Chapter LXX: Section 90: (f) of the Penal Code, as enacted on 24 April 1934, provided (2)

“It has come to my knowledge that just recently a number of
sentences passed have roused the strong disapproval of the
Fuehrer. I do not know exactly which sentences are concerned,
but I have ascertained for myself that now and then sentences
are pronounced, which are quite untenable. In such cases I
shall act with the utmost energy and decision. It is, however,
of vital importance for justice and its standing in the Reich,
that the head of the Ministry of Justice should know to which
sentences the Fuehrer objects, * * *.”

On the same date Schlegelberger wrote to Hitler in part as follows (_NG-152, Pros. Ex. 63_):

“In the course of the verdicts pronounced daily, there are
still judgments which do not entirely comply with the necessary
requirements. In such cases I will take the necessary steps. * *
*

“Apart from this it is _desirable to educate the judges more
and more to a correct way of thinking, conscious of the national
destiny_. For this purpose it would be invaluable, if you, my
Fuehrer, could let me know if a verdict does not meet with your
approval. The judges are responsible to you, my Fuehrer; they
are conscious of this responsibility, and are firmly resolved
to discharge their duties accordingly. * * * Heil, my Fuehrer!”
[Emphasis added.]

Hitler not only complied with the foregoing request, but proceeded beyond it. Upon his personal orders persons who had been sentenced to prison terms were turned over to the Gestapo for execution. We quote briefly from the testimony of Dr. Hans Gramm, who for many years was personal Referent to the defendant Schlegelberger, and who testified in his behalf.

“Q. Do you know anything about transfers of condemned persons to
the police, or to the Gestapo?

“A. I know that it frequently occurred that Hitler gave orders
to the police to call for people who had been sentenced to
prison terms. To be sure, it was an order from Hitler directed
to the police to the effect that the police had to take such and
such a man into their custody. These orders had rather short
limits. As a rule, there was only a time limit of 24 hours
before execution by the police, after which the police had to
report that it had been executed. These transfers, as far as
I can remember, took place only during the war.” (_Tr. pp.
4717–4718._)

This procedure was well-known in the Ministry of Justice. Gramm was informed by the defendant Schlegelberger that the previous Reich Minister of Justice, Dr. Guertner, had protested to Dr. Lammers against this procedure and had received the reply--

“That the courts could not stand up to the special requirements
of the war, and that therefore these transfers would have to
continue.”

The only net result of the protest was that “from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.”

The witness, Dr. Lammers, former Chief of the Reich Chancellery, whose hostility toward the prosecution and evasiveness were obvious, conceded that the practice was continued under Schlegelberger, though Lammers stated that Schlegelberger never agreed to it.

By reference to case histories we will illustrate three different methods by which Hitler, through the Ministry of Justice, imposed his will in disregard of judicial proceedings. One, Schlitt, had been sentenced to a prison term, as a result of which Schlegelberger received a telephone call from Hitler protesting the sentence. In response the defendant Schlegelberger on 24 March 1942 wrote in part as follows (_NG-152, Pros. Ex. 63_):

“I entirely agree with your demand, my Fuehrer, for very severe
punishment for crime, and I assure you that the judges honestly
wish to comply with your demand. Constant instructions in order
to strengthen them in this intention and the increase of threats
of legal punishment have resulted in a considerable decrease of
the number of sentences to which objections have been made from
this point of view, out of a total annual number of more than
300,000.

“I shall continue to try to reduce this number still more, and
if necessary, I shall not shrink from personal measures, as
before.

“In the criminal case against the building technician, Ewald
Schlitt, from Wilhelmshaven, I have applied through the public
prosecutor for an extraordinary plea for nullification against
the sentence, at the special senate of the Reich Court. I will
inform you of the verdict of the special senate immediately it
has been given.”

On 6 May 1942, Schlegelberger informed Hitler (_NG-102, Pros. Ex. 75_) that the 10-year sentence against Schlitt was “quashed within 10 days;” and that “Schlitt was sentenced to death and executed at once.”

In the case against Anton Scharff, the sentence of 10 years’ penal servitude had been imposed. Thereupon, on 25 May 1941, Bormann wrote to Dr. Lammers (_NG-611, Pros. Ex. 64_): “The Fuehrer believes this sentence entirely incomprehensible * * *. The Fuehrer requests that you inform State Secretary Schlegelberger again of his point of view.”

On 28 June 1941, defendant Schlegelberger wrote Dr. Lammers (_NG-611, Pros. Ex. 64_): “I am very obliged to the Fuehrer for informing me, on my request, of his conception of atonements of black-out crimes in reference to the sentence of the Munich Special Court against Anton Scharff.

“I shall reinstruct the presidents of the courts of appeal and
the chief public prosecutors of this conception of the Fuehrer
as soon as possible.”

