Chapter IV: Introduction (3)

Beginning with this issue in October 1942, the Judges’ Letters were issued regularly and continued to be filled with exhortations to the utmost ruthlessness in the imposition of sentences. Later on, they were supplemented by Lawyers’ Letters (Rechtsanwaltbriefe). As time went on, German criminal law and procedure scarcely retained any other elements than that of threatening wavering elements of the population into submission. The wholesale destruction of legal process culminated at the very end of the war in the creation of the emergency civilian courts martial, which have already been mentioned. These courts martial were given jurisdiction “for all kinds of crimes endangering the German fighting power or undermining the people’s defensive strength”[38] and, if they found the defendant guilty, could impose only the death sentence. The end of the war cut short the life of these tribunals, after ten weeks of judicial terrorism.

Throughout the war, the administrative and penal branches of the Ministry of Justice continued to cooperate in protecting loyal followers of the Third Reich from criminal prosecution for their innumerable atrocities against Poles, Jews, and other “undesirable elements.” At the successful conclusion of the Polish campaign, an unpublished decree suspended all prosecutions against racial Germans in Poland for any punishable offenses which they might have committed against Poles during the Polish war “due to anger aroused by the cruelties committed by the Poles.” In 1941, the defendant Schlegelberger assured Rudolf Hess that he would consider “benevolently” an amnesty in any particular case of atrocities committed after the conclusion of the Polish campaign. An example of this “benevolent consideration” may be worth noting. Two Germans, one of whom was a sergeant of police, shot two Polish priests in Poland in the spring of 1940 “for no reason other than hatred for the Catholic clergy.” A Special Court imposed 15 years’ penal servitude for manslaughter. After 2 years of the sentence had been served, Himmler asked that the Germans be pardoned, and that it be made possible for them to “win their reprieve” through service at the front. At Himmler’s request, the Ministry of Justice reduced the sentence to 5 years, and both men were released from confinement and assigned to duty in a Waffen SS [armed SS] unit.

After the advent of Thierack and Rothenberger, cooperation between the Ministry of Justice and Himmler’s police became even closer. On 18 September 1942 Thierack and Rothenberger held a long conference with Himmler and other high ranking SS leaders at Hitler’s headquarters. Thierack’s notes of the meeting included the following (_654-PS, Pros. Ex. 39_):

“1. Correction by special treatment at the hands of the police
in cases where judicial sentences are not severe enough. On the
suggestion of Reichsleiter Bormann, the following agreement was
reached between the Reich Leader SS, and myself:

_a._ In principle, the Fuehrer’s time is no longer to be
burdened with these matters.

_b._ The Reich Minister of Justice will decide whether
and when special treatment at the hands of the police is to be
applied.

_c._ The Reich Leader SS will send the reports, which he
sent hitherto to Reichsleiter Bormann, to the Reich Minister of
Justice.

_d._ If the views of the Reich Leader SS and those of the
Reich Minister of Justice agree, the final decision on the case
will rest with them.

_e._ If their views are not in agreement, Reichsleiter
Bormann will be asked for his opinion, and he will possibly
inform the Fuehrer.

_f._ In cases where the Fuehrer’s decision on a mild
sentence is sought through other channels (such as by a letter
from a Gauleiter) Reichsleiter Bormann will forward the report
to the Reich Minister of Justice. The case will then be decided
as already described by the Reich Leader SS and the Reich
Minister of Justice.

“2. Delivery of antisocial elements from the execution of
their sentences to the Reich Leader SS to be worked to death.
Persons under security detention--Jews, gypsies, Russians,
and Ukrainians, Poles with more than 3-year sentences; Czechs
and Germans with more than 8-year sentences--will be turned
over without exception according to the decision of the Reich
Minister of Justice. First of all, the worst antisocial elements
among those just mentioned are to be handed over. I shall inform
the Fuehrer of this through Reichsleiter Bormann.

