cases, where the application of the principles so readily understood when one life is taken by murderous homicide, to the evidence of this case, will establish murders and mass murders by these defendants. Furthermore, other crimes common to the criminal laws of civilized nations, such as enslavement, kidnapping, or mayhem, have been committed by these defendants, which canbe established by the application of similar basic principles to the evidence, which should make the task more simple and at the same time, by reducing the seeming complexities of mass criminality under international law to concepts with which the average citizen of a nation is acquainted, seem to serve the salutary purpose of increasing the hatred of the average man for war and to warn him of the dangers inherent in the totalitarian police state, dominated by the philosophy that the end justifies the means used to attain it.
The crimes charged in count two and in count three fall generally into several categories.
Substantively, there are first those war crimes which arise out of the violation of the laws and customs of war, including section I, articles 4–7; section II, article 23; section III, articles 43, 45, 46, and 50 of the Hague Regulations of 1907; and chapter 6, title I, articles 2–4 of the Prisoners of War Convention (Geneva 1929); and the decision and judgment of the IMT of 30 September and 1 October 1946.
These defendants, in one or more of the relationships set out in paragraph 2 of article II of Law No. 10, committed numerous criminal acts as defined in Law No. 10, article II.
These include, as the first substantive group of crimes, the wrongful extension of German law and German courts into and over the Eastern Territories and other overrun nations and the Protectorate, each of which, we contend, was not only an act done by these defendants in connection with, and in furtherance of, aggressive war, but also done by them for purely political reasons which made no pretense of being based upon military necessity, so that it wasipso factounlawful ormalum per seand made every act initiated thereafter under such wrongful extension, as against any of the defendants who are responsible under Law No. 10, article II, for that wrongful extension of German law, fall into the category of a felony, murder, or a criminal enslavement, mayhem, or atrocity; or a larceny while armed, or a robbery as to plunder of public or private property.
The other large group in this category of war crimes is the acts done in connection with the promulgation of the Nacht und Nebel decree of 7 December 1941 and the acts thereafter done in carrying out that program.
The second substantive group consists of the crimes arising out of the activities of the defendants in connection with the Gestapo, SIPO, SS, and other police groups in which either under the façade of judicial proceedings or by open violation of the meager protection afforded the individuals under Nazi law, Germans and non-Germans were turned over to enslavement and in many cases todemonstrable certain deaths in concentration camps, or in prisons where no pretense was made to operate them other than as concentration camps or human slaughterhouses.
The third group is the cases where, under alleged trials, in the People’s Court, Special Courts, and civilian courts martial, certain of these defendants, by the use of the prescribed procedures or those actually practiced, the fixing of penalties which outrage the universal moral judgment of mankind, and through convictions based only upon the subjective conclusions of the prosecutor or judge, which we describe now only as examples, give rise to the legal conclusion that the defendants thus convicted were murdered or unlawfully enslaved under the guise of exercising a judicial process.
The Court will get a better understanding of these basic categories of substantive crimes by the following illustrations from the evidence, which I will now ask Mr. Douglas King to first present at this time.
a. Murder Committed in Violation of Articles 43, 46, etc. of the Hague Convention
Mr. King: The extension of German law and German courts into conquered and occupied countries followed as a matter of course after the victorious German armies had done their work. In Poland and the Eastern Territories decrees of 4 October 1939 and 6 June 1940 introduced and extended the German jurisprudence into these countries. It was, however, unthinkable to the Nazi mind that a Pole should be able to appeal to German law, that he should have the right to sue a German before a German court in the capacity of a plaintiff, or to appear against a German in a case, or even to serve a writ of execution with the assistance of a bailiff.
To remedy this intolerable situation, the defendant Schlegelberger drafted a decree which, by its terms, placed beyond the reach of the Poles and Jews in the Eastern Territories the last vestige of protection of even the German law. This decree was made effective on 4 December 1941 and from time to time was later amended as the need arose. For instance, approximately a year later, it was amended and made retroactive for crimes committed prior to 4 December 1941. We think it will be of interest to the Court to have in Schlegelberger’s own words some of the background of this special treatment for the Poles and Jews in the Eastern Territories and his own statement as to the purposes which the decree was intended to accomplish. This letter was addressed to the Reich Minister and Chief of the Reich Chancellery (Lammers) and refers to Schlegelberger’s draft of the decreewhich a few months later was made effective on Hitler’s orders (NG-144, Pros. Ex. 199):[49]
“On being informed of the Fuehrer’s intention to discriminate in the sphere of the penal law between the Poles (and probably the Jews as well) and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and attorneys general of the Eastern Territories, the attached draft concerning the administration of penal laws against Poles and Jews in the annexed Eastern Territories and in the territory of the former Free City of Danzig.“This draft amounts to special legislation both in the sphere of substantive law and in that of criminal procedure. In this connection the suggestions made by the Fuehrer’s deputy have been taken into consideration to a great extent.”
