Chapter VIII: Introduction (7)

(_e_) This limitation of the tasks of the under secretary through the organization was furthered through the personal qualities of the Minister, Thierack. A picture of Thierack will result from the documents and the statements of witnesses. He was an autocratic, brutal, and even a rude person. He pursued his views and objectives with remarkable stubbornness. Accordingly, he was hardly to be persuaded from an opinion once formed. He tolerated no one next to himself in his struggle for power. For such a person it must have been easy to suppress such a soft and yielding personality as Klemm. Thierack was not interested in problems of the jurisprudence in concepts of law. He thought that he was a politician and merely a practitioner of the administration of justice. The contrast in the characters had an especially unfavorable effect on Klemm’s method of working since Thierack thought he could treat Klemm merely as an official dependent on him personally. That resulted from the previous personal relations of the two men. When Thierack filled the post of Minister of Justice for Saxony immediately after the seizure of power by the NSDAP, Klemm was his adjutant. When Klemm after many years again had to come into personal contact with Thierack through his appointment to under secretary, he was in the opinion of Thierack, not more than his adjutant again. When he contacted his Under Secretary Klemm, his manners were just as rough as in his contact with other subordinate officials. Even in the presence of other officials he showed tactlessness, and treated him, too, with disdain and certainly not as a “friend and confidant,” as the prosecution obviously assumes. Thierack would not attach such weight to an opinion voiced by Klemm as would have been appropriate because of the latter’s official position. In my defense plea this personal relationship is of importance, so that it must also be shown that Thierack was an extremely reserved person. He disclosed his plans and intentions to nobody before they were carried out. He kept the most important political-judicial events and decisions secret even from his under secretary. When he received the visits of other Ministers, or higher Party and SS officials nobody else was present as a rule. This was particularly true in his contacts with Himmler and the people surrounding him, such as Kaltenbrunner. Of the contents of the discussions Klemm like the other officials of the Ministry was not informed until a decree of Thierack was published for the individual sections of the Ministry.

As to the outside Thierack used Klemm only if he considered it as advisable to emphasize his position as Under Secretary. Thus, Klemm signed legal decrees not really as deputy of the Minister who was absent, but only when Thierack thought that he should put his signature under a document of little significance. Klemm had to sign the correspondence with other ministries if Thierack preferred this procedure for reasons of prestige. This is the only reason for the fact that the so-called directing letters [Lenkungsbriefe] to the presidents of the Appellate Courts Stuttgart and Hamburg do not bear Thierack’s name but that of Klemm in spite of the fact that it was Thierack who, in individual reports, complained about the sentences as being too light.

(_f_) Starting from this general statement with regard to the evidence concerning Klemm’s position as Under Secretary, I will have to discuss in detail the documents submitted by the prosecution and the statements of the witnesses. Here it will be proved that the main counts of the indictment have no relation at all to the activities of my client. Almost all the measures which the prosecution declared as objectionable, were completed when Klemm took over the position of Under Secretary. The special regulations against members of foreign nations were issued, the Jews were already excluded from the jurisdiction of the justice authorities, the so-called transfer of asocial “prisoners to the police”--handled by department XV, which was never subordinated to Klemm, not even formally--was carried out. My client practically had nothing to do anymore with the Nacht und Nebel cases. The interpretation of the laws by the courts was distinctly crystallized; a steady practice had already developed during the preceding 4 years of war, when the sentences became more severe because of the conditions caused by the war. The prosecution did not submit any evidence showing that Klemm during his time in office as under secretary advocated more severe sentences, especially in cases of high treason. The award of punishment and the granting of clemency took place in accordance with distinctly developed standards. In this connection I will have to demonstrate in detail the proceedings which developed for the clemency questions in cases where a death sentence had been imposed. It will be proved that Klemm did not adopt Thierack’s severity-on-principle [grundsaetzliche Haerte], but that on the contrary, especially if the absence of the Minister offered an opportunity, he was inclined to be lenient. Impressive examples for this fact will be given to the Court from the document book of the prosecution 3-L, Document NG-414, Prosecution Exhibit 252.

In this connection the opportunity will arise to prove in general that it is only a mere assertion of the prosecution that the Ministry of Justice illegally ordered that a death sentence be carried out. Klemm did not participate in the issuance of directives concerning the clearing of jails when the enemy approached. These were affairs which were ordered by the executive department of the ministry (Dept. V). Evidence will be submitted which will prove that my client had practically nothing to do with Department V. They will prove that all decisions in these questions were always made by Thierack, without consulting his Under Secretary. Concerning the individual case about the illegal murder in the penitentiary Sonnenburg, the evidence obtained up to now through the cross-examinations of witnesses will be supported by additional evidence. It will clearly be shown that the Ministry of Justice was not responsible for these measures. It will be seen that Klemm did not know anything about the common plan of the Reich defense commissioner and the general public prosecutor and that therefore, he did not have the possibility to prevent that their intentions were carried out.

