Chapter II: Introduction (1)

The “Justice Case” was officially designated United States of America _vs._ Josef Altstoetter, et al. (Case 3). Of the sixteen defendants indicted, nine were officials in the Reich Ministry of Justice. The two persons who held the position of Reich Minister of Justice during the Hitler regime, Franz Guertner and Georg Thierack, were both dead before the indictment was filed. Between Guertner’s death in January 1941 and Thierack’s appointment in August 1942, the defendant Schlegelberger served as Acting Reich Minister of Justice. The defendants Schlegelberger, Rothenberger, and Klemm each had held the position of Under Secretary (“Staatssekretaer”, also translated as State Secretary) in the Reich Ministry of Justice. Two other officials of this Ministry were indicted but not tried: the defendant Westphal committed suicide in Nuernberg jail after indictment and before the opening of the trial; a mistrial was declared as to the defendant Engert, whose physical condition prevented his presence in court for most of the trial. The defendants who were not officials of the Reich Ministry of Justice included the chief public prosecutor of the People’s Court and several prosecutors and judges of both the Special Courts and the People’s Courts. Both the Special and the People’s Courts were established as important parts of the administration of justice during the Nazi regime.

All sixteen defendants named in the indictment were charged with criminal responsibility under the first three counts of the indictment. Count one charged participation in a conspiracy to commit war crimes and crimes against humanity; count two alleged the commission of war crimes against civilians of territories occupied by Germany and against members of the armed forces of nations at war with Germany after September 1939; count three charged the commission of crimes against humanity, including offenses against both German civilians and the nationals of occupied countries, after the outbreak of World War II. The specific offenses charged included murder, persecution on political, racial, and religious grounds, deportation and enslavement, plunder of private property, torture and other atrocities. Count four charged seven of the defendants with membership in the SS, the SD, or the Leadership Corps of the Nazi Party, all organizations declared to be criminal by the International Military Tribunal.

During the course of the trial the Tribunal ruled with respect to count one “that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.” However, the Tribunal ruled further that count one “also alleges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We therefore cannot properly strike the whole of count one from the indictment, but, insofar as count one charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.” Judge Blair, in a separate opinion filed at the time of judgment, dissented from this ruling, declaring that the Tribunal should have declared that the military tribunals created under Ordinance No. 7 had jurisdiction over “conspiracy to commit” any and all crimes defined in Article II of Control Council Law No. 10.

Of the 14 defendants who stood trial to the end, ten were convicted on one or more counts, and four were acquitted on all counts.

The Justice Case was tried at the Palace of Justice in Nuernberg before Military Tribunal III. Early in June 1947, the presiding judge became ill, and for this reason the sessions of the Tribunal had to be temporarily suspended. Thereupon the Tribunal designated the other two members and the alternate member as commissioners of the Tribunal to hear the testimony of a number of available witnesses whose affidavits had been introduced in evidence by the prosecution and who had been requested for cross-examination by the defense. Accordingly, the commissioners held hearings to take the further testimony of 13 prosecution affiants on 3, 4, and 5 June 1947. The presiding judge still remained incapacitated due to severe illness. Consequently, on 19 June 1947, shortly before the beginning of the defense case, the Tribunal was reconstituted pursuant to Article II of Military Government Ordinance No. 7, and the alternate judge, who had been present throughout the sessions of the trial, replaced the incapacitated member. Hearings before the Tribunal or the commissioners of the Tribunal were held on 129 separate days. The trial, from indictment to judgment, lasted 11 months. The course of the trial and subsequent related proceedings is shown in the following table:

Indictment filed 4 January 1947
Arraignment 17 February 1947
Prosecution opening statement 5 March 1947
Defense opening statements 23 June 1947
Prosecution closing statement 13–14 October 1947
Defense closing statements 14–18 October 1947
Prosecution rebuttal closing 18 October 1947
Final statements of defendants 18 October 1947
Judgment 3–4 December 1947
Sentences 4 December 1947
Affirmation of sentences by the Military
Governor of the United States Zone of
Occupation 18 January 1949
Order of the Supreme Court of the United
States denying Writs of Habeas Corpus. 2 May 1949

The English transcript of the Court proceedings, including the judgment, the separate opinion of Judge Blair, and the sentences, runs to 10,964 mimeographed pages. The prosecution introduced into evidence 641 written exhibits (some of which contained several documents), and the defense 1,452 written exhibits. The exhibits offered by the prosecution and the defense contained documents, photographs, affidavits, interrogatories, letters, charts, and other written evidence. Approximately 600 of these written exhibits were affidavits, more than 500 of which were introduced by the defense. The Tribunal and the members thereof sitting as commissioners heard the testimony of approximately 140 witnesses, including that of twelve of the defendants who elected to testify. Each of the defendants who testified was subject to examination on behalf of the other defendants. Many of the witnesses heard by the Tribunal itself, and all of the witnesses whose testimony was taken in the commission, were prosecution affiants who were called for cross-examination by the defense.

The case-in-chief of the prosecution began on 5 March 1947 and ended on 5 June 1947, subject to the understanding that several prosecution affiants requested for cross-examination by the defense and not immediately available for cross-examination, could be cross-examined by the defense during the defense case. The Tribunal was in recess between 28 May 1947 and 23 June 1947, during which period the commissioners of the Tribunals held hearings on three successive days. The defense case began on 23 June 1947 and ended on 26 September 1947. The Tribunal was in recess between 26 September 1947 and 13 October 1947, to give both the prosecution and the defense additional time to prepare the closing statements.

The members of the Tribunal and prosecution and defense counsel are listed on the ensuing pages. Prosecution counsel were assisted in preparing the case by Walter Rapp (Chief of the Evidence Division), Fred Niebergall (Chief of the Document Branch), Peter Beauvais, interrogator, and Arnold Buchtal and Henry Einstein, research and documentary analysts.

