Chapter VI: Introduction (5)

The constitution of the BNSDJ dates from 4 May 1933. It declares as its program the realization of the National Socialist program in the legal field. According to Hitler’s order of 30 May 1933, the BNSDJ was the sole representative of the German Law Front and the exclusive professional organization of all lawyers. The seat of the BNSDJ was Munich, its leader Hans Frank, and its executive secretary Dr. Wilhelm Heuber. Regionally, it was divided into 26 regions (Gaue). Leader of the Gaue “Hanseatic Cities” was the defendant Rothenberger. At the end of 1934, the Nazi organization of jurists had approximately 80,000 individual members and its executive secretary could boast that it was the biggest lawyers’ organization in the world. In 1936, the name was changed to “Nationalsozialistischer Rechtswahrerbund” (NSRB). Through the disciplinary boards of this organization, the legal chieftains of the Nazis held the lawyers under close political surveillance.

c. Under the Third Reich

Within a short time after the advent of the Nazis, the editorship of all legal journals was taken over by newly appointed Nazi editors, such as Hans Frank and his accomplices of the BNSDJ. A number of the scientific legal journals whose editors were known as anti-Nazis, such as “Die Justiz,” were suppressed. The new editors perverted the legal journals by turning them into mere propaganda instruments of the Nazi government. In these journals, the jurists were informed that they were to be nothing but the legal soldiers of the Fuehrer. The legal journals were flooded with such material. The Deutsche Justiz, the mouthpiece of the Ministry of Justice, frequently printed directives of which the following by the late Under Secretary Freisler is typical:

“But we will march as an army corps of the Fuehrer, and as such,
no one shall outdo us in the willingness to self-sacrifice! We
are alone responsible to the Fuehrer and that is our wish.”[64]

While, on the one hand, the legal thinking of the older generation of jurists was perverted, on the other hand the future Nazi jurists received a thorough indoctrination at the law schools of the universities where they were instructed by Nazi lawyers or by opportunists who had sold their legal reputation for promotion within the Nazi hierarchy. Respected professors, who were suspected of so-called “Roman-Jewish individualistic” legal ideas were discharged, and references to such ideas were eliminated from the textbooks. The standard of legal education was considerably lowered. The students had to spend a considerable part of the time which was once devoted to the study of law, on compulsory labor and military service and exercises in the student cadres of the SA Storm Troopers and the SS Elite Guards. During the period of their law clerkship, Nazi indoctrination and exercises in military formation were substituted for the once thorough legal training. Eventually, no young lawyer was admitted to the bar whom the examination board did not consider a reliable legal soldier of the Nazi Fuehrer. In analyzing the new Nazi examination decree for lawyers, Freisler stated:

“The experience of the candidate within the (Nazi) movement and
its evaluation (by the Nazi movement) is fundamental in any
evaluation of the candidate’s qualifications. If such experience
does not exist, he will be disqualified.”[65]

In the early stages of this prostitution of German legal education, the Prussian Ministry of Justice took a leading part. The Prussian Minister of Justice was a Nazi zealot named Hanns Kerrl, a budget clerk without legal education who attained this high position under the Nazis, and who became the Reich Minister for Churches after the Prussian Ministry of Justice was absorbed by the Reich government. In April 1933 Kerrl issued a decree concerning the selection of candidates for positions as judges, public prosecutors, and attorneys in the State of Prussia, which provided in part that--

“The applicant for appointment as a junior judge (assessor),
admission as attorney, or appointment as notary public
will in future have to prove in a special hearing that his
consciousness of being a member of the national community, his
social understanding, and his understanding of the entire race
development of the German people in the present and future
constitute the basis of his personality. * * * for this purpose
applicants will have to undergo a special post-examination which
has the aim to convey an impression of his being rooted in the
national community (Volksverbundenheit).

“The result of this post-examination will be evaluated in
my decision about the appointment or qualifications of the
candidate equally with the other statutory requirements.”[66]

Two months later, Kerrl issued another decree which required that all candidates for the final State legal examination had to attend a special “Community Camp” for 6 weeks before they would be admitted to the final examination. This Prussian decree provided, in part, as follows:

“The National Socialist State must know above all that the man
whom the State, as a sovereign, intends to entrust with the
execution of the most important tasks of judge or prosecutor,
must have character and be a typical German.

“One cannot get an idea of this from an examination as it has
been conducted up to now, * * *.

“I therefore decree that:

“1. In the course of the final legal State examination, each
candidate, during the period following the written and preceding
the oral examination, that is for about 6 weeks, is to live
together with other candidates under the direction of civil
servants of the Prussian Administration of Justice, appointed by
me * * *.”[67]

This preposterous institution for the perversion of young lawyers was established, and given the name “Gemeinschaftslager Hanns Kerrl,” after its creator. It was located at Jueterbog, near Berlin. An illustrated pamphlet describing the activities in this lawyers’ madhouse will be introduced in evidence. According to the basic statute of the camp, the inmates were to become familiar with the leadership principle and would “experience the ideas of the Fuehrer.” The commandant of the camp was a lawyer named Spieler, who had become favorably known to the Nazis through his activities as defense counsel in their behalf. He was an old Party member and a colonel in the Storm Troopers (SA). He was assisted in supervision of the young lawyers by a motley group of storm troopers and army officers. The extracts from this pamphlet will bear quotation:

“A further training and examination of the candidate is
accomplished through ideological indoctrination. The camp
directors are aware, of course, that national socialism
can neither be learned nor taught. National socialism must
completely determine an individual’s attitude; when this is
not the case, the individual can never become a real National
Socialist. There are many people, however, who in their social
relations or in their way of living have not become acquainted
with national socialism or were even opposed to it, yet in these
people there exists an unconscious National Socialist sentiment
which only needs stimulation to develop. The appropriate
method for this is the ideological indoctrination. The latter
is therefore particularly used in the camp, not only for this
purpose but also for training purposes, to strengthen and
develop the National Socialist ideology.

