On this point I also have a request to make regarding the correct tion of one expression used in the translation, That concerns the word "delivery" in the fifth line from the bottom on page 9. I would like to request that the German expression "Abgabe" be translated " transfer" or "extradition".
3) Ad numbers 11 and 23 of the Indictment:
Dr. Rothenberger never took part in the sentencing of political opponents for high treason. If the prosecution takes the view that non-exercise of the right of clemency after valid sentence applies, then in the cases in question with which Dr. Rothenberger dealt in the absence of Minister Thierack, an opinion having regard to factual and legal points will be given.
4) Ad numbers 14 and 26 of the Indictment:
Insofar as the four illegal executions which took place erroneously on S September 1943 in Ploetzensee may be referred to by the charge of illegal executions. Dr. Rothenberger's lack of responsibility will be demonstrated by the documents of the prosecution and by further evidence.
5) Ad numbers 16 and 28 of the Indictment:
Dr. Rothenberrer had no share in the preference given to Party members in clemency proceedings, as is also established on the basis of the documents of the prosecution. Nor did he take a responsible part in depriving the Jews, and others, of their civil rights, as will be shown in detail.
General Aspects of Criminality.
To understand the line of reasoning on which this presentation of evidence is based, attention is called to the following general criminalistic points of view which in themselves of course are known to the Tribunal. If, nevertheless, they are emphasized here, it is because the Tribunal is confronted with the extraordinarily difficult task of having to form a judgment of events, people and mental processes from a world of thought which is entirely alien to it.
1. ) Limited Sphere of Activity of individuals under a Dictatorial Regime.
Undoubtedly it is a characteristic of a dictatorial regime that the great majority of the population sinks into more than average passivity and paralysis of responsibility, in contrast to a democracy where the average citizens too, the majority of the population, display a far greater initiative out of the practical experience of their liberty and their own sense of responsibility. However, it is a certainty that the few, who, under such a regime, stand in opposition to the rulers and thereby are doing something which in a democracy would carry no risk worth mentioning, thus risk their lives and their liberty. Consequently, it is not possible to do justice to the circumstances involved if one minimizes the courageous actions of individuals in a dictatorial system by inept comparisons with conditions obtaining in a democracy. It is obvious, therefore, that the question to which degree an individual had the power and opportunity in a police-state system to call a halt to developments felt by him to be wrong, must in all fairness be judged by other standards.
2.) Necessity of individual method of observation.
A dictatorship blurs, especially to the foreign observer in a completely inconclusive manner the actually existing, great, individual and basic differences, on account of the "coordination" which to begin with was effected in the exterior sphere. Thus for example a German or Frenchman will hardly succeed in picking out one Chinese face out of a crowd of Chinese. One looks just like another. For that reason it is the more imperative to take into consideration the individual personality and its historic as well as geographical background -- like that which binds Dr. Rothenberger to the Hanseatic tradition of the old trading and harbour city of Hamburg - the more inapplicable generalization and standardization may lead to misjudging the specific importance of a personality end the particular nature of his work.
3.) Methodical ineptness of a retrospective view.
Evaluation from the point of view of criminal law is concerned with the possible participation in the commission of a criminal act and the possible personal guilt. It is decisive for judging a person's guilt to establish whether he shared in and had knowledge of the crime and whether he is conscious of it; so for instance in the case of the conspiracy which is alleged to have existed since 1933, knowledge of the criminal development of National Socialism since that time is decisive. In spite of some disappointments and bad experiences in individual cases, surely none of the defendants considered the National Socialist development in principle and as a whole as criminal, nor was he necessarily compelled to do so. It is not intended to question the statements of the I.M.T. about the destructive development of the NSDAP, which, according to Article X of Law No. 7, are binding until the contrary is conclusively proved. Nevertheless, it so happened that the National Socialist era produced a number of events and institutions which were either politically indifferent or even appeared as the expression of peaceful reconstruction; they were not mentioned in the findings of the I.M.T. Public opinion, however, was formed on the basis of those manifestations. Questions such as the revival of trade, the construction of Autobahnon, the elimination of unemployment, the creation of great social institutions, as for instance the National Socialist Public Welfare Association and the Winter Relief Scheme, continuously, year in year out, were in the limelight with the German public and overshadowed everything else, not to mention events in the field of foreign policy like the AngleGerman Naval Treaty, international sport events such as the Olympic Games, etc. The greater part of the population, even the educated classes, were not aware that unemployment was only eliminated by an ever ever more formidable increase of the economic capacity for the purpose of the coming war, and that the donations and subscriptions which the people collected by hard work for their social institutions disappeared in the gorge of rearmament.
