THE PRESIDENT: Were all of your documents from N-94 through N-103 identified before?
DR. WANDSCHNEIDER: Yes. They were identified but, as a matter of form, they now have to be received because now the translations are available and I just wanted to attend to that matter now.
THE PRESIDENT: Give us the exhibit numbers, please. 94?
DR. WANDSCHNEIDER: That is Exhibit 80.
THE PRESIDENT: 95?
DR. WANDSCHNEIDER: Nothing; 96, nothing. Document 97, Exhibit 81. The next two numbers will be dropped. Document No. 100 is Exhibit 82. The next number is 83. Document No. 102 is Exhibit 84, and Document No. 103 is Exhibit No. 85.
THE PRESIDENT: They are all received.
DR. WANDSCHNEIDER: Thank you very much. I believe I have now cleared up all the matters pertaining to these Supplement Volumes 2 and 3.
DR. KOESSL: Koessl for the Defendant Rothaug. I have just found that the information sent out that Rothaug Document 234 which I had offered as Exhibit 225 has now been handed to the Secretary-General in English and I would ask the Tribunal now to receive this exhibit. Document 237 was offered today as Exhibit 225. These are extracts from the personal files of the District Court of Appeals at Nurnberg concerning Hermann Gottfried.
THE PRESIDENT: Book 13, Document 237 is received as Exhibit 225.
DR. KOESSL: That is all.
MR. KING: The Prosecution has two corrections of the English text of Documents offered by the Defendant Joel and the Defendant Lautz.
In the English text of Joel, Document 35, Exhibit 25, a slight error was made in the translation and we offer herewith a certificate of correction signed by the translator who made the original translation of that document.
The other correction concerns Lautz Document 287 which was Lautz Exhibit 184. The original translator in that case has also certified to the correction. We have adequate copies for the Court and the Defense counsel concerned and we will hand those up now.
THE PRESIDENT: I have a correction for the Joel exhibit, but not for the Lautz exhibit. I have it now.
Are we to understand that both the Prosecution and each of the defendants have now rested their case?
Hearing no objection, we declare that the testimony is closed.
Just a moment, Mr. LaFollette. We are informed tha.t Lautz VIII and Schlegelberger Supplement III have been delivered. They will both be received in evidence.
We will now again close the case.
The Prosecution may address the Court in its final argument.
MR. LaFOLLETTE: May it please Your Honors, the Prosecution in this case believes that this is a lawsuit, not a pageant. We have tried to conduct it on that basis. We hope to conclude it with a closing statement, so organized that it will enable man, on the exercise of his reason alone, to understand that which we do here.
We believe that a better understanding of what is being done here will follow if we reduce the crimes committed under International Law to terms that are understood by the layman and lawyer in the civilizations which have drafted or adhered to Control Council Law No, 10, and, before it, the London Agreement and the Charter. We shall speak of corpus delicti, homicide, unlawful imprisonment, forcible entry and detainer, malice, intent, responsibility, consent and similar definitions and the reasoning by which the guilt of felons is determined in the national criminal laws of those nations. From these definitions we hope to prove that there is no new mysterious law invoked here; nothing novel in the crimes committed here and no romantic martyrdom attached to the conviction of the common felons who are the defendants here.
We shall argue the guilt of the defendants under the crimes charged in the indictment in that order. We shall in the case of each crime which we discuss establish (1) the corpus delicti of the crime, (2) the guilty relationship of each defendant to the corpus delicti as that relationship is defined in Contro.
Council Law 10; (3) the rules of evidence end procedure governing the proof of guilt of the defendant; (4) that the crime is adequately alleged in one or more of the Counts of the Indictment and finally, we shall discuss the defense which is being offered by each defendant so far as we can discern it.
We are filing with this closing statement, and making a part of it by reference, appendices numbered 1 to 4 inclusive covering the following legal subject matter:
1) The Rules of Malice, Intent, Purpose and Responsibility which apply here;
2) The Rules by which the Relationships set out in Law 10, Art. I, Par. 2 are to be interpreted;
3) Definitions of the Crimes which are punishable under Law 10;
4) The Rules of Interpretation of Criminal Statutes and of the Rules of Procedure which apply here.