* * * * * * *

“The day of Horst Wessel’s death was also a remarkable day.
This day was commemorated in a particular manner. At 4 o’clock
a trumpeter blew reveille. At 4:07 all the camp inmates were
already assembled in the courtyard. A brief order, ‘column
right, forward march.’ Then the various platoons of the school
took different routes across the drilling field and marched on
into the country.”

After the dissolution of the Prussian Ministry of Justice in 1934, the Gemeinschaftslager Hanns Kerrl was brought under the supervision of the Reich Ministry of Justice. The illustrated pamphlet to which I have just referred contains photographs of Reich Minister Guertner, Under Secretary Freisler, and others visiting the camp. The photographs also show a gallows from which was suspended a symbol of German statutory law, the sign for the paragraphing of legal codes. Guertner and Kerrl are both photographed standing under the gallows. It would be hard to conceive a more appropriate symbol for the degradation of the legal profession under the Third Reich.

COUNT FOUR

MEMBERSHIP IN CRIMINAL ORGANIZATIONS

GENERAL TAYLOR: The fourth and final count in the indictment contains the charge that seven of the defendants are guilty of membership in organizations declared to be criminal in the judgment of the International Military Tribunal. Four of the defendants, Altstoetter, Cuhorst, Engert, and Joel are accused of membership in the SS. The defendant Joel is also accused of membership in the Sicherheitsdienst (commonly known as the SD). The defendant Cuhorst is also accused, together with three others, Oeschey, Nebelung, and Rothaug, of membership in the Leadership Corps of the Nazi Party. All three of these organizations were declared criminal in the judgment of the International Military Tribunal.

The legal basis of the charges in count four is quite distinct from that of the first three counts in the indictment. The charge derives from article 9 of the Charter of the International Military Tribunal, which authorized that Tribunal, under specified circumstances, to declare that certain “groups” or “organizations” were “criminal organizations.” The prosecution before the International Military Tribunal sought such declarations in the case of each of the three organizations involved in count four of this indictment, and the International Military Tribunal rendered such declarations. In the meantime, it had been provided in article II of Control Council Law No. 10 that “membership in categories of a criminal group or organization declared criminal by the International Military Tribunal” should be “recognized as a crime.” Paragraph 3 of article II of Control Council Law No. 10 specifies the punishments which may be imposed for membership in such organizations.

In its decision, the International Military Tribunal set forth certain limitations upon the scope of its declaration that these organizations were criminal.[68] Under these limitations, in order to render membership criminal, two things, in addition to membership, must be shown--

1. That the individual in question became or remained a member
of the organization after 1 September 1939, and

2. That the individual in question either (_a_) became or
remained a member with knowledge that it was being used for the
commission of acts declared criminal by article VI of the London
Agreement, or (_b_) was personally implicated as a member
of the organization in the commission of such crimes.

The prosecution believes that, once it has established that a defendant was a member of one or more of the criminal organizations, it is incumbent upon the defendant to come forward with evidence that he neither knew of the criminal activities of the organization, nor participated in their commission, or that he ceased to be a member prior to 1 September 1939. We believe that any question concerning the burden of proof will be entirely academic in this case, in as much as the positions which these defendants held, and the evidence embodied in the documents which we will offer in evidence will show beyond question that they both knew of and participated in the criminal activities.

a. Membership in the SS

I will deal first with the four defendants charged with membership in the SS. The evidence will show that the defendant Altstoetter became a member of the SS in 1937, that he remained a member after 1939, and attained the rank of Oberfuehrer (senior colonel) in June 1944. The defendant Cuhorst became a sponsoring member (Foerderndes Mitglied) of the SS in January 1934 and remained such after 1939. The defendant Engert joined the SS in 1936 and thereafter attained the rank of Oberfuehrer (senior colonel). The defendant Joel joined the SS in 1938, and attained the rank of Obersturmbannfuehrer (lieutenant colonel).

The activities for which the SS was declared a criminal organization are set forth in the judgment of the International Military Tribunal.[69] These activities included the extermination of numerous “undesirable” classes, including Jews, and the transfer of numerous Jews and foreign nationals to concentration camps where they were murdered and tortured.

