Chapter LXVIII: Section 60: , Penal Code. Costs: Section 465, Code of Criminal Procedure (14)

“If a state is unhampered in its activities that affect the
interests of any other, it is due to the circumstance that the
practice of nations has not established that the welfare of the
international society is adversely affected thereby. Hence that
society has not been incited or aroused to endeavor to impose
restraints; and by its law none are imposed. The Covenant of the
League of Nations takes exact cognizance of the situation in
its reference to disputes ‘which arise out of a matter which by
international law is solely within the domestic jurisdiction’
of a party thereto. It is that law which as a product of the
acquiescence of states permits the particular activity of the
individual state to be deemed a domestic one.

“In as much as changing estimates are to be anticipated, and
as the evolution of thought in this regard appears to be
constant and is perhaps now more obvious than at any time since
the United States came into being, the circumstance that at
any given period the solution of a particular question is by
international law deemed to be solely within the control or
jurisdiction of one state, gives frail assurance that it will
always be so regarded.“[585]

“The family of nations is not unconcerned with the life and
experience of the private individual in his relationships with
the state of which he is a national. Evidence of concern has
become increasingly abundant since World War I, and is reflected
in treaties through which that conflict was brought to a close,
particularly in provisions designed to safeguard the racial,
linguistic and religious minorities inhabiting the territories
of certain states, and in the terms of part XIII of the Treaty
of Versailles, of June 28, 1919, in respect to labour, as well
as in article XXIII of that treaty embraced in the Covenant of
the League of Nations.”[586]

“The nature and extent of the latitude accorded a state in the
treatment of its own nationals has been observed elsewhere. It
has been seen that certain forms or degrees of harsh treatment
of such individuals may be deemed to attain an international
significance because of their direct and adverse effect upon
the rights and interests of the outside world. For that reason
it would be unscientific to declare at this day that tyrannical
conduct, or massacres, or religious persecutions are wholly
unrelated to the foreign relations of the territorial sovereign
which is guilty of them. If it can be shown that such acts
are immediately and necessarily injurious to the nationals of
a particular foreign state, grounds for interference by it
may be acknowledged. Again, the society of nations, acting
collectively, may not unreasonably maintain that a state
yielding to such excesses renders itself unfit to perform its
international obligations, especially in so far as they pertain
to the protection of foreign life and property within its
domain.[587] The property of interference obviously demands in
every case a convincing showing that there is in fact a causal
connection between the harsh treatment complained of, and the
outside state that essays to thwart it.

The international concern over the commission of crimes against humanity has been greatly intensified in recent years. The fact of such concern is not a recent phenomenon, however. England, France, and Russia intervened to end the atrocities in the Greco-Turkish warfare in 1827.[588]

President Van Buren, through his Secretary of State, intervened with the Sultan of Turkey in 1840 in behalf of the persecuted Jews of Damascus and Rhodes.[589]

The French intervened and by force undertook to check religious atrocities in Lebanon, in 1861.[590]

Various nations directed protests to the governments of Russia and Rumania with respect to pogroms and atrocities against Jews. Similar protests were made to the government of Turkey on behalf of the persecuted Christian minorities. In 1872 the United States, Germany, and five other powers protested to Rumania; and in 1915, the German Government joined in a remonstrance to Turkey on account of similar persecutions.[591]

In 1902 the American Secretary of State, John Hay, addressed to Rumania a remonstrance “in the name of humanity” against Jewish persecutions, saying, “This government cannot be a tacit party to such international wrongs.”

