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The Justice Trial United States of America v. Alstötter et al. ("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948). The
Justice Trial is one of the most interesting of the Nuremberg trials.
The trial of sixteen defendants, members of the Reich Ministry of Justice
or People's and Special Courts, raised the issue of what responsibility
judges might have for enforcing inhuman--but duly enacted--laws. The trial
was the inspiration for the movie Judgment at Nuremberg. The
movie presented a somewhat fictionalized view of the trial.
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Commentary on the Justice Trial
Defendants & Indictments Decision:U.S.A. v. ALSTOETTER ET AL. (The Justice Cases) War Crimes and Crimes Against Humanity:A Discussion of the Applicable Law The Ex Post Facto Principle as Applied to These Cases The Law in Action: The "Fuehrer Principle" and its Affects on the Defendant Judges Racial Persecution: A Review of the Evidence Against the Defendants Decision of the Court with Respect to Defendant Rothaug Decision of the Court
with Respect to Defendant Schlegelberger
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View of the Justice Trial from the visitors gallery. Trying Body: Military Tribunal III
Verdict: Ten of the sixteen defendants convicted, four acquitted, one died before verdict, one mistrial due to serious illness during trial. Sentence: Four defendants sentenced to life, the other six convicted defendants sentenced to terms ranging from five to ten years. |
No one contends, of course, that German judges and prosecutors destroyed as many lives as did the SS, Gestapo, or other agencies of the Nazi machine. Their victims number in the thousands, not the millions. A judge who knowingly sentenced even one innocent Jew or Pole to death was, however, guilty in the eyes of the prosecutors and judges at the Justice Trial in Nuremberg. There would be no "only a couple of atrocities" defense.
Ingo Muller, in Hitler's Justice: The Courts of the Third Reich, provides a penetrating picture of the workings of the criminal justice system in Nazi Germany. Muller analysis of the evidence suggests that most German judges--contrary to common opinion--were ultraconservative nationalists who were largely sympathetic to Nazi goals. The "Nazification" of German law occurred with the willing and enthusiatic help of judges, rather than over their principled objections.
TO BE CONTINUED
U.S.A. v. ALSTOETTER ET AL (The Justice Cases): Excerpts from the Decision
[Note: The movie Judgment at Nuremberg was based on this set
of cases.]
We next approach the problem of the construction of C.C. Law 10, for whatever the scope of international common law may be, the power to enforce it in this case is defined and limited by the terms of the jurisdictional act.
The first penal provision of Control Council Law No. 10, with which we are concerned is as follows:
“Article II, l.—Each of the following acts is recognized as a crime: . . . (b) War crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”
The scope of inquiry as to war crimes is, of course, limited by the provisions, properly construed, of the Charter and C.C. Law 10. In this particular, the two enactments are in substantial harmony. Both indicate by inclusion and exclusion the intent that the term “war crime” shall be employed to cover acts in violation of the laws and customs of war directed against non-Germans, and shall not include atrocities committed by Germans against their own nationals. It will be observed that Article VI of the Charter enumerates as war crimes acts against prisoners of war, persons on the seas, hostages, wanton destruction of cities and the like, devastation not justified by military necessity, plunder of public or private property (obviously not property of Germany or Germans), and “ill treatment or deportation to slave labor, or for any other purpose, of civilian population of, or in, occupied territory”. C.C. Law 10, supra, employs similar language. It reads:
“. . . ill treatment or deportation to slave labor or for any other purpose of civilian population from occupied territory”.
This legislative intent becomes more manifest when we consider the provisions of the Charter and of C.C. Law 10 which deal with crimes against humanity. Article VI of the Charter defines crimes against humanity, as follows:
“. . . murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
C.C. Law 10 defines as criminal:
“. . . Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other acts committed against any civilian population, or persecutions on political, racial or religious groups whether or not in violation of the domestic laws of the country where perpetrated.”
Obviously, these sections are not surplusage. They supplement the preceding sections on war crimes and include within their prohibition not only war crimes, but also acts not included within the preceding definitions of war crimes. In place of atrocities committed against civilians of or in or from occupied territory, those sections prohibit atrocities against any civilian population”.Again, persecutions on racial, religious, or political grounds are within our jurisdiction “whether or not in violation of the domestic laws of the country where perpetrated”. We have already demonstrated that C.C. Law 10 is specifically directed to the punishment of German criminals. It is, therefore, clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defense. Article III of C.C. Law 10 clearly demonstrates that acts by Germans against German nationals may constitute crimes against humanity within the jurisdiction of this Tribunal to punish. That Article provides that each occupying authority within its zone of occupation shall have the right to cause persons suspected of having committed a crime to be arrested and . . . (d) shall have the right to cause all persons so arrested . . . to be brought to trial . . . . Such Tribunal may, in case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.
As recently asserted by General Telford Taylor before Tribunal No. IV, in the case of the United States vs. Flick, et al.:
“This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10, according to the definitions contained therein, since only such crimes may be tried by German courts, in the discretion of the occupying power. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American Zone of Occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals.”
Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C.C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual”. The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.
The opinion of the first International Military Tribunal in the case against Goering, et al., lends apport [sic] to our conclusion. That opinion recognized the distinction between war crimes and crimes against humanity, and said:
“. . . in so far as the inhumane acts charged in the indictment and committed after the beginning of the war did not constitute war crimes, they were all committed in execution of, or in connection with, aggressive war and, therefore, constituted crimes against humanity.” (Trial of major war criminals, Vol. I, pp. 254-255).
The defendants claim protection under the principle nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed. By way of illustration, we observe that C.C. Law 10, Article II, 1 (b), “War Crimes”, has by reference incorporated the rules by which war crimes are to be identified. In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of those rules under the impact of changing conditions.
Whatever view may be held as to the nature and source of our authority under C.C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case.
Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth . . . .
As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C.C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the States at war with Germany.
We pass now from the forgoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutor, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning this first principle, Dr. Jahrreiss said:
“If now in the European meaning one asks about legal restrictions, and first of all one asks about restrictions of the German law, one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.”
Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “Crown Jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on Constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law, As stated by Professor Jahrreiss:
“To express it differently, whether the law has been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.”
This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:
“On the other hand, certainly there were local restrictions for Hitler under international law.
He was bound by international law. Therefore, he could commit acts violating international law. Therefore, he could issue orders violating international law to the Germans.”
The conclusion to be drawn from the evidence, presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a Tribunal authorized to enforce international law, Hitler's decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.
In German legal theory, Hitler was not only the Supreme Legislator, he was also the Supreme Judge. On 26 April 1942 Hitler addressed the Reichstag in part as follows:
“I do expect one thing: that the nation gives me the right to intervene immediately and to take action myself whenever a person has failed to render unqualified obedience....”
“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty....”
“From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”
On the same day the Greater German Reichstag resolved in part as follows:
“ . . . the Fuehrer must have all the rights postulated by him which serve to further or achieve victory. Therefore—without being bound by existing legal regulations—in his capacity as leader of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme executive chief, as supreme justice, and leader of the Party—the Fuehrer must be in a position to force with all means at his disposal every German, if necessary, whether he be common soldier or officer, low or high official or judge, leading or subordinate official of the Party, worker or employee, to fulfill his duties. In case of violation of these duties, the Fuehrer is entitled after conscientious examination, regardless of so-called well-deserved rights, to mete out due punishment, and to remove the offender from his post, rank and position, without introducing prescribed procedures.”
The assumption by Hitler
of supreme governmental power in all departments did not represent a new
development based on the emergency of war.The
declaration of the Reichstag was only an echo of Hitler’s declaration of
13 July 1934.After the mass murders
of that date (the Roehm purge) which were committed by Hitler’s express
orders, he said:
“Whenever
someone reproaches me with not having used ordinary court for their sentencing,
I can only say:‘In this hour I am
responsible for the fate of the German nation and hence the supreme law
lord of the German people’.”
The
conception of Hitler as the Supreme Judge was supported by the defendant
Rothenberger.We quote:
“However,
something entirely different has occurred;with
the Fuehrer a man has risen within the German people who awakens the oldest,
long forgotten times.Here is a
man who in his position represents the ideal of the judge in its perfect
sense, and the German people elected him for their judge—first of all,
of course, as ‘judge’ over their fate in general, but also as ‘supreme
magistrate and judge’.”
In
the same document the defendant Rothenberger expounded the National Socialist
theory of judicial independence.He
said:
“Upon
the fact that the judge can use his own discretion is founded the magic
of the word ‘judge’.”
He
asserted that “every private and Party official must abstain from all interference
or influence upon the judgment”, but this statement appears to be mere
window-dressing, for after his assertion that a judge “must judge like
the Fuehrer”, he said:
“In
order to guarantee this, a direct liaison officer without any intermediate
agency must be established between the Fuehrer and the German judge, that
is, also in the form of a judge, the supreme judge in Germany, the ‘Judge
of the Fuehrer’.He is to convey
to the German judge the will of the Fuehrer by authentic explanation of
the laws and regulations.At the
same time he must upon the request of the judge give binding information
in current trials concerning fundamental political, economic, or legal
problems which cannot be surveyed by the individual judge.”