Did not Hitler's protestations that the construction of Autobahnen in Germany was to be considered proof of Germany's peaceful intentions of reconstruction, and not as the expression of militaristic mentality, sound entirely convincing in view of the fact that should it come to the point these same Autobahnen would operate strategically to Germany's disadvantage, which actually did happen?
By his systematic, and indubitably extremely cunning propaganda policy, Dr, Goebbels brought about, step by step, a constantly increasing isolation from foreign countries, which made it more and more impossible to form a truly objective judgment about other countries and questions of foreign policy. It is true, treaties with foreign countries were heralded with much publicity as proof of the desire for amicable cooperation with other nations. Considering these circumstances were men, even those in higher positions as for instance Dr. Rothenberger, who did not have the slightest insight into matters of foreign policy, to show less confidence in the National Socialist leadership of the state than evidently was manifested by the foreign statesmen who concluded treaties with the Third Reich?
Suspicious events were not discussed by the press and the public and thus escaped public attention and judgment to a large extent. Insofar as dangerous practices of National Socialism were still discernible in domestic and foreign policy, they never appeared as naked facts before the German public, as is stated by the I.M.T. verdict, but were exhaustively "disguised" in comments, rendered harmless, or even excused and justified as the results of alleged intrigues by the opposing camp.
Without wishing to deny that there exists a certain predisposition on the part of the German people for the reception of authoritarian wisdom, bad though it may often be, one can not get around the fact that, based on the circumstances described above, the process by which Germans, even those on a higher level, arrived at an opinion and judgment, of necessity moved and was bound to move along certain lines.
The question as to knowledge of certain criminal acts and developments, or better yet, the question as to the recognition of the criminality of certain acts and developments as being criminal, can therefore be judged psychologically correctly only on the basis of all the conditions and contexts prevailing at that time. That applies in particular to war time, which, in all countries, produces special exigencies and places the strongest emphasis on certain desirable facts while suppressing undesirable ones. A retrospective method of observation which, in examining facts, does not put itself into conditions existing at that time, projects into the past, knowledge and opportunity of knowledge gained later on.
Applied to this trial, the above named method imputes to the defendants a knowledge, an awareness of the criminality of circumstances, which they did not have at that time and makes demands on their faculties of perception, which they could never have satisfied under the circumstances then prevailing.
VII. Principles of the Constitutional State:
"nulla poena sine lege" "nullum crimen sine lege" The inner connection between the afore-mentioned train of thoughts and the principles "nulla peona sine lege" and "nullum crimen sine lege" is obvious.
The question is whether facts constituting criminality were created after tho war by tho Charter of the London Agreement and the Control Council Law No. 10 which, in violation of tho above principles, are applied retroactively to previous acts, which at the time of commission did not constitute criminal acts. The resulting cardinal problem will be discussed by the Defense.
In this paragraph I ask you to translate the words "Verbrechens Tatbestaonde" not with "facts" but with "criminal charges". The 7th line from tho bottom of page 17.
VIII. Conclusions.
The great and famous American judge, Oliver Wendell Holmes, said in 1896: "The real reason for a decision are considerations of a political or social nature. It is orruneous to believe that a solution can be found solely with the aid of logic or general legal doctrines which no one contests." (Quoted from quotation in "Majority Rule and Minority Rights" by Henry Steele Commager, page 46 of the German translation).
