Chapter LXXV: Section VII: of the secret decree declares that the directives will (2)

Also among the list of 32 crimes contained in the Conference Report of 1919 are “murder and massacre, and systematic terrorism”. C. C. Law 10 makes deportation of civilian population “for any purpose” a crime recognized as coming within the jurisdiction of the law. The admitted purpose of the Night and Fog decree was to provide an “efficient and enduring intimidation” of the population of occupied territories. The IMT held that the Hitler NN decree was “a systematic rule of violence, brutality, and terror”, and was therefore in violation of the laws of war as a terroristic measure.

The evidence shows that many of the Night and Fog prisoners who were deported to Germany were not charged with serious offenses and were given comparatively light sentences or acquitted. This shows that they were not a menace to the occupying forces and were not dangerous in the eyes of the German justices who tried them. But they were kept secretly and not permitted to communicate in any manner with their friends and relatives. This is inhumane treatment. It was meted out not only to the prisoners themselves but to their friends and relatives back home who were in constant distress of mind as to their whereabouts and fate. The families were deprived of the support of the husband, thus causing suffering and hunger. The purpose of the spiriting away of persons under the Night and Fog decree was to deliberately create constant fear and anxiety among the families, friends, and relatives as to the fate of the deportees. Thus, cruel punishment was meted out to the families and friends without any charge or claim that they actually did anything in violation of any occupation rule of the army or of any crime against the Reich.

It is clear that mental cruelty may be inflicted as well as physical cruelty. Such was the express purpose of the NN decree, and thousands of innocent persons were so penalized by its enforcement.

The foregoing documents show without dispute that the NN victim was held incommunicado and the rest of the population only knew that a relative or citizen had disappeared in the night and fog; hence, the name of the decree. If relatives or friends inquired, they were given no information. If diplomats or lawyers inquired concerning the fate of an NN prisoner, they were told that the state of the record did not admit of any further inquiry or information. The population, relatives, or friends were not informed for what character of offense the victim had been arrested. Thus, they had no guide or standard by which to avoid committing the same offense as the unfortunate victims had committed which necessarily created in their minds terror and dread that a like fate awaited them.

Throughout the whole Night and Fog program ran this element of utter secrecy. This secrecy of the proceedings was a particularly obnoxious form of terroristic measure and was without parallel in the annals of history. It could have been promulgated only by the cruel Nazi regime which sought to control and terrorize the civilian population of the countries overrun by its aggressive war. There was no proof that the deportation of the civilian population from the occupied territories was necessary to protect the security of the occupant forces. The NN plan or scheme fit perfectly into the larger plan or scheme of transportation of millions of persons from occupied territories to Germany.

C. C. Law 10 makes deportation of the civilian population for any purpose an offense. The international law of war has for a long period of time protected the civilian population of any territory or country occupied by an enemy war force. This law finds its source in the unwritten international law as established by the customs and usages of the civilized nations of the world. Under international law the inhabitants of an occupied area or territory are entitled to certain rights which must be respected by the invader occupant.

This law of military occupation has been in existence for a long period of time. It was officially interpreted and applied nearly a half century ago by the President of the United States of America during the war with Spain in 1898. By General Order No. 101, 18 July 1898 (U. S. Foreign Relations, p. 783), the President declared that the inhabitants of the occupied territory “are entitled to the security in their persons and property and in all their private rights and relations.” He further declared that it was the duty of the commander of the Army of Occupation “to protect them in their homes, in their employments, and in their personal and religious rights,” and that “the municipal laws of the conquered territory, such as affect private rights of persons and property and provide for punishment of crime, are continued in force” and are “to be administered by the ordinary tribunals, substantially as they were before the occupation.” The President referred to the fact that these humane standards of warfare had previously been established by the laws and customs of war, which were later codified by the Hague Conventions of 1899 and 1907, and which constituted the effort of the civilized participating nations to diminish the evils of war by the limitation of the power of the invading occupant over the people and by placing the inhabitants of the occupied area or territory “under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.”

A similar order was issued during the first war with Germany by the President of the United States of America when the American Expeditionary Forces entered the Rhineland in November 1918. (General Order No. 218, 28 November 1918.) At the conclusion of this occupancy, the German Government expressed its appreciation of the conduct of the American occupying forces.

But Germany soon forgot these humane standards of warfare, as is shown by the undisputed evidence. The general policy of the Nazi regime was to terrorize and in some instances to exterminate the civilian populations of occupied territories.

Pertinent here is the finding of the IMT that:

“In an order issued by the defendant Keitel on 23 July 1941, and
drafted by the defendant Jodl, it was stated that:

“‘In view of the vast size of the occupied areas in the East,
the forces available for establishing security in these areas
will be sufficient only if all resistance is punished, not
by legal prosecution of the guilty, but by the spreading of
such terror by the armed forces as is alone appropriate to
eradicate every inclination to resist among the population * *
*. Commanders must find the means of keeping order by applying
suitable Draconian measures’.”[657]

Both Keitel and Jodl were sentenced to death by the IMT and later executed. It was the same Keitel who had issued, over his own signature, the Hitler NN decree which provided that (_NG 669-PS, Pros. Ex. 305_):

“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.”

