Chapter III: Introduction (2)

Even at the present time, the principal source of German criminal law is the Criminal Code of 1871. Amendments have been frequent, but it has never been completely overhauled. For our present purpose, it is sufficient to note the code’s threefold division of criminal offenses. Serious crimes, punishable with death or imprisonment for more than 5 years, are called “crimes” (Verbrechen); lesser offenses, punishable with imprisonment or substantial fines, are called “delicts” (Vergehen); and minor offenses are called “contraventions” (Uebertretungen).

Questions of criminal procedure are regulated by the Code of Criminal Procedure of February, 1877; matters of jurisdiction and of court organization are prescribed in the General Judicature Act of January, 1877.

Under both the German Empire and the Weimar Republic, the authority to appoint judges and prosecutors and the power to execute sentences were jealously guarded prerogatives of the individual German states. The Reich Ministry of Justice, therefore, remained predominantly a ministry of federal legislation. The anomaly of a highly unified federal law, as contrasted with a court system administered by the individual states, endured until after the advent of Hitler.

In spite of the fact that the authority for supervision and appointment of judges rested with the numerous states, the German court system was well organized and highly unified before Hitler came to power. The basis of the court system was the local courts (Amtsgerichte), of which there were over 2,000, which had original jurisdiction over minor civil suits and over the less serious criminal offenses (“delicts” and “contraventions”). Original jurisdiction in the more important civil and criminal cases was exercised by the district courts (Landgerichte), of which there were some 180.

The principal appellate courts in Germany were called the district courts of appeal (Oberlandesgerichte). Of those there were 26, or generally one to each state and province.[12] The district courts of appeal entertained civil appeals from all decisions of the local and district courts, and second criminal appeals from cases originally heard in the local courts. The president of the district court of appeals (Oberlandesgerichtspraesident) was also the administrative head of all the courts in his district.

The Supreme Court of the Reich (Reichsgericht) in Leipzig formed the apex of the judicial pyramid. It determined important legal questions involving the interpretation of Reich laws, and entertained appeals from the decisions of the district courts of appeal and from criminal cases originally heard in the district courts. It was also the court of first and last instance for important treason cases.

The judges of the Reich Supreme Court were appointed by the President of the Reich. The judges of the lower courts were appointed by the respective state governments. Before the advent of national socialism, a judge could not be removed by the government, but only by formal action before a disciplinary court composed of his peers. This security of tenure was guaranteed by articles 102 and 104 of the Weimar constitution.

JUDICIAL ORGANIZATION OF THE THIRD REICH

The impact of Hitler’s seizure of power on the German judicial system was swift and drastic. The Enabling Law of 24 March 1933 authorized the executive to issue decrees with the force of law and provided that these “decree laws” could deviate from the Weimar constitution, the civil rights provision of which had already been suspended by a decree of 28 February 1933. For practical purposes, therefore, legislative and executive powers were merged in Hitler’s cabinet, and the constitution was robbed of all practical effect.

In 1934, the administration of justice was taken entirely out of the hands of the German states and was concentrated exclusively in the government of the Reich. The first law for the transfer of the administration of justice to the Reich was proclaimed 16 February 1934; it provided that thereafter all courts should pronounce judgment in the name of the German people, vested in the President of the Reich all clemency powers formerly held by the states, and authorized the Reich Minister of Justice to issue regulations for the transfer of the administration of justice to the Reich. This general directive was put into execution by the second and third laws for the transfer of the administration of justice to the Reich, promulgated in December 1934 and January 1935, respectively. The Justice Ministries of the several states were thereby abolished, and all their functions and powers were concentrated in the Reich Ministry of Justice, which became the supreme judicial authority, under Hitler, in the Reich. Hitler had already proclaimed himself the “Supreme Law Lord of the German people” in his speech to the Reichstag defending the killings which occurred during the suppression of the Roehm putsch.[13]

1. _The Reich Ministry of Justice_ (_Reichsjustizministerium_)--The centralization of the German administration of justice brought about, of course, a great increase in the scope and functions of the Reich Ministry of Justice. Its more important divisions are shown in the composite chart on the wall of the courtroom; a more detailed chart of the Ministry alone is included in the expository brief.