It will be abundantly apparent from the proof that if any member of the SS knew of, and participated in, its widespread criminal activities, surely these defendants did. They were directly concerned with penal problems, and, as we have seen, of necessity their cooperation with the SS was extremely close. In fact, Himmler himself took special pains to insure that the German judiciary would be fully advised on the ideology of the SS and of its nefarious aims and purposes. In July 1944 at the special invitation of Thierack as Reich Minister of Justice, Himmler made a speech to the presidents and the attorneys general of the courts of appeal. A report from the files of the Ministry of Justice describing this occasion reads as follows:

“On the invitation of the Reich Minister of Justice Dr.
Thierack, the Reich Leader SS, spoke to the presidents and the
attorneys general of the courts of appeal at the Reich Castle of
Cochem on 20 May 1944. The question of the development and the
aims of the SS was dealt with, in particular the importance of
the racial question, questions of national biology, fighting
selection, racial community, the importance of the Waffen SS
(armed SS) and the greater German concept.

“The judges and public prosecutors were to receive the
information through the presidents of the courts of appeal and
might have been informed in the meantime.

“You are respectfully requested to submit a detailed report on
the reception and the effect of this speech on the judges and
the chief public prosecutors.”

Himmler’s well-known views on the value of non-German human life were thereby made available to all German judges and chief prosecutors. They surely came to the attention of the defendant Cuhorst, in this and numerous other ways. They surely were well known among the higher officials of the Ministry of Justice, including Altstoetter, Engert, and Joel.

Indeed, long before Himmler’s speech to this judicial assembly, the Ministry of Justice had been collaborating actively with Himmler in turning over Jews, Poles, Russians, gypsies, and others from the ordinary prisons to the concentration camps. The whole evil process must have been particularly well known to Engert, who was in charge of Division XV of the Ministry of Justice, which was charged with carrying out these transfers. A Justice Ministry document written in October 1942 gives complete information concerning the agreement between the Ministry and Himmler, and specifically delegates the execution of the agreement, on behalf of the Ministry of Justice, to Engert and his associates in Division XV. Engert thereafter visited various prisons throughout the Reich, checked over the lists and arranged for the delivery of these unfortunates to the SS.

Nor could these arrangements, or other activities of the SS, have been any secret from Altstoetter, who was a division chief of the Ministry of Justice throughout this period. Furthermore, Altstoetter was a particular personal favorite of Himmler’s. Correspondence which we will introduce will show that the most cordial relations existed between Altstoetter and Himmler and between Altstoetter and other high SS officers including Mr. Karl Gebhardt, the Chief Surgeon of the SS. At a conference in 1942 with Thierack, Rothenberger, and other judicial officials, Himmler singled out Altstoetter as being “reliable.” The defendant Joel was not only an officer of the SS, but also a member of the Sicherheitsdienst, the branch of the SS particularly concerned with intelligence and with the extermination of Jews in Poland and the Soviet Union. Joel was particularly familiar with these murderous activities. A memorandum signed by Joel in 1942 described a plan which Goering had concocted for picking out “daring fellows” from among the prison inmates who would carry out special tasks behind the lines on the eastern front. Joel’s memo recites that Himmler had already selected a large number of such men for his purpose, but that Goering wanted the field picked over again. Joel’s memo goes on to state:

“ * * * the only suitable men are those with a passion for
hunting, who have poached for love of the trophy, not men who
have laid snares and traps. The Reich Marshal also mentioned
fanatical members of smuggling gangs, who take part in gun
battles on the frontiers, and whose passion it is to outwit the
customs at the risk of their own lives, but not men who attempt
to bring articles over the frontier in an express train or by
similar means.

“The Reich Marshal Goering leaves it to us to consider whether
still other categories of convicts can be assigned to these
bands of pursuit commandos.

“In the regions assigned for their operations, these bands
whose first task should be to destroy the communications of the
partisan groups could murder, burn, and ravish; in Germany they
would once again come under strict supervision * * *.”

b. Membership in the Nazi Party Leadership Corps

The defendant Cuhorst again, along with Nebelung, Oeschey, and Rothaug, is involved in the charge of membership in the Leadership Corps of the Nazi Party. The declaration of criminality rendered by the International Military Tribunal includes all the “leaders” in the hierarchy of the Nazi Party from the Reichsleiter down through Gauleiter and Kreisleiter, to Ortsgruppenleiter. It also includes the heads of the various staff organizations, down to the staffs of the Kreisleiter.

The evidence will show that Cuhorst became a member of the Nazi Party in 1930 and in 1933 was given the status of Gaustellenleiter. The defendant Oeschey joined the Party in 1931 and in 1940 was given the status of Gauhaupstellenleiter. Rothaug joined the Party in 1938 and attained the status of Gaugruppenleiter. All three of these defendants were therefore heads of staff organizations at Gau level. The defendant Nebelung joined the Party in 1928 and soon thereafter became an Ortsgruppenleiter. All four of the defendants, therefore, fall within the categories of the Leadership Corps specified in the decision of the International Military Tribunal.

The criminal activities of the Nazi Party Leadership Corps are also set forth in the judgment of the International Military Tribunal.[70] These included the persecution and extermination of Jews, administration of the slave labor program, mistreatment of prisoners of war, and the lynching of airmen who had bailed out over Germany. The evidence which we will offer will show knowledge of and participation in all or most of these activities by all four of the defendants.

c. Summary

In conclusion on count four, the prosecution wishes to point out certain factors which it believes should be borne in mind in considering the degree of culpability to be attributed to membership in organizations declared criminal by the International Military Tribunal. The charge of membership in these organizations, coupled with knowledge of the crimes that were committed or participation in those crimes, is a very serious one. Its consequences will, we believe, have to be more closely examined at the conclusion of this proceeding, but certain factors can be pointed out here and now.

