Chapter LXVI: Section 60: , Penal Code. Costs: Section 465, Code of Criminal Procedure (12)

A. That is the worst part of the charges which are raised against me in this connection. As I have said, I can refute it by documents, by just mentioning several documents in chronological order which will clarify the connections. In the file concerned with the funeral of the Pole, on page 12, 9 July 1942, there is a short disposition on the part of the prosecutor where he requests a list of previous connections and political record. Therefore, for that funeral case, one wanted to have the political record of Schosser from the Party. The prosecutor shouldn’t have done that really, but he was new there, and he committed that blunder, and that was how the whole thing started. It was prohibited to request any political record of a clergyman because one considered--one knew generally that the clergy was against national socialism; that was no secret; but now in spite of that, the Party reacted upon that request and sent a certificate of that kind, not to me, but to the prosecutor who requested it.

* * * * * * *

Q. What was the course of the second case, the case of the sermon? In that case, serious charges were also made against you concerning the treatment of the clergyman Schosser. Will you briefly describe the course of those proceedings, and will you please state whether the part you took in that case justifies the charge of being the main instigator leveled against you?

A. In the further course of the proceedings that charge cannot be considered since the proceedings were already started when the case came before me. On 25 August 1942, I issued the arrest warrant. We did not go as far at that time as the confession or the statements made by Schosser in the trial would have permitted us to go. If we had assumed that his entire sermon from beginning to end was directed against the wolves in sheep’s clothing, we could have characterized the case as one of high treason, and we would have had to pass it on for that reason to the competent authority. We only assumed that in the course of the sermon various doubtful statements had been made which had nothing to do with God the Father, and that was how it came to trial.

Nothing further happened. Investigations were carried out such as in every other case, and there was a defense counsel.

* * * * * * *

Q. Now we want to continue; where did the session take place in the second case?

A. In the town hall court at Amberg.

Q. What parts of the population attended that session?

A. All categories of people. The court room was right in the center of the town and when people had found out that there was something going on, they just came.

Q. What was the composition of these people, according to their denominations?

A. The great majority of the population was Catholic.

Q. Did you have to take certain considerations on account of that?

A. Of course. One had to avoid anything which could hurt the religious feelings of these people. Cases against clergymen required a great deal of caution and a great deal of tact so that no wrong impressions were made, because it was generally considered undesirable to make the impression, in any way, that it was intended to injure the religious feelings of these people.

Q. What, in brief, were the charges against Schosser and how did he defend himself against them?

A. The charges did not refer to the entire sermon, the subject of which was false prophets, but two basic thoughts were mentioned. For one, the thought that the leading individuals--meaning in the State--intended to take the Catholic faith from the people. In addition to that, the defendant also was charged with having attacked the principle prevailing in Germany of religious freedom. That was the charge.

Q. Schosser asserts that his sermon itself was really not the focus of interest; but that you had dealt emphatically with the matter of a funeral, and you had included that in the case. Is that correct?

A. The matter of the funeral was not the subject of the indictment so far as it was not considered a basis for any legal facts in connection with it, but it was merely mentioned in the course of the trial. It is correct that this matter was discussed in connection with the matters contained in the indictment, but not in the manner that it was the most important part of the trial. It was quite legally admissible to mention it, as I have mentioned.

Q. Can you prove, from the files, that the prosecution submitted the files concerning the sermon question to the court?

A. That can be seen from the file.

PRESIDING JUDGE BRAND: Is that file in evidence?

MR. WOOLEYHAN: No, Your Honor, it is not.

DR. KOESSL: The case was only discussed by the witness Schosser.

DEFENDANT ROTHAUG: By an order in the file SG 948 from the year 1942 (matter of the funeral), the prosecutor decided on 27 August 1942, under III, “Filed without subsidiary file”, that the matter SD 1312 of 1942--that is the sermon matter--after that file had been returned, was to be attached. By way of that disposition, these files concerning the funeral were submitted by the prosecution as material evidence, together with the sermon file, with the consequence that I received that material and had to discuss it with the prosecution witness at the main trial. That was legally permitted at all times. The judge was authorized to touch upon matters which had become either the subject of amnesty, or where an acquittal had occurred, or on matters referring to cases that had been suspended, or where a sentence had been passed. He could touch upon all these matters in a different case and discuss them for the purposes of the case at hand. Whether that became the basis for an evaluation for that new trial--that, of course, could only evolve from that main trial and the discussions therein.

Q. What was the basic purpose of discussing that question on your part?

A. The fundamental purpose of discussing these matters was to specify the obligation that all individuals and all offices had to heed the measures and regulations issued by the State, and the final purpose was to establish what basic attitude the defendant himself had with regard to that problem.

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Q. Schosser says you had attacked him on account of his profession, and you had attacked, in fact, the entire clerical profession. What was it about these alleged attacks?

A. That just isn’t so. As was required for every case, the interrogation was a conversation between myself and the defendant and, in the course of that conversation, I went into the question that people, if they wanted to go to church, wanted to hear about heavenly matters and didn’t want to hear anything about politics. If he wanted to deal with questions of that kind, he shouldn’t have become a clergyman but a politician.