For the first 8 years of the Hitler regime, the Minister of Justice was Franz Guertner, who had taken this office under the von Papen cabinet and retained it until his death in January 1941. Under Guertner, the two principal officials were the defendant Schlegelberger and Roland Freisler, each with the title of under secretary. Schlegelberger took charge of the Ministry from Guertner’s death until August 1942, but throughout that period he was “Acting Minister” and was never officially given cabinet rank. In August 1942, Dr. Georg Thierack, then president of the People’s Court, was appointed Reich Minister and Schlegelberger was retired. Freisler succeeded Thierack as president of the People’s Court.

Under Thierack, there was only one under secretary. Thierack first appointed the defendant Rothenberger, but in January 1944 Rothenberger was put on the retired list and replaced by the defendant Klemm.

Besides the defendants Schlegelberger, Rothenberger, and Klemm, four of the other defendants held high office in the Ministry of Justice, and still others served in the Ministry at various times during their careers. The defendant Klemm, as well as being the under secretary, headed Division II of the Ministry, which concerned itself with legal education and training. The defendants von Ammon and Mettgenberg, as well as the deceased Westphal, were officials of Divisions III and IV, which were ultimately merged, and which governed virtually all questions of criminal legislation and procedure, and prosecutions. The defendant Altstoetter headed Division VI, which dealt with civil law and procedure. The defendant Engert, after having served on the People’s Court, became the head of Division V, Penal Institutions, and of Division XV, first created in 1942 and dissolved in 1944. Division XV concerned itself with the secret transfer of certain classes of persons from ordinary prisons to the Gestapo. The Ministry of Justice controlled a variety of other judicial institutions, including various Special Courts and the examining office for candidates for admission and qualification of judges and lawyers. It controlled the Academy for German Law and various other associations of attorneys, as well as a special training camp for the Nazi indoctrination of young attorneys. Most important of all, it supervised and administered the entire court system from the Reich Supreme Court clear down to the local courts. This function included the assignment, transfer, and promotion of all judges.

2. _The Hierarchy of regular courts_--The centralization of judicial administration in the Reich Ministry of Justice did not at first have any pronounced effect upon the structure of the regular court system. The established hierarchy of courts--local courts, district courts, district courts of appeal, and the Reich Supreme Court--continued in effect. The most important development in the early years of the Third Reich was the creation of extraordinary and special courts, which increasingly cut into the jurisdiction of the regular courts.

Under the impact of war, however, the system of regular courts was substantially altered, although its general outlines remained the same. These alterations were intended for economy and expedition, and to reduce the number of judicial personnel. This was accomplished chiefly in two ways: by reduction in the number of judges required to hear particular kinds of cases, and by drastic curtailment of the right of appeal.

Many of these changes were made at the outbreak of war in 1939. Thereafter, all cases in the local courts and all civil cases in the district courts were heard by one judge only; criminal cases in the district courts were heard by three judges, but the president of the court could hear such cases alone if the issues were simple. Criminal cases heard by the local courts could be appealed only as far as the district courts; civil cases heard in the local courts could be appealed directly to the district court of appeals, bypassing the district court.

Further drastic curtailments of the right of appeal occurred in 1944 and 1945. In general, appeals could only be taken by permission of the court which heard the case, and permission was granted only to settle legal questions of fundamental importance. The judicial functions of the district courts of appeal were almost, if not entirely, eliminated, although their supervisory administrative functions continued.

3. _Extraordinary courts_--The most crucial and radical change in the judicial system under the Third Reich, however, was the establishment of various extraordinary courts. These irregular tribunals permeated the entire judicial structure, and eventually took over all judicial business which touched political issues or related to the war.