“On being informed of the Fuehrer’s intention to discriminate in the sphere of the penal law between the Poles (and probably the Jews as well) and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and attorneys general of the Eastern Territories, the attached draft concerning the administration of penal laws against Poles and Jews in the annexed Eastern Territories and in the territory of the former Free City of Danzig.
“This draft amounts to special legislation both in the sphere of substantive law and in that of criminal procedure. In this connection the suggestions made by the Fuehrer’s deputy have been taken into consideration to a great extent.”
In referring to the various provisions of the ordinance, Schlegelberger has this to say (NG-144, Pros. Ex. 199):
“I have been in agreement with the opinion held by the Fuehrer’s deputy that a Pole is less sensitive to the imposition of an ordinary prison sentence; therefore, I have taken administrative measures to assure that Poles and Jews will be separated from other prisoners and that their imprisonment will be rendered more severe * * *.“For these new kinds of punishment the prisoners are to be lodged in camps—outside of prisons—and are to be employed with hard and very hard labor. There are also administrative measures which provide for special disciplinary punishment; that is, imprisonment in an unlighted cell, transfer from a prison camp to a more rigorous prison camp, etc.*******“A Pole or a Jew sentenced by a German court is not to be allowed in the future any legal remedy against the judgment. Neither will he have a right of appeal or be allowed to ask that the case be reopened. All sentences will take effect immediately. In the future Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions.*******“In this sphere of criminal procedure the draft clearly shows the difference in the political status of Germans on one side and Poles and Jews on the other.*******“Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of sentence and will therefore in no way be inferior to summary court proceedings. The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer’s political aims in the Eastern Territories.”
“I have been in agreement with the opinion held by the Fuehrer’s deputy that a Pole is less sensitive to the imposition of an ordinary prison sentence; therefore, I have taken administrative measures to assure that Poles and Jews will be separated from other prisoners and that their imprisonment will be rendered more severe * * *.
“For these new kinds of punishment the prisoners are to be lodged in camps—outside of prisons—and are to be employed with hard and very hard labor. There are also administrative measures which provide for special disciplinary punishment; that is, imprisonment in an unlighted cell, transfer from a prison camp to a more rigorous prison camp, etc.
*******
“A Pole or a Jew sentenced by a German court is not to be allowed in the future any legal remedy against the judgment. Neither will he have a right of appeal or be allowed to ask that the case be reopened. All sentences will take effect immediately. In the future Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions.
*******
“In this sphere of criminal procedure the draft clearly shows the difference in the political status of Germans on one side and Poles and Jews on the other.
*******
“Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of sentence and will therefore in no way be inferior to summary court proceedings. The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer’s political aims in the Eastern Territories.”
One of the amendments to this decree, on 3 December 1942 states that no German attorney is to undertake the defense of Polish persons before tribunals in the Incorporated Eastern Territories. This, in effect, prevented any accused person before these courts from having defense counsel, since Polish lawyers were prohibited from engaging in any legal practice. That this provision was received favorably by Ministry officials is indicated by a letter from the president of the court of appeals in Koenigsberg addressed to the Reich Minister of Justice shortly after this supplementary decree became effective. The judge, in the course of his letter, says this:
“It is in the German interest to continue to prohibit the defense of Poles by German jurists * * *.“I see no cause to lift or even to modify the present ban on defense of Poles by attorneys. On the contrary, the ban placed on the principle of rendering legal assistance to Poles by attorneys should be still further stressed and made more extensive.”
“It is in the German interest to continue to prohibit the defense of Poles by German jurists * * *.
“I see no cause to lift or even to modify the present ban on defense of Poles by attorneys. On the contrary, the ban placed on the principle of rendering legal assistance to Poles by attorneys should be still further stressed and made more extensive.”
To put to rest any fear that the ban of German attorneys would result in a competitive hardship on them, this judge has the following to say:
“The fear that, in the future, former Polish attorneys or counsel may be called in to act as legal advisers to Poles and may gain influence over them (i.e., German counsel) seems to me improbable. In the Incorporated Eastern Territories of my district, where, although the population numbers about one million, only three attorneys are established, it has not been observed that former Polish attorneys or counsel are engaging in activities connected with matters of law.“It is, of course, much easier for the tribunal to have the case of a person charged put before them by a lawyer nicely arranged and in the German language. But the judge must dispense with these facilities when such great issues are at stake for the German people.”
