A penal matter where Dr. Joel rejected the illegal demands of the Bavarian Minister of the Interior and Hitler made a decision upon the latter's request, is also relevant here. It is the criminal matter concerning the superintendant of the state opera at the Gaertnerplatz in Munich on the count of attempted (original, page 49) rape in 1941, which was mentioned in the statement of the Senior Public Prosecutor Grosser (Note 105). The Gauleiter wanted to prohibit the prosecution, the defendant Joel had it initiated.
The Gauleiter wanted to prevent the execution of the warrant for arrest; Joel had it carried out in the hotel apartment of the superintendant; the Gauleiter removed the chief of the Munich criminal policy from office; Dr. Joel caused the prosecution to continue the investigations in Munich; the Gauleiter wanted to prevent the indictment, whereas Dr. Joel directed the Public Prosecution to prosecute. At that juncture Hitler intervened and ordered that the proceedings should be considered closed upon payment of compensation by the accused, Dr. Joel was represented as a man devoid of any political acument, who had forced Hitler to make a decision on account of a chorus girl.
Joel's relations with Freisler were severed completely in 1931, when Joel, at the suggestion of a Senior Public Prosecutor, had the brother of his Under Secretary arrested for bribery. Joel, as he had always done, opposed every attempt to influence him, and had established the criminal guilt of Freisler's brother when the latter committed suicide (Note 106).
Such events, of which I can only cite a few, endangered Joel's position in the Reich Ministry of Justice more and more. Minister Guertner held his protecting arm over him. Freisler had long since ceased to protect him. On the contrary, he considered Joel's activity in the 10524U Reich Ministry of Justice a burden.
The disapproval of Dr. Joel's activities by the Party was the reason why (original, page 50) his and von Haakes' promotion to Ministerial Councillor which was due at that time - both had been working as specialists in the Reich Ministry of Justice for six years already - was postponed for two years in favor of younger officials who were, however, old Party members and the promotion of which was therefore not opposed by the Party.
(Note 107).
Difficulties in the treatment of criminal proceedings in which members of the SS were involved could be removed by the defendant Joel and the proceedings could be carried through in order, since the former pastor Tondock, who had worked since about 1935 as an SS-liaison leader with the Reich Ministry of Justice, saw to it that SS-leading agencies did not make any attempts to prevent criminal proceedings (Note 108). But also the SS showed the same general attitude and behavior towards justice as other political circles. The dismissal of Tondock by Himmler, which took place in April 1942, after he had been on leave for more than one year, throws a significant light on the man with whom Dr. Joel has been connected.
The activities connecting the defendant Joel with the police had consisted since the beginning of the war exclusively in enforcing the lawful rights of the judiciary against the measures of the State Police.
In addition, Dr. Joel interceded in many cases in which measures of the State Police had been carried out, the necessity of which could be doubted for reasons of law or other reasons. While some officials of the policy complied with his wishes, there were others who did not agree with his attitude (Note 109). People began to dislike him, not the least reason being that circles of the Party intrigued against him at the State Police.
10524V (original, page 51) Not long after the defendant Joel had maintained the interests of law in the face of the Chief of the Security Police in Prague, he was informed by a department chief of Heydrich's that he had become a "persone ingrata", (Note 110). I do not have to explain that it meant to have incurred the displeasure of the Chief of the political police.
Joel's exact report to Under Secretary Schlegelberger about the events in Prague on the occasion of the trial against Prime Minister Elias had been reported to Heydrich by Thierack (Note 111).
For this reason, Joel's position in the Ministry, politically speaking, was shaken, if not ruined. For a long time he had become intolerable to the leading men of the party. Heydrich, the Chief of the Gestapo was his active opponent, and his agencies had been informed of this fact, The last Chief of the SD has declared that the activity of Joel was regarded as ambiguous and unreliable and that Heydrich looked at him with distrust, (Note 112).
Minister Guertner died in January 1941, and Under Secretary Dr. Schlegelberger had been appointed Acting Minister. It was known that there were two candidates for the office of the Reich Minister of Justice; namely Reich Leader Frank and the President of the People's Court Thierack. When Hitler discarded Frank, Thierack was the winner. Thierack started in the office of the Reich Minister of Justice in August 1942.