Within a matter of weeks after the seizure of power, by a decree of 21 March 1933, “Special Courts” (Sondergerichte) were established. One Special Court was set up within the district of each district court of appeal. Each court was composed of three judges drawn from the judges of the particular district. They were given jurisdiction over offenses described in the emergency decree of 28 February 1933, which included inciting to disobedience of government orders, crimes in the nature of sabotage, and acts “contrary to the public welfare.” There were drastic provisions for the expedition of proceedings before the special courts, and no appeal whatsoever lay from their decisions.

A few weeks later, special military courts, which had been abolished by the Weimar constitution, were reestablished and given jurisdiction over all offenses committed by members of the armed forces. In July 1933, special “Hereditary Health Courts” more generally known as “Sterilization Courts” were established at the seats of the local courts, with special appellate “Hereditary Health Courts” above them.

But the most notorious Nazi judicial innovation was the so-called “People’s Court” (Volksgerichtshof), established by the decree of 24 April 1934, after the Reich Supreme Court’s acquittal of the defendants in the Reichstag fire trial. The People’s Court replaced the Supreme Court as the court of first and last instance for most treason cases.

The People’s Court sat in divisions, or “senates,” of five members each. Two of the five had to be qualified judges; the other three were trusted Nazi laymen selected from high ranking officers of the Wehrmacht (armed forces) and SS, or from the Party hierarchy. They were appointed for 5-year terms by Hitler, on the recommendation of the Minister of Justice. Six “senates” were established, each of which heard cases from a particular geographical section of Germany. In 1940 a “special senate” was established to retry cases where, in the judgment of the chief public prosecutor of the Reich, an inadequate punishment had been imposed.

As time went on, the concept of “treason” was much enlarged by a variety of Nazi decrees, and both the Special Courts and the People’s Court were given jurisdiction to try a great variety of offenses. In 1936, for example, the smuggling of property out of Germany was proclaimed an offense against the national economy, and the People’s Court was given jurisdiction over such cases. In 1940, a new decree defined the jurisdiction of the Special Courts and People’s Court, and all sorts of offenses, such as evasion of conscription and listening to foreign broadcasting stations, were brought within their purview.

Toward the end of the war, by a decree of February 1945, emergency civil courts martial (Standgerichte) were set up in areas “menaced by the approaching enemy.” Each consisted of three members appointed by the Reich Defense Commissar, usually the Gauleiter (regional leader) of the district; the president was a professional judge, who sat with one associate judge from the Nazi Party, and one from the Wehrmacht or SS. These courts martial could only condemn the accused to death, acquit him, or transfer the case to a regular tribunal.

Thierack was president of the People’s Court prior to his appointment as Reich Minister of Justice. He was then succeeded by Freisler, the former under secretary of the Ministry of Justice, who remained as president until nearly the end of the war, when he was killed in an air raid. The defendant Engert was vice president of the People’s Court prior to his transfer to the Ministry of Justice in 1942. The defendant Nebelung was president of the Fourth Senate of the People’s Court. The defendant Petersen, the only nonlawyer in the dock, was an SA Obergruppenfuehrer (lieutenant general) who sat as a lay judge on many occasions in the First and Special Senates of the People’s Court.

Three of the defendants were judges of the Special Courts. The defendant Cuhorst was president of the Special Court in Stuttgart, and the defendant Rothaug was president of the Special Court in Nuernberg. The defendant Oeschey also sat on the Special Court in Nuernberg and succeeded Rothaug as its president when the latter became a public prosecutor. Oeschey was also president of the emergency civil court martial at Nuernberg.

4. _Public prosecutors_--The prosecution of criminal offenses, under the Third Reich, was handled by a special group of state attorneys (Staatsanwaltschaft) directed by the Ministry of Justice. Increasingly under the Third Reich there was interchange of personnel among judges and prosecutors.

The defendant Rothaug, for example, left the bench of the Special Court at Nuernberg to become a senior public prosecutor of the Reich (Reichsanwalt). The defendant Barnickel also held this title. The defendant Joel, in 1943, left the Ministry of Justice and became the public prosecutor of the district court of appeals for Westphalia, at Hamm.

The most important prosecutor among these defendants, however, was Ernst Lautz, Chief Public Prosecutor of the Reich (Oberreichsanwalt). In this capacity, Lautz prosecuted many important cases before the People’s Court.

