MONICA WELLWOOD ETO No. E 00525 SIDNEY L. GATES ETO No. 20180 CERTIFICATE OF TRANSLATION 17 October 1947 We hereby certify that we are duly appointed translators for the German and English languages and that the above is a true and correct translation of Final Plea Cuhorst.
Paul E. GROPP, Civ. No. B-397 975; (Pages 37-40, 43).....................
Frederic L. PERA, Civ. No. B-397 943, (Page 42) .....................
Ursula RUDMAN, Civ. No. 20 130, (Page 41)...................................
Dr. Siegfried TAUBER; AGO A-443 415, (Pages 44-45) .......................
10560-Q Concerning what I stated yesterday, about cases 1 to 14, I should merely now like to give the Tribunal the exhibit numbers which should be entered in the record.
THE PRESIDENT: I suggest that you make a memorandum of them in writing and give one copy to the prosecution and one copy to the Secretary General. It will be unnecessary to read them out in open court.
Dr. Kubuschok you may proceed.
MR. LaFOLLETTE: During the presentation of this argument, Your Honors, a statement was read into this record as part of the closing speech, from an alleged exhibit which this court has expressly excluded. It was document 6l Cuhorst document. It was a document which contained derogatory matters against the interrogator, Mr. Einstein.
I cannot overlook the fact that on the face of the record, this was done deliberately. I not only ask that that part of the speech be stricken from the record, but I move the court to take such action as it deems proper against the counsel who engaged in that activity.
THE PRESIDENT: We will head Dr. Kubuschok at this time without further argument.
DR. BRIEGER: I see that I made a mistake. I quite agree that that should be stricken from the record. Last night I incorporated that, and it somehow escaped my notice, because I have been under such a strain. Will you please forgive me?
THE PRESIDENT: You may proceed Dr. Kubuschok. We have no ruling to make at this time.
Will you be so kind as to read until 10 minutes of 11, and we will take our recess for 10 minutes. I am sorry to interrupt you, but we should utilize every moment.
BY DR. KUBUSCHOK for the defendant von AMMON:
May it please the Tribunal, the defendant, von Ammon has been indicted of war crimes and crimes against humanity in connection with his activity as "referent" in section 4 of the Reich Ministry of Justice dealing with the night and fog matters. (Night and Fog Courts).
The indictment pertaining to the crime against humanity has not been dealt with in the closing speech of the Prosecution. Permit me first to go briefly into the fundamental questions resulting from the discussion about the night and fog eases (NN F elle).
The indictment sees a violation of the Internation Law in the fact that the prisoners were brought to Germany and that they were sentenced and held in custody by the judicial authorities. In contrast to this the following is to be stated:
The judicial administration was given jurisdiction over MN prisoners (night and fog cases) and has actually dealt with them only at the time these prisoners were placed under the jurisdiction of the judicial authorities.
The transfer of the prisoners to the Reich was carried out on the basis of the Hitler order which already was in force before the judicial authorities took over the NN cases. The transfer of these prisoners was carried out by the Wehrmacht which in many cases made use of the Gestapo for this purpose without that the justice administration had given any general or special instructions to this effect. Consequently the performance of the judicial authorities is caused by the prisoners presence in Germany, a fact for which these authorities were not responsible. Therefore they cannot be held responsible that the prisoners were brought into the territory of the Reich."
"Is it a violation of the International Law if legal proceedings are started against a citizen of an occupied country by a civil court of the occupying power?
The International Law does not contain rules an a result of which the citizen of an occupied country has the right to be tried at any designated place or in his own country and to be held there is custody. Such a rule, which is neither contained in the regulations of the Hague Convention for Land Warfare, nor stems from the customary International Law, would actually be untenable. Every occupying power carries on proceedings which arc considered essential for its protection on the basis of the generally recognized rules of occupation.
In accordance with the actual occurrences these proceedings are generally conducted by military courts. As a role it is up to organization of the military court to decide where the proceedings are to take place and where the prisoners arc to be held in custody. It cannot be done a.ny other way. I call attention to the completely clear cases where people living in an occupied border district must necessarily be taken to a court of a town within the territory of the occupying power. In any case, the higher the court passing sentences is, the latter must be so much farther away in distance from the front or from the occupied district itself. In any case there is no provision in the International Law granting an accused person of the occupied district the right to be tried within the boundaries of the occupied district.