Again, in connection with the Kishenef [Kishinev] and other massacres in Russia in 1903, President Theodore Roosevelt stated:

“* * * Nevertheless there are occasional crimes committed on so
vast a scale and of such peculiar horror as to make us doubt
whether it is not our manifest duty to endeavor at least to show
our disapproval of the deed and our sympathy with those who have
suffered by it. The cases must be extreme in which such a course
is justifiable. * * * The cases in which we could interfere by
force of arms as we interfered to put a stop to intolerable
conditions in Cuba are necessarily very few. * * *”[592]

Concerning the American intervention in Cuba in 1898, President McKinley stated:

“First. In the cause of humanity and to put an end to the
barbarities, bloodshed, starvation, and horrible miseries now
existing there, and which the parties to the conflict are either
unable or unwilling to stop or mitigate. It is no answer to say
this is all in another country, belonging to another nation,
and therefore none of our business. It is specially our duty,
for it is right at our door.”[593]

The same principle was recognized as early as 1878 by a learned German professor of law, who wrote:

“States are allowed to interfere in the name of international
law if ‘humanity rights’ are violated to the detriment of any
single race.”[594]

Finally, we quote the words of Sir Hartley Shawcross, the British Chief Prosecutor at the trial of Goering, et al.:

“The rights of humanitarian intervention on behalf of the
rights of man trampled upon by a state in a manner shocking
the sense of mankind has long been considered to form part of
the [recognized] law of nations. Here, too, the Charter merely
develops a preexisting principle.”[595]

We hold that crimes against humanity as defined in C. C. Law 10 must be strictly construed to exclude isolated cases of atrocity or persecution whether committed by private individuals or by governmental authority. As we construe it, that section provides for punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic government organized or approved procedures amounting to atrocities and offenses of the kind specified in the act and committed against populations or amounting to persecutions on political, racial, or religious grounds.

Thus, the statute is limited by construction to the type of criminal activity which prior to 1939 was and still is a matter of international concern. Whether or not such atrocities constitute technical violations of laws and customs of war, they were acts of such scope and malevolence, and they so clearly imperiled the peace of the world that they must be deemed to have become violations of international law. This principle was recognized although it was misapplied by the Third Reich. Hitler expressly justified his early acts of aggression against Czechoslovakia on the ground that the alleged persecution of racial Germans by the government of that country was a matter of international concern warranting intervention by Germany. Organized Czechoslovakian persecution of racial Germans in Sudetenland was a fiction supported by “framed” incidents, but the principle invoked by Hitler was the one which we have recognized, namely, that government organized racial persecutions are violations of international law.

As the prime illustration of a crime against humanity under C. C. Law 10, which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law, we cite “genocide” which will shortly receive our full consideration. A resolution recently adopted by the General Assembly of the United Nations is in part as follows:

“Genocide is a denial of the right of existence of entire
human groups, as homicide is a denial of the right to live of
individual human beings; such denial of the right of existence
shocks the conscience of mankind, results in great losses
to humanity in the form of cultural and other contributions
represented by these human groups, and is contrary to moral law
and to the spirit and aims of the United Nations.

“Many instances of such crimes of genocide have occurred when
racial, religious, political, and other groups have been
destroyed, entirely or in part.

“The punishment of the crime of genocide is a matter of
international concern.

“The General Assembly therefore--

“Affirms that genocide is a crime under international law which
the civilized world condemns, and for the commission of which
principals and accomplices--whether private individuals, public
officials, or statesmen, and whether the crime is committed
on religious, racial, political or any other grounds--are
punishable; * * *.”[596]

The General Assembly is not an international legislature, but it is the most authoritative organ in existence for the interpretation of world opinion. Its recognition of genocide as an international crime is persuasive evidence of the fact. We approve and adopt its conclusions. Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes. They are chargeable with knowledge that such acts were wrong and were punishable when committed.

The defendants contend that they should not be found guilty because they acted within the authority and by the command of German laws and decrees. Concerning crimes against humanity, C. C. Law 10 provides for punishment whether or not the acts were in violation of the domestic laws of the country where perpetrated (C. C. Law 10, art. II, par. 1(_c_)). That enactment also provides “the fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.” (C. C. Law 10, art. II, par. 4(_b_).)