Thus
it becomes clear that the Nazi theory of the judicial independence was
based upon the supreme independence of the Fuehrer, which was to be channelized
through the proposed liaison officer from Fuehrer to judge.
On
13 November 1934, Goering, in an address before the Academy for German
Law, expressed similar sentiments concerning the position of Hitler.
“Gentlemen,
for the German nation this matter was settled by the words of the judge
in this hour, the Fuehrer, who stated that in this hour of uttermost danger
he alone, the Fuehrer elected by the people, was the supreme and only judge
of the German nation.”
The
defendant Schlegelberger, on 10 March 1936, said:
“It
should be emphasized, however, that in the sphere of the law, also, it
is the Fuehrer and he alone who sets the pace of development.”
To
the same effect we quote Reich Minister of Justice Dr. Thierack, who, on
5 January 1943, said:
“So
also with as the conviction has grown in these ten years in which the Fuehrer
has led the German people that the Fuehrer is the Chief Justice and the
Supreme Judge of the German people.”
On17
February 1943 the defendant Under-Secretary Dr. Rothenberger summed up
his legal philosophy with the words:
“The
judge is on principle bound by the law.The
laws are the orders of the Fuehrer.”
As
will be seen, the foregoing pronouncements by the leaders in the field
of Nazi jurisprudence were not mere idle theories.Hitler
did, in fact, exercise the right assumed by him to act as Supreme Judge,
and in that capacity in many instances he controlled the decision of the
individual criminal cases.
The
evidence demonstrates that Hitler and his top-ranking associates were by
no means content with the issuance of general directives for the guidance
of the judicial process.They tenaciously
insisted upon the right to interfere in individual criminal sentences.In
discussing the right to refuse confirmation of sentences imposed by criminal
courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr,
Lammers, Chief of the Reich Chancellery, as follows:
“When
the Fuehrer has expressly requested the right of direct interference over
all formal legal provisions, this is emphasizing the very importance of
the modification of a judicial sentence.”'
The
Ministry of Justice was acutely conscious of the interference by Hitler
in the administration of criminal law.On
10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as
follows:
“It
has come to my knowledge that just recently a number of sentences passed
have roused the strong disapproval of the Fuehrer.I
do not know exactly which sentences are concerned, but I have ascertained
for myself that now and then sentences are pronounced, which are quite
untenable.In such cases I shall
act with the utmost energy and decision.It
is, however, of vital importance for justice and its standing in the Reich,
that the head of the Ministry of Justice should know to which sentences
the Fuehrer objects, . . . .”
On
the same date Schlegelberger wrote to Hitler in part as follows:
“In
the course of the verdicts pronounced daily there are still judgments which
do not entirely comply with the necessary requirements.In
such cases I will take the necessary steps . . . .Apart
from this it is desirable to educate the judges more and more to a correct
way of thinking, conscious of the national destiny.For
this purpose it would be invaluable, if you, my Fuehrer, could let me know
if a verdict does not meet with your approval.The
judges are responsible to you, my Fuehrer; they are conscious of this responsibility
and are firmly resolved to discharge their duties accordingly.Heil,
my Fuehrer!”
Hitler
not only complied with the foregoing request, but proceeded beyond it.Upon
his personal orders persons who been sentenced to prison terms were turned
over to the Gestapo for execution.We
quote briefly from the testimony of Dr. Hans Gramm, who for many years
was personal referent to the defendant Schlegelberger, and who testified
in his behalf.
“Q:Do
you know anything about transfers of condemned persons to the police, or
to the Gestapo?
A:I
know that it frequently occurred that Hitler gave orders to the police
to call for people who had been sentenced to prison terms.To
be sure, it was an order from Hitler directed to the police to the effect
that the police had to take such and such a man into their custody.Those
orders had rather short limits.As
a rule, there was only a time limit of 24 hours before execution by the
police, after which the police had to report that it had been executed.These
transfers, as far as I can remember, took place only during the war.”
This
procedure was well-known in the ministry of Justice.Gramm
was informed by the defendant Schlegelberger that the previous Reich Minister
Justice, Dr. Guertner, had protested to
Dr.
Lammers against this procedure and had received the reply:
“That
the courts could not stand up to the special requirements of the war, and
that therefore these transfers would have to continue.”
The
only net result of the protest was that “from that time on in every individual
case when such a transfer had been ordered, the Ministry of Justice was
informed about that.”
The
witness, Dr. Lammers, former Chief of the Reich Chancellery whose hostility
toward the prosecution, and evasiveness, were obvious, conceded that the
practice was continued under Schlegelberger, though Lammers stated that
Schlegelberger never agreed to it.
By
reference to case histories we will illustrate three different methods
by which Hitler, through the Ministry of Justice, imposed his will in disregard
of judicial proceedings.One Schlitt
had been sentenced to a prison term, as a result of which Schlegelberger
received a telephone call from Hitler protesting the sentence.In
response the defendant Schlegelberger on 24 March 1942 wrote in part as
follows:
“I
entirely agree with your demand, my Fuehrer, for very severe punishment
for crime, and I assure you that the judges honestly wish to comply with
your demand.Constant instructions
in order to strengthen them in this intention, and the increase of threats
of legal punishment, have resulted in a considerable decrease of the number
of sentences to which objections have been wade from this point of view,
out of a total annual number of more than 300,000.
I
shall continue to try to reduce this number still more, and if necessary,
I shall not shrink from personal measures, as before.
In
the criminal case against the building technician Ewald Schlitt from Wilhelmshaven,
I have applied through the Public Prosecutor for an extraordinary plea
for nullification against the sentence, at the Special Senate of the Reich
Court.I will inform you of the verdict
of the Special Senate immediately it has been given.”
On
6 May 1942, Schlegelberger informed Hitler that the ten year sentence against
Schlitt was “quashed within ten days and that Schlitt was sentenced to
death and executed at once”.
In
the case against Anton Scharff, the sentence of ten years penal servitude
had been imposed.Thereupon, on 25
May 1941,Bormann wrote to Dr. Lammers:
“The Fuehrer believes this sentence entirely incomprehensible * * *.The
Fuehrer requests that you inform State Secretary Schlegelberger again of
his point of view.”
On
28 June 19411 defendant Schlegelberger wrote Dr. Lammers:
“I
am very obliged to the Fuehrer for informing me, on my request, of his
conception of atonements of blackout crimes in reference to the sentence
of the Munich Special Court against Anton Scharff.I
shall re-instruct the presidents of the courts of appeal and the Chief
Public Prosecutors of this conception of the Fuehrer as soon as possible.”
As
a final illustration of a general practice, we refer to the case of the
Jew Luftgas, who had been sentenced to two and one-half years imprisonment
for hoarding eggs.On 25 October
1941 Lammers notified Schlegelberger: “The Fuehrer wishes that Luftgas
be sentenced to death”.On 29 October
1941 Schlegelberger wrote Lammers:“***I
have handed over to the Gestapo for the purpose of execution the Jew Marcus
Luftgas who had been sentenced to two and one-half years imprisonment ***”.
Although
Hilter’s personal intervention in criminal cases was a matter of common
occurrence, his chief control over the judiciary was exercised by the delegation
of his power to the Reich Minister of Justice, who, on 20 August 1942,
was expressly authorized “to deviate from any existing law”.
Among
those of the Ministry of Justice who joined in the constant pressure upon
the judges in favor of more severe or more discriminatory administration
of justice, we find Thierack,
Schlegelberger,
Klemm, Rothenberger, and Joel.Neither
the threat of removal nor the sporadic control of criminal justice in individual
cases was sufficient to satisfy the requirements of the Ministry of Justice.As
stated by the defendant Rothaug, “only during 1942, after Thierack took
over the Ministry, the ‘guidance’ of justice was begun.***There
was an attempt to guide the administration of justice uniformly from above.”
In
September 1942 Thierack commenced the systematic distribution to the German
judges of Richterbriefs.The first
letter to the judges under date of 1 October 1942 called their attention
to the fact that Hitler was the Supreme Judge and that “leadership and
judgeship have related characters”.We
quote:
“A
corps of judges like this will not slavishly use the crutches of law.It
will not anxiously search for support by the law, but, with a satisfaction
in its responsibility, it will find within the limits of the law the decision
which is the most satisfactory for the life of the community.”
