Chapter I: broadened and redefined the concepts of high treason (2)

[408] Concerning the earlier phases of Klemm’s activities, see the footnote appearing at the beginning of the extracts from Klemm’s testimony which are reproduced above in section V C 3 b. There was still a fourth phase to Klemm’s activities, for in January 1944 he was appointed Under Secretary in the Reich Ministry of Justice.

[409] Hess landed in Scotland on 10 May 1941.

[410] 1933 Reichsgesetzblatt, 1 December 1933, part I, page 1016.

[411] Reproduced above in section C 3 d.

[412] Reproduced above in this section.

[413] Reproduced above in section C 2 a.

[414] Reproduced below in subsection E.

[415] Reproduced above in this section.

[416] Circular letter of 10 March 1944, reproduced above in this section.

[417] Reproduced above in this section.

[418] Further extracts from Rothaug’s testimony are reproduced in sections V C 1 a, V C 1 b, V E, and V F.

[419] See the opinion and judgment in the Katzenberger case (NG-154, Pros. Ex. 152), reproduced earlier in this section. Rothaug was presiding judge in the Katzenberger case.

[420] These were all prosecution witnesses and none of their testimony is reproduced herein. Their testimony is recorded in the mimeographed transcript as follows: Dr. Karl Ferber, (31 Mar, 1, 3, 8 Apr 47), pages 1312–1315, 1319–1466, 1576–1630, 1665–1746; Irene Seiler, (26 Mar 1947), pages 1025–1057; and Armin Baur, (23 May 1947), pages 3598–3606.

[421] Extracts from the pertinent article in “Der Stuermer” concerning the Katzenberger case are reproduced above in this section (NG-270, Pros. Ex. 155).

[422] Further extracts from the testimony of defendant Rothenberger appear in sections V C 1 a, V C 2 b, and V C 3 a.

[423] Reproduced in part in section V B. This document was also introduced as Document, Rothenberger 3, Rothenberger Exhibit 3.

[424] Reproduced above in this section.

[425] Document NG-392, Prosecution Exhibit 373, is not reproduced herein. It is a situation report of 5 January 1942 from defendant Rothenberger to defendant Schlegelberger. The item of this report concerning privileges of Jews in court proceedings is the following: “VII. The lower courts do not grant to Jews the right to participate in court proceedings in _forma pauperis_. The district court suspended such a decision in one case. The refusal to grant this right of participation in court proceedings in _forma pauperis_ is in accordance with today’s legal thinking. But since a direct legal basis is missing, the refusal is unsuitable. We therefore think it urgently necessary that a legal regulation or order is given, on the basis of which the rights of a pauper can be denied to a Jew.”

[426] Document NG-1106, Prosecution Exhibit 462, reproduced in part above in this section.

[427] Reproduced above in this section.

[428] In January 1944, at Thierack’s request, defendant Klemm was made Under Secretary.

[429] Document NG-1656, Prosecution Exhibit 535, above, earlier in this section.

[430] Further testimony of defendant Rothenberger denying knowledge of “final liquidation” measures of Poles and Jews is reproduced in section V C 3 a.

[431] Complete testimony is recorded in the mimeographed transcript, (9, 10, 11, 12, and 15 Sep 1947), pages 8510–8548, 8559–8805.

[432] From these official files only the opinion and sentence of the Nuernberg Special Court has been reproduced herein. See Document NG-457, Prosecution Exhibit 201, reproduced in part above in this section.

[433] Actually only the first two of these three exhibits are affidavits. Document NG-650, Prosecution Exhibit 229, is an affidavit of Associate Judge Dr. Franz Gros. Document NG-635, Prosecution Exhibit 235, is an affidavit of Associate Judge Dr. Theodor Pfaff. Gros and Pfaff were the two associate judges sitting in the Kaminska-Wdowen case with defendant Oeschey. Both were called as witnesses before the Tribunal. (Gros, 30 Apr 1947, tr. pp. 2826–2882) (Pfaff, 27 May 1947, tr. pp. 3642–3650). The third mentioned exhibit, Document NG-2245, Prosecution Exhibit 635, is a newspaper clipping of 25 August 1942. None of these three exhibits and none of the testimony of Gros and Pfaff is reproduced herein.

[434] Associate Judge Dr. Franz Gros. In addition, the second associate judge was also heard. See footnote 2.

[435] Decree concerning the Administration of Penal Justice against Poles and Jews in the Incorporated Eastern Territories, 4 December 1941, reproduced as a part of Document NG-715, Prosecution Exhibit 112, on page 632.

[436] SG 256/1943 is the file number of the Kaminska-Wdowen case. See Document NG-457, Prosecution Exhibit 201, reproduced in part above in this section.

[437] Counsel refers to the two associate judges in the case, both of whom testified in the justice trial.

[438] Reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 193.

[439] Decree of 5 September 1939, reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 188.