(original, page 52)
There could be no doubt about it that Thierack who was a slave of the Party and of the Police and hadgot his appointment only on account of this subservience would remove every official who was disliked by these two agencies. The defendant Joel perceived this, but he also perceived that the fight for the independence of justice had come to an end, and therefore, he tried to get discharged from public service.
10524W Thierack summoned him before him soon after he had taken over office (Note 113) and told him that he had to leave the Reich Ministry of Justice.
The co-defendant Dr. Rothenberger has stated (Note 114) that Thierack demanded Joels' removal from the Reich Ministry of Justice. Dr. Joel asked to be discharged from public service, however, he had to accept Thierack's correction that he would decide what was to become of him. To be sure, a Government official could at any time demand his discharge according to Art. 60 of the German Law concerning Government officials, dated 26 January 1937. However, during the war this privilege under the above law had been restricted in so far as applications for resignation in pursuance of Art. 60 need not be accepted. Joel, therefore, tried to find work in some other administration which would eventually accept his application for resignation. He discussed the new state of affairs in the Reich Ministry of Justice and his desire to resign with a representative of the army, and the Chief of the Military Administration of Justice declared that he would find employment for a man like Dr. Joel any time (Note 116). Joel asked for the support of a former official of the administration now working in the industry to whom he described Thierack as the grave-digger of Justice and the Reich Ministry Justice as agencies of Himmler and Bormann. (Note 117) (original, page 53) He looked up the chief of the Stabsamt Goering in order to escape with the aid of a Reich agency, Thicrack's authority of command, (Note 118). All attempts of Joel were frustrated because Thierack refused to let him resign his position in the Justice Department.
After September 1942 Minister Thierack assigned Joel neither to special missions nor as a liaison man to the Police and SS. The defendant Joel, in chart of the distribution of work was still on the records as a liaison man, but in fact he was not, Thierack did not inform Joel of these measures and so it came to an inquiry by Joel at the RSHA, which 10524X as a notation of a telephone conversation appears in his SD-files (Note 119).The defendant Joel kept the War Economy Referat.
Now he counted daily on his transfer. Already since the 16 May 1943 his appointment as General Public Prosecutor had been submitted. How it became a reality all of a sudden, Dr. Joel described. (Note 120). The reason why it was not put into effect prior to the 16 August 1943; is not known.
This appointment was not a promotion as the Prosecution contends. Nor did it involve an increase of his salary. The promotion from the basic salary of salary group A la for Ministerialraete (top salary 12,600) to the individual salary of Group B 8a for General Public Prosecutors (14,000) was made up by the absence of the ministerial allowance of M1,200 which was exempt from taxation.
(original, page 54)
The approval of the Chief of the Party Chancellery (Note 121) for an appointment to the General Public Prosecution was prescribed by law. In this a preliminary stipulation had to be observed; namely that the official had; at all times worked unreservedly for the National Socialist State. The German Civil Service Law required this prerequisite for every official; the prosecution witness Behl discussed this (Note 122). For ten years Dr. Joel had waged war against Party arbitrariness and interference by the police with the independence of the Administration of Justice, when he was removed from the Ministry by von Thierack.
III. Public Prosecutor in Hamm 1. NN - criminal cases.
(Nacht und Nebel) Dr. Joel was never concerned; in the Reich Ministry of Justice; with work on general questions of the so-called NN decree or with individual criminal cases in these districts at any time (Note 123). In view of the special duty of maintaining secrecy, decreed personnally by Hitler, Joel did not learn any details on the treatment of these NN-matters, 10524Y even in the Reich Ministry of Justice.
No document from the Reich Ministry of Justice shows any participation by Joel, not even by his initialling. He did not participate in the Reich Ministry of Justice either in meetings of the President of the Court of Appeal and of the Public Prosecutors, in whose district NN-matters were dealt with. Only when he was General Public Prosecutor in Hamm did he learn that the Chief Public Prosecutor subordinate to him in Essen had been dealing for about 1½ years with work on criminal cases against Belgian inhabitants who had been sent to him directly by the Courts Martial of the Wehrmacht, i.e., not by the General Public Prosecutor. On 17 August 1943, Joel wasinstalled in Hamm.