* * * * * * *

“14. It is agreed that, in consideration of the intended aims
of the government for the clearing up of the eastern problems,
in future Jews, Poles, gypsies, Russians, and Ukrainians are no
longer to be tried by the ordinary courts, so far as punishable
offenses are concerned, but are to be dealt with by the Reich
Leader SS. This does not apply to civil lawsuits, nor to Poles
whose names are registered for, or entered in the German Racial
Lists.”[39]

We said at the outset that the defendants and their colleagues accomplished the complete overthrow of justice and law in Germany. The foregoing recital of the steps in this process and the proof to be introduced will, we think, make this abundantly clear. The Third Reich became a realm of despotism, death, and finally, of despair.

But the very perversion and brutality of the Nazi penal system may lead us to think of it as aimless cruelty, which it is not. Fanatical, ruthless, and even unbalanced as the German leaders might have been, they were never purposeless. Law and justice were destroyed for a reason. They were destroyed because by their very nature they stood athwart the path of conquest, destruction, and extermination which the lords of the Third Reich were determined to follow. The Nazi Special Courts, double jeopardy, the flouting of the letter and the spirit of the law--those things were not ends in themselves. They were methods deliberately adopted for the purpose of causing death, torture, and enslavement. Now that we have traced the steps in the conspiracy, it is timely that we examine the murders and other atrocities which were its intended and actual outcome.

COUNTS TWO AND THREE

WAR CRIMES AND CRIMES AGAINST HUMANITY

Two facts stand out when we study the crimes charged in this indictment. First, the diabolical novelty presented by the designed use of a nation’s system of justice and its machinery by the governing power of that nation, as a weapon of destruction--an instrumentality of murder, kidnapping, slavery, torture, brutality, and larceny. Second, the mass character, and therefore the enormity of the crimes committed by these defendants with this new weapon--this headman’s axe fashioned from the scales of justice in a forge, stoked with national greed and racial bigotry and hatred, fanned by blasts of directed propaganda and shaped by the calculated blows of designedly infamous legislation, controlled and dominated courts, and a studied effort to make ineffective or to eliminate completely, the defensive aids customarily enjoyed by defendants in the courts of civilized nations.

These facts in turn have the definite effect of confusing and dulling the minds of lawyers and laymen alike, so that they do not clearly understand either the right and the power of this Tribunal to try these defendants under international law or the simple standards by which their crimes can be measured and judged.

It follows, therefore, that we should now pause at the threshold of this trial to make clear the authority under and by which we act, and the time honored standards under which we shall assert and prove the guilt of these defendants.

A concise review of recent history will be helpful and therefore proper.

On 30 October 1943 Prime Minister Churchill, Premier Stalin, and President Roosevelt issued their Moscow Declaration. That part which is pertinent to an understanding of what we do here reads as follows:

“The above Declaration is without prejudice to the case of the
major criminals whose offenses have no particular geographical
localization and who will be punished by the joint decision of
the Governments of the Allies.”[40]

It is clear that those criminals whose offenses have no particular geographical localization, are to be “punished,” not necessarily tried, by the “joint decision,” not necessarily a joint or international tribunal, of the Allies. The basic policy to punish is thus clearly laid down.

Thereafter, the same three powers met at Potsdam after the unconditional surrender of Germany. At this meeting representatives of the French nation also participated. There agreements and understandings relative to the future policies to be pursued by those governments toward Germany and war criminals were reached. Two of them should be recalled, because they throw light upon the stature and the international character of this Tribunal and also of the purpose behind the definition of the crimes for the commission of which these defendants have been indicted and are being tried.

In the statement released at Potsdam on 2 August 1945, they said:

“The three governments have taken note of the discussions which
have been proceeding in recent weeks in London * * * with the
view to reaching agreement on the methods of trial of those
major war criminals whose crimes under the Moscow Declaration of
October 1943 have no particular geographical localization, * * *
they regard it as a matter of great importance that the trial of
those major criminals shall begin at the earliest possible date.”

We thus see that the three powers have now advanced from their thinking at Moscow, in that they have determined the method by which these criminals are to be “punished.” But the method of trial is still to be the result of the “joint decision” of the powers who signed the Moscow Declaration, concurred in by the representatives of the French nation. The decision to try by judicial proceeding came six days later at London.