[440] Complete testimony is recorded in mimeographed transcript, 15 and 16 September 1947, pp. 8841–8962.

[441] Reproduced above in this section.

[442] Decree of 1 July 1943, reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 685.

[443] The defendant Altstoetter, as this time a Ministerial Director, was Chief of Department VI of the Reich Ministry of Justice. Department VI was concerned with civil law; commercial and economic law; racial legislation; public administrative law and international law; international law and international treaties; constitution of the courts; and administration of civil law.

[444] The State in its capacity as carrier of rights and duties of a financial-legal nature.

[445] Document NG-900, reproduced above in this section.

[446] Lieutenant General Rudolf Lehmann was head of the armed forces legal section. Lehmann also had the title of judge advocate general (Generaloberstabsrichter) and Ministerialdirektor. Lehmann, whose name comes up in ensuing documents, was sentenced to 7 years’ imprisonment by Tribunal V in the High Command Case. Extracts from Lehmann’s testimony concerning the Night and Fog decree appear near the end of this section and more lengthy testimony by Lehmann on the same and related subjects appears in the materials on the High Command Case, United States _vs._ Wilhelm von Leeb, et al., Volumes X-XI, this series.

[447] This decree was the Night and Fog decree (1733-PS, Pros. Ex. 303) reproduced immediately below.

[448] This implementation decree is contained as the enclosure to Document 669-PS, Prosecution Exhibit 305 reproduced below after the Night and Fog decree.

[449] Distribution appears at end of document.

[450] Sometimes referred to as Document 665-PS. See transcript, 21 April 1947, page 2440.

[451] Defendant Schlegelberger testified that he signed the proposed executive order and that it was the same as the draft submitted in the document book, i.e., the draft enclosed hereto. See extracts from the testimony of defendant Schlegelberger reproduced later in this section.

[452] SS General Pohl, Chief of the SS Economic and Administrative Main Office, and a number of his subordinates, were tried in the Pohl Case (United States _vs._ Oswald Pohl, et al., Vol. V, this series).

[453] Request addition of case, as soon as available settled. [Signed] Ebersberg 12 Sept.

[454] Document NG-232, Prosecution Exhibit 308, reproduced earlier in this section.

[455] Goebel was president of the Essen Special Court and also held the title of District Court Director.

[456] Items _a_ and _b_ crossed out in original document.

[457] Bracketed excerpt is part of handwritten note partially illegible on document.

[458] The enclosures were not a part of the document received in evidence.

[459] (in the case of Breslau as of 31 March 1944)

[460] This document was introduced in evidence during the cross-examination of defendant von Ammon. See extracts from his testimony reproduced at the end of this section.

[461] Complete testimony appears in the mimeographed transcript (23, 24 Apr. 47), pages 2586–2643.

[462] This affidavit is not reproduced herein.

[463] Extracts from the testimony of the defendant Schlegelberger have been reproduced above in several sections, including IV E, V B, V C 2 A, V D 2, and V E.

[464] Reference is made to the draft contained in Document NG-077, Prosecution Exhibit 306, a letter of 16 December 1941, from the Reich Ministry of Justice. This document is reproduced earlier in this section.

[465] Trial of the Major War Criminals, op. cit., volume I, page 232 and following.

[466] Special jurisdiction of the SS was established by a decree of 17 October 1939, entitled “Decree on Special Jurisdiction in Criminal Proceedings against Members of the SS and Members of Police Formations on Special Tasks.” This decree (Klemm 29, Klemm Ex. 29) is reproduced in section IV B.

[467] Judge Harding refers to Article 1 which with other parts is reproduced as Document Klemm 29, Klemm Ex. 29 on page 190.

[468] This decree is reproduced as a part of Document NG-715, Prosecution Exhibit 112, on page 205.

[469] The entire testimony appears in the mimeographed transcript (1–4 Aug 1947), pages 6377–6473.

[470] Document NG-988, Prosecution Exhibit 510 consists of over one hundred mimeographed pages, dealing with the organization of Departments III, IV, V, and VI of the Reich Ministry of Justice. It is not reproduced herein.

[471] Document NG-232, Prosecution Exhibit 308, reproduced above in this section.

[472] See, for example, Document NG-205, Prosecution Exhibit 328, a secret directive of 21 January 1944, reproduced above in this section.

[473] Document NG-077, Prosecution Exhibit 306, reproduced above in this section.

[474] Document NG-232, Prosecution Exhibit 308, reproduced above in this section.

[475] This exhibit is a draft dated 16 December 1941 which was later published as an executory decree on 6 February 1942.

[476] Document NG-486, Prosecution Exhibit 337, not reproduced herein.

[477] The testimony of defendant Mettgenberg appears in the mimeographed transcript (31 Jul–1 Aug 1947) pages 6235–6271; 6274–6362. The testimony referred to is not reproduced herein.

