knowledge of this draft and of its proclamation and that he instructed his department to act pursuant to the instructions given. At this state of the proof, he cannot be heard to say that he did not understand that deaths were taking place, either by judicial procedure or otherwise, among foreign nationals who were brought into the Reich under conditions of secrecy, in a proceeding designated as Nacht und Nebel, and that there must be complete secrecy in connection with the proceedings even to the point of protecting the records concerning their deaths.
THE PRESIDENT- We will recess for fifteen minutes.
(A recess was taken.)
Court No. III, Case No. III.
THE MARSHAL: The Tribunal is again in session.
MISS ARBUTHNOT: Before continuing with the reading, I would like to for purposes of the record to make clear a correction which I made in reading on page 64. At three points we refer in the printed copy to special courts in Hamm and Essen. These should be corrected to read special courts in Essen. There are three such places on page 64 and one reference on page 66.
THE PRESIDENT: One on page 66?
MISS ARBUTHNOT: Yes, on the fourth line, page 66.
THE PRESIDENT: You delete the words "Hamm and".
MISS ARBUTHNOT: Yes. And now continuing. Whatever he must have testified about his lack of knowledge of what Nacht und Nebel meant, this document in itself out any lawyer on notice, particularly a lawyer who had sat on the Reich Supreme Court, that foreign nationals were being held and tried in the Reich under conditions of complete secrecy, and that under all provisions of international law this was a violation of the Hague Conventions governing the treatment due to inhabitants of an occupied country, by the power which was occupying it.
Furthermore, we point out to the Court that those prisoners were being received in concentration camps and sent back to concentration camps so that the notices of their deaths, which Department VI had to register, must have come to that Department from these concentration camps. There was no provision of International Law which authorized the Reich to bring foreign nationals from France, Norway, Holland, Belgium, into the German Reich in time of war and place them in concentration camps. The defendant, as a soldier, knew that prisoners of war went to prison camps, not to concentration camps, under international law. Therefore, it is a fact that when this defendant received the notices of deaths of foreigner, or notices of births of children, to foreign females, from concentration camps, he knew that civilians of foreign nations, were being held in Germany by the Reich illegally.
It follows therefore, that from the provisions of Ex. 319 itself and from the facts in this record, it is inferable beyond a reasonable doubt that this defendant was charged with knowledge that foreigners were in the German Reich under conditions which were prohibited under international law, and being subject to trials under conditions prohibited by international law.
We do not believe that the courts believe the defendant when he said that he did not know what Nacht und Nebel meant, even though he was one of the highest officials in the Reich Ministry of Justice. But his denial can only react adversally against him, affecting his credibility as a witness not only on this issue but upon the issue of his membership in the SS and his knowledge of the activities of the SS, which we shall treat later in this argument.
We conclude from the record that this defendant, with full knowledge that a crime was being committed, consented to take part in the successful operation of that crime by keeping the records of deaths and births secret and marking the records so, that no one could give any information with reference to this matter. He also made similar provisions with reference to keeping secret the fact that these judicially murdered Nacht und Nebel prisoners had left last wills and testimonies. This action was of material benefit to the program, to its successful operation and to its essential element of criminality, namely the secrecy inherited in the whole proceeding. It follows therefore, that this defendant is guilty of taking a consenting part in and being connected with the war crimes, committed through the instrumentality of the Nacht and Nebel program.
The defendant offered no defense, except the defense that he had no knowledge that a crime had been committed. Upon the fact of the record this defense has been rejected for the reason that it is based upon the testimony which is palpably false, that it is not entitled to be believed.
The offense is sufficiently alleged in Count 2, paragraphs 8, 9, and 13.
MISS ARBUTHNOT: Mr. Buchthal will continue with the reading.
MR. BUCHTHAL: Crimes of Prosecution and Conviction of Foreign Nationals for Alleged Acts of Treason and High Treason against the Reich.
The corpus delicti of this crime lies in the trial, sentencing, Imprisonment and execution by the People's Court in concert with and approval by the Reich Justice Ministry of non-German and foreign nationals for alleged acts of treason against Germany. This action was in violation of the Hague Conventions, particularly Articles 23, 43, and 45, 105 ....