Beyond dispute the foregoing decrees were inspired by the same thought and purpose and represent the general policy of the Nazi regime in the prosecution of its aggressive war. This general policy was to terrorize, torture, and in some occupied areas to exterminate the civilian population. The undisputed evidence in this case shows that Germany violated during the recent war every principle of the law of military occupation. Not only under NN proceedings but in all occupations she immediately, upon occupation of invaded areas and territories, set aside the laws and courts of the occupied territories. She abolished the courts of the occupied lands and set up courts manned by members of the Nazi totalitarian regime and system. These laws of occupation were cruel and extreme beyond belief and were enforced by the Nazi courts in a cruel and ruthless manner against the inhabitants of the occupied territories, resulting in grave outrages against humanity, against human rights and morality and religion, and against international law, and against the law as declared by C. C. Law 10, by authority of which this Court exercises its jurisdiction in the instant case. The evidence adduced herein provides undeniable and positive proof of the ill-treatment of the subjugated people by the Nazi Ministry of Justice and prosecutors to such an extent that jurists as well as civilians of civilized nations who respect human rights and human personality and dignity can hardly believe that the Nazi judicial system could possibly have been so cruel and ruthless in their treatment of the population of occupied areas and territories.

The foregoing procedure under the NN decree was clearly in violation of the following provisions sanctioned by the Hague Regulations:

“_Article 5._--Prisoners of war * * * cannot be confined
except as an indispensable measure of safety and only while the
circumstances which necessitate the measure continue to exist.

“_Article 23(h)._--* * * It is expressly forbidden * * * to
declare abolished, suspended, or inadmissible in a court of law
the rights and actions [of the nationals] of the hostile party.

“_Article 43._--The authority of the legitimate power
having in fact passed into the hands of the occupant, the latter
shall take all the measures in his power to restore, and ensure,
as far as possible, public order and safety, while respecting,
unless absolutely prevented, the law in force in the country.

“_Article 46._--Family honor and rights, the lives of
persons and private property, as well as religious convictions
and practice, must be respected. Private property cannot be
confiscated.”

Both the international rules of war and C. C. Law 10 inhibit the torture of civilians by the occupying forces. Under the Night and Fog decree civilians were secretly transported to concentration camps and were imprisoned under the most inhumane conditions as was shown by the above statements from captured documents. They were starved and ill-treated while in concentration camps and prisons. Thus, the Night and Fog decree violated these express inhibitions of international law of war as well as the express provisions of C. C. Law 10.

Such imprisonment and ill-treatment was also in violation of the rule prescribed by the Conference of Paris of 1919 which prohibits the “internment of civilians under inhumane conditions”. The Night and Fog decree was in violation of the international law as recognized by the Paris Conference of 1919 in that the NN prisoners were deported to Germany and forced to labor in the munitions plants of the enemy power.

The foregoing documents establish beyond dispute that they were so employed in munitions plants with the sanction and approval of the Reich Ministry of Justice under the approval of the defendant von Ammon.

The extent of activity and the criminality of the defendants who participated in the execution and carrying out of the Night and Fog decree will be discussed under the summation of the evidence relating to each such defendant. Each defendant has pleaded in effect as a defense the act of State as well as superior orders in justification or mitigation of any crime he may have committed in the execution of the Night and Fog decree. The basis for individual liability for crimes committed and the law relating thereto was clearly and ably declared by the IMT judgment which reads as follows:

“It was submitted that international law is concerned with
the actions of sovereign states, and provides no punishment
for individuals; and further, that where the act in question
is an act of state, those who carry it out are not personally
responsible, but are protected by the doctrine of the
sovereignty of the State. In the opinion of the Tribunal, both
these submissions must be rejected. That international law
imposes duties and liabilities upon individuals as well as
upon States has long been recognized. In the recent case of
_Ex parte Quirin_ (1942 317 U. S. 1), before the Supreme
Court of the United States, persons were charged during the war
with landing in the United States for purposes of spying and
sabotage. The late Chief Justice Stone, speaking for the Court,
said:

“‘From the very beginning of its history this Court has applied
the law of war as including that part of the law of nations
which prescribes for the conduct of war, the status, rights, and
duties of enemy nations as well as enemy individuals.’

“He went on to give a list of cases tried by the Courts, where
individual offenders were charged with offenses against the
laws of nations, and particularly the laws of war. Many other
authorities could be cited, but enough has been said to show
that individuals can be punished for violations of international
law. Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law be
enforced.”[658]

_RACIAL PERSECUTION_

The record contains innumerable acts of persecution of individual Poles and Jews, but to consider these cases as isolated and unrelated instances of perversion of justice would be to overlook the very essence of the offense charged in the indictment. The defendants are not now charged with conspiracy as a separate and substantive offense, but it is alleged that they participated in carrying out a governmental plan and program for the persecution and extermination of Jews and Poles, a plan which transcended territorial boundaries as well as the bounds of human decency. Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws and in atrocities, illegal even under German law, in furtherance of the declared national purpose. Others, as judges, distorted and then applied the laws and decrees against Poles and Jews as such in disregard of every principle of judicial behavior. The overt acts of the several defendants must be seen and understood as deliberate contributions toward the effectuation of the policy of the Party and State. The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged. The material facts which must be proved in any case are (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law. The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principals or accessories to the crime.