As a final illustration of a general practice, we refer to the case of the Jew Luftgas, who had been sentenced to 2½ years imprisonment for hoarding eggs. On 25 October 1941, Lammers notified Schlegelberger: “The Fuehrer wishes that Luftgas be sentenced to death.” On 29 October 1941, Schlegelberger wrote Lammers: “* * * I have handed over to the Gestapo for the purpose of execution the Jew Markus Luftgas who had been sentenced to 2½ years of imprisonment * * *”.

Although Hitler’s personal intervention in criminal cases was a matter of common occurrence, his chief control over the judiciary was exercised by the delegation of his power to the Reich Minister of Justice, who on 20 August 1942 was expressly authorized “to deviate from any existing law.”

Among those of the Ministry of Justice who joined in the constant pressure upon the judges in favor of more severe or more discriminatory administration of justice, we find Thierack, Schlegelberger, Klemm, Rothenberger, and Joel. Neither the threat of removal nor the sporadic control of criminal justice in individual cases was sufficient to satisfy the requirements of the Ministry of Justice. As stated by the defendant Rothaug, “only during 1942, after Thierack took over the Ministry, the ‘guidance’ of justice was begun. * * * There was an attempt to guide the administration of justice uniformly from above.”

In September 1942 Thierack commenced the systematic distribution to the German judges of Richterbriefe. The first letter to the judges under date of 1 October 1942 called their attention to the fact that Hitler was the supreme judge and that “leadership and judgeship have related characters.” We quote (_NG-298, Pros. Ex. 81_):

“A corps of judges like this will not slavishly use the crutches
of law. It will not anxiously search for support by the law,
but, with a satisfaction in its responsibility, it will find
within the limits of the law the decision which is the most
satisfactory for the life of the community.”

In the Judges’ Letters Thierack discussed particular decisions which had been made in the various courts and which failed to conform to National Socialist ideology. As an illustration of the type of guidance which was furnished by the Ministry of Justice to the German judiciary, we cite a few instances from the Richterbriefe.

A letter to the judges of 1 October 1942 discusses a case decided in a district court on 24 November 1941. A special coffee ration had been distributed to the population of a certain town. A number of Jews applied for the coffee ration, but did not receive it, being “excluded from the distribution _per se_”. The food authorities imposed fines upon the Jews for making the unsuccessful application. In 500 cases the Jews appealed to the court and the judge informed the food authorities that the imposition of a fine could not be upheld for legal reasons, one of which was the statute of limitations. In deciding favorably to the Jews, the court wrote a lengthy opinion stating that the interpretation on the part of the food authorities was absolutely incompatible with the established facts. We quote, without comment, the discussion of the Reich Minister of Justice concerning the manner in which the case was decided (_NG-298, Pros. Ex. 81_):

“The ruling of the district court, in form and content matter,
borders on embarrassing a German administrative authority to
the advantage of Jewry. The judge should have asked himself
the question: What is the reaction of the Jew to this 20-page
long ruling, which certifies that he and the 500 other Jews
are right and that he won over a German authority, and does
not devote one word to the reaction of our own people to this
insolent and arrogant conduct of the Jews. Even if the judge was
convinced that the food office had arrived at a wrong judgment
of the legal position, and if he could not make up his mind
to wait with his decision until the question, if necessary,
was clarified by the higher authorities, he should have chosen
a form for his ruling which under any circumstances avoided
harming the prestige of the food office and thus putting the Jew
expressly in the right toward it.”

One of the Richterbriefe also discusses the case of a Jew who, after the “Aryanization of his firm,” attempted to get funds transferred to Holland without a permit. He also attempted to conceal some of his assets. Concerning this case the judges of Germany received the following “guidance” (_NG-298, Pros. Ex. 81_):

“The court applies the same criteria for the award of punishment
as it would if it were dealing with a German fellow citizen as
defendant. This cannot be sanctioned. The Jew is the enemy of
the German people, who has plotted, stirred up, and prolonged
this war. In doing so, he has brought unspeakable misery upon
our people.

“Not only is he of a different race, but he is also of inferior
race. Justice, which must not measure different matters by the
same standard, demands that just this racial aspect must be
considered in the award of punishment.”

Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the minister that the independence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions. If the letters [the Judges’ Letters] had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be “carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges’ letters are concerned.”

In a letter of 17 November 1942 Thierack instructs the judges that “in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the Judges’ Letters.”

Not being content with regimenting the judges and chief prosecutors and making them subservient to the National Socialist administration of justice, Dr. Thierack next took up the regimentation of the lawyers. On 11 March 1943 he wrote to the various judges and prosecutors announcing the proposed distribution of confidential lawyers’ letters. An examination of those letters convinces the Tribunal that the actual, though undeclared purpose, was to suggest to defense counsel that they avoid any criticism of National Socialist justice and refrain from too much ardor in the defense of persons charged with political crimes.

