Chapter LXXX: Section VII: of the secret decree declares that the directives will (7)

The progressive degeneration in the administration of justice came to a climax in 1944 and 1945. A decree by Thierack on 13 December 1944 abrogated the rules concerning the obligatory representation of accused persons by defense counsel. It was left for the judge to decide whether defense counsel was required. On 15 February 1945 as a final measure of desperation and in the face of imminent defeat, the law was passed for the establishment of civilian courts martial. The statute provided that sentence should be either death, acquittal, or commitment to the regular court. Pursuant to this law Gauleiter Holz set up a drumhead court martial in Nuernberg. It consisted of the defendant Oeschey as presiding judge, with Gau Inspector Haberkern and a major in the Wehrmacht as associate judges. On 2 April 1945 Karl Schroeder was appointed prosecutor. The judges and prosecutor then went to the office of the Gauleiter, where he delivered a speech in which he stated:

“That the main point was to stop the American advance; one could
count upon introduction of new weapons, and that he expected
that the court martial would give the necessary support to the
army at the front by applying the severest measures.”

The officials were sworn in on 3 April. The affidavit of Schroeder, who later appeared for cross-examination, discloses that Holz intended that the first case be tried on the third day of April. Schroeder stated this would be impossible because he would need time to examine the case. The first case to be tried was that of Count Montgelas. Schroeder states that the case was the most difficult in his practice, but that it had to be tried “because the Gauleitung pressed for a quick decision of this matter”. The defendant Oeschey testified concerning the court martial procedure as follows:

“Proceedings were to follow the provisions laid down in the Code
of Criminal Procedure which had been very strongly simplified.
Nevertheless, the court martial had observed in its proceedings
the most important principles of protecting the interest of
the defendant. The defendant’s right to be heard, oral trial,
admission of defense counsel, thorough presentation of evidence,
a freedom of the judge to go into the evidence, a vote among the
judges, and so forth.”

The procedure followed by Oeschey as presiding judge in the case Montgelas did not conform to the foregoing statement. Count Montgelas had for some time been represented by defense counsel Eichinger, who had an office in the courthouse adjacent to that of the prosecutor, and who had had dealings with the prosecutor concerning the Montgelas case. The defendant Oeschey testified that he had directed that Eichinger be notified concerning the trial, but in any event Eichinger was not notified and Oeschey informed the prosecutor that he would conduct the trial without defense counsel because the “legal prerequisites for trial without defense counsel did exist.” He apparently had reference to Thierack’s decree of 13 December 1944, _supra_.[674] Eichinger, as attorney for Count Montgelas, received his first information concerning the trial after Montgelas had been convicted and shot.

The statute creating civilian courts martial specifically provided that they should consist of “a judge of a criminal court, as president * * *.” At the time of his appointment, Oeschey was a soldier serving in the Wehrmacht and was not a judge of a criminal court. He testified that the statute meant only that it was necessary “that a man be appointed who has the qualifications to exercise the function of a judge.”

The Nuernberg civilian court martial functioned for the first time on 5 April, held ten sessions, and disposed of twelve defendants, ten of whom were charged with political offenses. On 16 April the American Army was approaching Nuernberg, and on that date at noon the civilian court martial ceased to function.

An exhibit was offered in evidence containing the results of an official investigation of the defendant Oeschey and prosecutor Schroeder for perversion of justice, conducted in August 1946, before German judicial authorities. An objection to the receipt of the exhibit was first made by counsel for Oeschey but was later withdrawn. The exhibit was received and is before us for consideration. From this exhibit we learn that Dr. Wilhelm Eser was the investigating judge in the Montgelas case. He states that at the hearing of Montgelas a Gestapo official was present, and that if Montgelas had not been arrested the official would have taken him back to the Gestapo “as it was demanded in the record of the investigation * * *.” Eichinger, who appeared as a witness before this Tribunal, had been employed in February by Countess Montgelas to defend her husband. He stated that he had conferred with Prosecutor Dr. Mueller and had been informed that the prosecutor recognized--

“* * * the competence of the People’s Court and therefore he had
submitted the record of the case to the chief public prosecutor
at the People’s Court for a decision. I asked him to inform
me immediately after the record was returned, respectively,
after receiving the decision of the chief public prosecutor. He
promised me this, and I was completely reassured.”

At this time Montgelas was in the sick ward of the prison for solitary confinement. On 10 April Eichinger went to the prison office to examine the files in the Montgelas case, whereupon the director of Nuernberg prison informed me confidentially that Count Montgelas had been summoned before the court martial on 5 April at 2 p.m., sentenced to death, and shot the next day. The crime for which Count Montgelas had been shot consisted of remarks made by him in a private room in the Grand Hotel to a lady, Mrs. Pfleger, of Bamberg. The Count had made insulting remarks concerning Hitler, among others to the effect that his true name was Schickelgruber. He also expressed approval of the attempt upon Hitler’s life of 20 July 1944. We are convinced from the testimony of Eichinger before this Tribunal that if any serious effort had been made he could have been notified prior to the trial of his client. Eichinger expressed the opinion with which this Tribunal concurs, that a summons issued at 1400 hours to appear at 1500 hours before a court martial is an offense against justice. The only witness who appeared against Count Montgelas was an SS Fuehrer, who had been shadowing him for many days in an attempt to secure evidence against him. By concealing himself in an adjoining room and by the use of a mechanical device, he was able to overhear the conversation between Montgelas and the lady and to testify concerning it. Eichinger states that the statements of the SS Fuehrer who was the eavesdropper at the hotel were “in important points contradictory” to the statements Montgelas had made to his attorney and that the latter had already proposed to summon the lady with whom Montgelas had conversed as a rebuttal witness in behalf of the Count.