We turn to the national pattern or plan for racial extermination.

Fundamentally, the program was one for the actual extermination of Jews and Poles, either by means of killing or by confinement in concentration camps, which merely made death slower and more painful. But lesser forms of racial persecution were universally practiced by governmental authority and constituted an integral part in the general policy of the Reich. We have already noted the decree by which Jews were excluded from the legal profession. Intermarriage between Jews and persons of German blood was prohibited. Sexual intercourse between Jews and German nationals was punished with extreme severity by the courts. By other decrees Jews were almost completely expelled from public service, from educational institutions, and from many business enterprises. Upon the death of a Jew his property was confiscated. Under the provisions for confiscation under the 11th amendment to the German Citizenship Law, _supra_, the decision as to confiscation of the property of living Jews was left to the chief of the Security Police and the SD. The law against Poles and Jews cited _supra_ (4 December 1941) was rigorously enforced. Poles and Jews convicted of specific crimes were subjected to different types of punishment from that imposed upon Germans who had committed the same crimes. Their rights as defendants in court were severely circumscribed. Courts were empowered to impose death sentences on Poles and Jews even where such punishment was not prescribed by law, if the evidence showed “particularly objectionable motives”. And, finally, the police were given _carte blanche_ to punish all “criminal” acts committed by Jews without any employment of the judicial process. From the great mass of evidence we can only cite a few illustrations of the character and operation of the program.

On 30 January 1939 in an address before the Reichstag, Hitler, who was at that very time perfecting his plot for aggressive war, said:

“If the international Jewish financiers within and without
Europe succeed in plunging the nations once more into a world
war, then the result will not be the Bolshevization of the world
and thereby the victory of Jewry, but the obliteration of the
Jewish race in Europe.”

We quote from the writings of Alfred Rosenberg (since hanged), “High Priest of the Nazi Racial Theory and Herald of the Master Race:”

“A new faith is arising today--the myth of the blood, the
faith to defend with the blood the divine essence of man. The
faith, embodied in clearest knowledge, that the Nordic blood
represents that mysterium which has replaced and overcome the
old sacraments.”[659]

The Rosenberg philosophy strongly supported the program of the Nazi Party, which reads as follows:

“None but members of the nation (Volk) may be citizens of the
State. None but those of German blood, whatever their creed, may
be members of the nation. No Jew, therefore, may be a member of
the nation.”

It was to implement this program that the discriminatory laws against Poles and Jews were enacted as hereinabove set forth.

A directive of the Reich Ministry of Justice, signed by Freisler, dated 7 August 1942, addressed to prosecutors and judges, set forth the broad general purposes which were to govern the application of the law against Poles and Jews and the specific application of that law in the trial of cases. We quote (_NG-744, Pros. Ex. 500_):

“The penal law ordinance of 4 December 1941 concerning Poles was
intended not only to serve as a criminal law against Poles and
Jews, but beyond that also to provide general principles for
the German administration of law to adopt in all its judicial
dealings with Poles and Jews, irrespective of the role which
the Poles and Jews play in the individual proceedings. The
regulations of article IX for instance, according to which Poles
and Jews are not to be sworn in, apply to proceedings against
Germans as well. * * *

“1. Proceedings against Germans should be carried on whenever
possible without calling Poles and Jews as witnesses. If,
however, such a testimony cannot be evaded, the Pole or Jew
must not appear as a witness against the German during the main
trial. He must always be interrogated by a judge who has been
appointed or requested to do so, * * *.

“2. Evidence given by Poles and Jews during proceedings against
Germans must be received with the utmost caution especially in
those cases where other evidence is lacking.”

On 13 October 1942 the Reich Minister of Justice Thierack wrote to Reichsleiter Bormann, in part as follows (_NG-558, Pros. Ex. 143_):

“With a view to freeing the German people of Poles, Russians,
Jews, and gypsies, and with a view to making the eastern
territories which have been incorporated into the Reich
available for settlements for German nationals, I intend to turn
over criminal proceedings against Poles, Russians, Jews, and
gypsies to the Reich Leader SS. In so doing I base myself on
the principle that the administration of justice can only make
a small contribution to the extermination of members of these
peoples. The justice administration undoubtedly pronounces very
severe sentences on such persons, but that is not enough to
constitute any material contribution toward the realization of
the above-mentioned aim.”