* * * * * * *

Selection and arrangement of the Justice Case material published herein was accomplished principally by Robert D. King, working under the general supervision of Drexel A. Sprecher, Deputy Chief Counsel and Director of Publications, Office U.S. Chief of Counsel for War Crimes. Arnold Buchtal, Paul H. Gantt, Gertrude Ferencz, Wolfgang Hildesheimer, Julia Kerr, and Walter Schonfeld assisted in selecting, compiling, editing, and indexing the numerous papers.

John H. E. Fried, Special Legal Consultant to the Tribunals, reviewed and approved the selection and arrangement of the material as the designated representative of the Nuernberg Tribunals.

Final compilation and editing of the manuscript for printing was administered by the War Crimes Division, Office of the Judge Advocate General, under the supervision of Richard A. Olbeter, Chief, Special Projects Branch, with Evelyn A. Goldblatt and Robert F. Phelps as editors and Harry Jacobs and John W. Mosenthal as research analysts.

ORDERS CONSTITUTING THE TRIBUNAL

OFFICE OF MILITARY GOVERNMENT FOR GERMANY (U.S.) APO 472

GENERAL ORDERS }
No. 11 } 14 February 1947

_Pursuant to Military Government Ordinance No. 7_

1. Effective as of 13 February 1947, pursuant to Military Government Ordinance No. 7, 24 October 1946, entitled “Organization and Powers of Certain Military Tribunals,” there is hereby constituted, Military Tribunal III.

2. The following are designated as members of Military Tribunal III:

CARRINGTON T. MARSHALL Presiding Judge
JAMES T. BRAND Judge
MALLORY B. BLAIR Judge
JUSTIN WILLIAM HARDING[3] Alternate Judge

3. The Tribunal shall convene at Nurnberg, Germany, to hear such cases as may be filed by the Chief of Counsel for War Crimes or by his duly designated representative.

BY COMMAND OF LIEUTENANT GENERAL CLAY:

C. K. GAILEY
_Brigadier General, GSC
Chief of Staff_

OFFICIAL:

A. D. VAN ORSDEL
_Lieutenant Colonel, AGD
Acting Adjutant General_

SEAL:
Office of Military Government for Germany (US)
Official

DISTRIBUTION: “B” plus
2--AG MRU, USFET

HEADQUARTERS, EUROPEAN COMMAND

GENERAL ORDERS }
No. 69 } 27 June 1947

_Pursuant to Military Government Ordinance No. 7_

1. Confirming verbal order Commander-in-Chief, European Command, 19 June 1947, and pursuant to Military Government Ordinance No. 7, 24 October 1946, entitled “Organization and Powers of Certain Military Tribunals”, JAMES T. BRAND is appointed Presiding Judge of Military Tribunal III vice CARRINGTON T. MARSHALL, relieved because of illness.

2. Confirming verbal order Commander-in-Chief, European Command, 19 June 1947, JUSTIN WILLIAM HARDING,[4] Alternate Judge, is appointed Judge for Military Tribunal III.

BY COMMAND OF GENERAL CLAY:

C. R. HUEBNER
_Lieutenant General, GSC
Chief of Staff_

OFFICIAL:

GEORGE E. NORTON, JR.
_Lieutenant Colonel, AGD
Asst. Adjutant General_

Seal: Official Headquarters
European Command

DISTRIBUTION: “B” plus
2--AG, MRU, EUCOM
2--The Adjutant General
War Department
Attn: Operations Branch AG AO-I
1--OPO Reports Section
800--Hq EUCOM

_James T. Brand; Carrington T. Marshall, presiding; Mallory
P. Blair; Justin W. Harding, alternate._ [_Presiding Judge
Marshall was obliged to retire because of illness at which time
Judge Brand became presiding judge and Alternate Judge Harding
became a member judge._]

_The defendants in the dock. Left to right: front row, Franz
Schlegelberger, Herbert Klemm, Curt Rothenberger, Ernst Lautz,
Wolfgang Mettgenberg, Wilhelm Von Ammon, Guenther Joel, Oswald
Rothaug, Paul Barnickel, Hans Petersen, Guenther Nebelung. Back
row, Hermann Cuhorst, Rudolf Oeschey, and Joseph Altstoetter. In
front of defendants’ dock are defense counsel. Interpreters are
behind glass partition at upper right._]

MEMBERS OF THE TRIBUNAL[5]

JUDGE CARRINGTON T. MARSHALL, Presiding Judge (to 19 June 1947).

Formerly Chief Justice of the Supreme Court of the State of Ohio.

JUDGE JAMES T. BRAND, Member (to 19 June 1947), and Presiding Judge (from 19 June 1947).

Justice of the Supreme Court of the State of Oregon.

JUDGE MALLORY B. BLAIR, Member.

Associate Justice of the Court of Civil Appeals for the Third
District of the State of Texas.

JUDGE JUSTIN W. HARDING, Alternate Member (to 19 June 1947),
and Member (from 19 June 1947).

Formerly Assistant Attorney General of the State of Ohio and
District Judge of the First Division of the Territory of Alaska.

ASSISTANT SECRETARIES GENERAL

ARTHUR P. NESBIT From 6 March 1947 to 6 May 1947.
C. G. WILLSIE From 9 May 1947 to 4 December 1947.