The wife of the martyr Montgelas stated in the official investigation that Chief Prosecutor Schroeder told her that “there had not been time to comply with my husband’s urgent request to get a defense counsel.” Schroeder also told the Countess that she was not to be given any information on the disposal of the body of her husband because he had died a dishonorable death. Thus, on the last days of the war, when the American Army was almost at the gates of Nuernberg, and within a month of the total collapse of German opposition, a sick man, after solitary confinement, is indicted on 3 April, tried on 5 April, and shot on 6 April without the knowledge of his counsel in secret proceedings, and without the benefit of witnesses who would have testified for him. Such a mock trial is not a judicial proceeding but a murder.

It is provided in C. C. Law 10 that persecutions on political as well as racial grounds are recognized as crimes. While the mere fact alone that Montgelas was prosecuted for remarks hostile to the Nazi regime may not constitute a violation of C. C. Law 10, the circumstances under which the defendant was brought to trial and the manner in which he was tried convince us that Montgelas was not convicted for undermining the already collapsed defensive strength of the defeated nation, but on the contrary, that the law was deliberately invoked by Gauleiter Holz and enforced by Oeschey as a last vengeful act of political persecution. If the provisions of C. C. Law 10 do not cover this case, we do not know what kind of political persecution it would cover.

We have already indicated that we will not convict any defendant merely because of the fact, without more, that he participated in the passing or enforcement of laws for the punishment of habitual criminals, looters, hoarders, or those guilty of undermining the defensive strength of the nation, but we also stated that these laws were in many instances applied in an arbitrary and brutal manner shocking to the conscience of mankind and punishable here. This was the situation in a number of cases tried by Rothaug and Oeschey, but concerning which we have no transcript of testimony and we must therefore of necessity rely upon statements of associates and close observers. In this connection we shall have reference to affidavits and to testimony of associates of the defendant Oeschey. We shall refer to statements of affiants only in those cases in which the affiant was also brought to court and verbally cross-examined concerning his statements.

Dr. Hermann Mueller was a prosecutor at the Special Court in Nuernberg. He said:

“He (Oeschey) frequently insulted the defendants and presented
the crimes to them as if these crimes were already a proven
fact. His behavior was often so extreme that one might well
believe he was a psychopathic case. The abusive insults that
he inflicted upon the defendants were, to the highest degree,
unworthy of a court trial. He wielded such influence over the
form of the administration of justice through his close Party
affiliations that the other officials of equal rank at the
Nuernberg administration of criminal justice were almost always
forced to yield.”

Mueller mentions several cases in which Oeschey announced before trial that the defendant would be executed. In a case against Schnaus he states that Oeschey--

“* * * told me that, as a result of a discussion with government
officials, he was certain to obtain the death sentence. At that
time I was still unaware of the changed situation at the Special
Court occasioned by the war, and turned to my immediate superior
for information. He then informed me of the very close relations
existing between judges and the prosecutors.”

Concerning the case Montgelas, Mueller stated:

“Concerning the case of Montgelas it must be pointed out that
this was a case of political extermination, which was handled in
a most hideous fashion.”

Again, he said:

“Oeschey was the most brutal judge that I have ever known in
my life and a most willing instrument of the Nazi terroristic
justice.”

Dr. Armin Baur was the medical officer at the Special Court. He said:

“One always had the impression that the verdict was already
previously decided upon and that Oeschey and Rothaug were just
playing cat and mouse with the defendants for hours. No occasion
was missed to insult the defendants in the filthiest way.”

This medical expert dealt with cases which were tried both by Rothaug and by Oeschey. In the Katzenberger case the defendant Rothaug told the doctor that he wanted the defendant examined but that the examination was a matter of pure formality because the Jew “would be beheaded anyhow,” and he added, “It is sufficient for me that the swine said that a German girl sat on his lap.” Dr. Baur states that “foreigners were generally dealt with by Rothaug and Oeschey as inferior beings whose task it was only to serve the German master race.”

Hans Kern, defense counsel, stated “that foreigners were told at the beginning and throughout the trial that they were to be annihilated.” Again he said:

“Rothaug and Oeschey declined, as a matter of principle, to
believe Polish citizens who were under accusation. They were
branded as liars. It was assumed that their innate tendency made
liars of them.”

He described Oeschey as a “notorious Pole baiter.”

Dr. Gustav Kunz, leading court doctor at Nuernberg, was an excellent and reliable witness. He stated:

“Insult, humiliation, and mental torture of the defendants
were routine and the two judges, especially Oeschey, did not
even renounce them in cases in which--according to the legal
situation--the verdict had to be and actually was acquittal or
an insignificant sentence.”

Kurt Hoffmann, prosecutor at Nuernberg, states that Oeschey was severe as to the German defendants and was--

“* * * even more severe with regard to sentences against
foreigners and much more furious in his conduct of their trials,
especially in the case of Poles.”

Adolf Paulus, former public prosecutor, speaks of the “brutality of which only Oeschey was capable.”

Friedrich Doebig, who was president of the district court of appeals at Nuernberg, later senate president of the Reich Supreme Court, stated that “Oeschey like Rothaug was a fanatical Nazi, who consistently interpreted and enforced the law in accord with Nazi ideologies.”