On 18 September 1942 a conference was held among Thierack, Himmler, Bormann, Rothenberger, and others. The notes of the conference, signed by Thierack, disclose that the subjects of discussion included “special treatment” at the hands of the police in cases where judicial sentences were not severe enough. Among other points agreed upon between Bormann, Himmler, and Thierack, were the following (_654-PS, Pros. Ex. 39_):

“The Reich Minister of Justice will decide whether and when
special treatment at the hands of the police is to be applied. *
* *

“The delivery of asocial elements while serving penal sentences
to the Reich Leader of SS to be worked to death. Persons under
security detention, Jews, gypsies, Russians, and Ukrainians,
Poles with more than 3-year sentences, Czechs and Germans with
more than 8-year sentences will be turned over without exception
according to the decision of the Reich Minister for Justice.
First of all the worst asocial elements among those just
mentioned are to be handed over. I shall inform the Fuehrer of
this through Reichsleiter Bormann. * * *

“It is agreed that, in consideration of the intended aims of
the government for the clearing up of the eastern problems,
in future Jews, Poles, gypsies, Russians, Ukrainians are no
longer to be judged by the ordinary courts, so far as punishable
offenses are concerned, but are to be dealt with by the Reich
Leader SS. * * *”

The defendant Rothenberger testified that he was not present when these agreements were made. However that may be, it is clear that they came to his notice shortly thereafter.

Of special significance is the record concerning the establishment of penal laws for Poles and Jews in the annexed eastern territories. On 17 April 1941 the defendant Schlegelberger addressed a letter to the Reich Minister and chief of the Reich Chancellery. In it he states that as soon as the Special Courts were introduced in the eastern territories under the decree of 5 September 1939 he tried to make those “courts with their particularly prompt and energetic procedure centers for combating all Polish and Jewish crime.” He states that “the procedure of compulsory prosecution was rescinded, at is seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment.” Poles and Jews were also prohibited from raising private actions and accessory actions. He further states:

“On being informed of the Fuehrer’s intention to discriminate
in the sphere of penal law between the Poles (and probably the
Jews as well), and the Germans, I prepared, after preliminary
discussions with the presidents of the courts of appeal and
the attorney generals of the annexed eastern territories, the
attached draft concerning the administration of the penal laws
against Poles and Jews in the annexed eastern territories and in
the territory of the former Free City of Danzig.”

Again, he says:

“So far I have been in agreement with the opinion held by the
Fuehrer’s deputy, on the fact that a Pole is less sensitive to
the imposition of an ordinary prison sentence. Therefore, I had
taken administrative measures to ensure that Poles and Jews
be separated from other prisoners and that their imprisonment
be rendered more severe. Number 3 goes still farther and
substitutes for the terms of imprisonment and hard labor
prescribed by Reich law other prison sentences of a new kind,
viz, the prison camp and the more rigorous prison camp.”

Speaking of the proposed draft prepared by him, Schlegelberger said:

“The part concerned with procedure contains first the special
regulations existing up to now of the preliminary decree. In
addition, a Pole and a Jew sentenced by a German court is not to
be allowed in the future any legal remedy against the judgment;
neither will he have a right of appeal, or be allowed to ask
that the case be reopened. All sentences will take effect
immediately. In future, Poles and Jews will also no longer be
allowed to object to German judges on the grounds of prejudice;
nor will they be able to take an oath. Coercive measures against
them are permissible under easier conditions.”

A memorandum dated 22 April 1941, bearing the same file number as the letter of Schlegelberger, states that Schlegelberger has transmitted the proposed draft, and adds:

“The draft establishes a draconic special criminal law for Poles
and Jews, giving a wide range for the interpretations of the
facts of the case, with the death penalty applicable throughout.
The conditions of imprisonment are also much more severe than
provided for in the German criminal law.”

The note further states:

“The Minister of Justice differs only in two points from the
suggestions of the Fuehrer’s deputy.”

It then states that the Fuehrer’s deputy considered it more appropriate to authorize the Reich governors to introduce the special criminal law, whereas the Minister of Justice provides for its introduction by a Reich decree. The second difference of opinion was somewhat to the credit of the defendant Schlegelberger. The Fuehrer’s deputy considered the introduction of corporal punishment appropriate, and the Minister of Justice refused to agree.

On 3 August 1942 the Reich Minister of Justice sent a draft of the proposed ordinance to a number of high officials, including the Reich Minister of Interior and the Reich Minister for Popular Enlightenment and Propaganda. The letter was signed “By order: Freisler.” Freisler was at that time State Secretary in the Reich Ministry of Justice. The letter contained this significant statement:

“I have emphasized the importance in war of this ordinance
because it indirectly serves national defense.”

The enclosed draft provided that Jews should not be entitled to make use of the right of appeal, revision, or complaint against decisions in criminal cases, and could not appeal to the courts for a decision against sentences inflicted by the police. It also provided that in cases where an appeal had already been filed it should be considered cancelled.

On 13 August 1942 the Reich Minister of Interior wrote to the Reich Minister of Justice, requesting that the draft be extended so as to restrict the right of Jews to appeal in administrative as well as criminal cases. On the same day the defendant Schlegelberger wrote to the Reich Minister for Popular Enlightenment and Propaganda concerning the addition to the draft as suggested by the Reich Minister of the Interior. We quote:

“I declare that I have no objections against an extension of
my draft to matters of administrative law and to decisions by
administrative authorities.”

He then suggested an additional provision to the effect that Jews should be forbidden to testify on oath, but that they might be prosecuted as for perjury though no oath is to be taken.

On 8 March 1943 the Chief of the Security Police and the SD, Kaltenbrunner,[660] wrote to Minister of the Interior Frick urging immediate passage of the proposed ordinance. The following reasons were given:

“1. Previous evacuations of Jews have been restricted to Jews
who were not married to non-Jews. In consequence, the numbers of
Jews who have remained in the interior is quite considerable.
As the ordinance would also include these Jews as well, the
measures it plans are not objectless.