In
the judges’ letters Thierack discussed particular decisions which had been
made in the various courts and which failed to conform to National Socialist
ideology.As an illustration of the
type of guidance which was furnished by the Ministry of Justice to the
German judiciary, we cite a few instances from the Richterbriefs:
A
letter to the judges of 1 October 1942 discusses a case decided in a district
court on 24 November 1941.A special
coffee ration had been distributed to the population of a certain town.A
number of Jews applied for the coffee ration but did not receive it, being
“excluded from the distribution per se”.The
food authorities imposed fines upon the Jews for making the unsuccessful
application.In 500 cases the Jews
appealed to the court and the judge informed the food authorities that
the imposition of a fine could not be upheld for legal reasons, one of
which was the statute of limitations.In
deciding favorably to the Jews, the court wrote a lengthy opinion stating
that the interpretation on the part of the food authorities was absolutely
incompatible with the established facts.We
quote, without comment, the discussion of the Reich Minister of Justice
concerning the manner in which the case was decided:
“The
ruling of the district court, in form and content matter, borders on embarrassing
a German administrative authority to the advantage of Jewry.The
judge should have asked himself the question:What
is the reaction of the Jew to this 20-page long ruling, which certifies
that he and the 500 other Jews are right and that he won over a German
authority, and does not devote one word to the reaction of our own people
to this insolent and arrogant conduct of the Jews.Even
if the judge was convinced that the food office had arrived at a wrong
judgment of the legal position, and if he could not make up his mind to
wait with his decision until the question, if necessary, was clarified
by the higher authorities, he should have chosen a form for his ruling
which under any circumstances avoided harming the prestige of the food
office and thus putting the Jew expressly in the right toward it.”
A
Richterbrief also discusses the case of a Jew who, after the “Aryanization
of his firm, attempted to get funds transferred to Holland without a permit.He
also attempted to conceal some of his assets.Concerning
this case the judges of Germany received the following “guidance”:
“The
court applies the same criteria for the award of punishment as it would
if it were dealing with a German fellow citizen as defendant.This
cannot be sanctioned. The Jew is the enemy of the German people, who has
plotted, stirred up, and prolonged this war.In
doing so, he has brought unspeakable misery upon our people.Not
only is he of different but he is also of inferior race.Justice,
which must not measure different matters by the same standard, demands
that just this racial aspect must be considered in the award of punishment.”
Space
does not permit the citation of other instances of this form of perverted
political guidance of the courts.Notwithstanding
solemn protestations on the part of the Minister that the interdependence
of the judge was not to be affected, the evidence satisfies us beyond a
reasonable doubt that the purpose of the judicial guidance was sinister
and was known to be such by the Ministry of Justice and by the judges who
received the directions.If the letters
had been written in good faith with the honest purpose of aiding independent
judges in the performance of their duties, there would have been no occasion
for the carefully guarded secrecy with which the letters were distributed.A
letter of 17 November 1942 instructs the judges that the letters are to
be “carefully locked up to avoid that they get into the hands of unauthorized
persons.The receivers are subject
to official secrecy as far as the contents of the judges’ letters are concerned”.
In
a letter of 17 November 1942 Thierack instructs the judges that “in cases
where judges and prosecutors are suspected of political unreliability they
are to be excluded in a suitable manner from the list of subscribers to
the judges’ letters.”
Not
being content with regimenting the judges and Chief Prosecutors and making
them subservient to the National Socialist administration of justice, Dr.
Thierack next took up the regimentation of the lawyers.On
11 March 1943 he wrote to the various judges and prosecutors announcing
the proposed distribution of confidential lawyers’ letters.An
examination of these letters convinced the Tribunal that the actual, though
undeclared purpose, was to suggest to defense counsel that they avoid any
criticism of National Socialist justice and refrain from too much ardor
in the defense of persons charged with political crimes.
Not
only did Thierack exert direct influence upon the judges, but he employed
as his representative the most sinister, brutal and bloody judge in the
entire German judicial system.In
a letter to Freisler, President of the People's Court, Thierack said that
the judgment of the People's Court must be “in harmony with the leadership
of the State”.He urges Freisler
to have every charge submitted to him and to recognize the cases in which
it was necessary “in confidential and convincing discussion with the judge
competent for the verdict to emphasize what is necessary from the point
of view of the State”. He continues:
“As a general rule, the
judge of the People’s Court must get used to regarding the ideas and intentions
of the State leadership as the primary factor and the individual fate which
depends on him as only a secondary factor.”
He continues:
“I will try to illustrate
this with individual cases:
1. If a Jew—and a leading
Jew at that—is charged with high treason—even if he is only an accomplice
therein—, he has behind him the hate and the will of Jewry to exterminate
the German people. As a rule this will therefore be high treason
and must be punished by the death penalty.”
He concludes with the following admonition to Freisler,
which appears to have been wholly unnecessary:
“In case you should ever
be in doubt as to which line to follow or which political necessities to
take into consideration, please address yourself to me in all confidence.”
It will be recalled that
on 26 April 1942 Hitler stated that he would remove from office “those
judges who evidently do not understand the demand of the hour.” The effect
of this pronouncement upon such judges as still retained ideals of judicial
independence can scarcely be over-estimated. The defendant Rothenberger
stated that it was “absolutely crushing”.
In a private letter to
his brother, the defendant Oeschey expressed his view of the situation
created by Hitler's interference in the following words:
“After the well-known
Fuehrer speech things developed in a frightful manner. I was never a supporter
of the stubborn doctrine of the independence of the judge which granted
the judge within the frame of the law the position of a public servant,
only subordinated to his conscience but otherwise ‘neutral’, that is, politically
completely independent. * * * Now it is an absurdity to tell the judge
in an individual case which is subject to his decision how he has to decide.
Such a system would make the judge superfluous; such things have now com
to pass. Naturally it was not done in an open manner; but even the most
camouflaged form could not hide the fact that a directive was to be given.
Thereby the office of judge is naturally abolished and the procedures in
a trial become a farce. I will not discuss who bears the guilt of such
a development.”
The threat alone of the removal was sufficient
to impair the independence of the judges, but the evidence discloses that
measures were actually carried out for the removal or transfer of judges
who proved unsatisfactory from the Party standpoint.On 29 March 1941 Schlegelberger
received a letter from the Chief of the Reich Chancellery protesting against
the sentence which had been imposed against the Polish farmhand Wojciesk.
The court at Luenburg had recognized some extenuating circumstances in
the case.
Schlegelberger was advised as follows:
“The Fuehrer urges you
to take immediately the steps necessary to preclude repetition in other
courts of the view of the Luenburg court.”
The final degradation
of the judiciary is disclosed in a secret communication by Ministerial
Director Letz of the Reich Ministry of Justice to Dr. Vollmer, also a Ministerial
Director in the Department. Not only were the judges “guided” and at times
coerced; they wore also spied upon. We quote:
“Moreover,
I know from documents, which the Minister produces from time to time out
of his private files, that the Security Service takes up special problems
of the administration of justice with thoroughness and makes summarized
situation reports about them.As
far as I am informed, a member of the Security Service is attached to each
judicial authority.This member is
obliged to give information under the seal of secrecy.This
procedure is secret and the person who gives the information is not named.In
this way we get, so to say, anonymous reports.Reasons
given for this procedure are of State political interest.As
long as the direct interests of the State security are concerned, nothing
can be said against it, especially in wartime.” In
view of the conclusive proof of the sinister influences which were in constant
interplay between Hitler, his Ministers, the Ministry of Justice, the Party,
the Gestapo, and the courts, we see no merit in the suggestion that Nazi
judges are entitled to the benefit of the Anglo-American doctrine of judicial
immunity.The doctrine that judges
are not personally liable for their judicial actions is based on the concept
of an independent judiciary administering impartial justice.Furthermore,
it has never prevented the prosecution of a judge for malfeasance in office.If
the evidence cited supra does not demonstrate the utter destruction of
judicial independence and impartiality, then we “never writ nor no man
ever” proved.The function of the
Nazi courts was judicial only in a limited sense.They
more closely resembled administrative tribunals acting under directives
from above in a quasi-judicial manner. In
operation the Nazi system forced the judges into one of two categories.In
the first we find the judges who still retained ideals of judicial independence
and who administered justice with a measure of impartiality and moderation.Judgments
which they rendered were act aside by the employment of the nullity plan
and the extraordinary objection.The
defendants they sentenced were frequently transferred to the Gestapo on
completion of prison terms and were then shot or sent to concentration
camps.The judges themselves were
threatened and criticized and sometimes removed from office.To
this group the defendant Ouhorst belonged.In
the other category were the judges who with fanatical zeal enforced the
will of the Party with such severity that they experienced no difficulties
and little interference from Party officials.To
this group the defendants Rothaug and Oeschey belonged. The