“The fear that, in the future, former Polish attorneys or counsel may be called in to act as legal advisers to Poles and may gain influence over them (i.e., German counsel) seems to me improbable. In the Incorporated Eastern Territories of my district, where, although the population numbers about one million, only three attorneys are established, it has not been observed that former Polish attorneys or counsel are engaging in activities connected with matters of law.
“It is, of course, much easier for the tribunal to have the case of a person charged put before them by a lawyer nicely arranged and in the German language. But the judge must dispense with these facilities when such great issues are at stake for the German people.”
The Court will, in due course, have an opportunity to examine all of these documents and an opportunity to observe the ruthless manner in which this “special legislation” was administered. It isperhaps superfluous to quote a statement by the president of the court of appeals of Danzig summarizing the “situation” in his district for a 2-month period in 1942 following the effective date of the decree of 4 December 1941. “There were,” he says, “no complaints about too lenient decisions during the period reported on.”
The defendant Schlegelberger, shortly after the decree became effective, conferred with the Reich Governor of Eastern Territories and worked out a system of administration pursuant to the decree of 4 December 1941, which (1) provided for summary courts martial, (2) delegated to the Reich Governor the sole right to grant amnesty, and (3) agreed to the holding of civilian prisoners as hostages. In summarizing the results of this conference the defendant Schlegelberger assured the Reich Governor that the “interest of the State can best be served by regulating matters along the lines of our unanimous consent.”
Thus, it is clear that the extension of German law and German courts into the Eastern Territories, especially insofar as the Poles and the Jews were concerned, eventually deprived them of any legal recourse whatsoever.
What has been said respecting the part played by key officials of the Ministry of Justice in extending German Law and the German court system to the occupied territories is equally true of Czechoslovakia and particularly the Protectorate of Bohemia and Moravia. In one sense, by virtue of the fact that Czechoslovakia fell to the Nazis before the war, the experience there served as a proving ground for measures which were later extended to the Eastern Territories and other occupied countries.
The decree of 14 April 1939 and the decrees of 2 November 1942 and of 1 July 1943, the texts of which, among others, will be presented in evidence, mark the progress of the Nazis in extending German jurisdiction to Czechoslovakia and are mute evidence of the “legal” justification for the robbery, extortion, and atrocities, the knowledge of which has already shocked the world. The prosecution will show that the Ministry of Justice not only had full knowledge of what was going on in the Protectorate, but its “experts” took a leading part in the establishment and administration of the court system in the Protectorate from the very outset to the end of the war as they did in the Eastern Territories.
As the evidence unfolds we will see the defendant Schlegelberger active in drafting “legal justification.” We shall see the defendant Lautz concerned with even minute matters of administration of the People’s Court in the trial of Czechoslovak nationals both in Prague and those removed for trial to Berlin, and we shall note that many of the other defendants were called uponfrom time to time for their assistance in making the court system function to the maximum required by National Socialist policies as they were enforced upon the Czechoslovak nation.
In refusing citizens of occupied territories protection of the law, the defendants abetted and brought about the murder of thousands of persons. The acts of the defendants violated the laws of the countries where committed and were repugnant to the laws of every civilized country. In administering occupied territory, the defendants were bound by the Hague Convention to respect “family honor and rights.” These obligations the defendants ignored, and so squarely placed themselves in the category of common war criminals.
b. The Night and Fog Decree
On 7 December 1941 the so-called Nacht und Nebel, or Night and Fog Decree was issued pursuant to the orders of Hitler and Keitel. Perhaps never in world history has there been a more perverted and diabolical plot for intimidation and repression than this. Its terms provided that in case of continued resistance on the part of the inhabitants of certain of the occupied countries, but largely aimed at France, Belgium, and the Low Countries, the suspected perpetrators should be spirited away without any indication of their whereabouts or eventual fate. The victims were to be tried by the OKW in the occupied territories only when it appeared probable that death sentences would be quickly passed and executed. The others were to be taken to Germany, there to be tried by Special Courts. Whether the death sentence was there imposed, prison sentences given, or the individuals “acquitted,” the first and foremost purpose—that of complete secrecy so far as their family and friends were concerned—was to be preserved. Thus, it is clear that the cognomen of Night and Fog was well chosen since in theory and practice the victims vanished as in the blackness of night and were never heard of again.