10524Z Dr. Carl Haensel Final Plea Guenther Joel We all still remember the report which was submitted by the Prosecution (Note 124) in which Joel introduced himself to his officials as their now chief, without uniform or any National Socialistic getup (Note 125). A short time will have to be given to him before he has struck his stride in his domain, which next to Berlin with its six million inhabitants within its legal jurisdiction was the largest Prussian district and it must further be considered that already in January 1944 the removal of the Nacht und Nebel matters to the East had been announced and had been accomplished on 15 March 1944 (Note 126).In treating the Nacht und Nebel matters I can confine myself to the proof that Joel was active in the matter only around the extreme edge as chief of an office which handled such files.
His activities in these matters were without any influence upon the basic regulations and their execution. He never took part as Public Prosecutor in any Nacht und Nebel proceedings; his subordinates received reports of the Chief Public Prosecutor in Essen, in which Nacht und Nebel matters were mentioned, and sent them on to the Reich Ministry of Justice.
When Joel came to Hamm, the proceedings took their course according to the general directives of the Ministry. The latter's approval was required for the indictments; the intended pleas for punishment; the quashing of proceedings, procurement of foreign evidence, the rescinding of the warrant to arrest. Every judgment had to be submitted to the Ministry. Joel did not change anything in this treatment nor could he change anything (Note 127).
All decisions were made in Berlin; the Hamm office merely served as an intermediary for the directives. What Joel was able to establish himself about the proceedings did not make him suspicious. The proceedings took place according to German law of procedure, German lawyers took over the defense; this was also known in Belgium, and Joel was told by the Supreme Judge of the Military Commander. The maintenance of secrecy was not strictly observed; the Belgians knew where and how their countrymen were convicted (Note 128). In the rebuttal Dr. Joel's report on a 10524AA Dr. Carl Haensel Final Plea Guenther Joel visit in Brussels has been submitted (Note 129). He already spoke on the witness stand of his trip to the Military Commander in Brussels.
This report does not change the picture. It shows that Joel left decisions to the proper authorities and, at that, to the Wehrmacht authorities, who had to decide according to the exigencies of war. Joel did not have the authority to dispense judgment on this matter; ho could not have it. The reproach that he had cut off prisoners from the outher world in an inhuman manner does not apply to him. On the contrary, the German Minister of Justice could have called him to account for failing to punish violations of the maintenance of secrecy and for thereby transgressing this decree himself. Ho could not investigate military emergencies. The occupation authorities held Dr. Joel also a whole year in a camp without allowing him to communicate with his relatives. The announcement of the death of his 73 year old father was kept from him, and only after the interim of a year did he learn about it in a 25 word communication. Since we are hero engaged in proceedings of international law, military usage must also be taken into consideration in the law which is applicable for conviction.
One solitary general decree from the Reich Ministry of Justice came through Dr. Joel's office during his term of service. This was the Edict of the Reich Minister of Justice of 21 January 1944, which ordered the turning-in of NN (Nacht und Nebel) (night and fog) prisoners who had been acquitted, or who had served their sentence, to the "State police" (Note 130). My colleagues Kubuschak and Schilf have expressed themselves about the factual contents and the scope of this edict. As far as Joel is concerned, I would like to add that this edict did not become practical for him, since the transfer of the NN matters was already announced in January, and their execution was completed by March.
Prisoners of Belgian nationality were no longer in his district at this time. The execution of punishment was carried out (Note 131) outside of the Hamm district from May 1943 on, and the NN prisoners who were in pre-trial custody had been transferred by Dr. Joel to the neighboring 10524BB Dr. Carl Haensel Final Plea Guenther Joel district because of the aerial warfare over the industrial areas of Essen.