It is true, for instance, that in a sense none of the seven defendants involved in count four were “full time” or “paid” members of these organizations. All seven of them had full time jobs as judicial officials but, under the circumstances which the evidence in this case will disclose, we do not believe that this fact is significant in estimating culpability.

It is true that the high officers’ ranks in the SS held by Altstoetter, Engert, and Joel were chiefly honorary. It was part of Himmler’s calculated policy to draw support to himself from all quarters by distributing honorary SS ranks and decorations. But those who accepted special ranks thereby lent the weight of their names and prestige to Himmler and to Himmler’s policies. If they did not agree with these policies, they prostituted themselves for whatever prerequisites or security these shameful ranks and awards might bring.

Where it can be shown, as it will be here, that the defendants not only were fully familiar with the horrifying scope of Himmler’s program, but also participated directly in its execution, it should be considered no defense whatsoever that an individual’s SS activities were extracurricular rather than his daily bread and butter.

Similar considerations apply to the defendants who were members of the Party Leadership Corps. Cuhorst, Nebelung, and Oeschey were all members of the Party years before Hitler came to power; all three of them, and Rothaug, too, played a leading role in Party affairs. They too, by the very nature of the positions they occupied in the judicial system, to say nothing of the fact that they were high in the Party councils, must have been aware of the activities recited by the International Military Tribunal as the basis for its declaration of criminality.

Indeed, the guilt of these seven defendants under count four is, in many respects, deeper than that of many full-time officers of these organizations. The defendants were highly educated, professional men, and they had attained full mental maturity long before Hitler’s rise to power. Their minds were not warped at an early age by Nazi teachings; they embraced the ideology of the Third Reich as educated adults. They all had special training and successful careers in the service of the law. They, of all Germans, should have understood and valued justice.

Conclusion

Crimes, theoretically and, more often than not, actually, are these acts, which are so contrary to the moral conscience of the community or so dangerous to the maintenance of a reasonable degree of order, justice and peace in the community, that the community, by appropriate processes, demands their elimination and suppression in the interest of the individuals who constitute the community. Therefore, those within a nation or a state who institute proceedings to enforce this community decision as prosecutors, speak for the community conscience or community decision. For this reason, criminal prosecutions within states or nations are brought in the name of the State or the Commonwealth, or by the use of words suitable to describe the offended community.

In this proceeding at Nuernberg, the world is the community. The four nations which have written the substantive law under which we proceed, their responsible government heads and their elder statesmen, have proclaimed it as a codification of crimes denounced as such by the moral conscience of that community where the crimes we try were committed.

Therefore, although this indictment is brought in the name of the Government of the United States, this case in substance is the people of the world against these men who have committed criminal acts against the community we know as the world. For surely few spots on this earth are so remote that they have not felt in some degree the disruptive, if not indeed the destructive, impact of the criminal acts of these men or those others whom they served and with whose acts they were criminally connected. Therefore, unless all the countries of the world fight a continuous struggle to match the moral conscience of the world which has been asserted here, the result will be a cynical Germany and an apathetic amoral world which drifts aimlessly because it sees no national conduct which matches the standards of moral conduct which are proclaimed here. The true significance of these proceedings, therefore, far transcends the mere question of the guilt or innocence of the defendants. They are charged with murder, but this is no mere murder trial. These proceedings invoke the moral standards of the civilized world, and thereby impose an obligation on the nations of the world to measure up to the standards applied here.

Although this Tribunal is internationally constituted, it is an American court. The obligations which derive from these proceedings are, therefore, particularly binding on the United States. True it is that two wrongs do not make a right, and equally true that the crimes charged against these defendants and the other leaders of the Third Reich were “so calculating, so malignant, and so devastating” that they find no modern parallel. But, underlying these crimes, there are myths, superstitions, and more sophisticated distortions of philosophy which do not know national boundaries. If we, of all nations fail to rise above these malignant doctrines by actions which manifest a steady growth in national fiber and character, then all that we do here will come to nothing, and will leave us and mankind an easy prey to their next violent eruption.

We have still other obligations here which must not be overlooked. As was pointed out earlier, we have undertaken, together with other nations, the task of preparing “for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life in Germany.”

These proceedings are dedicated to that end. Punishment of these leaders of Germany whose crimes made this task necessary is only a part of what we seek to accomplish here. We seek to resurrect the truth in Germany, and to reinvigorate those ideals that have been so long desecrated. The people of Germany sense the need for this, but they will measure our efforts by the measure of our own devotion to the ideals which we proclaim.

The United States cannot evade the challenge of these responsibilities. We can fulfill only the smallest part of them at Nuernberg. But Nuernberg must be a symbol, not of revenge or of smug self-satisfaction, but of peace and good will among nations and peoples. It is the crime of shattering the foundations of peace and denying the very fact of humanity that is charged in this and other proceedings at Nuernberg. It is by trying these charges under law, and in quest of truth, that Nuernberg will find its full measure of justification.