By reference to individual cases I will prove that, in accordance with the plea made by the entire defense the judiciary did not do anything which made the lynching of Allied fliers who were shot down possible. The contrary will be proved. It was Klemm who ordered that criminal proceedings should be started against Germans who had killed Allied fliers illegally. The disputes with the Party offices with regard to these orders will be shown. Furthermore, it will be proved that Klemm saw to it that Germans, who treated bailed-out enemy fliers decently were protected from subordinated authorities of justice who showed over-great zeal.

(_g_) When discussing the individual counts of the indictment I will try to find the basis of the evidence for subsequent legal considerations. This includes especially the question, whether it can be at all important for the judging of the facts of a crime, to examine the actions of a superior Minister in which the subordinate Under Secretary had also no part. Here the problem will not be the importance of an order with regard to criminal law, but it will be discussed that the necessary causal connection is missing. Going further we will have the opportunity to produce evidence before this Tribunal with regard to the subjective side.

I will demonstrate that Klemm, due to his conviction that law had to prevail in the state and due to his generally decent human attitude interceded on behalf of the law. It will be proved that my client was held in high regard by his co-workers in the Ministry, that he tried in many individual cases to mitigate the fundamental harshness of Minister Thierack who was severe on principle, that he always was ready to listen to other officials, that he always was ready to accept sensible suggestions; in general he was thus just the opposite of Thierack. This attitude also showed results, as will be proved, in the sphere of personnel policy. On principle he did not give any preference for positions to so-called “old Party members.” In case of promotions and appointments he recommended persons who did not belong to the NSDAP. I shall be able to show cases where he also recommended persons who were on the other side [gegnerischen Lager], if they had special professional qualifications. He tried to aid officials of justice who, for political reasons, were personally in difficulties.

(_h_) Extended fields which Klemm handled in the Ministry of Justice have not been mentioned by the prosecution. When submitting evidence I will have the opportunity to show especially that my client had to spend most of his working time in the Ministry for Department II of the Ministry. This department handled all questions which were concerned with the general training of all German jurists. Here the special difficulties which arose with regard to the personnel of the authorities of justice on account of the events of the war had to be surmounted. The evidence will show that my client in training the young jurists omitted all politics, that his work was absolutely unpolitical. Thus, the so-called ideological training and examinations which were very much favored in the time shortly after the assumption of power of the NSDAP and which found a specially exact expression in the “Referendar Lager [camp for prospective lawyers] Hanns Kerrl” were excluded from the professional education of the jurist. At the time when Klemm, at the beginning of the year 1944, took over his position in the ministry, all these things had been settled a long time ago. The most urgent practical problems, where one should get young judges, when and in what manner young jurists should make their examinations, how former soldiers were to be treated, and similar questions belonged to Klemm’s working field. This was practical work, also this field had nothing to do with “politics.” Thus, if the picture and the activity of my client will be made clear to the Tribunal, then it will be proved that it is not a cheap attempt of throwing the blame upon dead persons, then it will become clear that it has been tried to make my client here in the dock the deputy of Thierack and perhaps also of Bormann. Klemm is, however, not responsible for their guilt.

E. Opening Statement for Defendant Rothenberger[76]

DR. WANDSCHNEIDER: May I begin my opening statement? At the beginning of my opening statement I want to say a few words about the task of the defense as I see it.

_I. The task of the defense_

With the presentation of its theory of proof [Beweistheorie], the defense really starts its task in this trial. It is confronted with an indictment presented in the name of the world community against the justice officials in National Socialist Germany and referring to the moral conscience of just this world community. This situation requires a few words about the duties and position of the German defense in this trial. It is a cheap trick, if Germans now, subsequently, _merely because the National Socialistic State_ has collapsed, declare very simply and without resistance that Hitler was “not right,” and if these same Germans during the National Socialist regime, completely renouncing their own attitude and personality, were opportunists and cooperated with the entire National Socialist Policy with just as little resistance. Such a confession on the part of the defense, which would be considered suitable only _because_ the sentence of the International Military Tribunal established the amoral character of national socialism, would also be a cheap trick and valueless. Opinions are not formed on the basis of outward conditions, but on the basis of one’s own knowledge. Of course, we do know on the basis of our knowledge that under national socialism the basic rights and worth of the free individual and of the human community whose interests are inextricably bound together became corrupt and were destroyed and that is, by misuse and waste of the most valuable sources of power of the German nation itself and of other non-German nations. Only self-recognition, self-education, and efficient responsible cooperation of all members of a community lead to a really democratic way of life and state.

The above statements which were made in order to be honest and above board have not been made from the standpoint of any disinterested neutral third party. How could a German defense counsel be inwardly untouched by the arguments of the prosecution, regardless of whether and to what extent he, as a German, considers himself “guilty.” In view of the fact that the German people were entangled into error, misery, and guilt, should he not feel even more that he is one of them, and should he not try to gain that which cannot be lost--self-reflection, principles, and dignity. The defense wishes to thank the Tribunal for having given it full opportunity to represent the interests of its client in this spirit during this trial.