[478] Document NG-205, Prosecution Exhibit 328, reproduced above in this section.

[479] Document von Ammon 4, von Ammon Exhibit 2. This affidavit, except for the parts quoted, is not reproduced herein.

[480] Document NG-269, Prosecution Exhibit 319, reproduced above in this section.

[481] Document NG-255, Prosecution Exhibit 314, reproduced in part above in this section. The report referred to here is not reproduced herein.

[482] Extracts from the testimony of prosecution witness Lehmann are reproduced above in this section.

[483] Document NG-232, Prosecution Exhibit 308, reproduced above in this section.

[484] Document NG-255, Prosecution Exhibit 314, reproduced in part above in this section. This letter referred to here is not reproduced herein.

[485] Document NG-077, Prosecution Exhibit 306, reproduced above in this section. Note entry on document indicating that it was dispatched.

[486] Document NG-253, Prosecution Exhibit 317, reproduced in part above in this section.

[487] This note is a part of Document NG-253, Prosecution Exhibit 317, reproduced above in this section.

[488] Document NG-486, Prosecution Exhibit 337, not reproduced herein.

[489] Roemer’s testimony appears in the mimeographed transcript (24 Apr 1947), pages 2652–2672.

[490] The testimony of defendant Lautz appears in the mimeographed transcript (23–25, and 28 Jul 1947), pages 5761–5775; 5781–6054.

[491] Pastor Martin Niemoeller, Protestant clergyman in Berlin-Dahlen at the time of his arrest.

[492] Robert Hecker was an official of Department V (which dealt with the execution of court sentences). The chief of Department V was defendant Engert. The entire testimony of prosecution witness Hecker is recorded in the mimeographed transcript (18 Apr, 9 and 12 May, and 7 Jul 1947), pages 2363–2386, 3047–3083, 3111–3114, and 4823–4870.

[493] Document NG-737, an affidavit by Hecker, not reproduced herein.

[494] Document NG-1886, Prosecution Exhibit 546, reproduced above in this section.

[495] This letter was written before the promulgation of the Decree concerning the administration of penal justice against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941, reproduced as a part of Document NG-715, Prosecution Exhibit 112, on page 632. The first four sections of the decree also applied to Poles domiciled or residing in Poland on 1 September 1939 “and who committed punishable acts in any part of the German Reich other than the Incorporated Eastern Territories.” (Sec. XIV.)

[496] GewVVO, abbreviation for “Verordnung gegen Gewaltverbrecher”--Decree against Violent Criminals--dated 5 December 1939. Article 1 of this decree makes the death penalty mandatory for acts of “armed violence” as defined therein. The decree is reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 193.

[497] VVO, abbreviation for “Verordnung gegen Volksschaedlinge”--Decree against Public Enemies--dated 5 September 1939. Article 4 of this decree makes the death sentence possible but not mandatory. The decree is reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 188.

[498] Reference is made to the articles of the Reich Penal Code defining treason. The provisions of this code concerning “high treason” and “treason” were amended early in the Hitler regime by the law of 24 April 1934, “amending provisions of criminal law and criminal procedure.” This same law established the People’s Court with competence in treason cases. Provisions of this law defining treason are reproduced on page 169 as a part of Document NG-715, Prosecution Exhibit 112, and the provisions establishing the People’s Court are reproduced on page 23, as part of the same document. Article 91 of the Reich Penal Code, as amended by the law of 24 April 1934 reads, “(1) Whoever established contact with a foreign government or a person acting for a foreign government with the intention of causing a war or forcible measures against the Reich or other serious disadvantages to the Reich, will be punished by death. (2) Whoever established contact of the kind described in paragraph (1) with the intention of causing serious disadvantages for a national of the Reich, will be punished with hard labor for life or for not less than 5 years.”

[499] Article 2 of the Reich Penal Code, as amended by the “Law Amending the Penal Code” of 28 June 1935, introduced the principle of “creation of law by analogous application of penal laws,” and declared punishable any act “which deserves punishment according to the fundamental idea of a penal law or the sound sentiment of the people.” Extracts from this amending law are reproduced on page 176, as part of Document NG-715, Prosecution Exhibit 112. Article 91, paragraph 2, of the Reich Criminal (Penal) Code, as amended, established the principle that intentional causing of “serious disadvantages for a national of the Reich” in connection with a foreign government was treasonable. This provision, however, did not go so far as to declare that acts against “ethnic Germans of foreign nationality” could constitute treason against Germany. Hence, the discussion of Article 2 of the Reich Penal Code as amended with its provision for punishment “according to the fundamental idea of a penal law or the sound sentiment of the people” and the “creation of law by analogous application of penal law.”

[500] This decree of 4 December 1941 is reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 632.

[501] Concerning the “nullity plea,” see section V C 1 b.

[502] The decree of 5 September 1939 is reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 188.

