United States of America v. Alstötter et al.
("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948).
The Justice Trial is one of the most interesting of the Nuremberg trials. The trial of sixteen defendants, members of the Reich Ministry of Justice or People's and Special Courts, raised the issue of what responsibility judges might have for enforcing grossly unjust--but arguably binding--laws. The trial was the inspiration for the movie Judgment at Nuremberg. The movie presented a somewhat fictionalized view of the trial.
Trying Body: Military Tribunal III
Arraignment Date: Feb. 17, 1947
Trial Opened: March 5, 1947
Summations Concluded: October 18, 1947
Verdicts Returned: Dec. 3 and 4, 1947
Verdict: Ten of the sixteen defendants convicted, four acquitted, one died before verdict, one mistrial due to serious illness during trial.
Sentence: Four defendants sentenced to life, the other six convicted defendants sentenced to terms ranging from five to ten years.
No one contends, of course, that German judges and prosecutors destroyed as many lives as did the SS, Gestapo, or other agencies of the Nazi machine. Their victims number in the thousands, not the millions. A judge who knowingly sentenced even one innocent Jew or Pole to death was, however, guilty in the eyes of the prosecutors and judges at the Justice Trial in Nuremberg. There would be no "only a couple of atrocities" defense.
Ingo Muller, in Hitler's Justice: The Courts of the Third Reich, provides a penetrating picture of the workings of the criminal justice system in Nazi Germany. Muller's analysis of the evidence suggests that most German judges--contrary to common opinion--were ultraconservative nationalists who were largely sympathetic to Nazi goals. The "Nazification" of German law occurred with the willing and enthusiatic help of judges, rather than over their principled objections.
Many judges appointed before the Nazi rise to power--because of the economic and social circles that judges were drawn from--had views that were quite compatible with the Nazi party. A few Jewish judges sat on the bench when the Nazis assumed power--but only a very few. A 1933 law removed those few Jewish judges from officee.
Only a handful of the non-Jewish judges demonstrated real courage in the face of Nazi persecution and violations of civil liberties. One who did was Lothar Kressig, a county court judge who issued injunctions against sending hospital patients to extermination camps. When ordered to withdraw his injunctions, Kreyssig refused. He also attempted to initiate a prosecution of Nazis for their role in the program. Kreyssig, under pressure, eventually resigned.
In the Justice trial, American prosecutors sought to demonstrate a pattern of judicial and prosecutorial support for Nazi programs of persecution, sterilization, extermination, and other gross violations of human rights. In order to prove an individual defendant guilty, prosecutors had to show that the defendant consciously furthered these human rights abuses.
The violations of human rights progressively worsened as the Nazis solidified power and began their wars of aggression. In 1938, laws were adopted that imposed different levels of punishment for the same crime--a tougher punishment for Jews, a lighter one for other Germans. By 1940, sterilization programs were underway. By 1942, the "Final Solution," the wholesale extermination of Jews and other persons deemed undesirable, was in full swing.
Two features of German law combined to facilitate the Nazi's evil schemes. The first was that German law, unlike the law of the United States and many other nations, lacked "higher law" (constitutional or ethical standards) that might be resorted to by judges to avoid the harsh effects of discriminatory laws adopted by the Nazi regime. The second difficulty was that there was no separation of powers between the executive and judicial branches of government. Hitler declared, and the Reichstag agreed, had the power "to intervene in any case." This was done, legally, through what was called "an extraordinary appeal for nullification of sentence." The nullification invariably resulted in a sentence the Nazis thought was too light being replaced by a more severe sentence, often death. If these features of German law weren't enough, the Nazis also assigned a member of the Security Service to each judge to funnel secret information about the judges back to Hitler and his henchmen.
The excerpt from the decision of the tribunal (printed on this page) includes the judgments for two of the Justice trial defendants, Franz Schlegelberger and Oswald Rothaug. In the movie Judgment at Nuremberg, Burt Lancaster played the role of a German judge (Ernst Janning) that was based loosely on the prosecution of Schlegelberger.
Schlegelberger is the more sympathetic of the two defendants. He served in the Ministry of Justice from 1931-1942. For the last seventeen months of his service, Schlegelberger was Director of the Ministry of Justice. He wrote several books on the law and was called at the time of his retirement, "the last of the German jurists." Schlegelberger argued in his defense that he was bound to follow the orders of Hitler, the "Supreme Judge" of Germany, but that he did so only reluctantly. Schlegelberger pointed out that he did not join the Nazis until 1938, and then only because he was ordered to do so by Hitler. Schlegelberger claimed to have harbored no ill-will toward the Jews. His personal physician, in fact, was Jewish. In his defense, he also stressed that he resisted the proposal that sent "half Jews" to concentration camps. Schlegelberger suggested giving "half Jews" a choice between sterilization and evacuation. He also argued that he continued to serve as long as he did because "if I had resigned, a worse man would have taken by place." Indeed, once Schlegelberger did resign, brutality increased.
In its decision, the Justice trial tribunal considered what it called Schlegelberger's "hesitant injustices." The tribunal concluded that Schlegelberger "loathed the evil that he did" and that his real love was for the "life of the intellect, the work of the scholar." In the end he resigned because "the cruelties of the system were too much for him." Despite its obvious sympathy with Schlegelberger's plight, the tribunal found him guilty. It pointed out that the decision of a man of his stature to remain in office lent credibilty to the Nazi regime. Moreover, Schegelberger signed his name to orders that, in the tribunal's judgment, constituted crimes. One case described in the decision involved the prosecution in 1941 of a Jew (Luftgas) accused of "hoarding eggs." Schlegelberger gave Luftgas a two-and-a-half-year sentence, but then Hitler indicated that he wanted the convicted man executed. Although Schlegelberger may well have protested, he signed his name to the order that led to the execution of Luftgas. Another case cited by the tribunal concerned a remission-of-sentence order signed by Schlegelberger. Scheleberger explained in his decision that the sentence imposed against a police officer who was convicted of beating a Jewish milking hand would have been bad for the morale of officers.
Although Sclegelberger received a life sentence in Nuremberg, he was released from prison in 1951 and received a generous monthly pension until his death.
The tribunal found "no mitigating circumstances" in the case of Oswald Rothaug. In its decision, the tribunal calls Rothaug "a sadistic and evil man." Rothaug, unlike Schlegelberger, had no reservations about enthusiatically supporting the Nazi pattern of human rights abuses. One case used by the tribunal to illustrate Rothaug's guilt involved a sixty-eight-year-old Leo Katzenberger, head of the Nuremberg Jewish community. Katzenberger stood accused of violating Article 2 of the Law for the Protection of German Blood. The law forbid sexual intercourse between Jews and other German nationals. Katzenberger was accused of having sexual intercouse with a nineteen-year-old German photographer, Seillor. Both Katzenberger and Seillor denied the charge. Katzenberger described the relationship between the two of them as "fatherly." The most incriminating evidence the prosecution produced was that Seiler was seen sitting on Katzenberger's lap. That, in Rothaug's view, was enough: "It is sufficinet for me that the swine said that a German girl sat upon his lap!" Rothaug arranged to have Katzenberger's trial transferred to a special court. In the special court, high-ranking Nazi officials--in uniform--took the stand to express their opinions that Katzenberger was guilty. Rothaug's real trick, however, was getting Katzenberger's punishment increased from life in prison (the normal punishment for violations of Article 2) to death. This he did by a creative construction of a law that prescribed death for breaking certain laws "to take advantage of the war effort." Rothaug argued that death was the appropriate punishment for Katzenberger because he exploited the lights-out situation provided by air raid precautions to develop his "romance" with Seiler.
Most German judges over-identified with the Nazi regime. They came to see themselves as fighters on the internal battlefront, with the responsibility to punish "the enemy within."
Richard A. Posner, federal court of appeals judge and one of the most astute observers of the legal scene, noted that it is not only German judges that might over-identify with popular causes. In The New Republic, Posner wrote:
Perhaps in the fullness of time the growing of marijuana plants, the "manipulation" of financial markets, the bribery of foreign government officials, the facilitating of the suicide by the terminally ill, and the violation of arcane regulations governing the financing of political campaigns will come to be no more appropriate objects of criminal punishment than "dishonoring the race." Perhaps not; but [the story of the German judges] can in any event help us to see that judges should not be eager enlisters in popular movements of the day, or allow themselves to become so immersed in a professional culture that they are oblivious to the human consequences of their decisions."
[Note: The movie Judgment at Nuremberg was based on this set of cases.]
We next approach the problem of the construction of C.C. Law 10, for whatever the scope of international common law may be, the power to enforce it in this case is defined and limited by the terms of the jurisdictional act.
The first penal provision of Control Council Law No. 10, with which we are concerned is as follows:
“Article II, l.—Each of the following acts is recognized as a crime: . . . (b) War crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”
The scope of inquiry as to war crimes is, of course, limited by the provisions, properly construed, of the Charter and C.C. Law 10. In this particular, the two enactments are in substantial harmony. Both indicate by inclusion and exclusion the intent that the term “war crime” shall be employed to cover acts in violation of the laws and customs of war directed against non-Germans, and shall not include atrocities committed by Germans against their own nationals. It will be observed that Article VI of the Charter enumerates as war crimes acts against prisoners of war, persons on the seas, hostages, wanton destruction of cities and the like, devastation not justified by military necessity, plunder of public or private property (obviously not property of Germany or Germans), and “ill treatment or deportation to slave labor, or for any other purpose, of civilian population of, or in, occupied territory”. C.C. Law 10, supra, employs similar language. It reads:
“. . . ill treatment or deportation to slave labor or for any other purpose of civilian population from occupied territory”.