The Defense can but concur in those words. The Defense requests therefore that consideration be given to its train of thoughts as derived from this attitude, and stated in VI, 3, which are the corollary of similar thoughts of tho prosecution, without the Court having to fear a misunderstanding concerning the above quotation.
THE PRESIDENT: You are speaking in behalf of which defendant? You are speaking in behalf of Engert, are you not?
DR. MARX: Defense Counsel for the defendant Karl Engert.
THE PRESIDENT: The secretary advises us that there is no copy in English of the opening statement for the defendant Engert. Can that be supplied to us?
DR. MARX: Excuse me, Your Honor, I can't understand what you are saying.
Your Honor, I can clarify this error without any further ado, because an opening plea on my part does not exist at all, and I wanted to make my statement because of that.
THE PRESIDENT: You have no opening statement to make in defense of Engert at this time, is that correct?
DR. MARX: Yes. Excuse me, Mr. President. In consideration of the existing situation at the present time and before tho medical examination of the defendant Engert has taken place, I do not consider it appropriate to show the lines that the defense will follow, because it isn't possible at all to do so, and cannot be brought into connection with a proper defense of this defendant. Lately it has not been possible to have a clear conversation with the defendant Engert at all. One could n t sneak to him about the questions which are of interest here, and he also showed a lack of ability to remember anything. To be sure it was possible during the presentation of tho case in chief of the Prosecution and on the basis of my own knowledge, of the defense's own knowledge of the law and the facts, to consult with the defendant, but the possibilities for the cross examination were created in the main by the defense counsel himself.
Therefore I request you to postpone the question of tho opening statement until the physical condition of the defendant Engert and tho question as to whether an amelioration of his condition can be expected has been decided by medical expert opinion.
THE PRESIDENT: The Tribunal will postpone the consideration as to the time at which the opening statement for the defendant Engert shall be made until such time as we have seen and examined the medical report. At that time if it is considered necessary and proper that the case should go on against the defendant Engert we will set a time for you to make an opening statement for him out of tho regular order. Is that agreeable to the Prosecution also?
MR. LAFOLLETTE: Yes, Your Honor. I would like for the record to show that the statement of the Tribunal is agreeable to the Prosecution.
THE PRESIDENT: Then we will hear the next opening statement.
DR. GRUBE (For the Defendant Lautz): May I begin my opening statement?
The Prosecution in its arraignment of Lautz has obviously started from 3 wrong suppositions. Tho first erroneous supposition was that Lautz evidently was confused with the Ministerial Official Letz and therefore it was erroneously assumed that Lautz had also been working in tho Reich Ministry of Justice. Only thus can it be explained why in several counts of the indictment with which the Prosecution is expressly charging the Reich Ministry of Justice. Lautz also is mentioned. I do not want to lose myself in details. That the defendant Lautz never worked in tho Reich Ministry of Justice has been proven without a doubt by the evidence submitted so far. But beyond that, I shall furnish proof that Lautz did not take part in any of the measures with which the Reich Ministry of Justice is charged.
The second erroneous supposition from which the Prosecuting Authority sets out is the assumption that there was only one Chief Reich Public Prosecutor, viz.