In the IMT opinion, the Court observed that—
“The evidence is quite overwhelming of a systematic rule of violence, brutality, and terror. * * *. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came or even their relatives; even in cases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person. Hitler’s purpose in issuing this decree was stated by the defendant Keitel in a covering letter, dated 12 December 1941, to be as follows:“‘Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relativesof the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany.’”[50]
“The evidence is quite overwhelming of a systematic rule of violence, brutality, and terror. * * *. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came or even their relatives; even in cases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person. Hitler’s purpose in issuing this decree was stated by the defendant Keitel in a covering letter, dated 12 December 1941, to be as follows:
“‘Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relativesof the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany.’”[50]
Preparations for the carrying out of the decree on the part of the Wehrmacht were entrusted to Lieutenant General Lehmann[51]of the legal department of the OKW. He conferred with various members of the Ministry of Justice to determine whether the Ministry would be able and willing to assume the trials of the captured individuals shipped to Germany from the occupied countries. It is more than interesting to note from a statement signed by General Lehmann that, in his opinion, the defendant Schlegelberger was the only official in the Ministry of Justice at that time who had the authority to agree to assume the trial of these cases.
The total number of victims of Nacht und Nebel may never be known, but we do know that as of 1 November 1943 the Wehrmacht had delivered a total of more than 5,200 Nacht und Nebel prisoners for trial to the several courts throughout Germany designated by the Ministry of Justice for that purpose.
Originally there were four Special Courts assigned to handle the Nacht und Nebel cases. The Special Court at Kiel was assigned to the cases arising in Norway; Cologne to the French cases; Essen to Belgium; and Berlin for cases of a special nature. In the later stages of the Nacht und Nebel program the effectiveness of Allied bombing made it necessary to shift the location of some of these courts, principally in the transfer of the Cologne court to Breslau.
When we call the roll of the defendants before us today who acted in and were principally responsible for the large part which the Ministry of Justice played in the Nacht und Nebel program, we find there the names of Schlegelberger, von Ammon, Mettgenberg, Lautz, Engert, and Joel, in addition to others who played less conspicuous, if not less important, roles. If we were to select one of these men who above all others should have known the criminal nature of the Nacht und Nebel program, such a man might very well have been the defendant von Ammon who was the Ministry of Justice’s specialist in international law. Yet the fact is that the name, von Ammon, together with that of Mettgenberg recur again and again as the principal negotiators with the OKW in matters concerning the application of law and the administration of the Nacht und Nebel program.
The Reich Minister of Justice, in a letter to the public prosecutors charged with trying Nacht und Nebel cases, outlined indetail the measures which were to be taken to assure complete secrecy of the trials. This letter, from which we quote extensively as follows was endorsed, among others, by von Ammon (NG-269, Pros. Ex. 319):
“With regard to criminal procedures on account of punishable offenses against the Reich or against the occupying forces in the occupied territories, I request observance of the following directives, in order not to endanger the necessary top secrecy of the procedure, particularly regarding the execution of death sentences and other cases of death among prisoners:“1. The cards used for investigations for the Reich criminal statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.“2. In cases of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the registrar must be notified as prescribed by law. However, the following remark has to be added:“‘By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death or birth certificates is admissible only with the consent of the Reich Minister of Justice.’“3. In case an NN prisoner sentenced to death desires to draw up a public will, the judge or notary public and, if necessary, other persons whose presence is required will have access to the prisoner. Only officials of the Ministry of Justice may be called as witnesses. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Testaments Law. The disposition receipt has to be kept by the prosecution until further notice.“4. Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.“5. If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.“6. The relatives will not be informed of the death, especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.“7. The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.“The bodies must not be used for teaching or research purposes.“8. Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.”
“With regard to criminal procedures on account of punishable offenses against the Reich or against the occupying forces in the occupied territories, I request observance of the following directives, in order not to endanger the necessary top secrecy of the procedure, particularly regarding the execution of death sentences and other cases of death among prisoners:
“1. The cards used for investigations for the Reich criminal statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.
“2. In cases of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the registrar must be notified as prescribed by law. However, the following remark has to be added:
“‘By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death or birth certificates is admissible only with the consent of the Reich Minister of Justice.’
“3. In case an NN prisoner sentenced to death desires to draw up a public will, the judge or notary public and, if necessary, other persons whose presence is required will have access to the prisoner. Only officials of the Ministry of Justice may be called as witnesses. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Testaments Law. The disposition receipt has to be kept by the prosecution until further notice.
“4. Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.
“5. If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted. If necessary, the padre must be sworn to secrecy.