In the same manner, no rules exist which prohibit that persons of the occupied district are tried by a civil court instead of the generally customary military court. This could not be for the reason that the jurisdiction of a civil court in general never produces a disadvantage for the accused since the proceedings before a military court in all countries necessitate certain essential limitations.
A violation of the International Law in the NN cases cannot be derived either from the application of the substantive law. The courts entrusted with the passing of sentences have judged in accordance with the same provisions of the substantive law as they would have been applied by the military courts of the occupied territories. They themselves lie without any doubt within the framework of the International Law. Acts committed against the occupying power are always severely punished.
The Prosecution has claimed that in hundreds of NN cases the penal provisions pertaining to high treason had been applied. This allegation is an obvious error. It is a fact that there was not a single case in NN causes where an indictment had been served or a sentence had been passed for high treason. There is not the slightest support for the allegation of the prosecution, neither in the cited exhibits, 320 and 330, nor in any other submitted document.
It has sufficiently been mentioned in the evidence what sort of criminal acts have been tried by the NN Courts. If the list submitted with Prosecution Exhibit 334 also contains the "advancement of communist aims" in the factual description of some cases, I could for instance refer to the accusation, contained in Prosecution Exhibit 309, against the student L e w as an illustration for the fact that cases of that kind too were subject to be prosecuted as an attack against the occupying power."
THE PRESIDENT: We will take a recess until 11 o'clock.
(Court in recess until 1100 hours)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: We understand that it is the desire expressed by the defendants that we continue until 12:30 rather than recessing at 12:15. I understand that correctly do I Dr. Kubuschok?
DR. KUBUSCHOK: Yes, Your Honor.
THE PRESIDENT: Your are the final speaker for the Defense are you not?
DR. KUBUSCHOK: Yes, Your Honor.
MR. LAFOLLETTE: Your Honor, there will be a rebuttal. I don't know that it will consume the full hour and a half, but there will be a rebuttal.
THE PRESIDENT: Well, you'll be prepared to commence this morning won't you?
MR. LAFOLLETTE: Yes, Your Honor, if necessary, probably Mr. King. I would prefer it the other way, to have Mr. King do it, but we'll make progress on it.
THE PRESIDENT: You may proceed, Dr. Kubuschok.
The indictment also claims that the procedural regulations applied to the NN-proceedings are contrary to International Law. For any court procedure the unwritten requirement is that it must enable the court to arrive at a just judgment. Expressed negatively: There must be no rule which would make it possible that an accused be sentenced to a punishment provided by the law for certain facts, without sufficient establishment of these facts. The particular regulations that in variance to the Code of Criminal Procedure were in force for the NNproceedings have been described in detail by the defendants Schlegelberger, Mettgenberg and v. Ammon during their interrogation. The mainpoint of their testimony was: If through a limitation of the possiblity to procure evidence the facts could not be established with absolute clarity then in view of the principle " in dubio pro reo" the accused had to be acquitted. In this respect I also refer to the affidavit Schiffmann (Ammon-Exh. 11). Concerning the limitation imposed upon the defense alleged by the indictment I may in order to avoid repetitions refer to the testimonies of the defendant v. Ammon.
I request also to consider the following: The indictment contends that the trial before inner German Courts is illegal. According to this opinion the proceedings would have had to be brought before the Military Tribunals in the occupied territories. But then it must be held against the indictment, how a procedure before the Military Tribunals would have been conducted. Only if the proceedings before inner German NN-Courts show deviations in disfavor to the accused compared to the proceedings of the Military Courts; only then could the procedural regulations of the NNproceedings be subjected to reproach at all. The point of view applied by the indictment so fur is wrong. Not the generally valid inner German regulations in criminal proceedings, but only the procedural rules of the Military Courts are the criterion in judging the rules of procedure for the NN-cases. The "decree concerning military jurisdiction during war" to be applied by the military Tribunals in the occupied territories did have essential limitations compared to the "Code of Criminal Procedure". In particular; the limitations concerning the defense went much further in the "Kriegsstrafverfahrensordnung" than the defense limitations in NN-cases shown in the Prosecution Exhibits 314 and 317. At any rate even by critical evaluation of all the procedural limitations imposed upon the NN-cases; one cannot say that they have brought about any conviction insufficiently founded. The indictment failed to prove that any accused was convicted on the basis of insufficient evidence caused by limitations. By way of counter-evidence the affidavit Schiffmann shows a careful and conscientious establishment of evidence through the NN-Courts. Therewith only the reproach of secrecy towards the outer world and towards the relatives of the accused remains. In this case it must be stated, too, that internationally codified rules or international common law do not apply to this problem. The accusation can therefore only be made from the viewpoint of a crime against humanity. Considering the reason, is this secrecy rule, as effected, an inhuman action?