We shall also file with and make a part hereof in the same manner, an Appendix No. 5 containing a review of the evidence relevant to the Nacht und Nebel decree.
We shall not read these appendices, but we ask that they be incorporated in the Transcript of the Record as a part of this final argument, along with the footnotes which we also shall not read.
At this time I ask the Tribunal if it will make such a ruling that they may be considered as part of the transcript.
THE PRESIDENT: They will be incorporated in the transcript of the record.
MR. LA FOLLETTE: Transcript of the record, yes. Thank you, Your Honor.
Finally, in this introduction we wish to dispose of the subject of the corpus delicti involved here, because we believe it will make more readily understandable that which we do here.
For crime under International Law too has its corpus delicti.
Wharton's1 contains the following succinct statement of the simple elements which are inherent in every criminal act.
"Sec. 349. A criminal charge against an accused involves both the commission of the offense and his guilty agency in connection therewith, and both these propositions must be fully established... Thus, in a prosecution for murder, proof of the corpus delicti involves the establishment (1) that the person named is dead, (2) that he came to his death through the criminal act or agency of another human being; but such proof does not involve the establishment of the guilt of the accused; this requires the further proof (3) of the agency of the person accused in bringing about the death."
It is, of course, clear that the legally inferrable death of factually ascertainable human beings must be established. It is equally clear that the second element of the corpus delicti, the criminal "act of agency", is not established in this case until the Prosecution establishes as a matter of law, as in a murder case for example, that the person came to his death through the "act or agency" of another human being (not necessarily one of the defendants) which was "criminal" under international law, Finally, the "agency" of each defendant is determined by the provisions of Art. II, Par. 2 of that la.w.2 This case is, after all, a normal criminal action.
The fact that some persons who are dead cannot be identified by name3 does not 1. Wharton's Criminal Law (12 Ed. 1932). Hereafter all references to Wharton or Wharton's refer to the above authority.
2. The purpose of Appendix 2 is to show the simple, well known standards by which this definition of agency is to be interpreted.
3. The 500 to 800 prisoners shot at Sonneburg (Tr. 2421, Ex. 293), the persons transferred to Mauthausen (Tr. 2942), and other concentration camps (Tr. 2946, 2961); the fifty to sixty Jews of Wuerzburg out of the 2063 deported to the East, who one witness personally knew never came back (Tr. 9258, 9260). Is the spirit of the law violated if the dead at Sonnenburg are not given names? Is it an inference repugnant to the law to find that persons sent to Mauthausen, Flossenburg and Auschwitz died there (Tr. 2942, 2946, 2961). Or that Jews sent to the East and never heard of again are not dead?
If so, then away with the law, for its spirit is not logical or rational, but idiotic and sinful.
prevent the corpus delicti from being established to the satisfaction of the most meticulous adherent to the substance and purpose of that legal concept; the fact that the "act or agency" may be novel does not alter the fact that in the final analysis it is criminal; the fact that the words "a consenting part in" or "connected with plans and enterprises" heretofore may not have been used to define a guilty relationship to a crime, does not detract from the fact that the relationship to the corpus delicti, thus defined, is one which has long been accepted as criminal by the legal systems of the initiating and consenting nations.
In Appendix 2 the Prosecution has demonstrated that the "plan or enterprise", defined in Law 10, Art. II, Sec. 2, is not one in which only these defendants or even one in which only the Reich Justiz Ministerium was engaged. The law, therefore, is complied with if the "plan or enterprise" is proved to be one, criminal under Law 10, which the Nazi Government, acting through individuals in their official capacity, was engaged in carrying out. The guilty "act or agency" of any of the defendants is established if he had knowledge of that "plan or enterprise" and then was "connected with" it, or took a "consenting part" in it. We present this basic premise a.t the outset for two reasons. First, it makes the position of the Prosecution more easily understood; second, an acceptance of the correctness of this interpretation will enable the Court to properly evaluate the defenses so often heard during the presentation of the defense, namely; "The Wehrmacht wanted it and the Ministry (of Justice) could do nothing about it." - "That was Hitler's Order - the State and we had to go along"; - "Bormann and the Party Chancellery persuaded Hitler to do it"; or "Himmler and the SS did it and we had to agree."