Q. In connection with the education of youth, you are supposed to have reproached him that in the house of his parents, he hadn’t been educated in the National Socialistic sense.

A. That kind of a conversation would have been straight nonsense because Schosser was born in 1909 and, at that time, there was no such thing as national socialism. Consequently, I could not blame him. * * *.

PRESIDING JUDGE BRAND: We understand your answer.

DR. KOESSL: It is also asserted that you reproached him that the Catholics were saying that Protestants were going right to hell. Quite briefly, please.

DEFENDANT ROTHAUG: That again was an entirely different thought. I set forth that the German State has two great denominations and many others and can, therefore, be neither Catholic or Protestant but only absolutely neutral. It was, of course, up to him personally in his clerical field to speak for the accuracy of his opinion and his faith. If you are of the opinion that all those who are of a different denomination will go to hell, it is impossible for the State to share that opinion. As far as we are concerned, everybody will go right to heaven.

Q. Another question, quite briefly. Will you tell us what was said about Rosenberg?[548]

A. The name Rosenberg was brought in in the following manner. Schosser himself referred to it because his line of defense was that he had not intended to attack the Party by his statements but new [religious] ideas [neopaganism] and that he particularly intended to turn against Rosenberg with his statements. Thereupon, I told him that at any time it was his right to refute the thoughts which Rosenberg developed in his book, “Myths of the 20th Century,” in his sermons and to prove that they were wrong, only he had to specify what he intended to refute and whom he intended to refute because that, of course, was the most important thing of the trial. He had to exclude any possibility that these things might be carried into the general political field. That was the basis for my thoughts.

Q. Under what provisions was Schosser sentenced?

A. On the basis of article 130a of the Criminal (Penal) Code and article 2 of the Insidious Acts Law,[549] that is to say, according to German law both provisions became applicable; as we would have said technically, there was a sort of a legal connection between the two laws.

Q. Would Schosser have been punishable if there hadn’t been an Insidious Act Law?

A. Of course, on the basis of article 130a.

Q. As far as the facts are concerned, had the case Schosser been dealt with leniently or severely?

A. As far as the facts were concerned, it had been dealt with most leniently because the basis of suspicion was that the entire sermon of the false prophets and the roving wolves in all its structure and tendency was a political attack against the government. Schosser, when he was heard here as a witness, more or less admitted that. In our evaluation, however, we did not go that far, but we only referred to these two basic attacks.

* * * * * * *

EXTRACT FROM THE TESTIMONY OF DEFENDANT KLEMM
CONCERNING PROSECUTION EXHIBIT 291 AND
LIMITATIONS ON DIVINE SERVICES[550]

_DIRECT EXAMINATION_

DR. SCHILF (counsel for defendant Klemm): The prosecution in this connection submitted another document, Prosecution Exhibit 291, that is Document NG-770.[551] It deals with the problem whether church services could be held in penal institutions. I ask you whether you had anything to do with that matter?

DEFENDANT KLEMM: Yes, and I remember it quite well because I had a rather hot argument with Thierack about that matter.[552] Thierack, without informing me, prohibited that any church services could be held in penal institutions. I found out about that directive through the _Deutsche Justiz_--the periodical for German Justice--of 1944, on page 270. I immediately went to Thierack and referred to ethical reasons, but he did not abstain from his intentions. Then I used stronger arguments. I told him that I knew from the period of my work in the Party Chancellery that Hitler himself had issued a strict order that during the war all measures which might cause struggles with the church should be abstained from. Thierack doubted that. I offered that I would get a written confirmation from the Party Chancellery about that. He forbade that I write to the Party Chancellery. I told him in the course of the conversation that I was quite sure what the outcome of that matter would be. The moment one bishop would turn to Hitler, Hitler on account of his basic attitude would disavow Thierack.

A short time later when letters were received from German bishops, from the Protestant side as well as from the Catholic side, I went to Thierack and he became rather thoughtful and agreed to rescind the former order. That happened in a very carefully stated form, but it actually occurred. Especially for that matter, I claim a certain amount of credit.

* * * * * * *

VI. FINAL STATEMENTS OF THE DEFENDANTS[553]

PRESIDING JUDGE BRAND: The record will show that the defendants have already had the opportunity to testify at length under oath, and they are now accorded the privilege, in each instance, of making an unsworn statement for the benefit of the Tribunal.

We will hear the first defendant, Dr. Schlegelberger.

DEFENDANT SCHLEGELBERGER: These words of Pope Gregor VII are world-famous: “I loved justice and hated arbitrariness; therefore, I die in exile.”

I feel confident that your judgment will save me from that fate. But I, too, in imprisonment, could not overcome the bitterness of being rewarded for my hard struggle for justice by this period of shame and misery. The charges and insults of the prosecutor do not apply to me. My life is not compatible with the intention of crime. The attempt to destroy the alleged myth around my person by showering abuse at a man who has aged honorably was bound to fail. The Goering affair has been cleared up as completely unexceptionable. The connection between it, my draft of a law, and my resignation is based on a freely invented malicious construction which lacks all foundation. In spite of my advanced age my defense was easy for me. All I had to do was to tell the Tribunal the truth. I have done so in the firm conviction that truth will be victorious and with the undaunted pride of a clear conscience.

