The whole idea of the finality of judgments had long been a thorn in the flesh cf the Nazi jurists. Accordingly two weeks after the cut-break of war, a decree was promulgated which provided that, if the Chief Reich Prosecutor had "serious misgivings" concerning the justice of a sentence, he could, within year thereafter, file a special around and secure a second trial of the case. The officials of the Reich Ministry cf Justice, who controlled the Public Prosecutors, reviewed the criminal decisions and directed the Chief Prosecutor to file appeals in cases where they deemed the punishment insufficient. If the first decision had been rendered by the regular courts, the second trial was held by the Special Penal Senate of the Reich Supreme Court. If the first decision had been made by the People's Court, on the ether hand, the second trial was held by the Special Senate of the People's Court.
In 1940, an analogous procedure was authorized under which the Chief Public Prosecutor of the Reich could lodge with the Supreme Court a petition for "nullification" against final judgments of the regular criminal courts or the Special Courts "if the judgment is not justified because of an erroneous application of law on the established facts." The Supreme Court was authorized either to render a new judgment or to send the case back to a lower court for a new trial under binding instructions as to the legal principles which should govern. Not content with this elaborate system for punitive double jeopardy, the right of the Chief Public Prosecutor to attack final judgments by means of the nullification procedure was again enlarged in 1942, by extension to questions of law and to the adequacy of the punishment. This now regulation provided the prosecution, tut not the defense, with an unlimited right to ask for a new trial within one year after the decision had been rendered.
On the day of the attack on Poland, a new assault on the tenure and independence of the judiciary was made. By this new decree, judges were alleged to take any assignment whatsoever, as judge, prosecutor, or administrative official, and on any regular or special court, according to the orders of the Reich Minister of Justice. Similar powers were given to the Presidents of the district courts of appeal within their respective districts.
It might have been thought that, after the purge of Jewish and politically dissident judges in 1933, the permanent subjection of the judiciary to dismissal for political reasons in 1937, and their complete subordination to the Reich Ministry of Justice in 1939 Hitler would have at last obtained a suitable judiciary for his most extreme purposes. Apparently, however, pre-Hitler legal training sometimes had the unfortunate effect that even trusted Nazi judges failed, in their decisions, to measure up to the edeology and expectations of the Third Reich. At all events, something like a crisis in the German judicial system occurred in 1942.
On 26 April, 1942, Hitler made a speech before the Reichstag in which he reviewed the effects of the hard winter of 1941-1942, and exhorted the German people to even greater sacrifices in order to achieve victory. In the course of this speech, Hitler made certain remarks about the German legal profession and the administration of justice which had an immediate and pronounced effect. Hitler said:
"I do expect one thing: that the nation gives me the right to interwere immediately and to take action myself wherever a person had failed tc render unqualified obedience and service in the performance of the greater task which is a matter of to be or not to be. The front and the homeland, the transport system, administration and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.
I therefore ask the German Reichstag to confirm expressly that I have the legal right tc 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.
Furthermore, I expect the German legal profession to understand that the nation is not here for them, but that they are here for the nation; that is. The world, which includes Germany, must not decline in order that formal law may live, but that Germany must live, irrespective of the contradictions cf formal justice.
To quote one example, I fail tc understand why a criminal who married in 1937, illtreated his wife until she became insane and finally died as a result cf the last act of illtreatment, should be sentenced to five years in a penitentiary at a moment when tens of thousands of honourable German men must die tc save the homeland from annihilation to the hands of Bolshevism.
"From now on, I shall intervene in these cases and remove from office these judges who evidently do not understand the demand cf the hour."
Immediately after Hitler's speech, the Reichstag, adopted the following resolutions:
There can be no doubt in this present state of war, when the German nation wages its fight for its very existence, that the Fuehrer must exercise the right, which he claims, to do everything which serves or helps to achieve victory. Therefore, the Fuehrer, in his office as the Leader cf the Nation, Supreme Commander of the termed Forces, the Head of the Government, and in supreme possession of all Executive Power, as Supreme Law Lord, and as Leader of the Party, has to be in a position to enforce with all means which he may consider suitable, every German's duties, whether he might be a common soldier or an officer, a subordinate or high civil servant or judge, a leading or subordinate functionary of the Party, a worker, or an employee. In case of violations of duties, he had the right to impose the proper penance, after a conscientious examination of the case. This can be done without consideration for the so-called civil service rights. In particular, he may remove him from office, his rank and his position, without resort tc the established procedures.