During the few months in which the office of the General Staatsanwalt. (General Public Prosecutor) in Hamm came in contact with NN matters, Dr. Joel did not learn of a single case in which an acquitted Belgian national, or one who had served his sentence, had been turned over to the State police. Neither did the specialist assisting Joel learn of such a case (Note 132).
In a situation report dated 26 January 1944, Dr. Joel passed on a suggestion from the Chief Public Prosecutor of Essen, the gist of which was the speeding-up of the disposition of proceedings against Belgian nationals through the agency of the Oberreichsanwalt (Attorney General) at the People's Court. Because of the impending loss of the records, in consequence of the aerial warfare, he moreover suggested that they be not sent to the Reich Ministry of Justice, where the approval for the preferment of charges was applied for. Finally, he considered the approval of the Reich Ministry of Justice as superfluous if the hearing of witnesses was to take place in foreign territory (Note 133).
On the basis of these documents one cannot connect Dr. Joel with an activity which could be criminal under penal law.
The Prosecution has categorically stated that the penal institutions were "managed in a manner which in no wise differed from the one which applied for concentration camps." Among those who are to be held responsible, Dr. Joel is included (Note 134).
He never had anything to do in the Reich Ministry of Justice with matters of the execution of sentences (Note 135). The Frosecution has not produced any evidence applicable for the Hamm district. The penal institutions of this district have been taken over without objection by the British occupation authorities and the Chief of the Office of the Administration of Punishment is, even today, the same official who worked under Joel. This official, who is authoritative on the matter of the execution of punishment in the Hamm district of the Court of Appeal have been administered according to the regulations of the decree governing the 10524CC Dr. Carl Haensel Final Plea Guenther Joel execution of punishment with the limitations conditioned by war.
(Note 136) Thus, there can be no talk of inhuman treatment of the prisoners.
Neither Dr. Joel nor the Chief of his Administration of Punishment has ever learned of a case in which a prisoner was executed without the existence of a judicial sentence or without the rejection of a petition for mercy. (Note 137). Neither Dr. Joel nor the Chief of his Administration of Punishment nor the superintendent of the penitentiary of Werl know of a case in which inferior or asocial prisoners were executed due to the approach of Allied troops, by order of the Ministry, without regard for the penalties which they had to serve.
In like manner, no turning-over of asocial prisoners to concentration camps, such as Thierack had ordered and as it was carried out by officials of Department XV, took place. Dr. Joel and the superintendent of the penitentiary of Werl agreed to thwart such orders of surrendering ment. These were constantly shunted aside by reference to the valuable labor power which the prisoners represented in the penal institutions (Note 138).
The statements of the officials of the Administration of Punishment in the Hamm district go beyond this and show exactly the opposite of that which the Prosecution claims. Dr. Joel has constantly cared for his prisoners in every respect. Even in the last year of the war he had ordered the construction of a new cell block and the improvement of the toilet installations in the penitentiary Werl. The housing was a subject that was close to his heart. The housing of the work contingents, who were employed agriculturally in the Muenster region, was a model and led to complaints by the Party (Note 139).
Contrary to the instructions of the Reich Ministry of justice and the Commissars of the Reich Defense, Dr. Joel undertook a generous release of the prisoners when the enemy approached, and forbade any destruction whatsoever of the plant installations. Upon his instructions all the inmates in the court prison of Hamm were released.
The proper conduct of Dr. Joel toward the criminal prisoners locked up in his district precludes every consideration involving penal law.
10524 DD Dr. Carl Haensel Final Plea Guenther Joel In addition to the documents from the period of Dr. Joel's service in Hamm which concern NN penal matters, a situation report dated 6 February 1945 (Note 140) has been submitted.
In this report Dr. Joel presented to the Minister of Justice the wish asserted by the population from all parts to proceed ruthlessly against criminals who were exploiting the situation created by the aerial warfare. One can understand this request when one keeps in mind that day and night attacks carried out by bomber squadrons and single planes of the enemy air force caused innumerable victims among the civilian population, and that the few possessions that could be salvaged were stolen from the survivors.