Dr. Herbert Lipps served with defendant Oeschey on the Special Court, Nuernberg. He states that Oeschey was autocratic and would not tolerate contradiction.

“Defendants were insulted by Oeschey in the most abusive manner
and death candidates were told by Oeschey right at the beginning
of the session that they had forfeited their lives.

“Toward foreigners, particularly Poles, Oeschey was especially
rigorous and here upheld the National Socialist theory of
liquidating where nationals of the occupied territories were
concerned. I remember a case in which a Polish farmhand was
ill-treated by his employer and defended himself. Oeschey told
the defendant that a Pole was not allowed to oppose a German.”

Dr. Franz Gros was an associate judge at Nuernberg. He states that Oeschey followed the harsh procedural methods of Rothaug and was a “fanatic National Socialist who pursued his dishonorable motives with conviction and who willingly lent his hand to blood-thirsty National Socialist jurisdiction.”

Dr. Pfaff was an associate judge at Nuernberg and corroborates the statements of Dr. Gros.

Dr. Joseph Mayer was a Referent in the prosecutor’s office at Nuernberg. Concerning Oeschey, he said:

“Oeschey * * * was obviously of Rothaug’s school. Outwardly he
gave the impression of being morose and unrelenting. I cannot
remember ever having had a personal conversation with him. As
a rule he began the proceedings with a preconceived opinion
to which he adhered. Anyone who tried to oppose this opinion
was overridden by him in the most brutal way. He insulted the
defendants all the time in a most offensive manner, informing
them repeatedly all the way through, what he intended to do with
them. He had an extensive vocabulary of invectives for that
purpose, the use of which he developed to a fine art. * * * It
was literally tormenting if one had to listen to this tirade
often for hours at a time. When his face became distorted into a
repulsive mask by his continual scolding and abusive language,
Faust’s words to Mephistopheles would often quite involuntarily
come to my mind: ‘Thou freak of filth and fire.’”

Joseph Eichinger, defense attorney at Nuernberg, stated:

“His prejudice was so strong that he did not consider,
seriously, the statements of the defense and dismissed them
rudely or ironically. Even during the trial he repeatedly
addressed the defendant thus: ‘People such as you deserve to
be exterminated,’ ‘You will be convicted;’ or he called the
defendant insulting and humiliating names such as ‘criminal,’ or
‘scoundrel,’ ‘enemy of the people.’”

Again, he said:

“As leader of the Gau legal office (Gaurechtsamt) and, after the
latter’s disbanding, as member in the Gau staff (Gaustab), he
enjoyed a special position of power which enabled him to hold
the defense strongly in check; it was well known that a sign
from the Gau authorities, instigated by Oeschey, was sufficient
to have a lawyer turned over to the Gestapo.

“I had the impression that he supported, knowingly and
willingly, the policy of Hitler to ‘decimate’ (Dezimierung)
aliens, especially Poles, by increasing the number of death
sentences against them * * *.”

On cross-examination Eichinger admitted that he did not know of any lawyer who had been turned over to the Gestapo by Oeschey. It is clear that in his statements Eichinger was relying only upon general information as the basis of his opinion. We think, however, that his opinion merits consideration.

Dr. Karl Mayer, defense counsel, said that Rothaug was judge of the worst Special Court in Germany and used to tell defendants even during the trial that they would be exterminated. He adds that after Rothaug was transferred to Berlin, Oeschey even surpassed him in the spitefulness of his manner. Space does not permit the discussion of the other cases which illustrate Oeschey’s ruthless exercise of arbitrary power. Mention should, however, be made of the trial of a group of foreign boys who had some fights with boys in the Nuernberg Hitler Youth Home. Dr. Mueller characterizes the action of the boys as harmless pranks. At worst they were indulging in street fights with the Hitler Youth. Oeschey held that they constituted a resistance movement and several of the boys were sentenced to death.

The defendant Oeschey is charged under count four of the indictment with being a member of the Party Leadership Corps at Gau level within the definition of the membership declared criminal according to the judgment of the first International Military Tribunal in the case against Goering, et al.

We have previously quoted the findings of the first International Military Tribunal which define the organizations and groups within the Leadership Corps which are declared to be criminal. Oeschey was provisionally commissioned with the direction of the legal office of the NSDAP in the Franconia Gau and served in that official capacity for a long time. In his testimony he states that from 1940 to 1942 he was solely in charge of the Gau legal office as section chief. The evidence clearly establishes the defendant’s voluntary membership as the chief of a Gau staff office subsequent to 1 September 1939. The judgment of the first International Military Tribunal lists among the criminal activities of the Party Leadership Corps the following:

“The Leadership Corps played its part in the persecution
of the Jews. It was involved in the economic and political
discrimination against the Jews which was put into effect
shortly after the Nazis came into power. The Gestapo and SD were
instructed to coordinate with the Gauleiter and Kreisleiter the
measures taken in the pogroms of 9 and 10 November 1938. The
Leadership Corps was also used to prevent German public opinion
from reacting against the measures taken against the Jews in the
East. On 9 October 1942, a confidential information bulletin
was sent to all Gauleiter and Kreisleiter entitled ‘Preparatory
measures for the final solution of the Jewish question in
Europe--rumors concerning the conditions of the Jews in the
East.’ This bulletin stated that rumors were being started by
returning soldiers concerning the conditions of Jews in the East
which some Germans might not understand, and outlined in detail
the official explanation to be given. This bulletin contained no
explicit statement that the Jews were being exterminated, but
it did indicate they were going to labor camps, and spoke of
their complete segregation and elimination and the necessity of
ruthless severity. * * *