PROSECUTION COUNSEL

Chief of Counsel:
BRIGADIER GENERAL TELFORD TAYLOR

Deputy Chief Counsel:
CHARLES M. LAFOLLETTE

Associate Counsel:
ROBERT D. KING
ALFRED M. WOOLEYHAN

Assistant Counsel:
SADIE B. ARBUTHNOT

DEFENDANTS AND DEFENSE COUNSEL

_Defendant_ _Defense Counsel_ _Assistant Defense Counsel_
ALTSTOETTER, JOSEF DR. HERMANN ORTH DR. LUDWIG ALTSTOETTER
VON AMMON, WILHELM DR. EGON KUBUSCHOK DR. HUBERTUS JANICKI
BARNICKEL, PAUL DR. EDMUND TIPP RUDOLF SCHMIDT
CUHORST, HERMANN DR. RICHARD BRIEGER KARL HASSFUERTHER
ENGERT, KARL DR. HANNS MARX
(to 31 July 1947)
DR. HEINRICH LINK
(from 31 July 1947)
JOEL, GUNTHER DR. CARL HAENSEL HERBERT THIELE-FREDERSDORF
KLEMM, HERBERT DR. ALFRED SCHILF DR. ERHARD HEINKE
LAUTZ, ERNST DR. HEINRICH GRUBE
METTGENBERG, WOLFGANG DR. ALFRED SCHILF DR. ERHARD HEINKE
NEBELUNG, GUENTHER DR. KARL DOETZER GERDA DOETZER
OESCHEY, RUDOLF DR. WERNER SCHUBERT DR. KARL PRIBILLA
PETERSEN, HANS DR. RUDOLF ASCHENAUER DR. OTFRIED SCHWARZ
ROTHAUG, OSWALD DR. RUDOLF KOESSL ADOLF HUETTL
ROTHENBERGER, CURT DR. ERICH WANDSCHNEIDER DR. HELMUT BOTHE
SCHLEGELBERGER, FRANZ DR. EGON KUBUSCHOK DR. HUBERTUS JANICKI

I. INDICTMENT

The United States of America, by the undersigned Telford Taylor, Chief of Counsel for War Crimes, duly appointed to represent said Government in the prosecution of war criminals, charges that the defendants herein participated in a common design or conspiracy to commit and did commit war crimes and crimes against humanity, as defined in Control Council Law No. 10, duly enacted by the Allied Control Council on 20 December 1945. These crimes included murders, brutalities, cruelties, tortures, atrocities, plunder of private property, and other inhumane acts, as set forth in counts one, two, and three of this indictment. Certain defendants are further charged with membership in criminal organizations, as set forth in count four of this indictment.

The persons accused as guilty of these crimes and accordingly named as defendants in this case are:

JOSEF ALTSTOETTER--Chief (Ministerialdirektor) of the Civil Law and Procedure Division (Abteilung VI) of the Reich Ministry of Justice; and Oberfuehrer in the SS.

WILHELM VON AMMON--Ministerial Counsellor (Ministerialrat) of the Criminal Legislation and Administration Division (Abteilung IV) of the Reich Ministry of Justice and coordinator of proceedings against foreigners for offenses against Reich occupational forces abroad.

PAUL BARNICKEL--Senior Public Prosecutor (Reichsanwalt) of the People’s Court (Volksgerichtshof); Sturmfuehrer in the SA.

HERMANN CUHORST--Chief Justice (Senatspraesident) of the Special Court (Sondergericht) in Stuttgart; Chief Justice of the First Criminal Senate of the District Court (Landgericht) in Stuttgart; member of the Leadership Corps of the Nazi Party at Gau executive level; sponsoring member (Foerderndes Mitglied) of the SS.

KARL ENGERT--Chief (Ministerialdirektor) of the Penal Administration Division (Abteilung V) and of the secret Prison Inmate Transfer Division (Abteilung XV) of the Reich Ministry of Justice; Oberfuehrer in the SS; Vice President of the People’s Court (Volksgerichtshof); Ortsgruppenleiter in the NSDAP Leadership Corps.

GUENTHER JOEL--Legal Adviser (Referent) to the Reich Minister of Justice concerning criminal prosecutions; Chief Public Prosecutor (Generalstaatsanwalt) of Westphalia at Hamm; Obersturmbannfuehrer in the SS; Untersturmbannfeuhrer [sic] in the SD.

HERBERT KLEMM--State Secretary (Staatssekretaer)[6] of the Reich Ministry of Justice; Director (Ministerialdirektor) of the Legal Education and Training Division (Abteilung II) in the Ministry of Justice; Deputy Director of the National Socialist Lawyers League (NS Rechtswahrerbund); Obergruppenfuehrer in the SA.

ERNST LAUTZ--Chief Public Prosecutor (Oberreichsanwalt) of the People’s Court.

WOLFGANG METTGENBERG--Representative of the Chief (Ministerialdirigent) of the Criminal Legislation and Administration Division (Abteilung IV) of the Reich Ministry of Justice, particularly supervising criminal offenses against German occupational forces in occupied territories.

GUENTHER NEBELUNG--Chief Justice of the Fourth Senate of the People’s Court; Sturmfuehrer in the SA; Ortsgruppenleiter in the NSDAP Leadership Corps.

RUDOLF OESCHEY--Judge (Landgerichtsrat) of the Special Court in Nuernberg and successor to the defendant Rothaug as Chief Justice (Landgerichtsdirektor) of the same court; member of the Leadership Corps of the Nazi Party at Gau executive level (Gauhauptstellenleiter); an executive (Kommissarischer Leiter) of the National Socialist Lawyers League.

HANS PETERSEN--Lay Judge of the First Senate of the People’s Court; Lay Judge of the Special Senate (Besonderer Senat) of the People’s Court; Obergruppenfuehrer in the SA.

OSWALD ROTHAUG--Senior Public Prosecutor (Reichsanwalt) of the People’s Court; formerly Chief Justice of the Special Court in Nuernberg; member of the Leadership Corps of the Nazi Party at Gau executive level.

CURT ROTHENBERGER--State Secretary (Staatssekretaer) of the Reich Ministry of Justice; deputy president of the Academy of German Law (Akademie fuer deutsches Recht); Gaufuehrer of the National Socialist Lawyers League.

FRANZ SCHLEGELBERGER--State Secretary; Acting Reich Minister of Justice.

CARL WESTPHAL--Ministerial Counsellor (Ministerialrat) of the Criminal Legislation and Administration Division (Abteilung IV) of the Reich Ministry of Justice, and officially responsible for questions of criminal procedure and penal execution within the Reich; Ministry coordinator for nullity pleas against adjudicated sentences.

COUNT ONE--THE COMMON DESIGN AND CONSPIRACY

1. Between January 1933 and April 1945 all of the defendants herein, acting pursuant to a common design, unlawfully, willfully, and knowingly did conspire and agree together and with each other and with divers other persons, to commit war crimes and crimes against humanity, as defined in Control Council Law No. 10, Article II.