[503] The relevant provisions of this law are reproduced on page 231 as part of Document NG-715, Prosecution Exhibit 112.

[504] The various articles of the Reich Penal Code mentioned in this sentence are all contained in the law of 24 April 1934, amending provisions of criminal law and criminal procedure. This law amended numerous articles of the Reich Penal Code. It is reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 169.

[505] This decree, entitled “Decree concerning the Administration of Penal Justice against Poles and Jews in the Incorporated Eastern Territories,” is reproduced as part of Document NG-715, Prosecution Exhibit 112, on page 632.

[506] Political organization founded by the Austrian Government in 1934 after the dissolution of the Social Democratic Party and the National Socialist Party.

[507] Reference is made to the “Law on Insidious Acts against State and Party, and for the Protection of Party Uniforms,” Document 1393-PS, Prosecution Exhibit 508, reproduced in section IV-B.

[508] Reference is made to the “Decree concerning Special Criminal Law in Wartime,” 17 August 1938, the relevant provisions of which are reproduced on page 184, as part of Document NG-715, Prosecution Exhibit 112. Article 5 of this decree is entitled “Undermining of Military Efficiency.”

[509] All italicized parts in this portion of the document are handwritten in the original.

[510] Bracketed text is crossed out in original document.

[511] Concerning this document, see extracts from the testimony of defendant Lautz reproduced below in this section.

[512] The first-mentioned law, Document 1393-PS, Prosecution Exhibit 508, is reproduced in section IV B, and extracts from the second mentioned law, as a part of Document NG-715, Prosecution Exhibit 112, on page 184. Article 2, paragraph 1 of the law of 20 December 1934 provides that “Whoever makes statements showing a malicious, inciting or low-minded attitude toward leading personalities of the State or the NSDAP, or about orders issued by them, or about institutions created by them which are apt to undermine the confidence of the people in its political leadership, shall be punished with imprisonment.” The decree of 17 August 1938 on special criminal law in wartime established and defined the new offense of “undermining of military efficiency” and makes the death sentence mandatory. In view of the different penalty under the two laws, the question of indicting a person who allegedly made defeatist remarks under the one law or the other was most significant.

[513] Concerning Judges’ Letters, see the materials in section V C 3 b.

[514] A town west of Smolensk where a mass grave of 10,000 Polish army officers was found. See Trial of Major War Criminals, op. cit., volume XXIII, page 426.

[515] The reference is to the act of 20 December 1934, which does not provide for the death penalty.

[516] The reference is to the decree of 17 August 1938, which makes the death penalty mandatory.

[517] Extracts from the testimony of defendant Schlegelberger have also been reproduced in sections IV E, V B, V C 2 a, V D 2, and V D 3.

[518] Reproduced above in this section.

[519] Extracts from the testimony of defendant Lautz are also reproduced in section C 1 b. His entire testimony is recorded in the mimeographed transcript 23–25, 28 July 1947, pages 5761–5775; 5781–6054.

[520] Decree concerning special criminal law in time of war and special emergency, 17 August 1938, reproduced in part as a part of Document NG-715, Prosecution Exhibit 112, on page 184.

[521] Document NG-1474, Prosecution Exhibit 515, is not reproduced herein. The cross-examination of Dr. Horst Guenther Franke concerning this affidavit is recorded in the mimeographed transcript, 22 September 1947, pages 9265–9280. The affiant Dr. Franke was the official in the Reich Ministry of Justice who succeeded defendant Joel in the fall of 1943 as chief of the ministry section dealing with crimes against war economy.

[522] Document NG-510, Prosecution Exhibit 97, a decree of 8 March 1943 by Thierack further defining the jurisdiction of the People’s Court in case of “subversive undermining of German military efficiency.” This decree is not reproduced herein.

[523] Document NG-671, Prosecution Exhibit 220, reproduced in part above.

[524] Prior to his assignment in the Reich Ministry of Justice, defendant Rothaug had been presiding judge of the Nuernberg Special Court.

[525] Document NG-659, Prosecution Exhibit 126, an affidavit of defendant Lautz dated 17 January 1947, is not reproduced herein.

[526] Bruno Gruenwald appeared as a prosecution witness. His testimony is recorded in the mimeographed transcript, 3 June 1947, pages 3879–3910.

[527] These exhibits are all reproduced herein in whole or in part. Document NG-676, Prosecution Exhibit 178, is a letter of 5 July 1944 from the defendant Klemm to the president of the district court of appeal and the attorney general in Stuttgart concerning cases of defeatism (sec. V C 3 b); Document NG-627, Prosecution Exhibit 474, is a letter of 1 March 1945 from defendant Klemm to the president of the district court of appeal and the attorney general in Hamburg, concerning dangerously lenient sentences (sec. V C 3 b); and Document NG-674, Prosecution Exhibit 100, is a report of a conference held in Weimar on 3 and 4 February 1944 concerning undermining morale and malicious political acts (sec. V E).