But another significant decision was reached at Potsdam. The powers concerned reached agreement on “The Political and Economic Principles to Govern the Treatment of Germany in the Initial Control Period.” Among these we find the following which are pertinent to an understanding of what we do here.

“A. Political Principles

“1. In accordance with the agreement, * * * supreme authority
in Germany is exercised, on instructions from their respective
governments, by the commanders-in-chief of the armed forces (of
the governments concerned) each in his own zone of occupation
and also jointly, in matters affecting Germany as a whole, in
their capacity as member of the Control Council.

“2. So far as practicable, there shall be uniformity of
treatment of the German population throughout Germany.

“3. The purposes of the occupation of Germany by which the
Control Council shall be guided are:

* * * * * * *

“(III) To destroy the National Socialist Party and its
affiliated and supervised organizations, to dissolve all Nazi
institutions, to insure they are not revived in any form, * * *.

“(IV) To prepare for the eventual reconstruction of German
political life on a democratic basis and for eventual peaceful
cooperation in international life in Germany.”

On 8 August 1945 the powers which were represented at Potsdam, through their equally accredited representatives, brought forth at London an agreement which in its preamble refers to “major war criminals,” and in article I, to “war criminals.” The agreement also contemplated an International Military Tribunal for the trial of such criminals and for a charter to define the constitution, jurisdiction, and functions of that Tribunal, which charter was in fact made a part of said agreement on the same day. Two things deserve our attention at this point. The charter defined crimes and thus fixed an objective standard by which “war criminals” were to be identified. The adjective “major” was thereupon immediately relegated to the role of superficial invective or at most to that of fixing a comparative standard of criminal importance, measured solely by the judgment of the committee of chief prosecutors or the practical and mechanical necessities of the actual trial. The crimes of most of these defendants are so great that if they choose, they may consider themselves slighted by the committee of chief prosecutors. The prosecution in this case shall do its ethical best to see that they were not fortunate.

On 20 December 1945, the same three Allied Powers which had issued the Moscow Declaration, and the same four Powers which had reached the Potsdam Agreements and entered into the London Agreement and created the Charter of the International Military Tribunal, also enacted Law No. 10 of the Control Council for Germany.

Law No. 10 provided for this Tribunal and the method by which it was thereafter to be brought into existence; defined the crimes over which it exercises jurisdiction, and adequately described the persons it had jurisdiction to try and punish and the punishment it was authorized to impose. The preamble clearly discloses that Law No. 10 was enacted and therefore this Court was created to accomplish two purposes, first--

“In order to give effect to the terms of the Moscow Declaration
of 30 October 1943 and the London Agreement of 8 August 1945 and
the Charter issued pursuant thereto,”

and second,

“In order to establish a _uniform legal basis_ in Germany
for the prosecution of war criminals and other similar
offenders, other than those dealt with by the International
Military Tribunal.”

Although this preamble does not expressly say so, it is clear that the second purpose is to implement the Potsdam Agreement, which required “uniform treatment of the German population throughout Germany” as an inter-allied multipowered policy. The policy was thus made inter-allied. The method of implementing it was all that was delegated as a matter of right, not power, to the several contracting nations acting within their zones of occupation through their zonal commander. This Tribunal therefore is international in its source as well as in its jurisdiction over subject matter and persons.

On 30 September and 1 October 1946, approximately 13 months after the London Agreement and Charter were created and more than 9 months after Law No. 10 was promulgated, the International Military Tribunal rendered its decision and judgment upon the individual defendants whom it found guilty.

After the judgment of the International Military Tribunal on 18 October 1946, the Zone Commander of the American Zone, for the purpose of implementing Law No. 10 of the Inter-Allied Control Council for Germany, and to carry out the purposes therein stated and previously agreed upon by the four signatory powers at London and Potsdam, promulgated Ordinance No. 7, concerning the organization and powers of certain military tribunals. That ordinance brought this Tribunal into existence and laid down many of the procedures under which it operates, but it did not restrict nor limit its jurisdiction over persons or subject matter set out in Law No. 10 nor did it define new crimes.