This legislative intent becomes more manifest when we consider the provisions of the Charter and of C.C. Law 10 which deal with crimes against humanity. Article VI of the Charter defines crimes against humanity, as follows:
“. . . murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
C.C. Law 10 defines as criminal:
“. . . Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other acts committed against any civilian population, or persecutions on political, racial or religious groups whether or not in violation of the domestic laws of the country where perpetrated.”
Obviously, these sections are not surplusage. They supplement the preceding sections on war crimes and include within their prohibition not only war crimes, but also acts not included within the preceding definitions of war crimes. In place of atrocities committed against civilians of or in or from occupied territory, those sections prohibit atrocities against any civilian population”.Again, persecutions on racial, religious, or political grounds are within our jurisdiction “whether or not in violation of the domestic laws of the country where perpetrated”. We have already demonstrated that C.C. Law 10 is specifically directed to the punishment of German criminals. It is, therefore, clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defense. Article III of C.C. Law 10 clearly demonstrates that acts by Germans against German nationals may constitute crimes against humanity within the jurisdiction of this Tribunal to punish. That Article provides that each occupying authority within its zone of occupation shall have the right to cause persons suspected of having committed a crime to be arrested and . . . (d) shall have the right to cause all persons so arrested . . . to be brought to trial . . . . Such Tribunal may, in case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.
As recently asserted by General Telford Taylor before Tribunal No. IV, in the case of the United States vs. Flick, et al.:
“This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10, according to the definitions contained therein, since only such crimes may be tried by German courts, in the discretion of the occupying power. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American Zone of Occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals.”
Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C.C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual”. The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.
The opinion of the first International Military Tribunal in the case against Goering, et al., lends apport [sic] to our conclusion. That opinion recognized the distinction between war crimes and crimes against humanity, and said:
“. . . in so far as the inhumane acts charged in the indictment and committed after the beginning of the war did not constitute war crimes, they were all committed in execution of, or in connection with, aggressive war and, therefore, constituted crimes against humanity.” (Trial of major war criminals, Vol. I, pp. 254-255).
The defendants claim protection under the principle nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed. By way of illustration, we observe that C.C. Law 10, Article II, 1 (b), “War Crimes”, has by reference incorporated the rules by which war crimes are to be identified. In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of those rules under the impact of changing conditions.
Whatever view may be held as to the nature and source of our authority under C.C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case.
Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth . . . .
As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C.C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the States at war with Germany.
We pass now from the forgoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutor, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning this first principle, Dr. Jahrreiss said:
“If now in the European meaning one asks about legal restrictions, and first of all one asks about restrictions of the German law, one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.”
Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “Crown Jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on Constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law, As stated by Professor Jahrreiss:
“To express it differently, whether the law has been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.”
This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:
“On the other hand, certainly there were local restrictions for Hitler under international law. He was bound by international law. Therefore, he could commit acts violating international law. Therefore, he could issue orders violating international law to the Germans.”
The conclusion to be drawn from the evidence, presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a Tribunal authorized to enforce international law, Hitler's decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.
In German legal theory, Hitler was not only the Supreme Legislator, he was also the Supreme Judge. On 26 April 1942 Hitler addressed the Reichstag in part as follows:
“I do expect one thing: that the nation gives me the right to intervene immediately and to take action myself whenever a person has failed to render unqualified obedience....”
“I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty....”
“From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”
On the same day the Greater German Reichstag resolved in part as follows:
“ . . . the Fuehrer must have all the rights postulated by him which serve to further or achieve victory. Therefore—without being bound by existing legal regulations—in his capacity as leader of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme executive chief, as supreme justice, and leader of the Party—the Fuehrer must be in a position to force with all means at his disposal every German, if necessary, whether he be common soldier or officer, low or high official or judge, leading or subordinate official of the Party, worker or employee, to fulfill his duties. In case of violation of these duties, the Fuehrer is entitled after conscientious examination, regardless of so-called well-deserved rights, to mete out due punishment, and to remove the offender from his post, rank and position, without introducing prescribed procedures.”
The assumption by Hitler of supreme governmental power in all departments did not represent a new development based on the emergency of war. The declaration of the Reichstag was only an echo of Hitler’s declaration of 13 July 1934. After the mass murders of that date (the Roehm purge) which were committed by Hitler’s express orders, he said:
“Whenever someone reproaches me with not having used ordinary court for their sentencing, I can only say: ‘In this hour I am responsible for the fate of the German nation and hence the supreme law lord of the German people’.”
The conception of Hitler as the Supreme Judge was supported by the defendant Rothenberger. We quote:
“However, something entirely different has occurred; with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge—first of all, of course, as ‘judge’ over their fate in general, but also as ‘supreme magistrate and judge’.”
In the same document the defendant Rothenberger expounded the National Socialist theory of judicial independence. He said:
“Upon the fact that the judge can use his own discretion is founded the magic of the word ‘judge’.”
He asserted that “every private and Party official must abstain from all interference or influence upon the judgment”, but this statement appears to be mere window-dressing, for after his assertion that a judge “must judge like the Fuehrer”, he said:
“In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer’. He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must upon the request of the judge give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”
Thus it becomes clear that the Nazi theory of the judicial independence was based upon the supreme independence of the Fuehrer, which was to be channelized through the proposed liaison officer from Fuehrer to judge.
On 13 November 1934, Goering, in an address before the Academy for German Law, expressed similar sentiments concerning the position of Hitler.
“Gentlemen, for the German nation this matter was settled by the words of the judge in this hour, the Fuehrer, who stated that in this hour of uttermost danger he alone, the Fuehrer elected by the people, was the supreme and only judge of the German nation.”
The defendant Schlegelberger, on 10 March 1936, said:
“It should be emphasized, however, that in the sphere of the law, also, it is the Fuehrer and he alone who sets the pace of development.”
To the same effect we quote Reich Minister of Justice Dr. Thierack, who, on 5 January 1943, said:
“So also with as the conviction has grown in these ten years in which the Fuehrer has led the German people that the Fuehrer is the Chief Justice and the Supreme Judge of the German people.”
On17 February 1943 the defendant Under-Secretary Dr. Rothenberger summed up his legal philosophy with the words:
“The judge is on principle bound by the law. The laws are the orders of the Fuehrer.”
As will be seen, the foregoing pronouncements by the leaders in the field of Nazi jurisprudence were not mere idle theories. Hitler did, in fact, exercise the right assumed by him to act as Supreme Judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.
The evidence demonstrates that Hitler and his top-ranking associates were by no means content with the issuance of general directives for the guidance of the judicial process. They tenaciously insisted upon the right to interfere in individual criminal sentences. In discussing the right to refuse confirmation of sentences imposed by criminal courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr, Lammers, Chief of the Reich Chancellery, as follows:
“When the Fuehrer has expressly requested the right of direct interference over all formal legal provisions, this is emphasizing the very importance of the modification of a judicial sentence.”'
The Ministry of Justice was acutely conscious of the interference by Hitler in the administration of criminal law. On 10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as follows:
“It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced, which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects, . . . .”
On the same date Schlegelberger wrote to Hitler in part as follows:
“In the course of the verdicts pronounced daily there are still judgments which do not entirely comply with the necessary requirements. In such cases I will take the necessary steps . . . . Apart from this it is desirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny. For this purpose it would be invaluable, if you, my Fuehrer, could let me know if a verdict does not meet with your approval. The judges are responsible to you, my Fuehrer; they are conscious of this responsibility and are firmly resolved to discharge their duties accordingly. Heil, my Fuehrer!”
Hitler not only complied with the foregoing request, but proceeded beyond it. Upon his personal orders persons who been sentenced to prison terms were turned over to the Gestapo for execution. We quote briefly from the testimony of Dr. Hans Gramm, who for many years was personal referent to the defendant Schlegelberger, and who testified in his behalf.
“Q: Do you know anything about transfers of condemned persons to the police, or to the Gestapo?
A: I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and such a man into their custody. Those orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed. These transfers, as far as I can remember, took place only during the war.”
This procedure was well-known in the ministry of Justice. Gramm was informed by the defendant Schlegelberger that the previous Reich Minister Justice, Dr. Guertner, had protested to Dr. Lammers against this procedure and had received the reply:
“That the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue.”
The only net result of the protest was that “from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.”
The witness, Dr. Lammers, former Chief of the Reich Chancellery whose hostility toward the prosecution, and evasiveness, were obvious, conceded that the practice was continued under Schlegelberger, though Lammers stated that Schlegelberger never agreed to it.
