"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.
We further are not surprised when we find on p. 103 of NG 414a report to the State Secretary, this defendant, dated 31 May 1944, by the co-defendant here, Von Ammon, asking for advice as to the admissibility of legal proceedings against stateless Jews. Nor, is it surprising that we find this defendant, Klemm, making the following decision: Turn them over to the Gestapo. This should be enough to convince the Court of the guilt of the defendant of this war crime. But we also point out that in our legal discussion of this crime, that in 1944 alone, there were 42,000 defendants tried under the provisions of this Decree. We have no reason to believe that this activity was appreciably reduced during Klemm's term of office as State Secretary."
If Your Honors' please, the year should be 1942 and the number of defendants should be 62,000, if I may make that correction.
"We do not recall any defense to this crime offered by the defendant in his testimony.
The crime is properly charged in Count II of the Indictment, paragraphs 8, 9, 10, 11, and 12.
The basic crime here, of course, is predicated upon the extension of German law into the incorporated Eastern territories for political reasons contrary to the provisions of International law. The defendant chose in this own testimony, in his own defense, to reveal that he, himself, committed the same crime in Holland while he was there serving in an important legal capacity to the Commissar for the Netherlands. His testimony showed that when he reached Holland all of the shooting had ended and there is not a scintilla of evidence from his own lips, his own documents, or his own witnesses, that there was ever at any time now under discussion, any military necessity which justified the extension of German law into Holland. He also testified that he established German courts wherein citizens of Holland who were German Nationals or German Nationals from anywhere else in the world apparently could try their cases against Dutchmen, instead of using the Dutch courts then available.
He also testified that Dutchmen who had injured or "adversely effected" the interest of a German had to be tried in these courts. He admitted that they exercised criminal jurisdiction, as well as, civil jurisdiction, He also testified that there were no death sentences against Dutchmen in these courts during the time that he was there. He never denied that there were sentences of imprisonment.21 The record also shows that on the 12th of October, 1940, and the 24 September 1940, the defendant notified the Dutch of the changes and agreements which they would have to make in their methods of administrating justice in order to satisfy the German authorities, and the recommendations of the 24th of September, 1940, contained provisions calculated to injuriously effect Jewish businesses and properties in the Netherlands, purely because the owners were Jewish.
The record further shows that on the 17 of July, 1940, German courts to try penal cases in the Dutch territories were established.22 The record further shows that from January 10, to August 11, 1941, four Decrees actually became law and that each of them, was consistent with the recommendations to injuriously effect Jewish businessmen and property owners, which Klemm had previously made.23 This proof is sufficient to convict the defendant of a war crime as defined in the statute, because in every act, he was either a principal or an accessory to the action taken.
To demonstrate the falsehood contained in his statement that he was a mere agent of the Commissioner or of the authorities in the Reich, we cite also his letter of the 3rd 21 - Tr. pp.
4897-4904 and 5096-5099. Ex. 613, NG-2481, Ex.610, NG-2484.
22 - Ex. 615, NG-2519.
23 - Ex. 616, 2112-PS, 618 3323-PS, Ex. 614, 3333-PS, Ex. 617, 3332-PS.
of October, 1942,24 in which he makes certain comments on the personnel in the legal department of the Commissar for the Netherlands and recommends as a particularly severe judge, the notorious SS Leader, Myers of Nurnberg, (This is as good a place as any, to recall to the minds of the Court that when he testified in his own behalf, the defendant, Klemm, insisted that while he was at the Party Chancellery, he was a very unimportant fellow, dealing with questions of law only and defending the "constitutional state" and had nothing to do with personnel management. We ask the court to evaluate this testimony in light of the letter which Klemm wrote to the Netherlands on the 3 October 1942).
JUDGE BRAND: This will be a suitable time for our noon recess until one-thirty this afternoon.
(The Tribunal adjourned until 1330 hours.)
24 - Ex. 609, NG-2483.
Court No. III, Case No. 3.
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 13 October 1947)
DR. WANDSCHNEIDER: May it please the Tribunal, I am merely wishing to offer one more document, Exhibit No. 87, which this morning I did mention. I now hand it to the Secretary-General, and the interpreter certified to it, and that settles the last formalities. The Prosecution has no objection.
THE PRESIDENT: The exhibit has been received.
DR. WANDSCHNEIDER: Yes.
THE PRESIDENT: You may proceed with the argument for the Prosecution, Mr. King.
BY MR. KING:
Rothenberger, as President of tho Hanseatic Court of Appeals, was fully advised as to measures to be taken against Poles and Jews through letters from and conferences with Reich Justice Ministry officials. Letters on this question addressed to Rothenberger, among others, from Schlegelberger and Freisler are in evidence in abundance.25 We take as further evidence the statement of the witness Timmermann, who as Rothenberger's former SD Reporter and President of a Special Court, Ms testified that the Decree against Poles and Jews was applied in the Hamburg courts.26 The further testimony and evidence27 that one of Rothenberger's judges, who was President of the District Court, demanded that the Decree against Poles and Jews be applied against a Polish defendant, and so advised Rothenberger, is evidence that Rothenberger knew of and did not disapprove the policy. While it may be true that there were fewer opportunities to apply the law in Hamburg than in other districts, that alone is not an exculpatory fact when there is creditable evidence on the other hand showing that the decree was in fact applied.