record contains innumerable acts of persecution of individual Poles and
Jews, but to consider these cases as isolated and unrelated instances of
perversion of justice would be to overlook the very essence of the offense
charged in the indictment.The defendants
are not now charged with conspiracy as a separate and substantive offense,
but it is alleged that they participated in carrying out a governmental
plan and program for the persecution and extermination of Jews and Poles,
a plan which transcended territorial boundaries as well as the bounds of
human decency.Some of the defendants
took part in the enactment of laws and decrees the purpose of which was
the extermination of Poles and Jews in Germany and throughout Europe.Others,
in executive positions, actively participated in the enforcement of those
laws and in atrocities, illegal even under German law, in furtherance of
the declared national purpose.Others,
as judges, distorted and then applied the laws and decrees against Poles
and Jews as such in disregard of every principle of judicial behavior.The
over acts of the several defendants must be seen and understood as deliberate
contributions toward the effectuation of the policy of the Party and State.The
discriminatory laws themselves formed the subject matter of war crimes
and crimes against humanity with which the defendants are charged.The
material facts which must be proved in any case are:(1)
the fact of the great pattern or plan of racial persecution and extermination;
and (2) specific conduct of the individual defendant in furtherance of
the plan.This is but an application
of general concepts of criminal law.The
person who persuades another to commit murder, the person who furnishes
the lethal weapon for the purpose of its commission, and the person who
pulls the trigger are all principals or accessories to the crime. We
turn to the national pattern or plan for racial extermination. Fundamentally,
the program was one for the actual extermination of Jews and Poles, either
by means of killing or by confinement in concentration camps, which merely
made death slower and more painful.But
lesser forms of racial persecution were universally practiced by governmental
authority and constituted an integral part in the general policy of the
Reich.We have already noted the
decree by which Jews were excluded from the legal profession.Intermarriage
between Jews and persons of German blood was prohibited.Sexual
intercourse between Jews and German nationals was punished with extreme
severity by the courts.By other
decrees Jews were almost completely expelled from public service, from
educational institutions, and from many business enterprises.Upon
the death of a Jew his property was confiscated.Under
the provisions for confiscation under the 11th amendment to the German
Citizenship Law, supra, the decision as to confiscation of the property
of living Jews was left to the Chief of the Security Police and the SD.The
law against Poles and Jews, cited supra (4 December 1941), was rigorously
enforced.Poles and Jews convicted
of specific crimes were subjected to different types of punishment from
that imposed upon Germans who had committed the same crimes.Their
rights as defendants in court were severely circumscribed.Courts
were empowered to impose death sentences on Poles and Jews even where such
punishment was not prescribed by law, if the evidence showed “particularly
objectionable motives”.And, finally,
the police were given carte blanche to punish all “criminal” acts committed
by Jews without any employment of the judicial process.From
the great mass of evidence we can only cite a few illustrations of the
character and operation of the program. On
30 January 1939, in an address before the Reichstag, Hitler, who was at
that very time perfecting his plot for aggressive war, said: “If
the international Jewish financiers within and without Europe succeed in
plunging the nations once more into a world war, then the result will not
be the Bolshevization of the world and thereby the victory of Jewry, but
the obliteration of the Jewish race in Europe.” We
quote from the writings of Alfred Rosenberg (since hanged), “High Priest
of the Nazi Racial Theory and Herald of the Master Race”: “A
new faith is arising today:the myth
of the blood, the faith to defend with the blood the divine essence of
man.The faith, embodied in clearest
knowledge, that the Nordic blood represents that mysterium which has replaced
and overcome the old sacraments.”(Rosenberg,
Der Mythus des 20.Jahrhunderts,
(Munich, 1935), page 114 (1st ed., 1930)).(National
Socialism, page 31, Department of State Bulletin). The
Rosenberg philosophy strongly supported the program of the Nazi party,
which reads as follows: “None
but members of the nation (Volk) may be citizens of the State.None
but those of German blood, whatever their creed, may be members of the
nation.No Jew, therefore, may be
a member of the nation.” It
was to implement this program that the disciminatory [sic] laws against
Poles and Jews were enacted as herinabove set forth. A
directive of the Reich Ministry of Justice, signed by Freisler, dated 7
August 1942, addressed to prosecutors and judges, sets forth the broad
general purposes which were to govern the application of the law against
Poles and Jews and the specific application of that law in the trial of
cases.We quote: “The
penal law ordinance of 4 December 1941 concerning Poles, was intended not
only to serve as a criminal law against Poles and Jews but beyond that,
also to provide general principles for the German administration of law
to adopt in all its judicial dealings with Poles and Jews, irrespective
of the role which the Poles and Jews play in the individual proceedings.The
regulations of Article IX for instance, according to which Poles and Jews
are not to be sworn in, apply to proceedings against Germans as well.*
* * “1.
Proceedings against Germans should be carried on whenever possible without
calling Poles and Jews as witnesses. If, however, such a testimony cannot
be evaded, the Pole or Jew must not appear as a witness against the German
during the main trial.He must always
be interrogated by a judge who has been appointed or requested to do so,
* * *. “2.Evidence
given by Poles and Jews during proceedings against Germans must be received
with the utmost caution especially in those cases where other evidence
is lacking.” On
13 October 1942 the Reich Minister of Justice Thierack wrote to Reichsleiter
Bormann, in part as follows: “With
a view to freeing the German people of Poles, Russians, Jews, and gypsies
and with a view to making the Eastern territories which have been incorporated
into the Reich available for settlements for German nationals, I intend
to turn over criminal proceedings against Poles, Russians, Jews, and gypsies
to the Reichsfuehrer SS.In so doing
I base myself on the principle that the administration of justice can only
make a small contribution to the extermination of members of these peoples.The
Justice Administration undoubtedly pronounces very severe sentences on
such persons, but that is not enough to constitute any material contribution
towards the realization of the above-mentioned aim.” With
few exceptions Jews were wholly excluded from the administration of justice.In
a speech before the NSDAP Congress on 14 September 1934, Hans Frank stated: “It
is unbearable to us to permit Jews to play any role whatsoever in the German
Administration of Justice. * * *It
will, therefore, be our firm aim to exclude Jews increasingly from the
administration of the law as time goes on.” On
another occasion Frank, as President of the Academy for German Law, directed:For
all future time it will be impossible that Jews will act in the name of
German law. * * *”. In
an order reminiscent of the “burning of the books” in medieval days, Frank
also directed that the works of Jewish authors should be removed from all
public or study libraries whenever possible. On
5 April 1933, the defendant, Barnickel made an entry in his diary: “Today
it is said in the newspaper that in Berlin there are about 3,500 attorneys
and more than half of them are Jewish.Only
35 of them are to be admitted as-lawyers. * * *To
exclude these Jewish attorneys from one day to the next means terrible
brutality.” The
defense witness, Fritz Walentin, stated that in general all non-Aryan judges
were removed from the administration of penal justice very soon after 30
January 1933.The evacuation of Jews
to the East for extermination was in full swing at least as early as November
1941, and continued through the war years thereafter.As
an illustration of the nature of this program as carried out throughout
the Reich, we cite the report of the Secret State Police Main Office, Nuremberg-Furth;
Branch Office Wurzburg.This report
refers to the deportation from, a comparatively small area around the city
of Wurzburg and shows evacuations of Jews to the East in the following
numbers:On 27 July 1941, 202 persons;
on 24 March 1942, 208 persons; on 25 April 1942, 850 persons; on 10 September
1942 (to Theresienstadt) 177 persons; on 23 September 1942 (to Theresienstadt),
562 persons; on 17 June 1943 (to Theresienstadt), seven persons; on 17
June 1943, 57 Jews were evacuated to the East.The
report continues:“With this last
transport, all the Jews who had to be evacuated according to instructions
issued have left Main Franken.”The
report shows that the total number of 2,063 Jews were evacuated from the
Main Franken area alone.The furniture,
clothing, and laundry items left by the Jews were given to the Finance
Offices of Main Franken and turned into cash by them. Even
before transfers to the Gestapo had been substituted for judicial procedure
the position of a Pole or a Jew who was tried by the courts was not a happy,
one.The right of self defense on
the part of a Pole was specifically limited.Poles
and Jews could not challenge a German judge for prejudice.Other
limitations upon the right of appeal and the like are set forth, supra
(Law Against Poles and Jews, 4 December 1941). On
22 July 1942 Reich Minister Goebbels stated that “it was an untenable situation
that still today a Jew could protest against the charge of the president
of the police, who was an old Party member and a high SS leader.The
Jew should not be granted any legal remedy at all nor any right of protest.” The
defendant Lautz testified that according to the provisions of a decree
which antedated the war and by reason of the general regulations of the
law in every case it had to be pointed out in the indictment if the person
was a Jew or of mixed race. On
23 January 1943 the Oberlandesgerichts President at Koenigsberg wrote to
the Minister of Justice concerning defense of Poles before tribunals in
incorporated Eastern territories. We
quote: “The
decree of 21 May 1942 states that in accordance with the order on penal
justice in Poland of 4 December 1941 attorneys are not (to) undertake the
defense of Polish persons before tribunals in the incorporated Eastern
territories.This decree has been
received with satisfaction by all the judges and prosecutors in the whole
of my district.” These