A study of the Indictment, the law and the proof in this case discloses that most of the defendants are involved in one or more crimes which the prosecution has chosen to denominate as major crimes.
This designation of major crime is not applied because the crimes are more important or more heinous. It is made solely because it will readily appear from the evidence that certain defendants occupied one of the guilty relationships defined by Par. 2 of Article II of Control Council Law No. 10 and discussed in Appendix 2 to certain basic crimes. We conclude, therefore, tha.t we will make a clearer presentation of the Prosecution's position if we first establish that these crimes have been committed and then establish the guilty relationship to this crime of each of the defendants involved in its commission.
The Crimes Committed by the Enactment and Enforcement of the Law against Poles and Jews.
The corpus delicti of this crime lies not only in the abundant proof of the death of Poles and Jews pursuant to this decree and its extensions, but also in the promulgation of the decree in which certain of the accused, particularly Schlegelberger, took a leading part with full knowledge of its criminal purpose and its basic violation of international law.
This decree of 4 December 1941, among other things, ordered Poles and Jews in the Incorporated Eastern Territories to conduct themselves in "conformity with German law and regulations" and to abstain from conduct liable "to prejudice the sovereignty of the German Reich or the prestige of the German people".4 The decree provided that the death penalty "shall be imposed" against Poles and Jews if they commit an act of violence "against a German on account of his being of German blood". In cases where the death penalty was not provided the decree stated that "it shall be imposed" if "particularly objectionable motives" or "grave reasons" were shown; juveniles could be sentenced 4. Pitra, a Pole, was convicted by the defendant Cuhorst for having sexual intercourse with a German woman, not only with her consent but at her amorous instigation.
to death (at that time German juveniles could not be), and a Pole or Jew could be prosecuted "if punishment is in the public interest". Other provisions related solely to the Incorporated Eastern Territories and, others to the Government General, under the "beneficent" Hans Frank, who has been denounced in this case by the defendant Schlegelberger, Klemm and Rothenberger.
We must keep in mind that the patent purpose of this law was not to preserve order in the Incorporated Eastern Territories, a. concept which finds justification in international law. There is no modern history precedent to match the purpose of this decree even if we look to the imposition of German law on the Belgians during the first World War which was itself declared as an unlawful act. This decree was for, and only, for the punishment of crimes by Poles against Germans and had no relation whatsoever either to the requirements of military necessity or the keeping of domestic order in Poland for the benefit of a Polish nation composed of people enjoying the privileges of full citizenship.
We shall demonstrate the corpus delicti of this crime by summarizing the evidence in this cause shoving: (a) that Poles and Jews were summarily put to death, turned over for extermination in concentration camps or imprisoned, tortured and subjected to ill-treatment; (b) that each individual defendant accused hereunder knew or must be charged with the responsibility for knowing that the decree and its extensions were introduced and applied for "political" purposes and that its promulgation and enforcement had no relationship to "military necessity" and as such that it was in violation of the Hague Convention of 1907, and; (c) that the actual drafting of the basic law was performed by the defendant Schlegelberger and others in the Reich Ministry of Justice who shaped its purpose to murder, enslave, imprison and torture other human beings with full knowledge of its criminal character; and lastly, that the various crimes, as have been set out in (a), (b) and (c) above, were effectuated in part by courts operating under the jurisdiction of the Reich Justice Ministry, by the People's Court and by other courts passing sentences pursuant to the decree and its extensions with knowledge of, consent of, and under the direction of the Reich Ministry of Justice.
We now review, although not exhaustively, the evidence necessary to establish beyond a reasonable doubt the corpus delicti and the guilty agency of each of the accused.
Proof that Poles and Jews were sentenced to death, turned over to the Gestapo for extermination in concentration camps, sentenced to prison and subjected to ill-treatment is established by the following evidence. In Poland these facts are clear from the Polish Government report which is Prosecution Exhibit No. 3795 and by reports from German Justice officials themselves in Poland.