_II. Criminal facts of the case according to the indictment;
conspiracy and the individual facts of the case concerning war
crimes and crimes against humanity_

Dr. Rothenberger is charged with the crime of conspiracy, committing war crimes and crimes against humanity. According to the prosecution, the same concrete facts form the basis for the last two charges. In like manner, the charge of conspiracy is connected with the planning of the afore-mentioned war crimes and crimes against humanity. The facts presented by the prosecution to prove these crimes are in accordance with the IMT judgment only relevant from the penal point of view since the beginning of the war. We are concerned with the following facts:

_Numbers 9 and 21 of the indictment_--Use of the Special Courts and the People’s Courts for the oppression of political enemies.

_Numbers 10 and 22 of the indictment_--Participation in the discussion between Himmler and Thierack of 18 September 1942.

_Numbers 11 and 23 of the indictment_--Sentencing and execution of Germans and non-Germans for high treason.

_Numbers 14 and 26 of the indictment_--Illegal execution.

_Numbers 16 and 28 of the indictment_--Preferential treatment shown Party members who are to be punished and collaboration in the introduction of the special penal law for Jews and others.

_III. Nonexistence of a conspiracy on legal grounds_

Before starting to discuss the basis for the above charges in the indictment, it seems fitting to treat briefly the question of conspiracy. From a legal standpoint, attention must be called to the fact that according to the statute of the London Treaty, as well as the Control Council Law No. 10, the conspiracy, or plan, can only be considered as a crime in itself if it concerns a crime against peace but not if it concerns a war crime or crime against humanity. This viewpoint was maintained also by the IMT in trial No. I.

_IV. The general circumstances of the case which form the basis
for the charges of the indictment_

1. _Memorandum of Dr. Rothenberger_--In its opening statement against Dr. Rothenberger the prosecution called particular attention to his memorandum to Hitler for the year 1942 and entered it as Document NG-075, Prosecution Exhibit 27. The prosecution characterized this as a “peculiar document” and commented upon it from its own point of view. The defense will also have to analyze the memorandum minutely and discuss in detail its previous history and what has happened to it. It appears that the chief problem here is the basically important question of the dominating position of the judge in the life of a nation. The appointment of Dr. Rothenberger as Under Secretary can be traced back to this memorandum, the character of which is clearly open to a psychological judgment. Naturally the reasons for his appointment will have to be discussed in greater detail. The memorandum presents therefore the very first of those important developments which put Dr. Rothenberger in the defendant’s dock in Nuernberg.

2. _Dr. Rothenberger’s reaction to the Hitler speech of 26 April 1942_--The prosecution has further produced against Dr. Rothenberger his report on conditions to the Reich Ministry of Justice, dated 11 May 1942, as Document NG-389, Prosecution Exhibit 76, which describes the reaction to Hitler’s speech of notorious fame, dated 26 April 1942. The prosecution blames him for the measures taken after the Hitler speech, just as for the corresponding measures of autumn 1942. It will therefore be the task of the defense to show how the measures taken by Dr. Rothenberger in 1942 following the Hitler speech were meant, and what was their effect.

The documents specified under this as well as the previous number, in fact in the opinion of the defense, touch upon crucial questions of the whole trial; namely, the place of the judiciary in the National Socialist state. They require therefore a full description in the presentation of evidence by this side.

3. _Dr. Rothenberger’s ideas on reform_--Dr. Rothenberger failed with the plans for reform contained in his memorandum. It may also be conceded that they were bound to fail, by virtue of a historical necessity. However, that is not the point, but rather to demonstrate that Dr. Rothenberger exerted himself again and again to the utmost for the preservation of the foundations of justice, in particular for an independent judiciary, and used all his strength to that end. The defense will clearly show that in the case of his discharge after he had served only 15 months as Under Secretary, not personal but decisively factual differences were at stake, on account of which Dr. Rothenberger was no longer acceptable to the rulers in the Third Reich.

4. _Dr. Rothenberger’s personality and career from the prewar period and into the Second World War_--The above events falling directly within the war period, become fully understandable only by showing the development of Dr. Rothenberger’s personal and professional circumstances before the war. It will be demonstrated that even before 1933 he was a professionally able lawyer, interested solely in civil law, energetic and conscious of his responsibility. It will further be shown that after 1933 he succeeded in having his proposals for a constitutional state adopted in Hamburg. He did become involved, in constantly growing opposition to radical Party circles and to the SS, especially after the outbreak of the war.

All the facts of the case expounded above under IV are legally relevant from the viewpoint of war crimes and crimes against humanity, as well as from that of conspiracy; they are therefore presented with reference to all charges against my client.

_V. The various facts of the case in the order of the indictment
and the position taken with regard to them_

All the charges made against Dr. Rothenberger have to do with the field of criminal law and administration of punishment. It will be shown by the prosecution’s own documents and by further evidence, that Minister of Justice Thierack reserved for himself all matters of criminal law and criminal law procedure as well as of administration of punishment, and accordingly by the exclusion of Dr. Rothenberger, placed Departments III, IV, V, and XV of the Ministry under his own direction. Dr. Rothenberger, therefore, neither had influence on the whole field of criminal law nor was he responsible for it. Neither Special Courts nor the People’s Court, neither general public prosecutors nor any sort of criminal courts nor prisons were under his direction. The description of Dr. Rothenberger as successor of Freisler in the opening statement on page 64 of the German translation is therefore incorrect and an error. Without question, the entire criminal law was under the direction of the latter as Under Secretary, which from the beginning was not the case with Dr. Rothenberger.