directives by the authorities in the Reich under Hitler were not mere idle
threats.The policies and laws were
rigorously enforced.We quote from
a sworn statement of former defendant Karl Engert as follows: “The
handing over to the Gestapo of Jews, Poles, and gypsies was not under my
supervision, but under that of Mr. Hecker, who worked under me in my division.However,
he was not responsible to me, but directly to the Minister Thierack.” Again,
he said: “About
12,000 inmates of the correction houses were assigned for transfer to the
Gestapo. * * *Out of the total 12,000,
my division assigned 3,000 for transfer in 1942.How
many Jews, Poles, and gypsies were assigned I do not know; that must be
in the statistics.” Reich
Minister Goebbels, in an address to the judges of the People’s Court, on
22 July 1942, stated that “if still more than 40,000 Jews, whom we considered
enemies of the State, could freely go about in Berlin, this was solely
due to the lack of sufficient means of transportation.Otherwise
the Jews would have been in the East long ago.” Between
9 and 11 November 1938, a pogrom was carried out against the Jews throughout
the Reich, and upon direct orders from Berlin.Defense
witness Peter Eiffe testified that he heard rumors of the proposed pogrom
on the night of 8 November and called at the Ministry of Propaganda where
he was told “somebody has let the cat out of the bag again.”During
the three-day period Jewish property was destroyed throughout the Reich
and thousands of Jews were arrested. In
Berlin the destruction of Jewish property was particularly great.To
cap the climax on 12 November 1938 Field Marshall Goering issued the following
decree: “Article
1.—All damage done due to the indignation of the people at the incitement
of international Jewry against National Socialist Germany carried out on
the 8, 9, and 10 November 1938, on Jewish enterprises and living quarters
is to be removed by the Jewish owners immediately. (RGB1. 1938 I. page
1581). “Article
II. —The costs of restoration are to be borne by the owner of the Jewish
business concerned * * *. “Section
2. —Insurance claims of Jews of German nationality will be confiscated
in favor of the Reich.” For
this purpose a fine of one billion marks wells imposed upon the Jews.The
witness Eiffe, who was an attorney in Berlin, acted in behalf of Frau Liebermann,
the widow of the internationally known artist, Max Liebermann.Frau
Liebermann was at that time eighty years old and the share of the fine
imposed upon her was 280,000 marks.Ultimately
orders. were issued for her deportation to East.She,
however, died, either from heart failure or poison, as she descended the
steps to be carried away. The
Roman Catholic chaplain at Amberg prison stated under oath that a large
proportion of the inmates of that prison were Poles who had been sentenced
under the “Poles Act”.Many of them
died from under-nourishment.They
were forced to eat potato peelings and hunt through the rubbish heaps for
eatable refuse.From this prison
“a-social elements” were picked out and sent in batches to the Mauthausen
concentration camp.All of the first
batch was said to have perished.Among
the prisoners were Jews who had been sentenced for race pollution. The
witness Hecker stated under oath that after Thierack’ s “doubtful decree”
concerning the transfer of Jews, Poles, and gypsies, prisoners in protective
custody, and a-social elements from the Justice prisons to the RSHA in
the autumn of 1942, the Jews as a whole were immediately handed over.The
work was carried out by Department V of the Ministry of Justice.Lists
were prepared monthly and sent to Minister Thierack through the chief of
the department. On
22 October 1942 a directive under the letterhead of the Reich Minister
of Justice was issued to various prosecuting officers in which it was stated
that “by agreement with the Reich Fuehrer SS, lawfully sentenced prisoners
confined in penal institutions will be transferred to the custody of the
Reich Leader SS.”Those designated
for transfer to the SS included “Jews, men and women, detained under arrest,
protective custody, or in the workhouse, * * * and Poles, residing in the
former Polish State territory on 1 September 1939, men and women, sentenced
to penal camps or subsequently turned over for penal execution, if sentence
is above three years, * * *.With
completion of the transfer to the police, the penal term is considered
interrupted.Transfer to the police
is to be reported to the penal authority and is cases of custody to the
superior executive authority, with the information that the interruption
of the penal term has been ordered by the Reich Ministry of Justice.”The
directive is signed “Dr. Crohne”. As
a crowning example of fanatical imbecility, we cite the following document
issued in April 1943, which was sent to the desk of the defendant Rothenberger
for his attention and was initialed by him. “The
Reich Minister of Justice “Information
for the Fuehrer 1943
No. “After
the birth of her child, a full-blooded Jewess sold her mother’s milk to
a pediatrician and concealed that she vas a Jewess.With
this milk babies of German blood were fed in a nursing home for children.The
accused will be charged with deception.The
buyers of the milk have suffered damage, for mother’s a milk from a Jewess
cannot be regarded as food for German children.The
impudent behavior of the accused is an insult as well.Relevant
charges, however, have not been applied for so that the parents, who are
unaware of the true facts, need not subsequently be worried. “I
shall discuss with the Reich Health Leader the racial-hygenic aspect of
the case. “Berlin,
April 1943.” The
witness Lammers, former Chief of the Reich Chancellery, testified as follows: “Q:*
* * Now, you answered Dr. Kubuschok that the subject of sterilization of
half-Jews was an alternative to their being moved to the East and that
it had been raised by half-Jews themselves in 1942 or prior thereto. “A:Yes.I
said so.” He
testified further that the half-Jews were not subject to any compulsion.He
was apparently of the opinion that a person was a free agent if he had
a choice between sterilization and deportation to a concentration camp. While
the part played by the Ministry of Justice in the extermination of Poles
and Jews was small compared to the mass extermination of millions by the
SS and Gestapo in concentration camps, nevertheless the courts contributed
greatly to the “final solution” of the problem.From
a secret report from the office of the Reich Minister of Justice to the
judges and prosecutors, including the defendant Lautz, it appears that
189 persons were sentenced under the law for the protection of German blood
and honor in 1941, and 109 in 1942.In
the year 1942, 61,836 persons were convicted under the law against Poles
and Jews.This figure includes persons
convicted in the incorporated Eastern territories, and also convictions
for crimes committed in “other districts of the German Reich by Jews and
Poles who on 1 September 1939 had their residence or permanent place of
abode in territory of the former Polish State”.These
figures, of course, do not include any cases in which Jews were convicted
of other crimes in which the law of 4 December 1943 was not involved. The
defendants contend that they were unaware of the atrocities committed by
the Gestapo and in concentration camps.This
contention is subject to serious question.Dr.
Behl testified that he considered it impossible that anyone, particularly
in Berlin, should have been ignorant of the brutalities of the SS and the
Gestapo.He said: “In Berlin it would
have been hardly possible for anybody not to know about it, and certainly
not for anybody who was a lawyer and who dealt with the administration
of justice.”He testified specifically
that he could not imagine that any person in the Ministry of Justice or
in the Party Chancellery or as a practicing attorney or a judge of a special
(or) Peoples Court could be in ignorance of the facts of common knowledge
concerning the treatment of prisoners in concentration camps.It
has been repeatedly urged by and in behalf of various defendants that they
remained in the Ministry of Justice because they feared that if they should
retire, control of the matters pertaining to the Ministry of Justice would
be transferred to Himmler and the Gestapo.In
short, they claim that they were withstanding the evil encroachments of
Himmler upon the Justice Administration, and yet we are asked to believe
that they were ignorant of the character of the forces which they say they
were opposing.We concur in the
finding of the first Tribunal in the case of United States et al. vs. Goering,
et al., concerning the use of concentration camps.We
quote: “Their
original purpose was to imprison without trial all those persons who were
opposed to the Government, or who were in any way obnoxious to German authority.With
the aid of a secret police force, this practice was widely extended, and
in course of time concentration camps became places of organized and systematic
murder, where millions of people were destroyed. * * * “A
certain number of the concentration camps were equipped with gas chambers
for the wholesale destruction of the inmates, and with furnaces for the
burning of the bodies.Some of them
were in fact used for the extermination of Jews as part of the ‘final solution’
of the Jewish problem. * * * “In
Poland and the Soviet Union these crimes were part of a plan to get rid
of whole native populations by exclusion and annihilation, in order that
their territory could be used for colonization by Germans.Hitler
had written in ‘Mein Kampf’ on these lines, and the plan was clearly stated
by Himmler in July 1942, when he wrote: “It
is not our task to Germanize the East in the old sense, that is, to teach
the people there the German language and the German law, but to see to
it that only people of purely Germanic blood live in the East.”(IT Judgment,
pages, 234, 235, 237). A
large proportion of all of the Jews in Germany were transported to the
East.Millions of persons disappeared
from Germany and the occupied territory without a trace.They
were herded into concentration camps within and within [sic] Germany.Thousands
of soldiers and members of the Gestapo and the SS must have been instrumental
in the processes of deportation, torture, and extermination.The
mere task of disposal of mountainous piles of corpses, (evidence of which
we have seen), became a serious problem and the subject of disagreement
between the various organizations involved.The
thousands of Germans who took part in the atrocities must have returned
from time to time to their homes in the Reich.The
atrocities were of a magnitude unprecedented in the history of the world.Are
we to believe that no whisper reached the ears of the public or of those
officials who were most concerned?Did
the defendants think that the nationwide pogrom of November 1938, officially
directed from Berlin, and Hitler's announcement to the Reichstag threatening
the obliteration of the Jewish race in Europe were unrelated?At
least they cannot plead ignorance concerning the decrees which were published