By reference to case histories we will illustrate three different methods by which Hitler, through the Ministry of Justice, imposed his will in disregard of judicial proceedings. One Schlitt had been sentenced to a prison term, as a result of which Schlegelberger received a telephone call from Hitler protesting the sentence. In response the defendant Schlegelberger on 24 March 1942 wrote in part as follows:
“I entirely agree with your demand, my Fuehrer, for very severe punishment for crime, and I assure you that the judges honestly wish to comply with your demand. Constant instructions in order to strengthen them in this intention, and the increase of threats of legal punishment, have resulted in a considerable decrease of the number of sentences to which objections have been wade from this point of view, out of a total annual number of more than 300,000.
I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures, as before.In the criminal case against the building technician Ewald Schlitt from Wilhelmshaven, I have applied through the Public Prosecutor for an extraordinary plea for nullification against the sentence, at the Special Senate of the Reich Court. I will inform you of the verdict of the Special Senate immediately it has been given.”
On 6 May 1942, Schlegelberger informed Hitler that the ten year sentence against Schlitt was “quashed within ten days and that Schlitt was sentenced to death and executed at once”.
In the case against Anton Scharff, the sentence of ten years penal servitude had been imposed. Thereupon, on 25 May 1941,Bormann wrote to Dr. Lammers: “The Fuehrer believes this sentence entirely incomprehensible * * *. The Fuehrer requests that you inform State Secretary Schlegelberger again of his point of view.”
On 28 June 1941 defendant Schlegelberger wrote Dr. Lammers:
“I am very obliged to the Fuehrer for informing me, on my request, of his conception of atonements of blackout crimes in reference to the sentence of the Munich Special Court against Anton Scharff. I shall re-instruct the presidents of the courts of appeal and the Chief Public Prosecutors of this conception of the Fuehrer as soon as possible.”
As a final illustration of a general practice, we refer to the case of the Jew Luftgas, who had been sentenced to two and one-half years imprisonment for hoarding eggs. On 25 October 1941 Lammers notified Schlegelberger: “The Fuehrer wishes that Luftgas be sentenced to death”. On 29 October 1941 Schlegelberger wrote Lammers: “***I have handed over to the Gestapo for the purpose of execution the Jew Marcus Luftgas who had been sentenced to two and one-half years imprisonment ***”.
Although Hilter’s personal intervention in criminal cases was a matter of common occurrence, his chief control over the judiciary was exercised by the delegation of his power to the Reich Minister of Justice, who, on 20 August 1942, was expressly authorized “to deviate from any existing law”.
Among those of the Ministry of Justice who joined in the constant pressure upon the judges in favor of more severe or more discriminatory administration of justice, we find Thierack, Schlegelberger, Klemm, Rothenberger, and Joel. Neither the threat of removal nor the sporadic control of criminal justice in individual cases was sufficient to satisfy the requirements of the Ministry of Justice. As stated by the defendant Rothaug, “only during 1942, after Thierack took over the Ministry, the ‘guidance’ of justice was begun. ***There was an attempt to guide the administration of justice uniformly from above.”
In September 1942 Thierack commenced the systematic distribution to the German judges of Richterbriefs. The first letter to the judges under date of 1 October 1942 called their attention to the fact that Hitler was the Supreme Judge and that “leadership and judgeship have related characters”. We quote:
“A corps of judges like this will not slavishly use the crutches of law. It will not anxiously search for support by the law, but, with a satisfaction in its responsibility, it will find within the limits of the law the decision which is the most satisfactory for the life of the community.”
In the judges’ letters Thierack discussed particular decisions which had been made in the various courts and which failed to conform to National Socialist ideology. As an illustration of the type of guidance which was furnished by the Ministry of Justice to the German judiciary, we cite a few instances from the Richterbriefs:
A letter to the judges of 1 October 1942 discusses a case decided in a district court on 24 November 1941. A special coffee ration had been distributed to the population of a certain town. A number of Jews applied for the coffee ration but did not receive it, being “excluded from the distribution per se”. The food authorities imposed fines upon the Jews for making the unsuccessful application. In 500 cases the Jews appealed to the court and the judge informed the food authorities that the imposition of a fine could not be upheld for legal reasons, one of which was the statute of limitations. In deciding favorably to the Jews, the court wrote a lengthy opinion stating that the interpretation on the part of the food authorities was absolutely incompatible with the established facts. We quote, without comment, the discussion of the Reich Minister of Justice concerning the manner in which the case was decided:
“The ruling of the district court, in form and content matter, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right toward it.”
A Richterbrief also discusses the case of a Jew who, after the “Aryanization of his firm, attempted to get funds transferred to Holland without a permit. He also attempted to conceal some of his assets. Concerning this case the judges of Germany received the following “guidance”:
“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of different but he is also of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment.”
Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the Minister that the interdependence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions. If the letters had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be “carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges’ letters are concerned”.
In a letter of 17 November 1942 Thierack instructs the judges that “in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the judges’ letters.”
Not being content with regimenting the judges and Chief Prosecutors and making them subservient to the National Socialist administration of justice, Dr. Thierack next took up the regimentation of the lawyers. On 11 March 1943 he wrote to the various judges and prosecutors announcing the proposed distribution of confidential lawyers’ letters. An examination of these letters convinced the Tribunal that the actual, though undeclared purpose, was to suggest to defense counsel that they avoid any criticism of National Socialist justice and refrain from too much ardor in the defense of persons charged with political crimes.
Not only did Thierack exert direct influence upon the judges, but he employed as his representative the most sinister, brutal and bloody judge in the entire German judicial system. In a letter to Freisler, President of the People's Court, Thierack said that the judgment of the People's Court must be “in harmony with the leadership of the State”. He urges Freisler to have every charge submitted to him and to recognize the cases in which it was necessary “in confidential and convincing discussion with the judge competent for the verdict to emphasize what is necessary from the point of view of the State”. He continues:
“As a general rule, the judge of the People’s Court must get used to regarding the ideas and intentions of the State leadership as the primary factor and the individual fate which depends on him as only a secondary factor.”
“I will try to illustrate this with individual cases:
1. If a Jew—and a leading Jew at that—is charged with high treason—even if he is only an accomplice therein—, he has behind him the hate and the will of Jewry to exterminate the German people. As a rule this will therefore be high treason and must be punished by the death penalty.”
He concludes with the following admonition to Freisler, which appears to have been wholly unnecessary:
“In case you should ever be in doubt as to which line to follow or which political necessities to take into consideration, please address yourself to me in all confidence.”
It will be recalled that on 26 April 1942 Hitler stated that he would remove from office “those judges who evidently do not understand the demand of the hour.” The effect of this pronouncement upon such judges as still retained ideals of judicial independence can scarcely be over-estimated. The defendant Rothenberger stated that it was “absolutely crushing”.
In a private letter to his brother, the defendant Oeschey expressed his view of the situation created by Hitler's interference in the following words:
“After the well-known Fuehrer speech things developed in a frightful manner. I was never a supporter of the stubborn doctrine of the independence of the judge which granted the judge within the frame of the law the position of a public servant, only subordinated to his conscience but otherwise ‘neutral’, that is, politically completely independent. * * * Now it is an absurdity to tell the judge in an individual case which is subject to his decision how he has to decide. Such a system would make the judge superfluous; such things have now com to pass. Naturally it was not done in an open manner; but even the most camouflaged form could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished and the procedures in a trial become a farce. I will not discuss who bears the guilt of such a development.”
The threat alone of the removal was sufficient to impair the independence of the judges, but the evidence discloses that measures were actually carried out for the removal or transfer of judges who proved unsatisfactory from the Party standpoint.On 29 March 1941 Schlegelberger received a letter from the Chief of the Reich Chancellery protesting against the sentence which had been imposed against the Polish farmhand Wojciesk. The court at Luenburg had recognized some extenuating circumstances in the case.
Schlegelberger was advised as follows:
“The Fuehrer urges you to take immediately the steps necessary to preclude repetition in other courts of the view of the Luenburg court.”
The final degradation of the judiciary is disclosed in a secret communication by Ministerial Director Letz of the Reich Ministry of Justice to Dr. Vollmer, also a Ministerial Director in the Department. Not only were the judges “guided” and at times coerced; they wore also spied upon. We quote:
“Moreover, I know from documents, which the Minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes summarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. This procedure is secret and the person who gives the information is not named. In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as the direct interests of the State security are concerned, nothing can be said against it, especially in wartime.”
In view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his Ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity. The doctrine that judges are not personally liable for their judicial actions is based on the concept of an independent judiciary administering impartial justice. Furthermore, it has never prevented the prosecution of a judge for malfeasance in office. If the evidence cited supra does not demonstrate the utter destruction of judicial independence and impartiality, then we “never writ nor no man ever” proved. The function of the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner.
In operation the Nazi system forced the judges into one of two categories. In the first we find the judges who still retained ideals of judicial independence and who administered justice with a measure of impartiality and moderation. Judgments which they rendered were act aside by the employment of the nullity plan and the extraordinary objection. The defendants they sentenced were frequently transferred to the Gestapo on completion of prison terms and were then shot or sent to concentration camps. The judges themselves were threatened and criticized and sometimes removed from office. To this group the defendant Ouhorst belonged. In the other category were the judges who with fanatical zeal enforced the will of the Party with such severity that they experienced no difficulties and little interference from Party officials. To this group the defendants Rothaug and Oeschey belonged.