Not only did Thierack exert direct influence upon the judges, but he employed as his representative the most sinister, brutal, and bloody judge in the entire German judicial system. In a letter to Freisler, president of the People’s Court, Thierack said that the judgment of the People’s Court must be “in harmony with the leadership of the State”. He urges Freisler to have every charge submitted to him and to recognize the cases in which it was necessary “in confidential and convincing discussion with the judge competent for the verdict to emphasize what is necessary from the point of view of the State.” He continues:

“As a general rule, the judge of the People’s Court must
get used to regarding the ideas and intentions of the State
leadership as the primary factor and the individual fate which
depends on him as only a secondary factor. * * *”

He continues:

“I will try to illustrate this with individual cases.

“1. If a Jew--and a leading Jew at that--is charged with high
treason--even if he is only an accomplice therein, he has behind
him the hate and the will of Jewry to exterminate the German
people. As a rule this will therefore be _high treason_ and
must be punished by the death penalty.”

He concludes with the following admonition to Freisler, which appears to have been wholly unnecessary:

“In case you should ever be in doubt as to which line to follow
or which political necessities to take into consideration,
please address yourself to me in all confidence.”

It will be recalled that on 26 April 1942 Hitler stated that he would remove from office “those judges who evidently do not understand the demand of the hour.” The effect of this pronouncement upon such judges as still retained ideals of judicial independence can scarcely be overestimated. The defendant Rothenberger stated it was “absolutely crushing.”

In a private letter to his brother, the defendant Oeschey expressed his view of the situation created by Hitler’s interference in the following words:

“After the well known Fuehrer speech things developed in a
frightful manner. I was never a supporter of the stubborn
doctrine of the independence of the judge which granted the
judge within the frame of the law the position of a public
servant, only subordinated to his conscience but otherwise
‘neutral’, that is, politically completely independent. * *
* Now it is an absurdity to tell the judge in an individual
case which is subject to his decision how he has to decide.
Such a system would make the judge superfluous; such things
have now come to pass. Naturally it was not done in an open
manner; but even the most camouflaged form could not hide the
fact that a directive was to be given. Thereby the office of
judge is naturally abolished and the proceedings in a trial
become a farce. I will not discuss who bears the guilt of such a
development.”

The threat alone of the removal was sufficient to impair the independence of the judges, but the evidence discloses that measures were actually carried out for the removal or transfer of judges who proved unsatisfactory from the Party standpoint. On 29 March 1941 Schlegelberger received a letter from the chief of the Reich Chancellery protesting against the sentence which had been imposed against the Polish farmhand Wojcieck. The court at Lueneburg had recognized some extenuating circumstances in the case. Schlegelberger was advised as follows:

“The Fuehrer urges you immediately to take the steps necessary
to preclude repetition in other courts of the view of the
Lueneburg court.”

On 1 April 1941 Schlegelberger wrote to the Chief of the Reich Chancellery informing him that “by means of a circular with the order for immediate transmittal to all judges and public prosecutors, I brought the mistake in the viewpoint as it is shown in this passage of the court’s statement to the knowledge of the penal justice without delay. I consider it impossible that such an incident will occur again.”

Schlegelberger ordered the responsible president of the appellate court and the judges concerned in the case to report to him on the next day, and on the third day of April 1941 he advised as follows:

“* * * I beg to inform you that the presiding judge of the
criminal division which passed the sentence in the case of the
Polish farmhand Wolay Wojciesk, is no longer chairman, and the
two associate judges have been replaced by other associate
judges.”

There is substantial evidence to the effect that the witness Ostermeier, who was a judge on the Special Court in Nuernberg, was removed from his office because of his lenient attitude in criminal cases.

In a letter addressed to the Chief of the Reich Chancellery and to the head of the Party Chancellery on 20 October 1942, Thierack discussed the necessity of the removal or the transfer of officials in the Ministry of Justice who are “not suited for the new tasks” and adds that it may become necessary “in some particular cases to transfer or retire such judges as cannot be kept in their present positions.” He therefore asked approval “so that in urgent cases judges and officials of the Reich administration of justice may be transferred by me to other positions * * * or may be retired by me.”

On 3 March 1942 Bormann gave his approval in general terms to Thierack’s proposal. A like approval was given by Dr. Lammers on 13 November 1942.

In connection with the discussion of removals, we find a list of proposed staff reductions in which seventy-five judges and prosecutors are named. Among the reasons stated for reduction we find the following: persons of Jewish ancestry, 4; persons having a Jewish wife, 4; lack of cooperation with Party, 4; religious grounds, 1; not a Party member, 20; pro-Jewish or pro-Pole, 4.

The conception of the national leadership of the Reich concerning the function of the law under the influence of the Party ideology must also be briefly noted.

On 22 July 1942 Reich Minister Dr. Goebbels addressed the members of the People’s Court. The speech was reported in part as follows (_NG-417, Pros. Ex. 23_):

“While making his decisions the judge had to proceed less from
the law than from the basic idea that the offender was to be
eliminated from the community. During a war it was not so much a
matter of whether a judgment was just or unjust but only whether
the decision was expedient. The State must ward off its internal
foes in the most efficient way and wipe them out entirely. The
idea that the judge must be convinced of the defendant’s guilt
must be discarded completely. The purpose of the administration
of the law was not in the first place retaliation or even
improvement but maintenance of the State. One must not proceed
from the law but from the resolution that the man must be wiped
out.”