“2. The provision of article 7 of the ordinance according
to which, at the death of a Jew, his fortune escheats in
its entirety to the Reich, results in the accumulation of
considerably less work for the State Police. At the present
time the procedure used by the State Police in handling the
confiscation of such Jewish inheritances must frequently be
modified to suit each special case.”

He adds that the provision for the transfer of Jews to the police is based on an agreement between Himmler and Thierack, who had by that time succeeded Schlegelberger as Reich Minister of Justice.

On 21 April 1943 a memorandum for the files of the Reich Chancellery reports a conference of State secretaries on the proposed ordinance at which the defendant Rothenberger was present. The conference came to the conclusion that certain modifications should be made. The final result of the prolonged discussion was the enactment of the 13th regulation under the Reich Citizenship Law of 1 July 1943, which was signed by Frick, Bormann, and Thierack. It will be recalled that that regulation, _supra_, provided that criminal actions committed by Jews should be punished by the police; that the property of a Jew should be confiscated after his death. These and other provisions were also made effective in the Protectorate of Bohemia and Moravia where German courts had jurisdiction.

With few exceptions Jews were wholly excluded from the administration of justice. In a speech before the NSDAP congress on 14 September 1934, Hans Frank stated:

“It is unbearable to us to permit Jews to play any role
whatsoever in the German administration of justice. * * * It
will therefore be our firm aim to exclude Jews increasingly from
the administration of the law as time goes on.”

On another occasion Frank, as president of the Academy for German Law, directed: “For all future time it will be impossible that Jews will act in the name of German Law. * * *”

In an order reminiscent of the “burning of the books” in medieval days, Frank also directed that the works of Jewish authors should be removed from all public or study libraries whenever possible.

On 5 April 1933 the defendant Barnickel made an entry in his diary:

“Today it is said in the newspaper that in Berlin there are
about 3,500 attorneys and more than half of them are Jewish.
Only 35 of them are to be admitted as lawyers. * * * To exclude
these Jewish attorneys from one day to the next means terrible
brutality.”

The defense witness, Fritz Wallentin, stated that in general all non-Aryan judges were removed from the administration of penal justice very soon after 30 January 1933. The evacuation of Jews to the East for extermination was in full swing at least as early as November 1941, and continued through the war years thereafter. As an illustration of the nature of this program as carried out throughout the Reich, we cite the report of the Secret State Police Main Office, Nuernberg-Fuerth; Branch Office Wuerzburg. This report refers to the deportation from a comparatively small area around the city of Wuerzburg and shows evacuation of Jews to the East in the following numbers: On 27 July 1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942, 850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on 23 September 1942 (to Theresienstadt) 562 persons; on 17 June 1943 (to Theresienstadt) seven persons; on 17 June 1943, 57 Jews were evacuated to the East. The report continues: “With this last transport, all the Jews who had to be evacuated according to instructions issued have left Main-Franken.” The report shows that the total number of 2,063 Jews were evacuated from the Main-Franken area alone. The furniture, clothing and laundry items left by the Jews were given to the finance offices of Main-Franken and turned into cash by them.

Even before transfers to the Gestapo had been substituted for judicial procedure the position of a Pole or a Jew who was tried by the courts was not a happy one. The right of self defense on the part of a Pole was specifically limited. Poles and Jews could not challenge a German judge for prejudice. Other limitations upon the right of appeal and the like are set forth, _supra_ (law against Poles and Jews, 4 December 1941).

On 22 July 1942 Reich Minister Goebbels stated that “it was an untenable situation that still today a Jew could protest against the charge of the president of the police, who was an old Party member and a high SS Leader. The Jew should not be granted any legal remedy at all nor any right of protest.”

The defendant Lautz testified that according to the provisions of decree which antedated the war and by reason of the general regulations of the law in every case it had to be pointed out in the indictment if the person was a Jew or of mixed race.

On 23 January 1943 the Oberlandesgericht president at Koenigsberg wrote to the Minister of Justice concerning defense of Poles before tribunals in Incorporated Eastern Territories. We quote:

“The decree of 21 May 1942 * * * states that in accordance
with the order on penal justice in Poland of 4 December 1941
attorneys are not (to) undertake the defense of Polish persons
before tribunals in the Incorporated Eastern Territories. This
decree has been received with satisfaction by all the judges and
prosecutors in the whole of my district.”

These directives by the authorities in the Reich under Hitler were not mere idle threats. The policies and laws were rigorously enforced. We quote from a sworn statement of former defendant Karl Engert as follows:

“The handing over to the Gestapo of Jews, Poles, and gypsies was
not under my supervision, but under that of Mr. Hecker, who
worked under me in my division. However, he was not responsible
to me, but directly to the Minister Thierack.” Again he said:

“About 12,000 inmates of the correction houses were assigned
for transfer to the Gestapo. * * * Out of the total 12,000 my
division assigned 3,000 for transfer in 1942. How many Jews,
Poles, and gypsies were assigned I do not know; that must be in
the statistics.”