2. Throughout the period covered by this indictment all of the defendants herein, acting in concert with each other and with others, unlawfully, willfully, and knowingly were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving, the commission of war crimes and crimes against humanity.

3. All of the defendants herein, acting in concert with each other and with others, unlawfully, willfully, and knowingly participated as leaders, organizers, instigators, and accomplices in the formulation and execution of the said common design, conspiracy, plans, and enterprises to commit, and which involved the commission of, war crimes and crimes against humanity, and accordingly are individually responsible for their own acts and for all acts performed by any person or persons in execution of the said common design, conspiracy, plans, and enterprises.

4. The said common design, conspiracy, plans, and enterprises embraced the commission of war crimes and crimes against humanity, as set forth in counts two and three of this indictment, in that the defendants unlawfully, willfully, and knowingly encouraged, aided, abetted, and participated in the commission of atrocities and offenses against persons and property, including plunder of private property, murder, extermination, enslavement, deportation, unlawful imprisonment, torture, persecutions on political, racial, and religious grounds, and ill-treatment of, and other inhumane acts against, thousands of persons, including German civilians, nationals of other countries, and prisoners of war.

5. It was a part of the said common design, conspiracy, plans, and enterprises to enact, issue, enforce, and give effect to certain purported statutes, decrees, and orders, which were criminal both in inception and execution, and to work with the Gestapo, SS, SD, SIPO, and RSHA for criminal purposes, in the course of which the defendants, by distortion and denial of judicial and penal process, committed the murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts, more fully described in counts two and three of this indictment.

6. The said common design, conspiracy, plans, and enterprises embraced the assumption by the Reich Ministry of Justice of total control of the administration of justice, including preparation of legislation concerning all branches of law, and control of the courts and prisons. The supreme administration of justice in all German states was transferred to the Reich Ministry of Justice in 1934. Thereupon, certain extraordinary courts of a predominantly political nature, with wide and arbitrary criminal jurisdiction, were superimposed upon the existing ordinary court system. The People’s Court (Volksgerichtshof) became the court of original and final jurisdiction in cases of “high treason” and “treason.” This court itself had jurisdiction over the investigation and prosecution of all cases before it, and there was no appeal from its decision. The court’s territorial jurisdiction was extended not only to all annexed countries of the Reich but also to the “Protectorate” (Bohemia and Moravia) in 1939. Beginning in 1933, Special Courts (Sondergerichte) also were superimposed upon the ordinary court system under the Reich Ministry of Justice. These Special Courts were of a character which had been outlawed until the NSDAP seizure of power. Jurisdiction of these Special Courts extended to all “political” cases, as well as to all acts deemed inimical to either the Party, the government, or continued prosecution of the war. At least one Special Court was attached to every court of appeal (Oberlandesgericht); public prosecutors could arbitrarily refer thereto any case from the local courts (Amtsgerichte) or from the criminal division of the district courts (Landgerichte). Despite guaranties in the Weimar Constitution and the German Judicature Act, that no one may be deprived of his competent judge, and prohibitions against irregular tribunals, these courts were imposed upon Germany, as well as upon the “Protectorate” and the occupied countries.

7. The said common design, conspiracy, plans, and enterprises embraced the use of the judicial process as a powerful weapon for the persecution and extermination of all opponents of the Nazi regime regardless of nationality and for the persecution and extermination of “races.” The special political tribunals mentioned above visited cruel punishment and death upon political opponents and members of certain “racial” and national groups. The People’s Court was presided over by a minority of trusted Nazi lawyers, and a majority of equally trusted laymen appointed by Hitler from the Elite Guard and Party hierarchy. The People’s Court in collaboration with the Gestapo became a terror court, notorious for the severity of punishment, secrecy of proceedings, and denial to the accused of all semblance of judicial process. Punishment was meted out by Special Courts to victims under a law which condemned all who offended the “healthy sentiment of the people.” Independence of the judiciary was destroyed. Judges were removed from the bench for political and “racial” reasons. Periodic “letters” were sent by the Ministry of Justice to all Reich judges and public prosecutors, instructing them as to the results they must accomplish. Both the bench and bar were continually spied upon by the Gestapo and SD, and were directed to keep disposition of their cases politically acceptable. Judges, prosecutors and, in many cases, defense counsel were reduced in effect to an administrative arm of the Nazi Party.

COUNT TWO--WAR CRIMES

8. Between September 1939 and April 1945 all of the defendants herein unlawfully, willfully, and knowingly committed war crimes, as defined by Control Council Law No. 10, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of atrocities and offenses against persons and property, including, but not limited to, plunder of private property, murder, torture, and illegal imprisonment of, and brutalities, atrocities, and other inhumane acts against thousands of persons. These crimes included, but were not limited to, the facts set out in paragraphs 9 to 19, inclusive, of this indictment, and were committed against civilians of occupied territories and members of the armed forces of nations then at war with the German Reich and who were in the custody of the German Reich in the exercise of belligerent control.

9. Extraordinary irregular courts, superimposed upon the regular court system, were used by all of the defendants for the purpose of and in fact creating a reign of terror to suppress political opposition to the Nazi regime. This was accomplished principally through the People’s Court (Volksgerichtshof) and various Special Courts (Sondergerichte), which subjected civilians of the occupied countries to criminal abuse of judicial and penal process including repeated trials on the same charges, criminal abuse of discretion, unwarranted imposition of the death penalty, prearrangement of sentences between judges and prosecutors, discriminatory trial processes, and other criminal practices, all of which resulted in murders, cruelties, tortures, atrocities, plunder of private property, and other inhumane acts.