THE PRESIDENT: May I ask you to speak a little slower, please?
MR. BUCHTHAL: ....principles of international law long recognized and respected by all civilized countries, and in violation of German national law itself.
Proof of the fact that hundreds of foreigners were tried before the People's Court in Germany and in the occupied countries on charges of treason and high treason, that death sentences were executed and prison terms imposed as a result of these trials is established by numerous case records in evidence before this Court 106 and by the 105.
See Appendix 4 of this statement.
106. See Pros. Exs. 125, 128-137 inclusive; Exs 184, 491 512, 513, and 514.
Czechoslovakian State report. 107 Victims of this crime were either residents of countries which Germany occupied as a result of aggressive war or of Germany under conditions which were an outgrowth of aggressive war such as, for instance, the slave labor program.
108 either case under any recognized principles of international law these persons owed to the Reich no degree of allegiance, in fact, or in law, upon which charges of treason or high treason against Germany could be predicated. On the question of allegiance owed to Germany by resident nationals of countries occupied by her we need but look for the answer to Article 45 of the Hague Convention. This article forbids the compulsory swearing of allegiance to a hostile power by the inhabitants of an occupied country. Thus it is clear that absent a voluntary oath of allegiance by a resident national of a wrongfully occupied country he cannot commit treason against the occupier. Without allegiance there can be no treason.
As to foreign nationals within the boundaries of Germany, there is admittedly precedent for the argument that aliens owe to the sanctuary nation an allegiance which continues during their residence. We have found no precedent, however, for the proposition that one who becomes the resident of a country under duress, or against his will under conditions created by aggressive war through acts of that Country's government, owes even a temporary allegiance, the violation of which would render him liable to prosecution for treason.
It does not admit of argument that foreign nationals resident of countries occupied by Germany as a result of 107.
See Pros. Ex. 378, p. 8891, received for Judicial Notice, Tr. pp. 2568-2578.
108. See for example testimony of witness Havemann, Tr. p. 1918-19. Also Pros. Ex. 516, an excerpt from the IMT Judgment received for judicial notice, Tr. 3449-3451.
aggressive war came voluntarily to Germany to accept the protection of the Reich as the sancturary nation. This would be the equivalent of asserting that the Poles, the Czechs, the French and the Dutch sought sanctuary from the oppressor by fleeing into her arms, We must not close our eyes to obvious inferences to be drawn from Germany's attitude for all her neighbors for a decade prior to the collapse.
It is true that a foreigner cannot say that he is not bound to obey the laws of the state wherein he is sojourning. But, if the defendant under prosecution for disobedience of these laws is convicted in violation of the law of nations, the same international authorities proclaiming the above general rule here recognize the duty of the executive to interfere with a pardon and, if that is impracticable,109 the question is one for international adjustment.110 That aliens within Germany were prosecuted and convicted, for contravening Nazi laws in violation of the law of nations is easily demonstrable. It is established international law that the planning and waging of aggressive war is a violation of the law of the community 109.
For how impracticable an executive pardon was from Hitler, rendering international adjustment necessary by the present Military Tribunals, see Pros. Ex. No. 279 (Hitler's delegation of the right to deny clemency authority to Thierack): Pros. Ex. No. 252 (Insistence upon denial the of clemency in virtually and every capital case during the war years by Thierack and his deputy Klemm); Pros. Ex. No. 26 (Insistence upon similar harshness by Rothenberger, Thierack's deputy prior to Klemm); and Pros. Ex. No. 259 (eventually, in the later war years, delegation to the the political Gauleiters, of provinces concerned, of the right to review all clemency recommendations of the RJM before submission to Hitler. Hitler refused to consider request which had not been so submitted for the Gauleiters' recommendation.