On 14 September 1935 Hans Frank, Reichsleiter of the Nazi Party and president of the Academy of German law, said (_NG-777, Pros. Ex. 19_):

“By means of the law of 18 June 1935, the liberalist foundation
of the old penal code ‘no penalty without a law’ was definitely
abandoned and replaced by the postulate, ‘no crime without
punishment’, which corresponds to our conception of the law.

“In the future, criminal behavior, even if it does not fall
under formal penal precepts, will receive the deserved
punishment if such behavior is considered punishable according
to the healthy feelings of the people.”

This is the Hans Frank (since hanged) who at his trial testified concerning the racial persecution in which he had participated. He said:

“A thousand years will pass and this guilt of Germany will still
not be erased.”

On 10 March 1936 the defendant Schlegelberger said (_NG-538, Pros. Ex. 21_):

“In the sphere of criminal law the road to a creation of justice
in harmony with the moral concepts of the new Reich has been
opened up by a new wording of section 2 of the criminal code,
whereby a person is also to be punished even if his deed is not
punishable according to the law, but if he deserves punishment
in accordance with the basic concepts of criminal law and the
sound instincts of the people. This new definition became
necessary because of the rigidity of the norm in force hitherto.”

Reich Minister Thierack on 5 January 1943 said (_NG-275, Pros Ex. 25_):

“The inner law of the guardian of justice is national socialism;
the written law is only to be an aid to the interpretation of
National Socialist ideas.”

In the words of the defendant Rothenberger the project was “to ‘organize’ Europe anew and to create a new world philosophy.” Again, he said (_NG-075, Pros. Ex. 27_):

“* * * this reaction of ‘antagonism toward law’ is justified
because the _present moment_ absolutely demands a rigid
restriction of the power of law. He who is striding gigantically
toward a new world order cannot move in the limitation of an
orderly administration of justice.”

Strangely enough we find the Nazi judicial system condemned by a judge who in practice was its most fanatical adherent. The defendant Rothaug testified as follows:

“As of every other civil servant, of the judge there was
demanded not only obedience but also loyalty and an inner
connection with the doctrine of the State. The change-over
of the judiciary to that different intellectual level was
attempted _via_ the political factor of the administration
of justice, and that was when things came to grief; and it was
then that the notorious ‘back door’ which I have mentioned, took
effect.”

After discussing the extraordinary legal remedies by which final judgments in criminal cases were set aside by means of the nullification plea and the extraordinary objection, Rothaug said:

“As far as that went no objections could be made. What was more
dangerous was the influence by means of Judges’ Letters and the
guidance of jurisdiction.”

To the domination by Hitler and the political “guidance” of the Ministry of Justice must be added the direct pressure of Party functionaries and police officials. The record is replete with testimony of specific instances of interference in the administration of justice by officials of Party and police. But for the demonstration of the viciousness and universality of the practice it is only necessary to cite the words of the defendants themselves.

The defendant Rothenberger describes the manner in which the “administration of justice was burdened by the Party and by the SS”, and referred in his testimony to the “thousand little Hitlers who every day jeopardized the independence of the individual judge.”

The defendant Schlegelberger spoke with more caution:

“If in a trial, testimonials of political conduct were submitted
for the characterization of the accused, it has to be left to
the judge’s dexterity to avoid conflict with the department
which furnishes the testimonial of political conduct.”

The defendant Lautz testified concerning attempted interference with his duties by the SS. We have already quoted the opinion of the defendant Oeschey as expressed in a letter to his brother.

A reliable witness, Dr. Hanns Anschuetz, testified:

“After the issuance of the German Civil Service Code, strong
pressure was brought to bear upon all officials, including
judges, to join the NSDAP, or not to reject requests to join;
otherwise there existed the danger that they might be retired
or dismissed. But once a Party member, a judge was under Party
discipline and Party jurisdiction, which dominated his entire
life as official and as private person.”

The witness Wilhelm Oehlicker, formerly a justice official and at present judge in Hamburg, testified, that, “the longer the war proceeded, in my opinion the more and more they (Party officials) tried to interfere with the courts and influence the courts directly.”

The final degradation of the judiciary is disclosed in a secret communication by Ministerial Director Letz of the Reich Ministry of Justice to Dr. Vollmer, also a ministerial director in the department. Not only were the judges “guided” and at times coerced; they were spied upon. We quote:

“Moreover, I know from documents, which the minister produces
from time to time out of his private files, that the Security
Service takes up special problems of the administration of
justice with thoroughness and makes summarized situation reports
about them. As far as I am informed, a member of the Security
Service is attached to each judicial authority. This member is
obliged to give information under the seal of secrecy. This
procedure is secret and the person who gives the information is
not named. In this way we get, so to say, anonymous reports.
Reasons given for this procedure are of State political
interest. As long as the direct interests of the State security
are concerned, nothing can be said against it, especially in
wartime.”