defendant Lautz. The evidence taken so far has shown that besides the Chief Reich Public Prosecutor of the People's Court, viz. the Chief Reich Public Prosecutor at the Reich Supreme Court. It is due to this error on tho part of the Prosecution that matters have been made the subject of this trial with which defendant Lautz had nothing to do. It is the nullity plea for instance of which I am thinking here; I shall prove in the course of my submission of evidence that this nullity plea could be filed only by the Chief Reich Public Prosecutor at the Reich Supremo Court and not by the Chief Reich Public Prosecutor at the People's Court. It is due to the same erroneous supposition on the part of the Prosecuting Authority, according to which there was only one Chief Reich Public Prosecutor, that in the "Information on the outlines of the German judical system, "which was submitted by the Prosecution at the beginning of the trial, it is started on page 5:
"The criminal prosecution in cases before the People's Court and before the Special Courts, as well as those before the ordinary Courts, lay in the hands of the Chief Reich public Prosecutor. Defendant Ernst Lautz was Chief Reich Public Prosecutor". I shall prove in the course of the evidence to be submitted by me that defendant Lautz was not a superior official to the Public Prosecutors of the Special Courts and other Courts and that he was not competent for the criminal Prosecution of those crimes for which the People's Court was competent, and that he was a superior official only in regard to the personnel of the Reich Public Prosecution at the People's Court. The position of defendant Lautz as Chief Reich Public Prosecutor at the People's Court did not differ in any way from the position of the Chief Public Prosecutors at the District Courts.
Court No. III, Case No. 3.
After these two points have been clarified there remains of all the accusations made against defendant Lautz only the one reproach of his being jointly responsible for the criminal trials carried through by the People's Court. This brings me to the third erroneous assumption on which the indictment against Lautz is based. It is the fact that the Prosecution Authority in its indictment against Lautz, as well as the other Reich Public Prosecutors under indictment here, obviously started from the assumption that the function and position of a German Public Prosecutor are the same as that of the Prosecuting Authority in Anglo-American criminal procedure. As will be proved by the evidence of the defense, the position of Public Prosecutor in the German criminal procedure, as well as the position of the prosecution in general in European jurisdiction, always has been and still is today fundamentally different from that of the Prosecution in Anglo-American jurisdiction. The evidence will prove that the position of a German Public Prosecutor in relation to the law, the Ministry of Justice and the Court in General, as well as his function in individual criminal trials, always have been such that he cannot be made responsible in criminal law for the sentences and their execution, neither objectively nor subjectively. The indictment in the case in question is based amongst other things on the general principles of penal law, such as they are contained in the penal laws of all civilized nations. As an example of this, the Prosecution has quoted legal statements by the judges Stephen and Holmes in its verbal statement. These legal statements concerning penal responsibility are not complete, however. I shall prove by further quotations from legal statements by these two judges, that also according to Anglo-American conceptions the German Prosecutor is not responsible before criminal law for the sentences, provided one really starts from the position which the public Prosecutor always held in relation to the law, to the Ministry of Justice and the Court, and from the functions which he carried out in accordance with German law at all times in individual criminal trials.
Court NO. III, Case No. 3.
Although I am convinced by virtue of this legal question that defendant Lautz cannot be made responsible under criminal law for the sentences pronounced by the People's Court, I shall nevertheless help to prove by my submission of evidence that the People's Court was an unobjectionable institution, that any trial before it gave the defendants every guarantee of justice and that the sentences of the People's Court and their execution did not constitute any violation of International Law, of the general principles of penal law or of Article II of Control Council Law No. 10.
I furthermore shall prove that the defendant Lautz had nothing to do with penal administration. It will be proven that the prisons were not subordinated to him and that he had no possibility of influencing them or the execution of penalties in any way. As has already been stated it will be proven in the course of the general defense that already for legal reasons a condemnation of those arraigned here for conspiracy is not possible. I shall moreover take the precaution of proving that defendant Lautz did indeed not participate in any conspiracy. Lautz is a specialist official in particular. He owes his advancement to higher Government positions exclusively to his specialist achievements. This is already proven by the fact that he was promoted to Chief Reich Public Prosecutor of the District Court I in Berlin on 13 May 1932, i.e. before Hitler seized power. At that time only such men were appointed to this important office who were destined, should they prove their efficiency, to be appointed General Public Prosecutor after a short time or to be called to some other equally important office. This is already clear proof of the specialist qualities of defendant Lautz. Taking into consideration the fact that Lautz at that time was appointed to the office of Chief Reich Public Prosecutor by the Prussian Republican Government, although he had no connections whatsoever with the authoritative political parties, renders this proof even more unmistakably clear. The course of his career was not so extraordinary therefore when Lautz in 1336 was entrusted with the direction Court No. III, Case No. 3.of the Public Prosecution in Berlin and in 1937 was appointed General Public Prosecutor in Karlsruhe.