“The Leadership Corps played an important part in the
administration of the slave labor program. A Sauckel decree
dated 6 April 1942 appointed the Gauleiter as plenipotentiary
for labor mobilization for their Gaue with authority to
coordinate all agencies dealing with labor questions in their
Gaue, with specific authority over the employment of foreign
workers, including their conditions of work, feeding, and
housing. Under this authority the Gauleiter assumed control over
the allocation of labor in their Gaue, including the forced
laborers from foreign countries. In carrying out this task the
Gauleiter used many Party offices within their Gaue, including
subordinate political leaders. For example, Sauckel’s decree of
8 September 1942, relating to the allocation for household labor
of 400,000 women laborers brought in from the East, established
a procedure under which applications filed for such workers
should be passed on by the Kreisleiter, whose judgment was final.

“Under Sauckel’s directive the Leadership Corps was directly
concerned with the treatment given foreign workers, and the
Gauleiter were specifically instructed to prevent ‘politically
inept factory heads’ from giving ‘too much consideration to the
care of eastern workers’. * * *

“The Leadership Corps was directly concerned with the treatment
of prisoners of war. On 5 November 1941 Bormann transmitted a
directive down to the level of Kreisleiter instructing them to
insure compliance by the army with the recent directives of the
department of the interior ordering that dead Russian prisoners
of war should be buried wrapped in tar paper in a remote place
without any ceremony or any decorations of their graves. On 25
November 1943 Bormann sent a circular instructing the Gauleiter
to report any lenient treatment of prisoners of war. On 13
September 1944 Bormann sent a directive down to the level of
Kreisleiter ordering that liaison be established between the
Kreisleiter and the guards of the prisoners of war in order
‘better to assimilate the commitment of the prisoners of war to
the political and economic demands’. * * *

“The machinery of the Leadership Corps was also utilized in
attempts made to deprive Allied airmen of the protection to
which they were entitled under the Geneva Convention. On 13
March 1940 a directive of Hess, transmitted instructions through
the Leadership Corps down to the Blockleiter for the guidance of
the civilian population in case of the landing of enemy planes
or parachutists, which stated that enemy parachutists were to be
immediately arrested or ‘made harmless.’”[675]

As to his knowledge, the defendant Oeschey joined the NSDAP on 1 December 1931. He was head of the Lawyers’ League for the Gau Franconia and a judicial officer of considerable importance within the Gau. These offices would provide additional sources of information as to the crimes outlined. Furthermore, these crimes were of such wide scope and so intimately connected with the activities of the Gauleitung that it would be impossible for a man of the defendant’s intelligence not to have known of the commission of these crimes, at least in part if not entirely.

We find the defendant Oeschey guilty under counts three and four of the indictment. In view of the sadistic attitude and conduct of the defendant, we know of no just reason for any mitigation of punishment.

_THE DEFENDANT ALTSTOETTER_

Joseph Altstoetter was born 4 January 1892. He was educated for the bar and passed the State examination in jurisprudence in Munich. He subsequently served in the Bavarian and in the Reich Ministries of Justice.

In 1932 he was promoted and sent to the Reich Supreme Court in Leipzig. In 1933 he was a member of the appeals criminal senate. In 1936 he was a member of the Reich Labor Court. From 1939 to 1943 he served with the Wehrmacht. In 1943 he was assigned to the Reich Ministry of Justice where he was made chief of the civil law and procedure division in the Ministry of Justice with the title of Ministerialdirektor and served in that capacity until the surrender. He had been a member of the Stahlhelm prior to the Nazi rise to power. When the Stahlhelm was absorbed into the Nazi organization, he automatically became a member of the SA. Prior to May 1937 he resigned from the SA to become a member of the general SS. His membership in the SS, from his personnel files, dates from 15 May 1937. He applied for membership in the NSDAP in 1938 and his membership was dated back to 1 May 1937. He was awarded the Golden Party Badge for service to the Party.

Upon the evidence in this case it is the judgment of this Tribunal that the defendant Altstoetter is not guilty under counts two and three of the indictment.

The question which remains to be determined as to the defendant Altstoetter is whether, knowing of its criminal activities as defined by the London Charter, he joined or retained membership in the SS, an organization defined as criminal by the International Military Tribunal in the case of Goering, et al.

The evidence in this case as to his connection with the SS is found primarily in his personnel record which covers a great many pages, in his correspondence with SS leaders, and his own testimony. From this evidence it appears that the defendant, upon the request of Himmler, joined the SS in May 1937. He stated that Himmler told him he would receive a rank commensurate with his civil status. The record does not indicate what rank in the SS was commensurate with his civil status as a member of the Reich Supreme Court, but on 20 April 1938 he was promoted to Untersturmfuehrer, which corresponds to a second lieutenant in the army. He was subsequently promoted on 20 April 1939 to Obersturmfuehrer; on 20 April 1940 to Hauptsturmfuehrer. On 12 March 1943, according to a letter to the SS Main Personnel Office, signed by Himmler, he was promoted to Sturmbannfuehrer, effective 25 January 1943 and, by the same letter, to Obersturmbannfuehrer as of 20 April 1943, and it was directed that he be issued a skull and crossbones ring. In June 1943 he wrote to the Chief of the SS Main Office, SS Gruppenfuehrer Berger, thanking him for this ring bestowed by the Reich Leader SS. In this letter he wrote:

“Both this promotion and the honoring of this decoration with
the skull and crossbone ring I will take not only as a token of
the Reich Leader’s most distinct proof of trust in me, but also
as an incentive for further active proof of my loyalty and for
strictest adherence to my duties in my career as an SS man.”