[528] Document NG-685, Prosecution Exhibit 259, reproduced in part at the beginning of this section.

[529] Document NG-595, Prosecution Exhibit 136, reproduced above.

[530] Reference is made to the law of 24 April 1934 “amending provisions of criminal law and criminal procedure,” the pertinent parts of which are reproduced on page 169 as part of Document NG-715, Prosecution Exhibit 112. This law expanded the previously existing concepts of treason and high treason.

[531] Report contained in Document NG-548, Prosecution Exhibit 347, reproduced above in this section.

[532] Complete testimony is reproduced in the mimeographed transcript (26–28 Aug 1947), pages 7649–7752, 7780–7901.

[533] Extracts from the official files in the Beck case are reproduced above in this section.

[534] Presiding Judge Brand refers to defendant Barnickel’s letter of 30 July 1943 to the Reich Chief Prosecutor at the People’s Court in which he enclosed the indictment in the Beck case. This is reproduced earlier in this section as a part of Document NG-381, Prosecution Exhibit 159.

[535] Other extracts from the testimony of defendant Rothaug appear in sections V C 1 A, V C 1 B, V D 2, and V F.

[536] Extracts from the official files in the Lopata case are contained in Document NG-337, Prosecution Exhibit 186, reproduced above in this section. The defendant Rothaug was presiding judge of the Special Court which sentenced Lopata to death upon a second trial in April 1942.

[537] At the first recess, the prosecution called Mr. Arnold Buchthal, one of the prosecution’s research analysts, as an expert witness concerning the translation and meaning of the disputed words “Polnisches Untermenschentum.” Until 1939, Buchthal had lived in Germany, Austria, and Switzerland; and German was his native language. He testified that the literal translation of “Polnisches Untermenschentum” was “Polish subhumanity;” that he had never heard the expression “Untermenschentum” used in Germany before 1933; that after 1933 the context in which the word was used was always political, referring to Jews, Czechs, Poles, or Communists. On cross-examination, Buchthal said that the word might have been used occasionally in the technical language of the criminologist, but certainly not frequently. (_Tr. 7471–7474._)

[538] For the decree establishing the nullity plea and other material concerning its application, see section V C 1 b.

[539] Document 1393-PS, Prosecution Exhibit 508, reproduced in section IV B.

[540] Reproduced as a part of Document NG-715, Prosecution Exhibit 112, on page 160.

[541] This law of 20 December 1934, Document 1393-PS, Prosecution Exhibit 508, is reproduced in section IV B.

[542] This document is discussed in extracts from the testimony of defendant Klemm, reproduced below in this section.

[543] Entire testimony is recorded in the mimeographed transcript (9 May 1947) pages 3021–3046.

[544] The reference is to Article 130a of the Reich Penal Code, which was inserted into the Code by the Law of 26 February 1876: “Imprudent Discussion of State Affairs by Ministers of Religion (Kanzelmissbrauch). 130a. A clergyman or other minister of religion who in the exercise of his calling or on the occasion of such exercise makes affairs of state a subject of his announcement or discussion in a manner endangering public peace either before a crowd or before several people assembled in a church or other place assigned for religious meetings, shall be punished by imprisonment or confinement in a fortress not to exceed 2 years. A similar punishment shall be imposed upon a clergyman or minister of religion who, in the exercise of his calling or on the occasion of such exercise, issues or distributes writings in which affairs of state are made the subject of announcement or discussion in a manner endangering public peace.”

[545] Further extracts from the testimony of defendant Rothaug appear in sections V C 1 a, V C 1 b, V D 2, and V E.

[546] Dr. Karl Ferber’s testimony is recorded in the mimeographed transcript (31 Mar., 1, 3, 8 Apr. 1947), pages 1312–1315, 1319–1466, 1576–1630, 1665–1746. Ferber was a district court director (Landgerichtsdirektor) and associate judge of the Nuernberg Special Court. He was called a prosecution witness. Ferber referred to the case of a second Catholic Priest named Froehlich who had buried a Pole in Roding (Upper Palatinate), mimeographed transcript, pages 1352–1354, 1743–1744.

[547] The text of this law, Document 1393-PS, Prosecution Exhibit 508, is reproduced above in section IV B.

[548] Reference is made to Alfred Rosenberg who was tried and sentenced to death by the International Military Tribunal. See Trial of the Major War Criminals, _op. cit._, Volumes I-XLII.

[549] The text of article 130a of the Reich Penal Code is reproduced in a footnote earlier in this section. The Insidious Acts Law of 20 December 1934, Document 1393-PS, Prosecution Exhibit 508, is reproduced in section IV B.

[550] Further extracts from the testimony of the defendant Klemm appear in sections V C 1 A, V C 3 B, V C 3 D, and V D 2.