1. _Concerning numbers 9 and 21 of the indictment_--According to the above general statements, therefore, Dr. Rothenberger did not cooperate in the improper use of the Special Courts and the People’s Courts for the suppression of political opponents.

2. _Concerning numbers 10 and 22 of the indictment_--On 18 September 1942 an agreement was reached between Himmler and Thierack which according to a file note by Thierack, among other things, provides for the delivery of criminal prisoners to the SS for the purpose of “extermination by work” and for the transfer to Himmler of criminal justice in cases concerning Jews, Poles, etc. It will be shown that Dr. Rothenberger did not take part in the discussion of these points, was not responsible for them, and had no knowledge of them at that time.

3. _Concerning numbers 11 and 23 of the indictment_--Dr. Rothenberger never took part in the sentencing of political opponents for high treason. If the prosecution takes the view that nonexercise of the right of clemency after valid sentence applies, then in the cases in question with which Dr. Rothenberger dealt in the absence of Minister Thierack, an opinion having regard to factual and legal points will be given.

4. _Concerning numbers 14 and 26 of the indictment_--Insofar as the four executions which took place erroneously on 8 September 1943 in Ploetzensee, may be referred to by the charge of illegal executions, Dr. Rothenberger’s lack of responsibility will be demonstrated by the documents of the prosecution and by further evidence.

5. _Concerning numbers 16 and 28 of the indictment_--Dr. Rothenberger had no share in the preference given to Party members in clemency proceedings, as is also established on the basis of the documents of the prosecution. Nor did he take a responsible part in depriving the Jews, and others, of their civil rights [Entrechtung], as will be shown in detail.

_VI. General aspects of criminality_

To understand the line of reasoning on which this presentation of evidence is based, attention is called to the following general criminalistic points of view which in themselves of course are known to the Tribunal. If, nevertheless, they are emphasized here, it is because the Tribunal is confronted with the extraordinarily difficult task of having to form a judgment of events, people, and mental processes from a world of thought which is alien to it.

1. _Limited sphere of activity of individuals under a dictatorial regime_--Undoubtedly it is a characteristic of a dictatorial regime that the great majority of the population sinks into more than average passivity and paralysis of responsibility, in contrast to a democracy where the average citizens, too, the majority of the population, display a far greater initiative out of the practical experience of their liberty and their own sense of responsibility. However, it is a certainty that the few, who, under such a regime stand in opposition to the rulers, thereby doing something which in a democracy would carry no risk worth mentioning, thus risk their lives and liberty. Consequently, it is not possible to do justice to the circumstances involved, if one minimizes the courageous actions of individuals in a dictatorial system by inept comparisons with conditions obtaining in a democracy. It is obvious, that the question to which degree an individual had the power and opportunity in a police-state system to call a halt to developments felt by him to be wrong, must in all fairness be judged by other standards.

2. _Necessity of individual method of observation_--A dictatorship blurs, especially to the foreign observer in a completely inconclusive manner the actually existing, great individual and basic differences, on account of the “coordination” which to begin with was effected in the exterior sphere. Thus, for example a German or Frenchman will hardly succeed in picking out one Chinese face out of a crowd of Chinese. One looks just like another. For that reason it is the more imperative to take into consideration the individual personality and its historic as well as geographical background, like that which binds Dr. Rothenberger to the Hanseatic tradition of the old trading and harbor city of Hamburg; the more inapplicable generalization and standardization may lead to misjudging the specific importance of a personality and the particular nature of his work.

3. _Methodical ineptness of a retrospective view_--Evaluation from the point of view of criminal law is concerned with the possible participation in the commission of a criminal act and the possible personal guilt. It is decisive for judging a person’s guilt to establish whether he shared in and had knowledge of the crime and whether he is conscious of it; so for instance in the case of the conspiracy which is alleged to have existed since 1933, knowledge of the criminal development of national socialism since that time is decisive. In spite of some disappointments and bad experiences in individual cases surely none of the defendants considered the National Socialist development in principle and as a whole as criminal, nor was he necessarily compelled to do so. It is not intended to question the statements of the IMT about the destructive development of the NSDAP, which according to article X of Ordinance No. 7, are binding until the contrary is conclusively proved. Nevertheless, it so happened that the National Socialist era produced a number of events and institutions which were either politically indifferent or even appeared as the expression of peaceful reconstruction; they were not mentioned in the findings of the IMT. Public opinion, however, was formed on the basis of those manifestations. Questions such as the revival of trade, the construction of Autobahnen [super highways], the elimination of unemployment, the creation of great social institutions, as for instance the National Socialist Public Welfare Association (NSV) and the Winter Relief Scheme (WHW), continuously, year in, year out, were in the limelight with the German public and overshadowed everything else, not to mention events in the field of foreign policy like the Anglo-German Naval Treaty, international sport events such as the Olympic games, etc. The greater part of the population, even the educated classes, were not aware that unemployment was only eliminated by an ever more formidable increase of the economic capacity for the purpose of the coming war, and that the donations and subscriptions which the people collected by hard work for their social institutions, disappeared in the gorge of rearmament. Did not Hitler’s protestations that the construction of Autobahnen was to be considered proof of Germany’s peaceful intentions of reconstruction, and not as the expression of militaristic mentality, sound entirely convincing in view of the fact that should it come to the point these same Autobahnen would operate strategically to Germany’s disadvantage which actually did happen?