In view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity. The doctrine that judges are not personally liable for their judicial actions is based on the concept of an independent judiciary administering impartial justice. Furthermore, it has never prevented the prosecution of a judge for malfeasance in office. If the evidence cited _supra_ does not demonstrate the utter destruction of judicial independence and impartiality, then we “never writ nor no man ever proved.” The function of the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner.

In operation the Nazi system forced the judges into one of two categories. In the first we find the judges who still retained ideals of judicial independence and who administered justice with a measure of impartiality and moderation. Judgments which they rendered were set aside by the employment of the nullity plea and the extraordinary objection. The defendants they sentenced were frequently transferred to the Gestapo on completion of prison terms and were then shot or sent to concentration camps. The judges themselves were threatened and criticized and sometimes removed from office. In the other category were the judges who with fanatical zeal enforced the will of the Party with such severity that they experienced no difficulties and little interference from party officials. To this group the defendants Rothaug and Oeschey belonged.

We turn to a consideration and classification of the evidence. The prosecution has introduced captured documents in great number which establish the Draconic character of the Nazi criminal laws and prove that the death penalty was imposed by courts in thousands of cases. Cases in which the extreme penalty was imposed may in large measure be classified in the following groups:

1. Cases against habitual criminals.

2. Cases of looting in the devastated areas of Germany; committed after air raids and under cover of black-out.

3. Crimes against the war economy--rationing, hoarding, and the like.

4. Crimes amounting to an undermining of the defensive strength of the nation; defeatist remarks, criticisms of Hitler, and the like.

5. Crimes of treason and high treason.

6. Crimes of various types committed by Poles, Jews, and other foreigners.

7. Crimes committed under the Nacht und Nebel program, and similar procedures.

Consideration will next be given to the first four groups as above set forth. The Tribunal is keenly aware of the danger of incorporating in the judgment as law its own moral convictions or even those of the Anglo-American legal world. This we will not do. We may and do condemn the Draconic laws and express abhorrence at the limitations imposed by the Nazi regime upon freedom of speech and action, but the question still remains unanswered: “Do those Draconic laws or the decisions rendered under them constitute war crimes or crimes against humanity?”

Concerning the punishment of habitual criminals, we think the answer is clear. In many civilized states statutory provisions require the courts to impose sentences of life imprisonment upon proof of conviction of three or more felonies. We are unable to say in one breath that life imprisonment for habitual criminals is a salutary and reasonable punishment in America in peace times, but that the imposition of the death penalty was a crime against humanity in Germany when the nation was in the throes of war. The same considerations apply largely in the case of looting. Every nation recognizes the absolute necessity of more stringent enforcement of the criminal law in times of great emergency. Anyone who has seen the utter devastation of the great cities of Germany must realize that the safety of the civilian population demanded that the werewolves who roamed the streets of the burning cities, robbing the dead, and plundering the ruined homes should be severely punished. The same considerations apply, though in a lesser degree, to prosecutions to hoarders and violators of war economy decrees.

Questions of far greater difficulty are involved when we consider the cases involving punishment for undermining military efficiency. The limitations on freedom of speech which were imposed in the enforcement of these laws are revolting to our sense of justice. A court would have no hesitation in condemning them under any free constitution, including that of the Weimar republic, if the limitations were applied in time of peace; but even under the protection of the Constitution of the United States a citizen is not wholly free to attack the Government or to interfere with its military aims in time of war. In the face of a real and present danger, freedom of speech may be somewhat restricted even in America. Can we then say that in the throes of total war and in the presence of impending disaster those officials who enforced these savage laws in a last desperate effort to stave off defeat were guilty of crimes against humanity?

It is persuasively urged that the fact that Germany was waging a criminal war of aggression colors all of these acts with the dye of criminality. To those who planned the war of aggression and who were charged with and were guilty of the crime against the peace as defined in the IMT Charter, this argument is conclusive, but these defendants are not charged with crimes against the peace nor has it been proven here that they knew that the war which they were supporting on the home front was based upon a criminal conspiracy or was _per se_ a violation of international law. The lying propaganda of Hitler and Goebbels concealed even from many public officials the criminal plans of the inner circle of aggressors. If we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality. In the opinion of the Tribunal the territory occupied and annexed by Germany after September 1939 never became a part of Germany, but for that conclusion we need not rest upon the doctrine that the invasion was a crime against the peace. Such purported annexations in the course of hostilities while armies are in the field are provisional only, and dependent upon the final successful outcome of the war. If the war succeeds, no one questions the validity of the annexation. If it fails, the attempt to annex becomes abortive. In view of our clear duty to move with caution in the recently charted field of international affairs, we conclude that the domestic laws and judgments in Germany which limited free speech in the emergency of war cannot be condemned as crimes against humanity merely by invoking the doctrine of aggressive war. All of the laws to which we have referred could be and were applied in a discriminatory manner and in the case of many, the Ministry of Justice and the courts enforced them by arbitrary and brutal means, shocking to the conscience of mankind and punishable here. We merely hold that under the particular facts of this case we cannot convict any defendant merely because of the fact, without more, that laws of the first four types were passed or enforced.