The foregoing provisions constitute a sufficient, but not the entire, answer to the contention of the defendants. The argument that compliance with German law is a defense to the charge rests on a misconception of the basic theory which supports our entire proceedings. The Nuernberg Tribunals are not German courts. They are not enforcing German law. The charges are not based on violation by the defendants of German law. On the contrary, the jurisdiction of this Tribunal rests on international authority. It enforces the law as declared by the IMT Charter and C. C. Law 10, and within the limitations on the power conferred, it enforces international law as superior in authority to any German statute or decree. It is true, as defendants contend, that German courts under the Third Reich were required to follow German law (i.e., the expressed will of Hitler) even when it was contrary to international law. But no such limitation can be applied to this Tribunal. Here we have the paramount substantive law, plus a Tribunal authorized and required to apply it notwithstanding the inconsistent provisions of German local law. The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge.

Frank recognition of the following facts is essential. The jurisdictional enactments of the Control Council, the form of the indictment, and the judicial procedure prescribed for this Tribunal are not governed by the familiar rules of American criminal law and procedure. This Tribunal, although composed of American judges schooled in the system and rules of the common law, is sitting by virtue of international authority and can carry with it only the broad principles of justice and fair play which underlie all civilized concepts of law and procedure.

No defendant is specifically charged in the indictment with the murder or abuse of any particular person. If he were, the indictment would, no doubt, name the alleged victim. Simple murder and isolated instances of atrocities do not constitute the gravamen of the charge. Defendants are charged with crimes of such immensity that mere specific instances of criminality appear insignificant by comparison. The charge, in brief, is that of conscious participation in a nation wide government-organized system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist. The record is replete with evidence of specific criminal acts, but they are not the crimes charged in the indictment. They constitute evidence of the intentional participation of the defendants and serve as illustrations of the nature and effect of the greater crimes charged in the indictment. Thus it is that the apparent generality of the indictment was not only necessary but proper. No indictment couched in specific terms and in the manner of the common law could have encompassed within practicable limits the generality of the offense with which these defendants stand charged.

The prosecution has introduced evidence concerning acts which occurred before the outbreak of the war in 1939. Some such acts are relevant upon the charges contained in counts two, three, and four, but as stated by the prosecution, “None of these acts is charged as an independent offense in this particular indictment.” We direct our consideration to the issue of guilt or innocence after the outbreak of the war in accordance with the specific limitations of time set forth in counts two, three, and four of the indictment. In measuring the conduct of the individual defendants by the standards of C. C. Law 10, we are also to be guided by article II, paragraph 2 of that law, which provides that a person “is deemed to have committed a crime as defined in paragraph 1 of this article, if he was (_a_) a principal or (_b_) was an accessory to the commission of any such crime or ordered or abetted the same or (_c_) took a consenting part therein or (_d_) was connected with plans or enterprises involving its commission or (_e_) was a member of any organization or group connected with the commission of any such crime * * *.”

Before considering the progressive degeneration of the judicial system under Nazi rule, it should be observed that at least on paper the Germans had developed, under the Weimar republic, a civilized and enlightened system of jurisprudence. A few illustrations will suffice. The power of judicial appointment and the independence of the judges was jealously guarded by the individual states within the Reich. The following acts were declared criminal under the provisions of the German criminal code:

The acceptance of bribes or inducements by a judge, offered for
the purpose of influencing his decision--Section 334.

Action by an official, who, in the conduct or decision of a
case, deliberately makes himself guilty of diverting the law to
the disadvantage of one of the parties--Section 336.

The securing of a confession by duress--Section 343.

The act of an official who, in the exercise of his duty in a
criminal proceeding, knowingly causes any person to escape
penalty provided by law--Section 346.

Action by a superior officer who intentionally induces * * * his
subordinate to commit a punishable act in office, or knowingly
connives at such a punishable offense on the part of his
subordinate--Section 357.

In the Weimar constitution it was provided that “the generally accepted rules of international law are to be considered as binding, integral parts of the law of the German Reich.” (Art. 4.)