Nothing that has been done since the four Powers adopted the London Agreement and Charter has operated to materially limit the jurisdiction over persons and subject matter of this Tribunal from that conferred upon the International Military Tribunal by those international instruments.

A study of the charter, Law No. 10 and Ordinance No. 7 discloses that Law No. 10, article II, paragraph 5 tolls any and all statutes of limitations for the period from 30 January 1933 to 1 July 1945. It also contains provisions which have the effect of depriving this Tribunal of recognizing as a valid defense in this trial any immunity, pardon or amnesty granted to any of these defendants by the Nazi government. This is a limitation not imposed by the charter upon the International Military Tribunal.

Likewise, Ordinance No. 7, article X is in no wise a limitation upon the powers of this Court to determine the guilt or innocence of these defendants.[41] It reads as follows:

“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof by
any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No.
1 constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”

This provision is couched in language calculated to adequately safeguard the rights of defendants, so that, by the same reasoning, it cannot be said to operate as an oppressive rule, which in any material manner unduly restricts this Court in making its own ultimate determination as to the guilt or innocence of these defendants. It is a reasonable rule designed to avoid undue repetitious production of acknowledged facts in the trial of this cause. As such it does not detract from the dignity of this Court nor affect the concurrent nature of the jurisdiction which this Court enjoys in relation to the International Military Tribunal.

In conclusion, therefore, we take the position that this Tribunal, like the International Military Tribunal, derives from the “joint decision” of the signers of the Moscow Declaration and of the French nation; that the subject matter over which it has jurisdiction, the crimes which it has jurisdiction to try, are codified by the same powers, and that it has jurisdiction over the same persons, those persons who are charged by indictment with having committed these crimes. These are the basic elements upon which concurrent jurisdiction as a matter of law has always been determined to exist by all courts which have had occasion to decide this question.

We have belabored this question of the equal dignity and concurrent jurisdiction of this Tribunal with that of the International Military Tribunal for reasons which are legal and also arise from the standpoint of policy. To us they seem important and because they do, a due regard for the candor owed to this Tribunal and to the world obligates us to state them.

MR. LAFOLLETTE: First, we believe that this Tribunal has the right and power to decide all questions of law, other than the “criminal nature” of those groups or organizations which the International Military Tribunal found to be criminal, and as distinguished from the ultimate facts set out in Ordinance No. 7, article X, as original questions of law which it has the right to decide, contrary to the decisions reached by the International Military Tribunal, if it is convinced that a proper interpretation of the Charter and Law No. 10, or of the ultimate facts to be inferred from the evidence in this case, require it logically, and therefore, by the exercise of intellectual integrity, to reach a contrary decision. We do not deny the persuasive authority of the decision and judgment of the International Military Tribunal, but we point out that between the International Military Tribunal and this Tribunal the relationship of a court of superior jurisdiction to that of one of inferior jurisdiction does not exist in fact or in law. Therefore the decision and judgment of the International Military Tribunal is not binding upon this Court; except to the extent fixed by said article X and the other provisions which are referred to.

Second, from the standpoint of policy the prosecution believes it owes it not only to this Tribunal but to the world to establish the concurrent jurisdiction and therefore the equal dignity of this Tribunal and of the proceedings before it, with those before the International Military Tribunal, which preceded it. We try here war criminals charged with the commission of international crimes, codified as such, by the same nations which codified the crimes for which the International Military Tribunal tried the defendants indicted and arraigned before it. This is not an American side show, national in character. On the contrary, it is the avowed program of the Government of the United States to carry on the obligation assumed at Moscow in 1943 by living up to the inter-Allied agreements made at Potsdam in 1945. Finally, we assert the high character of this Tribunal and therefore of the proceeding before it, in order that we ourselves may understand the high judicial character of our actions and the obligations of candor and ethical conduct which these proceedings of necessity impose upon counsel appearing before this bar.