COUNT ONE

THE DESTRUCTION OF LAW AND JUSTICE IN GERMANY

I turn now to an examination of the means by which the defendants and their colleagues seized control of Germany’s judicial machinery and turned it into a fearsome weapon for the commission of the crimes charged in the indictment.

The destruction of law in Germany was, of course, part and parcel of the establishment of the Third Reich dictatorship. Initially, the dictatorship arose out of the decrees in the early part of 1933 which suspended the constitutional guaranties of freedom and vested Hitler’s cabinet with legislative power, unrestrained by constitutional limitations. These early decrees put an end to law as we know it in a democracy.

But much more had to be accomplished in order to achieve a dictatorship of the proportions envisaged by the authors of the Third Reich. Freedom of the ballot had to be suppressed so that a false veneer of electoral approval could be spread over the Nazi edifice. The civil service had to be purged of dissident officials. An ubiquitous and ruthless police system had to be created. A multitude of other measures were necessary. But, above all, law and justice had to be utterly stamped out.

At first blush, the reason for this may not appear. The Nazi cabinet could decree any law it wanted to with the flourish of a pen. The courts, unless they were bold enough to deny the very basis of Hitler’s authority, which they did not do, were bound to punish violations of these laws. Was this not enough for even Hitler’s purposes?

The answer is twofold. Particularly in the early years of the Third Reich, Hitler’s government pursued aims and employed methods which it did not, at that time, see fit to authorize by formal, public legislation. The regime was not yet strong enough, externally or internally, to face the storm of disapproval which such legislation would have encountered. The Nazi government thought it wise to pursue these aims and employ these methods outside of, and often in violation of, the letter and spirit of the law. And it did not wish to be embarrassed or obstructed by an independent judiciary respectful only to the law. The outcome of the Reichstag fire trial, for example, was highly embarrassing and promptly bore sinister fruit in the creation of the People’s Court.

But there was another and much more fundamental reason. The ideology of the Third Reich was totally incompatible with the spirit of the law. It could not live under law, and the law could not live under it. To take but one example: even under stringent anti-Jewish legislation, there were bound to be situations where an overgreedy German in a civil suit or an overzealous police official in a criminal case had erroneously haled a Jew into court. In other words, even under Nazi legislation, there were bound to be cases when the Jew was legally right. Yet, it was unthinkable that a German court should exalt the Jew and discredit the German with a decision in favor of the Jew. Such perplexing problems could be dealt with only by courts which were not true courts at all, and which could be trusted to suppress the law and to render an ideological judgment or, as was done later, to declare the Jew to be an animal beyond the judicial pale entirely, who could not, any more than a wrongfully beaten dog, ask judicial intervention or protection.

This sort of problem was far more delicate in the case of the Poles, whom the Nazis chose to regard as less than human but more than Jewish. Later on in this case, we will, I think, derive some macabre humor from the documentary spectacle which some of these defendants made of themselves in vainly wrestling with the insoluble problem of how to achieve a certain amount of legal order and stability in occupied Poland, without at the same time giving the Poles any true law on which they could rely.

In short, the very idea of “law” was inimical to the ideology of the Third Reich, and it is not surprising that its principal authors recognized this fact at a very early date. In 1930, Hitler himself declared with reference to a court decision against certain Nazis--

“We can assure the judges that, if national socialism assumes
power, they will be fired without any pension.”[14]

Joseph Goebbels expressed the same thought even more bluntly in 1934 after the Nazis were in power--

“We were not legal in order to be legal, but in order to rise to
power. We rose to power legally in order to gain the possibility
of acting illegally.”[15]

Later on in this case, the Tribunal will have offered to it documents which speak at length about the creation of a new, National Socialist system of law. By then, it will be apparent, I believe, that a “National Socialist system of law” is a preposterous contradiction in terms. It never was an objective of the Third Reich to create any system of law. On the contrary, it was its fundamental purpose to tear down every vestige of law in Germany, and to replace it with a mere bureaucracy which would mete out reward and punishment in accordance with the tyrannical ideology and tactical necessities of the dictatorship. The one-time sage of Nazi jurisprudence, the late Dr. Hans Frank, summed this up aptly in 1935 (_NG-777, Pros. Ex. 19_)--