PRESIDING JUDGE BRAND: The defendant Klemm may address the Court.

DEFENDANT KLEMM: The prosecution has endeavored to show that I am not worthy of credibility. In long winded arguments it endeavors to connect a very few apparently positive points by combinations which lack all foundation, both in factual and political respect. Distortions and arbitrary additions have to serve this purpose. In the case of Sonnenburg it is said that Hecker had stated that Hansen had said that Klemm did not feel comfortable in connection with this matter. Not a word to this effect is to be found in the transcript of Hecker’s testimony. Although, in cross-examination, Hecker clearly could not maintain the agreement as he described it in his affidavit, the prosecution maintains the agreement, although its own witness, Eggensperger, denied it as well. And now another final example. Heydrich’s directives to his police agencies to take Jewish women into protective custody is presented by the prosecution as being an agreement with the judicial administration. There are many more examples. But please let me say only the following with regard to what the prosecution stated this morning. Due to the propaganda of the State, we were convinced at the outbreak of the war that justice was on our side. A dictatorship could not and does not permit its cards to be shown. And, finally, we are not here charged with crimes against peace. To what Mr. King said regarding Prosecution Exhibit 252,[554] let me state the following: The list of 17 January 1945, containing reports on death sentences, deals with a list of the Minister, for it contains doubtful cases, and from that I gathered that it could not be my list after I had also seen from the photostat that there were several dates on the top of the list. Even if both lists should be from 1945, the same applies as with regard to the lists on pages 154 through 157 in document book 3-L, according to which separate reports were made to me on individual cases and to the Minister on death sentences. If the prosecution bases its case on the testimony of the witness Altmeyer, this testimony has been refuted with overwhelming clarity by the testimony of Hartmann, Franke, and Ehrhard, and the prosecution overlooks that, in his cross-examination, the witness Altmeyer, in particular had to deviate from his affidavit. The prosecution mentioned furthermore a case of theft from airmen where proceedings were quashed. I remember the case distinctly. An airplane had been destroyed, and from the wreck objects had been stolen which had already been partly destroyed by rain and fire. The proceedings were stopped because the subjective prerequisites of theft could not be proved. The prosecution has failed to show what this theft from a wrecked airplane had to do with lynching of aviators. All in all, the result of the statements of the prosecution is as follows: In this trial it was not only German justice of the past years that was indicted, but the continental legal system, a system in which for many decades the obedience to the law and the norm created by the State has been the only task of the jurist. Before 1933 I had been educated and trained in this school of thought. What legal and factual opportunities were open to me I used in favor of justice wherever I could do so. To revoke laws and norms which had existed for years was not in my competency.

PRESIDING JUDGE BRAND: The defendant Rothenberger may address the Tribunal.

DEFENDANT ROTHENBERGER: I was a National Socialist, and in that respect I distinguish myself from those who for 10 years and more were placed in leading positions in the Third Reich and today say that they were not National Socialists. When I realized that national socialism was destroying the very values for which I had lived and for which it had promised to work, I decided with all my energy to influence the development of national socialism in the sphere of justice. I did not want to be a hanger-on. It was not my way to content myself with tactical maneuvers or withdrawals, which gradually brought about an undermining of the administration of German justice. The struggle for the idea of the judiciary within the framework of a totalitarian state I made the focal point of my life. And, therefore, I consider myself to be under an obligation to declare today that the German judge and his judgment, since 1933, were subjected to excessive attacks from the Party and from the SS without being given any backing from the leadership of the Ministry. Here lie the causes for my actions. At the beginning, I believed that in a totalitarian state there could exist a free judiciary. In the course of time I realized that most of the Party leaders, and in particular the SS leaders, found the very essence of the judiciary an obstacle in their way. I did not wish it to be true that there should be no way to save my Fatherland from such a dangerous development and therefore I clung to Hitler. In so doing I found myself in the company of many clever people in all spheres of human activity in Germany and abroad. As to whether my reform of the administration of justice has been rightly called by the prosecution a Nazi reform which--it is true--called itself National Socialist, but which aimed at excluding the influence of the SS and the Party from the administration of justice, and which contains not one word against Jews or foreigners, but on the contrary claimed the entire administration of penal justice, including that for foreigners and Jews, for the judiciary--with confidence I leave it to the Tribunal to decide that question.

I do not ignore today that my life work which has eaten up my nervous strength was bound to fail; nor do I ignore that my aims were, at times, in contradiction to the practice of life and also my own attitude, but is it not always like that in the life of human beings that just because there are such abuses and just because at times one’s self is weak, one takes that very circumstance for a cause to set up postulates which serve as aim and direction, but which we cannot immediately, particularly in wartime, put into effect, since the power of conditions is stronger than ourselves. And how far the power of the SS and the Party had extended I realized as late as 1942 when I came to Berlin and got an insight into conditions in the Reich. That Hitler himself was a despot and that he coupled me together with a man who showed himself to be a tool, without any will of his own, of Himmler and Bormann, that was my tragic misfortune.