A different situation is presented when we consider the cases which fall within types 5, 6, and 7.

_TREASON AND HIGH TREASON_

We have expressed the opinion that the purported annexation of territory in the East which occurred in the course of war and while opposing armies were still in the field was invalid and that in point of law such territory never became a part of the Reich, but merely remained in German military control under belligerent occupancy. On 27 October 1939 the Polish Ambassador at Washington informed the Secretary of State that the German Reich had decreed the annexation of part of the territory of the Polish republic. In acknowledging the receipt of this information, Secretary Hull stated that he had “taken note of the Polish government’s declaration that it considers this act as illegal and therefore null and void.”[646] The foregoing fact alone demonstrates that the Polish Government was still in existence and was recognized by the Government of the United States. Sir Arnold D. McNair expressed a principle which we believe to be incontestable in the following words:

“A purported incorporation of occupied territory by a military
occupant into his own kingdom during the war is illegal and
ought not to receive any recognition. * * *”[647]

We recognize that in territory under belligerent occupation the military authorities of the occupant may, under the laws and customs of war, punish local residents who engage in fifth column activities hostile to the occupant. It must be conceded that the right to punish such activities depends upon the specific acts charged and not upon the name by which these acts are described. It must also be conceded that Poles who voluntarily entered the Alt [old] Reich could, under the laws of war, be punished for the violation of nondiscriminatory German penal statutes.

These considerations, however, do not justify the action of the Reich prosecutors who in numerous cases charged Poles with high treason under the following circumstances: Poles were charged with attempting to escape from the Reich. The indictments in these cases alleged that the defendants were guilty of attempting, by violence or threat of violence, to detach from the Reich territory belonging to the Reich, contrary to the express provisions of section 80 of the law of 24 April 1934. The territory which defendants were charged with attempting to detach from the Reich consisted of portions of Poland, which the Reich had illegally attempted to annex. If the theory of the German prosecutors in these cases were carried to its logical conclusion it would mean that every Polish soldier from the occupied territories fighting for the restoration to Poland of territory belonging to it would be guilty of high treason against the Reich and on capture, could be shot. The theory of the Reich prosecutors carries with it its own refutation.

Prosecution in these cases represented an unwarrantable extension of the concept of high treason, which constituted in our opinion a war crime and a crime against humanity. The wrong done in such prosecutions was not merely in misnaming the offense of attempting to escape from the Reich; the wrong was in falsely naming the act high treason and thereby invoking the death penalty for a minor offense.

_MEMBERSHIP IN CRIMINAL ORGANIZATIONS_

C. C. Law 10, article II, paragraph 1(_d_), provides:

“1. Each of the following acts is recognized as a crime:

* * * * * * *

“(_d_) Membership in categories of a criminal group or
organization declared criminal by the International Military
Tribunal.”

Article 9 of the IMT Charter provides:

“At the trial of any individual member of any group or
organization the Tribunal may declare (in connection with any
act of which the individual may be convicted) that the group or
organization of which the individual was a member was a criminal
organization.”

Article 10 of the IMT Charter is as follows:

“In cases where a group or organization is declared criminal
by the Tribunal, the competent national authority of any
Signatory shall have the right to bring individuals to trial
for membership therein before national, military or occupation
courts. In any such case the criminal nature of the group or
organization is considered proved and shall not be questioned.”

Concerning the effect of the last quoted section, we quote from the opinion of the IMT in the case of United States, et al., _vs._ Goering, et al., as follows:

“Article 10 of the Charter makes clear that the declaration of
criminality against an accused organization is final and cannot
be challenged in any subsequent criminal proceeding against a
member of the organization.”[648]

We quote further from the opinion in that case:

“In effect, therefore, a member of an organization which the
Tribunal has declared to be criminal may be subsequently
convicted of the crime of membership and be punished for that
crime by death. This is not to assume that international or
military courts which will try these individuals will not
exercise appropriate standards of justice. This is a far
reaching and novel procedure. Its application, unless properly
safeguarded, may produce great injustice.”

* * * * *

“A criminal organization is analogous to a criminal conspiracy
in that the essence of both is cooperation for criminal
purposes. There must be a group bound together and organized for
a common purpose. The group must be formed or used in connection
with the commission of crimes denounced by the Charter. Since
the declaration with respect to the organizations and groups
will, as has been pointed out, fix the criminality of its
members, that definition should exclude persons who had no
knowledge of the criminal purposes or acts of the organization
and those who were drafted by the state for membership, unless
they were personally implicated in the commission of acts
declared criminal by article 6 of the Charter as members of the
organization. Membership alone is not enough to come within the
scope of these declarations.”[649]

The Tribunal in that case recommended uniformity of treatment so far as practicable in the administration of this law, recognizing, however, that discretion in sentencing is vested in the courts. Certain groups of the Leadership Corps, the SS, the Gestapo, the SD, were declared to be criminal organizations by the judgment of the first International Military Tribunal. The test to be applied in determining the guilt of individual members of a criminal organization is repeatedly stated in the opinion of the First International Military Tribunal. The test is as follows: Those members of an organization which has been declared criminal “who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes” are declared punishable.