in their official organ “The Reichsgesetzblatt”.Therefore,
they knew that Jews were to be punished by the police in Germany and in
Bohemia and Moravia.They knew that
the property of Jews was confiscated on death of the owner.They
knew that the law against Poles and Jews had been extended to occupied
territories and they knew that the Chief of the Security Police was the
official authorized to determine whether or not Jewish property was subject
to confiscation.They could hardly
be ignorant of the fact that the infamous law against Poles and Jews of
4 December 1941 directed the Reich Minister of Justice himself, together
with the Minister of the Interior, to issue legal and administrative regulations
for “implementation of the decree”.They
read “The Stuermer”.They listened
to the radio.They received and
sent directives.They heard and
delivered lectures.This Tribunal
is not so gullible as to believe these defendants so stupid that they did
not know what was going on. One man can keep a secret, two men may, but
thousands never. The
evidence conclusively establishes the adoption and application of systematic
governmentally-organized and approved procedures amounting to atrocities
and offenses of the kind made punishable by C.C. Law 10 and committed against
“populations” and amounting to persecution on racial grounds.These
procedures when carried out in occupied territory constituted war crimes
and crimes against humanity.When
enforced in the Alt Reich against German nationals they constituted crimes
against humanity. The
pattern and plan of racial persecution has been made clear.General
knowledge of the broad outlines thereof, in all its immonsity, has been
brought home to the defendants.The
remaining question is whether or not the evidence proves beyond a reasonable
doubt in the case of the individual defendants that they each consciously
participated in the plan or took a consenting part therein. Oswald
Rothaug was born 17 May 1897.His
education was interrupted from 1916 to 1918 while he was in the army.He
passed the final law examination in 1922 and the State examination for
the higher administration of justice in 1925. He
joined the NSDAP in the spring of 1938 and the membership was made effective
from May 1937. Rothaug
was a member of the National Socialist Jurists’ League and the National
Socialist Public Welfare Association.In
his affidavit he denies belonging to the SD.However,
the testimony of Elkar and his own admission on the witness stand establishes
that he was an “honorary collaborator” for the SD on legal matters. In
December 1925 he began his career as a jurist, first as an assistant to
an attorney in Ansbach and later as assistant judge at various courts.In
1927 he became Public Prosecutor in Hof in charge of criminal cases.From
1929 to 1933 he officiated as Counsellor at the Local Court in Nuernberg.In
June 1933 he became Senior Public Prosecutor in the Public Prosecution
in Nuernberg.Here he was the official
in charge of general criminal cases, assistant of the chief public prosecutor
handling examination of suspensions of proceedings and of petitions for
pardon.From November to April 1937
he officiated as Counsellor of the District Court in Schweinfurt.He
was legal advisor in the Civil and Penal Chamber and at the Court of Assizes,
as well as Chairman of the lay assessor’s court.From
April 1937 to May 1943 he was Director of the District Court in Nuernberg,
except for a period in August and September of 1939 when he was in the
Wehrmacht.During this time he was
Chairman of the Court of Assizes, of a penal chamber, and of the special
court. From
May 1943 to April 1945 he was Public Prosecutor of the Public Prosecution
at the People’s Court in Berlin.Here,
as head of Department I he handled for a time cases of high treason in
the Southern Reich territory, and from January 1944, cases concerning the
undermining of public morale in the Reich territory. Crimes
charged in the indictment, as heretofore stated in this opinion, have been
established by the evidence in this case.The
questions, therefore, to be determined as to the defendant Rothaug are:first,
whether he had knowledge of any crime so established and, second, whether
he was a participant in or took a consenting part in its commission. Rothaug’s
sources of knowledge have, with those of all the defendants, already been
pointed out.But Rothaug’s knowledge
was not limited to those general sources.Rothaug
was an official of considerable importance in Nuernberg.He
had many political and official contacts; among these---he was the friend
of Haberkern, Gau Inspector of the Gau Franconia; he was the friend and
associate of Oeschy, Gau Legal Advisor for the Gau Franconia; and was himself
Gauwalter of the Lawyer’s League.He
was the “honorary collaborator” for the SD.According
to the witness Elkar, the agent of the SD for Nuernberg and vicinity, this
position was more important than that of a confidential agent, and an honorary
collaborator was active in SD affairs.He
testifies that Rothaug took the SD oath of secrecy. Whether
Rothaug knew of all the aspects of the crimes alleged, we need not determine.He
knew of crimes as established by the evidence, and it is the function of
this Tribunal to determine his connection, if any, therewith. The
defendant is charged under Counts two, three, and four of the indictment.Under
Count four he is charged with being a member of the Party Leadership Corps.He
is not charged with membership in the SD. The
proof as to Count four establishes that he was Gauwalter of the Lawyers’
League.The Lawyers’ League was a
formation of the Party and not a part of the Leadership Corps as determined
by the International Military Tribunal in the case against Goering, et
al. As
to Counts two and four of the indictment, from the evidence submitted,
the Tribunal finds the defendant not guilty.The
question of the defendant’s guilt as to Count three of the indictment remains
to be determined. The
evidence as to the character and activities of the defendant is voluminous.We
shall confine ourselves to the question as to whether or not he took a
consenting part in the plan for the persecution, oppression, and extermination
of Poles and Jews. His
attitude of virulent hostility towards these races is proved from many
Sources and is in no wise shaken by the affidavits he has submitted on
his own behalf. The
evidence in this regard comes from his own associates---the judges, prosecutors,
defense counsel, medical experts, and others with whom he dealt.Among,
but not limited to these, we cite the evidence of Doebig, Ferber, Bauer,
Derfmueller, Elkar, Engert, Greben(sp?), and Markl.In
particular the testimony of Father Schosser is important.He
testified as to many statements made by the defendant Rothaug during the
trial of his own case, showing the defendant’s hostility to Poles and his
general attitude toward them.He
stated that concerning the Poles in general, Rothaug expressed himself
in the following manner: “If
he (Rothaug) had his way, then no Pole would be buried in a German cemetery,
and then he went on to make the remark which everybody heard in that courtroom---that
he would get up from his coffin if near to him there was a Pole being buried.Rothaug
himself had to laugh because of this mean joke, and he went on to say,
‘You have to be able to hate, because according to the Bible, God is a
hating God.’” The
testimony of Elkar is even more significant.He
testified that Rothaug believed in severe measures against foreigners and
particularly against Poles and Jews, whom he felt should be treated differently
from German transgressors.Rothaug
felt there was a gap in the law in this respect.He
states that Rothaug asserted that in his own court he achieved this discrimination
by interpretation of existing laws but that other courts failed to do so.Such
a gap, according to Rothaug, should be closed by singling out Poles and
Jews for special treatment.Elkar
testifies that recommendations were made by the defendant Rothaug, through
the witness, to higher levels and that the subsequent decree of 1941 against
Poles and Jews conformed to Rothaug’s ideas as expressed and forwarded
by the witness Elkar through SD channels to the RSHA. This
animosity of the defendant to these races is further established by documents
in this case which show that his discrimination against these races encompassed
others who he felt lacked the necessary harshness to carry out the policy
of the Nazi State and Party to these people. In
this connection the communication of Oeschey to Deputy Gauleiter Holz,
concerning Doobig, is worthy of note.In
this communication many charges were made against Doobig for his failure
to take action against officials under him who had failed to carry out
the Nazi programs against Jews and Poles.Oeschey
testified that these charges were copied from a letter submitted to him
by the defendant Rothaug and that the defendant assumed responsibility
for these charges.Rothaug denies
that he assumed responsibility or had anything do with the charges made,
except in one immaterial instance.However,
in the light of the circumstances themselves, the Tribunal accepts Oeschey’s
testimony in this regard, particularly in view of the unimpeached affidavit
of Oeschey’s secretary to the effect that these charges were copied directly
by her from a letter of Rothaug’s. Documentary
proof of Rothaug’s attitude in this respect is further found in the records
of cases tried by him which will hereafter be considered. The
third case to be considered is that of Leo Katzenberger.The
record in this case shows that Lehman Israel Katzenberger, commonly called
Leo Katzenberger, was a merchant and head of the Jewish community in Nuernberg;that
he was “sentenced to death for an offense under paragraph two legally identical
with an offense under paragraph four of the Decree Against Public Enemies
in connection with the offense of racial pollution”.The
trial was held in the public session on 13 March 1942.Katzenberger’s
age at that time was over 68 years. The
offense of racial pollution with which he was charged comes under Article
2 of the Law for the Protection of German Blood and Honor.This
section reads as follows: “Sexual
intercourse (except in marriage) between Jews and German nationals of German
or German related blood is forbidden.” The
applicable sections of the Decree Against Public Enemies reads as follows: “Section 2
“Crimes During Air Raids “Whoever commits a crime
or offense against the body, life, or property, taking advantage of air
raid protection measures, is punishable by hard labor of up to fifteen
(15) years or for life, and in particularly severe cases, punishable by
death.
* * * * * * * * *
“Section 4
“Exploitation of the State of War a Reason
Cause for More Severe Punishment “Whoever commits a criminal
act exploiting the extraordinary conditions caused by war is punishable
beyond the regular punishment limits with hard labor of up to fifteen (15)
years or for life, or is punishable by death if the sound common sense
of the people requires it on account of the crime being particularly despicable.”