I had to experience one set-back after the other. At the very beginning of my work I was compromised in the whole of the Reich by the well known SD report of Himmler’s in October 1942, which prophesied that I would soon resign, and the only positive point which kept me was the hope and the confidence of the German judges.

There are only two charges of the prosecution which they made in their final plea that I want to answer now. How can the prosecution from my speeches in Hamm and Lueneburg, of the latter of which the text does not even exist, conclude that I was in favor of exterminating the Jews? Both speeches exclusively relate to degenerate and incorrigible criminals. In the usage of the German language, they are antisocial elements and for those elements I demanded, according to another prosecution document, a judicial authority. And the second charge is that I am a liar. The Jewish pogrom in 1938, they say, had been on quite a different scale in Hamburg from the way I had described it. As to how the Jewish question was handled in Hamburg you can see clearly not only from a prosecution document but also from the affidavit by the man whom the British, after the surrender, appointed Lord Mayor of Hamburg. I am speaking of Mayor Petersen who is half-Jewish himself.

That in my struggle I was placed in outward contact with wrong, that lay in the very nature of things. I assume responsibility for every action of my own. The consequences which are now borne by the whole German people justify the fact that former leading personalities also bear the consequences. But I am of the opinion that crimes which were committed by my greatest enemies behind my back cannot be held against me. As soon as I heard of them I drew the consequences.

After 16 months, in 1943, Himmler, Thierack, and Bormann finally made me unemployed. I was 47 years old at the time. Without overestimating the power of my personality, the road for the wishes of those men, concerning the administration of German justice, now lay open.

PRESIDING JUDGE BRAND: Defendant Lautz may now address the court.

DEFENDANT LAUTZ: At the beginning of the prosecution’s oral presentation, the chief prosecutor emphasized that the roles which the defendants are assigned in these proceedings are new for them. That is true, as far as this refers to the position which we now have to hold before this Tribunal. Apart from that, we public prosecutors are quite familiar with the role of defendants in criminal proceedings. A man like myself who, in 25 long years, became acquainted with the fate of men in prisons, in courtrooms, in penal institutions, and on the way to the place of execution, knows very well the tragedy of this role and one who, under the official robe, has preserved a human heart, will the better recognize that not blind zeal for prosecution, but much rather wisdom coupled with human understanding are best designed to serve the aim of true judicial administration.

The German public prosecutors in their overwhelming majority recognized this also in the Third Reich. Therefore, none of the charges made against me here I feel to be more unjust than that, by filing malicious indictments, I had done injustice for the sake of injustice. I trust, however, that these proceedings have shown how unjust this charge is. The office of a public prosecutor is a very hard one. It is easier in peace than in wartime, but it became incredibly difficult during a war which is without example in history and which has left our Fatherland--which also meant everything to us public prosecutors--in ruins.

PRESIDING JUDGE BRAND: Defendant Mettgenberg may address the Tribunal.

DEFENDANT METTGENBERG: Your Honors. Novel, alien, and unaccustomed as it was to the previous speaker, so it is to me the situation in which I have found myself for months as a prisoner in the dock; and that is what the prosecution said when this trial opened, novel, alien, and unaccustomed were to me many things in this trial which concludes today.

All the same I, for my part, have tried to make my contribution to the correct carrying out of these proceedings; with complete frankness I have described my past career, and I have given you my views concerning the points with which the prosecution has charged me. There is nothing I have to hide.

Now at the end of this trial the prosecution deemed it necessary, I believe without regard to the evidence, to ask of you that you should convict me for having committed war crimes. It may be that you will convict me for having committed war crimes. It may be that that is the duty of the prosecution. It is not for me to arrive at a judgment about that. The prosecution must take the responsibility for their motion.

My defense counsel has asked you to acquit me. I too ask you to acquit me, but Your Honors, I ask you for more than that. As far as I am informed, it is in accordance with your legal views to acquit a defendant if there is a reasonable doubt about his guilt. I am of the opinion, and please do not think me arrogant, that I may expect you to find that there is no reasonable doubt as to my innocence. Even after careful and conscientious examination, such as I have given to my own past, I believe I am justified in making this request.

PRESIDING JUDGE BRAND: The defendant von Ammon may address the Tribunal.

DEFENDANT VON AMMON: I have nothing to add to the statements made by me on 1 and 4 August under oath in the witness box.

PRESIDING JUDGE BRAND: Defendant Joel may address the Tribunal.

DEFENDANT JOEL: I wish to remain silent.

PRESIDING JUDGE BRAND: Defendant Rothaug may address the Tribunal.

DEFENDANT ROTHAUG: Prosecutor King in his final plea mentioned a death sentence passed by a French court against a president of a court in Strasbourg. May I refer to the fact that this involves a so-called _in absentia_ sentence in which the defendant had no opportunity for his own defense whatsoever, because at that time he was in a German internment camp and by sheer accident happened to read of it in a newspaper.