On 11 February 1944 he wrote SS Gruppenfuehrer and Lieutenant General of the Waffen SS, Professor Dr. Karl Gebhardt, a letter containing the following paragraph:

“One more personal remark--You kindly promoted me SS
Oberfuehrer. It is not that far yet. At least, I did not get to
know it until now. I merely tell you this because I do not want
to claim anything for me which does not correspond to facts.”

By letter dated 16 June 1944 he was notified that the Reich Leader SS had promoted him to the rank of Oberfuehrer, effective 21 June 1944.

The defendant stated that he was assigned to the legal staff of the 48th Standarte and later to the legal staff of the SS Main Office. He stated that he had no actual duties. However, part of his service credentials, dated 14 March 1939, under the heading of qualifications, signed by Dalski, SS Obersturmbannfuehrer, the following is stated:

“SS Untersturmfuehrer Altstoetter is frank, honest, and helpful.
His ideology is firmly established on a National Socialist
basis. A. was a leader of the staff of the 48th Standarte and
there at all times performed his duties in a satisfactory
manner.”

In a report from Leipzig, dated 10 June 1939, it is stated that he was awarded the “badge of honor for legal service, in silver”, effective 19 April 1938, signed Sachse, SS Untersturmfuehrer and Adjutant.

The defendant was evidently highly regarded by Himmler who, on 18 September 1942, at a meeting with Thierack and Rothenberger, referred to him as a reliable SS Obersturmfuehrer.

It also appears that his appointment to the Ministry of Justice was at the suggestion of Himmler and that the defendant’s relationship with Himmler was one which Thierack fostered for purposes of his own.

At the instance of Thierack, he visited Himmler at his headquarters and was present at a speech given by Himmler at Kochem, where he attended a dinner for twelve people, including SS Standartenfuehrer Rudolf Brandt and SS Obergruppenfuehrer Pohl.

He visited Berger, a high SS official, at Berger’s request. He carried on considerable correspondence with high officials in the SS, including Himmler, SS Gruppenfuehrer Professor Dr. Gebhardt, SS Gruppenfuehrer Berger, and Kaltenbrunner, Chief of the Security Police and SD.

On 25 May 1940 Altstoetter wrote to the Reich Leader SS as follows:

“If I can contribute my small part towards helping our Fuehrer
to accomplish his great task for the benefit of our nation, this
causes me particular joy and satisfaction, especially in my
capacity as SS officer.”

According to a letter to Gebhardt, Himmler had instructed the SS leaders to request Altstoetter’s advice in certain matters.

On 6 June 1944 he wrote Gebhardt, congratulating him upon a recent award. In this letter he states:

“I am especially glad about your distinction, especially because
I do not see only in it a recognition of your great war service
as a physician and surgeon but also as a research scientist and
organizer and which is attributed to our old and trusty friend.”

The evidence in this case clearly establishes that the defendant joined and retained his membership in the SS on a voluntary basis. In fact it appears that he took considerable interest in his SS rank and honors. The remaining fact to be determined is whether he had knowledge of the criminal activities of the SS as defined in the London Charter. In this connection we quote certain extracts from the judgment of the International Military Tribunal in the case of Goering, et al., as to the SS--

“Criminal activities: SS units were active participants in
the steps leading up to aggressive war. The Verfuegungstruppe
was used in the occupation of the Sudetenland, of Bohemia and
Moravia, and in Memel. The Henlein Free Corps was under the
jurisdiction of the Reich Leader SS for operations in the
Sudetenland in 1938, and the Volksdeutsche Mittelstelle financed
fifth column activities there.

“The SS was even a more general participant in the commission
of war crimes and crimes against humanity. Through its control
over the organization of the police, particularly the Security
Police and SD, the SS was involved in all the crimes which
have been outlined in the section of this judgment dealing
with the Gestapo and SD. * * * The Race and Settlement Office
of the SS, together with the Volksdeutsche Mittelstelle were
active in carrying out schemes for Germanization of occupied
territories according to the racial principles of the Nazi Party
and were involved in the deportation of Jews and other foreign
nationals. Units of the Waffen SS and Einsatzgruppen operating
directly under the SS Main Office were used to carry out these
plans. These units were also involved in the widespread murder
and ill-treatment of the civilian population of occupied
territories. * * *

“From 1934 onward the SS was responsible for the guarding and
administration of concentration camps. The evidence leaves no
doubt that the consistently brutal treatment of the inmates of
concentration camps was carried out as a result of the general
policy of the SS, which was that the inmates were racial
inferiors to be treated only with contempt. There is evidence
that where manpower considerations permitted, Himmler wanted to
rotate guard battalions so that all members of the SS would be
instructed as to the proper attitude to take to inferior races.
After 1942 when the concentration camps were placed under the
control of the WVHA they were used as a source of slave labor.
An agreement made with the Ministry of Justice on 18 September
1942 provided that antisocial elements who had. finished prison
sentences were to be delivered to the SS to be worked to death.
* * *

“The SS played a particularly significant role in the
persecution of the Jews. The SS was directly involved in the
demonstrations of 10 November 1938. The evacuation of the
Jews from occupied territories was carried out under the
directions of the SS with the assistance of SS police units. The
extermination of the Jews was carried out under the direction of
the SS central organizations. It was actually put into effect by
SS formations. * * *