By his systematic and indubitably extremely cunning propaganda policy, Dr. Goebbels brought about step by step a constantly increasing isolation from foreign countries which made it more and more impossible to form a truly objective judgment about other countries and questions of foreign policy. It is true, treaties with foreign countries were heralded with much publicity as proof of the desire for amicable cooperation with other nations. Considering these circumstances, were men, even those in higher positions, as for instance, Dr. Rothenberger, who did not have the slightest insight into matters of foreign policy, to show less confidence in the National Socialist leadership of the state than evidently was manifested by the foreign statesmen who concluded treaties with the Third Reich. Suspicious events were not discussed by the press and the public and thus escaped public attention and judgment to a large extent. Insofar as dangerous practices of national socialism were still discernible in domestic and foreign policy, they never appeared as naked facts before the German public as is stated by the IMT verdict but were exhaustively “disguised” in comments rendered harmless or even excused and justified as the results of alleged intrigues by the opposing camp.

Without wishing to deny that there exists a certain predisposition on the part of the German people for the reception of authoritarian wisdom, bad though it may often be, one cannot get around the fact, that, based on the circumstances described above, the process by which Germans, even those on a higher level, arrived at an opinion and judgment, of necessity moved and was bound to move along certain lines. The question as to knowledge of certain criminal acts and developments, or better yet, the question as to recognition of the criminality of certain acts and developments can therefore be judged psychologically correctly only on the basis of all the conditions and contexts prevailing at that time. That applies particularly to wartime, which in all countries produces special exigencies and places the strongest emphasis on certain desirable facts while suppressing undesirable ones. Retrospective observation which, in examining facts, does not put itself into conditions existing at that time, projects into the past, knowledge and opportunity of knowledge gained later. Applied to this trial, the above-named method imputes to the defendants a knowledge, an awareness of the criminality of circumstances, which they did not have at that time and makes demands on their faculties of perception which they could never have satisfied under the circumstances then prevailing.

_VII. Principles of the constitutional state: “nulla poena sine
lege,” “nullum crimen sine lege”_

The inner connection between the afore-mentioned train of thoughts and the principles _nulla poena sine lege_ and _nullum crimen sine lege_ is obvious. The question is whether facts constituting criminality were created after the war by the Charter of the London Agreement and the Control Council Law No. 10 which, in violation of the above principles, are applied retroactively to previous acts, which at the time of commission did not constitute criminal acts. The resulting cardinal problem will be discussed by the defense.

_VIII. Conclusions_

The great and famous American judge, Oliver Wendell Holmes, said in 1896, “The real reason for a decision are considerations of a political or social nature. It is erroneous to believe that a solution can be found solely with the aid of logic or general legal doctrines which no one contests.” (Quoted from quotation in “Majority Rule and Minority Rights” of Henry Steele Commager, page 46 of the German translation.)

The defense can but concur in these words. The defense requests that consideration be given to its train of thoughts as derived from this attitude, and stated in VI, 3, which are the corollary of similar thoughts of the prosecution, without the Court having to fear a misunderstanding concerning the above quotation.

F. Opening Statement for Defendant Lautz[77]

DR. GRUBE: May I begin my opening statement? The prosecution in its arraignment of Lautz has obviously started from three wrong suppositions. The first erroneous supposition was that Lautz evidently was confused with the Ministry official Letz and therefore it was erroneously assumed that Lautz had also been working in the Reich Ministry of Justice. Only thus can it be explained why in several counts of the indictment with which the prosecution is expressly charging the Reich Ministry of Justice only, Lautz also is mentioned. I do not want to lose myself in details. That the defendant Lautz never worked in the Reich Ministry of Justice has been proved without a doubt by the evidence submitted so far. But I shall furnish further proof that Lautz did not take part in any of the measures, with which the Reich Ministry of Justice is charged.