Of course, it cannot be denied that this secrecy is a real hardship both for the person affected and his relatives. Uncertainty concerning one's own fate and that of one's relatives is a deplorable state of affairs. To a certain limited extent the uncertainty about the future resulting from every criminal trial is inherent in the matter, and cannot be avoided. Of course, it is considerably more harrassing to worry whether a relative is still alive, where he is, and under what conditions he lives. Under normal conditions there is no reason whatsoever to create this atmosphere of uncertainty at a criminal trial. Concerning the Night and Fog cases Hitler and the Military Commands insisted that this uncertainty was essential for deterring the growing resistance movement. Von Ammon was not in a position to assess adequately the size of the resistance movement and to what extent it could be countered militarily. In this respect I also must oppose the views held by the Prosecution, that during his travels into the occupied Western territories - the Prosecution mentions numerous travels, while actually only one trip each to Paris and Holland can be referred to - von Ammon could have assessed whether the continued secrecy rule was still necessary. That is not the case. The information von Ammon was able to gather was solely the new historical fact that the resistance movements in all occupied territories had been expanding since the beginning of the occupation. Decisive is, however, that he certainly did not learn, during his travels into the occupied territories, that the resistance movement was decreasing, which fact might have possibly lessened the dangers to security, previously recognized by the Wehrmacht Commands. Therefore, Ammon worked on the premise that secrecy was a necessity. He concluded that secrecy was justified and that its enforcement served a certain puspose. In order to avoid an exclusive death penalty adjudication, the Minister of Justice was compelled to accept this relentless secrecy rule. Was not the justification of this decision daily demonstrated to von Ammon by the fact that the great majority of sentences of the Night and Fog Special Courts only rarely, and the People's Court sentences only partly, pronounced the death penalty, as the evidence has proved, particularly the affidavits Boetticher, Osterkamp, and Nitschke Exhibits 5, 8 and 10?
Was not the expediency of the means - the secrecy rule - justified in view of the results achieved to avoid passing numerous death sentences? In keeping with its purpose the secrecy rule had also to be maintained when a case was dismissed; and even after a short imprisonment had been terminated. The ruling to delay the proceedings; which was made in number 6 of the Implementation Decree dated 6 February 1942; also took this fact into consideration. This ruling has been in force for a short time only. During the initial period of starting the Night and Fog proceedings it was not applied in practice; as Ammon testified in the witness stand. Thierack abandoned this artificial attempt in connection with trial procedure, which aimed at an extension of judicial detention. He rather accepted the legal status which existed after a case was dismissed, or after the termanation of a prison term. The authority delegated to the Ministry of Justice for carrying out the trials and executing the sentences of the court was ended in these cases. The official agency from which the authority had been derived; the Wehrmacht; thereby acquired jurisdiction over the prisoners again. The prisoners had been sent to the Ministry of Justice by the police; now they automatically fell back into the latter's hands. To be sure, in other criminal trials the Ministry of Justice was under an obligation to lift the restriction on the freedom of a prisoner of its own initiative after the investigating or penal custody had ended, since it had itself ordered the restriction of freedom in a trial conducted by virtue of its own right. Here; however; it was otherwise. For reasons of secrecy the prisoners had been brought to Germany at the order of the Wehrmacht, which was authorized to issue such orders. So far as in connection with a delegated count trial and executions of punishment they could remain in the custody of the Ministry of Justice they were left to the latter. When this essential condition ceased to exist the original status came into effect again. This legal situation became still more clearly apparent when the "Nacht and Nebel" cases were taken away from the Ministry of Justice by an order of the Fuehrer in September 1944 and the prisoners were given back to the police.