“National socialism is the point of departure, the content, and
the goal of the legal policies of the Third Reich.”[16]

And the defendant Schlegelberger expressed the same thought in 1936 (_NG-538, Pros. Ex. 21_)--

“Accordingly there can be no doubt that now the moral order and
ideology [Weltanschauung], as recognized in the Party program,
has to be taken into consideration in the interpretation and
application of every norm of the existing law.”[17]

We may now retrace some of the steps which the law lords of the Third Reich took to turn the judicial system into a subservient but effective agent of the regime. Some of these we have already noted. The centralization of the administration of justice in the Reich government, the vesting of over-all authority in the Reich Ministry of Justice, and the creation of extraordinary courts were essential steps in the process. Standing alone, these acts might have been unobjectionable, though the creation of special courts was expressly prohibited by article 105 of the Weimar constitution. But these first moves were but the prelude to a series of deadly thrusts at the vitals of the judicial system. The early history of this organized attack on the fundamentals of law is summarized in the decision of the International Military Tribunal--

“Similarly, the judiciary was subjected to control. Judges were
removed from the bench for political or racial reasons. They
were spied upon and made subject to the strongest pressure
to join the Nazi Party as an alternative to being dismissed.
When the Supreme Court acquitted three of the four defendants
charged with complicity in the Reichstag fire, its jurisdiction
in cases of treason was thereafter taken over and given to a
newly established ‘People’s Court’ consisting of two judges
and five officials of the Party. Special Courts were set up to
try political crimes and only Party members were appointed as
judges. Persons were arrested by the SS for political reasons,
and detained in prisons and concentration camps; and the judges
were without power to intervene in any way. Pardons were granted
to members of the Party who had been sentenced by the judges for
proved offenses. In 1935, several officials of the Hohenstein
concentration camp were convicted of inflicting brutal treatment
upon the inmates. High Nazi officials tried to influence the
court, and after the officials had been convicted, Hitler
pardoned them all. In 1942, ‘judges’ letters’ were sent out to
all German judges by the government, instructing them as to the
‘general lines’ that they must follow.”[18]

The destruction of the judicial process continued throughout the era of the Third Reich. The period from the beginning of the new regime in 1933 until the outbreak of the war was characterized by the rise of special tribunals, and the steady decrease of procedural guaranties. After 1939, the war accelerated the conversion of criminal justice into dictatorial administrative procedure until, at the end of the war, all resemblance to legal process had vanished. We turn now to an examination of the particular steps in the process.

a. 1933–1939

Immediately after the seizure of power, the Nazis struck hard at the independence and integrity of the judiciary by dismissing or demoting politically unreliable judges and officials of the Ministry of Justice. The temporary decree of 7 April 1933, under which this was done, provided that--

“Officials, whose former political activity does not offer a
guarantee that they, at all times without reservation, act
in the interest of the national state, can be dismissed from
service. For a period of 3 months after dismissal, they are
accorded their former salary. From this time on, they receive
three-fourths of their pension and corresponding survivor’s
benefits.”[19]

In 1937 similar language was embodied in permanent legislation in the Civil Service Act.[20] The result of these measures was the elimination of all Jews and part-Jews, Social Democrats, and other opponents of the Nazi regime, from the bench and from the staff of the Ministry of Justice.