110. Moore, supra, p. 15, citing Wharton, International Law Digest, Vol. II, p. 509; Wharton, Conflict of Laws, section 819, 820; Wharton, Criminal Law, 8th Ed., sections 268, 281.
of civilized nations.111 German prosecutors and courts, at least of the political types charged in the indictment, directly aided, abetted and took a consenting part in the waging of aggressive war by exterminating or otherwise eliminating civilian opposition thereto both within and outside the Reich. Such was the avowed purpose not only of enormously expanded Nazi treason laws,112 but also of the myriad close corollaries of treason that mushroomed after the seizure of power and particularly after the beginning of the Polish campaign in 1939.113 The direct relation of a stringent enforcement of these laws to Germany's waging of the war, through whipping the civilian populace into terrified political quiescence and sacrificial armament production, is too obvious to admit of argument. It is also admitted by the present defendants; for example, the defendant Lautz has stated:114 "Just as I think it is a good thing that no one today can claim that this war was lost only through treason, I must also say that I regret that because of this war and through these death sentences (i.e., for undermining German defensive strength-Wehrfraftzersetzung-) many people who were otherwise all right, had to loose their lives."
And the defendant Rothaug testified that, in his view, the severest measures were necessary where a defendant:115 111.
IMT Final Judgment, mimeographed edition, pp. 16831-2 (Austria); 16836-7 (Czechoslavakia); 16846-7 (Poland); 16954 (Denmark and Norway); 16855-6 (The Low Countries); 16859-60 (Greece and Yugoslavia); and 16863 (Russia). Each of these campaigns was held to be a crime against Peace.
112. See amendments (1934) to #80-92 of Reich Criminal Code: Pros. Ex. No. 112 (Doc. Bk. II) pp. 6-8a.
113. E.g.: Law for Protection of People and State (1933): Law against Undermining German Defensive Strength (1939); Law Against Conduct Detrimental to War 18, 19, 23, and 32. These statutes, all of which as their stated raison d'etre the complete subjugation for civilian activity to that of the military for the waging of total war.
114. Pros. Ex. No. 126, p. 11.
115. Tribunal III, Transcript p. 7548.
"...was aware that he affected the attitude of the people working in an armament plant and that he was exploiting their weariness to make remarks which would undermine their morale. That was the first consideration that guided me."
Specifically in this connection, Rothaug referred to any defendant who intended:116 "...to undermine confidence in the conduct of the war and the chances of winning the war in his surroundings."
It is unnecessary to belabor this conclusion that, in general, German prosecution and conviction of aliens in the Reich for any real or imputed interference with the waging of aggressive war, violates the law of nations and thereby bars the legal vulnerability of aliens as a defense.
116. Ibid, p. 7549.
The defendant Schlegelberger, of course, is chargeable with knowledge of the statutes with reference to high treason, preparation for high treason and treason which were enacted while he was in the Ministry of Justice, on 24 April 1934. Also the People's Court was established by the same legislation.117 He also knew the character and purpose of the People's Court, for as early as 1934 we find him submitting a list of names of lay judges to the military heads of what was then the Luftwaffe and the Wehrmacht. He, of course, is not a foolish man -- he knew that the purpose of the legislation establishing the People's Court, and the purpose which required approval of the lay judges was to stack the court against any reasonably possibly acquittal of any decent German brought before that Tribunal because he opposed the Nazi policies, which, oddly enough, this defendant claims he opposed -- but never effectively did anything against.
We also find him lauding the achievements of the People's Court on the 14th of July 1939.118 As a self-professed profound student of the law, and particularly the law relating to international problems, he is bound to know, that which every Landkreis lawyer must have known, namely, that a defendant cannot be charged or convicted for treason, high treason or preparation to commit high treason in the absence of some facts or situation which imposes upon him a duty of allegiance. Normally, this allegiance arises out of citizenship. It may be held to arise out of an obligation to a sanctuary power which in turn arises out of a factual situation in which the defendant may be held to have accepted the benefits bestowed upon him by the sanctuary power, its government laws and establishment of a civilized order. Of course, he must in law be held to have known that no factual situation upon which such allegiance 117 Pros.
Ex. 112, NG 715, Bk II 6.
118 Pros. Ex, 602, NG 2004.
could be predicated existed in the cases of Czechs and Poles or any of the defendants who went before the courts as Nacht and Nebel prisoners for, indeed, the bulk of them were charged with committing high treason or preparation for high treason.