Ont of the witnesses of the Prosecuting Authority, Pfarrer (Vicar) Wein, had stated during the course of his interrogation before the Court: "Under Guertner conditions were human. He was like a rock amidst surging waves". As will be proven by the evidence to be taken, Lautz was appointed in 1939 to the office of Chief Reich Public Prosecutor at the People's Court by this Reich Minister of Justice, Guertner, for the very reason that Guertner and the circles supporting him, who advocated a clean, moderate and fair justice wished to prevent that this office should be assigned to some unscrupulous member of the party. I shall prove by several witnesses and numerous affidavits that Lautz, as a lawyer of the old school, was guided solely by the ideal of the constitutional State, previous to 1939 as well as after 1939, and that he never disabused the trust bestowed on him by Guertner and his circles."
DR. SCHILF (Attorney for Defendant Mettgenberg):
May it please the tribunal:
1.) The presentation of my evidence concerning my client, Dr. Wolfgang METTGENBERG, will be limited. This results particularly from the fact that although the indictment of 4 January 1947 has raised numerous charges against him to be the same, but the prosecution in its presentation of its evidence was unable to produce anything at all against my client on several counts.
Regarding count I of the indictment, the charge referring to the common design and conspiracy, I shall, as a matter of fact only have to discuss the position of my client in the organizational structure of the Ministry of Justice. In accordance with the statements made by the defense as a whole, especially with regard to the so-called "Fuehrerstaat" and the concept of "conspiracy". I shall show that Dr. METTGENBERG within the Ministry, in which hundreds of legal expects were active, can in no case be accused of any influence whatsoever on Court No. III, Case No. 3.the illegal interpretations of law or on actions contrary to law.
Dr. METTGENBERG was appointed to the Reich Ministry of Justice already in 1920. At that time, he was already well known as an expert in matters pertaining to international criminal law, especially pertaining to extradition law. Already from the year 1905 onwards he distinguished himself by publications in this field. Within the Ministry, he conducted in an official capacity numerous negotiations with foreign governments. His name appears on several treaties between states concerning international law, in this way it appears on the treaty of 12 July 1930, which was concluded between the government of the United States of America and the German Reich. He always considered the problems and tasks of International Criminal Law as his life's work and the goal of his scientific endeavors. Up till 1944 he also continually wrote about these questions. I shall be able to submit a list of these works, papers, of my client to the Tribunal and shall be able to refer to the fact that he too helped in laying the foundations for the reputation which the German jurisprudence enjoyed abroad - and not the least in the USA - in the sense of the statements made by General Taylor himself in his opening statement of 5 March 1947 in whose opinion, however, this reputation existed only up to 1933 in foreign countries.
Dr. METTGENBERG was never a member of the Party and his views were not close to the National Socialist ideology. Consequently, he was purposely excluded from some tasks in the Ministry. Only after 16 years of recognized scientific activity in the Reich Ministry of Justice did he attain the position of a director, of a director of a subdivision, with the title of Ministerial dirigent. As such, he was subject to the orders of his superior offices in all the fields of his activity.
The position of a director of a director of a subdivision in the Reich Ministry of Justice is difficult to describe, and in the structure of the Ministerial bureaucracy, it showed such a position cannot be un Court No. III, Case No. 3.equivocally established.
In the presentation of my evidence I shall attempt, to give a picture of this situation in order to make clear what a shifting and hybrid position that of a sub-division chief was Inasmuch as the prosecution, contrary to the statements in the indictment, has produced neither documents nor evidence nor witnesses relative to the majority of counts in the course of its presentation of evidence, I shall, in the presentation of my evidence, be able to indicate that the prosecution in its accusations has gone far beyond its self appointed goals.