10. Special Courts subjected Jews of all nationalities, Poles, Ukrainians, Russians, and other nationals of the Occupied Eastern Territories, indiscriminately classed as “gypsies”, to discriminatory and special penal laws and trials, and denied them all semblance of judicial process. These persons who had been arbitrarily designated “asocial” by conspiracy and agreement between the Ministry of Justice and the SS were turned over by the Ministry of Justice, both during and after service of prison sentences, to the SS to be worked to death. Many such persons were given a summary travesty of trial before extraordinary courts, and after serving the sentences imposed upon them, were turned over to the Gestapo for “protective custody” in concentration camps. Jews discharged from prison were turned over to the Gestapo for final detention in Auschwitz, Lublin, and other concentration camps. The above-described proceedings resulted in the murder, torture, and ill-treatment of thousands of such persons. The defendants von Ammon, Engert, Klemm, Schlegelberger, Mettgenberg, Rothenberger, and Westphal are charged with special responsibility for and participation in these crimes.

11. The German criminal laws, through a series of expansions and perversions by the Ministry of Justice, finally embraced passive defeatism, petty misdemeanors and trivial private utterances as treasonable for the purpose of exterminating Jews or other nationals of the occupied countries. Indictments, trials and convictions were transparent devices for a system of murderous extermination, and death became the routine penalty. Jurisdiction of the German criminal code was extended to the entire world, to cover acts of non-Germans as well as Germans living outside the Reich. Non-German nationals were convicted of and executed for “high treason” allegedly committed against the Reich. The above-described proceedings resulted in the murder, torture, unlawful imprisonment, and ill-treatment of thousands of persons. The defendants Barnickel, Cuhorst, Klemm, Lautz, Mettgenberg, Nebelung, Oeschey, Petersen, Rothaug, Rothenberger, Schlegelberger, and Westphal are charged with special responsibility for and participation in these crimes.

12. The Justice Ministry aided and implemented the unlawful annexation and occupation of Czechoslovakia, Poland, and France. Special Courts were created to facilitate the extermination of Poles and Jews and the suppression of political opposition generally by the employment of summary procedures and the enforcement of Draconic penal laws. Sentences were limited to death or transfer to the SS for extermination. The People’s Court and Special Courts were projected into these countries, irregular prejudicial regulations and procedures were invoked without notice (even in violation of the Reich Criminal Code as unlawfully extended to other occupied territories), sentences were prearranged, and trial and execution followed service of the indictment within a few hours. The above-described proceedings resulted in the murder, ill-treatment, and unlawful imprisonment of thousands of persons. The defendants Klemm, Lautz, Mettgenberg, Schlegelberger, and Westphal are charged with special responsibility for and participation in these crimes.

13. The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler’s decree of “Night and Fog” (Nacht und Nebel) whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims’ whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims’ relatives and associates and barring recourse to any evidence, witnesses, or counsel for defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for “protective custody” for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned. The defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger are charged with special responsibility for and participation in these crimes.

14. Hundreds of non-German nationals imprisoned in penal institutions operated by the Reich Ministry of Justice were unlawfully executed and murdered. Death sentences were executed in the absence of the necessary official orders, and while clemency pleas were pending. Many who were not sentenced to death were executed. In the face of Allied military advances so-called “inferior” or “asocial” prison inmates were, by Ministry order, executed regardless of sentences under which they served. In many instances these penal institutions were operated in a manner indistinguishable from concentration camps. The defendants Engert, Joel, Klemm, Lautz, Mettgenberg, Rothenberger, and Westphal are charged with special responsibility for and participation in these crimes.

15. The Ministry of Justice participated in the Nazi program of racial purity pursuant to which sterilization and castration laws were perverted for the extermination of Jews, “asocials”, and certain nationals of the occupied territories. In the course of the program thousands of Jews were sterilized. Insane, aged, and sick nationals of occupied territories, the so-called “useless eaters,” were systematically murdered. In the course of the above-described proceedings thousands of persons were murdered and ill-treated. The defendants Lautz, Schlegelberger, and Westphal are charged with special responsibility for and participation in these crimes.

16. The Ministry of Justice granted immunity to and amnesty following prosecutions and convictions of Nazi Party members for major crimes committed against civilians of occupied territories. Pardons were granted to members of the Party who had been sentenced for proved offenses. On the other hand, discriminatory measures against Jews, Poles, “gypsies,” and other designated “asocials” resulted in harsh penal measures and death sentences, deprivation of rights to file private suits and rights of appeal, denial of right to receive amnesty and to file clemency pleas, denial of right of counsel, imposition of special criminal laws permitting the death penalty for all crimes and misdemeanors, and finally, in the transfer to the Gestapo for “special treatment” of all cases in which Jews were involved. The defendants von Ammon, Joel, Klemm, Rothenberger, and Schlegelberger are charged with special responsibility for and participation in these crimes.

17. By decrees signed by the Reich Minister of Justice and others, the citizenship of all Jews in Bohemia and Moravia was forfeited upon their change of residence by deportation or otherwise; and upon their loss of citizenship their properties were automatically confiscated by the Reich. There were discriminatory changes in the family and inheritance laws by which Jewish property was forfeited at death to the Reich with no compensation to the Jewish heirs. The defendants Altstoetter and Schlegelberger are charged with special responsibility for and participation in these crimes.

18. The Ministry of Justice through suspension and quashing of criminal process, participated in Hitler’s program of inciting the German civilian population to murder Allied airmen forced down within the Reich. The defendants Klemm and Lautz are charged with special responsibility for and participation in these crimes.

19. The said war crimes constitute violations of international conventions, particularly of Articles 4–7, 23, 43, 45, 46, and 50 of the Hague Regulations, 1907, and of articles 2, 3, and 4 of the Prisoner of War Convention (Geneva, 1929), the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and of Article II of Control Council Law No. 10.

COUNT THREE--CRIMES AGAINST HUMANITY

20. Between September 1939 and April 1945 all of the defendants herein unlawfully, willfully, and knowingly committed crimes against humanity as defined by Control Council Law No. 10, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, illegal imprisonment, torture, persecution on political, racial and religious grounds, and ill-treatment of and other inhumane acts against German civilians and nationals of occupied countries.