IV. Crimes of Organizations According to paragraph II, I d relative to the IMT opinion, those are guilty who were:
(a) members of the organizations declared criminal by the IMT opinion, including the SS and the SD and who, moreover, joined after 1 September 1939; and (b) those who possessed the knowledge that those organizations were used for crimes in the sense of paragraph six of the Charter.
In its introduction to chapter nine the IMT opinion states, moreover, that its declaration should exclude those who did "not have a knowledge of the criminal purposes".
Thus, more membership alone does not render men guilty, but only those members in other respects externally indistinguishable, are liable to punishment who, in addition to the outward membership also possess the inner motive of the knowledge. The last mentioned clement, therefore, is the essential criterion of liability to punishment; it is a psychic fact, but it belongs to the objective facts of the case.
I shall return later to the exposition of the concept of knowledge as set forth in Law No. 10 and in the IMT opinion. First, I should like to examine whether Dr. Joel, by virtue of membership in the group, belongs at all in the category of those who are to be regarded as criminal because 10524EE Dr. Carl Haensel Final Plea Guenther Joel of the added knowledge.
Was he a member of the SS or the SD, first of all, from an outward viewpoint, as has been claimed by the Prosecution in points 24 and 32?
1. "Membership" a. Waffen SS Dr. Joel did not serve as a soldier during the war.
He was claimed as indispensable by the Reich Ministry of Justice and exempted from military service. Even today he is in possession of a military identity card of the army, which was issued to him on 19 January 1938 and contains as the last entry a registration note by the Army Registration Office, BerlinCharlottenburg, dated 28 June 1943. Nowhere does it contain an entry that Joel was transferred from the army to the Waffen SS. Thus, Joel never belonged to the Waffen SS. His defense classification was membership of the Replacement Reserves I of the Army, as indicated on his military identity card (Note 141).
b. General SS Nor did Joel ever belong to the General SS.
In the personnel files of the Reich Ministry of Justice submitted by the Prosecution (Note 142) there is also a copy of the original orders appointing Joel SS leader in the SD Main Office, dated 2 May 1938. The excerpt from a seniority list, dated 1 December 1933, which has been submitted by me, shows that Joel was not carried on the German SS records but on those of the "SS Haupstamt". The promotions of Joel, which were to serve the purpose of equalizing his rank to his office in the Reich Ministry of Justice, were ordered from time to time by the SD Main Office and not by the personnel office of the "General SS". The last chief of Amt III of the RSHA - the former independent SD Hauptamt, became Amt III of the RSHA after the latter was established in the course of the war - has affirmed (Note 144) that Joel was not a member of the General SS. A declaration exactly like the afore-mentioned one has been made by the former Police Superintendent Dr. Martin on behalf of Dr. Joel (Note 145). Joel's own declaration (Note 1)46) and his testimony at the cross-examination through Mr. King of 6 August 1947 10524FF Dr. Carl Haensel Final Plea Guenther Joel (Note 147) are corroborative.
All this speaks against the charge founded in subsection 32.
c. SD What is the position with regard to figure 34 of the indictment?
During the cross-examination of the defendant Joel, the Prosecution called into question whether he had held an honorary rank (Note 148). It admitted that he was not employed in a full-time capacity. Joel, however, did not sue a part of his working strength, even honorarily, for the SD.
He never worked for the SS, the police, or the SD.
Even if the Prosecution has referred to a correspondence which took place in 1940 between the Reich Ministry of Justice and the Chief of Security Police, which shows that Joel was exempted for a time from military service by the Chief of Security Police and of the SD, it can be established that Joel remained, without interruption in the legal service and did not know of these events. They are explained by the fact that the members of the SD, when they were used for military service, were employed in the Waffen SS.
The personnel files of the Reich Ministry of Justice (Note 150) contain two documents which seem to show that Joel worked for the SD. In answer to a question which I asked him, Joel explained that in one instance he took the opportunity of going to Cologne on a personal matter, in legal matters. The Gauleiter in Cologne attacked the Senior Public Prosecutor in Bonn and wanted to get him removed from office. Secretary of State Freisler did not want Joel to have a consultation with the Gauleiter; Minister Guertner was not accessible. This was the reason why Joel gave this explanation (Note 152).