Substantive criminal law during this period was radically affected by the introduction of the authoritarian ideology of the Third Reich, and the concept of the criminal as the enemy of the nation. The prime purpose of the new criminal provisions was to make the new holders of power secure against all competition or attack. The decree for the protection of the German people[21] initiated a never-ending stream of legislation intended to protect the persons, institutions, and symbols of the Third Reich against all attacks of political enemies. The field for the application of treason and high treason was vastly enlarged by investing the most preparatory and auxiliary acts with the character of treason. The range of application of the death penalty, in the past restricted to murder and some cases of homicide, was greatly widened. Hand in hand with the sharpening of penalties and the extension of the scope of punishable atrocities went the attempt to widen the scope of German criminal jurisdiction beyond its territorial limits. The new “race defilement” prohibitions for example were made applicable to offenses committed abroad.[22]

Examples of such draconic and tyrannical decrees are legion. The decree of 24 April 1934 provided that the death penalty, or hard labor for life, or hard labor for 2 years or more, should be inflicted--

“1. If the act aimed at establishing or maintaining an organized
combination for the preparation of high treason; or

“2. If the act was directed toward making the armed forces or
police unfit for the execution of their duty to protect the
stability of the German Reich from internal or external attacks;
or

“3. If the act was directed toward influencing the masses by
making or distributing writings, recordings, and pictures, or by
the installation of wireless, telegraph, or telephone; or

“4. If the act was committed abroad or was committed in such
a manner that the perpetrator undertook to import writings,
recordings, or pictures from abroad for the purpose of
distribution within the country.”

By August 1938, this tendency had progressed to a point where the following acts were all made punishable by death:

“1. Whoever openly solicits or incites others to evade the
fulfillment of compulsory military service in the German or an
allied armed force, or otherwise openly seeks to paralyze or
undermine the will of the German people or an allied nation to
self-assertion by bearing arms;

“2. Whoever undertakes to induce a soldier or conscriptee in
the reserves to disobedience, opposition, or violence against
a superior, or to desertion or illegal absence or otherwise to
undermine the discipline of the German or an allied military
force; and

“3. Whoever undertakes to cause himself or another to avoid
the fulfillment of military service entirely, or to a limited
extent, or temporarily, by means of self-mutilation, or by means
designed to deceive or by other methods.”[23]

But the Nazi jurists were not content to sharpen the letter of the penal laws; they subverted the spirit and method of interpretation of the criminal law in order to enable the courts to impose punishment, outside the law, in accordance with the political ideology of the regime. Thus, in June 1935, article 2 of the penal code was amended to read as follows:

“Whoever commits an act which the law declares as punishable
or which deserves punishment according to the fundamental idea
of a penal law or the sound sentiment of the people, shall be
punished. If no specific penal law can be directly applied to
this act, then it shall be punished according to the law whose
underlying spirit can be most readily applied to the act.”[24]

At the same time, the following articles were added to the code of criminal procedure:

“Article 170a--If an act deserves punishment according to the
sound sentiment of the people, but is not declared punishable
in the code, the prosecution must investigate whether the
underlying principle of a penal law can be applied to the act
and whether justice can be helped to triumph by the proper
application of this penal law.

“Article 267a--If the main proceedings show that the defendant
committed an act which deserves punishment according to the
sound sentiment of the people, but which is not declared
punishable by the law, then the court must investigate whether
the underlying principle of a penal law applies to this act
and whether justice can be helped to triumph by the proper
application of this penal law.”[25]

And, simultaneously, the Reich Supreme Court was ordered to set aside its prior decisions in order to bring the law into conformance with the ideology of the Third Reich. The decree is as follows:

“The Reich Supreme Court, as the highest German tribunal,
must consider it its duty to effect an interpretation of the
law which takes into account the change of ideology and of
legal concepts which the new State has brought about. In order
to be able to accomplish this task without having to show
consideration for the decisions of the past brought about by
other ideology and other legal concepts, it is ruled as follows:

“When a decision is made about a legal question, the Reich
Supreme Court can deviate from a decision laid down before this
law went into effect.”