Reich Minister Goebbels, in an address to the judges of the People’s Court, on 22 July 1942, stated that “if still more than 40,000 Jews, whom we considered enemies of the State, could go freely about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago.”

Between 9 and 11 November 1938, a pogrom was carried out against the Jews throughout the Reich, and upon direct orders from Berlin. Defense witness Peter Eiffe testified that he heard rumors of the proposed pogrom on the night of 8 November and called at the Ministry of Propaganda where he was told that “somebody has let the cat out of the bag again.” During the 3-day period Jewish property was destroyed throughout the Reich and thousands of Jews were arrested.

In Berlin the destruction of Jewish property was particularly great. To cap the climax on 12 November 1938, Field Marshal Goering issued the following decree:[661]

“Article I.--All damage done due to the indignation of the
people at the incitement of international Jewry against
Nationalist Socialist Germany carried out on the 8, 9, and 10
November 1938, on Jewish enterprises and living quarters is to
be removed by the Jewish owners immediately.

“Article II.--The costs of restoration are to be borne by the
owner of the Jewish business concerned * * *.

“Section 2.--Insurance claims of Jews of German nationality will
be confiscated in favor of the Reich.”

For this purpose a fine of one billion marks was imposed upon the Jews. The witness Schulz, who was an attorney in Berlin, acted in behalf of Frau Liebermann, the widow of the internationally known artist, Max Liebermann. Frau Liebermann was at that time 80 years old and the share of the fine imposed upon her was 280,000 marks. Ultimately orders were issued for her deportation to the East. She, however, died, either from heart failure or poison, as she descended the steps to be carried away. Defense witness Schulz[662] also testified concerning other methods of Jewish persecution. He said:

“* * * When a Jew wanted to emigrate, I had much to do with it.
He had to pay the Reich escape tax, that was so and so much
percent of his property and then a large amount was taken away
from him by assessing his property very high. After all of that
was done and the day he went to the passport office in order to
get his clearance, his passport, and get his visa then he was
told that now he still had to go to the notary, Dr. Stege, and
had to deposit a voluntary fee to promote the emigration of the
Jews, and that is where he paid the balance, and then left with
his personal satchel, with his little valise.”

Speaking of the “asocial” persons, Dr. Thierack, on 5 January 1943, at a mass meeting of the NSDAP, stated (_NG-275, Pros. Ex. 25_):

“I have seen to it that these people shall no longer be employed
for any sort of work that is not dangerous. The most dangerous
tasks are just the thing that is for them. Now, today, when
thousands of these people are carrying supplies in the far north
or building roads, I cannot help it if some of them die, but at
least they are of some use.”

The Roman Catholic chaplain at Amberg prison stated under oath that a large proportion of the inmates of that prison were Poles who had been sentenced under the “Poles’ Act.” Many of them died from undernourishment. They were forced to eat potato peelings and hunt through rubbish heaps for eatable refuse. From this prison “asocial elements” were picked out and sent in batches to the Mauthausen concentration camp. All of the first batch was said to have perished. Among the prisoners were Jews who had been sentenced for race pollution.

The witness Hecker stated under oath that after Thierack’s “doubtful decree” concerning the transfer of Jews, Poles, and gypsies, prisoners in protective custody, and asocial elements from the justice prisons to the RSHA in the autumn of 1942, the Jews as a whole were immediately handed over. The work was carried out by Department V of the Ministry of Justice. Lists were prepared monthly and sent to Minister Thierack through the chief of the department.

On 22 October 1942 a directive (_648-PS, Pros. Ex. 264_) under the letterhead of the Reich Minister of Justice was issued to various prosecuting officers in which it was stated that “by agreement with the Reich Leader SS, lawfully sentenced prisoners confined in penal institutions will be transferred to the custody of the Reich Leader SS.” Those designated for transfer to the SS included “Jews, men and women, detained under arrest, protective custody, or in the workhouse; * * * and Poles, residing in the former Polish state territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is above 3 years, * * *. With completion of the transfer to the police, the penal term is considered interrupted. Transfer to the police is to be reported to the penal authority and in cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice.” The directive is signed “Dr. Crohne.”

A secret directive dated Berlin, 5 November 1942, was issued to the heads of the SS and to the police services, in which it was stated (_L-316, Pros. Ex. 265_):

“Re: Jurisdiction over Poles and eastern nationals.

“I. The Reich Leader SS has come to an arrangement with the
Reich Minister of Justice Thierack whereby the justice waives
the execution of the usual penal procedure against Poles and
eastern nationals. These persons of alien race are in future to
be handed over to the police. Jews and gypsies are to be treated
in the same way. This agreement has been approved by the Fuehrer.

“II. This agreement is based on the following considerations:
Poles and eastern nationals are alien and racially inferior
people living in the German Reich territory.”

The order continues:

“Such considerations which may be right for adjudicating a
punishable offense committed by a German are however wrong for
adjudicating a punishable offense committed by a person of alien
race. * * * As a result of this, the administration of penal law
for persons of alien race must be transferred from the hands of
the administrators of justice into the hands of the police.”