The other instance was a journey with the liaison officer between the Reichsfuehrer SS and the Reich Ministry of Justice, Sturmbannfuehrer Tondock, to inspect penal institutes within the Old Reich Territory. Joel declared that he was also in favor of this journey (Note 153). Minister Guertner had given Joel orders to accompany Tondock on visits to three penal institutes of the Administration of Justice. The liaison officer 10524GG Dr. Carl Haensel Final Plea Guenther Joel Tondock confirmed Joel's approval (Note 154).Joel was not active in the SD; his appointment was not preceded by any ancestry research.
The question as to whether or not he had any Jewish blood within the meaning of racial idealogy was never examined. He got the rank of a leader directly, without having done any service; he was not sworn in.
Major Far, the Prosecutor in the IMT trial, considered the swearing in as a presupposition for regular membership (Note 135); he did not pay any contributions to the SD nor to the Lebensborn and SS savings banks, which collected from all regular members; he did not have any training or instruction; he did not receive any SS literature and was not sent any ordinances from the SS, the SD, or the police; he did not participate in any meetings, rollcalls, or parades; he did not have any duties with regard to the SD; he did not have any rights. The personnel files submitted by the Prosecution (Note 156) would have shown this, if it had been the case.
The SD itself had no power to determine which leaders were to be considered as honorary leaders. The lawfor liberation from National Socialism and militarism dated 5 March 1946, applicable in the American Zone of occupation, has, however, raised the question, and the State Ministry for special tasks set up in Bavaria to execute this law has made a clear distinction between "leaders" of the affiliations of the NSDAP and "honorary leaders". A decree in paragraph 12 of this law dated 5 March 1946 says that "honorary leaders" are not "leaders" within the meaning of this decree. And among the resolutions of the competent legal board for the uniform interpretation and application of the lawof liberation in the United States Zone, there is a decree R.C. 32/46, which gives a definition of the honorary leaders.
"Honorary leaders are persons who were authorized to hold titles and who wore the corresponding uniform but had, however, no official authority of any kind and did not carry out the duties attached to their rank." (Note 157).
10524HH Dr. Carl Haensel Final Plea Guenther Joel These presuppositions apply to the defendant Joel and there can be no doubt that he was purely an honorary leader, particularly in viewof the way in which Joel got his rank.
Apart from this, this fact is also confirmed by the depositions of the former main department chief Wunder, of the SS personnel main office (Note 158). He states that SS honorary leaders were also carried on the roster of the SD Main Office, and what relations existed between the honarary leaders and the SS. The defendant Joel had none of the connections with the SD mentioned there; neither did he have the loose connections which honorary leaders generally had. The same happened here to a lesser degree, as for instance in the case of Herr von Neurath on whom, as was established in the IMT trial, as SS rank was bestowed. In spite of this, in its conclusion on the SS on the subject of the characterization of the criminality of the SS, the IMT verdict referred solely to Kaltenbrunner's membership and not, however, to that of von Neurath. The verdict did not want to recognize the bestowal of an honorary rank as an "official" membership.
10524II Dr. Carl Haensel Final Plea Guenther Joel I refer also the supplemental declaration of the IMT to its verdict which excludes "honorary informers" from the incriminated SD.
Joel was not even an "honorary co-worker" but was merely theholder of a rank. He comes, therefore, under the members of the SD who are hot affected by the IMT verdict.
2. "Knowledge" The indictment, however, involves the further charge that Dr. Joel also had the "knowledge" relevant for the crime of being a member of a criminal organization and I must discuss this charge as well.
My trial brief is before the Tribunal , and in it I laid down the conception of the law that this knowledge cannot consist in a mere "having heard of it", but that this knowledge has to contain more in order to fulfill the legal requirements.