The Constitution also guaranteed to all Germans--

Equality before the law (Art. 109);
Citizenship, the right of travel and emigration (Arts. 110, 111, and 112);
Freedom of person (Art. 114);
Freedom of speech, assembly, and association (Arts. 118, 123, and 124);
Right of just compensation for property expropriated (Art. 153);
Right of inheritance (Art. 154);

There were, however, in the Weimar constitution the germs of the disease from which it died. In article 48 of the constitution it was provided:

“The Reich President may, if the public safety and order of the
German Reich are considerably disturbed or endangered, take such
measures as are necessary to restore public safety and order. If
necessary, he may intervene with the help of the armed forces.
For this purpose he may temporarily suspend, either partially or
wholly, the fundamental rights established in articles 114, 115,
117, 118, 123, 124, and 153.”

A review of the evidence will disclose that substantially every principle of justice which was enunciated in the above-mentioned laws and constitutional provisions was after 1933 violated by the Hitler regime.

The first step in the march toward absolutism was of necessity the assumption and consolidation of power. It was deemed essential that the government be authorized to make laws by decree, unhampered by the limitations of the Weimar republic, by the Reichstag, or by the independent action of the several German States (Laender). To accomplish this end on 28 February 1933 a decree was promulgated over the signature of President von Hindenburg, Chancellor Hitler, Reich Minister of the Interior Frick, and Reich Minister of Justice Guertner. Briefly stated, this decree expressly suspended the provisions of the Weimar constitution guaranteeing personal liberty, free speech, press, assembly, association, privacy of communication, freedom of search, and inviolability of property rights. The decree further provided that the Reich government might, to restore public security, temporarily take over the powers of the highest State authority. It was declared in the preamble that the decree was passed “in virtue of article 48 (2) of the Weimar constitution.” This is the article to which we previously referred and which authorized the Reichspraesident to suspend the very provisions which were in fact stricken down by the Hitler decree of 28 February. The decree was reinforced on 24 March 1933 by the act of an intimidated Reichstag. The enactment was subtly drawn to accomplish a double purpose. It provided that “laws decreed by the government may deviate from the constitution”, but the act did not stop there; it also provided that “laws of the Reich can be decreed by the government apart from the procedure provided by the Constitution.” We quote in part--

“Article 1.--Laws of the Reich can be decreed, apart from the
procedure provided by the constitution of the Reich, also by the
government of the Reich. This also applies to the laws mentioned
in articles 85, paragraph 2, and 87 of the constitution of the
Reich.

“Article 2.--The laws decreed by the government of the Reich may
deviate from the constitution of the Reich as far as they do not
concern the institution of the Reichstag and the Reich council
as such. The rights of the Reichspraesident remain untouched.

“Article 3.--Articles 68 through 77 of the constitution of the
Reich do not apply to laws decreed by the government of the
Reich.”

Though the Enabling Act expressly repealed only a small portion of the constitution, nevertheless that portion which was repealed cleared the procedural way for the nullification of the rest if and when decrees should be promulgated by “the government.” On 14 July 1933 a law was passed declaring the Nationalsozialistische Deutsche Arbeiterpartei (NSDAP) to be the only political party and making it a crime to maintain or form any other political party.[597] Thus, it was made doubly sure that any legislation thereafter enacted by the Reichstag would be in harmony with the will of the government.

Although the process by which the Hitler regime came into power was tainted with illegality and duress, nevertheless the power thus seized was later consolidated and the regime thereafter did receive the organized support of the German people and recognition by foreign powers. On 30 January 1934, more than 10 months after the enactment of the enabling act, and subsequent to the Reichstag election of 12 November 1933, the Reichstag passed an act by unanimous vote providing that “the sovereign powers of the Laender are transferred to the Reich,” and further providing that “the Reich government may issue new constitutional laws.” The act was regularly signed by Reich President von Hindenburg, and by Reich Chancellor Hitler, and Minister Frick.[598] The provisions of the Enabling Act were renewed by acts of the Reichstag on 30 January 1937 and again on 30 January 1939.

On 14 June 1942, Dr. Lammers, Reich Minister and Chief of the Reich Chancellery, stated that they would “stress the fact that the Fuehrer himself and the Reich cabinet should not be eliminated from the powers of legislation.”