I refer to the Huelle affidavit (Ammond Exhibit 4) which shows that only technical questions concerning the return of the prisoners were still brought up for discussion in the conference convened by the Wehrmacht. Moreover, it is significant that von Ammon and the witness Hecker - as the latter testified in cross-examination on 12-5-1947 - could never once express their opinions to such an extent, either, and reserved to themselves the right of obtaining the Minister's decision. From the testimony given in Court it appears that Thierack made his resolution in accordance with the order issued the Fuehrer and the decision of the OKW without von Ammon having had an opportunity to make an oral report. As a matter of fact, the return of the prisoners to the police was only carried out to a small extent, as was shown by the reports of Hecker, Schirmer and Prey. Section V. which was in charge of prison matters, was actually responsible for the return of the prisoners. I cannot leave the statements of the Prosecution in their Exhibit 310 uncontradicted. This document is a copy of a decree of the Main Reich Security Office which was intended for the official inter-office use of the Gestapo. This decree never came to the knowledge of the Ministry of Justice; the defendants have actually seen it for the first time during this trial, as the defendant Mettgenberg has testified as a witness.
The decree of the Main Reich Security Office was issued on 2.8.1942, and therefore at a time when the police, in accordance with regulation, had nothing to do with guarding prisoners, apart from transporting them to Germany. The Ministry of Justice, just like the OKW, proceeded from the principle that all prisoners brought from the occupied territories to the Reich were turned over to the Ministry of Justice by the police, as is shown by Ammon's note of 26 May 1943 in Prosecution Exhibit 381. On the other handk it is stipulated in the decree of the Main Reich Security Office that in cases where it is not possible to turn the prisoners over to a Special Court they should be sent to a concentration camp.
What cases the Main Reich Security Office had in mind in this connection is not clearly apparent. The stipulation can, however, only be interpreted in the sense that the police, for reasons of their own, did not want the prisoners to be turned over to the Justice authorities, and withheld them from these in order to let them, disappear in a concentration camp. The justice court can in no way be held responsible for these prisoners, who were never brought to it and of whom it knew nothing. The commmander of all the concentration camps were informed of the decree of the Reich Main Security Office by means of a circular order. It could not be seen from this whether NN prisoners were imprisoned in the individual camps, particularly in Mauthausen, Flossenburg and Auschwitz. Even this upsets the attempt ot the Prosecution to connect the justice with the atrocities committed in these camps. This much for the general consideration of matters dealing with NN. Now I shall turn to the activity of von Ammon himself, in his position as expert in Department IV of the Reich Ministry of Justice. The position and responsibility of an expert in the Ministry has been thoroughly described in this trial. Let us test the evidence showing the extent to which von Ammon was actively involved in the NN operations: First of all, the usual division of duties in the Ministry also affected NN affairs. In NN affairs, too Dept. III was charged with "penal legislation", Dept. IV with "criminal procedure" and Dept. V with "care of prisoners". Therefore Dept. III was alone responsible for the introduction and amendment of NN regulations, as was Dept. IV for the supervision of the trial procedures and Dept. V for the reception, quartering and return of the prisoners. Therefore von Ammon cannot be connected with the documents presented by the prosecution, which pertain to the introduction and legal construction of the NN process.
His work was limited to the field assigned to Dept. IV, i.e. the supervision of the trial procedures themselves. This did not preclude, of course, that things worked out by the other departments would be sent to him for his information, and he had to determine whether his department was interested in them or whether his department had any objections to them. It is true, that for this reason his name appears on a large number of documents. Thus far there is nothing to show actual collaboration. The documents he wrote himself are almost entirely discussions of questions that rose in practice. We can see in the documents how von Ammon handles things according to routine office methods, first getting the opinions of other interested departments and forwarding every more important question to his superiors for decision. The prosecution has especially stressed the circular order contained in prosecution Exhibit 319. The facts are: The circular order, which was signed by 15 members of the different departments, does not alter the legal provisions that pertained to the NN process, It only comprehensively explains the questions which had arisen for the courts and public prosecutors in practice. The content of the individual regulations in no case exceeds the necessary requirements for absolute secrecy? In so far as the secrecy was not directly endangered, the alleviations that von Ammon mentioned on the witness stand, were provided. The opinion of the prosecution, that the executed persons were buried in unidentified graves, is not correct. Actually the graves, which were recognizable at all times, were marked and only the placing of the name of the dead person on the grave was forbidden. The delivery of the corpses to the Gestapo was, as is evident from Exhibit 332, the result of an order which had been valid for the whole sphere of the administra-tion of the law since 1939. Contrary to this general instruction however in the case of NN--prisoners the giving-up of the dead body for dissection had been forbidden by a circular order. Exhibit 311, contrary to the opinion of the Office of the Public Prosecutor, is not a letter of the defendant von Ammon, but a report of the Senior Public Prosecutor in Essen to the Ministry of Justice of 20 August 1942 in which he asks for advice as to the question of execution in NN-casos arising for the first time in the anticipated case of these death sentences.