This will make possible conclusions of importance to the remaining charges, which the prosecution believes to have substantiated through the evidence produced.
The indictment declares under Count II (the assertion of procedures contrary to international law) and in Count III (assertion of inhumane procedures) that Dr. Mettgenberg too was responsible for the exceptional legislation against foreign peoples. (Point 10 and 22 of the indictment). I can already state at the opening of my defense that the prosecution has produced no evidence whatsoever in support of this assertion.
The same applies to the statement that Dr. Mettgenberg had acted contrary to law by extending and distorting such criminal laws when passing judgment and in the execution of sentences passed. (Points 11 and 23 of the indictment). That, too, remained a mere assertion. Merely from the position held by my client in the Ministry it can be seen, that this charge was unfounded from the very beginning. My client participated neither in the passing of judgment nor in the meting out of such punishment, as has been defined by the prosecution as illegal extension of the concept of "high treason".
The same result appears for the Prosecution with reference to points 12 and 24 of the indictment. No evidence has been introduced against Dr. Mettgenberg on the basis of which it might be assumed, that he was too instrumental in establishing emergency legislation for illegal annexation of non-German countries. This survey of the evidence presented by the prosecution enables me to limit my evidence.
The prosecution has presented only very few documents relative to points 14 and 26 of the indictment. In all cases it is a question of the "proceedings which were handled in Department IV of the Reich Ministry of Justice.
The Tribunal will recall that this Main Department IV has been described as the division for the Administration of Criminal Law. Thus it was the section of the Ministry which dealt with the administration of matters of criminal law. This Division treated above all general questions of criminal law and, in contrast to the Main Department III, which was in charge of the legislation in criminal cases, the laws were formulated, insofar as basic problems of criminal law(substantial law) and penal procedure, that is, law of procedure, were concerned. For this purpose Department IV issued directives which served to explain the legal provisions. Further it had to supervise courts, prosecution authorities and other judicial offices in reference to the uniform observance of legal provisions.
Within this Main Department IV, gradually five subdivisions were created. In his capacity as the director of merely one such subdivision, Dr. Mettgenberg consequently handled only a very limited section of the large organization of a central judicial body. In my presentation of evidence, I shall have to go into details regarding the sphere of duties of this subdivision. I believe I am right in presenting already now to the Tribunal a brief description of the field of activity of this subdivision thereby putting a guide at the disposal of the Tribunal, when I shall begin to expound my case with respect to the complicated structure of this section which is difficult to survey:
My client was occupied essentially with the following questions although organizational changes within Department IV took place and although the matters to be handled, varied continuously.
a) with all questions of international criminal law, that is particularly, with the law which pertained to extradition to foreign governments;
b) with the co-examination of general directives, which had to be issued continually relative to procedure to be followed in criminal cases according to the German Code of Criminal Procedure.
c) with the co-examination of directives, in which cases the subdivisions of the Central Judicial Authority had to report on the activities relating to their geographically limited area of competence.
d) with the co-examination of general directives which concerned the formulation of the statute law pertaining to the infliction of punishment.
In this respect too directives for procedure are concerned. The sphere of activity was therefore completely separated from the problems of the practical execution of punishment, which were handled by a special Main Division, namely the Division V of the Ministry.
I will submit documents in order to give some idea of the field of activities and of my client's method of work. This will prove that the few documents submitted by the prosecution concerned only an infinitesimal part of the activities of Dr. Mettgenberg and that from that incoherent evidence, moreover, nothing contrary to International Law and no violation of human rights appears.
Besides this sphere of activity concerning criminal cases, defined according to factual points of view, the supervision of some of the "District Experts" (Bezirksreferenten) was assigned to my client from time to time. As far as general criminal matters were concerned, these referenten of the Ministry supervised local districts, namely different districts of Courts of Appeal. In this respect, the practice of the courts was to be followed to heed interference of other authorities in pending court procedures and to thwart them; attention had to be paid also to the securing and observance of the law, and to its correct administration and interpretation.