I served my country throughout my life and in whatever position I was assigned to, in faithfulness, with a pure heart, and without malice. Seen from my present position you might consider this wrong, and you could say I and all those who surrounded me should have been more suspicious of developments as they took place. This prognosis in retrospect is just as convincing as it is cheap. Nobody in our position at that time could be of the opinion that the State which we served could be accused of being altogether illegal and that the war that it waged was a war of aggression, as is demonstrated today to all the world. Therefore, it is no accident and no excuse that, apart from defending myself against the flood of personal defamations which I received from the circle of my previous friends and assistants, I am now anxious to prove to you that both in the service as a judge and prosecutor, I applied the laws of my country in the manner in which they were intended, to the best of my conscience and belief. We were guided by the practice of the Reich Supreme Court and went the same way which was taken by the remaining 60 to 80 Special Courts in the Reich. We were no specialists in crimes against humanity, and no proof has been furnished in any single case that, in any connection, we had applied an illegal method.

Thoughts of extermination were not represented in my sphere of work, nor did we ever hear anything to the effect that in the field of justice they played any part at all. We knew of shootings of people who had been sentenced only to prison terms. That was openly reported in the newspapers. Apart from that, these proceedings applied to four people who, under my presidency, had been sentenced to imprisonment--among them, the Eisenberger case mentioned here. But I myself only heard of the inner connections of these events when internal official files of the public prosecution became accessible to me here. We saw and judged the facts in a different light. The country was an area of warfare. I have experienced the terrors of Verdun. As far as misery is concerned, it cannot be compared with the effects of one single air raid, lasting 45 minutes, on the civilian life of this city. The principle of war which threatens life itself had been made the principle of life. We therefore understood, guided by this point of view, that the laws required harsh proceedings in the case of crimes which exploited conditions of war, and that habitual criminals, violent criminals, and saboteurs of all kinds, in view of the decreased security of the conditions as they existed in the country, had to be held down. If, on the other hand, we are told that thereby we had supported a war of aggression carried on by our government, then we can only say “we did not know that.” Once war had come, the life and existence of millions of peoples was involved, and we derived therefrom the ethical justification for severity against individuals, which stood in no proportion to what was at stake. The logical calculation of war in regard to life is that hundreds of thousands of people are sacrificed to save the lives of millions, and this principle was transferred to the entire public life and in the field of criminal law, this was tied to the concept of guilt. And that was how our work, our activity, was understood. If today we are no longer understood, and if attempts are made today to judge our actions as criminal, this is not very surprising in view of a world which does not look too far below the surface of things. For the catastrophe has made all our actions appear in the destructive light of “in vain.” This qualification which also has a demoralizing effect, disguises all connections which might speak in our favor in the question of humanity. This is the tragedy of our case, and we are convinced that Your Honors will not fail to see it.

PRESIDING JUDGE BRAND: Defendant Barnickel may address the Tribunal.

DEFENDANT BARNICKEL: May it please the Court. The great Frenchman Honoré de Balzac, for whom I have had a great respect since the days of my youth, puts into the mouth of one of his characters these words, “I believe justice to be a development of a divine idea which is suspended above the world.” That idea, whether one shares it or not, is certainly very beautiful. It remains beautiful even if justice does not always reflect its divine origin. We jurists whom fate had condemned to work in the Third Reich--and I am by no means referring only to us who are here, I am referring to all of them--we know what was the matter with the administration of justice in the Third Reich. But in whatever way this administration of justice may have worked, I believe one must view it in connection with the fate of the German people. Professor Jahrreiss, to whom all of us in this trial listened with interest, once coined the phrase that for decades the German people had no longer known normal life. Every single one of us actually experienced that himself. If I may make it more clear from the example of my own life, I want to read a few sentences from my diary for the last time. This is an entry which I made on 9 June 1942, and I wrote it under the influence of a Swiss novel, the title of which is “Amadeus”, and I quote:

“When I thought about it for longer as to what I liked so much
about ‘Amadeus’, this occurred to me, it is peace, the peace in
which these people live, and in which they can develop. Peace
which, to us Germans, has become something quite strange because
since 1914 we have not had it any more. Before that time we,
too, lived in such an atmosphere, but since then we have always
had war, or at least a pressure which was like war. From 1914
to 1918 there was a war on. In 1919 an intermediate phase set
in. From 1920 to 1923 there was the inflation. From 1924 to 1927
there was the deflation. From 1928 to 1929 there was a brief
recovery. From 1930 to 1932 there was a financial crisis and a
continuous political crisis. From 1933 to 1939 the German people
were molded into a new cast by force. From 1939 to 1942 there
was war. From 1942? Still war!

“I am 57 years of age today--at that time--18 years of that
were the years of my youth; 28 years were war years. For
11 years there was a real life. And these were the years
of development--of immaturity--years of struggle, years of
suffering and poverty. But in between there were also many happy
hours.”