B. Opening Statement for all Defendants[71]

DR. KUBUSCHOK (counsel for defendant Schlegelberger, speaking on behalf of all the defendants): May it please the Tribunal. In the following statements I shall briefly describe the manner in which the defense believes, by summarizing the treatment of individual general problems, it will expedite the trial. My following statements are to be interpreted in that sense.

The prosecution views the development of justice in administration and jurisdiction during the period of the National Socialist State. It limits its reflections to this period and perceives in everything the consequent execution of National Socialist totalitarian thought. It believes to be able to reduce all phenomena to this denominator.

It must be the task of the defense to extend the boundaries of this reflection beyond this period. The defense will show that no new legal system was created, and that no new system of jurisdiction was developed. Thus, the historical development which had been built on, also in the period from 1933 onward, must be presented in its fundamental traits.

The defense must also be aware of the difficulties encountered in the treatment of the subject matter before a non-German court. The difference between the Anglo-American legal system and the German law, in accordance with which the acts of the German defendants are judged, lies not only in the solution of individual legal questions and problems, but is fundamental and systematic. Anglo-American law appears to us vitally progressive by the effect which decisions of the highest courts carry in setting precedents. German law, on the other hand, is a codified law, much less suitable to development by the administration of justice, but a law which in itself demands observance of the legal standard. The written law is inflexible. New concepts of the law cannot succeed in the administration of justice as is the case in the gradual development of the “common law.” The German--as well as the continental--principle of the codified law permits the incorporation of new legal concepts only through sudden changes [sprunghafte Veraenderungen] of the written law. Thus the supplementary laws of the penal code in force in Germany since 1877 show an abrupt change at shorter or longer intervals. For this reason the positivism of law has played a far more important part in Germany since the end of the nineteenth century than has been the case in legal systems outside the continent. Only the written law [statutory law] and not general ideas on morals and rights constituted the directive for administration of law and justice. Also in Germany this principle of absolute codification has, with regard to its expediency, been the object of legislative discussion for some time. Finally, in 1935, it culminated in the amendment of article 2 of the penal code, and thus, a synthesis was found between codified law and the development of law as interpreted by the decision of the judge; and historical reflection on this event will show the inaccuracy of the prosecution’s conclusion that, being instituted during the period of the National Socialist State, it must of need be the product of National Socialist thinking and its corresponding political aim. We shall prove that the fundamental basis for this norm was created by plans for reform drafted long before 1933, and that the necessity of supplying the judge with a means, enabling him to counterbalance the defects of an absolutely codified law to a limited degree by analogous application of a penal regulation had been realized long before that. It was recognized that the multiformity of life, the constant change of its forms with regard to social, political and economic aspects could not be regulated by codified law alone; especially so, because codified law always lagged one step behind the case in need of settlement of law. Such cases could not, as is possible in “common law,” be regulated and decided on by general concepts of law; they merely gave cause for establishing new legal standards. This one example already reveals the necessity of dealing with the existing German legal system and with plans for reform entertained in Germany for decades.

German law will form the basis for all considerations. We will, therefore, also have to deal with constitutional law and the technique of legislation. We shall proceed from the provisions of the Weimar constitution. We shall observe there the legislative functions of the Reichstag, the Reichsrat [Council of the Reich] and the Reich President. It will be shown that, since Bruening was Reich Chancellor, the weight of legislation shifted in ever increasing measure toward the right of the Reich President to issue emergency decrees.

The turning point was formed by the Enabling Act [Ermaechtigungsgesetz] of 24 March 1933 which represents the basis for all future legislation. The cabinet was now empowered to pass laws on its own authority and even the right of the Reich President to draft and promulgate laws was abandoned. Thus, under consideration of article 56 of the constitution which allocated powers of policy determination to the Reich Chancellor, the right to legislate was practically conferred upon Reich Chancellor Hitler who, in the absence of time, made increasingly extensive use of it. The lawful passing of a law and its legal effects will necessarily be the subject of presentation.

Thus, we are faced with the legal problem of the binding effect of the Fuehrer order. It will have to be examined whether this Fuehrer order was a literal order in the meaning of the Control Council Law, the effect of which is not to be looked upon as exempting from guilt, or, at the most as mitigating, or, whether we are not dealing here with a legislative act, to which this provision of the Control Council Law does not apply.