On 24 September 1942 the defendant Joel prepared a secret report concerning the Reich Marshal’s plans for action in the Occupied Eastern Territories. The report states that “the Reich Marshal is looking for daring fellows who will be employed in the East for special purposes and who will be able to carry out tasks of creating confusion behind the lines.” The suggestion was that “poachers” and “fanatical members of smuggling gangs who take part in gun battles on the frontiers,” should be employed for this purpose. A copy of the report was sent to State Secretary Rothenberger for his attention and was submitted in connection with a proposed conference to be held on 9 October 1942. Minutes of a conference of 9 October 1942, signed by Dr. Crohne, incorporate the substance of Joel’s report, and state that the poachers have already been turned over to the Reich Leader SS for special duties. The report recommends that the district attorneys be given the task of obtaining the convicts for this special service, and provides further (_662-PS, Pros. Ex. 263_):

“_Delivery of asocial convicts._--Persons in penal
institutions designated as asocial persons by judicial decision
are to be turned over to the Reich Leader SS.

“1. _Persons in custody for reasons of security._--Persons
in custody for reasons of security who are in German penal
institutions will be put at the disposal of the Reich Leader SS.
The execution of sentence will be regarded as interrupted by the
delivery. * * *

“_b._ Whether women are also to be delivered is still
doubtful. * * * In this regard it will have to be a fundamental
point from the beginning that in the case of female Poles, Jews,
and gypsies no doubt about the delivery can exist.

“_c._ Foreigners are not affected. Poles, Russians,
Ukrainians, Jews, and gypsies do not rank as foreigners. * * *.

“2. _Jews, gypsies, Russians, and Ukrainians_ will be
delivered to the Reich Leader SS without exception.

“3. _Poles._--Ethnic Poles who are subject to the Polish
criminal law regulations, or have been delivered to the Polish
penal authorities, and who have more than 3 years’ sentence to
serve, will be delivered to the Reich Leader SS.

“Poles with smaller sentences will remain in the custody of
the prison system. After serving their sentences they will be
reported by name to the police just the same.”

It will be observed that the decisions concerning special treatment for Poles and Jews which were reached at this conference of 9 October 1942 antedate by almost 9 months the enactment of the 13th regulation concerning the Reich Citizenship Law of 1 July 1943 which provided “that criminal actions committed by Jews shall be punished by the police.”

On 1 April 1943 a letter from the Reich Ministry of Justice to the public prosecutors of the courts of appeal and others stated that the “Reich Security Office has directed by the decree of 11 March 1943 as follows:

“_a._ Jews, who in accordance with number VI of the guiding
principles, are released from a penal institution, are to be
taken by the State police (chief) office competent for the
district in which the penal institution is located, for the rest
of their lives to the concentration camps Auschwitz or Lublin
in accordance with the regulations for protective custody that
have been issued. The same applies to Jews who in the future are
released from a penal institution after serving a sentence of
confinement.

“_b._ Poles, who in accordance with number VI of the
guiding principles, are released from a penal institution, are
to be taken by the State police (chief) office competent for
the district in which the penal institution is located, for the
duration of the war to a concentration camp in accordance with
the regulations on protective custody that have been issued.

“The same applies in the future to Poles who after serving a
term of imprisonment of more than 6 months are to be discharged
by a penal institution.”

It was stated that the ruling replaces previous orders. The instrument is stamped “Reich Ministry of Justice” and is signed by Dr. Eichler.

As a crowning example of fanatical imbecility, we cite the following document issued in April 1943 which was sent to the desk of the defendant Rothenberger for his attention and was initialed by him (_NG-1656, Pros. Ex. 535_):

“The Reich Minister of Justice
“Information for the Fuehrer
“1943 No.

“After the birth of her child a full-blooded Jewess sold her
mother’s milk to a pediatrician and concealed that she was a
Jewess. With this milk babies of German blood were fed in a
nursing home for children. The accused will be charged with
deception. The buyers of the milk have suffered damage, for
mother’s milk from a Jewess cannot be regarded as food for
German children. The impudent behavior of the accused is an
insult as well. Relevant charges, however, have not been applied
for, so that the parents, who are unaware of the true facts,
need not subsequently be worried.

“I shall discuss with the Reich health leader the
racial-hygienic aspect of the case.

“Berlin, April 1943”.

The witness Lammers, former Chief of the Reich Chancellery, testified as follows:[663]

“Q. * * * Now, you answered Dr. Kubuschok that the subject of
sterilization of half-Jews was an alternative to their being
moved to the East and that it had been raised by half-Jews
themselves in 1942 or prior thereto.”

“A. Yes. I said so.”

He testified further that the half-Jews were not subject to any compulsion. He was apparently of the opinion that a person was a free agent if he had a choice between sterilization and deportation to a concentration camp.