The record contains innumerable acts of persecution of individual Poles and Jews, but to consider these cases as isolated and unrelated instances of perversion of justice would be to overlook the very essence of the offense charged in the indictment.The defendants are not now charged with conspiracy as a separate and substantive offense, but it is alleged that they participated in carrying out a governmental plan and program for the persecution and extermination of Jews and Poles, a plan which transcended territorial boundaries as well as the bounds of human decency. Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws and in atrocities, illegal even under German law, in furtherance of the declared national purpose. Others, as judges, distorted and then applied the laws and decrees against Poles and Jews as such in disregard of every principle of judicial behavior. The over acts of the several defendants must be seen and understood as deliberate contributions toward the effectuation of the policy of the Party and State. The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged. The material facts which must be proved in any case are: (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law. The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principals or accessories to the crime.
We turn to the national pattern or plan for racial extermination.
Fundamentally, the program was one for the actual extermination of Jews and Poles, either by means of killing or by confinement in concentration camps, which merely made death slower and more painful. But lesser forms of racial persecution were universally practiced by governmental authority and constituted an integral part in the general policy of the Reich. We have already noted the decree by which Jews were excluded from the legal profession. Intermarriage between Jews and persons of German blood was prohibited. Sexual intercourse between Jews and German nationals was punished with extreme severity by the courts. By other decrees Jews were almost completely expelled from public service, from educational institutions, and from many business enterprises. Upon the death of a Jew his property was confiscated. Under the provisions for confiscation under the 11th amendment to the German Citizenship Law, supra, the decision as to confiscation of the property of living Jews was left to the Chief of the Security Police and the SD. The law against Poles and Jews, cited supra (4 December 1941), was rigorously enforced. Poles and Jews convicted of specific crimes were subjected to different types of punishment from that imposed upon Germans who had committed the same crimes. Their rights as defendants in court were severely circumscribed. Courts were empowered to impose death sentences on Poles and Jews even where such punishment was not prescribed by law, if the evidence showed “particularly objectionable motives”. And, finally, the police were given carte blanche to punish all “criminal” acts committed by Jews without any employment of the judicial process. From the great mass of evidence we can only cite a few illustrations of the character and operation of the program.
On 30 January 1939, in an address before the Reichstag, Hitler, who was at that very time perfecting his plot for aggressive war, said:
“If the international Jewish financiers within and without Europe succeed in plunging the nations once more into a world war, then the result will not be the Bolshevization of the world and thereby the victory of Jewry, but the obliteration of the Jewish race in Europe.”
We quote from the writings of Alfred Rosenberg (since hanged), “High Priest of the Nazi Racial Theory and Herald of the Master Race”:
“A new faith is arising today: the myth of the blood, the faith to defend with the blood the divine essence of man. The faith, embodied in clearest knowledge, that the Nordic blood represents that mysterium which has replaced and overcome the old sacraments.” (Rosenberg, Der Mythus des 20. Jahrhunderts, (Munich, 1935), page 114 (1st ed., 1930)). (National Socialism, page 31, Department of State Bulletin).
The Rosenberg philosophy strongly supported the program of the Nazi party, which reads as follows:
“None but members of the nation (Volk) may be citizens of the State. None but those of German blood, whatever their creed, may be members of the nation. No Jew, therefore, may be a member of the nation.”
It was to implement this program that the disciminatory [sic] laws against Poles and Jews were enacted as herinabove set forth.
A directive of the Reich Ministry of Justice, signed by Freisler, dated 7 August 1942, addressed to prosecutors and judges, sets forth the broad general purposes which were to govern the application of the law against Poles and Jews and the specific application of that law in the trial of cases. We quote:
“The penal law ordinance of 4 December 1941 concerning Poles, was intended not only to serve as a criminal law against Poles and Jews but beyond that, also to provide general principles for the German administration of law to adopt in all its judicial dealings with Poles and Jews, irrespective of the role which the Poles and Jews play in the individual proceedings.The regulations of Article IX for instance, according to which Poles and Jews are not to be sworn in, apply to proceedings against Germans as well.* * *
“1. Proceedings against Germans should be carried on whenever possible without calling Poles and Jews as witnesses. If, however, such a testimony cannot be evaded, the Pole or Jew must not appear as a witness against the German during the main trial. He must always be interrogated by a judge who has been appointed or requested to do so, * * *.
“2. Evidence given by Poles and Jews during proceedings against Germans must be received with the utmost caution especially in those cases where other evidence is lacking.”
On 13 October 1942 the Reich Minister of Justice Thierack wrote to Reichsleiter Bormann, in part as follows:
“With a view to freeing the German people of Poles, Russians, Jews, and gypsies and with a view to making the Eastern territories which have been incorporated into the Reich available for settlements for German nationals, I intend to turn over criminal proceedings against Poles, Russians, Jews, and gypsies to the Reichsfuehrer SS. In so doing I base myself on the principle that the administration of justice can only make a small contribution to the extermination of members of these peoples. The Justice Administration undoubtedly pronounces very severe sentences on such persons, but that is not enough to constitute any material contribution towards the realization of the above-mentioned aim.”
With few exceptions Jews were wholly excluded from the administration of justice. In a speech before the NSDAP Congress on 14 September 1934, Hans Frank stated:
“It is unbearable to us to permit Jews to play any role whatsoever in the German Administration of Justice. * * * It will, therefore, be our firm aim to exclude Jews increasingly from the administration of the law as time goes on.”
On another occasion Frank, as President of the Academy for German Law, directed: For all future time it will be impossible that Jews will act in the name of German law. * * *”. In an order reminiscent of the “burning of the books” in medieval days, Frank also directed that the works of Jewish authors should be removed from all public or study libraries whenever possible. On 5 April 1933, the defendant, Barnickel made an entry in his diary:
“Today it is said in the newspaper that in Berlin there are about 3,500 attorneys and more than half of them are Jewish. Only 35 of them are to be admitted as-lawyers. * * * To exclude these Jewish attorneys from one day to the next means terrible brutality.”
The defense witness, Fritz Walentin, stated that in general all non-Aryan judges were removed from the administration of penal justice very soon after 30 January 1933. The evacuation of Jews to the East for extermination was in full swing at least as early as November 1941, and continued through the war years thereafter. As an illustration of the nature of this program as carried out throughout the Reich, we cite the report of the Secret State Police Main Office, Nuremberg-Furth; Branch Office Wurzburg. This report refers to the deportation from, a comparatively small area around the city of Wurzburg and shows evacuations of Jews to the East in the following numbers: On 27 July 1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942, 850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on 23 September 1942 (to Theresienstadt), 562 persons; on 17 June 1943 (to Theresienstadt), seven persons; on 17 June 1943, 57 Jews were evacuated to the East. The report continues: “With this last transport, all the Jews who had to be evacuated according to instructions issued have left Main Franken.” The report shows that the total number of 2,063 Jews were evacuated from the Main Franken area alone. The furniture, clothing, and laundry items left by the Jews were given to the Finance Offices of Main Franken and turned into cash by them.
Even before transfers to the Gestapo had been substituted for judicial procedure the position of a Pole or a Jew who was tried by the courts was not a happy, one. The right of self defense on the part of a Pole was specifically limited. Poles and Jews could not challenge a German judge for prejudice. Other limitations upon the right of appeal and the like are set forth, supra (Law Against Poles and Jews, 4 December 1941).
On 22 July 1942 Reich Minister Goebbels stated that “it was an untenable situation that still today a Jew could protest against the charge of the president of the police, who was an old Party member and a high SS leader. The Jew should not be granted any legal remedy at all nor any right of protest."
The defendant Lautz testified that according to the provisions of a decree which antedated the war and by reason of the general regulations of the law in every case it had to be pointed out in the indictment if the person was a Jew or of mixed race.
On 23 January 1943 the Oberlandesgerichts President at Koenigsberg wrote to the Minister of Justice concerning defense of Poles before tribunals in incorporated Eastern territories. We quote:
“The decree of 21 May 1942 states that in accordance with the order on penal justice in Poland of 4 December 1941 attorneys are not (to) undertake the defense of Polish persons before tribunals in the incorporated Eastern territories. This decree has been received with satisfaction by all the judges and prosecutors in the whole of my district.”
These directives by the authorities in the Reich under Hitler were not mere idle threats. The policies and laws were rigorously enforced. We quote from a sworn statement of former defendant Karl Engert as follows:
“The handing over to the Gestapo of Jews, Poles, and gypsies was not under my supervision, but under that of Mr. Hecker, who worked under me in my division. However, he was not responsible to me, but directly to the Minister Thierack.”
Again, he said:
“About 12,000 inmates of the correction houses were assigned for transfer to the Gestapo. * * * Out of the total 12,000, my division assigned 3,000 for transfer in 1942. How many Jews, Poles, and gypsies were assigned I do not know; that must be in the statistics.”
Reich Minister Goebbels, in an address to the judges of the People’s Court, on 22 July 1942, stated that “if still more than 40,000 Jews, whom we considered enemies of the State, could freely go about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago.”