We try these defendants, therefore, in a Court whose authoritative source and whose jurisdiction over subject matter and persons is equal to, and concurrent with, the International Military Tribunal (IMT). We try them for crimes, war crimes, and crimes against humanity, which were unlawful, as alleged in the indictment, when committed because they were in violation of the “universal moral judgment of mankind” as attested by the judicial decision of the International Military Tribunal.

We try them in an international court for crimes under international law which finds its authority not in power or force, but in the universal moral judgment of mankind.

We shall now present our general theory of the prosecution’s case. In doing so, we shall outline the broad legal principles which establish the relevancy of our evidence to the crimes charged. We shall not, at this time, except perhaps for the purpose of illustration, relate it to each of these defendants. That will be done adequately enough to satisfy the Court and disconcert the defendants when we sum up.

In count two of this indictment, we charge these defendants with the commission of war crimes as defined in article II, paragraph 1(_b_) of Law No. 10, and in count three we charge them with the commission of crimes against humanity as defined in Law No. 10, article II, paragraph 1(_c_). We have demonstrated that as we have charged these crimes in this indictment, we only ask for convictions for the same crimes for which the defendants before the IMT were tried; therefore, we adopt basically the following statements from the decision of the IMT:

“With respect to war crimes, however, as has already been
pointed out, the crimes defined by article 6, section (_b_)
of the Charter [which are the same crimes defined by Law No. 10,
article II, paragraph 1(_b_)] were already recognized as
war crimes under international law.”[42]

There’s a parenthetical statement in there, Your Honors will note.

“But it is argued that the Hague Convention does not apply in
this case, because of the ‘general participation’ clause of
article 2 of the Hague Convention of 1907. * * *.

“In the opinion of the Tribunal it is not necessary to decide
this question. The rules of land warfare expressed in the
Convention undoubtedly represented an advance over existing
international law at the time of their adoption. But the
Convention expressly stated that it was an attempt ‘to revise
the general laws and customs of war’, which it thus recognized
to be then existing, but by 1939 these rules laid down in the
Convention were recognized by all civilized nations, and were
regarded as being declaratory of the laws and customs of war
which are referred to in Article 6 (_b_) of the Charter.

“A further submission was made that Germany was no longer bound
by the Rules of Land Warfare in many of the territories occupied
during the war, because Germany had completely subjugated those
countries and incorporated them into the German Reich, a fact
which gave Germany authority to deal with the occupied countries
as though they were a part of Germany. * * *. The doctrine was
never considered to be applicable so long as there was an army
in the field attempting to restore the occupied countries to
their true owners, and in this case, therefore, the doctrine
could not apply to any territories occupied after 1 September
1939. As to the war crimes committed in Bohemia and Moravia, it
is a sufficient answer that these territories were never added
to the Reich, but a mere protectorate was established over them.

“* * * but from the beginning of the war in 1939 war crimes
were committed on a vast scale, which were also crimes against
humanity; and insofar as the inhumane acts charged in the
indictment, and committed after the beginning of the war, did
not constitute war crimes, they were all committed in execution
of, or in connection with, the aggressive war, and therefore
constituted crimes against humanity.”[43]

It is proper to point out also, that in order to establish the guilt of any of these defendants for crimes against humanity, it is not necessary that they themselves shall be indicted for or convicted of a crime against peace; that is, the waging of aggressive war, which the IMT held began on 1 September 1939.

In the trial before the IMT the record discloses that seven defendants were convicted of crimes against humanity, who either were not indicted for, or were found not guilty of, participation in a conspiracy to commit crimes against peace or of the commission of a crime against peace.

We want to discuss briefly the substantive law under which we try this case.

Law No. 10, article II, paragraph 2 is part of the substantive law under which this indictment is brought. An effective presentation of the meaning and effect of this paragraph is aided by presenting those parts of it which are relevant to this case verbatim at this time:

“Any person without regard to nationality or the capacity
in which he acted is deemed to have committed a crime as
defined in paragraph 1 of this article, if he was (_a_)
a principal, or (_b_) was an accessory to the commission
of any such crime or ordered or abetted the same or (_c_)
took a consenting part therein or (_d_) was connected with
plans or enterprises involving its commission or (_e_)
was a member of any organization or group connected with the
commission of any such crime or * * *.”[44]

Clause (_f_) of the above paragraph applies only to crimes against peace, for which none of these defendants is indicted.