That is how I looked at my life at the time. And it was similar for every average German citizen. Every normal German longed for peace, for peace which had become something quite strange to us, and every German has that longing deep in him, just as I myself--but it was not within his power to achieve that peace. We saw it merely like a ghost. But the same fate which individuals have, is the fate of the spiritual institutions of their nation. And the administration of justice, too, shared our fate; it, too, was hemmed in in war and political violence, which were foreign to its nature. No wonder that, at the end of that last period of 30 years, justice, too, had been wrecked, just as millions of people and their lives had been wrecked! Let us hope that from that destruction, new life and new culture will develop. For, after all, so far every generation has lived on the ruins which were left by its predecessors, and built its houses from those ruins. Let us hope that what we see in Germany at this moment is already part of reconstruction and no longer of destruction, and also, I hope, that we--as Balzac put it--one day again shall be able to believe that justice is the development of a divine thought which is suspended above the world!

PRESIDING JUDGE BRAND: Defendant Petersen may address the Tribunal.

DEFENDANT PETERSEN: Your Honors, World War I signified a deep cut in the history of the German people. There existed the great danger for Germany of being swamped from the East. It was in the hope to prevent this that I joined the NSDAP. Germany was to remain one bulwark against bolshevism, a pillar of Western culture. I once entertained the great hope that national socialism would contribute its part toward this end. I do not want to describe my disappointment; the way led past stations of terror. In all my actions I was guided by the ideal of fulfilling my duty and of serving my country. It was solely my conscience that formed the basis for my actions, irrespective of whether I was an officer, SA leader, State counsellor, or only an honorary associate judge of the People’s Court. I have nothing further to add to this. My conscience is clear. Therefore, I am calmly expecting your verdict.

PRESIDING JUDGE BRAND: The defendant Nebelung may address the Tribunal.

DEFENDANT NEBELUNG: I was a German judge. I followed the laws of my country and my knowledge and my conscience in passing judgment. Germany has lost the war. If the law of the victors so demands of you--I do not believe it does--then you must condemn my actions. In this trial the tragedy of the office of the judge has been mentioned frequently. Is that anything special? Does not every soldier find himself in the same situation? I, too, have had that experience both as a soldier and as a judge, but not here in prison, not in the dock, but by the gun and on the bench. By that I want to say the tragedy does not lie in the consequences. I do know how to bear the consequences of a sentence, for I believe in the words of the German who was both a judge and a poet, Theodor Storm, “One man asks, ‘What will happen next’? while the other merely asks, ‘Is that right’? And that is how the free man is distinguished from the serf.”

PRESIDING JUDGE BRAND: The defendant Cuhorst may address the Tribunal.

DEFENDANT CUHORST: Your Honors, I have to add the following brief words to the final plea of the defense counsel appointed on my behalf. Indictment and prosecution statements reveal that in these proceedings I am only _pars pro toto_. The prosecution with its evidence is unable to prove any charge which would actually apply to me. The prosecution in its final plea has failed to mention a whole series of charges in the indictment, and others for the same reason, namely, lack of evidence, it left in abeyance. In presenting its evidence the prosecution not only ignored my evidence but also its own, in part. What other reasons are there to explain that they submitted in the course of the cross-examination Document No. 983 [_NG-983, Pros. Ex. 570_], which reveals in an account of traveling expenses that on 21 March 1943 I was absent for weeks in the East on an official journey, and at the same time had the witness Eberhard Schwarz testify with alleged full assurance that on 24 March 1943 I was in Stuttgart and presided over the case against the foreigner Englert. The prosecution has submitted the verdict in the case of Untermarchtal, but what they said in the indictment about its contents is not contained in the verdict, but just the contrary. This is the type of evidence submitted if facts are involved. Only documents, not arguments with many sources of error, can show the facts.

Justice, above all, penal justice, in Germany since 1918 was always considered an institution not in accordance with the times due to political attacks on its reputation, thus losing its reputation. In spite of early hopes, also after 1933 this development continued, and it still continues. Neither in 1937 did Guertner protect my predecessor, nor in 1944 did Thierack protect me. The many stages of this development pretended to have various good aims, but they actually had only the one effect--to destroy what we call justice. Contrary, for example, to the profession of a doctor, that of a penal judge creates only few friends. A man who is acquitted takes his acquittal for granted. The man who is sentenced, his defense counsel considers the verdict as unjust or too severe. Confusion caused in the transitional periods showed this in a particularly conspicuous form. In spite of this dangerous situation for a criminal judge now accused of being a criminal himself, no person ever convicted under my jurisdiction has testified against me. Only a judge who is a saint is free of errors. I never denied mine. The struggle for independence and against destructive influences of the time has not left me unscathed. They wanted to eliminate me from the Party and from my profession, and an unfree minister and his accomplices removed me from office. The prosecution witness against me was quite right who said: “He wanted to maintain independence and he did maintain it.” Due to the collapse of my Fatherland, I am again involved in struggles. I am involved in an indictment against judges full of unexpected and excessive charges. From 1933 to 1944, one side spoke of me as if I were strange, suspiciously mild, unbearable, unsuitable for office, and detrimental to the Party and so on. Today the strong terms read as follows: Disgusting, exceptionally severe, convinced Nazi, and the like. Also in my prison cell which has been my fate for almost 1 year, though as a prisoner of war and an army officer I am subject to the Geneva Convention, I accept these reproaches quietly. I have sworn the oath to observe the law independently and to apply it irrespectively of the person involved. I have duly observed this, and let the consequences be whatever they may be. Either time will be able to bear judges who do not bend themselves or the time is already here which has quite different views. In handling these problems my own case is receding to the background. The decision concerning the basic questions of the entire problem of the judiciary brings the solution, also for me, of the question--Am I as a judge a criminal? Before all the world, and even where war opponents are concerned, a _judicium parium_ can answer this tremendous question with one word only, namely, no.