Between 9 and 11 November 1938, a pogrom was carried out against the Jews throughout the Reich, and upon direct orders from Berlin. Defense witness Peter Eiffe testified that he heard rumors of the proposed pogrom on the night of 8 November and called at the Ministry of Propaganda where he was told “somebody has let the cat out of the bag again.” During the three-day period Jewish property was destroyed throughout the Reich and thousands of Jews were arrested.
In Berlin the destruction of Jewish property was particularly great. To cap the climax on 12 November 1938 Field Marshall Goering issued the following decree:
“Article 1.—All damage done due to the indignation of the people at the incitement of international Jewry against National Socialist Germany carried out on the 8, 9, and 10 November 1938, on Jewish enterprises and living quarters is to be removed by the Jewish owners immediately. (RGB1. 1938 I. page 1581).
“Article II. —The costs of restoration are to be borne by the owner of the Jewish business concerned * * *.
“Section 2. —Insurance claims of Jews of German nationality will be confiscated in favor of the Reich.”
For this purpose a fine of one billion marks wells imposed upon the Jews. The witness Eiffe, who was an attorney in Berlin, acted in behalf of Frau Liebermann, the widow of the internationally known artist, Max Liebermann. Frau Liebermann was at that time eighty years old and the share of the fine imposed upon her was 280,000 marks. Ultimately orders. were issued for her deportation to East. She, however, died, either from heart failure or poison, as she descended the steps to be carried away.
The Roman Catholic chaplain at Amberg prison stated under oath that a large proportion of the inmates of that prison were Poles who had been sentenced under the “Poles Act”. Many of them died from under-nourishment. They were forced to eat potato peelings and hunt through the rubbish heaps for eatable refuse. From this prison “a-social elements” were picked out and sent in batches to the Mauthausen concentration camp. All of the first batch was said to have perished. Among the prisoners were Jews who had been sentenced for race pollution.
The witness Hecker stated under oath that after Thierack’ s “doubtful decree” concerning the transfer of Jews, Poles, and gypsies, prisoners in protective custody, and a-social elements from the Justice prisons to the RSHA in the autumn of 1942, the Jews as a whole were immediately handed over. The work was carried out by Department V of the Ministry of Justice. Lists were prepared monthly and sent to Minister Thierack through the chief of the department.
On 22 October 1942 a directive under the letterhead of the Reich Minister of Justice was issued to various prosecuting officers in which it was stated that “by agreement with the Reich Fuehrer SS, lawfully sentenced prisoners confined in penal institutions will be transferred to the custody of the Reich Leader SS.” Those designated for transfer to the SS included “Jews, men and women, detained under arrest, protective custody, or in the workhouse, * * * and Poles, residing in the former Polish State territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is above three years, * * *. With completion of the transfer to the police, the penal term is considered interrupted. Transfer to the police is to be reported to the penal authority and is cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice.” The directive is signed “Dr. Crohne”.
As a crowning example of fanatical imbecility, we cite the following document issued in April 1943, which was sent to the desk of the defendant Rothenberger for his attention and was initialed by him.
“The Reich Minister of Justice
“Information for the Fuehrer
“After the birth of her child, a full-blooded Jewess sold her mother’s milk to a pediatrician and concealed that she vas a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage, for mother’s a milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for so that the parents, who are unaware of the true facts, need not subsequently be worried.
“I shall discuss with the Reich Health Leader the racial-hygenic aspect of the case.
“Berlin, April 1943.”
The witness Lammers, former Chief of the Reich Chancellery, testified as follows:
“Q:* * * Now, you answered Dr. Kubuschok that the subject of sterilization of half-Jews was an alternative to their being moved to the East and that it had been raised by half-Jews themselves in 1942 or prior thereto.
“A: Yes. I said so.”
He testified further that the half-Jews were not subject to any compulsion. He was apparently of the opinion that a person was a free agent if he had a choice between sterilization and deportation to a concentration camp.
While the part played by the Ministry of Justice in the extermination of Poles and Jews was small compared to the mass extermination of millions by the SS and Gestapo in concentration camps, nevertheless the courts contributed greatly to the “final solution” of the problem. From a secret report from the office of the Reich Minister of Justice to the judges and prosecutors, including the defendant Lautz, it appears that 189 persons were sentenced under the law for the protection of German blood and honor in 1941, and 109 in 1942. In the year 1942, 61,836 persons were convicted under the law against Poles and Jews. This figure includes persons convicted in the incorporated Eastern territories, and also convictions for crimes committed in “other districts of the German Reich by Jews and Poles who on 1 September 1939 had their residence or permanent place of abode in territory of the former Polish State”. These figures, of course, do not include any cases in which Jews were convicted of other crimes in which the law of 4 December 1943 was not involved.
The defendants contend that they were unaware of the atrocities committed by the Gestapo and in concentration camps. This contention is subject to serious question. Dr. Behl testified that he considered it impossible that anyone, particularly in Berlin, should have been ignorant of the brutalities of the SS and the Gestapo. He said: “In Berlin it would have been hardly possible for anybody not to know about it, and certainly not for anybody who was a lawyer and who dealt with the administration of justice.” He testified specifically that he could not imagine that any person in the Ministry of Justice or in the Party Chancellery or as a practicing attorney or a judge of a special (or) Peoples Court could be in ignorance of the facts of common knowledge concerning the treatment of prisoners in concentration camps. It has been repeatedly urged by and in behalf of various defendants that they remained in the Ministry of Justice because they feared that if they should retire, control of the matters pertaining to the Ministry of Justice would be transferred to Himmler and the Gestapo. In short, they claim that they were withstanding the evil encroachments of Himmler upon the Justice Administration, and yet we are asked to believe that they were ignorant of the character of the forces which they say they were opposing. We concur in the finding of the first Tribunal in the case of United States et al. vs. Goering, et al., concerning the use of concentration camps. We quote:
“Their original purpose was to imprison without trial all those persons who were opposed to the Government, or who were in any way obnoxious to German authority. With the aid of a secret police force, this practice was widely extended, and in course of time concentration camps became places of organized and systematic murder, where millions of people were destroyed. * * *
“A certain number of the concentration camps were equipped with gas chambers for the wholesale destruction of the inmates, and with furnaces for the burning of the bodies. Some of them were in fact used for the extermination of Jews as part of the ‘final solution’ of the Jewish problem. * * *
“In Poland and the Soviet Union these crimes were part of a plan to get rid of whole native populations by exclusion and annihilation, in order that their territory could be used for colonization by Germans. Hitler had written in ‘Mein Kampf’ on these lines, and the plan was clearly stated by Himmler in July 1942, when he wrote:
“It is not our task to Germanize the East in the old sense, that is, to teach the people there the German language and the German law, but to see to it that only people of purely Germanic blood live in the East.”(IT Judgment, pages, 234, 235, 237).
A large proportion of all of the Jews in Germany were transported to the East. Millions of persons disappeared from Germany and the occupied territory without a trace. They were herded into concentration camps within and within [sic] Germany. Thousands of soldiers and members of the Gestapo and the SS must have been instrumental in the processes of deportation, torture, and extermination. The mere task of disposal of mountainous piles of corpses, (evidence of which we have seen), became a serious problem and the subject of disagreement between the various organizations involved. The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned? Did the defendants think that the nationwide pogrom of November 1938, officially directed from Berlin, and Hitler's announcement to the Reichstag threatening the obliteration of the Jewish race in Europe were unrelated? At least they cannot plead ignorance concerning the decrees which were published in their official organ “The Reichsgesetzblatt”. Therefore, they knew that Jews were to be punished by the police in Germany and in Bohemia and Moravia. They knew that the property of Jews was confiscated on death of the owner. They knew that the law against Poles and Jews had been extended to occupied territories and they knew that the Chief of the Security Police was the official authorized to determine whether or not Jewish property was subject to confiscation. They could hardly be ignorant of the fact that the infamous law against Poles and Jews of 4 December 1941 directed the Reich Minister of Justice himself, together with the Minister of the Interior, to issue legal and administrative regulations for “implementation of the decree”. They read “The Stuermer”. They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands never.
The evidence conclusively establishes the adoption and application of systematic governmentally-organized and approved procedures amounting to atrocities and offenses of the kind made punishable by C.C. Law 10 and committed against “populations” and amounting to persecution on racial grounds. These procedures when carried out in occupied territory constituted war crimes and crimes against humanity. When enforced in the Alt Reich against German nationals they constituted crimes against humanity.
The pattern and plan of racial persecution has been made clear. General knowledge of the broad outlines thereof, in all its immonsity, has been brought home to the defendants. The remaining question is whether or not the evidence proves beyond a reasonable doubt in the case of the individual defendants that they each consciously participated in the plan or took a consenting part therein.
Oswald Rothaug was born 17 May 1897. His education was interrupted from 1916 to 1918 while he was in the army. He passed the final law examination in 1922 and the State examination for the higher administration of justice in 1925.
He joined the NSDAP in the spring of 1938 and the membership was made effective from May 1937.
Rothaug was a member of the National Socialist Jurists’ League and the National Socialist Public Welfare Association. In his affidavit he denies belonging to the SD. However, the testimony of Elkar and his own admission on the witness stand establishes that he was an “honorary collaborator” for the SD on legal matters.