6 In Germany the facts are established by the dozens of sentences against Poles by Special Courts7, and by the People's Court.8 A report of the Reich Justice Ministry shows that approximately 62,000 defendants were tried before German courts for violation of the decree during 1942 alone.9 The defendants accused who were principals or took a consenting part in these crimes did so with knowledge, or with every opportunity to know, that their acts were violations or international law.
The official publication of the Reich Justice Ministry, Deutsche Justiz, in articles beginning shortly after the decree became effective, made it clear that the primary purpose to be gained was "political". In one of the first of these, from the issue of 19 December 1941, Freisler expressly stated that the purpose was to establish "Germanism" in Poland.10 He goes on to say, "Thus also without express legal permission, the application of German penal law was legally founded."
5. Tr. pp. 2578-2582.
6. Ex. 350, NG-360, dated 28 Febr. 1941; Tr. pp. 2527 Ex. 353, NG-211, dated 30 Apr.
1940; Tr. pp. 2529 Ex. 351, NG-309, dated 22 Sept.
1943; Tr. pp. 2528 Ex. 352, NG-305, dated 1 Oct.
1943; Tr. pp. 1529 Ex. 366, NG-318, dated 8 Oct.
1942; Tr. pp. 2549 Ex. 367, NG-329. dated 27 Aug.
1942; Tr. pp. 2549 7. Ex. 186, NG-337, dated 26 Oct.
1942; Tr. pp. 1235 Ex. 201, NG-457, dated 29 Oct.
1943; Tr.pp. 1487, 2968 Ex. 244, NG-459, dated 26 Jan.
1945; Tr. pp. 2103 Ex. 152, NG-154, dated 13 March 1943; Tr. pp.
1015 Ex. 154, NG-681, Tr. pp.
1060 Ex. 197, 632-PS, Tr. pp.
1477 Ex. 232, NG-563. Tr. pp.
1634, 3934 Ex. 465, NG-1253, date:
June 1943; Tr. pp. 3277. 3283, 3303 Ex. 147, NG-562, dated 30 Aug.
1943; Tr. pp. 1075 Ex. 227, NG-161, Tr. pp.
1561 8. Ex. 128, NG-355. dated 24 Feb.
1942; Tr. pp. 844 Ex. 129, NG-352, dated 12 Aug.
1942; Tr. pp. 852 Ex. 130, NG-641, dated May 1943; Tr. pp.
864 Ex. 132, NG-351, dated 21 May 1943, Tr. pp.
877 Ex. 133, NG-642, dated 24 Feb.
1942; Tr. pp. 881 Ex. 134, NG-597, dated 22 Feb.
1941; Tr. pp. 890 Ex. 135, NG-354, dated 21 Apr.
1943; Tr. pp. 898 Ex. 136, NG-595, dated 20 May 1943; Tr. pp.
902 Ex. 137, NG-596, dated 17 Dec.
1941; Tr. pp. 908 Ex. 138, NG-613, dated 4 Sept.
1943; Tr. pp. 914 9. Pros.
Ex. 507 10 Ex. 627, NG-1187 Tr. pp.
9351 In the same article Freisler also states:
"Therefore the interpretation of the penal laws and the creation of penal laws as a whole as well as in any individual case was always subject to the motivating thought of the aims of the German political work in these Gaus."
And finally, also from Pros. Exh. 627, Freisler says:
"Thus the introduction of German Penal Law into the annexed Eastern territories has filled a requirement which ha.d already become evident... for it had actually happened that Poles had so far mistaken their position under the national legal status of the annexed Eastern territories that they tried to go to law with private - or joint suits."
And even more significant is the statement of Freisler, which the defendant Schlegelberger testified he saw and approved11 in which Freisler makes the following assertion:
"The political task of the administration of criminal jurisdiction is not at all incompatible with justice. The directives for arriving at a just decision, especially in the case of the law pursuant to Cipher II, in the criminal jurisdiction for Poles are derived by viewing the German people and the Reich as a whole in regard to the necessity of the State, the judicial comprehension of which is given by the political aim of German work in the annexed Eastern districts."