The defendants Mettgenberg and von Ammon have already discussed the prosecution Exhibit 334 in detail in the witnessobx, This letter of the Chief Public Prosecutor in Kattowitz contains the suggestion that prisoners allocated to the armament industry should still bo employed even after the reason for their custody in accordance with the administration of the law has ceased to exist. According to the proposal they were to be treated as police prisoners but were to remain in their previous place of work under the supervision of the administration of the law. The prosecution sees in this proposal which, moreover, was never put into practice a violation of the Geneva Convention concerning the treatment of prisoners of war. It overlooks in this respect the fact that all NN-cases always affected civilians only. In so far as it is evident from the letter that in the Kattowitz district NN-prisoners were actually allocated to armament factories while remanded in custody pending trial or serving a sentence, the allusion to the fact that provisions of international law limiting the employment of civilian prisoners arc not evident, might suffice. The defendant v. Ammon did not himself make arrangements for this employment nor was he competent to do so. In closing I should like once more to summarise briefly von Ammon's collaboration in the NN-cases: He did not collaborate in the creation of the legal NN-provisions. The activity in his Dezernat (Sphere of activity) was necessarily the outcome of the situation not created by him and which he had no possibility of changing. To the extent of his limited authority he tried to avoid hardships and in examining the meting out of punishment kept within more charitable bounds. In spite of the resistance movement which was gaining strength he stressed the fact that there was no question of the administration of justice becoming more severer. I refer in particular to his behavior in the rescue action affecting 130 prisoners among whom there were 30 NN-prisoners on which the witness Roemer gave evidence on oath.
And now for the legal evaluation of his collaboration in the NN-proceedings.
In his activity can say any active participation at all be seen in the sense of II 2 of the Control Council Law? Whatever dements of crime may be imputed in the sense of the indictment, his activity is not to be classified among the forms of particip tion mentioned in 2 a-d. I can, in so far, refer to the legal deductions of colleague Haensel. The participation also that under - d must refer to the crime itself. He who does not collaborate in the crime itself, who is merely not unaware of its existence and acts with due regard to the resultant situation, cannot be a participant in the crime. Otherwise the circle of those responsible in opposition to the previous administration of justice of the Tribunals - would widen out to infinity. In the cases of many a basis for their activity which was not in accordance with the law was offered. Only he who has participated in the plan or the execution of the crime itself, that is, only he who caused the crime acted in a guiltty in the criminal sense. Aside from the Night and Fog complex the Prosecution has not offered any notable evidence. The meeting mentioned in Exhibit 545 was merely attended by von Ammon in the company of his Department Chief Vollmer. The measure of his participation in this meeting is shown by the fact that he made the record notes for his Department Chief.
In von Ammon the Prosecution sees the National Socialist activist, whom they connect with his sphere of work in this his basic attitude. Little need be said by me in appreciation von Ammon's personality: This ministerial officer embued by the duty imposed on him by his office, who only joined the party in the year 1937, is certainly no revolutionary Hitler adherent; even though - as a member of the Bund "Oberland" during his student years - a rifle was pressed into his hands on the occasion of the Hitlerputsch. The picture of his real character gained during the proceedings and shown by the affidavits of personalalities who already due to their positions give a guaranty for their objective judgment, is clearly evident.
It will be the key to the understanding of his intentions and actions.
The case of the defendant von Ammon does not evidence the facts of a war-crime or a crime against humanity, either objectively nor subjectively. I ask you for a verdict of "not guilty".
DR. SCHILF: Your Honors, may I take the liberty to indicate a few corrections of the record? The English Transcript of the Final Plea for Klemm is before me, and may I ask you to make the following amendments?
Official Transcript, English version, Page 9888: The seventh line from the top. It is not to red "17th of January 1944;" but rather "27th of January 1944."