PRESIDING JUDGE BRAND: The defendant Oeschey may address the Tribunal.

DEFENDANT OESCHEY: May it please the Court, what need be said in my case has been said by my defense counsel, and all that is left for me is to agree to his statements, to give you the assurance that I always acted in the belief and in the conviction that I was doing right, by obeying the law to which I was subjected and applying it in the manner in which my conscience told me to. And it is the truth that it was a matter of conscience for me not to misuse the law in a criminal way, but to apply it in accordance with the will of the legislator, and to grant the offender a proper trial and a just verdict. Therefore, my conscience knows that it is clear of the crimes with which I am charged.

PRESIDING JUDGE BRAND: The defendant Altstoetter may address the Tribunal.

DEFENDANT ALTSTOETTER: The charges which the prosecution has raised against me because of my alleged participation in war crimes and crimes against humanity and on account of my capacity as honorary SS leader, do not apply to me. My conscience is free of any guilt. I certainly do not propose to evade responsibility for my actions. On the contrary! These proceedings gave me the possibility to justify my actions before my people--by whom I stand even in these hard days--and before the entire world, that is, my actions during the past regime, and particularly so during the period of my activity in the Reich Ministry of Justice, and to prove that I always only served law and justice. For this reason I have done everything to give the best contribution possible in order to bring out the truth in this trial as far as I am concerned. As a witness in these proceedings I have testified to the truth to the best of my knowledge and belief.

The prosecution knows this very well from my own interrogations during preliminary proceedings and from the interrogations of many collaborators and aides who, however, were not called by the prosecution to appear as witnesses in court. The prosecution knows it also from documents which must be in its possession, but which were not submitted in evidence.

And, therefore, the fact hurts me all the more that in its final plea the prosecution designates me as not worthy of credibility. I feel obliged toward myself and also toward my children to protest with all seriousness and with all emphasis against this charge of having lied. I do not have to fear truth. I hate nothing more than lies. I feel secure only under the protection of truth, for truth is the sister of justice. But justice on the part of the prosecution must be claimed by me even if here we are only experimental objects of international law as it is aspired to, and of an embryonic international justice.

Furthermore, I feel obliged to refer to the following, let the proceedings result as they may. There is the enormous danger that German justice was shown here in a picture which, even referring to the time between 1933 and 1945, is not identical with actual facts. I know justice in all its different phases and organizations, and I know that German administration of justice up to the very end was the best administration of the Reich, and I know above all that the German judges, even in hard times and particularly in these hardest times of all, did their duty for right and justice up to the very end. All that could be desired was that the courage which was shown among the German judiciary at those times would have been shown everywhere. Then the danger could never have arisen that here in this courtroom there might arise the danger of a false picture of the German judge.

VII. OPINION AND JUDGMENT

Military Tribunal III was established on 14 February 1947 under General Order No. 11, issued by command of the United States Military Governor for Germany. The indictment was filed with the Secretary General of Military Tribunals on 4 January 1947, and the case was assigned to Tribunal III for trial. A copy of the indictment in the German language was served upon each defendant at least 30 days before the commencement of the trial. The defendants were arraigned on 17 February 1947, each defendant entering a plea of “not guilty” to all charges preferred against him. German counsel selected by the defendants were approved by the Tribunal and have represented the respective defendants throughout the trial.

The presentation of evidence in support of the charges was commenced on 6 March 1947 and was followed by evidence for the defendants. The taking of evidence was concluded on 13 October 1947. Copies of the exhibits tendered by the prosecution were furnished in the German language to the defendants prior to the time of the reception of the exhibits in evidence. The Tribunal has heard the oral testimony of 138 witnesses. In addition it has received 641 documentary exhibits for the prosecution and 1,452 for defendants, many of them of considerable length. Some affidavits have been presented by the prosecution, but they are few in comparison with the hundreds offered by the defense.

Whenever possible, and in substantially all cases, applications of defense counsel for the production in open court of persons who had made affidavits in support of the prosecution have been granted and the affiants have appeared for cross-examination. Affiants for the defense were cross-examined orally by the prosecution in comparatively few cases.

The defendant Carl Westphal died before the commencement of the trial. On 22 August 1947, the Tribunal entered an order declaring a mistrial as to the defendant, Karl Engert, who has been able to attend court for only 2 days since 5 March 1947. The action was rendered necessary under the provisions of article IV (_d_) of Military Government Ordinance No. 7, and by reason of the serious and continuing illness of said defendant.