The acts of the accused were patently in violation of the Hague Convention of 1907, particularly Article 43, which the Prosecution has set out in detail in Appendix 4 to this statement. As we have pointed out, if there is evidence that the accused were "absolutely prevented" from respecting the "laws in force in the country", i.e., Poland, it is incumbent upon them to present that evidence. This is an affirmative defense which the accused are obligated to make in their own behalf if, in fact, such evidence exists. On this matter the accused are eloquently silent. A search of the record in this cause reveals not a scintilla of evidence that the accused made any investigation of the "military necessity" even in attempted justification of the criminal acts which became their own routine. "Military necessity" is the only affirmative defense available to a charge of violating the duty imposed, by the laws and customs of war, upon an occupying 11.
Tr. pp. 4449 12.
Schlegelberger Ex. 27; Document 61; Tr. pp. 4601, 4603. See also Tr. pp. 4450 power to observe the laws of the occupied countries.
If there is no proof on that issue, and the fact that the defendants have failed to respect the laws in force in Poland is established beyond a reasonable doubt, as it is here, then a War Crime defined and prohibited by Law 10 has been established as a matter of law. It remains only to prove the guilty relationship of the defendants to the crime.
This decree , as the record shows, was not only imposed on Jews and Poles in the Eastern Territory and in the Government General, but, Secs. 1-IV13, were also applied in the "Alt Reich", or Germany before the expansion denounced as aggressive by IMT. Poles were tried under it in the "Alt Reich" until the end of hostilities.
In the cases involving prison terms and death sentences passed under this law against Poles in the "Alt Reich" we point out that, in the absence of any showing to the contrary, under all the facts in this case this Court can find as an ultimate fact that none of these Poles were voluntarily in the "Alt Reich".14 Poles most certainly knew of these things. Knowing them, it is equally certain they would not expect better treatment in Germany itself. If the count adopts this view of the evidence, then it follows that the application of the Law against Poles and Jews in the "Alt Reich", and to Poles forced into the "Alt Reich" after German occupation of Poland, is still a violation of Article 43 of the Hague Convention. Certainly Germany by wrongful removal of Poles from Poland, where the application of the decree was clearly unlawful, to Germany cannot thereby evade the 13.
Pros. Ex. 112. (NG-715, Bk II, p. 51) 14.
Pros. Exh. 379. (Polish Govt. Rept.) and Reports by German officials of their abuse and mistreatments of Poles in Poland Ex. 350, NG-360; Ex. 353, NG-211; Ex-309; Ex. 352, NG-305; Ex. 366, NG-318; Ex. 367, NG-239; Schlegelberger Ex. 27 and Pros. Ex. 627, NG-1187.
crime which would have resulted from the enforcement of the same decree against the same people in Poland. I he war crime lies in the trying of Poles under this law although the Hague Conventions did not contemplate deportation by force from one country to another i.e. from Poland to Germany. It is, therefore, clear that the trial of Poles wrongfully deported to Germany under this decree was still a war crime even though the venue was changed by such deportation. But if the Court will not find as an ultimate fact that those Poles so tried in Germany were there against their will, so as to make their sentences a war crime, then the defendants must he found guilty of a Crime against Humanity as alleged in Count 3 of the Indictment.
There is no doubt that the law, as applied against Poles, was promulgated and enforced upon "political" and "racial" grounds. It shows on its face that its purposes was extermination and prosecution, and the Freisler articles and other prosecution documents show its political purposes, its racial bias, and that the German manifest destiny in Europe was to he served by the enslavement of the Polish people. It follows, therefore, that every Pole tried and sentenced to death under that law in Germany proper, was "murdered and exterminated on racial and political grounds"; and every Pole tried and sentenced to imprisonment, in Germany proper, under that law was "imprisoned, enslaved, treated inhumanely and persecuted on racial and political grounds." With the corpus delicti of the Crime against Humanity thus established, it makes no difference how or when the Pole got or came into Germany.