The evidence in this case,
aside from the record, is based primarily upon the testimony of Hans Groben,
the investigating judge who first investigated the case; Hermann Markl,
the official who prosecuted the ease; Karl Ferber, who was one of the associate
judges in the trial; Heinz Hoffman, who was the other associate judge in
the trial; Armin Bauer, who was medical expert in the trial; Georg Engert,
who dealt with clemency proceedings; and Otto Ankenbrand, another investigating
judge.
The salient facts established in connection with
this case are in substance as follows: Some time in the first half of the
year 1941 the witness Groben issued a warrant of arrest against Katzenberger,
who was accused of having had intimate relations with the photographer
Seiler. According to the results of the police inquiry, actual intercourse
had not been proved, and Katzenberger denied the charge. Upon Groben’s
advice, Katzenberger agreed that he would not move against the warrant
of arrest at that time but would wait the results of further investigation.
These further investigations were very lengthy, although Groben pressed
the public prosecutor for speed. The police, in spite of their efforts,
were unable to get further material evidence, and it became apparent that
the way to clarify the situation was to take take the sworn statement of
Seiler, and this was done.
In her sworn statement
she said that Katzenberger had known both her and her family for many years
before she had come to Nuernberg and that his relationship to her was a
friendly and fatherly one and denied the charge of sexual intercourse.
The evidence also showed that Katzenberger had given Seiler financial assistance
on various occasions and that he was administrator of the property where
Seiler lived, which was owned by a firm of which he was a partner. Upon
Seiler’s statement, Groben informed Dr. Herz, counsel for Katzenberger,
of the result and suggested that it was the right time to move against
the warrant of arrest.
When this was done, Rothaug
learned of it and ordered that the Katzenberger case be transferred from
the Criminal Division Court to the Special Court. The first indictment
was withdrawn, and another indictment was prepared for the Special Court.
The witness Markl states
that Rothaug dominated the prosecution, especially through his close friendship
with the Senior Public Prosecutor, Dr. Schroeder, who was the superior
of Markl.
The
indictment before the Special Court was prepared according to the orders
of Rothaug, and Katzenberger was not charged only with race defilement
in this new indictment, but there was also an additional charge under the
Decree Against Public Enemies, which made the death sentence permissible.The
new indictment also joined the Seiler woman on a charge of perjury.The
effect of joining Seiler in the charge against Katzenberger was to preclude
her from being a witness for the defendant, and such a combination was
contrary to established practice.Rothaug
at this time told Markl that there was sufficient proof of sexual intercourse
between Seiler and Katzenberger to convince him, and that he was prepared
to condemn Katzenberger to death.Markl
informed the Ministry of Justice of Rothaug’s intended procedure against
Katzenberger and was told that if Rothaug so desired it, the procedure
would be approved. Prior
to the trial, the defendant Rothaug called on Dr. Armin Baur, medical Counsellor
for the Nuernberg Court, as the medical expert for the Katzenberger case.He
stated to Bauer that he wanted to pronounce a death sentence and that it
was, therefore, necessary for the defendant to be examined.This
examination, Rothaug stated, was a mere formality since Katzenberger “would
be beheaded anyhow”.To the doctor’s
reproach that Katzenberger was old and it seemed questionable whether he
could be charged with race defilement, Rothaug stated: “It
is sufficient for me that the swine said that a German girl had sat upon
his lap.” The
trial itself, as testified to by many witnesses, was in the nature of a
political demonstration.High Party
officials attended, including Reich Inspector Oexle.Part
of the group of Party officials appeared in uniform. During
the proceedings, Rothaug tried with all his power to encourage the witnesses
to make incriminating statements against the defendants.Both
defendants were hardly heard by the court.Their
statements were passed over or disregarded.During
the course of the trial, Rothaug took the opportunity to give the audience
a National Socialist lecture on the subject of the Jewish question.The
witnesses found great difficulty in giving testimony because of the way
in which the trial was conducted, since Rothaug constantly anticipated
the evaluation of the facts and gave expression to his own opinions. Because
of the way the trial was conducted, it was apparent that the sentence which
would be imposed was the death sentence. After
the introduction of evidence was concluded, a recess was taken, during
which time the prosecutor Markl appeared in the consultation room and Rothaug
made it clear to him that he expected
the prosecution to ask for a death sentence against Katzenberger and a
term in the penitentiary for Seiler.Rothaug
at this time also gave him suggestions as to what he should include in
his arguments. The
reasons for the verdict were drawn up by Ferber.They
were based upon the notes of Rothaug as to what should be included.Considerable
space is given to Katzenberger’s ancestry and the fact that he was of the
Mosaic faith, although that fact was admitted by Katzenberger.Much
space is also given to the relationship between Katzenberger and Seiler.That
there was no proof of actual sexual intercourse is clear from the opinion.The
proof seems to have gone little farther than the fact that the defendant
Seiler had at times sat upon Katzenberger’s lap and that he had kissed
her, which facts were also admitted.Many
assumptions were made in the reasons stated which obviously are not borne
out by the evidence.The court even
goes back to the time prior to the passing of the Law for the Protection
of German Blood and Honor, during which Katzenberger had known Seiler.It
draws the conclusion apparently without evidence, that their relationship
for a period of approximately ten years, had always been of a sexual nature.The
opinion undertakes to bring the case under the decision of the Reich Supreme
Court that actual sexual intercourse need not be proved, provided the acts
are sexual in nature. Having
wandered far afield from the proof to arrive at this conclusion as to the
matter of racial pollution, the court then proceeds to go far afield in
order to bring the case under the Decree Against Public Enemies.Here
the essential facts proved were that the defendant Seiler’s husband was
at the front and that Katzenberger, on one or possibly two occasions, had
visited her after dark.On both points
the following paragraphs of the opinion are enlightening: “Looked
at from this point of view, Katzenberger’s conduct is particularly contemptible.Together
with his offense of racial pollution he is also guilty of an offence under
paragraph 4 of the ordinance against people’s parasites.It
should be noted here that the national community is in need of increased
legal protection from all crimes attempting to destroy or undermine its
inner cohesion. “On
several occasions since the outbreak of war the defendant Katzenberger
crept into Seiler’s flat after dark.In
those cases the defendant exploited the measures taken for the protection
in air raids.His chances were further
improved by the absence of the bright street lighting which exists in the
street along Spittlertorgraben in peacetime.He
exploited this fact fully aware of its significance because thus he instinctively
escaped during his excursions being observed by people in the street. “The
visits by Katzenberger to Seiler under the protection of the blackout served
at least the purpose of keeping relations going.It
does not matter whether during these visits extra-marital sexual relations
took place or whether they only conversed as when the husband was present,
as Katzenberger claims.The request
to interrogate the husband was therefore overruled.The
court holds the view the defendant’s actions, done with a purpose within
a definite plan, amount to a crime against the body according to paragraph
2 of the ordinance against people's parasites.The
law of 15 September,1935, has been passed to protect German blood and German
honor.The Jew's racial pollution
amounts to a grave attack on the purity of German blood, the object of
the attack being the body of a German woman.The
general need for protection, therefore, makes appear as unimportant the
behavior of the other partner in racial pollution who anyway is not liable
to prosecution.The fact that racial
pollution occurred up to at least 1939-1940 becomes clear from statements
made by the witness Zouschel to whom the defendant repeatedly and consistently
admitted that up to the end of 1939 and the beginning of 1940 she was used
to sitting on the Jews lap and exchanging caresses as described above. “Thus
the defendant committed an offense also under paragraph 2 of the ordinance
against people's parasites. “The
personal character of the male defendant also stamps him as a people’s
parasite.The racial pollution practiced
by him through many years grew, by exploiting war time conditions, into
an attitude inimical to the nation, into an attack on the security of the
national community, during an emergency. “This
is was why the defendant Katzenberger had to be sentenced both on a charge
of racial pollution and of an offense under paragraphs 2 and 4 of the ordinance
against people’s parasites, the two charges being taken in conjunction
according to paragraph 73 of the criminal code. *
* * * * * * * * * “In
passing sentence the court was guided by these considerations:the
political life of the German people under National Socialism is based on
the community.One fundamental factor
of the life of the national community is race.If
a Jew commits racial pollution with a German woman, this amounts to polluting
the German race and, by polluting a German woman, to a grave attack on
the purity of German blood.The need
for protection is particularly strong. “Katzenberger
has been practicing pollution for years.He
was well acquainted with the point of view taken by patriotic German men
and women as regards racial questions and he knew that by this conduct
he insulted the patriotic feelings of the German people.Nor
did he mend his ways after the National Socialist revolution of 1933, after
the passing, of the Law for the Protection of German Blood, in 1935, after
the action against Jews in 1938, or the outbreak of war in 1939. “The
court therefore regards it as indicted, as the only feasible answer to
the frivolous conduct of the defendant, to pass death sentence, as the
heaviest punishment provided by paragraph 4 of the Decree against Public
Enemies.His case takes on the complexion
of a Particularly grave crime as he was to be sentenced in connection with
the offense of committing racial pollution, under paragraph 2 of the Decree
Against Public Enemies, especially if one takes into consideration the
defendant’s character and the accumulative nature of commission.This