In December 1925 he began his career as a jurist, first as an assistant to an attorney in Ansbach and later as assistant judge at various courts. In 1927 he became Public Prosecutor in Hof in charge of criminal cases. From 1929 to 1933 he officiated as Counsellor at the Local Court in Nuernberg. In June 1933 he became Senior Public Prosecutor in the Public Prosecution in Nuernberg. Here he was the official in charge of general criminal cases, assistant of the chief public prosecutor handling examination of suspensions of proceedings and of petitions for pardon. From November to April 1937 he officiated as Counsellor of the District Court in Schweinfurt. He was legal advisor in the Civil and Penal Chamber and at the Court of Assizes, as well as Chairman of the lay assessor’s court from April 1937 to May 1943 he was Director of the District Court in Nuernberg, except for a period in August and September of 1939 when he was in the Wehrmacht. During this time he was Chairman of the Court of Assizes, of a penal chamber, and of the special court.
From May 1943 to April 1945 he was Public Prosecutor of the Public Prosecution at the People’s Court in Berlin. Here, as head of Department I he handled for a time cases of high treason in the Southern Reich territory, and from January 1944, cases concerning the undermining of public morale in the Reich territory.
Crimes charged in the indictment, as heretofore stated in this opinion, have been established by the evidence in this case. The questions, therefore, to be determined as to the defendant Rothaug are: first, whether he had knowledge of any crime so established and, second, whether he was a participant in or took a consenting part in its commission.
Rothaug’s sources of knowledge have, with those of all the defendants, already been pointed out. But Rothaug’s knowledge was not limited to those general sources. Rothaug was an official of considerable importance in Nuernberg. He had many political and official contacts; among these---he was the friend of Haberkern, Gau Inspector of the Gau Franconia; he was the friend and associate of Oeschy, Gau Legal Advisor for the Gau Franconia; and was himself Gauwalter of the Lawyer’s League. He was the “honorary collaborator” for the SD. According to the witness Elkar, the agent of the SD for Nuernberg and vicinity, this position was more important than that of a confidential agent, and an honorary collaborator was active in SD affairs. He testifies that Rothaug took the SD oath of secrecy.
Whether Rothaug knew of all the aspects of the crimes alleged, we need not determine. He knew of crimes as established by the evidence, and it is the function of this Tribunal to determine his connection, if any, therewith.
The defendant is charged under Counts two, three, and four of the indictment. Under Count four he is charged with being a member of the Party Leadership Corps. He is not charged with membership in the SD. The proof as to Count four establishes that he was Gauwalter of the Lawyers’ League. The Lawyers’ League was a formation of the Party and not a part of the Leadership Corps as determined by the International Military Tribunal in the case against Goering, et al.
As to Counts two and four of the indictment, from the evidence submitted, the Tribunal finds the defendant not guilty. The question of the defendant’s guilt as to Count three of the indictment remains to be determined.
The evidence as to the character and activities of the defendant is voluminous. We shall confine ourselves to the question as to whether or not he took a consenting part in the plan for the persecution, oppression, and extermination of Poles and Jews.
His attitude of virulent hostility towards these races is proved from many Sources and is in no wise shaken by the affidavits he has submitted on his own behalf.
The evidence in this regard comes from his own associates---the judges, prosecutors, defense counsel, medical experts, and others with whom he dealt. Among, but not limited to these, we cite the evidence of Doebig, Ferber, Bauer, Derfmueller, Elkar, Engert, Greben(sp?), and Markl. In particular the testimony of Father Schosser is important. He testified as to many statements made by the defendant Rothaug during the trial of his own case, showing the defendant’s hostility to Poles and his general attitude toward them. He stated that concerning the Poles in general, Rothaug expressed himself in the following manner:
“If he (Rothaug) had his way, then no Pole would be buried in a German cemetery, and then he went on to make the remark which everybody heard in that courtroom---that he would get up from his coffin if near to him there was a Pole being buried. Rothaug himself had to laugh because of this mean joke, and he went on to say, ‘You have to be able to hate, because according to the Bible, God is a hating God.’”
The testimony of Elkar is even more significant. He testified that Rothaug believed in severe measures against foreigners and particularly against Poles and Jews, whom he felt should be treated differently from German transgressors. Rothaug felt there was a gap in the law in this respect. He states that Rothaug asserted that in his own court he achieved this discrimination by interpretation of existing laws but that other courts failed to do so. Such a gap, according to Rothaug, should be closed by singling out Poles and Jews for special treatment. Elkar testifies that recommendations were made by the defendant Rothaug, through the witness, to higher levels and that the subsequent decree of 1941 against Poles and Jews conformed to Rothaug’s ideas as expressed and forwarded by the witness Elkar through SD channels to the RSHA.
This animosity of the defendant to these races is further established by documents in this case which show that his discrimination against these races encompassed others who he felt lacked the necessary harshness to carry out the policy of the Nazi State and Party to these people.
In this connection the communication of Oeschey to Deputy Gauleiter Holz, concerning Doobig, is worthy of note. In this communication many charges were made against Doobig for his failure to take action against officials under him who had failed to carry out the Nazi programs against Jews and Poles. Oeschey testified that these charges were copied from a letter submitted to him by the defendant Rothaug and that the defendant assumed responsibility for these charges. Rothaug denies that he assumed responsibility or had anything do with the charges made, except in one immaterial instance. However, in the light of the circumstances themselves, the Tribunal accepts Oeschey’s testimony in this regard, particularly in view of the unimpeached affidavit of Oeschey’s secretary to the effect that these charges were copied directly by her from a letter of Rothaug’s.
Documentary proof of Rothaug’s attitude in this respect is further found in the records of cases tried by him which will hereafter be considered.
The third case to be considered is that of Leo Katzenberger.The record in this case shows that Lehman Israel Katzenberger, commonly called Leo Katzenberger, was a merchant and head of the Jewish community in Nuernberg; that he was “sentenced to death for an offense under paragraph two legally identical with an offense under paragraph four of the Decree Against Public Enemies in connection with the offense of racial pollution”. The trial was held in the public session on 13 March 1942. Katzenberger’s age at that time was over 68 years.
The offense of racial pollution with which he was charged comes under Article 2 of the Law for the Protection of German Blood and Honor. This section reads as follows:
“Sexual intercourse (except in marriage) between Jews and German nationals of German or German related blood is forbidden.”
The applicable sections of the Decree Against Public Enemies reads as follows:
“Crimes During Air Raids
“Whoever commits a crime or offense against the body, life, or property, taking advantage of air raid protection measures, is punishable by hard labor of up to fifteen (15) years or for life, and in particularly severe cases, punishable by death.
* * * * * * * * *
“Exploitation of the State of War a Reason
Cause for More Severe Punishment
“Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to fifteen (15) years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable.”
The evidence in this case, aside from the record, is based primarily upon the testimony of Hans Groben, the investigating judge who first investigated the case; Hermann Markl, the official who prosecuted the ease; Karl Ferber, who was one of the associate judges in the trial; Heinz Hoffman, who was the other associate judge in the trial; Armin Bauer, who was medical expert in the trial; Georg Engert, who dealt with clemency proceedings; and Otto Ankenbrand, another investigating judge.
The salient facts established in connection with this case are in substance as follows: Some time in the first half of the year 1941 the witness Groben issued a warrant of arrest against Katzenberger, who was accused of having had intimate relations with the photographer Seiler. According to the results of the police inquiry, actual intercourse had not been proved, and Katzenberger denied the charge. Upon Groben’s advice, Katzenberger agreed that he would not move against the warrant of arrest at that time but would wait the results of further investigation. These further investigations were very lengthy, although Groben pressed the public prosecutor for speed. The police, in spite of their efforts, were unable to get further material evidence, and it became apparent that the way to clarify the situation was to take take the sworn statement of Seiler, and this was done.
In her sworn statement she said that Katzenberger had known both her and her family for many years before she had come to Nuernberg and that his relationship to her was a friendly and fatherly one and denied the charge of sexual intercourse. The evidence also showed that Katzenberger had given Seiler financial assistance on various occasions and that he was administrator of the property where Seiler lived, which was owned by a firm of which he was a partner. Upon Seiler’s statement, Groben informed Dr. Herz, counsel for Katzenberger, of the result and suggested that it was the right time to move against the warrant of arrest.
When this was done, Rothaug learned of it and ordered that the Katzenberger case be transferred from the Criminal Division Court to the Special Court. The first indictment was withdrawn, and another indictment was prepared for the Special Court.
The witness Markl states that Rothaug dominated the prosecution, especially through his close friendship with the Senior Public Prosecutor, Dr. Schroeder, who was the superior of Markl.
The indictment before the Special Court was prepared according to the orders of Rothaug, and Katzenberger was not charged only with race defilement in this new indictment, but there was also an additional charge under the Decree Against Public Enemies, which made the death sentence permissible. The new indictment also joined the Seiler woman on a charge of perjury. The effect of joining Seiler in the charge against Katzenberger was to preclude her from being a witness for the defendant, and such a combination was contrary to established practice. Rothaug at this time told Markl that there was sufficient proof of sexual intercourse between Seiler and Katzenberger to convince him, and that he was prepared to condemn Katzenberger to death. Markl informed the Ministry of Justice of Rothaug’s intended procedure against Katzenberger and was told that if Rothaug so desired it, the procedure would be approved.