21. Extraordinary irregular courts were used by all of the defendants in creating a reign of terror to suppress political opposition to the German Reich, in the course of which German civilians and nationals of occupied countries were subjected to criminal abuses of judicial and penal process, resulting in murders, brutalities, cruelties, tortures, atrocities, plunder of private property, and other inhumane acts. These crimes are further particularized in paragraph 9 of this indictment, which is incorporated herein by reference.

22. Special Courts subjected certain German civilians, and nationals of occupied countries to discriminatory and special penal laws and trials, and denied them all semblance of judicial process. Convicted German civilians and nationals of other countries who were deemed to be political prisoners and criminals designated as “asocial,” were turned over to the Reich Security Main Office (RSHA) for extermination in concentration camps. These crimes are further particularized in paragraph 10 of this indictment, which is incorporated herein by reference. The defendants von Ammon, Engert, Joel, Klemm, Lautz, Mettgenberg, and Rothenberger are charged with special responsibility for and participation in these crimes.

23. The German criminal laws, through a series of additions, expansions, and perversions by the defendants became a powerful weapon for the subjugation of the German people and for the extermination of certain nationals of the occupied countries. This program resulted in the murder, torture, illegal imprisonment, and ill-treatment of thousands of Germans and nationals of occupied countries. These crimes are further particularized in paragraph 11 of this indictment, which is incorporated herein by reference. The defendants Barnickel, Cuhorst, Klemm, Lautz, Mettgenberg, Nebelung, Oeschey, Petersen, Rothaug, Rothenberger, Schlegelberger, and Westphal are charged with special responsibility for and participation in these crimes.

24. The Ministry of Justice, through the People’s Court and certain Special Courts, aided and implemented the unlawful annexation and occupation of Czechoslovakia, Poland, and France. These crimes are further particularized in paragraph 12 of this indictment, which is incorporated herein by reference. The defendants Klemm, Lautz, Mettgenberg, Schlegelberger, and Westphal are charged with special responsibility for and participation in these crimes.

25. The Ministry of Justice participated in the decree of “Night and Fog” whereby certain persons who committed offenses against the Reich or the German forces in occupied territories were taken secretly by the Gestapo to Germany and handed over to the Special Courts for trial and punishment. This program resulted in the murder, torture, illegal imprisonment, and ill-treatment of thousands of persons. These crimes are further particularized in paragraph 13 of this indictment, which is incorporated herein by reference. The defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger are charged with special responsibility for and participation in these crimes.

26. In penal institutions operated by the Reich Ministry of Justice, hundreds of German civilians and nationals of other countries were subjected to murders, brutalities, cruelties, tortures, atrocities, and other inhumane acts. The particulars concerning these crimes are set forth in paragraph 14 of this indictment. The defendants Engert, Joel, Klemm, Lautz, Mettgenberg, Rothenberger, and Westphal are charged with special responsibility for and participation in these crimes.

27. Special health courts (Erbgesundheitgerichte) perverted eugenic and sterilization laws or policies regarding German civilians and nationals of other countries which resulted in the systematic murder and ill-treatment of thousands of persons. Thousands of German civilians and nationals of other countries committed to institutions for the insane, were systematically murdered. These crimes are further particularized in paragraph 15 of count two of this indictment, which is incorporated herein by reference. The defendants Lautz, Schlegelberger, and Westphal are charged with special responsibility for and participation in these crimes.

28. The Ministry of Justice granted immunity to and amnesty following prosecutions and convictions of Party members for major crimes committed against civilians of occupied territories. Pardons were granted to members of the Party who had been sentenced for proved offenses. On the other hand, discriminatory judicial proceedings were imposed against so-called “asocial” German nationals and civilians of the occupied countries. These crimes are further particularized in paragraph 16 of count two of this indictment and are incorporated herein by reference. The defendants von Ammon, Joel, Klemm, Mettgenberg, Rothenberger, and Schlegelberger are charged with special responsibility for and participation in these crimes.

29. Discriminatory changes made in the German family and inheritance laws for the sole purpose of confiscating Jewish properties, were enforced by the Justice Ministry. All Jewish properties were forfeited at death to the Reich. Jews and Poles, both in Germany and in the occupied countries, were deprived of their citizenship, their property was seized and confiscated, and they were deprived of means of earning a livelihood, by the State, by Party organizations, and by individual members of the Party. These crimes are further particularized in paragraph 17 of this indictment, which is incorporated herein by reference. The defendants Altstoetter and Schlegelberger are charged with special responsibility for and participation in these crimes.

30. The Ministry of Justice through suspension and quashing of criminal process, participated in Hitler’s program of inciting the German civilian population to murder Allied airmen forced down within the Reich. This program resulted in the murder, torture, and ill-treatment of many persons. These crimes are further particularized in paragraph 18 of this indictment, which is incorporated herein by reference. The defendants Klemm and Lautz are charged with special responsibility for and participation in these crimes.

31. The said crimes against humanity constitute violations of international conventions, including article 46 of the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and of article II of Control Council Law No. 10.

COUNT FOUR
MEMBERSHIP IN CRIMINAL ORGANIZATIONS

32. The defendants Altstoetter, Cuhorst, Engert, and Joel are guilty of membership in an organization declared to be criminal by the International Military Tribunal in Case 1, in that each of the said defendants was a member of DIE SCHUTZSTAFFELN DER NATIONAL SOZIALISTISCHEN DEUTSCHEN ARBEITERPARTEI (commonly known as the “SS”) after 1 September 1939.

33. The defendants Cuhorst, Oeschey, Nebelung, and Rothaug are guilty of membership in an organization declared to be criminal by the International Military Tribunal in Case 1, in that Cuhorst, Oeschey, and Rothaug were members of the Leadership Corps of the Nazi Party at Gau level after 1 September 1939, and in that Nebelung was an Ortsgruppenleiter of the Leadership Corps of the Nazi Party after 1 September 1939.

34. The defendant Joel is guilty of membership in an organization declared to be criminal by the International Military Tribunal in Case 1, in that the said defendant was a member of DER SICHERHEITSDIENST DES REICHSFUEHRER SS (commonly known as the “SD”) after 1 September 1939.

Such memberships are in violation of paragraph 1 (d), article II of Control Council Law No. 10.