A passing glance at the law of 24 April 1934, Section 80, will disclose the complete lack of legal basis for any of the charges of high treason or preparation for high treason which were brought during the defendant's regime. This section, among other things, says: "Anyone attempting to detach from the Reich territory belonging to the Reich will be punished by death." Practically every Pole and Czech tried for high treason was charged with violating this provision. Even a stupid man knew in Germany from 1939 on, if he had heard any of Hitler's speeches, that Czechoslovakia and Poland were not territories which "belonged to the Reich". They were at best, territories, which had been stolen by the Reich through aggressive military action. You do not acquire valid title to stolen property even if it is another man's country. Certainly this profound student of the law, and also all of the other defendants involved in high treason cases, who were equally profound men - meaning the defendants Lautz, Barnickel, Nebelung, Rothenberger, Klemm, von Ammon, Joel, Cuhorst and Oeschey - knew that such indictments were bases on factual grounds which were known to them to be fictitious. The defendant Petersen is also liable even though not a legal expert because he knowingly, willingly, end according to his own affidavit, maliciously, with an intent to exterminate, occupied a position where he was required to administer law with reckless disregard to the facts. This assuming, of course, that we believe his defense, that he knew no law.
With reference to the defendant Schlegelberger, the evidence is clear that the ministry of Justice in the first instance controlled the policies of prosecution before the People's Court, and in the second, passed upon clemency appeals of every case tried. This being true, we point out, furthermore, that the evidence discloses ten119 cases beginning with June 1, 1940 and ending June 24, 1942 in which defendants were indicted, convicted, sentenced to death or imprisoned, and their sentences executed while this defendant was in charge of the Ministry of Justice.
This, of course, was a mere sample of the actual situation.
We can recall no defense which the defendant Schlegelberger made to the commission of this war crime.
The crime is adequately alleged in Count II of the Indictment in paragraphs 8, 9, 10, 11, and 12.
Klemm When the defendant Klemm came to the Ministry of Justice in 1944, by his own testimony, his belief in the necessity of severe treatment of all German nationals who had any question about the successful termination of the war was a part of his living philosophy.
From which it can logically be inferred that his hatred of foreigners who might be attempting to thwart the goals of the thousand-year Reich was even greater. He was, by his own testimony, a competent lawyer, and despite his statements that he believed that the German 119 - Pros.
Ex. 127, NG 419, Tr. 834; Ex. 134, NG 597, Tr. 891; Ex. 125, NG 669, Tr. 548; Ex. 491, NG 879, Tr. 3339; Ex. 514, NG 1473, Tr. 3445; Ex. 480, NG 699, Tr. 3307; Ex. 137, NG 596, Tr. 908; Ex. 128, NG 355, Tr. 844; Ex. 363, NG 686; Ex. 492, NG 923, Tr. 3341.
occupation of Bohemia and Moravia was benevolent and done at the request of Czechoslovakia, he must be held to have known that in truth and in fact under every rule of law, as well as of international law, no citizen of Bohemia or Moravia owed any allegiance to Germany. (His testimony and defense with reference to the character and nature of the German occupation of Bohemia and Moravia must be tested and measured as to their credibility by his other statements what he never heard of a Jew being persecuted in Holland while he was there, that he knew nothing about the Pogrom of November, 1938, and when he came down to town next morning in Berlin he saw no evidence of the Pogrom, and that he thought the phrase, "sending the Jews to the East "meant that they were living in affluence, bliss and quietude in a German state known as Theresienstadt. He certainly knew that the law against Poles and Jews was enacted for political purposes, and he certainly knew that the occupancy of Poland was accompanied by a consistent belief on behalf of all German officials that the Poles were to be the enslaved servants of Germany. Under these circumstances, he must be held, as a lawyer, to have known that there was no duty of allegience owed to Germany by any Czech or Pole arising out of the receipt by either Czechoslovakia or Poland of the benevolent benefits of the laws, civilization and culture of a sanctuary power. This being true, the defendant, as a lawyer, must be held to have known that any allegations in any indictment for treason which alleged an obligation or duty to the German Reich, was an allegation of a fiction and not a fact. The same rules apply to Norwegians, Hollanders, Belgians and Frenchmen. Notwithstanding this fact, as State Secretary he participated in and rendered his opinion upon every clemency plea which was presented to the Ministry for consideration in the case of foreign defendants tried for treason, high treason and preparation for high treason. Not only this, but by his own testimony he approved the death sentences rendered by the People's Court and ordered them executed against foreigners convicted of treason, high treason and preparation for high treason against the German Reich.