“6. The relatives will not be informed of the death, especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.
“7. The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State police for burial. Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.
“The bodies must not be used for teaching or research purposes.
“8. Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served.”
It is not our purpose here to review all of the gruesome details of carrying out the spirit of the Nacht und Nebel program which became the daily routine of these defendants. As the Court will see, all of the stipulations regarding the secrecy of the original decree and indeed the addition of other unbelievably harsh and inhuman provisions were systematically executed and improved upon by these men. If, to take one example, the Wehrmacht erroneously arrested in the occupied countries individuals who were patently innocent of any resistance to the Nazis, these victims, in order to preserve the secrecy of the program, had to be treated in exactly the same way as other individuals who managed to escape with a prison sentence. Never did the families and friends of the convicted or innocent know their fate. In the alleged trials before the Special Courts none of the accused was, at any time, ever able to introduce evidence from his own country as to his innocence and, in no case, were the accused permitted to choose legal counsel other than that assigned to them by the court.
Again the defendants flagrantly violated rights secured by the Hague Convention of citizens of countries occupied by the German armed forces—the right of family honor, the lives of persons, and the right to be judged under their own laws.
c. Illegal Transfer of Prison Inmates to Concentration Camps
Mr. Wooleyhan: A Ministry of Justice policy of extermination through calculated denial of all judicial and penal process, in close collaboration with the Gestapo and SS, characterizes the second substantive group of crimes previously mentioned. By 1939, inspections of Reich penitentiaries operated by the Ministry of Justice disclosed that large numbers of political prisoners in security detention were engaged in paid labor on projects incompatible with the rearmament effort which then was at a climax. At Hitler’s order these prison inmates were transferred to concentration camps where their work could be both unpaid and ofmore use to munition requirements. Thus was initiated a program which was to eventually erase any practical difference between the fates of those victims who were put through the shams of criminal court procedure, and those who were thrown by the police into concentration camps without the formality of a hearing.
Apparently noting that transfers from Reich prisons to concentration camps aroused no immediate public clamor or official opposition, judges saw therein an outlet for increasingly burdensome numbers of criminal cases, particularly political cases, as the defendant Engert has stated (NG-471, Pros. Ex. 276):
“In 1940 or 1941 I wrote to Himmler suggesting that he take me into the Gestapo. My idea was to get in closer touch with the Gestapo in order to get an insight into the activities of the Gestapo, and then to reach a better relationship between the Gestapo and the People’s Court. * * * I also wanted to prevent the possibility of insignificant cases being brought up in the People’s Court, which could be better handed over to the Gestapo for a short term internment in a concentration camp.”
“In 1940 or 1941 I wrote to Himmler suggesting that he take me into the Gestapo. My idea was to get in closer touch with the Gestapo in order to get an insight into the activities of the Gestapo, and then to reach a better relationship between the Gestapo and the People’s Court. * * * I also wanted to prevent the possibility of insignificant cases being brought up in the People’s Court, which could be better handed over to the Gestapo for a short term internment in a concentration camp.”
About the time that Engert, then vice president of the People’s Court, made this overture to Himmler, he began to complain officially that it was incompatible with the respect, dignity, and tasks of the People’s Court to try minor political cases. He opined that such cases could be settled more quickly and effectively by transferring the culprit to a concentration camp. Thierack, then president of the People’s Court, in heartily endorsing Engert’s attitude, wrote to the Minister of Justice in 1940 in part as follows:
“However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia,it is wrong for every follower, even the smallest,to be given the honor of appearingfor trial and being judged for high treasonbefore the People’s Court, orfailing that,before an appellate court. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and will take action accordingly. That can be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small hangers-on who are somehow connected with the high treason plans which have been woven and abetted and plotted by others are brought to their senses by being transferred to a concentration camp for some time.”
“However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia,it is wrong for every follower, even the smallest,to be given the honor of appearingfor trial and being judged for high treasonbefore the People’s Court, orfailing that,before an appellate court. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and will take action accordingly. That can be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small hangers-on who are somehow connected with the high treason plans which have been woven and abetted and plotted by others are brought to their senses by being transferred to a concentration camp for some time.”