[551] Reproduced above in this section.

[552] At this time the defendant Klemm was Under Secretary in the Reich Ministry of Justice.

[553] Tr. pp. 10587–10604, 18 October 1947.

[554] Document NG-414, Prosecution Exhibit 252, has not been reproduced in this volume because of its great length and because it has been impossible, in view of space limitations, to include any considerable amount of evidence concerning clemency matters--a topic frequently in issue in the Justice Case. The document in question is 142 pages in the original German and 162 pages in the English translation. It consists of file notes of the Reich Ministry of Justice concerning “Reports to the Minister of Justice,” “Reports to the Under Secretary” (Staatssekretaer), and “Death Sentence Reports” for the following dates: 24 and 27 January 1944; 10, 22, and 29 February 1944; 8, 17, and 29 March 1944; 5, 18, and 26 April 1944; 3, 12, and 31 May 1944; 2, 8, 16, 21, and 30 June 1944; 2 and 17 August 1944; 22 and 29 September 1944; 5, 12, 19, and 27 October 1944; 10, 16, and 29 November 1944; 7, 15, and 21 December 1944; and 4, 10, 17, and 24 January 1945. The “Death Sentence Reports” list the names (usually only the family name) of persons sentenced to death, dividing the death sentences into “doubtful” and “clear cut” cases, and grouping the sentences mainly under the following categories: “high treason cases,” “treason cases,” and cases involving “undermining the military efficiency.” On the reports a diagonal line was drawn indicating that the death sentence was confirmed. For example, the list of 17 January 1945, mentioned specifically by the defendant Klemm in his final statement, shows the following diagonal lines in the category “high treason cases.” (For typographical reasons, the diagonal lines have here been indicated before the respective letter or figure, whereas on the original document, the diagonal lines were drawn through them.)

/a. _doubtful_
Hauke Death
Ritter Death
Schellenberger Death
Giezelt Death
/b. _clear cut_
/1. Hoehn Death
Schultz Death
Seiffert Death
/2. Kroeger Death
Splenemann Death
Fuebinger Death
/3. Boecker Death
Kaess Death
/4. Luedtke Death
/5. Haitzmann Death
Bueschinger Death
Hauberger Death

The document shows that between 24 January 1944 and 24 January 1945, death sentences of more than 2,500 persons were confirmed. The largest number confirmed appears on the report of 22 September 1944, 128 cases; and the smallest number appears on the report of 4 January 1945, 25 cases. The report for 17 January 1945, mentioned specifically by the defendant Klemm, shows that 49 death sentences were confirmed.

[555] All the documents referred to are reproduced in the preface portion of this volume and are not reproduced as a part of this judgment. See Table of Contents.

[556] Text is reproduced in “The Axis in Defeat,” Department of State Publication No. 2423 (Government Printing Office, Washington, D. C.), pages 24 and 25.

[557] Ibid., pages 62 and 63.

[558] Ibid, page 10 et seq.

[559] Alwyn V. Freeman, “War Crimes by Enemy Nationals Administering Justice in Occupied Territory,” The American Journal of International Law, XLI, July 1947, 605.

[560] John H. E. Fried, “Transfer of Civilian Manpower from Occupied Territory,” The American Journal of International Law, XL, April 1946, 326–327.

[561] Trial of the Major War Criminals, op. cit., judgment, volume I, page 254.

[562] Ibid., p. 218.

[563] Ibid., p. 174.

[564] Ibid., p. 219.

[565] Herbert Wechsler, “The Issues of the Nuremberg Trial,” Political Science Quarterly, LXII, No. 1, March 1947, 14.

[566] Hackworth, “Digest of International Law”, (Government Printing Office, Washington, 1940), volume 1, pages 1–4.

[567] Hyde, “International Law”, (2d rev. ed., Boston, Little, Brown & Co., 1945), volume 1, page 4.

[568] Lord Wright, “War Crimes under International Law,” The Law Quarterly Review, LXII, January 1946, 51.

[569] Hyde, op. cit., page 2.

[570] Philip C. Jessup, “The Crime of Aggression and the Future of International Law,” Political Science Quarterly, LXII (Mar 1947), No. 1, page 2, citing Journal of the United Nations, No. 58, Supp. A-A/P. V./55, page 485.

[571] Lord Wright, op. cit., page 41.

[572] Trial of the Major War Criminals, op. cit., volume I, page 218.

[573] Hyde, op. cit., pages 16 and 17.

[574] Case 5, Volume VI, this series.

[575] Trial of the Major War Criminals, op. cit., volume I, pages 254 and 255.

[576] Ibid., p. 219.

[577] The Nuremberg Trial: “Landmark in Law”; Foreign Affairs, January 1947, pages 180 and 184.

[578] Maxwell-Fyfe, foreword to “The Nuremberg Trial” (London, Penguin Books, 1947), by R. W. Cooper.