We shall have to deal with the entire legislative machinery as it was developed at that time. It will be shown that meetings of the cabinet took place even after Hitler’s cabinet had been formed, that they were, however, of an essentially different character already than formerly. Questions were no longer put to the vote. In individual questions of legislation too, Hitler stood on his right as Reich Chancellor to determine directives of policy, in accordance with article 56 of the constitution. As Hitler’s position grew stronger, especially after, in August 1934, the positions of Reich Chancellor and President of the Reich had been combined in his person, cabinet meetings served actually only the purpose of issuing Hitler’s instructions. In accordance with instructions, members of the cabinet were to submit bills that concerned their departments. In accordance with Hitler’s request these bills were submitted to other participating members of departments prior to the cabinet meetings, in order to obtain their opinion and at this stage only objections with regard to departmental competency of other ministries were taken into consideration. The bill, thus having become “ripe for the cabinet” [kabinettreif] was then passed in the cabinet meeting without debate. Since the uselessness of the cabinet meetings thereby became obvious, they were discontinued completely in 1937. Laws were then legislated by means of a so-called circulation procedure [Umlaufsverfahren] in which the individual ministers were given opportunity to voice their objections. These objections could, however, deal with purely departmental aspects only, whereas objections against a basic political idea founded on one of Hitler’s instructions could not be raised or remained ineffective. As we will show, this had, at the same time, the effect of declassifying certain ministries and resulted in their being subordinated to other ministries. This started already in 1935. By the secret National Defense Law, the OKW, [High Command of the Armed Forces], the Minister of Economics as Plenipotentiary General for the Economy, and the Minister of the Interior as Plenipotentiary General for the Administration of the Reich, were brought into prominence as legislative bodies and were combined in Board of Three [Dreierkollegium]. The other Ministries were subordinated to them and depended on them for instructions. The Ministry of Justice was subordinate to the Plenipotentiary General for the Administration of the Reich and was permitted to present bills only through him. The Ministry of Justice’s signature on a law was therefore only of nominal significance; it indicated that the judicial departments had been concerned with the contents of the law. We will show that after the outbreak of the war the Ministerial Council for National Defense was added as legislative body to the Board of Three. Here too, the Ministry of Justice was subordinated to the Plenipotentiary General for the Administration of the Reich, who was a member of the Ministerial Council for National Defense. Bills were drafted in accordance with his instructions. If the initiative for drafting a bill came from the Ministry of Justice itself the Plenipotentiary General for the Administration of the Reich had to concur in the matter.

To judge the position of the individual defendant in the Ministry, a detailed presentation of the organization of the judicial administration becomes necessary. We must deal with the problem of subordination of the various offices in their relations with each other. In particular, the defense will attempt to give the Tribunal a picture of the actual workings of the Ministry of Justice. Within the framework of a bureaucratic organization the sphere of activity of a minister, an under secretary, division chiefs, subdivision chiefs, a Referenten, and co-workers [Mitarbeiter], will be defined and certain organizational changes wrought in the course of time will be taken in consideration. The scope of authority pertaining to the superior-subordinate relationship is also of importance. Of equal importance are the limits of signing power fixed for each individual official of the Ministry of Justice as well as the degree of responsibility he assumed whenever he affixed his signature. A signature does not always imply the assumption of a responsibility nor does it always signify that someone in particular was charged with the handling or discharging of a specific task. A document has quite frequently been submitted to an official of the Ministry of Justice for the sole purpose of having him take official notice of its contents, i.e., the only object being to apprise the official in question of some measure or other. This method of passing on information, of course, could serve many other purposes which remain to be discussed. A simple request, however, to take official notice, combined with an accompanying acknowledgment of receipt signed by an official, never meant that the official had, by affixing his signature, assumed responsibility for the matter on hand. Finally, there remains the problem of throwing light upon the relationship existing between individual departments of the Ministry of Justice and that of defining the meaning and aim of a cosignature. The act of cosigning indicated primarily that the subject matter and its treatment as viewed in the light of the cosigner’s own field of activity, i.e., from an expert’s point of view alone, gave rise to no objections.

A study of departmental limitations will afford insight into the nature of the judiciary in its relationship with, and its dependency on, other Reich Ministries and Party offices. An understanding of the reciprocal connection between the Ministry of Justice and the Reich Ministry of the Interior, as well as the limitations imposed upon both will yield enlightening information on many questions. We shall also find these necessary connections with other Ministries existing before 1933 and thereby refute the assumption of the prosecution that these intersectional connections which are to be found in any system of government constitute a creation of the Nazis and were adopted by them for the purpose of achieving their own ends. It will be necessary, in this connection, not only to discuss the strictly legal aspects involved, but also to show what the actual conditions were with respect to power and authority. We will have to reconstruct the events as they occurred at that time in a state under dictatorship and show what legal consequences a necessary examination conducted from the viewpoint of constitutional law will yield. The question will be raised as to what would have been the consequences of a failure to comply with an order, and would obedience, therefore, legally exclude guilt. A factor of great importance in considering that problem is the determination of the relationship between the judiciary and the police. The effective role played by Himmler, as chief of the entire police force, must also be taken into consideration. The full presentation of facts will show how the police interloped in affairs of the judiciary, and how this interference led, during the course of the years, to an appreciable weakening of the position held by the judiciary. We shall see what means were and had to be employed to fight that battle. The contrast between the position of the justice administration which was weak by nature and that of the police which was equipped with all the instruments of power it employed ruthlessly through the offices of Himmler and Hitler will become manifest. Again and again one will perceive how the judiciary was confronted with accomplished facts, how it strove to defend or recapture lost ground, how all of its activities, as a matter of fact, were overshadowed by the constant pressure and expansionistic aims brought into play by the police. It will be shown how everyone in the Ministry sought to retain as a last bulwark the concept of the constitutional state for practical usage. It will be brought out how the police, beginning with the protective custody order and ending up with the establishment of its own preserve in the concentration camps and the subsequent creation of its own SS jurisdiction over its members finally secured their exemption from the judiciary. Yet in spite of the constant rivalry between the judiciary and the police we must not lose sight of the fact that certain contacts between both offices had to be maintained because of the very nature of German criminal procedure. Since the judiciary had no investigation agencies of its own, it was dependent upon the cooperation of the police in that respect. Finally, I shall also show how Himmler attempted to wrest all public prosecutor offices from the justice administration for systematic absorption by his police machine, although he did not succeed in doing so. When the unique position held by the judiciary within the entire administrative system is made clear in the presentation, one will become aware of the difficulties of the situation in which the judiciary found itself in this battle. We need but have a clear conception of the difference in denotation of the terms “dictatorship” and “justice” in order to gain an appreciation of the difficulties of that situation. The dictatorship derived both stimulus and pattern from the Party in its manifold manifestations. We will show up the predominance and influence of the Party offices, some of which were legally established, and demonstrate how both expanded in all directions and by the employment of any and all means through the person of the Fuehrer of the Party, namely the dictator.