25. For example, Pros. Ex. 71, 500.
26. Tr. P. 9211.
27. Pros. Ex. 597.
Court No. III, Case No. 3.
After August 1942 when Rothenberger became Under Secretary, there is ample evidence showing that he continued to approve the application of the decree. In clemency matters whore Rothenberger made the final review of death sentences, there are numerous instances where Rothenberger authorized the execution knowing that the condemned individual was a Pole, not a German national, and that he had been sentenced under the Decree against Pales and Jews.
The Prosecution believes further that it is entirely incompatible with the character of this man, which has been well demonstrated in this trial, that he would oppose any measure - much less this one - that carried the endorsement of other high officials which he strove to emulate. This would not be the policy of a man who while holding the position of Under-Secretary in the Reich Ministry of Justice could advocate before his colleagues the "ruthless extermination of asocials" as this defendant has done. Fortunately, from the point of view of proof, it is not necessary to rely only on logical inferences of this kind. The evidence shows that he know about the decree, that he applied it and that in this application he achieved a measure of satisfaction in carrying out the objectives of the Party.
The defendant Lautz as Chief Public Prosecutor for the People's Court from 20 September 1939 until the collapse charged violation of the decree against Poles and Jews in countless indictments which he either signed personally or authorized his deputy to sign in his absence. Those which he signed he read and for all he was responsible.28 Based on these indictments Polish nationals were tried in Berlin, sentenced to death and executed for offenses committed both in the Incorporated Eastern Territories and in Germany as well. Not only did the defendant Lautz authorize the citation of the decree against Poles and Jews in the indictments but he approved the plea for the death sentence in every case where it was requested by the Prosecution of the People's Court.29 28.
Pros. Ex. 126, P. 5-6.
29. I bid.
Court No. III, Case No. 3.
He was also responsible, pursuant to the Executive Order concerning the decree against Poles of 7 January 1942, for the execution of penal sentences pronounced by the People's Court which were to be served in penal camps.30 There is no denial of these facts from this defendant.
He has testified that he knew the purpose of the law from reading it, that it was self-explanatory, and that he considered it to be a "very harsh" measure; he further knew of its purpose from reading the Freisler articles in Deutsche Justin.31 As a lawyer his first reaction, as he has testified, was to question in his own mind at least the differentiation in treatment for Poles sentenced to penal servitude under the decree and for Germans under the Penal Code. On inquiry and upon being told that "penal camp" as described in the decrees simply meant that Poles under sentence were to be separated from Germans, he apparently was satisfied with the explanation even though one of the "penal camps" described to him by name - and remember, this was in 1942 was the notorious concentration camp, Schiratz, located in Poland.32 He also had - albeit briefly - doubts that the decree either procedurally or substantively came within the competence of the People's Court but this momentary hesitation was soon resolved by assurances from the Reich Justice Ministry that such doubts were groundless.
33 This is the same Reich Ministry of Justice, so we heard in his Opening Statement, in whose measures he took no part.34 Even these pale shadows of doubt which scurried across his mind must have been mere imaginary for at another point the defendant Lautz seeks refuge in the defense of superior orders, specifically barred as a defense by Law 10, by saying:
"I did not have the right and I did not consider that I was authorized to doubt that legislation."35 30.
Tr. P. 7830-33; Pros. Ex. 269.
31. Tr. P. 5903.
32. Tr. P. 5904; see also Tr. P. 7829-30.
33. Tr. P. 5904; 6029-6033; Pros. Ex. 126, P. 14.
34. Lautz Opening Statement; Tr. P. 4120.
35. Tr. P. 5809.
Court No. III, Case No. 3.
And thus very early in 1942 did the defendant Lautz begin his participation in this crime.
Citation of the decree as a sole charge against a defendant, except possibly for treason and high treason, remained outside the competence of the People's Court. With this exception, to charge a crime under the decree against Poles and Jews, it was necessary also to include a charge in the indictment which the court was competent to hear.36 Once the court gained jurisdiction of the cause in this manner, the Polish defendant could be, and in practice was, sentenced under the more severe provisions of the decree.
What we have said here, we submit demonstrates the mechanics contrived and applied by the defendant Lautz to bring cases under the decree against Poles and Jews before the highest political court in the greater Reich of which he was the Chief Prosecutor. We shall refer to this defendant's guilt again in connection with the application of the decree against Poles and Jews in treason cases.
It matters not that another man, equally lacking in moral fiber, might have accomplished the same design, or that judges were equally guilty in applying the decree. We submit that the evidence in this case which we have briefly reviewed here shows that this defendant knowingly and willingly acquiesced in the criminal objectives of the decree and as such is guilty of a war crime, defined and prohibited by Law 10, or a crime against humanity.