The conduct of the defendants must be seen in a context of preparation for aggressive war, and must be interpreted as within the framework of the criminal law and judicial system of the Third Reich. We shall, therefore, next consider the legal and judicial process by which the entire judicial system was transformed into a tool for the propagation of the National Socialist ideology, the extermination of opposition thereto, and the advancement of plans for aggressive war and world conquest. Though the overt acts with which defendants are charged occurred after September 1939, the evidence now to be considered will make clear the conditions under which the defendants acted and will show knowledge, intent, and motive on their part, for in the period of preparation some of the defendants played a leading part in molding the judicial system which they later employed.

Beginning in 1933, there developed side by side two processes by which the Ministry of Justice and the courts were equipped for terroristic functions in support of the Nazi regime. By the first, the power of life and death was ever more broadly vested in the courts. By the second, the penal laws were extended in such inconclusive and indefinite terms as to vest in the judges the widest discretion in the choice of law to be applied, and in the construction of the chosen law in any given case. In 1933, by the law for the “Protection against Violent Political Acts,” the death sentence was authorized, though not required, as to a number of crimes “whenever milder penalty has been prescribed hitherto.”[599]

On 24 April 1934, the definition of high treason was greatly expanded and the death sentence was authorized, though not required, in numerous instances. The manner in which this law was applied renders it all-important. The following provisions, among others, illustrate the scope of the amended law and the discretionary power of the judge:

“83. Whoever publicly incites to or solicits an undertaking of
high treason shall be punished by confinement in a penitentiary
not to exceed 10 years.

“Whoever prepares an undertaking of high treason in any other
way shall be punished in like manner.

“The death penalty, or confinement in a penitentiary for life,
or for not less than 2 years, shall be inflicted:

“(1) if the act was directed toward establishing or maintaining
an organized combination for the preparation of high treason or

* * * * * * *

“(3) if the act was directed toward influencing the masses by
making or distributing writings, recordings, or pictures, or by
the installation of wireless telegraph or telephone, or

“(4) if the act was committed abroad or was committed in such
a manner that the offender undertook to import writings,
recordings, or pictures from abroad or for the purpose of
distribution within the country.”[600]

On 20 December 1934, the government promulgated the following enactment “Law on Treacherous Acts against State and Party and for the Protection of Party Uniforms,” which provided in part as follows:

“Chapter 1. Article 1. (1) Unless heavier punishment is
sanctioned under the authority of a law previously established,
imprisonment not to exceed 2 years shall be imposed upon anybody
deliberately making false or grievous statements, fit to injure
the welfare or the prestige of the government of the Reich, the
National Socialist Workers’ Party, or its agencies. If such
statements are made or circulated in public, imprisonment for
not less than 3 months shall be imposed.

“Article 2. (1) Anyone who makes or circulates statements
proving a malicious, baiting or low-minded attitude toward
leading personalities of the State or the NSDAP, or toward
orders issued by them or toward institutions created by
them--fit to undermine the confidence of the people in its
political leadership--shall be punished with imprisonment.

“(2) Statements of this kind which are not made in public shall
warrant the same punishment--provided the offender figures on
his statements eventually being circulated in public.”

A decisive step was taken by the “Law to Change the Penal Code,” which was promulgated on 28 June 1935 by Adolf Hitler as Fuehrer and Reich Chancellor, and by Dr. Guertner as Reich Minister of Justice. Article 2 of that enactment is as follows:

“Article 2. Whoever commits an act which the law declares
as punishable or which deserves punishment according to the
fundamental idea of a penal law and the sound concept of
the people, shall be punished. If no specific penal law can
be directly applied to this act, then it shall be punished
according to the law whose underlying principle can be most
readily applied to the act.”

In substance, this edict constituted a complete repudiation of the rule that criminal statutes should be definite and certain and vested in the judge a wide discretion in which Party political ideology and influence were substituted for the control of law as the guide to judicial decision.