The trial was conducted in two languages with simultaneous translations of German into English and English into German throughout the proceedings.

Under Military Government Order of 14 February 1947, the following were designated as members of Military Tribunal III: Carrington T. Marshall, presiding judge; James T. Brand, judge; Mallory B. Blair, judge; Justin Woodward Harding, alternate judge. As thus constituted, the Tribunal entered upon trial of the case. On 21 June 1947, General Order No. 52 was issued by the Office of Military Government for Germany as follows:

_“Pursuant to Military Government Ordinance No. 7_

“1. Effective as of 19 June 1947, pursuant to Military
Government Ordinance No. 7, 24 October 1946, entitled
‘Organization and Powers of Certain Military Tribunals’,
JAMES T. BRAND is appointed Presiding Judge of Military
Tribunal III, vice CARRINGTON T. MARSHALL, relieved
because of illness.

“2. JUSTIN WOODWARD HARDING, Alternate Judge, is
appointed Judge for Military Tribunal III.

“By command of GENERAL CLAY:

C. K. GAILEY
Brigadier General, GSC
Chief of Staff”

The trial has been continued before the Tribunal as thus reconstituted. The evidence has been submitted, final arguments of counsel have been concluded, and the Tribunal has heard a personal statement from each defendant who desired to address it.

In rendering this judgment it should be said that the case against the defendants is chiefly based upon captured German documents, the authenticity of which is unchallenged.

The indictment contains four counts, as follows:

(1) Conspiracy to commit war crimes and crimes against humanity. The charge embraces the period between January 1933 and April 1945.

(2) War crimes, to wit: violations of the laws and customs of war, alleged to have been committed between September 1939 and April 1945.

(3) Crimes against humanity as defined by Control Council Law No. 10, alleged to have been committed between September 1939 and April 1945.

(4) Membership of certain defendants in organizations which have been declared to be criminal by the judgment of the International Military Tribunal in the case against Goering, et al.

The sufficiency of count one of the indictment was challenged by the defendants upon jurisdictional grounds, and on 11 July 1947, the Tribunal made and entered the following order:

“Count one of the indictment in this case charges that the
defendants, acting pursuant to a common design, unlawfully,
willfully and knowingly did conspire and agree together to
commit war crimes and crimes against humanity as defined in
Control Council Law No. 10, article II. It is charged that the
alleged crime was committed between January 1933 and April 1945.

“It is the ruling of this Tribunal that neither the Charter of
the International Military Tribunal nor Control Council Law No.
10 has defined conspiracy to commit a war crime or crime against
humanity as a separate substantive crime; therefore, this
Tribunal has no jurisdiction to try any defendant upon a charge
of conspiracy considered as a separate substantive offense.

“Count one of the indictment, in addition to the separate
charge of conspiracy, also alleged unlawful participation in
the formulation and execution of plans to commit war crimes and
crimes against humanity which actually involved the commission
of such crimes. We, therefore, cannot properly strike the whole
of count one from the indictment, but, in so far as count one
charges the commission of the alleged crime of conspiracy as a
separate substantive offense, distinct from any war crime or
crime against humanity, the Tribunal will disregard that charge.

“This ruling must not be construed as limiting the force or
effect of article II, paragraph 2, of Control Council Law No.
10, or as denying to either prosecution or defense the right to
offer in evidence any facts or circumstances occurring either
before or after September 1939, if such facts or circumstances
tend to prove or to disprove the commission by any defendant
of war crimes or crimes against humanity as defined in Control
Council Law No. 10.”

_THE JURISDICTIONAL ENACTMENTS_

For convenient reference we have attached to this opinion copies of the London Agreement of 8 August 1945, with the Charter of the International Military Tribunal annexed thereto, Control Council Law No. 10, Military Government Ordinance No. 7, and the indictment, which are marked respectively Exhibits A, B, C, and D.[555]

The indictment alleges that the defendants committed crimes “as defined in Control Council Law No. 10, duly enacted by the Allied Control Council.” We therefore turn to that law.

The Allied Control Council is composed of the authorized representatives of the four Powers: the United States, Great Britain, France, and the Soviet Union.

The preamble to Control Council Law No. 10 is in part as follows:

“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 in order to
establish a uniform legal basis in Germany for the prosecution
of war criminals and other similar offenders, * * * the Control
Council enacts as follows:”

Article I reads in part as follows:

“The Moscow Declaration of 30 October 1943 ‘Concerning
Responsibility of Hitlerites for Committed Atrocities’ and the
London Agreement of 8 August 1945 ‘Concerning Prosecution and
Punishment of Major War Criminals of the European Axis’ are made
integral parts of this Law. * * *”

The London Agreement, supra, provides that the Charter of the International Military Tribunal (hereinafter called the IMT Charter), “shall form an integral part of this agreement.” (London Agreement, art. II). Thus, it appears that the indictment is drawn under and pursuant to the provisions of Control Council Law No. 10 (hereinafter called C. C. Law 10), that C. C. Law 10 expressly incorporates the London Agreement as a part thereof, and that the IMT Charter is a part of the London Agreement.