Prior to the trial, the defendant Rothaug called on Dr. Armin Baur, medical Counsellor for the Nuernberg Court, as the medical expert for the Katzenberger case. He stated to Bauer that he wanted to pronounce a death sentence and that it was, therefore, necessary for the defendant to be examined. This examination, Rothaug stated, was a mere formality since Katzenberger “would be beheaded anyhow”. To the doctor’s reproach that Katzenberger was old and it seemed questionable whether he could be charged with race defilement, Rothaug stated:
“It is sufficient for me that the swine said that a German girl had sat upon his lap.”
The trial itself, as testified to by many witnesses, was in the nature of a political demonstration. High Party officials attended, including Reich Inspector Oexle. Part of the group of Party officials appeared in uniform.
During the proceedings, Rothaug tried with all his power to encourage the witnesses to make incriminating statements against the defendants. Both defendants were hardly heard by the court. Their statements were passed over or disregarded. During the course of the trial, Rothaug took the opportunity to give the audience a National Socialist lecture on the subject of the Jewish question. The witnesses found great difficulty in giving testimony because of the way in which the trial was conducted, since Rothaug constantly anticipated the evaluation of the facts and gave expression to his own opinions.
Because of the way the trial was conducted, it was apparent that the sentence which would be imposed was the death sentence.
After the introduction of evidence was concluded, a recess was taken, during which time the prosecutor Markl appeared in the consultation room and Rothaug made it clear to him that he expected the prosecution to ask for a death sentence against Katzenberger and a term in the penitentiary for Seiler. Rothaug at this time also gave him suggestions as to what he should include in his arguments.
The reasons for the verdict were drawn up by Ferber. They were based upon the notes of Rothaug as to what should be included. Considerable space is given to Katzenberger’s ancestry and the fact that he was of the Mosaic faith, although that fact was admitted by Katzenberger. Much space is also given to the relationship between Katzenberger and Seiler. That there was no proof of actual sexual intercourse is clear from the opinion. The proof seems to have gone little farther than the fact that the defendant Seiler had at times sat upon Katzenberger’s lap and that he had kissed her, which facts were also admitted. Many assumptions were made in the reasons stated which obviously are not borne out by the evidence. The court even goes back to the time prior to the passing of the Law for the Protection of German Blood and Honor, during which Katzenberger had known Seiler. It draws the conclusion apparently without evidence, that their relationship for a period of approximately ten years, had always been of a sexual nature. The opinion undertakes to bring the case under the decision of the Reich Supreme Court that actual sexual intercourse need not be proved, provided the acts are sexual in nature.
Having wandered far afield from the proof to arrive at this conclusion as to the matter of racial pollution, the court then proceeds to go far afield in order to bring the case under the Decree Against Public Enemies. Here the essential facts proved were that the defendant Seiler’s husband was at the front and that Katzenberger, on one or possibly two occasions, had visited her after dark. On both points the following paragraphs of the opinion are enlightening:
“Looked at from this point of view, Katzenberger’s conduct is particularly contemptible. Together with his offense of racial pollution he is also guilty of an offence under paragraph 4 of the ordinance against people’s parasites. It should be noted here that the national community is in need of increased legal protection from all crimes attempting to destroy or undermine its inner cohesion.
“On several occasions since the outbreak of war the defendant Katzenberger crept into Seiler’s flat after dark. In those cases the defendant exploited the measures taken for the protection in air raids. His chances were further improved by the absence of the bright street lighting which exists in the street along Spittlertorgraben in peacetime. He exploited this fact fully aware of its significance because thus he instinctively escaped during his excursions being observed by people in the street.
“The visits by Katzenberger to Seiler under the protection of the blackout served at least the purpose of keeping relations going. It does not matter whether during these visits extra-marital sexual relations took place or whether they only conversed as when the husband was present, as Katzenberger claims. The request to interrogate the husband was therefore overruled. The court holds the view the defendant’s actions, done with a purpose within a definite plan, amount to a crime against the body according to paragraph 2 of the ordinance against people's parasites. The law of 15 September,1935, has been passed to protect German blood and German honor. The Jew's racial pollution amounts to a grave attack on the purity of German blood, the object of the attack being the body of a German woman. The general need for protection, therefore, makes appear as unimportant the behavior of the other partner in racial pollution who anyway is not liable to prosecution. The fact that racial pollution occurred up to at least 1939-1940 becomes clear from statements made by the witness Zouschel to whom the defendant repeatedly and consistently admitted that up to the end of 1939 and the beginning of 1940 she was used to sitting on the Jews lap and exchanging caresses as described above.
“Thus the defendant committed an offense also under paragraph 2 of the ordinance against people's parasites.“The personal character of the male defendant also stamps him as a people’s parasite. The racial pollution practiced by him through many years grew, by exploiting war time conditions, into an attitude inimical to the nation, into an attack on the security of the national community, during an emergency. “This is was why the defendant Katzenberger had to be sentenced both on a charge of racial pollution and of an offense under paragraphs 2 and 4 of the ordinance against people’s parasites, the two charges being taken in conjunction according to paragraph 73 of the criminal code.* * * * *“In passing sentence the court was guided by these considerations: the political life of the German people under National Socialism is based on the community. One fundamental factor of the life of the national community is race. If a Jew commits racial pollution with a German woman, this amounts to polluting the German race and, by polluting a German woman, to a grave attack on the purity of German blood. The need for protection is particularly strong.
“Katzenberger has been practicing pollution for years. He was well acquainted with the point of view taken by patriotic German men and women as regards racial questions and he knew that by this conduct he insulted the patriotic feelings of the German people. Nor did he mend his ways after the National Socialist revolution of 1933, after the passing, of the Law for the Protection of German Blood, in 1935, after the action against Jews in 1938, or the outbreak of war in 1939.
“The court therefore regards it as indicted, as the only feasible answer to the frivolous conduct of the defendant, to pass death sentence, as the heaviest punishment provided by paragraph 4 of the Decree against Public Enemies. His case takes on the complexion of a Particularly grave crime as he was to be sentenced in connection with the offense of committing racial pollution, under paragraph 2 of the Decree Against Public Enemies, especially if one takes into consideration the defendant’s character and the accumulative nature of commission. This is why the defendant is liable to the death penalty which the law provides for only such cases. Dr. Bauer, the medical expert, describes the defendant as fully responsible.”
We have gone to some extent into the evidence of this case to show the nature of the proceedings and the animus of the defendant Rothaug. One undisputed fact, however, is sufficient to establish this case as being an act in furtherance of the Nazi program to persecute and exterminate Jews. That fact is that nobody but a Jew could have been tried for racial pollution. To this offense was added the charge that it was committed by Katzenberger through exploiting war conditions and the blackout. This brought the offense under the Ordinance Against Public Enemies and made the offense capital. Katzenberger was tried and executed only because he was a Jew. As stated by Elkar in his testimony, Rothaug achieved the final result by interpretations of existing laws as he boasted to Elkar he was able to do.
This Tribunal is not concerned with the legal incontestability under German law of these cases above discussed. The evidence establishes beyond a reasonable doubt that Katzenberger was condemned and executed because he was a Jew; and Durka, Struss, and Lopata met the same fate because they were Poles. Their execution was in conformity with the policy of the Nazi State of persecution, torture, and extermination of these races. The defendant Rothaug was the knowing and willing instrument in that program of persecution and extermination.
From the evidence it is clear that these trials lacked the essential elements of legality. In these cases the defendant’s court, in spite of the legal sophistries which he employed, was merely an instrument in the program of the leaders of the Nazi State of persecution and extermination. That the number the defendant could wipe out within his competency was smaller than the number involved in the mass persecutions and exterminations by the leaders whom he served, does not mitigate his contribution to the program of those leaders. His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression.
The individual cases in which Rothaug applied the cruel and discriminatory law against Poles and Jews cannot be considered in isolation. It is of the essence of the charges against him that he participated in the national program of racial persecution. It is of the essence of the proof that he identified himself with this national program and gave himself utterly to its accomplishment. He participated in the crime of genocide.
Again, in determining the degree of guilt the Tribunal has considered the entire record of his activities, not alone under the head of racial persecution but in other respects also. Despite protestations that his judgments were based solely upon evidence introduced in court, we are firmly convinced that in numberless cases Rothaug’s opinions were formed and decisions made, and in many instances publicly or privately announced before the trial had even commenced and certainly before it was concluded. He was in constant contact with his confidential assistant Elkar, a member of the criminal SD, who sat with him in weekly conferences in the chambers of the court. He formed his opinions from dubious records submitted to him before trial. By his manner and methods he made his court an instrumentality of terror and won the fear and hatred of the population. From the evidence of his closest associates as well as his victims, we find that Oswald Rothaug represented in Germany the personification of the secret Nazi intrigue and cruelty. He was and is a sadistic and evil man. Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant Rothaug is guilty under Count three of the indictment. In his case we find no mitigating circumstances; no extenuation.