[579] Wechsler, op. cit., pages 23–25.

[580] Hyde, op. cit., volume III, page 2409.

[581] Ibid., pages 2409 and 2410.

[582] American Journal of International Law, Vol. 14 (1920), p. 117.

[583] Hyde, op. cit., page 2412.

[584] Ibid., page 2414.

[585] Ibid., volume I, pages 7 and 8.

[586] Ibid., p. 38.

[587] “Since the World War of 1914–1918, there has developed in many quarters evidence of what might be called an international interest and concern in relation to what was previously regarded as belonging exclusively to the domestic affairs of the individual state; and with that interest there has been manifest also an increasing readiness to seek and find a connection between domestic abuses and the maintenance of the general peace. See article XI of the Covenant of the League of Nations, United States Treaty, volume III, 3339.” (Hyde, “International Law,” 2d rev. ed., vol. I, pages 249–250.)

[588] Oppenheim, “International Law”, volume I, (3d ed.) (Longmans, Green & Co., London, 1920), page 229.

[589] State Department Publication No. 9, pages 153 and 154.

[590] Norman Bentwich, “The League of Nations and Racial Persecution in Germany,” Problems of Peace and War, XIX, (London, 1934), page 75 and following.

[591] Ibid.

[592] President’s Message to Congress, 1904. “The Works of Theodore Roosevelt, Presidential Addresses and State Papers”, (P. F. Collier & Son, New York), volume III, pages 178 and 179.

[593] President’s Special Message of 11 April 1898. Hyde, op. cit., volume 1, page 259.

[594] J. Bluntschli, Professor of Law, Heidelberg University, in “Das Moderne Voelkerrecht der Civilisierten Staaten,” (3d ed.) page 270 (1878). Professor Bluntschli was a Swiss national.

[595] Trial of the Major War Criminals, op. cit., volume III, page 92.

[596] Journal of the United Nations, No. 58, Supp. A-C/P. V./55, page 485; as cited in Political Science Quarterly (Mar 1947), volume LXII, No. 1, page 3.

[597] Trial of the Major War Criminals, op. cit., judgment, volume I, page 178.

[598] 1934 RGBl. I, p. 75.

[599] Law of 4 April 1933, 1933 RGBl. I, page 162.

[600] Law of 24 April 1934, 1934 RGBl. I, page 341. Most of the laws and decrees mentioned herein are reproduced as parts of document NG-715, Prosecution Exhibit 112. (See footnote on p. 231.)

[601] 1944 RGBl. I, p. 225.

[602] 1935 RGBl. I, p. 839.

[603] 1935 RGBl. I, p. 844, art. 267a.

[604] 1936 RGBl. I, p. 999.

[605] 1939 RGBl. I, p. 1455.

[606] Ibid., p. 1683.

[607] Ibid., p. 1679.

[608] 1939 RGBl. I, p. 2319.

[609] 1944 RGBl. I, p. 115.

[610] 1942 RGBl. I, p. 535.

[611] 1933 RGBl. I, p. 175.

[612] Ibid., p. 188.

[613] 1933 RGBl. I, p. 225.

[614] Ibid., p. 685.

[615] 1938 RGBl. I, p. 338.

[616] Ibid., p. 1580.

[617] 1939 RGBl. I, p. 864.

[618] 1942 RGBl. I, p. 722.

[619] This decree was also known as the “decree concerning the administration of penal justice against Poles and Jews in the Incorporated Eastern Territories.”

[620] Trials of the Major War Criminals, op. cit., judgment, volume I, page 194.

[621] Ibid., p. 197.

[622] 1941 RGBl. I, p. 722.

[623] 1933 RGBl. I, p. 136.

[624] Ibid., p. 162.

[625] 1939 RGBl. I, p. 1683.

[626] 1939 RGBl. I, p. 1679.

[627] 1940 RGBl. I, p. 405.

[628] Id.

[629] 1941 RGBl. I, p. 759.

[630] Trial of the Major War Criminals, op. cit., volume I, page 179.

[631] 1934 RGBl. I, p. 341.

[632] 1939 RGBl. I, p. 752.

[633] Id.

[634] Ibid., p. 1841.

[635] 1940 RGBl. I, p. 754.

[636] 1933 RGBl. I, p. 136.

[637] 1944 RGBl. I, p. 339.

[638] 1934 RGBl. I, p. 91.

[639] [Article 1, 4, b] Law of 28 June 1935; 1935 RGBl. I, page 844.

[640] Ibid., article 4, 1, a.

[641] “German Criminal Procedure,” by Heinrich Henkel, (Hamburg 1943) pages 440–442.

[642] 1945 RGBl. I, p. 30.

[643] 1942 RGBl. I, p. 475.

[644] Law of 28 June 1935; 1935 RGBl. I, p. 844.