These opinions and desires of Engert and Thierack found eager and sympathetic audience with the Gestapo and SS, resulting inworking agreements between these agencies and the Ministry of Justice whereby such illegal transfers could be accomplished outside the law. As the International Military Tribunal in its judgment has found—
“An agreement made with the Ministry of Justice on 18 September 1942 provided that antisocial elements who had finished prison sentences were to be delivered to the SS to be worked to death.”[52]
“An agreement made with the Ministry of Justice on 18 September 1942 provided that antisocial elements who had finished prison sentences were to be delivered to the SS to be worked to death.”[52]
This agreement, it will be noted, expanded the initial ideas of Engert and Thierack far beyond any more hastening of minor political court cases or exploitation of prison labor. The agreement introduced the ideas of exterminating the so-called “asocials,” i.e., persons who for either racial, political, or personality reasons were deemed unfit to live. Within a month after this agreement had been worked out and put into practice, it was expanded further to include not only those “asocial” elements who had finished their prison sentences, but also all Jews, gypsies, Russians, and Ukrainians who were detained under arrest or imprisonment in any Reich penitentiary or work house, as well as all Poles who were sentenced to more than 3 years.
Now, since the intentional design was to literally work these people to death once they were transferred to concentration camps, this expanded illegal agreement actually rendered any court sentence for any crime tantamount to a death sentence.
In some cases the death awaiting these unfortunates was not long in coming. For example, a situation report in 1942 from the Attorney General of the Court of Appeals in Berlin to the defendant Schlegelberger, while the latter was Acting Minister of Justice, revealed the following episode:
“In this connection I think I ought to point out that only recently perpetrators have been repeatedly handed over to the Gestapo. Also, there was no sufficient cause therefore, to be found in my opinion, in the conduct of the justice authorities. I am referring to criminal procedures against Skibbe and others * * *.”
“In this connection I think I ought to point out that only recently perpetrators have been repeatedly handed over to the Gestapo. Also, there was no sufficient cause therefore, to be found in my opinion, in the conduct of the justice authorities. I am referring to criminal procedures against Skibbe and others * * *.”
Then follows the citation of the case in the German files:
“ * * * in which 4 defendants—26, 22, 20, and 18 years of age, respectively—accused of committing 23, 19, 15, and 12 completed or attempted robberies, respectively, by taking advantage of air raid protection measures, were sentenced by the Special Court of Berlin to 7, 6, and 5½ years of penal servitude and loss of civil rights for 10 years’ each. Although 3 of the perpetrators had not been convicted previously and the fourth one only of 2 comparatively minor crimes, in addition to allof them still being comparatively young and, at least in my opinion, the pronounced penalties being not inadequate, these perpetrators were handed over to the Gestapo. They were shot, as could be seen from the newspaper reports ‘because they offered resistance.’ May I remark that it is hardly unknown to the public any longer that these shootings ‘because of resistance offered’ are actually caused by other considerations.”
“ * * * in which 4 defendants—26, 22, 20, and 18 years of age, respectively—accused of committing 23, 19, 15, and 12 completed or attempted robberies, respectively, by taking advantage of air raid protection measures, were sentenced by the Special Court of Berlin to 7, 6, and 5½ years of penal servitude and loss of civil rights for 10 years’ each. Although 3 of the perpetrators had not been convicted previously and the fourth one only of 2 comparatively minor crimes, in addition to allof them still being comparatively young and, at least in my opinion, the pronounced penalties being not inadequate, these perpetrators were handed over to the Gestapo. They were shot, as could be seen from the newspaper reports ‘because they offered resistance.’ May I remark that it is hardly unknown to the public any longer that these shootings ‘because of resistance offered’ are actually caused by other considerations.”
Still operating completely beyond any existing law, decree or regulation, this same cabal of justice officials, SS and Gestapo extended this policy of extermination through the Occupied Eastern Territories. As the SS and SD offices throughout those eastern countries were instructed in November 1942—
“The Reich Leader SS has come to an agreement with the Reich Minister of Justice Thierack that the courts will forego the carrying out of regular criminal procedures against Poles and members of the eastern peoples. These people of foreign extraction henceforth shall be turned over to the police. Jews and gypsies are to be treated likewise. This agreement was approved by the Fuehrer.”
“The Reich Leader SS has come to an agreement with the Reich Minister of Justice Thierack that the courts will forego the carrying out of regular criminal procedures against Poles and members of the eastern peoples. These people of foreign extraction henceforth shall be turned over to the police. Jews and gypsies are to be treated likewise. This agreement was approved by the Fuehrer.”
These instructions to the SS and SD in the East continue:
“Those considerations which may be right for the punishment of an offense committed by a German are wrong with regard to the punishment of an offense committed by a person of foreign extraction. The personal motives of the offender are to be disregarded completely. Important only is that this offense endangers the order of the German community, and that, therefore, measures must be taken to prevent further dangers. In other words, the offense committed by a person of foreign extraction is not to be judged from the point of view of legal retribution by way of justice, but from the point of view of preventing danger through police action. From this follows that the criminal procedure against persons of foreign extraction must be transferred from the courts to the police.”