It will be recalled that the law of 4 December 1941 against Poles and Jews applied to the “Incorporated Eastern Territories.” Those territories were seized in the course of criminal aggressive war, but aside from the fact it is clear, as we have indicated, _supra_, that the purported annexation was premature and invalid under the laws and customs of war. The so-called annexed territories in Poland were in reality nothing more than territory under belligerent occupation of the military forces of Germany. The extension to and application in these territories of the discriminatory law against Poles and Jews was in furtherance of the avowed purpose of racial persecution and extermination. In the passing and enforcement of that law the occupying power in our opinion violated the provisions of the Hague Convention from which we quote:

“Until a more complete code of the laws of war has been issued,
the high contracting parties deem it expedient to declare that,
in cases not included in the regulations adopted by them, the
inhabitants and the belligerents remain under the protection and
the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the
laws of humanity, and the dictates of the public conscience.”

Other relevant portions are as follows:

“_Article 43._--The authority of the legitimate power
having in fact passed into the hands of the occupant, the latter
shall take all the measures in his power to restore, and insure,
as far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the country.

“_Article 46._--Family honor and rights, the lives of
persons, and private property, as well as religious convictions
and practice, must be respected. Private property cannot be
confiscated.” (_Hague Convention No. IV of 18 October 1907_
36 Stat. 2277; Treaty Series No. 539; Mallory Treaties, Vol. 2,
page 2269.)

The prosecutions which were proposed by Lautz cannot be justified upon any honest claim of military necessity. As a lawyer of ability, he must have known that the proposed procedure was in violation of international law.

Although the authorities are not in accord as to the proper construction of article 23h of the regulations annexed to the Hague Convention of 1907, we are of the opinion that the introduction and enforcement of the law against Poles and Jews in occupied Poland resulted in a violation of that provision which is as follows:

“It is forbidden to declare abolished, suspended, or
inadmissible in a court of law the right and actions of the
nationals of the hostile party.”[664]

The evidence discloses that the transfer of persons to concentration camps was done even before the war and on direct orders of Hitler. Dr. Lammers, Chief of the Reich Chancellery, on 8 August 1939, notified the Reich Minister of Justice that “the Fuehrer has given an order that all dispensable persons in security detention are to be put at the disposal of the Reich Leader SS immediately.” The same procedure was employed as to persons who had never been convicted.

On 24 January 1939, a conference was held at which reports were received from eight different court districts. The subject was “Protective Custody after Serving Term of Imprisonment, after Acquittal, after Release from Imprisonment on Remand.” Among the cases reported were those of defendants who were taken into custody by the police in the court room immediately after their acquittal. Others were taken by the police in cases where there had been a refusal to issue a warrant of arrest. The report on the Hamburg situation by the defendant Rothenberger states that the number of persons taken into protective custody has increased. Rothenberger reports that in six cases Jewish women had been taken into protective custody because of sexual intercourse with Aryans. He quotes the State Police file as follows:

“1. Protective custody, ‘to make the punishment finally
effective’ * * *.

“2. Protective custody, ‘to make the served sentences still more
effective’ * * *.

“3. Protective custody, ‘because of the big number of previous
convictions’.

“4. Protective custody ‘to prevent prejudicing the course of
justice through the interference of lawyers as defense counsel’.”

The report on the conference ends as follows:

“The Minister concludes the discussion by indicating that it is
to be the task of the chief presidents to see that arrests in
the court room by the State Police are avoided, and recommends
for the rest to maintain the connection with the State Police.”

The report is signed by the defendant Klemm.

Former defendant Engert as vice president of the People’s Court, and Thierack, the president of the People’s Court, protested in July and August 1940 against the trial of minor cases in the People’s Court as not being compatible with the dignity of the tribunal and suggested that the defendants in such cases should be transferred to a concentration camp. As Thierack put it--

“However right it is to exterminate harshly and uproot all the
seeds of insurrection, as for example we see them in Bohemia and
Moravia, it is wrong for every follower, even the smallest, to
be given the honor of appearing for trial and being judged for
high treason before a People’s Court or, failing that, before
an appellate court. In order to deal with these small cases and
even with the smallest, the culprits should surely be shown
that German sovereignty will not put up with their behavior
and that it will take action accordingly. But that can also be
done in a different way and I think in a more advantageous one,
than through the tedious and also very expensive and ponderous
channels of court procedure. I have therefore no objection
whatsoever, if all the small hangers-on who are somehow
connected with the high treason plans which have been woven by
others are brought to their senses by being transferred to a
concentration camp for some time.”

As early as 29 January 1941 the senior public prosecutor at Hamm wrote to the Reich Minister of Justice, for the attention of State Secretary Schlegelberger (_NG-685, Pros. Ex. 259_):

“Upon inquiry, the Reich Trustee for Labor for the economic
territory of Westphalia-Lower Rhine has informed me that ‘in
accordance with an agreement between the Reich Minister for
Labor and the Reich Leader SS as Chief of the German Police,
breach of work contracts by Poles are to be punished by the
Secret State Police with protective custody or concentration
camps. The meaning of this step’--so writes this Reich
trustee--‘is that in the case of Poles the strictest measures
are to be taken at once * * *’. For this reason we made it a
point in my office to transfer the cases involving breaches
of work contracts by Polish civilian workers, to the Gestapo
(Secret State Police) for further action.”

The same letter informs the defendant Schlegelberger of uncertainty which has arisen in the treatment of Polish civilians because in some cases the courts would sentence to 2 or 3 years imprisonment while the State Police may pronounce the death sentence for the same crime.