Poles and Jews - Joel The defendant Joel became a referent in Department IV of the Reich Justice Ministry competent for, and whose job it was, to review penal cases from the Incorporated Eastern Territories soon after Poland had bowed to the aggressive power of the Wehrmacht.
He reviewed among others the cases which were tried pursuant to the decree against Poles and Jews. Joel, too, like so many of his former colleagues with him to 36.
See for instance, Tr. P. 5908.
Court No. III, Case No. 3.
day, as he has testified, "felt obligated to apply the existing laws and to comply with them."37 But on the Polish question at least he did not indulge in the fallacious legal sophistry demonstrated by some of his co-defendants in attempted justification of his acts. He knew that a person possessing Polish citizenship before the war was not ipso facto made a German national by the mere presence of the unwelcome aggressor. Joel has testified on cross-examination clearly and unequivocally to this as the following excerpt reveals:38 "Question.
Dr. Joel, how do you define a Polish national, after 1 September 1939?
"Answer. A Polish national, after tho 1st of September 1939, is exactly the same as a Polish national before the 1st of September 1939.
"Question. Not Germans then?
"Answer. A Polish national is never a German."
This action of Joel in approving and applying tho decree is, therefore, not in tho usual stereotype pattern presented here. This defendant frankly admits that he knew he was not dealing with Germans but with foreign nationals. In has official position as a referent for the Incorporated 37.
Tr. P. 6639.
38. Tr. P. 6619; 6620.
Court No. III, Case No. 3.
Eastern Territories' penal matters, and as liaison representative between the Reich Ministry of Justice and the Gestapo. Joel participated in conferences with others from Department IV concerning disposition of pending cases. In one of these conferences in November 1942, Joel is reported discussing an order of Himmler as to the treatment of Poles and Jews, and in another in December 1942, Joel is reported ordering the transfer of a Pole who had been sentenced to a penal camp for three years to the Gestapo.39 Pros. Ex. 280 shows that Joel from 10 September 1942 to March 1943, the period covered by the report, reviewed 105 death sentences passed by courts in the Incorporated Eastern Territories for most of which he gave final authorization for execution. Joel has contended, however, that these individuals were not Polish nationals, even though nearly all the names are obviously of Slavic origin and the executed persons were residents of the Incorporated Eastern Territories. We are told that he assumed these persons had voluntarily acquired German citizenship, and again that he was not concerned with the question of their nationality, and finally that from their files one could not see that they were foreigners.40 The Prosecution has not been impressed by the sum total of this explanation and we urge the court to examine it carefully. Joel in his official position at the request of Himmler, effected the release of two "deserving National Socialists" who had shot in cold blood two Polish priests for no other reason than a dislike of their victims' professed religion.41 Joel saw and approved the extended interpretation of the Nurnberg Law for the Protection of Blood and Honor in the Incorporated Eastern Territories.42 We also submit that Pros.
Ex. 353, which is a summary of 16 death sentences passed on Poles, which Joel, in his capacity as referent for the Incorporated Eastern Territories reviewed, is further proof of 39.
Pros. Ex. 444, pp. 2 - 6 40.
Tr. pp. 6620-21 41.
Pros. Ex. 255, Tr. p. 2347 42.
Pros. Ex. 377, Tr. p. 2564 Court No. III, Case No. 3.his attitude on this general question.
Particularly revealing is a comment on one of these cases in which the condemned man was thought to be a United States citizen. Joel stated that in his opinion this should make no difference unless perhaps German foreign policy would thereby be effected.
What we have referred to here in this connection is but one facet of Joel's acts which we submit are War Crimes or Crimes against Humanity. But what we have said demonstrates clearly Joel's willing violation of International Law.
Poles and Jews - Rothaug The defendant Rothaug was a specialist in committing crimes against humanity.
In fact, he needed no legislation, unlawful under international law, to permit him to commit war crimes. If anything, legislation, no matter how suitable for his purposes of using his Bench as an executioner's block, only disturbed him and required him to use his admittedly ingenious mind to twist the legislation to suit his purposes. The witness Elkar, the SD agent with whom Rothaug regularly conferred every Saturday morning, has testified that Rothaug did not need the law against Poles and Jews; he had been able to act more effectively and do more before the law was passed against Poles than he was able to do after its enactment.43 Nevertheless, in addition to his Crimes against Humanity, we find that Rothaug is also guilty of War Crimes through his application of the Law against Poles and Jews.
He was too good a lawyer not to know that the law was contrary to every provision of international law. He was also such a good racist that he found his provisions for rendering death sentences against Poles who would commit conduct "liable to prejudice the sovereignty of the German Reich or the prestige of the German people", or a Pole who by his conduct "lowers or prejudices the prestige or well-being of the German Reich or the German people" suit 43.
Tr. 2892-3 Court No. III, Case No. 3.able to his purpose and dear to his heart, for the range of opportunities to wreck vengence upon Poles included in this broad language, under the guise of legality, a weapon which we can expect Rothaug to seize upon with naussating glee.