The Prosecution has produced evidence which the defendant Dr. Joel does not contest, that he had the generally known knowledge of certain measures of the Party and of it s affiliations in Germany which are now laid at the door of the SS and of the police and that he had officialexperience of individual occurrences. We must discuss and establish what knowledge Joel acquired and whether Dr. Joel, in spite of the knowledge which he had, is not to be counted among those persons who are considered as members of the criminal group, in view of his attitude toward illegal measures.
In this connection, the Prosecution has submitted Document E-264 (Note 158) against Joel and tries to infer his knowledge of the "murderous practices of the SS" from it. The conclusion which the Prosecution reached is wrong. In his interrogation on 5 August 1947 (Note 159) the defendant Dr. Joel stated that he had recorded almost word for word the wishes of Goering, the motive of which was to retaliate for the horrors committed by the Russians. He also stated that he had helped to frustrate Goering's suggestion when together with the expert from the Reich Ministry of Justice he discussed the matter with the General 10524JJ Dr. Carl Haensel Final Plea Guenther Joel of the Luftwaffe Meindl.
The witness Hecker, who was interrogated here on 7 July 1947 and who was the expert from Department V for Goering's suggestion, confirmed Joel's statements (Note 160) and the statements made by General Meindl and Colonel von Brauchitsch (Note 16l) showed that no Luftwaffe formation of convicts had ever existed.
Contrary to the statement made by the Prosecution, out of these events Joel could only see one thing, that is, that no retaliation was made by the Wehrmacht for horrors committed by the Russians. During his conference with Goering in the Reich Jaegerhof in the Rominter Heath, he did not learn of any measures taken by the SS, the SD, or the police.
The Prosecution has submitted Exhibits 412 (Note 162), a report on Mathausen camp, dated 17 June 1945 (Note 163); a report on Flossenburg camp, dated 21 June 1945, and E-414 (Note 164), an affidavit of Dr. Kastner. This evidence showed that criminal acts were committed in these concentration camps, and the Prosecution infers that all the defendants who were active in the Reich Ministry of Justice from the middle of 1942 to 1945 knew that such crimes were committed. The defendant Dr. Joel did not have any knowledge of these events. During the years following 1933, he had to work on official communications on events in the concentration camps, and the evidence has shown that in spite of all opposition he pursued the prosecution of the guilty persons with great energy. After the Central Prosecuting Authorities (Zentralstaatsanwaltschaft) had been dissolved in October 1937, he had nothing further to do with such tasks,. As the witness von Haacke stated, (Note 165) the energetic action against the so-called wild concentration camps and against the maltreatment in order to bring about a truthful statement, in 1935, had the result that cases of maltreatment were only known here and there. After the beginning of the war, the Reich Ministry of Justice lost its jurisdiction over the guard personnel and the administrative personnel of the concentration camps, since the SS and police established their own jurisdiction decree of 18 October 1939.
10524KK Dr. Carl Haensel Final Plea Guenther Joel Neither in his position as specialist (Referent) nor as liaison official, Joel was -- as can be understood easily -- informed about happenings which constituted crimes, the prosecution of which it was intended to prevent.
In addition, there existed at the time for which the Prosecution wants to use these documents, a difference of opinion between the defendant Dr. Joel and Thierack and the SD, and the defendant did, therefore, not take part inconversations in which such confidential things were reported. The Prosecution submitted further E-600 (Note 166) , a secret document of the State police Wuerzburg and photographs of the evacuation of Jews from Main Frankonia.
The defendant Dr. Joel did not learn that all Jews were evacuated. But he was informed about the intention to evacuate certain Jewish families from Berlin. He not only expressed his lack of understanding for these cruel measures but was ready to oppose these measures, as far as it was possible for him to do so. In doing so he knew that people who interceded in favor of Jews were registered. Upon instigation of his superior, Under Secretary Schlegelberger, he intervened at the State Police in order to prevent the discharge of the former Reich Minister of Justice Schiffer and the former President of the Kammergericht Cohn.On the occasion of these interventions he was informed that these measures were not ordered by the State police or the SS and SD offices in Berlin, but by the General Building Inspector for the reconstruction of Berlin (Note 167), upon instigation of the Gau Leader of Berlin, Dr. Gcebbels, He succeeded in having the transfer of Schiffer prevented; the transfer of Cohn was postponed until he was brought to Theresienstadt. Both are again in Berlin in their official positions (Note 108). The defendant Dr. Joel was not informed about the mass murders and the extermination activities of the SS in the East. The special war tasks of the Chief of the Security Police and of the SD were kept secret, and he could not guess that there were other tasks than those which were generally known (Note 169). The SS had in the homeland 10524LL DR. Carl Haensel Final Plea Guenther Joel no other function than that of an office for the care of dependents of comrades who had died in action.