The defense will show, at the proper time, how the Party sought to push its interests ruthlessly in opposition to the judiciary. The activities of the Party constituted a perpetual obstacle to the progressive administration of justice. It will be shown how the Gauleiter, either directly or indirectly through Bormann, deliberately added fuel to Hitler’s repugnance against the judiciary and thereby shoved the Reich Ministry of Justice into a spot similar to that of an isolated animal at bay.

The various aspects just outlined will also furnish us with a broad foundation for those laws to which objections were raised in the indictment, and the substance of which we shall subject to an exhaustive examination.

We will show, when dealing with the problem of violation of the principle _nullum crimen sine lege_, that all those laws with which the indictment is concerned and which had been made retroactive do not furnish a basis for punishment. The punishable offense itself, to which they referred, had already been made punishable by laws in force at the time the deed was committed.

The _rules_ of penal laws were not only already part and parcel of the general body of law, but had also been fixed long before by virtue of positive law at the time the appropriate supplementary laws went into effect. In every instance revisions were applied only to the evaluation of a crime in relation to the amount of punishment. Since the prescribed rules of the German Penal Code, generally speaking, did not allow a judge much leeway in awarding punishment, it was found necessary to provide for changes with regard to the fixing of penalties.

We will show that conditions of public distress in Germany were in each instance responsible for the changes and, furthermore, that these legislative measures were, above all, inspired by criminological propositions that had played an important part in scientific discussions long before 1933. We will also show that the drafting of such legislative measures was strongly influenced by the knowledge and experience of other countries.

We shall have to proceed from the assumption that a retroactive measure characterized only by an increase in severity of punishment does not constitute a violation of the principle _nullum crimen sine lege_ according to common German continental legal conceptions.

If the prosecution should construe the substance of various laws as crimes against humanity, we will have to enter into an investigation of the actual living conditions which gave rise to the necessity for the legislation of strict measures. One of the cardinal determinants of any system of penal law is the principle of the deterrent influence of punishment. Variations in the forms and uses of deterrents are at all times dictated by circumstances. Thus, when living conditions everywhere are at high tension, deterrents, if they are to be effective at all, must be accompanied by a corresponding increase in severity of legislative measures.

Some of the legal terms found in German court decisions that are to be examined by the Court will require explanation. Such terms as “dangerous habitual criminal,” “perpetrators of crimes of violence,” “juvenile major criminals,” “public enemies,” “asocials,” and “criminal type” [Taetertyp]. In defining these terms it will become apparent that they were used as necessary aids in the quest for laws and that they represented, by no means, a one-sided attempt at increasing the harshness of measures in the administration of justice. These terms were established for the purpose of setting up clear-cut, definable boundary lines encompassing a definite group of major criminals. Such a move paved the way for pronouncements of restricted judgments, i.e., less severe ones upon those who did not fall within that group.

In answer to the question of sterilization, we shall outline its historical development in Germany and other countries both in theory and practice. We will find that sterilization, as a program, was advocated long before 1933 in Germany and even found champions in Socialist and church groups. Closer examination of the law under consideration will reveal the great care and caution exercised in hedging in its specific provisions. Should the law itself, however, lie beyond the pale of any possible extensive explanation, we shall then furnish proof that it has never been misapplied for political or race-political purposes.

The subject of euthanasia will be dealt with at length and judged with fairness and justice. We will show that the measures originated with Hitler himself, and in the Chancellery of the Fuehrer. We will also show--and this is symptomatic of the position held by the judiciary in the administration--that the judiciary did not receive word of the existence of those measures directly but in trailing stages from outside sources. We will bring out how the Ministry of Justice attempted to thwart the execution of those measures, and then disclose how those same attempts led to a premature discontinuance of the program. In order to decide the question of whether the judiciary is responsible for these measures, which they neither caused to be put in effect nor carried out, we again must consider the actual existing facts.

A trial which concerns verdicts rendered by various courts calls for a study of the organization of these courts as well as their manner of functioning. We will deal with the structure of the Special Courts and of the People’s Court as well as the courts before them. We will consider whether the Special Courts are extraordinary courts in the sense of the indictment, which were prohibited by the constitution. We will also define the term “extraordinary court,” and we shall see that a court which has not been established for the purpose of bringing certain persons to trial, but for the purpose of passing judgment on certain punishable acts cannot be considered an extraordinary court. The legal regulations which are prescribed for proceedings in Special Courts and which deviate from regulations prescribed for regular proceedings will be scrutinized with regard to extent and purpose. We will deal with the structure of the People’s Court in like manner.