We are not concerned in this opening statement with discussing niceties of legal draftsmanship nor shall we now use American legal terminology to describe the ultimate relationship of defendants, whose guilt is fixed by paragraph 2 of article II to the overt act; namely, any crime as defined in paragraph 1 of article II. But we are concerned with offering to this Court our observation upon its legal effect.

We do not concern ourselves now with principals or accessories. We do discuss the relationships arising out of the words “abetted” and the relationships set out in clauses (_c_), (_d_), and (_e_), paragraph 2 to the overt act. At the threshold, we point out that the crime, which defendants who occupy any of the relationships last referred to are guilty of committing, is _any crime as defined in paragraph 1 of article II_. The proof must show that a crime as defined in Law No. 10, article II, paragraph (1), that is, a crime within the jurisdiction of this Tribunal, was committed, but if it was committed by any of the defendants or a person other than the defendants in the dock or any of them, and any of these defendants abetted the doing of that act, was connected with a plan or enterprise to commit it, consented to its commission, or was a member of any organization or group connected with the commission of any crime within the jurisdiction of the Tribunal, he is guilty of committing that crime.

The IMT has given two persuasive interpretations of the meaning of the words “being connected with” which we cite.

In the case of the defendant Streicher who was found guilty of committing crimes against humanity, the IMT said:

“Streicher’s incitement to murder and extermination at the time
when Jews in the East were being killed under the most horrible
conditions clearly constitutes persecution on political and
racial grounds in connection with war crimes, as defined in the
charter, and constitutes a crime against humanity.”[45]

The case of von Schirach is also most enlightening. Anschluss with Austria took place on 12 March 1938. Von Schirach was appointed Gauleiter of Vienna in July 1940. Von Schirach was found guilty of committing crimes against humanity.

The IMT said:[46]

“As has already been seen, Austria was occupied pursuant to
a common plan of aggression. Its occupation is, therefore, a
‘crime within the jurisdiction of the Tribunal’, as that term
is used in article 6 (_c_) of the Charter. As a result,
‘murder, extermination, enslavement, deportation and other
inhumane acts,’ and ‘persecutions on political, racial or
religious grounds’ in connection with this occupation constitute
a crime against humanity under that article.”

* * * * * * *

“The Tribunal finds that von Schirach, while he did not
originate the policy of deporting Jews from Vienna, participated
in this deportation after he had become Gauleiter of Vienna.
He knew that the best the Jews could hope for was a miserable
existence in the ghettos of the East. Bulletins describing the
Jewish extermination were in his office.”[47]

It seems clear from these cases that there need be no prearrangement with, or subsequent request by, the person or persons who actually commit the crime and a defendant, to make him guilty as the IMT interpreted the words “being connected with.” It would appear to be sufficient that the defendant knew that a crime was being committed, and with that knowledge acted in relation to it in any of the relationships set out in paragraph 2 of article II which we have heretofore been discussing.

We think it is also helpful to call to the attention of the Court one rule of evidence by which the existence of a conspiracy, that is, the relationship of individuals to the doing of the overt act, is held to be established.

The case from which we quote arose out of the activities of the Ku Klux Klan during the height of its power in Indiana. The people of the United States, on that occasion, at least, had enough courage and foresight not to let that organization acquire the control of all of its judicial system, the way the people of Germany let these defendants and their fellow Nazis acquire control of and pervert theirs. Consequently, our incipient Nazis were tried. The court in the cited case held that the proof of the doing of the overt act was in itself evidence of the intent of the conspirators to commit the act so as to establish their intent to conspire. I quote from the decision:

“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 unlawful _eo ipso_ and 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.” /#

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 of
_ex post facto_ laws, 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 can be 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 was _ipso facto_ unlawful or _malum
per se_ and 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 to demonstrable 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 decree which 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.”

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.”

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.”

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 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 is perhaps 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 upon from 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
relatives of 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.