120 If the defendant Klemm did not know enough law to be charged with the knowledge with which we have just charged him, then he must be charged with having occupied a position where he passed upon death sentences in cases involving a knowledge of international law and of the national law of treason without any knowledge thereof, which would constitute such reckless disregard of his duty and obligation as to constitute murder under the laws of any civilized nation.
120 Pros. Ex. 252, NG 414, p. 8, 17 January 1945 (5 cases); p. 71, 2 August 1944 (3 cases); p. 105, 31 May 1944 (2 cases); p. 156, 21 January 1944 (13 cases).
The above cases are only from the days when the defendant admitted that he alone passed on clemency matters. A study of Klemm's testimony, at pages 4973, 4975, 4976, 4979 and 5024 of the transscript, reveals that there is adequate evidence upon which the Court can find beyond a reasonable doubt that the defendant also decided clemency cases on the 17 January 1945, 27 January 1944 and 2 August 1944 in Thierack's absence. A breakdown of the analysis of Ex. 252 NG 414, Bk III L and the testimony above cited, warrants the conclusion contained in the following chart:
Klemm admits deciding Prosecution thinks he should clemency matters also be charged for these 1944 1944 1945 21/6 31/5 3/8 27/1 27/1 2/8 17/1 Total High Treason 4 23 1 16 44 Treason 3 1 5 7 16 Undermining military morale 3 17 17 37 General Death Cases 17 27 24 22 23 19 132 Nacht und Nebel 4 4 2 10 TOTAL 21 41 24 1 45 48 59 239 Foreigners 6 11 1 21 8 12 59 ROTHENBERGER When the defendant Rothenberger became Under Secretary in August 1942, he also therewith assumed the position where he reviewed cases of death sentences.
In this position, had he carried out the design of the office, he was the final safeguard in a series of events to assure that a capital sentence was not improperly executed. It was not only his duty, but his responsibility, to determine that the sentences were proper in fact and in law; and if he found or should have found that they were not, approval nevertheless constituted acquiescence in an illegal action.
We have heard from this defendant that he had nothing to do with criminal matters. Be this as it may, there is no doubt that he passed on the final clemency pleas of numerous persons sentenced to death. It is these cases which involve the final review of death sentences of foreign nationals that we shall now breifly examine.
As early as 1935, Rothenberger received communications from the Reich Justice Ministry which indicated that not all treason and high treason cases were being handled openly and above-board.121 Certainly it should have come as no surprise to him a few years later, when he himself was reviewing death entences based on these charges, to find that foreign nationals were being tried, sentenced and executed for offenses which in many cases were not even committed in Germany. But this self -purported advocate of a strong judiciary not only made no protests but willingly complied with the design to exterminate these people whose misfortune it was to be residents of countries desired by Hitler as his own.
In the cases in evidence we find that Rothenberger approved the death sentences of Poles who had never acquired German citizenship, and indeed could not if they had so desired.122 121 Pros.
Ex. 34.
122 Pros. Exs. 130, 135.
He approved of the death sentences of Czechs who had committed their offenses in Czechoslovakia and who were tried before German Courts123. Did he ever wonder about the scores of strange foreign names in the mass pf clemency denials that sent scores of persons to a crude and brutal execution?124 Can this defendant now be heard to say that he did not know the law, or, that in knowing it, he was unequivocally bound to violate it? Is this the kind of strong judiciary which he would have us believe he spent his waking hours in trying to achieve? He has testified that he, as Under Secretary, did not have the right to examine the legal and factual basis of a sentence.125 We submit that it is clear that he had not only the right but the duty to examine the bases of such sentences and that in knowingly sending persons to death which the German courts had no right under recognized international law to try - much less to sentence to death - that he became a chief participant in this basic war crime.