In order to discuss these questions, it will also be necessary to give the Tribunal a clear-cut, plastic picture of German criminal procedure. We hope to be able to achieve this by interrogating an expert on the characteristic features of German criminal procedure. Thus, we will be able to show the fundamental differences between German and Anglo-American criminal procedure. We will become acquainted with the preliminary proceedings as well as with the actual main proceedings. Preliminary proceedings are in the hands of the public prosecutor. The necessary investigations to ascertain the facts of the case must be carried out with the aid of the police and through its own or judicial interrogations. The public prosecutor is bound by law to an objective consideration of the matter. The prosecutor in so doing of course represents the instance which later on submits the indictment in court; yet he is under obligation to draw up the indictment not as an agent of an interested party, which he will represent later on in the main proceedings, but as a purely objective agent engaged in clearing up the facts of the case. He is also charged with procuring and submitting facts which serve the purpose of the defense. After the facts of the case have been established in this manner and the transcript of the interrogations of the defendant, the witnesses, and the experts as well as the record on any inspections, seizures, or searches have been recorded to the court, then the public prosecutor draws up a written indictment and submits to the court the documents which contain the entire material collected by him with the request that a date be set for the trial. In considering the question whether action should be brought, or whether proceedings should be quashed beforehand, he must take into consideration whether the findings are sufficient to justify the suspicion that a punishable act has been committed. This question will then be examined by the court, which has to decide on the opening date of the trial. If, in the opinion of the court, the findings as laid down in the documents are not sufficient to warrant a conviction of the accused, then the court may decide against instituting trial or it may request the public prosecutor to collect further material, which will be of an exonerating nature also. After the trial has been ordered, the proceedings are entirely in the hands of the judge, and in the case of the courts attended by several judges [Kollegialgerichten], in the hands of the presiding judge. By studying the documents, the court finds out how the preliminary proceedings were conducted as well as the results obtained. However, except in a few instances, the court may make use of the preliminary proceedings for informational purposes only, so to speak, only as a jumping-off point for the main proceedings, which alone are decisive for the final decision. In these main proceedings the oral principle alone applies. Only that which is presented at these proceedings by the defendant himself, by witnesses, experts, and documents can be considered by the court in passing judgment, but not the interrogation transcript of the police or the public prosecutor. The presiding judge guides the proceedings. He examines the defendant who can make statements pertaining to the case in question, but who may not take the stand as a witness as is the case in American proceedings and who can also not be sworn in. Should the public prosecutor or the counsel for the defense desire to ask questions of the defendant, they may do so only through the presiding judge. The examination of the defendant is followed by the hearing of the witnesses and of the experts. This is also carried on by the judge. The public prosecutor and the defense counsel have the right to put pertinent questions to the witnesses and to the experts, which the judge must permit in accordance with the regulations within the framework of the code of criminal procedure.

The role played by the counsel for the defense must be described in detail. In comparison with his role in the Anglo-American procedure, he is not so important here. Whereas in Anglo-American procedures the prosecution as well as the defense, so to speak as two parties, submit their case for the decision of the court, in German procedures the investigation of the facts of the case in the trial, the rules concerning the extent of evidence to be collected, the serving of summons to witnesses for the prosecution and defense, without the prosecution or the defense filing any requests, are in the hands of the court. According to that, the public prosecutor and the counsel for the defense in reality only support the court in investigating the facts of the case, which is the duty of the court itself. Because of this role played by the counsel for the defense, it follows that in German criminal proceedings the defendant is represented by a counsel only in a comparatively small percentage of cases, and in all the other cases the defendant just does not employ a counsel for his defense.

The question regarding the contesting of a verdict rendered by a court of first instance demands thorough clarification. In this connection, we will demonstrate the meaning and the purpose of the nullity plea and of the extraordinary objection. We will prove that it was not National Socialistic thinking in terms of violence [Gewaltdenken] which gave rise and impulse to their introduction, but rather considerations regarding the technique of procedure. By extending the competency of such courts, which had to decide only in one instance, the necessity arose for a higher instance to be able to take care of reviewing decisions. To be sure, considerably eased regulations regarding the review of verdict rendered by special courts had already been introduced when these courts were first established. However, these regulations proved by providing a resumption of proceedings [Wiederaufnahme des Verfahrens] insufficient in practice, particularly after it became evident that economic offenses called for uniform laws throughout Germany. Considerable divergence insofar as the legal interpretation of the new laws was concerned and with regard to the meting out of punishment became apparent in the procedure of the different courts, through a constant surveillance, which became especially necessary in view of the changing economic conditions. To obtain uniformity in this respect, new opportunities for additional legal redresses were created. We shall demonstrate that the nullity plea is a method of procedure which has been taken over from the former Austrian law. The diversity in legal conceptions concerning the principle of _ne bis in idem_ [double jeopardy] with regard to legal remedies will be treated in this respect.