“Those considerations which may be right for the punishment of an offense committed by a German are wrong with regard to the punishment of an offense committed by a person of foreign extraction. The personal motives of the offender are to be disregarded completely. Important only is that this offense endangers the order of the German community, and that, therefore, measures must be taken to prevent further dangers. In other words, the offense committed by a person of foreign extraction is not to be judged from the point of view of legal retribution by way of justice, but from the point of view of preventing danger through police action. From this follows that the criminal procedure against persons of foreign extraction must be transferred from the courts to the police.”
With the Jews, Poles, gypsies, Ukrainians and other so-called “asocial” persons throughout the occupied east relegated to a carefully prepared death, this same unholy alliance returned its attention to the Reich and the Protectorate of Bohemia and Moravia. There, by the infamous decree of 1 July 1943,[53]signed among others by Thierack, all of the foregoing perversions of judicial and penal process were tardily “legalized” by officially denying to all Jews any recourse to the criminal courts and committed any Jews accused of an undefined “criminal action” to the police.
With grim humor the following article of that statute ordered the confiscation by the Reich of a Jew’s property after his death.
This decree completed the absolute disfranchisement and expropriation of property of Jews in the Third Reich and Bohemia and Moravia who had not already, by that time, been deported or slain.
Prison inmates not transferred to concentration camps, pursuant to the foregoing program, were hardly better off in Reich prisons under the hospitality of the Minister of Justice. The defendant Joel had a working agreement with a deputy of Himmler’s whereby he turned over to the SS, for shooting, those defendants whose sentences by the courts were deemed insufficient by Hitler who followed published decisions in the newspapers. A number of charts tabulating the shootings of such defendants, many of whom had received only minor sentences, attest to Joel’s zealous activity on this score. Schlegelberger, too, studiously concocted what was deemed a “legal basis” for these shootings of prison inmates serving minor sentences.
d. Judicial Murders in Violation of International Law
Victims of the People’s Court, Special Courts, and civil courts martial were judicially murdered by certain of the defendants using a variety of legalistic artifices, all of which had the obvious common denominator of a zealous desire to exterminate even trifling activity not even deemed misdemeanors by the community of civilized nations. One such artifice frequently employed was a subjective, conclusive assumption by the judges and prosecutors of proof of the very issues tried. For example, after the Nazi importation of forced labor from the occupied East had collected large numbers of foreign workers within the Reich at various war jobs against their will, escape efforts by such workers across Reich frontiers to their homeland or elsewhere became frequent. These escapees, when apprehended by border officials, were normally handed over to the People’s Court for trial for preparation of high treason, which bore a mandatory sentence of death. The applicable section of the German criminal code defined high treason in this context “as an attempt to incorporate by violence or by threat of violence the German territory in its entirety or in part into a foreign State or to detach from the Reich territory belonging to the Reich.” The escapees were indicted, inconceivable as it may be, for the violation of this provision.
In grasping for some legal straw upon which to base a conviction on these grounds, the courts created a whole-cloth assumption that such escapees were heading through Switzerland, or wherever they might have been picked up, in an effort to join some militarylegion hostile to the Reich. The Reich prosecutors were drawn into this scheme. Walter Brem, a former assistant to the chief Reich prosecutor at the People’s Court, described the situation thus (NG-316, Pros. Ex. 79):
“The majority of these cases concerned foreign laborers who wanted to look for a job in Switzerland because of inadequate salaries and insufficient food rations in the Reich. The prosecution, however, claimed that foreign legions were being established in Switzerland and that every foreigner wanting to cross the border illegally did so in order to join up with such legions. I was ordered by the prosecutor of the People’s Court to connect the defendants somehow with the foreign legions. I have never received a positive answer about those alleged organizations, and the whole concept was known to the foreigners only as a rumor. Individual proof of any acts of high treason could not be established; however, the prosecution based its claims on the assumption that such foreign laborers would behave in a hostile manner against Germany once given the opportunity.”
“The majority of these cases concerned foreign laborers who wanted to look for a job in Switzerland because of inadequate salaries and insufficient food rations in the Reich. The prosecution, however, claimed that foreign legions were being established in Switzerland and that every foreigner wanting to cross the border illegally did so in order to join up with such legions. I was ordered by the prosecutor of the People’s Court to connect the defendants somehow with the foreign legions. I have never received a positive answer about those alleged organizations, and the whole concept was known to the foreigners only as a rumor. Individual proof of any acts of high treason could not be established; however, the prosecution based its claims on the assumption that such foreign laborers would behave in a hostile manner against Germany once given the opportunity.”