The second erroneous supposition from which the prosecution sets out is the assumption that there was only _one_ chief Reich public prosecutor [Oberreichsanwalt], viz, defendant Lautz. The evidence taken so far has shown that beside the chief Reich public prosecutor of the People’s Court, viz, defendant Lautz, there was still another chief Reich public prosecutor, viz, the chief Reich public prosecutor of the Reich Supreme Court. It is due to this error on the part of the prosecuting authority that matters have been made the subject of this procedure with which defendant Lautz had nothing to do. It is the nullity plea for instance of which I am thinking here; I shall prove in the course of my submission of evidence that this nullity plea could be filed only by the chief Reich public prosecutor of the Reich Supreme Court and not by the chief Reich public prosecutor of the People’s Court. It is due to the same erroneous supposition on the part of the prosecution, according to which there was only _one_ chief Reich public prosecutor, that in the “information on the outlines of the German judicial system,” which was submitted by the prosecution at the beginning of the trial, it is stated on page 5--“The criminal prosecution in cases before the People’s Court and before the Special courts, as well as those before the ordinary courts, lay in the hands of the chief Reich public prosecutor. Defendant Ernst Lautz was chief Reich public prosecutor.” I shall prove in the course of the evidence to be submitted by me that defendant Lautz was not a superior official to the public prosecutors of the Special Courts and other courts and that he was not competent for the criminal prosecution before these courts. I shall prove that he had only a quite limited competence, viz, competence for the criminal prosecution of those crimes for which the People’s Court was competent, and that he was superior only in regard to the personnel of the Reich public prosecutors at the People’s Court. The position of defendant Lautz as chief Reich public prosecutor at the People’s Court did not differ in any way from the position of the chief public prosecutors [Oberstaatsanwaelte] at the district courts. When these two points have been clarified, there remains of all accusations made against defendant Lautz only the one accusation of his being coresponsible for the criminal procedure carried through before the People’s Court. This brings me to the third erroneous supposition on which the indictment against Lautz is based. It is the fact that the prosecution in its indictment of Lautz, as well as the other Reich public prosecutors under indictment here, obviously started from the assumption that the function and position of a German public prosecutor are the same as that of the prosecuting authority in Anglo-American criminal procedure. As will be proved by the evidence of the defense the position of public prosecutor in the German criminal procedure as well as the position of the prosecution in general in European jurisdiction always has been and still is today fundamentally different from that of the prosecution in Anglo-American jurisdiction. The evidence will prove that the position of a German public prosecutor in relation to the law, the Ministry of Justice and the court in general, as well as his function in individual criminal trials always have been such that he cannot be made responsible in criminal law for the sentences and their execution, neither objectively nor subjectively. The indictment in the case in question is based among other things on the general principles of penal law, such as they are contained in the penal laws of all civilized nations. As an example of this, the prosecution has quoted legal statements by the judges Stephen and Holmes in its verbal indictment. These legal statements concerning penal responsibility are not complete however. I shall prove by further quotations from legal statements by these two judges, that also according to Anglo-American conceptions the German prosecutor is not responsible before criminal law for the sentences, provided one starts from the position which the public prosecutor always held in relation to the law, the Ministry of Justice and the court, and from the functions which he carried out in accordance with German law at all times in individual criminal trials. Although I am convinced by virtue of this legal position that defendant Lautz cannot be made responsible before criminal law for the sentences pronounced by the People’s Court, I shall, nevertheless, help to prove by my submission of evidence that the People’s Court was an unobjectionable institution; that any trial before it gave the defendants every guaranty of justice; and that the sentences of the People’s Court and their execution did not constitute any violation of international law, of the general principles of penal law, or of article II of Control Council Law No. 10. I furthermore shall prove that defendant Lautz had nothing to do with penal administration. It will be proved that the institutes for penal administration were not subordinated to him and that he had no possibility of influencing them or penal administration in any way.

G. Opening Statement for Defendant von Ammon[78]

DR. KUBUSCHOK: May it please the Tribunal. The prosecution has submitted no evidence connecting the defendant von Ammon with paragraphs 10, 16, 22, and 28 of the indictment. The defense will therefore deal only with the count concerning the NN matters while disputing the legal admissibility of the accusation of conspiracy. The defense will explain the origin and the legal basis of the NN regulations. It will be shown that the legal authorities participated in the work on the NN matters only to such an extent and so long as they were delegated to do so by the competent Wehrmacht authorities.

As regards the participation of the defendant von Ammon in this department which has been allocated to him in the course of the allocation of duties in the Ministry, the following will be dealt with: von Ammon’s position as an expert, who was subordinated to the subsection chief, Ministerialdirigent Mettgenberg; section chief at first Ministerialdirektor Crohne, later Ministerialdirektor Vollmer; Under Secretary, at first, Freisler and later Klemm; and lastly the Minister himself. If, therefore, von Ammon only ranked fifth in seniority, then this fact determines also his authority to sign and his actual responsibility. All important matters required the signature of, at least, the subsection chief, in most cases that of the section chief. We therefore find that none of the letters from the Reich Ministry to another office, which have been submitted by the prosecution, were signed by von Ammon.

I shall prove that von Ammon did not participate in drawing up the basic legal regulations. Thus, the legal argument arises whether a person who has merely to carry out administrative tasks without thereby causing a wrong to be done in the sense of sufficient causality by this activity itself, bears a criminal responsibility for this.