is why the defendant is liable to the death penalty which the law provides
for only such cases.Dr. Bauer,
the medical expert, describes the defendant as fully responsible.” We
have gone to some extent into the evidence of this case to show the nature
of the proceedings and the animus of the defendant Rothaug.One
undisputed fact, however, is sufficient to establish this case as being
an act in furtherance of the Nazi program to persecute and exterminate
Jews.That fact is that nobody but
a Jew could have been tried for racial pollution.To
this offense was added the charge that it was committed by Katzenberger
through exploiting war conditions and the blackout. This brought the offense
under the Ordinance Against Public Enemies and made the offense capital.Katzenberger
was tried and executed only because he was a Jew.As
stated by Elkar in his testimony, Rothaug achieved the final result by
interpretations of existing laws as he boasted to Elkar he was able to
do. This
Tribunal is not concerned with the legal incontestability under German
law of these cases above discussed.The
evidence establishes beyond a reasonable doubt that Katzenberger was condemned
and executed because he was a Jew; and Durka, Struss, and Lopata met the
same fate because they were Poles.Their
execution was in conformity with the policy of the Nazi State of persecution,
torture, and extermination of these races.The
defendant Rothaug was the knowing and willing instrument in that program
of persecution and extermination. From
the evidence it is clear that these trials lacked the essential elements
of legality.In these cases the defendant’s
court, in spite of the legal sophistries which he employed, was merely
an instrument in the program of the leaders of the Nazi State of persecution
and extermination.That the number
the defendant could wipe out within his competency was smaller than the
number involved in the mass persecutions and exterminations by the leaders
whom he served, does not mitigate his contribution to the program of those
leaders.His acts were more terrible
in that those who might have hoped for a last refuge in the institutions
of justice found these institutions turned against them and a part of the
program of terror and oppression. The
individual cases in which Rothaug applied the cruel and discriminatory
law against Poles and Jews cannot be considered in isolation.It
is of the essence of the charges against him that he participated in the
national program of racial persecution.It
is of the essence of the proof that he identified himself with this national
program and gave himself utterly to its accomplishment.He
participated in the crime of genocide. Again,
in determining the degree of guilt the Tribunal has considered the entire
record of his activities, not alone under the head of racial persecution
but in other respects also.Despite
protestations that his judgments were based solely upon evidence introduced
in court, we are firmly convinced that in numberless cases Rothaug’s opinions
were formed and decisions made, and in many instances publicly or privately
announced before the trial had even commenced and certainly before it was
concluded.He was in constant contact
with his confidential assistant Elkar, a member of the criminal SD, who
sat with him in weekly conferences in the chambers of the court.He
formed his opinions from dubious records submitted to him before trial.By
his manner and methods he made his court an instrumentality of terror and
won the fear and hatred of the population.From
the evidence of his closest associates as well as his victims, we find
that Oswald Rothaug represented in Germany the personification of the secret
Nazi intrigue and cruelty.He was
and is a sadistic and evil man.Under
any civilized judicial system he could have been impeached and removed
from office or convicted of malfeasance in office on account of the scheming
malevolence with which he administered injustice. Upon
the evidence in this case it is the judgment of this Tribunal that the
defendant Rothaug is guilty under Count three of the indictment.In
his case we find no mitigating circumstances; no extenuation. The
defendant Schlegelberger was born on 23 October 1875 in Koenigsberg.He
received the degree of Doctor of Law at the University of Leipzig in 1899
and passed the higher State law examination in 1901.He
is the author of several law books.His
first employment was as an assistant judge at the Local Court in Koenigsberg.In
1904 he became judge at the District Court at Lyck.In
1908 he was appointed judge of the Local Court in Berlin and in the fall
of the same year was appointed as an assistant judge of the Berlin Court
of Appeals.He was then appointed
Councillor of the Berlin Court of Appeals in 1914, where he worked until
1918.During the first World War,
on1 April 1918 he became an assistant
to the Reich Board of Justice.On
1 October 1918 he was appointed Privy Government Councillor and department
chief.In 1927 he was appointed Ministerial
Director in the Reich Ministry of Justice.On
10 October 1931 he was appointed Secretary of State in the Reich Ministry
of Justice under Ministe of Justice Guertner, which position he held until
Guertner’s death.Upon Guertner’s
death on 29 January 1941 Schlegelberger was put in charge of the Reich
Ministry of Justice as Administrative Secretary of State.When
Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger
resigned from the Ministry. In
1938 Hitler ordered Schlegelberger to join the NSDAP.Schlegelberger
testified that he made no use of the Party, that he never attended a Party
meeting, that none of his family belonged to the Party, and that Party
attitudes often rendered his position difficult.However,
upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger
received a letter of appreciation from Hitler together with a gift of 100,00
RM. Later, in 1944, Hitler gave Schlegelberger the
special privilege to use the 100,000 RM to purchase a farm, which under
the rule then prevailing could have been purchased only be an expert agriculturist.
Schlegelberger states that the 100,000 RM were on deposit in a Berlin German
bank to his account when the collapse came. Thus it is shown that Hitler
and Schlegelberger were not too objectionable to each other. These transactions
also show that Hitler was at least attempting to reward Schlegelberger
for good and fathful service rendered, in the performance of some of which
Schlegelberger committed both war crimes and crimes against humanity as
charged in the indiectment.
We have already adverted to his speech at the University
of Rosteck on 10 March 1936, on the subject “A Nation Beholds Its Rightful
Law”. In this speech Schlegelberger declared:
“In the sphere of criminal
law the road to a creation of justice in harmony with the moral concepts
of the New Reich has been opened uop by a new wording of Section 2 of the
Criminal Code, whereby a person is also (to) be punished even if his deed
is not punishable according to the law, but if he deserves punishment in
accordance with the basic concepts of criminal law and the sound instincts
of the people. This new definition became necessary because of the rigidity
of the norm in force hitherto.”
As amended, Section 2
remained in effect until repealed by Law No. 11 of the Allied Control Council.
The term “the sound people’s sentiment” as used in amended Section 2 has
been the subject of much discussion and difference of view as to both its
proper translation and interpretation. We regard the statute as furnishing
no objective standards “by which the people’s sound sentiment may be measured”.
In application and in fact this expression became the “healthy instincts”
of Hitler and his co-conspirators.
What has been said with regard to the amendment
to Section 2 of the Criminal Code is equally true of the amendment of Section
170a of the Code by the decree of Hitler of 28 June 1935, which is also
signed by Minister Guertner and which provides:
“If an act deserves punishment
according to the common sense of the people but is not declared punishable
in the Code, the prosecution must investigate whether the underlying principle
of a penal law can be applied to the act and whether justice can be helped
to triumph by the proper application of the penal law.”
This new conception of
criminal law was a definite encroachment upon the rights of the individual
citizen because it subjected him to the arbitrary opinion of the judge
as to what constituted an offense. It destroyed the feeling of legal security
and created an atmosphere of terrorism. This principle of treating crimes
by analogy provided an expedient instrumentality for the enforcement of
Nazi principles in the occupied countries. German criminal law was therefore
introduced in the incorporated areas and also in the non-incorporated territories,
and German criminal law was thereafter applied by German courts in the
trial of inhabitants of occupied countries though the inhabitants of those
countries could have no possible conception of the acts which would constitute
criminal offenses.
In the earlier portions of this opinion we have
repeatedly referred to the actions of the defendant Schlegelberger. Repetition
would serve no good purpose. By way of summary we may say that Schlegelberger
supported the pretension of Hitler in his assumption of power to deal with
life and death in disregard of even the pretense of judicial process. By
his exhortations and directives, Schlegelberger contributed to the destruction
of judicial independence. It was his signature on the decree of 7 February
1942 which imposed upon the Ministry of Justice and the courts the burden
of the prosecution, trial, and disposal of the victims of Hitler’s Night
and Fog. For this he must be charged with primary responsibility.
He was guilty of instituting and supporting procedures
for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas
were less brutal than those of his associates, but they can scarcely be
called humane. When the “final solution of the Jewish question” was under
discussion, the question arose as to the disposition of half-Jews. The
deportation of full Jews to the East was then in full swing throughout
Germany. Schlegelberger was unwilling to extend the system to half-Jews.
He therefore proposed to Reich Minister Lammers, by secret letter on 5
April 1942:
“The measures for the
final solution of the Jewish question should extend only to full Jews and
descendants of mixed marriages of the first degree, but should not apply
to descendants of mixed marriages of the second degree.
“With regard to the treatment
of Jewish descendants of mixed marriages of the first degree, I agree with
the conception of the Reich Minister of the Interior which he expressed
in his letter of 16 February 1942, to the effect that the prevention of
propagation of these descendants of mixed marriages is to be preferred
to their being thrown in with the Jews and evacuated. It follows
therefrom that the evacuation of those half-Jews who are no more capable
of propagation is obviated from the beginning. There is no national
interest in dissolving the marriage between such half-Jews and a full-blooded
German.
Those half-Jews who are
capable of propagation should be given the choice to submit to sterilization
or to be evacuated in the same manner as Jews.”