The defendant Schlegelberger was born on 23 October 1875 in Koenigsberg. He received the degree of Doctor of Law at the University of Leipzig in 1899 and passed the higher State law examination in 1901. He is the author of several law books. His first employment was as an assistant judge at the Local Court in Koenigsberg. In 1904 he became judge at the District Court at Lyck. In 1908 he was appointed judge of the Local Court in Berlin and in the fall of the same year was appointed as an assistant judge of the Berlin Court of Appeals. He was then appointed Councillor of the Berlin Court of Appeals in 1914, where he worked until 1918. During the first World War, on 1 April 1918 he became an assistant to the Reich Board of Justice. On 1 October 1918 he was appointed Privy Government Councillor and department chief. In 1927 he was appointed Ministerial Director in the Reich Ministry of Justice. On 10 October 1931 he was appointed Secretary of State in the Reich Ministry of Justice under Ministe of Justice Guertner, which position he held until Guertner’s death. Upon Guertner’s death on 29 January 1941 Schlegelberger was put in charge of the Reich Ministry of Justice as Administrative Secretary of State. When Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger resigned from the Ministry.
In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger testified that he made no use of the Party, that he never attended a Party meeting, that none of his family belonged to the Party, and that Party attitudes often rendered his position difficult. However, upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger received a letter of appreciation from Hitler together with a gift of 100,00 RM.
Later, in 1944, Hitler gave Schlegelberger the special privilege to use the 100,000 RM to purchase a farm, which under the rule then prevailing could have been purchased only be an expert agriculturist. Schlegelberger states that the 100,000 RM were on deposit in a Berlin German bank to his account when the collapse came. Thus it is shown that Hitler and Schlegelberger were not too objectionable to each other. These transactions also show that Hitler was at least attempting to reward Schlegelberger for good and fathful service rendered, in the performance of some of which Schlegelberger committed both war crimes and crimes against humanity as charged in the indiectment.
We have already adverted to his speech at the University of Rosteck on 10 March 1936, on the subject “A Nation Beholds Its Rightful Law”. In this speech Schlegelberger declared:
“In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the New Reich has been opened uop by a new wording of Section 2 of the Criminal Code, whereby a person is also (to) be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.”
As amended, Section 2 remained in effect until repealed by Law No. 11 of the Allied Control Council. The term “the sound people’s sentiment” as used in amended Section 2 has been the subject of much discussion and difference of view as to both its proper translation and interpretation. We regard the statute as furnishing no objective standards “by which the people’s sound sentiment may be measured”. In application and in fact this expression became the “healthy instincts” of Hitler and his co-conspirators.
What has been said with regard to the amendment to Section 2 of the Criminal Code is equally true of the amendment of Section 170a of the Code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides:
“If an act deserves punishment according to the common sense of the people but is not declared punishable in the Code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of the penal law.”
This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism. This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries. German criminal law was therefore introduced in the incorporated areas and also in the non-incorporated territories, and German criminal law was thereafter applied by German courts in the trial of inhabitants of occupied countries though the inhabitants of those countries could have no possible conception of the acts which would constitute criminal offenses.
In the earlier portions of this opinion we have repeatedly referred to the actions of the defendant Schlegelberger. Repetition would serve no good purpose. By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler’s Night and Fog. For this he must be charged with primary responsibility.
He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the “final solution of the Jewish question” was under discussion, the question arose as to the disposition of half-Jews. The deportation of full Jews to the East was then in full swing throughout Germany. Schlegelberger was unwilling to extend the system to half-Jews. He therefore proposed to Reich Minister Lammers, by secret letter on 5 April 1942:
“The measures for the final solution of the Jewish question should extend only to full Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree.
“With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated. It follows therefrom that the evacuation of those half-Jews who are no more capable of propagation is obviated from the beginning. There is no national interest in dissolving the marriage between such half-Jews and a full-blooded German.
Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews.”
Schlegelberger knew of the pending procedures for the evacuation of Jews and acquiesced in them. As to half-Jews his only suggestion wts that they be given the frne choice of either one of the impaling horns of a dilemma. On 17 April 1941 Schlegelberger wrote to Lammars as follows:
"On being informed of the Fuehrer's intention to discriminate in the sphere of penal law between the Poles (and probably tho Jews as well), and the Germans, I prepared., after preliminary discussions with the presidents of the courts of appeal and the attorney-generals of the annexed Eastern territories, the attached draft concerning the administration of the penal law against the Poles and Jews in the annexed Eastern territories anel in the territory of the former Free City of Danzig.
The draft of a proposed ordincance concerning the administration of justice regarding the Poles and Jews in the incorporated Eastern territories” was attached to his letter and is in evidence. A comparison of its phraseology with the phraseology contained in the notorious law against Poles and Jews of 4 December 1941 discloses beyond question that Schlegelberger's draft constituted the basis on which, with certain modifications and changes, the law against Poles and Jews was enacted. In this respoct he was not only guilty of participation in the racial persecution of Poles and Jews; he was also guilty of violation of the laws and customs of war by establishing that legislation in the occupied territories of the East. The extension of this type of law into occupied territories was in direct violation of the limitations imposed by The Hague Convention, which we have previously cited.
It is of interest to note that on 31 January 1942 Schlegelberger issued a decree providing that the provisions of the law against Poles and Jews “will be equally applicable with the consent of the public prosecutor to offenses committed before the decree came into force”. We doubt if the defendant would contend that the extension of this discriminatory and retroactive law into occupied territory was based on military necessity.
Schlegelberger divorced his inclinations from his conduct. He disapproved “of the revision of sentences” by the police, yet he personally ordered the murder of the Jew Luftgas on the request of Hitler. and assured the Fuehrer thatt he would himself take action if the Fuehrer would inform him of other sentences which were disapproved.
Schlegelberger's attitude toward atrocities committed by the police must be inferred from his conduct. A milking hand, Bloodling, was sentenced to death in October 1940, and during the trial he insisted his purported confession had been obtained as a result of beatings imposed upon him by the police officer Klinzmann. A courageous judge tried Klinzmann and convicted him of brutality and sentenced him to a few months imprisonment. Himmler protested against the sentence of Klinzmann and stated that he was going "to take the action of the Hauptwachtmeister of the police Klinzmann as an occasion to express gratitude for hiss farsighted conduct which was only beneficial to the community." He said further:
"I must reward his action because otherwise the joy of serving in the police would be destroyed by such verdicts. But finally K has to be rehabilitated in public because his being sentenced by a court is known in public.”
On 10 December 1941 Schlegelberger wrote to the Chief of the Reich Chancellery stating that he was unable to understand the sentence passed against Klinzmann. We quote:
No sooner had the verdict passed on Klinzmann become known here, orders were for this reason to be given to the effect that the sentence, in case of its validation, should not be carried out for the time beign. Instead, reports concerning the granting of a pardon should be made as soon as possible. In the meantime, however, the sentence passed on Klinzmann became valid, by decision of the Reich Court of 24 November 1941, which abandoned the procedure of revision as apparently unfounded. Taking into regard also the opinion you expressed on the sentence, Sir, I now ordered the remission of the sentcnce and of the costs of proceedings by by way of pardon as well as sking out of the penalty note in the criminal records."
On 24 December 1941 Schlegelberger wrote to Lammers that he had quashed the proceedings. In February 1942 Himmler wrote expressing appreciation of the efforts in quashing the proceedings against Klinzmann and stated that he had since promoted him to Minister of the Municipal Police.
Schlegelberger presents an interesting defense, which is also claimed in some measure by most of the defendants. He asserts that the administration of justice was undcr persistent assault by Himmler and other advocates of the police state. This is true. He contends that if the functions of the administration of justice were usurped by the lawless forces unler Hitler and Himmler, the last state of the nation would be worse than the first. He feared that if he were to resign, a worse man would take his place. As the event proved, there is much truth in this also. Under Thierack the police did usurp the functions of the administration of justice and murdered untold thousands of Jews and political prisoners. Upon analysis this plausible claim of the defense squares neither with the truth, logic, or the circumstances.
The evidence conclusively shows that in order to maintain the Minisistry of Justice in the good graces of Hitler and to prevent its utter defeat by Himmler's police, Schlegleberger and the other defendants who joined in this claim of justification took over the dirty work which the leaders of the State demanded, and employed the Ministry of Justice as a means for exterminating the Jewish and Polish populations, terrorizing the inhabitants of occupied countries, and wiping out political opposition at home. That their program of racial extermination under the guise of law failed to attain the proportions which were reached by the pogroms, deportations, and mass murders by the police, is cold comfort to the survivors of the "judicial"l process and constitutes a poor excuse before this Tribunal. The. prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.
Schlegelberger resigned. The cruelties of the system which he had helped to develop were too much for him, but he resigned too late. The damage was done. If the judiciary could slay their thousands, why couldn't the police slay their tens of thousands? The consequences which Schlegelberger feared were realized. The police, aided by Thierack prevailed. Schlegelbergcr had failed. His hesitant injustices no longer satisfied the urgent demands of the hour. He retired under fire. In spite of all that he had done he still bore an unmerited reputation as the last of the German jurists and so Hitler gave him his blessing and 100,000 RM as a parting gift.We are under no misapprehension. Schlegelberger is a tragic character He loved the life of intellect, the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mass of political pottage and for the vain hope of personal security. He is guiltv under Counts two and three of the indictment.