Certain categories of the Leadership Corps are defined in the First International Military Tribunal judgment as criminal organizations. We quote:

“The Gauleiter, the Kreisleiter, and the Ortsgruppenleiter
participated, to one degree or another, in these criminal
programs. The Reichsleitung as the staff organization of the
Party is also responsible for these criminal programs as well as
the heads of the various staff organizations of the Gauleiter
and Kreisleiter. The decision of the Tribunal on these staff
organizations includes only the Amtsleiter who were heads of
offices on the staffs of the Reichsleitung, Gauleitung, and
Kreisleitung. With respect to other staff officers and Party
organizations attached to the Leadership Corps other than
the Amtsleiter referred to above, the Tribunal will follow
the suggestion of the prosecution in excluding them from the
declaration.”[650]

In like manner certain categories of the SD were defined as criminal organizations. Again, we quote:

“In dealing with the SD the Tribunal includes Aemter III, VI,
and VII of the RSHA, and all other members of the SD, including
all local representatives and agents, honorary or otherwise,
whether they were technically members of the SS or not, but not
including honorary informers who were not members of the SS and
members of the Abwehr who were transferred to the SD.”[651]

In like manner certain categories of the SS were declared to constitute criminal organizations:

“In dealing with the SS the Tribunal includes all persons who
had been officially accepted as members of the SS including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf-Verbaende, and the members of any of the
different police forces who were members of the SS. The Tribunal
does not include the so-called SS riding units.”[652]

C. C. Law 10 provides that we are bound by the findings as to the criminal nature of these groups or organizations. However, it should be added that the criminality of these groups and organizations is also established by the evidence which has been received in the pending case. Certain of the defendants are charged in the indictment with membership in the following groups or organizations which have been declared and are now found to be criminal, to wit: The Leadership Corps, the SD, and the SS. In passing upon these charges against the respective defendants, the Tribunal will apply the tests of criminality set forth above.

_CRIMES UNDER THE NIGHT AND FOG DECREE_

[_NACHT UND NEBEL ERLASS_]

Paragraph 13 of count two of the indictment charges in substance that the Ministry of Justice participated with the OKW and the Gestapo in the execution of the Hitler decree of Night and Fog whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts of the Ministry of Justice within the Reich; that the victim’s whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victim’s relatives and associates and barring recourse to evidence, witnesses, or counsel for defense. If the accused was acquitted, or if convicted, after serving his sentence, he was handed over to the Gestapo for “protective custody” for the duration of the war. These proceedings resulted in the torture, ill treatment, and murder of thousands of persons. These crimes and offenses are alleged to be war crimes in violation of certain established international rules and customs of warfare and as recognized in C. C. Law 10.

Paragraph 25 of count three of the indictment incorporates by reference paragraph 13 of count two of the indictment and alleges that the same acts, offenses, and crimes are crimes against humanity as defined by C. C. Law 10. The same facts were introduced to prove both the war crimes and crimes against humanity and the evidence will be so considered by us.

Paragraph 13 of count two of the indictment which particularly describes the Hitler NN plan or scheme, charges the defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger with “special responsibility for and participation in these crimes”, which are alleged to be war crimes.

Paragraph 8 of count two of the indictment charges all of the defendants with having committed the war crimes set forth in paragraphs 9 to 18 inclusive of count two, 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, including but not limited to murder, illegal imprisonment, brutalities, atrocities, transportation of civilians, and other inhumane acts which were set out in paragraphs 9 to 18 inclusive of the indictment as war crimes against the civilian population in occupied territories.

Paragraph 20 of count three of the indictment charges all of the defendants with having committed the same acts as contained in paragraph 8 of count two as being crimes against humanity. Paragraphs 21 to 30 inclusive of count three refer to and adopt the facts alleged in paragraphs 9 to 18 inclusive of count two, and thus all defendants are charged with having committed crimes against humanity upon the same allegations of facts as are contained in paragraphs 9 to 18 inclusive of count two.

In the foregoing manner all of the defendants are charged with having participated in the execution or carrying out of the Hitler NN decree and procedure either as war crimes or as crimes against humanity, and all defendants are charged with having committed numerous other acts which constitute war crimes and crimes against humanity against the civilian population of occupied countries during the war period between 1 September 1939 and April 1945.