This contention was acceptable to judges of the People’s Court. On 12 August 1942, three Polish defendants, Mazur, Kubisz, and Nowakowski, pursuant to an indictment signed by the defendant Lautz, were sentenced to death by the People’s Court for preparation of high treason and attempting to separate a portion of the Reich by force. They had left their factory in Thuringia and proceeded across the Swiss border, where they were apprehended by Swiss officials and returned to the Reich. As reasons for their escape the defendants cited the hard working conditions to which they had been exposed. Kubisz testified that the meals consisted only of soup. Mazur stated that his work in the quarry was so hard that he feared he would not survive the winter. The defendants stated they had hoped to find better working conditions in Switzerland. They denied having had any knowledge of the existence of a Polish Legion in Switzerland. The prosecution offered no evidence to impeach these statements in any way.
Nevertheless, the People’s Court found that the defendants’ statements were mere excuses, that the existence of a Polish Legion in Switzerland was “generally known,” and that the defendants intended to join this legion. This judicial assumption was buttressed by a physician’s certificate which showed all three defendants to be in excellent health and qualified for active service. Therefore, the court “was convinced” that the defendants had discussed the fate of Poland and her people with their camp mates in the factory barracks and had decided to join the Polish Legion in Switzerland. The court said that it knew of a pact with Russia that the Polish government in exile had formed, and thatthis fact had been broadcast by the British radio. The court knew, furthermore, that in the past Polish workers had repeatedly fled to Switzerland where they were recruited for the Polish Legion, and I quote a portion of the court’s decision:
“These circumstances force the court to the conclusion that the defendants intended to join the Polish Legion in Switzerland.”
“These circumstances force the court to the conclusion that the defendants intended to join the Polish Legion in Switzerland.”
With regard to verbal remarks deemed seditious or deleterious to the “German people’s defensive strength,” People’s Courts sentences were not only outrageously unjustified, but reached the climax of judicial caprice. The Austrian taxicab driver, Rudolf Kozian, pursuant to an indictment signed by Lautz, was sentenced to death on 26 June 1944 for making certain uncomplimentary remarks concerning Hitler and the progress of the war. In the course of conversation while driving a female customer, who later denounced him to the Gestapo, he made remarks typified by the following:
“To us Viennese it’s all the same from whom we receive our bread whether his name is Stalin, Churchill, or Hitler. What matters is that we can live. When I quarrel with someone and see that I can no longer carry on, then I stop and do not continue the fight until everything is destroyed. The Fuehrer in his speech said that he would destroy us all. The Fuehrer has said that this war will be fought until one side will be annihilated. Every child knows that we are that side, unless the Fuehrer will come to his senses before then and offers peace to the enemy.”
“To us Viennese it’s all the same from whom we receive our bread whether his name is Stalin, Churchill, or Hitler. What matters is that we can live. When I quarrel with someone and see that I can no longer carry on, then I stop and do not continue the fight until everything is destroyed. The Fuehrer in his speech said that he would destroy us all. The Fuehrer has said that this war will be fought until one side will be annihilated. Every child knows that we are that side, unless the Fuehrer will come to his senses before then and offers peace to the enemy.”
The court found the defendant guilty of having attempted to undermine the German morale to such an extent that he was deemed to come within the special Emergency Decree authorizing death for impairing German defensive strength.
Contrast the foregoing case of the Austrian taxi driver, resident of a country occupied and annexed by illegal aggressive acts, with that of Mrs. von Brincken, a German Nazi, who was indicted in August 1944 for having made similar statements in a conversation with friends at the seashore. When the man who had rented her a beach chair became angry about the careless way in which his chair was treated, Mrs. von Brincken was alleged to have said: “Well, don’t worry, the Russian commissars will be sitting in them next year.” She was also vocally indignant to her neighbors because her 17-year-old daughter had just been drafted for labor assignment in the country, and said: “It would do the farmers no good; they would only get more work and more worry since the girl could not do anything but eat.” Due to the intercession ofboth her husband, a colonel, and a notorious SS general who was a friend of the family, she was released with an admonition.
Such judicial discrimination with death as the forfeit, is explained by the defendant Petersen, a lay judge at the People’s Court from 1941 until the end of the war (NG-396, Pros. Ex. 176).