The next correction is on Page 9913; Line 16 from the top. Instead of the name "Gluettgen"; it should read "Hagemann." "Hagemnnn" is to be inserted into this portion of the record.
The following is Page 9922; third line from the bottom, before the new sentence, the following is to be inserted: "With the exception of the cases Riedel Prosecution Exhibit 144."
And now the last that I have to say pertaining to Klemm refers to Page 9942, the 19th line from the top. It should not read "Klemm Exhibit 59" but rather it should read "Klemm Exhibit 70."
That is all pertaining to Klemm, and now one correction for Mettgenberg. Here, unfortunately, I am not able to indicate the page of the English version of the Transcript. This pertains to an interpolation, that is the third, before the paragraph III. Klemm Exhibit so is mentioned, which is to be changed to Klemm Exhibit 82.
This is all. Your Honors.
THE PRESIDENT: We understand that all of the final arguments for all of the defendants are now closed. You may address the Tribunal in behalf of the Prosecution, which has been allowed one hour and thirty minutes for closing.
MR. LAFOLLETTE: May it please Your Honors. As I recall the events of a few minutes ago, Dr. Brieger indicated that there was a mistake, and the matter, that I objected to, can be stricken from the record, With that understanding I have no further comment to make on that matter.
Also, it is probably needless, but I ask to be permitted to observe that it is not pleasant for lawyers to sit either as judges or to prosecute as prosecutors other lawyers. There is an understanding in a community and in the profession, Nevertheless, it is my personal conviction, which I feel I have earned the right to express as an individual, that there is to be and will be no development in the world unless we face squarely the necessity of man living together without the scourge of war. We also know today that whether a government be one which is called totalitarian or one which is considered to be democratic, that the waging of a war today requires a unification of effort of every person in a community to an extent which was undreamed of even twenty-five years ago---certainly fifty years ago, and unquestionably a hundred years ago, Consequently, it seems to me that we must face the facts in the world in which we live and recognize that you wage war today with many weapons;
Court No. III, Case No. 3.
and if there is to be any value, in my opinion, arising from the trial of twenty-two defendants, one in absentia, by the International Military Tribunal, for the hope of the peoples of the world wherever they may live, it is the value which arose out of the declaration which I consider to be true, that the waging of aggressive war at the time it was waged, was an international crime. If this was not true, all that the IMT judgment would have done would have been to result in the conviction of certain individuals under circumstances where a conquering power could have arbitrarily said there are so many f these people who are guilty, we will do without a trial or we will have an arbitrary determination of guilt and dispose of them.
But, IMT in my opinion was more. It is true that the world has not reached the point where jurisdiction is vested in any tribunal by which to try crimes which are crimes of international law because they are crimes against the human beings who occupy the earth, but so long as the conduct of the trial is one which is full opportunity for adequate defense, we need not be disturbed at this time about the failure f a competent tribunal in the sense that we understand competent from our national law experience, but it seems to me that it does follow that where the waging of aggressive war has been declared to be a crime, that it must follow that any persons within the government which has waged aggressive war, who with knowledge of the fact that aggressive war is being waged, take a consenting part in or are Connected with a plan or enterprise to wage that war and to secure to the aggressor the benefits thereof, must be held to have acted with an instrumentality for committing the crime of murder or the crime of imprisonment, whatever that instrumentality may be in support of that act.
It is interesting to note that twelve men were convicted of crimes against peace by the IMT, and that five men were only convicted of war crimes and crimes against humanity; namely, Kaltenbrunner, Frank, Sauckel, Speer, and Bormann; and of these two, Kaltenbrunner and Frank Court No. III, Case No. 3.were not indicted for the crime against peace.
It is also interesting to note that Streicher and von Schirach were found guilty only of crimes against humanity.
Now, I fail to see when this evidence establishes, as I believe it does establish, that these defendants in support of this criminal act used within their spheres of competence the judicial machinery to secure and make fast the so-called benefits or achievements of that wrongful act, that their connection with the crime or their taking a consenting part in it is any more removed than that of Kaltenbrunner or Frank; or, of Streicher or von Schirach, provided always that the evidence is sufficient to establish that relationship. But as a principle of law it seems if the world is to benefit from this thing, if we are to go forward, then as much as we may individually feel that certain of these defendants would within their hearts possibly have rather not acted as they acted, yet millions of people died and they shall continue to die unless we hold to the standard that no matter how much we may regret or how much we may be capable of understanding the conflicts, that the only standard which will insure to mankind a possible cessation of this thing called aggressive war is that we shall say that when you participate in it or you take a consenting part in it, you must be held responsible, If we do not say that, then what hope is there for man against an organized society, no matter where it may arise, which may again engulf the world.