Who will dare to say that it was not a crime against humanity when committed. Indeed, it seems clear that these acts, done inside Germany, are in violation of Article 24 (h) of Section II and Article 46 of Section III of the Hague Convention of 1907, and, therefore, War Crimes. If Your Honors please, that should he corrected to read: "23 (h) on page 13 of the written English draft.
THE PRESIDENT: Violation of Article 23 (h).
MR. LAFOLLETTE: It should he 23 (h), Your Honor.
THE PRESIDENT: And Article 46 is all right?
MR. LAFOLLETTE: That is right.
Be that as it may, it is also true that such acts were always contrary to the duty owed by a nation to aliens within its national boundaries even in tines of peace.15 When such acts serve as a means of supporting and sustaining an international forceful entry and detainer, a felonious aggressive war, these defendants cannot be heard to say that they did not know their acts of participation in such a criminal plan and enterprise were crimes when committed.16 15.
Pros. Ex. 250, Judicial Notice, Tr. pp. 2249-51. Digest of International Law - Hackworth, 1943, Vol. 5, Ch. 18, p. 471472 includes the following statement, by Elihu Root, as to the standard of duty owed by a state to aliens:
"Each country is bound to give to the nationals of another country in its territory the benefit of the same laws, the sane administration, the same protection, and the same redress for injury which it gives to its own citizens, and neither more nor less, provided the protection which the country gives to its own citizens conforms to the established standard of civilization..... The foreigner is entitled to have the protection and redress which the citizen is entitled to have, and the fact that the citizen may not have insisted upon his rights and may be content with lax administration which fails to secure them to him furnishes no reason why the foreigner should not insist upon them and no excuse for denying them to him."
16. No defendant has testified that he believed as a lawyer that the promulgation and enforcement of this law was lawful under international law. The defendant Schlegelberger, has said Hitler and Bormann wanted to kill, imprison and enslave faster without a law. Klemm has set the pattern for the other - nonprosecuting and judicial defendants - he claims he never had anything to do with its promulgation or enforcement. The prosecutors and judges either say "We obeyed it" or "We never applied it."
What has been said about the application of this law to Poles as a Crime against Humanity is, of course, applicable to its application against Jews. The evidence in this record cannot raise or sustain a reasonable doubt that this decree was promulgated as a part of a plan to exterminate and persecute Jews on racial grounds. There can likewise be no reasonable doubt that sentences declared under this law against Jews were either murders and exterminations on racial grounds, in the case of death sentences, or imprisonment, enslavement or persecution on racial grounds in the case of prison terms. These were Crimes against Humanity when committed as well as War Crimes and no defendant has testified that as a lawyer he did not believe or know that these acts were criminal.
It follows that the promulgation and enforcement of the Law against Poles and Jews and its enforcement against Poles in the "Alt Reich", if not a War Crime, was a Crime against Humanity. It remains only to prove the criminal relationship of the defendants who are guilty of this crime.
The crimes committed by the defendant Schlegelberger against Jews and against Poles are not limited to his acts in connection with the Decree under discussion. Before 4 December 1941 he had, among other things, circulated letters in 1938 about regulations to implement the Nurnberg Laws and warned against too much publicity for reasons of foreign policy; he failed to act affirmatively in 1938 and later in 1939 on the Aryanization of property in Nurnberg in the November 1938 Pogrom; although he had, early in 1938 and in 1939, disciplined notaries for being politically independent; extended the Nurnberg Laws into the Incorporated Eastern Territories in May 1941; and between the 20-29 October, 1941, turned the Jew, Markus Luftgas, then under that control and in the custody of the Reich Ministry of Justice, over to the Gestapo for execution.17 He had also joined in the first 17.
Pros. Ex. 60, NG-3-6, IB 3; Doebig Dir. Testimony (Tr. 1762-66); Pros. Ex. 436, NG-901, I Supp. 38; Ex. 521, NG-1615 (Tr. 4525-6); Pros. Ex. gg, NG-287, IC 1.
imposition of German law on Poles in Poland, through the Decree of 6 June 1940; removed three judges in April 1941 who had passed too lenient a sentence on a Pole and on 24 July 1941 had urged severer sentences against Poles.18 These acts, and similar ones, against Jews are Crimes against Humanity, and the acts against Poles are War Crimes, if not Crimes against Humanity, and will also be dealt with later.