This tyrannical doctrine of “punishment by analogy” was given a sugar coating by Dr. Hans Frank (_NG-777, Pros. Ex. 19_):

“In the future, criminal behavior, even if it does not fall
under formal penal precepts, will receive the deserved
punishment if such behavior is considered punishable according
to the sound sentiment of the people.”[26]

But once again, Josef Goebbels was shameless enough to state the doctrine with complete frankness (_NG-417, Pros. Ex. 23_):

“While making his decisions the judge is to proceed less from
the law than from the basic idea that the offender is to be
eliminated from the community. During a war it is not so much
a matter of whether a judgment is just or unjust, but only the
decision is expedient. The State must protect itself in the most
efficient way and wipe them out entirely * * *. One must not
proceed from the law, but from the resolution that the man must
be wiped out.”[27]

On the administrative side, the prewar years were characterized by ever closer collaboration between Himmler’s Gestapo and the Reich Ministry of Justice. In February 1937, Himmler directed that all Gestapo matters be made available to the district public prosecutors. The next month, the Reich Minister of Justice (Guertner) addressed a letter to all the district public prosecutors, calling attention to Himmler’s directive and stating (_NG-323, Pros. Ex. 32_):

“In order to have this decree fulfill its purpose and in the
interest of the closest possible collaboration between the
office of the public prosecutor and the authorities of the
Gestapo, I hereby issue this supplementary order that in
future, public prosecutors routinely address all requests for
investigations to be conducted on the basis of reports of
political nature received by them directly, to the local and
district police authorities _via the competent state police
offices_. When in cases based on such reports, the necessary
interrogations of the accused or the witnesses are procured by
the court itself or by the expert of the prosecution, and the
police authorities are not at all involved in the proceedings,
I request that the state police offices be informed of the
proceedings as soon as possible.”[28]

The German jurists, who collaborated so closely with Himmler’s minions, were equally willing to protect “overzealous Nazis” against the penal consequences of their worst excesses. Late in 1933 a group of “Storm Troopers” (SA) committed vicious assaults and tortures on some political prisoners who had been confined in the concentration camp of Kemna, near Wuppertal in the Ruhr. The description of this outrage by the Reich Minister of Justice reads as follows:

“In the camp, some of the prisoners were exposed to the severest
mishandling.

“In most cases, shortly after their shipment had come in, and
when they were being interrogated, they would be beaten, partly
upon their bare bodies, with rubber cudgels, horsewhips, sticks,
ox lashes, and other objects. In many cases they had to lie
down over a special caning bench, or were forced down onto it
by guards, and their mouths were kept shut or they were gagged
with balls of paper, pieces of cloth, bags, or similar things,
in order to prevent them from screaming. Other members of the
guard in the meantime would begin to beat them up. Prisoners who
fainted were kicked back to consciousness or had water thrown
over them to wake them up and make them stand up again. After
this, prisoners who were mistreated were frequently locked up in
a small space under the stairway or in an elevator without being
given any medical attention or food and drink. In some cases,
the injuries the prisoners received from their beatings made it
necessary to transfer them to hospitals.

“Several prisoners also were forced to eat unwashed herrings
from the barrel, which had also been sprinkled with salt * * *.
When they had finished the herrings, the prisoners, who were
naturally suffering from tormenting thirst, were not allowed to
have water brought them.”

Proceedings against the storm troop leaders in a disciplinary tribunal of the Nazi Party ended in a mere reprimand and deprivation of the right to hold public office for 1 year. The files of the Ministry of Justice concerning this atrocious episode contain the recommendations of various officials, including the defendant Joel, that criminal proceedings against the perpetrators should be cancelled. This recommendation was adopted and forwarded to Hitler by Minister Guertner, who, for justification, pointed to the circumstances that the culprits were not experienced concentration camp guards, that the majority of the victims were Communists, that, in some cases, the victims had been obstinate and insubordinate, and that communism had an especially strong hold in the Wuppertal area.

b. 1939–1945

Before the outbreak of war, the main objective of Nazi penal innovations was to suppress internal opposition to the new regime, and to render life intolerable for the Jews. During the early years of the war, the Nazi jurists were largely concerned with legal problems incident to the occupation of Poland, France, and the other nations overrun by the Wehrmacht. The extension of German law to the occupied areas, and the outrages committed thereunder, constituted war crimes and crimes against humanity on a grand scale, which will be described in due course. German criminal law was also applied extensively to acts committed outside the Reich, even when committed by foreigners.[29] Acts committed by a foreigner outside the Reich could even constitute treason against the Reich.