And for myself, and I am sure I speak for all those who desire something better in this courtroom, judges, defendants and Defense Counsel and spectators; for myself no matter if the standards of guilt to which I am pleading here may be standards which some day I might have to come up to, I ask for them as something which in my firm conviction is to, establishment of a standard which may act act a deterrent to that which we have seen, so that men, some day on this earth -- I don't know whether they will turn to what we say here the standard for which I ask here ten years from now, or twenty years from now, or, may Court No. III, Case No. 3.be, until fifty or one hundred years; but, if what we ask for is sound -- that if you participate in an act which is calculated to guarantee to an aggressor the fruits of his aggression, if you take a consenting part in it, if you administer any part of that nation's government in a way calculated to guarantee or to acquire or to hold on to the efforts of a wrongful, felonious act, then you must be found guilty in the eyes of the world; otherwise, men who do such acts will feel free to do so in the future, and there can be no safeguard and no standards raised here, to which we may repair, worthy of the efforts which we have all made here.
I will now just briefly like also to refer to the standard which the Prosecution presented largely in its Appendix II by which the relationships set out in Law 10, Article 1, paragraph 2, are to be interpreted. Unfortunately I have not had the benefit of but a short time to peruse the first fourteen pages in English of Dr. Haensel's work, to which I know he put all his sincere efforts, but I do not believe that the Prosecution can be charged with attempting to set up any Anglo-Saxon standard of relationship to crimes which reacts detrimentally to these defendants or which reacts detrimentally to the concept that this is an international tribunal with which the Prosecution is in full accord, be have simply offered to the Tribunal for its copsideration certain rules based upon apparent logic and reason, by which liability for a criminal act may be determined. Certainly the words consenting part in or connected with a plan and enterprise cannot just be left up in a vacuum, apd what we have tried to do by our appendix is to offer that which appeals, we hope, to the Court's concept of reason and a proper interpretation of inferences to be drawn from facts and from relationships to criminal acts which gives some intelligible meaning to words which are not codified, and by which there is no fixed international standard to measure or interpret. And to that extent we wish to make it clear to the Court, certainly to the defendants and their Counsel, that we have offered these things as aids so that the Court No. III, Case No. 3.Court may make its own interpretation of this language which needs interpretation, we have not attempted to prove or bind the Court in its acceptance or rejection of that which we have offered to fix some standard which is unfair or which is not legally sound or intended as an artificial disadvantage to any defendant in this dock.
I think, Your Honors, if I talk any longer I would be consuming time. It may be that Mr. King might need a few minutes to be prepared, but it is better that we have silance than that I talk whan I have no more to say.
THE PRESIDENT: Will you notify Mr, King, please.
MR. KING: The Prosecution will not, and indeed could not, call the Court's attention in the brief time which we now have, to all of what we believe are misinterpretations and misstatements of facts which various defense counsel have made throughout the past weak of argument.
We should like to point out a few of these, with the additional thought, which is probably unnecessary to express to this court, that all of these oral arguments should be read critically, keeping in mind the documents which are in evidence. This is all we ask, and we are sure that the court in fairness to both sides will do that.
We first call the court's attention to the argument on behalf of the defendant Joel in which it was implied that the IMT took into consideration the alleged fact of von Naurath's honorary membership in the SS and found him not guilty of membership in that organization. This court, of course, knows that no defendant in the IMT was charged with being a member of the SS, the SD or any other criminal organization for the very reason that the IMT itself by its judgment, found such organizations to be criminal. In the verdict the IMT mentioned as an example, that Kaltenbrunner was a member of the SS, but it did not dettermine what defendants were or were not guilty of membership in the SS, for the reasons we have stated -- that they were not so charged.
As another example of misinterpretation, we refer to the argu Court No. III, Case No. 3.ment for the defendant Lautz in which it was stated that a French Court, in a decision contained in Lautz Ex. 166, had held that superior orders was a defense under Control Council Law 10 and had acquitted a defendant who used that defense.