“It is impossible to single out any one portion of the SS which
was not involved in these criminal activities. The Allgemeine SS
was an active participant in the persecution of the Jews and was
used as a source of concentration camp guards. * * *

“The Tribunal finds that knowledge of these criminal activities
was sufficiently general to justify declaring that the SS was
a criminal organization to the extent hereinafter described.
It does appear that an attempt was made to keep secret some
phases of its activities, but its criminal programs were so
widespread, and involved slaughter on such a gigantic scale,
that its criminal activities must have been widely known. It
must be recognized, moreover, that the criminal activities of
the SS followed quite logically from the principles on which
it was organized. Every effort had been made to make the SS
a highly disciplined organization composed of the elite of
national socialism. Himmler had stated that there were people
in Germany ‘who become sick when they see these black coats’,
and that he did not expect that ‘they should be loved by too
many’. * * * Himmler in a series of speeches made in 1943,
indicated his pride in the ability of the SS to carry out these
criminal acts. He encouraged his men to be ‘tough and ruthless’;
he spoke of shooting ‘thousands of leading Poles’, and thanked
them for their cooperation and lack of squeamishness at the
sight of hundreds and thousands of corpses of their victims. He
extolled ruthlessness in exterminating the Jewish race and later
described this process as ‘delousing’. These speeches show that
the general attitude prevailing in the SS was consistent with
these criminal acts. * * *

“In dealing with the SS the Tribunal includes all persons who
had been officially accepted as members of the SS, including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf Verbaende, and the members of any of the
different police forces who were members of the SS. * * *

“The Tribunal declares to be criminal within the meaning of
the Charter the group composed of those persons who had been
officially accepted as members of the SS as enumerated in the
preceding paragraph who became or remained members of the
organization with knowledge that it was being used for the
commission of acts declared criminal by article 6 of the Charter
* * *.”[676]

In this regard the Tribunal is of the opinion that the activities of the SS and the crimes which it committed as pointed out by the judgment of the International Military Tribunal above quoted are of so wide a scope that no person of the defendant’s intelligence, and one who had achieved the rank of Oberfuehrer in the SS, could have been unaware of its illegal activities, particularly a member of the organization from 1937 until the surrender. According to his own statement, he joined the SS with misgivings, not only on religious grounds but also because of practices of the police as to protective custody in concentration camps.

Altstoetter not only had contacts with the high ranking officials of the SS, as above stated, but was himself a high official in the Ministry of Justice stationed in Berlin from June 1943 until the surrender. He attended conferences of the department chiefs in the Ministry of Justice and was necessarily associated with the officials of the Ministry, including those in charge of penal matters.

The record in this case shows as part of the defense of many of those on trial here that they claim to have constantly resisted the encroachment of the police under Himmler and the illegal acts of the police.

Documentary evidence shows that the defendant knew of the evacuation of Jews in Austria and had correspondence with the Chief of the Security Police and Security Service regarding witnesses for the hereditary biological courts. This correspondence states:

“If the Residents’ Registration Office or another police office
gives the information that a Jew has been deported, all other
inquiries as to his place of abode as well as applications for
his admission of hearing or examination are superfluous. On the
contrary, it has to be assumed that the Jew is not attainable
for the taking of evidence.”

It also quotes this significant paragraph:

“If in an individual case it is to the interest of the public
to make an exception and to render possible the taking of
evidence by special provision of persons to accompany and means
of transportation for the Jew, a report has to be submitted
to me in which the importance of the case is explained. In
all cases offices must refrain from direct application to the
offices of the police, especially also to the Central Office for
the Regulation of the Jewish Problem in Bohemia and Moravia at
Prague, for information on the place of abode of deported Jews
and their admission, hearing, or examination.”

He was a member of the SS at the time of the pogroms in November 1938, “Crystal Week,” in which the IMT found the SS to have had an important part. Surely whether or not he took a part in such activities or approved of them, he must have known of that part which was played by an organization of which he was an officer. As a lawyer he knew that in October of 1940 the SS was placed beyond reach of the law. As a lawyer he certainly knew that by the thirteenth amendment to the citizenship law the Jews were turned over to the police and so finally deprived of the scanty legal protection they had theretofore had. He also knew, for it was part of the same law, of the sinister provisions for the confiscation of property upon death of the Jewish owners, by the police.

Notwithstanding these facts, he maintained his friendly relations with the leaders of the SS, including Himmler, Kaltenbrunner, Gebhardt, and Berger. He refers to Himmler, one of the most sinister figures in the Third Reich, as his “old and trusty friend.” He accepted and retained his membership in the SS, perhaps the major instrument of Himmler’s power. Conceding that the defendant did not know of the ultimate mass murders in the concentration camps and by the Einsatzgruppen, he knew the policies of the SS and, in part, its crimes. Nevertheless he accepted its insignia, its rank, its honors, and its contacts with the high figures of the Nazi regime. These were of no small significance in Nazi Germany. For that price he gave his name as a soldier and a jurist of note and so helped to cloak the shameful deeds of that organization from the eyes of the German people.

Upon the evidence in this case it is the judgment of this Tribunal that the defendant Altstoetter is guilty under count four of the indictment.