Now, as before, the SD forwarded to the Reich Ministry of Justice that part of its situation reports which contained the "Law and Administration" (Note170). He did not learn anything about the measures Thierack carried out together with Himmler and which are laid down in the agreement of 18 September 1942 (Note 171).
But, as I stated in my trial brief, the "knowledge" in the meaning of the crime of being a member of a criminal organization has to comprise much more than a mere "having heard of" which is entirely separated from the volition of the defendant which alone is relevant from the point of view of criminal law. Also a"must know" is insufficient. If in the opinion of the IMT such a philological knowledge of certain historical facts had been sufficient to pronounce the defendants guilty, it could have saved its complicated formulations; for every man in this whole world has once heard that some SS - or SD men had committed crimes during the war. Had this been the case, then the IMT could have simply restricted itself to the declaration that every member of the SS or SD, with the exception of those who were forced by the state to join these organizations , are liable to be sentenced.
In accordance with the terminology and the organic structure law 10 and the verdict of the IMT, one has, to the contrary, to arrive at the conclusion, that the wrong inherent in being a member of a criminal organization lies in the fact that they joined to further criminal aims; the defendant is either "personally implicated in the commission of acts declared criminal by Art. 6 of the Charter" or because of his member ship in spite of his "knowledge of the criminal purposes". It is, therefore, necessary that he participated as conspirator in the criminal conspiracy, and that by doing so he rendered himself guilty. I am referring to the more detailed reasons for this 10524MM Dr. Carl Haensel Final Plea Guenther Joel legal point of view which are contained in my trial brief.
In a small book which is at present being printed I have further elaborated and amplified these reasons. Please let me state with all modesty that the solution of this question of law is of vital importance not only for Doctor Joel and some co-defendants, but for hundred thousand people who expect to be sentenced on the basis of the law 10. Here it is now my task to state briefly the circumstances which refute, with regard to Doctor Joel, any suspicion of a furtherance of criminal aims through a membership, if such a membership should contrary to the above explanations, be assumed.
Dr. Joel got a uniform, not because he wanted to further the SS or the SD; he wanted just the opposite. His personnel file at the Reich Ministry of Justice shows that on 19 December 1937 he was given in addition to his tasks in the Reich ministry of Justice, a further assignment (Note 172). At the time Reich minister Dr. Guertner commissioned him to establish in criminal cases in "case of need" the connection with the Police, the SS and the WD (Note 173). Already since 1935, there had been a liaison officer between the SS and the Reich Ministry of Justice who acted upon the order of the Main Office SS Court (Gericht); the Minister of Justice was thus only in need of a liaison official with the police. (Note 174). It was the positive wish of Minister Guertner to maintain, in the interest of order and law, Joel's positive cooperation toward criminal proceedings in the years past, as consequence of his official task in the Reich Ministry of Justice, a rank was offered to Dr. Joel. The files and the statements of Hattingen (Note 175) and Ohlendorf (Note 176) prove that this did not happen upon the instigation of Joel. After he had informed his Minister of the fact that it was intended to bestow a rank upon him, and the Minister did not raise any objections, Joel accepted the offer. Before his appointment and after his appointment he only carried out the orders of Minister Guertner and worked for the purpose of safeguarding the interests of judiciary. It was out of 10524NN Dr. Carl Haensel Final Plea Guenther Joel the question for minister Guertner and him that a refusal of the offer would have forced Doctor Guertner to withdraw the order given to Doctor Joel on 19 December 1937 , and to assign this task to an other official of the Reich Ministry of Justice.