Wherefore, this indictment is filed with the Secretary General of the Military Tribunals and the charges herein made against the above-named defendants are hereby presented to the Military Tribunals.

Acting on Behalf of the United States of America

TELFORD TAYLOR
Brigadier General, U. S. Army
Chief of Counsel for War Crimes

Nuernberg, 4 January 1947

II. ARRAIGNMENT

Extracts from the official transcript of Military Tribunal
III in the matter of the United States of America vs. Josef
Altstoetter, et al., defendants, sitting at Nuernberg, Germany,
on 17 February 1947, 0930, Justice Carrington T. Marshall,
presiding.[7]

THE MARSHAL: Persons in the courtroom will please find their seats.

The Honorable, the Judges of Military Tribunal III.

Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.

There will be order in the courtroom.

PRESIDING JUDGE MARSHALL: The Tribunal will now proceed with the arraignment of the defendants in Case 3 pending before this Tribunal.

The Secretary General will call the names of the defendants.

THE SECRETARY GENERAL: Josef Altstoetter, Wilhelm von Ammon, Paul Barnickel, Hermann Cuhorst, Karl Engert, Guenther Joel, Herbert Klemm, Ernst Lautz, Wolfgang Mettgenberg, Guenther Nebelung, Rudolf Oeschey, Hans Petersen, Oswald Rothaug, Curt Rothenberger, Franz Schlegelberger.

MR. LAFOLLETTE: May it please your Honor, all the defendants are present. I wish to advise the members of this Tribunal that subsequent to the filing of the indictment in this case the defendant therein named Carl Westphal died, and he died while in the custody of the Marshal which may be confirmed by the Tribunal.[8]

PRESIDING JUDGE MARSHALL: It will be so entered in the record.

Counsel for the prosecution will proceed with the arraignments of the defendants.

[Here Mr. LaFollette read the indictment. See pp. 15–26.]

* * * * * * *

PRESIDING JUDGE MARSHALL: The microphone will now be placed in front of the defendant Josef Altstoetter.

I shall now call upon all defendants to plead guilty or not guilty to the charges against them. Each defendant, as his name is called, will stand and speak clearly into the microphone.

At this time there will be no arguments, speeches, or discussions of any kind. Each defendant will simply plead guilty or not guilty to the offenses with which he is charged by this indictment.

Josef Altstoetter, are you represented by counsel before this Tribunal?

DEFENDANT ALTSTOETTER: I do not consider myself guilty.

PRESIDING JUDGE MARSHALL: The question is, are you represented by counsel before this Tribunal?

DEFENDANT ALTSTOETTER: Yes, I am represented by counsel.

PRESIDING JUDGE MARSHALL: How do you plead to the charges and specifications and each thereof set forth in the indictment against you, guilty or not guilty?

DEFENDANT ALTSTOETTER: I consider myself not guilty.

PRESIDING JUDGE MARSHALL: You may be seated.

[At this point the other defendants were asked similar questions. Each defendant indicated that he was represented by counsel, and each pleaded “Not guilty” to the charges of the indictment against him.]

* * * * * * *

PRESIDING JUDGE MARSHALL: The pleas of the defendants will be entered by the Secretary General in the records of the Tribunal.

Military Tribunal will be at recess until Wednesday, 5 March 1947, at 9:30 o’clock a.m., at which time the trial of Case 3 will begin.

THE MARSHAL: Military Tribunal III will be at recess until Wednesday, 5 March 1947, at 9:30 o’clock.

DR. SCHILF: I wish to make a request. I wish to ask the prosecution, in due time before the opening of the trial, to make their document books available to the defendants and to their counsel.

We make the following objections against the indictment: Ordinance No. 7, by the Military Government, says, in article IV under paragraph (_a_), that the indictment is to set forth the counts simply, distinctly, and in sufficient detail, and that the defendants should be instructed on the details of the charges made against them.

The defendants, or rather the two clients I represent, failed to find certain details in the indictment. With the exception of possibly the charge in regard to the Night and Fog Decree, no legal decree is referred to which could possibly be considered illegal.

In that manner the preparation by the defendants is frustrated because the indictment, according to our opinion, is conceived much too generally, and the requirements of article IV of Ordinance No. 7 just referred to by me are not fulfilled. This could be remedied in that the prosecution, in due time, before the opening of the trial, makes the document books available to the defense counsel.

That is what I should like to ask for on behalf of my two clients.

PRESIDING JUDGE MARSHALL: Does the prosecution desire to make any comment at this time upon the point raised?

MR. LAFOLLETTE: Unfortunately, and it is no fault of the defendants’ counsel, I didn’t hear what was coming through the phones. As I understand two points were raised--the fact that no documents were filed with defendants’ counsel in their room. Those will be furnished. Secondly, with reference to the objection raised to the indictment, I believe the rules require the objections should be reduced to writing. In any event I think it would serve the purpose if the objection to the indictment was reduced to writing, and then Your Honors would pick such time as you see fit to dispose of the motion, and we can argue it at that time more intelligently than we could at this moment. I do not desire to take advantage of technicalities, but I hope the record will note that defense counsel have duly raised the objection, and at such time as it is to be disposed of it will be reduced to writing before it is disposed of. I think it only reasonable that it be reduced to writing.

PRESIDING JUDGE MARSHALL: The defendants’ counsel will be required to reduce certain matters to writing, as requested by the prosecution, and it is possible that we will want to dispose of that matter between now and 5 March if it is agreeable to counsel on both sides.

DR. KOESSL: I have already submitted the same request in writing.

MR. LAFOLLETTE: If that has been submitted in writing I think Your Honors have indicated we may, within a reasonable time after you have seen it, wish to dispose of that prior to 5 March, or on 5 March, whichever Your Honors shall see fit. That will be satisfactory to us.

PRESIDING JUDGE MARSHALL: I suggest, in that connection, after you have seen the written matter that you advise the Tribunal when we are not in session as to your wishes.