"As far as this supervision was excercized by the subdivision of my client, it was limited to the general criminality, too: it therefore corresponded to the above-mentioned sphere of activity as a subdivision chief.
These "District Departments" (Bezirksreferate) were not competent for fields in which the prosecution seems to be especially interested according to the indictment; namely cases of high treason and treason, of undermining of the fighting morale, of criminal cases concerning the war economy, of the practice of pardoning in cases of death sentences and the like. For these cases Special Departments (Sonderreferate) were created and assumed to other subdivisions. My client was not active in such a Special Department.
THE PRESIDENT: Doctor, we will take our recess now for fifteen minutes. You may then resume.
(A recess was taken.)
THE MARSHAL: All persons in the courtroom will please find their seats. The guards will please close the door.
Military Tribunal No. III is again in session.
THE PRESIDENT: You may proceed.
DR. SCHILF: Before the recess I spoke of matters which are of interest to the Sub-Division Head, and I am now continuing.
"When presenting the evidence, which will be supported in the first place by calling the defendant himself to the witness box, it will be shown that my client in his work was chiefly concerned with problems of general criminality and that everything else remained in the background. In doing so, he experienced an activity in a way similar to the manner in which any control authority of the Administration of Justice in the world would have to act.
"Many problems which were to be handled by Division IV, did not concern a sub-division chief at all but were decided upon by the Division-Chief - a Ministerial Director - alone together with his specialists and without the cooperation of the sub-division chief. These cases directly subordinated to the Division Chief did therefore not belong to the sphere of activities of Dr. Mettgenberg. In exceptional cases only, if the Division Chief was prevented from doing so, my client could accept reports or make decisions in less important cases.
"I am sorry to have to expound this complicated organizational structure, but this is essential, because in every case I must make clear to the Tribunal, in what capacity Dr. Mettgenberg had become active from case to case.
"The prosecution submitted no evidence to the fact that my client as an expert of International Penal Law was chiefly handling problems of International Penal Law, especially matters of extradition law. As such he belonged to the Main Division III of the Ministry as a special expert (Referent).
"While the prosecution submitted only very little evidence dealing with the fields of activities outlined above, considerable evidence was submitted against my client as far as the charge of violation of international law and principles of humanity in handling the socalled Nacht- u. Nebelsachen (Night and Fog cases) (Counts 14 and 25 of the indictment) were concerned.
"In the presentation of my evidence I shall attempt to attach weight to the fact, that my client was well aware of the principles of international law. From 1905 on as already stated he distinguished himself publicly in such questions and had to handle them already since 1920 as a ministerial official. He, therefore, had the prerequisites to recognize, where approximately a law issued by Hitler disregarded the limits of recognized International Law. When he had to deal with these NN-matters for the first time in fall 1942 in the Ministry, the basic problems of international law were already clarified. It was especially made clear, that the transfer of foreign civilians, who in themselves were subject to the jurisdiction of Court Martials, to Courts in Germany proper, only required a decision of the military commanders in the occupied enemy territories. The general defense has already pointed out, that the legal basis for such a transfer was art. 3, paragraph 2, sentence 2 of the decree concerning Court Martial procedure during the war and concerning special military actions (Code covering criminal proceedings in wartime) - KSTVO. The general defense already pointed to the fact, that this law was decreed by Hitler himself together with the Chief of the Supreme Command of the Wehrmacht without consultation of the Ministry of Justice. The above mentioned legal provisions only conceded to the OKW (Supreme Command of the Wehrmacht) or the competent offices supervising justice administration the right to decide in which cases these foreign civilians were not to be subjected to Court Martial proceedings in the occupied Western areas of Europe. By the "transfer" (Abgabe) of these perpetrators who committed any punishable act against German troops or against the Reich, their cases became subject to the judicial power of the courts in Germany proper.