It is sufficient to say here that they evidence knowledge of the purpose inherent in the Decree of 4 December 1941 and of the malicious intent with which the defendant Schlegelberger prepared his initial draft of that Decree and his covering letter to Lammers on 22 April 1941.19 Also concerning his knowledge of the intent and purpose of the Decree, we must remember that he conferred with Freisler on the latter's article in Deutsche Justiz, cited here on page 10 supra, Tr. 4449, and testified that the Jewish problem was the central problem of Hitler's Nazi state.
The defendant further testified that he, Schlegelberger, was never fooled by Hitler; that as early as 1939 he came to the conclusion that Hitler was a dictator; that Himmler, Bormann and Goebbels were enemies of an orderly administration of justice and wanted to destroy objective justice as part of their scheming; that he saw the storm brewing; that Hans Frank, who had been the leader of the Nazi Lawyers League and who was Governor General of Poland when the decree went into effect and who was considered as a leading candidate for the position of Minister of Justice, wanted to make justice "the docile instrument of the Party" and that he distrusted Thierack; and that he believed if he resigned, a strong Nazi exponent of Nazi judicial philosophy and attitudes would succeed him.
18. Schl. Ex. 26, Bk. III, 16-22; Pros. Ex. 70, NG-280, IC 16; Pros. Ex. 71, NG-505, IC 14.
19. Pros. Ex. 343, NG-331, VA 43; Pros. Ex. 199, NG-144, III H 18; Pros. Ex. 200, NG-130, III H 23.
Whatever may be the truth concerning Schlegelberger's position in the Nazi Government compared with other Ministry heads, the evidence in this case clearly discloses that as long as he was State Secretary and Acting Minister he had the power to discipline and remove judges and notaries. He did this on two occasions at the behest of Nazi party and Government officials. In addition to all of the other evidence in the case, that Schlegelberger know that the Decree against Poles and Jews was not passed to servo the purpose of military necessity, we have his own testimony that he know it was wanted in Poland to serve a political purpose (Tr. 4440-58). Any fair consideration of these facts leads one to conclude that he knew that the set was unlawful under International Law, that the very provisions of the law itself made it certain that Boles in the "Alt Reich" and the Eastern Territories and Jews in the Eastern Territories would be sentenced to death and imprisoned under an unlawful act administered by German courts which had no jurisdiction and by German judges who wore subservient and subject to the pressures of the worst elements in the Nazi Party. In view of all these facts, if we apply the rules with reference to malice and intent, purpose and responsibility set out in Appendix I, and the rules of law set out on pages 1 through 4 of Appendix 2, we are driven to the conclusion that Schlegelberger knowingly and willingly took a consenting part in the passage of this legislation, the results of which, namely, the literally thousands of death sentences and prison sentences passed against Poles and Jews under the act, were the logical consequences of the action which he took and of the plan and enterprise with which he voluntarily connected himself.
This being true, there is no question that the defendant Schlegelberger, as a principal, took a consenting part in and was connected with the plan and enterprise to commit a war crime, as a result of which he is responsible for the deaths which took place before his term of office ended in August 1942.
But the Prosecution in this case goes further and declares that under the law the defendant Schlegelberger is criminally responsible for every sentence which was rendered by an court having jurisdiction to administer this law from the time of its passage until the end of the war. We make this assertion for the reason that the defendant testified himself that he knew the purposes of this legislation, that the Hitler regime was a dictatorship, that its principal and controlling figures desired to pervert justice, that the law was illegal, and that he knew that if he left the Ministry of Justice he would be succeeded by a person whom he described throughout his testimony as worse than himself. We don't say that he knew that Thierack would succeed him, but we do say that under his own testimony, and the testimony of Dr. Gramm, he is held to have known that not a less severe use of this criminal weapon would follow his severing his connection with the Ministry of Justice. Therefore, the advent of Thierack was not a new intervening cause which Schlegelberger will not be held to have reasonably anticipated when he participated in the drafting of the Decree against Poles and Jews and took a consenting part in and was connected with its enactment and extension over Poland, and its administration. Under these circumstances he must be held to have started the ball rolling and oven though we accept his testimony that he voluntarily resigned, then it was too late to stop the use of this Decree for the purposes for which he knew it was intended to be used, and the record further shows that there was no intervening independent cause for the death sentences and sentences of imprisonment after he left the Ministry which he can avoid being held responsible for.