This Tribunal has held that it has no jurisdiction to try any defendant for the crime of conspiracy as a separate substantive offense, but we recognize that there are allegations in count one of the indictment which constitute charges of direct commission of war crimes and crimes against humanity. However, after eliminating the conspiracy charge from count one, we find that all other alleged criminal acts therein set forth and committed after 1 September 1939 are also charged as crimes in the subsequent counts of the indictment. We therefore find it unnecessary to pass formally upon the remaining charges in count one. Our pronouncements of guilt or innocence under counts two, three, and four dispose of all issues which have been submitted to us.

Concerning those defendants who have been found guilty, our conclusions are not based solely upon the facts which we have set forth in the separate discussions of the individual defendants. In the course of 9 months devoted to the trial and consideration of this case, we have reached conclusions based upon evidence and observation of the defendants which cannot fully be documented within the limitations of time and space allotted to us. As we have said, the defendants are not charged with specific overt acts against named victims. They are charged with criminal participation in government-organized atrocities and persecutions unmatched in the annals of history. Our judgments are based upon a consideration of all of the evidence which tends to throw light upon the part which these defendants played in the entire tragic drama. We shall, in pronouncing sentence, give due consideration to circumstances of mitigation and to the proven character and motives of the respective defendants.

[Signed] JAMES T. BRAND
Presiding Judge

MALLORY B. BLAIR
Judge

JUSTIN W. HARDING
Judge

VIII. SEPARATE OPINION BY JUDGE BLAIR

OPINION OF MALLORY B. BLAIR, JUDGE OF
MILITARY TRIBUNAL III

I concur in the final judgment and verdict filed herein, which I have signed. A difference of view has arisen, however, with respect to certain findings and conclusions made in the judgment under the title “Source of Authority of Control Council Law No. 10”. Under this title a lengthy and able discussion is made in the judgment concerning the effect and meaning of the term “unconditional surrender” of Germany to the Allied Powers. From the meaning given to the term of “unconditional surrender” of the armed forces of the Hitler regime and the collapse of his totalitarian government in Germany, the view is expressed that a distinction arises between measures taken by the Allied Powers prior to the destruction of the German Government and those taken afterwards; and that only the former may be tested by the Hague Regulations because they relate only to a belligerent occupation. To support this view, quotations are made from articles expressing views of certain text writers, which articles are published in the American Journal of International Law. The judgment then adopts the view expressed in the quoted texts, which is admittedly contrary to the views of the equally scholarly writers whose articles are also cited.

The foregoing decision is made to depend upon a determination of the present character or status of the occupation of Germany by the Allied Powers; that is, whether or not it is a belligerent occupation. This interesting but academic discussion of the question has no possible relation to or connection with the “source of authority of Control Council Law No. 10,” which is the question posed in the judgment. No authority or jurisdiction to determine the question of the present status of belligerency of the occupation of Germany has been given this Tribunal. This question of present belligerency of occupation rests solely within the jurisdiction of the military occupants and the executives of the nations which the members of the Allied Control Council represent. The determination by this Tribunal that the present occupation of Germany by the Allied Powers is not belligerent may possibly involve serious complications with respect to matters solely within the jurisdiction of the military and executive departments of the governments of the Allied Powers.

If, however, any possible questions are here present for determination with respect to (1) the character of the present status of occupation of Germany; and (2) the present status of belligerency, such questions can only relate to the rights of the victorious belligerent to exercise control over Germany. Such matters as regard the American Zone are controlled by both the written and unwritten laws, rules, and customs of warfare and by the rights and obligations of a victorious occupant under international law. The determination of these matters has not been entrusted to this Tribunal. This Tribunal has not been given any jurisdiction to exercise any sovereign power of Germany; nor has it been given any jurisdiction to determine that because of the unconditional surrender Germany’s sovereignty was thereby transferred to the victorious Allied Powers. These matters are controlled in the American Zone by the Basic Field Manual [27-10] on Rules of Land Warfare issued (1940) by The Judge Advocate General of the United States Army.

As concerns questions of transfer of sovereignty of a defeated belligerent to the victorious belligerent, the foregoing rules of land warfare provide--

“_273. Does not transfer sovereignty._--Being an incident
of war, military occupation confers upon the invading force
the right to exercise control for the period of occupation.
It does not transfer the sovereignty to the occupant, but
simply the authority or power to exercise some of the rights
of sovereignty. The exercise of these rights results from the
established power of the occupant and from the necessity for
maintaining law and order, indispensable to both the inhabitants
and to the occupying force.

“_274. Distinguished from invasion._--The state of
invasion corresponds with the period of resistance. Invasion
is not necessarily occupation, although it precedes it and
may frequently coincide with it. An invader may push rapidly
through a large portion of enemy country without establishing
that effective control which is essential to the status of
occupation. He may send small raiding parties or flying columns,
reconnoitering detachments, etc., into or through a district
where they may be temporarily located and exercise control, yet
when they pass on it cannot be said that such district is under
his military occupation.

“_275. Distinguished from subjugation or
conquest._--Military occupation in a foreign war, being
based upon the fact of possession of _enemy_ territory,
necessarily implies that the sovereignty of the occupied
territory is not vested in the occupying power. The occupation
is essentially provisional.

“On the other hand, subjugation or conquest implies a transfer
of sovereignty. Ordinarily, however, such transfer is effected
by a treaty of peace. When sovereignty passes, military
occupation, as such, must of course cease; although the
territory may, and usually does for a period at least, continue
to be governed through military agencies which have such powers
as the President or Congress may prescribe.”