But the war also brought a mass of new criminal legislation within Germany. This new legislation was influenced by the necessities of war, but also contained matured concepts of National Socialist criminal policy. The principal aim was to guarantee the security of the Nazi regime, and bolster the economic and military strength of Germany, through extremely harsh criminal punishments. The chief weapon was the unsparing and almost indiscriminate use of capital punishment.

Later on, as Germany’s military situation worsened, the death penalty became an ordinary sentence for a great variety of offenses. The increased severity of air raids resulted in capital punishment or long prison sentences for crimes committed during black-outs, even very minor looting. Economic hardship and shortages of materials were accompanied by laws prescribing penal servitude, or even death, for anyone who destroyed or removed food or other supplies. Toward the end of the war, a desperate attempt was made to cope with the growing defeatism by imposing the death penalty for spreading rumors, listening to foreign broadcasts and even for the most minor derogatory remarks about the Hitler regime or pessimism concerning Germany’s chances of military success.

The war brought new and extraordinary procedures, as well as new crimes. Despite all that had been done in prewar years, the courts were still handing down some sentences which, in the eyes of Berlin, were too mild, and once such a final judgment had been given, nothing could be done about it. The whole idea of the finality of judgments had long been a thorn in the flesh of the Nazi jurists. Accordingly, 2 weeks after the outbreak of war, a decree[30] was promulgated which provided that, if the Chief Reich Prosecutor had “serious misgivings” concerning the justice of a sentence, he could, within 1 year thereafter, file an extraordinary appeal and secure a second trial of the case. The officials of the Reich Ministry of Justice, who controlled the public prosecutors, reviewed the criminal decisions and directed the chief prosecutor to file appeals in cases where they deemed the punishment insufficient. If the first decision had been rendered by the regular courts, the second trial was held by the Special Penal Senate of the Reich Supreme Court. If the first decision had been made by the People’s Court, on the other hand, the second trial was held by the Special Senate of the People’s Court.

In 1940, an analogous procedure was authorized[31] under which the Chief Public Prosecutor of the Reich could lodge with the Supreme Court a petition for “nullification” against final judgments of the regular criminal courts or the Special Courts “if the judgment is not justified because of an erroneous application of law on the established facts.” The Supreme Court was authorized either to render a new judgment or to send the case back to a lower court for a new trial under binding instructions as to the legal principles which should govern. Not content with this elaborate system for punitive double jeopardy, the right of the Chief Public Prosecutor to attack final judgments by means of the nullification procedure was again enlarged in 1942, by extension to questions of law and to the adequacy of the punishment.[32] This new regulation provided the prosecution, but not the defense, with an unlimited right to ask for a new trial within one year after the decision had been rendered.

On the day of the attack on Poland, a new assault on the tenure and independence of the judiciary was made.[33] By this new decree, judges were obliged to take any assignment whatsoever, as judge, prosecutor, or administrative official, and on any regular or Special Court, according to the orders of the Reich Minister of Justice. Similar powers were given to the presidents of the district courts of appeal within their respective districts.

It might have been thought that, after the purge of Jewish and politically dissident judges in 1933, the permanent subjection of the judiciary to dismissal for political reasons in 1937, and their complete subordination to the Reich Ministry of Justice in 1939, Hitler would have at last obtained a suitable judiciary for his most extreme purposes. Apparently, however, pre-Hitler legal training sometimes had the unfortunate effect that even trusted Nazi judges failed in their decisions to measure up to the ideology and expectations of the Third Reich. At all events, something like a crisis in the German judicial system occurred in 1942.

On 26 April 1942 Hitler made a speech before the Reichstag in which he reviewed the effects of the hard winter of 1941–1942 and exhorted the German people to even greater sacrifices in order to achieve victory. In the course of this speech, Hitler made certain remarks about the German legal profession and the administration of justice which had an immediate and pronounced effect. Hitler said (_NG-752, Pros. Ex. 24_):

“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 supreme
law 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]

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
National Socialist 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]

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
the laws 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.”

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 prestige of 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.”