I shall describe how the NN proceedings were carried out and shall show that no special regulations were issued restricting the proper trial beyond the secrecy decreed by law. As can be seen from the circular of 6 March 1943, Document NG-269, Prosecution Exhibit 319[79] submitted by the prosecution, care was taken that the prisoners did not forego their otherwise customary rights, as long as the purpose of this secrecy was not endangered. I shall disprove the view of the prosecution that persons who had obviously not committed any act of resistance, were treated in the same way as guilty NN prisoners. I shall explain that, on principle, the Wehrmacht authorities in the occupied territories handed over only such cases to the legal authorities in Germany where the evidence was materially complete, as the witness Lehmann testified earlier. It will be proved that even where the innocence of the prisoner was established only in Germany, there was the possibility of being released to the occupied territories.

Evidence will be produced from the proceedings of the courts that the NN trials were in no way conducted differently from other trials, except for the restrictions for reasons of secrecy. It will particularly be shown that the difficulties in procuring evidence from the occupied territories favored the defendant insofar as he was protected by the principle of _in dubio pro reo_, i. e., the defendant had to be acquitted in case of doubt where the evidence in support of the indictment was incomplete. I shall endeavor to give a summary of the sentences given in actual practice.

In regard to the handing over of NN prisoners to the police, no responsibility can be attached to the defendant von Ammon for participation.

Documents will prove that the defendant von Ammon always showed a tendency towards leniency, considering the prevailing circumstances and the extent of his competence. This will also be clearly in keeping with the whole personality of the defendant. We shall find him an official who entered the ministerial career solely on the strength of his expert knowledge immediately after he passed his legal examination with special distinction, the type of man with a sense of duty who lives only for his work. Von Ammon was not an active National Socialist, this is confirmed by his entering the Party only in 1937, comparatively late for a ministerial official. I shall produce testimonials characterizing the defendant as a deeply humane and strictly religious man. I feel also that the trial will enable the Tribunal to form their own impression in this respect. In these circumstances it will have to be examined all the more carefully whether the evidence shows that this man is guilty of a crime against humanity irreconcilable with his character.

H. Opening Statement for Defendant Rothaug[80]

DR. KOESSL: May it please the Tribunal. If I correctly understand the unuttered yet cogent logic of the charges listed in the indictment, the effect and example of that legal system to which the prosecution tries to attach the stigma of a criminal government institution begins with the Rothaug case. The evidence against him, out of proportion considering the entire framework of the indictment is in contrast to his mere functional position, based on his activities as judge and prosecutor.

Although I am aware of the fact that such purely external disproportion between the importance of the matter on the one hand and the deployment of means on the other hand, as seen from a higher point of view, may cause a shifting of the focus in the eyes of a superficial observer, I am however certain that the desire for a true and just sentence will prevent the overlooking of the limitations and degrees of responsibility.

Yet the direction of the main thrust of the prosecution has become rather clearly discernible by the few submitted documents, out of thousands of files. We face it with a clear conscience, calm and courageously, for documents do not lie.

What distresses us is the evidence submitted in order to impress and otherwise help the main thrust, evidence which has been available in accessible localities and without difficulties, with incriminating tendencies, sometimes even willfully incriminating, and which has offered in hundreds of variations and superlatives an almost unfathomable jungle of assertions, estimates, and opinions.

The mobilization of this evidence compels us to handle the most enervating and tedious detail for truth’s sake.

I expect to relieve us of much of this wearisome detail by first treating and solving problems, touched upon by coarsening efforts, misrepresentations, distortions, and half-truths in their entirety and from the broadest viewpoints possible.

At this point in the proceedings, I do not wish to put to the fore legal questions within the framework of the defense, such as the concept of conspiracy or the subjective fact and the confines of the crimes against humanity.

On the other hand, it will be unavoidable within the frame of the producing of evidence to convince the court that the entirely individual biased power position between the state on the one hand and the individual judge or prosecutor on the other hand in accordance with the regulations governing German civil servants allows no scope in the field of the application of the law for a simultaneously existing intellectual alliance in the sense of a conspiracy, but that a connection of this power position, in full knowledge of its legal nature, with a simultaneous assumption of a conspiracy would mean a contradiction in itself. Here it becomes necessary to prove that the activity of a judge at the Special Court or a Reich public prosecutor is limited to the application of the law which is based on the official Reich legislation in the field of criminal law. I shall demonstrate that this Reich legislation in all its harshness has, in its purpose, neither lost nor limited its character of purely criminal law and that, on this point, it has not been misinterpreted as clearly proved by the literature on the subject and the jurisdiction by the supreme judicial authorities and others.

Here must be proved a fact evident in itself, namely that judges and prosecutors in the same position as Rothaug were never and in no context expected to have objects alien to the field of criminal law in carrying out their official duties.

Records of sentences already submitted and others still to be submitted will prove that this had in no way been intended.

This touches on the legal question, whether official functions resting on the official Reich legislation which, up to this very moment, is covered in international law by the principle of nationality and sovereignty, functions which were carried out in public, may be conceived as actions of persecution on racial, religious, or political grounds and may be treated as being on the same level as actions which were carried out secretly and without control, and which could be recognized as wrong already by their cruelty and severity by every person concerned as offending against justice and law.

Here, I wish to convince the Court that offenses of the latter kind, if they ever did happen within the legal sphere could and should only be known to the immediate participants but not to persons who held positions like the defendant Rothaug.