The Night and Fog decree arose as the plan or scheme of Hitler to combat so-called resistance movements in occupied territories. Its enforcement brought about a systematic rule of violence, brutality, outrage, and terror against the civilian populations of territories overrun and occupied by the Nazi armed forces. The IMT treated the crimes committed under the Night and Fog decree as war crimes and found as follows:

“The territories occupied by Germany were administered in
violation of the laws of war. The evidence is quite overwhelming
of a systematic rule of violence, brutality, and terror. On 7
December 1941 Hitler issued the directive since known as the
‘Nacht und Nebel Erlass’ (Night and Fog decree), under which
persons who committed offenses against the Reich or the German
forces in occupied territories, except where the death sentence
was certain, were to be taken secretly to Germany and handed
over to the SIPO and SD for trial and punishment in Germany.
This decree was signed by the defendant Keitel. After these
civilians arrived in Germany, no word of them was permitted to
reach the country from which they came, or their relatives; even
in cases when they died awaiting trial the families were not
informed, the purpose being to create anxiety in the minds of
the families of the arrested person. Hitler’s purpose in issuing
this decree was stated by the defendant Keitel in a covering
letter, dated 12 December 1941, to be as follows:

“‘Efficient and enduring intimidation can only be achieved
either by capital punishment or by measures by which the
relatives of the criminal and the population do not know the
fate of the criminal. This aim is achieved when the criminal is
transferred to Germany.’

* * * * * * *

“The brutal suppression of all opposition to the German
occupation was not confined to severe measures against suspected
members of resistance movements themselves, but was also
extended to their families.”[653]

The Tribunal also found that:

“One of the most notorious means of terrorizing the people
in occupied territories was the use of the concentration
camps.”[654]

Reference is here made to the detailed description by the IMT judgment of the manner of operation of concentration camps and to the appalling cruelties and horrors found to have been committed therein. Such concentration camps were used extensively for the NN prisoners in the execution of the Night and Fog decree as will be later shown.

The IMT further found that the manner of arrest and imprisonment of Night and Fog prisoners before they were transferred to Germany was illegal, as follows:

“The local units of the Security Police and SD continued their
work in the occupied territories after they had ceased to be
an area of operations. The Security Police and SD engaged in
widespread arrests of the civilian population of these occupied
countries, imprisoned many of them under inhumane conditions,
and subjected them to brutal third degree methods, and sent many
of them to concentration camps. Local units of the Security
Police and SD were also involved in the shooting of hostages,
the imprisonment of relatives, the execution of persons charged
as terrorists and saboteurs without a trial, and the enforcement
of the Nacht und Nebel decree under which persons charged with
a type of offenses believed to endanger the security of the
occupying forces were either executed within a week or secretly
removed to Germany without being permitted to communicate with
their family and friends.”[655]

The foregoing quotations from the IMT judgment will suffice to show the illegality and cruelty of the entire NN plan or scheme. The transfer of NN prisoners to Germany and the enforcement of the plan or scheme did not cleanse it of its iniquity or render it legal in any respect.

The evidence herein adduced sustains the foregoing findings and conclusions of the IMT. In fact the same documents, or copies thereof, referred to and quoted from in the IMT judgment were introduced in evidence in this case. In addition, a large number of captured documents and oral testimony were introduced showing the origin and purpose of the Night and Fog plan or scheme, and showing without dispute that certain of the defendants with full knowledge of the illegality of the plan or scheme under international law of war and with full knowledge of the intended terrorism, cruelty, and other inhumane principles of the plan or scheme became either a principal, or aided and abetted, or took a consenting part in, or were connected with the execution of the illegal, cruel, and inhumane plan or scheme.

Hitler’s decree was signed by Keitel on 7 December 1941 and was enclosed in Keitel’s covering letter of 12 December 1941, which was referred to and quoted from in the IMT judgment. The Hitler decree states that since the opening of the Russian campaign Communist and anti-German elements have increased their assaults against the Reich and the occupation power in the occupied territories and that the most severe measures should be directed against these malefactors “to intimidate them”. The decree further declares in substance (_1733-PS, Pros. Ex. 303_):

“1. Criminal acts committed by non-German civilians directed
against the Reich or occupation forces endangering their safety
or striking power should require the application of the death
penalty in principle.

“2. Such criminal acts will be tried in occupied territories
only when it appears probable that the death sentence will be
passed and carried out without delay. Otherwise the offenders
will be carried to Germany.

“3. Offenders taken to Germany are subject to court martial
procedures there only in case that particular military concern
should require it. German and foreign agencies will declare upon
inquiries of such offenders that the state of the proceedings
would not allow further information.

“4. Commanders in chief in occupied territories and the
justiciaries within their jurisdiction will be held personally
responsible for the execution of this decree.

“5. The chief of the OKW will decide in which of the occupied
territories this decree will be applied. He is authorized to
furnish explanations and further information and to issue
directives for its execution.”

In addition to the Hitler decree there were also enclosed in Keitel’s letter of 12 December 1941 the “First Decree” of directives concerning the prosecution of crimes against the Reich or occupation power in occupied territories under the Hitler decree. This first Decree was signed by Keitel and was marked “Secret.” It contains seven sections relating to the crimes intended to be prosecuted under the Hitler decree and the manner and place of trials and execution of sentences.