[645] The three expressions “supreme justice,” “supreme law lord” and “supreme magistrate” are three different translations of the German term “Oberster Gerichtsherr.”

[646] Department of State Bulletin, 4 November 1939, page 458, cited in Hyde’s International Law, Volume 1 (2d rev. ed.), page 391.

[647] “Legal Effects of War” (2d ed.) (Cambridge, 1940), footnote on page 320.

[648] Trial of the Major War Criminals, op. cit., volume I, page 255.

[649] Ibid., p. 256.

[650] Ibid., p. 261.

[651] Ibid., pp. 267–268.

[652] Ibid., p. 273.

[653] Ibid., pp. 232–233.

[654] Ibid., p. 234.

[655] Ibid., p. 266.

[656] Trial of the Major War Criminals, op. cit., Volume I, page 266.

[657] Ibid., pp. 235–236.

[658] Ibid., pp. 222–223.

[659] Rosenberg, _Der Mythus des 20. Jahrhunderts_, (Munich 1935), page 114 (1st Ed., 1930), cited in National Socialism, Department of State Publication 1864 (U. S. Government Printing Office, Washington 1943), page 31.

[660] Ernst Kaltenbrunner, a defendant before the IMT, was sentenced to death. See Trial of the Major War Criminals, op. cit., volume I, page 365.

[661] 1938 RGBl. I, p. 1581.

[662] Complete testimony of defense witness Hans Heinrich Schulz is recorded in the mimeographed transcript, 25 September 1947. (Tr. pp. 9530–9552.)

[663] Complete testimony of defense witness Hans Heinrich Lammers is recorded in the mimeographed transcript 22 July 1947, pages 5582–5620.

[664] Hyde, op. cit., volume III (2d rev. ed.), page 1714.

[665] Trial of the Major War Criminals, op. cit., volume I, pp. 234, 235, and 237.

[666] 1935 RGBl. I, page 844.

[667] This date is evidently a recording error, in as much as the decrees mentioned were published in 1940 and 1941.

[668] General Warlimont was a defendant in the High Command Case (United States _vs._ Wilhelm von Leeb, et al., Case 12, vols. X-XI, this series).

[669] The reference is to the highest and higher leaders of the National Socialist German Workers’ Party.

[670] Complete testimony of defense witness Hans Hartmann is recorded in the mimeographed transcript, 17 September 1947, pages 8999–9068.

[671] Popular name for the decree against public enemies.

[672] Trial of the Major War Criminals, op. cit., volume I, page 273.

[673] Ibid.

[674] 1944 RGBl. I, page 339.

[675] Trials of the Major War Criminals, op. cit., volume I, pages 259–261.

[676] Ibid., pp. 270–273.

[677] Ibid., p. 218.

[678] Ibid., pp. 216–218.

[679] Supreme Court decision re Yamashita; 66 S. Ct. 340.

[680] Trial of the Major War Criminals, op. cit., volume I, page 218.

[681] Trial of the Major War Criminals, op. cit., volume I, page 226.

[682] Session of the Tribunal on 4 December 1947, Transcript pages 10934–10936.

[683] At the time this volume was nearing completion, further action on these sentences was taken by the United States High Commissioner for Germany. His decision upon review of these sentences will be included in section XXV, volume XV, this series.

[684] In Berlin--Kammergerichtspraesident.

[685] The German Civil Service is divided into two main groups: Beamte (officials) and Angestellte (employees). Beamte are classified according to four levels: Beamte of “unteren Dienstes” (lower level), “einfachen mittleren Dienstes” (intermediate level), “gehobenen mittleren Dienstes” (upper level), and “hoeheren Dienstes” (higher level). Angestellte are mainly custodial employees, workers, and minor clerks, but also include some specialists who do not have Beamten-status.

[686] Officials of the “lower level” are usually clerical employees and are usually addressed with the title of their position (such as “Buerovorsteher”--chief clerk).

[687] Usually carries a prefix such as “Justiz,” “Regierung,” “Verwaltung,” “Ministerial,” etc.

[688] Equivalent to a senior colonel.

[689] For detailed information on German court system see “A Brief Summary of the Court System,” in section IV C 2.

[690] Term “Assessor” is also used in connection with probational appointments in the administrative career service and the teaching career in university-level institutions.

[691] Literal translation of “Rechtswahrer” is “one who guards the observation of law.”

[692] For offenses included in “Wehrkraftzersetzung” see NG-715, Prosecution Exhibit 112, in section IV B, pages 192 and 193.

Transcriber’s Notes:

1. Obvious printers’, punctuation and spelling errors have been corrected silently.

2. Where hyphenation is in doubt, it has been retained as in the original.

3. Some hyphenated and non-hyphenated versions of the same words have been retained as in the original.

4. Superscripts are represented using the caret character, e.g. D^r. or X^{xx}.

5. Italics are shown as _xxx_.

6. Bold print is shown as =xxx=.