In the concrete reflection on the relationship to the law of the position of judges and likewise prosecutors, it is of decisive importance to elucidate in public law that the German judge, under any regime, had merely to examine whether a law had been announced in accordance with rules and regulations whereas an examination from other points of view was outside his jurisdiction. In this context it is further necessary to elucidate the significance and import of the judge being subject to the law and the meaning of a sentence in the sense of German public law especially in relationship to the legislative and executive power in an authoritarian state, thus to the governing power.

Here we cannot omit to clarify the basic legal principles and corresponding regulations which determine this relationship or to prove the practical application based on files. Thus, the question of the judge’s subjection to the law calls for a clarification of the consequences on his task resulting thereof. It necessitates the recognition of the law as a form of expression of justice, as part of the legal system and as immediate emanation of the ruling state doctrine at any given time, as well as the recognition of the judge’s actual position in this legal system. Therefore, it is also necessary to show in a condensed form the general basis and principle of the legal doctrine which since 1933 was decisive for the German judge in establishing the intentions of the law in a concrete individual case. The accusations which have been made in general or in individual cases concerning Rothaug’s method of handling proceedings or which have been connected with such proceedings become meaningless or lose in importance if their explanation is tackled in general from the angle of the correct basic procedure regulations or from the available records of individual proceedings. This leads, as a matter of course, to a basic discussion of the individual cases which have been particularly stressed by the prosecution, and which lie in the direction of the prosecution’s main thrust. No one knows better than the judge the human inadequacy and fallibility because by the very nature of his profession he deals with that aspect of life. Thus, he would be the last to believe himself immune from human error, least of all at a time of intellectual revolution and under the effect of the very highest wartime pressure. Nevertheless, I beg the Tribunal not to think me presumptuous if I try to prove that the sentences pronounced by the Special Court at Nuernberg were in keeping with the basic principles of jurisdiction of the Reich courts, and that among thousands of cases only very rarely one has been successfully contested or otherwise amended.

In this connection, one could discuss the outward development of the judgment and all those legal questions allegedly discussed in individual cases or in general in Rothaug’s circle during the course of 6 years.

The submitted records of individual proceedings provide plenty of opportunity to form an opinion on all individual questions thrown up by this trial especially on the aim of judicial activity, the sentence in its relationship to the requirements of the proceedings and its assailability in the interest of legal security, from which it will clearly emerge that the sentence, even that of the Special Court, was only an intermediate and by no means the final stage of the work of ascertaining justice either when finding the defendant guilty or when pronouncing the sentence. Thereby it may be possible too, to clear up the linguistically unfortunate term of “psychological producing of evidence” which has found its way into this trial. Thus, the legal and psychological task of the presiding judge in accordance with German criminal law will have to be explained, and it will have to be shown how Rothaug confronted his task, solved it in the practical legal procedure, and which objections he had to face in connection with the results of his work by departments which in the course of their own duties had to examine, control and, if necessary, correct.

Furthermore, it will be my task to prove that in Rothaug’s official working sphere without exception all defendants without consideration of nationality, national origin, or race, were granted the same legal guaranties as any German according to German criminal law, thus that no case was treated as an exception to the general rule, that this was also done in all proceedings against Poles, who apart from one outstanding case bearing a special character, were the only foreigners against whom Rothaug proceeded.

This, generally and in particular, touches upon the problem which determines the judge’s and the prosecutor’s position to the legislation for Poles from an objective legal point of view, of which have to be discussed the actual and legal basis and aspects from and through which the German judge and prosecutor whether in the North, South, East, or West, had to view matters under the spell of the German legal doctrine.

Here the greatest importance has to be attached to the kind of offense in question, the place of the crime and last, but not least, the question whether these Poles had really been deported and had not voluntarily, accepting certain conditions, placed themselves at the disposal of the German war power.

In this context, we cannot omit to discuss the principles which the highest judicial authorities have pronounced in connection with this whole complex. Here I must leave the justification of the legislation as such to others who are responsible for it.

To this, from a psychological viewpoint, belongs the discussion of Rothaug’s actual basic attitude toward the Jewish problem in order to do away with all insinuations which have willfully and on purpose been made during this trial by persons who seem to have cause to stress and demonstrate their innocence in this connection by calling “catch the thief.”

Another complex fitted into the direction of the main thrust of the prosecution is Rothaug’s alleged political power position, inflated so as to appear almost like a myth, which to begin with is supported by an assertion which is the object of count four of the indictment. I shall prove that Rothaug’s duties did not extend beyond the professional organization of the Rechtswahrerbund and that, beyond that, he held no political post, and that in particular he did not belong anywhere, at any time, and in any function to the so-called corps of political leaders.

In this I shall take special care to reduce the case Doebig which has been brought into this context for the purpose of substantiation, to the proportions it deserves in the knowledge of the true facts of the case, as we ourselves feel urged to clear Rothaug’s real relationship to the Security Service (SD) as expressed in its principles, development, contents, and Rothaug’s inner attitude to it down to minute details.