And as concerns the administration of occupied territory, the same rules of land warfare require--

“_285. The laws in force._--The principal object of the
occupant is to provide for the security of the invading army
and to contribute to its support and efficiency and the success
of its operations. In restoring public order and safety he
will continue in force the ordinary civil and criminal laws of
the occupied territory which do not conflict with this object.
These laws will be administered by the local officials as far
as practicable. All crimes not of a military nature and which
do not affect the safety of the invading army are left to the
jurisdiction of the local courts.

“_286. Power to suspend and promulgate laws._--The military
occupant may suspend existing laws and promulgate new ones when
the exigencies of the military service demand such action.”

Manifestly this Tribunal, created for the sole purpose of trying and punishing war criminals in the broadest sense of that term as used in Control Council Law No. 10, has not by such law been given any jurisdiction to determine matters relating to the far reaching power or authority which the foregoing rules authorize a military occupant to exercise provisionally. In consequence, the lengthy discussion of the far reaching power or authority which the Allied Powers are now exercising in Germany has no material relation to any question before us for determination, and particularly the question of the “source of the authority of Control Council Law No. 10”. Certainly this Tribunal has no jurisdiction to determine whether or not the military or executive authorities have exceeded their authority or whether or not they are exercising in fact the sovereign authority of Germany, or whether by her unconditional surrender Germany has lost all sovereignty. The exercise of such powers has to do with provisional matters of occupation and operates presently and in future. Our jurisdiction extends to the trial of war criminals for crimes committed during the war and before the unconditional surrender of Germany. This jurisdiction is determined by entirely different laws.

Under the foregoing rules of military operation there is no rule which would, because of the unconditional surrender of the German armed forces, transfer the sovereignty of Germany to the Allied occupants, or to either of them, in their respective zones of occupation. It may here be pointed out that the report of 1919 by the Commission on Responsibility of the Authors of War and Enforcement of Penalties lists among other war crimes in violation of international law or of the laws and customs of land warfare,“(10) the usurpation of sovereignty during military occupation.” This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant. As concerns this Military Tribunal in the American Zone of Occupation, the problem is dealt with and concluded by the above-quoted rules (285–286), relating to administration of occupied territory.

No attempt has been made by the Allied Powers, or either of them, to exercise the sovereign authority of Germany, except in the limited sense provided for by the foregoing rules of land warfare. On 30 January 1946 the Allied Control Council enacted Law No. 11 which repealed most of the enactments of the Nazi regime and continued in force in all of Germany the great body of criminal law contained in the German Criminal Code of 1871 with amendments thereto. This is in accord with the provisions of the above-quoted rule 285. Thus in the American Zone there has been continued in force the ordinary civil and criminal laws of the German states, each of which has been recognized as a sovereign power. These laws are being administered by German local and state officials as far as can practicably be done, with the avowed intention of the Allied Powers, and each of them, to surrender all powers now exercised as a military occupant, particularly when the all-Nazi militaristic influence in public, private, and cultured life of Germany has been destroyed, and when Nazi war criminals have been punished as they justly deserve to be punished.

Furthermore, as concerns the American Zone of Occupation, the punishment of war leaders or criminals is being and will be carried out by four separate procedures--

(1) Major German war leaders or criminals are tried by this and similar military tribunals set up under Control Council Law No. 10 and Military Government Ordinance No. 7, limited to the crimes or offenses therein defined or recognized.

(2) The trials of Germans for the commission of war crimes against American military personnel and for atrocities or crimes committed in concentration camps in the area captured or occupied by the American armed forces, are tried by special military courts set up at the direction of the zone commander, with the theater judge advocate in charge of the prosecution of the cases.

(3) Germans who are charged with committing crimes against humanity upon other Germans, in violation of German law, are tried by the ordinary German criminal courts.

(4) Other Germans who were actively responsible for the crimes of the Hitler or Nazi regime, or who actively participated in the Nazi plans or schemes, are tried by German tribunals under the Law for Liberation from National Socialism and Militarism of 5 March 1946.

The purpose of the foregoing program is to carry out the objectives of the Potsdam Agreement that “war criminals and those participating in planning or carrying out Nazi enterprises involving or resulting in atrocities or war crimes, shall be arrested and brought to judgment.”

The Potsdam Agreement related to punishment of all Axis war criminals. Control Council Law No. 10 sets up the machinery to apply the Potsdam Agreement to European Axis war criminals and particularly to German war criminals.

The judgment further declares, however, that “in the case of Germany, subjugation has occurred by virtue of military conquest.” This holding is based upon the previous declarations that at the time of the unconditional surrender of the German armed forces the Nazi government had completely disintegrated, requiring the victorious belligerent to take over the complete exercise and control of governmental affairs of Germany, and thereby resulting in the transfer of her sovereignty to the victorious Allied Powers. In this holding, the judgment simply attempts to apply the provisions of rule 275 that “subjugation or conquest implies a transfer of sovereignty.” Obviously this rule implies that the question of subjugation is one of fact or intention to be determined by the successful belligerent. There has been no act or declaration of the Allied Powers, either before or since their occupation of Germany under the terms of the unconditional surrender, which could possibly be construed as showing that they intend by the subjugation and occupation of Germany to transfer her sovereignty to themselves. To the contrary every declaration that has been made by the Allied Powers with respect to their occupancy of Germany and the enactment of laws for her control during the occupation has emphasized the fact that the ultimate purpose of such occupancy is to destroy the Nazi form of government and militarism in Germany so that as thus extirpated from these influences she may take her place in the comity of the nations of the world.