123 Pros. Ex. 509 , Tr. p. 3434, 9401.
124 Pros. Ex. 450.
125 Tr. p. 5508-9 LAUTZ We turn now to the consideration of the guilt of the defendant Lautz in this connection.
In this, we shall first revert again to the decree against Poles and Jews insofar as indictments of treason were predicated upon it by this defendant. It is a generally recognized principle of international law, as we have stated, that without allegiance there can be no treason. Thus Germany had no right to try on charges of treason a person born in and remaining a citizen of Poland- or for that matter of any other nation -- for offenses committed in their native country. Neither is this a right which can be gained as the fruit of agressive war. And, if right can be relative, much less did Germany have the right to remove such offenders for trial before courts in Germany. The defendant Lautz must be presumed to have had this knowledge. Nevertheless, and even with an avowed understanding of the purpose of the decree against Poles and Jews, he charged in indictment upon indictment the crime of preparation for treason and treason against these people which resulted in executed death sentences of numerous, if not hundreds, of Poles.
In attempted justification we are told that he reached the conclusion that the status of Polish nationals, even those born in Poland, ceased to exist after the occupation in 1939.126 He knew that they could not be given a German status because that is only too clear from the language of the decree itself. The only possible conclusion, without an alternative, is that knowing the facts he fell into step with the national program to exterminate these people of the Incorporated Eastern Territories.
The defendant also resorts to what we have called the "percentage argument" to show that the People's Court tried fewer Poles for treason than, for instance, the High 126 Tr. 5901 - 02.
Treason Senates of the Courts of Appeal in the Incorporated Territories, and that in any event not more than 200 treason cases involving Poles were tried by the People's Court.127 We have already given undeserved dignity to this argument by answering it, and we shall not repeat that answer now. We are also told that many of these treason trials ended with prison sentences, which is to say penal camps, as, for instance, in the case which is Prosecution Exhibit 125, involving 22 Polish nationals as defendants.128 If by this he means to say that wrongfully imposed confinement in penal camps is any the less a war crime than wrongfully executed death sentences, it certainly deserves no answer.
There was in general no disposition in indictments for treason before the People's Court to treat Poles arrested in the annexed parts of Poland any differently from Poles or other foreign nationals arrested in Germany. But this defendant has taken up the challenge made by certain other defendants that foreign workers in Germany during the war came voluntarily, with the obvious intention of finding in that assertion some justification for the treason trials of foreign nationals arrested here, or in Austria, as occured in most of these cases in evidence.129 We deem it substantial proof to the contrary that Sauckel, head of the slave labor program, reported in a conference in March 1944 that less than 4% of the five million workers in Germany came voluntarily.130 A contrary statement by a defendant that he came voluntarily does not contravent the general fact expecially when such statements are worded precisely identical and are in the form of "confessions" obtained through Gestapo interrogations.131 The evidence in this cause shows a substantial percentage of the treason cases brought against Poles before the People's Court charged 127.
Tr. 5900, 5921; Pros. Ex. 126, p. 12.
128. Tr. 5901.
129. Tr. 5810, 5811.
130. Pros. Ex. 516, for Judicial Notice, Tr. 3448, etc.; see also Opinion in Military Tribunal II, which found that after 1943, no workers came to Germany voluntarily; see also Pros. Ex. 129, where opinion stated that 3 Poles "were sent from Poland to work."
131. Tr. 5920, 5921; Pros. Ex. 132, 136.
flight from Germany to Switzerland to join there an alleged shadow organization styled "The Polish Legion" by the People's Court prosecution, Significant is the fact that every case also involved the breach of a labor "contract" by the accused; that is, personal service owed to the Reich, a charge in and of itself not competent for People's Court jurisdiction. Whatever one may conclude as to the evidence in this case as to the existence and purpose of the "Polish Legion",132 which, we submit, militates against the belief that such an organization actually existed, there can be no justification for either a charge or a trial on grounds of treason for breach of a labor contract, whether or not the so-called "contract" was voluntarily entered into. By way of illustration in this connection, we refer to Prosecution Exhibit 132 in which the accused, both Poles, were charged in an indictment signed by Lautz with treason for attempting flight to Switzerland, and also charged with violation of the decree against Poles and Jews. The court, quite correctly, found no evidence to support the assertion that the defendants had ever heard of the Polish Legion, but proceeded to sentence one, who belonged to the "Polish intelligentsia", to death under paragraph 1 of the decree for the alleged crime of depriving the Reich of his labor. Of the result of this case the defendant Lautz had only to say: "...I have no cause to correct that conviction".133 Prosecution Exhibit 133, as another example, is a case factually identical to Exhibit 132, where the court also found no intent to join the "Legion", but nevertheless sentenced the defendants under the law against Poles and Jews for leaving their work.