MR. LAFOLLETTE: I shall be glad to do that, Judge. I assume we will wait and take not only the objections on behalf of the defendant Rothaug, but also any objections which have been filed by counsel on behalf of any other defendants. After they have been submitted and I have had an opportunity to see them, I will confer with defense counsel, and perhaps after that we will have time to confer with the Court as to the time of disposition.

PRESIDING JUDGE MARSHALL: Are there any other counsel representing defendants who desire to present any matters at this time? If not, the order for recess will stand.

(The Tribunal adjourned until 0930 hours, 5 March 1947.)

III. OPENING STATEMENTS

A. Opening Statement for the Prosecution[9]

BRIGADIER GENERAL TAYLOR: This case is unusual in that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues, were the embodiment of what passed for justice in the Third Reich.

Most of the defendants have served, at various times, as judges, as state prosecutors, and as officials of the Reich Ministry of Justice. All but one are professional jurists; they are well accustomed to courts and courtrooms, though their present role may be new to them.

But a court is far more than a courtroom; it is a process and a spirit. It is the house of law. This the defendants know, or must have known in times past. I doubt that they ever forgot it. Indeed, the root of the accusation here is that those men, leaders of the German judicial system, consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter.

The methods by which these crimes were committed may be novel in some respects, but the crimes themselves are not. They are as old as mankind, and their names are murder, torture, plunder, and others equally familiar. The victims of these crimes are countless, and include nationals of practically every country in Europe.

But because these crimes were committed in the guise of legal process, it is important at the outset to set forth certain things that are not, here and now, charged as crimes.

The defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals obedient only to the political dictates of the Hitler regime. They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The “trials” they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims.

This conduct was dishonor to their profession. Many of these misdeeds may well be crimes. But, in and of themselves, they are not charged as crimes in this indictment. The evidence which proves this course of conduct will, indeed, be laid before the Court, as it constitutes an important part of the proof of the crimes which are charged. But the defendants are not now called to account for violating constitutional guaranties or withholding due process of law.

On the contrary, the defendants are accused of participation in and responsibility for the killings, tortures, and other atrocities which resulted from, and which the defendants know were an inevitable consequence of, the conduct of their offices as judges, prosecutors, and ministry officials. These men share with all the leaders of the Third Reich--diplomats, generals, party officials, industrialists, and others--responsibility for the holocaust of death and misery which the Third Reich visited on the world and on Germany herself. In this responsibility, the share of the German men of law is not the least. They can no more escape that responsibility by virtue of their judicial robes than the general by his uniform.

One other word of clarification. Some of the evidence in this case will relate to acts which occurred before the outbreak of war in 1939. These acts will be proved in order to show that the defendants were part of a conspiracy and plan to commit the crimes charged to have been committed after the outbreak of war, and to show that the defendants fully understood and intended the criminal consequences of their acts during the war. But none of these acts is charged as an independent offense in this particular indictment.

The charges in the indictment have been so limited for purposes of clarity and simplicity. There is no need to test in this case delicate questions concerning the criminality per se of judicial misconduct since the accusation and the evidence cut much deeper. The defendants are charged with using their offices and exercising their powers with the knowledge and intent that their official acts would result in the killing, torture, and imprisonment of thousands of persons in violation of international law as declared in Control Council Law No. 10. Nor is there any need to inquire here into what acts committed before the war are cognizable as crimes against humanity under Law No. 10, since the bulk of the proof relates to acts which occurred during the war.

In summary, the defendants are charged with judicial murder and other atrocities which they committed by destroying law and justice in Germany, and by then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale. It is the purpose of this proceeding to hear these charges and to render judgment according to the evidence under law.

The true purposes of this proceeding, therefore, are broader than the mere visiting of retribution on a few men for the death and suffering of many thousands. I have said that the defendants know, or should know, that a court is the house of law. But it is, I fear, many years since any of the defendants have dwelt therein. Great as was their crime against those who died or suffered at their hands, their crime against Germany was even more shameful. They defiled the German temple of justice, and delivered Germany into the dictatorship of the Third Reich, “with all its methods of terror, and its cynical and open denial of the rule of law.”[10]

The temple must be reconsecrated. This cannot be done in the twinkling of an eye or by any mere ritual. It cannot be done in any single proceeding or at any one place. It certainly cannot be done at Nuernberg alone. But we have here, I think, a special opportunity and grave responsibility to help achieve this goal. We have here the men who played a leading part in the destruction of law in Germany. They are about to be judged in accordance with the law. It is more than fitting that these men be judged under that which they, as jurists, denied to others. Judgment under law is the only just fate for the defendants; the prosecution asks no other.

THE GERMAN JUDICIAL SYSTEM

There are fifteen defendants in the box, all of whom held high judicial office, and all but one of whom are trained lawyers. To understand this case, it is necessary to understand the general structure of the German judicial system and the places occupied by the several defendants within that system.

To assist the Court in this regard, the prosecution has prepared a short expository brief which is already in the hands of the Court and which has been made available to defense counsel in German and English. The brief includes a glossary of the more frequent German words or expressions which will occur during the trial--most of them from the vocabulary of governmental and judicial affairs. It includes a table of equivalent ranks between the American Army and the German Army and SS, and a table of the civilian ranks used in the German judicial system. It also includes two charts, showing respectively the structure of the Reich Ministry of Justice, and the hierarchy of German courts.[11] Finally, it includes a copy of the composite chart now displayed on the wall of the courtroom, which shows the positions occupied by the defendants in the general scheme of things. This chart has been certified by the defendant Schlegelberger, and will be introduced as an exhibit in this case when Mr. LaFollette commences the presentation of evidence. It is being displayed at this time as a convenient guide to the Court and to defense counsel, to enable them more easily to follow the opening statement.

JUDICIAL ORGANIZATION PRIOR TO 1933

Because Germany was divided into a multitude of states and provinces until modern times, German law is not the product of a continuous or uniform development. However, while some elements of old Germanic law have survived, German law has for many centuries been based primarily on the principles of Roman law. As is the case in most continental nations, German law today is enacted to a substantial degree in the form of codes.