The defense which the defendant offers is, under no circumstances, a legal defense, and at most must be considered as being offered for the purposes of mitigation. Boiled down to its raw meaning, he simply says: I admit that the Decree against Poles and Jews was unlawful and that it was a device through which to execute Poles and Jews, but Himmler and Bormann would have killed them much faster than I if I had not taken a consenting part in the enactment of this legislation.
Reduced to even simpler terms, this is the equivalent of saying: I should not be found guilty of killing five men because there were other people who in the same period of time wanted to kill twentyfive. This cannot be raised to the dignity of a defense.
This crime is adequately alleged in Count II of the indictment, particularly in paragraphs 8, 9, 10, 11, 12 and 16.
Poles and Jews - Klemm The defendant, Klemm, was in the Party Chancellery at Munich when the Decree of 4 December 1941 became effective.
However, his activities there are revealed when we read the documents understandingly. Ex. 200, NG 230, Book III H 23, and Ex. 199, NG 144, Bk III H 18, discloses that in commenting upon the Schlegelberger draft, Ex. 343, NG 331, V A 43, that most of the recommendations of the Fuehrer's Deputy (which office, we know, was designated about the same time, that is, April, 1941, as the Party Chancellery) for a draconic criminal special law giving a wide range for the interpretation of facts and application of the death penalty had been complied with. At that time, the defendant, Klemm, was the head of the legal division of the Party Chancellery. He so testified. It is also very plain that he was in charge of legislation in this field. Even though he attempted to deny it, the testimony of the witness, Ancker removes any doubt as to this fact. It is a logical inference that Klemm advised the Party Chancellery on the legal questions involved. The record also shows by Ex. 204, NG 151, Book III, H 38, that on the 9th of September, 1942, the defendant, Klemm, was an active participant in the drafting of more severe measures against Jews which activities led to the Decree of 1 July 1943, which finally deprived Jews of all semblance, of all judicial processes, and turned the Jew's body over to the police and confiscated his property for the Reich.
Again we point out that Ex. 205, contains a letter by the defendant, Klemm, in his capacity as legal adviser to Martin Bormann, denying the right of the benefits of the German Juvenile Code to Poles, Jews, and gypsies. It must be said then, that when he entered into his position as State Secretary under Thierack, whose "selection" as Minister, Klemm had undoubtedly manipulated, he did so, knowingly, willingly, and with malicious intent to take a consenting part in, and to be connected with the administration of this Decree. He was given charge of Departments 3, and it and cannot evade this responsibility by thrusting it upon the now, dead Thierack. Of course he had been in Holland and he knew the provisions of International Law which restrained an occupying nation from introducing its own laws in the absence of military necessity. As we further point out, as a personal friend of Bormann and a confident, and as an ardent reader of Deutsche Justiz and in fact, a contributor to that official publication, he must be held in law to have known that there was not legal foundation in International Law for the Decree against Poles and Jews.
It is not surprising then, that we hear nothing in his testimony evidencing his protest against the application of that law after he came into the Ministry. And it is not surprising among the death sentences on the days on which he admits that he acted on clemency matters, we find him approving on the second of August, 1944, a death sentence against one Podzemsky for treason, and on the 31st of August, 1944, a death sentence against one Lokynski.20 We point out that the defendant, Lautz, has testified that in high treason cases against Poles, he also included a Count in the Indictment under the Decree against Poles and Jews, so that he could bring this Decree before the People's Court, along with his high treason charge.
20. Ex. 252, NG 141, Bk III L 1, at pages 71 and 105 respectively.