We refer briefly now to the category of cases charging treason against residents of Bohemia and Moravia; Czech nationals indicted and sentenced by the People's Court. There is, first, a group of these cases similar to the "Polish Legion" cases, except that attempt to join 132.
Pros. Ex. 78, p. 1-2.
133. Tr. 5920, 6026; see also Pros. Ex. 126, p. 12-13.
the "Czech Legion" was charged and without reference to the decree against Poles and Jews. Treason charges were cited pursuant to the German Penal Code.134 The second general group of cases in which Czech nationals were cited for treason differed in that the accused were charged, for the more pert, for offenses committed in Bohemia and Moravia. The offenses, which in many cases were indeed proved, consisted in a defendant's belonging to, attempting to join, or having in his possession literature of, a prohibited party or organization. We are here primarily concerned with these cases which were tried by the People's Court in Germany and Czechoslovakia although hundreds of defendants, according to the Czech State Report, were tried by German Special courts and executed in Czechoslovakia on similar facts and charges.
The defendant Lautz seeks to minimize his responsibility in these matters by asserting that when foreign nationals were to be indicted for treason against the Reich, it was necessary, except in isolated cases, first to have the approval of the Reich Justice Ministry. Admitting, for the sake of argument, that this protocol may have been observed, the important fact remains, however, that the strained interpretation patently contrary to international law which we charge the defendant Lautz with applying in these cases, is the same interpretation for which he is responsible for conceiving. We refer, of course, to Prosecution Exhibit 347, NG-548 and testimony in connection with it. Without reviewing here the entire contents of this most interesting document or its attendant history, we summarize merely by saying that the interpretation formulated by Lautz at the request of Himmler accomplished the purpose here stated by Lautz, as follows:
"....to protect by means of the German Penal Code those racial Germans who have seriously suffered through action such as mentioned in paragraph 91, sub-para. 2 of the Penal Code, provided that action deserves punishment in accordance with sound German sentiment, but where such punishment, considering the elements of wrongdoing of that particular case, cannot be brought home on thestrength of any directly applicable penal regulation."
134. Section 80, #1, Sec. 83, #2 and 3 and Sec. 91.
And lastly:
"in the majority of these cases...it will be offenses which have been committed by foreign nationals abroad against racial Germans."135 The defendant Lautz has testified under cross-examination that in all subsequent treason cases involving foreign nationals after this date - February 1942 - that this was the interpretation of the law included in indictments filed by him and on which the Reich Justice Ministry based its approval for further action by him as Chief Reich Prosecutor.
136 We submit that this defendant is guilty beyond any reasonable doubt of this basic war crime as we have defined and discussed it above.
Mettgenberg The facts in this case show that in addition to the trial of Nacht and Nebel prisoners at the Special Courts designated in Exhibit 308,137 hundreds of Nacht und Nebel prisoners were tried by the People's Court136 for High Treason and preparation for High Treason.
As an international lawyer of note, the defendant must be held to have known that no duty of allegiance could factually exist upon which to predicate the charge. Therefore, he affirmatively knew that the alleged duty of allegiance was fictitious and convictions, therefore, were unlawful and criminal at international law.
There can be no reasonable doubt that the acts done and performed in connection with the Nacht und Neber program also constitute the taking of a consenting part in, and being connected with, a plan and enterprise to force foreign nationals who factually owed the German Reich no allegiance, to submit to illegal indictments, trials, sentences and executions for High Treason and attempted High Treason.
135. Pros. Ex. 347, p. 5; Tr. 6912-13.
136. Ty. 6013-14.
137. NG 232.
136. Ex. 320, NG 256, VI 91; Ex. 330, NG 240, VI 119.