This menacing blast from the Fuehrer, and the resolution cf the Reichstay, wiped away the last remains of judicial independence in Germany. Furthermore, within a few months a complete reorganization of the upper levels of the Ministry of Justice took place. Schlegelberger, who had seen the storm coming and made desperate efforts to meet Hitler's wishes, was nevertheless retired and replaced by Thierack. A special Hitler decree in August, 1942 gave the new Reich Minister sweeping powers to bring the administration of justice into conformity with the needs of the regime; it read:
A strong administration of justice is necessary for the fulfillment of the tasks cf the great German Reich. Therefore, I commission and empower he Reich Minister of Justice to establish a National Socialist administration of Justice, and to take all necessary measures in accordance with the Reich Ministry and Chief of the Reich Chancellery and the Leader of the Party-Chancellery. He can hereby deviate from any existing law.
At the same time, Roland Freishler left the Justice Ministry to become President of the People's Court, and the defendant Rothenterger took Freisler's old job as Under-Secretary. Earlier in the year, Rothenberger, previously president of the district court of appeals at Hamburg, had attracted the Fuehrer's attention by submitting to him a long thesis on "judicial reform." This thesis is a curious document; it speaks at length of the honor and dignity of the judges' function and of the need for justice as the foundation of the Third Reich, but the reason it won the Fuehrer's approval can perhaps be mere clearly inferred from the two following quotations:
........The present crisis in the administration of justice today is close to such a climax. A totally new conception cf the administration cf justice must be created, particularly a National Socialist judiciary, and for this the druggist's salve is not Sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.
......The criterion, however, for the functions of justice, and particularly of the judge in the National Socialist Reich, must be a justice, which meets the demands cf National Socialism.
He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy as only possible if, on the one hand, all outmoded institutions, concepts, and habits have seen done away with - if need be, in a brutal manner - and if, on the other hand, institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background.
All clamer about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation............
At the time he was appointed Minister, Thierack also became the President of the German Academy of Law, and of the National Socialist Association of Jurists. The temper of the now administration of justice was reflected in Thierack's announcement to the Germany academy, as follows:
The formulation of law is n, t a matter of science and a goal in itself, but rather a matter of political leadership and organization. Therefore, the activities of the academy relating to the formulation of law must be coordinated with the aims of political leadership.
At the time of their appointments, Thierack and Rothenberger envisaged an ambitious program for simplifying the hierarchy of German courts, drastically reducing the number of judges, and "modernizing" the education and training of judges in accordance with prevailing political thought. Much of this program was never realized, but Thierack and Rothenberger did succeed in developing new devices for direct control of judicial decisions by the government. This has been also foreshadowed in Rothenberger's thesis submitted to Hitler:
.....a judge who is in direct relation of fealty to the Fuehrer must judge "like the Fuehrer." 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 Fuehner 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.
In part, this executive control was accomplished by conferences between the prosecutors and the judges, in which the prosecutor advised the judge what measure cf sentence the Ministry cf Justice thought fitting in a particular case.
But an even more effective device was a series of confidential circulars tc the judges known as "judges letters" (Richterbriefe) which Thierack dispatched, over his own signature as Minister of Justice, to the judges and prosecutors throughout the German judician system, Thier-ack announced this forthcoming series in September, 1942, in the following letter to judges and prosecutors throughout the Reich:
"To aid the judge in fulfilling his high duty in the life of our people, I decided to publish the "Judges' Letters." They shall be distributed tc all German judges and prosecutors."
These Judges' Letters will contain decisions that seen to be especially worth while mentioning, on account of result or argumentation. On these decisions, I will show how a better decision night or should have been found; on the other hand good, and for the national community important, decisions shall be cited as examples.
The Judges'Letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They will rather tell how judicial authorities think National Socialist justice should be applied and thereby give tho judge tho inner security and freedom to cone to the right decision.
The contents of these letters are confidential; the chief of an office shall keep them, and lot every judge and prosecutor take notice of them against receipt.
For tho publication of the Judges' letters, tho collaboration of all the judges and prosecutors is needed. I expect that suitable decisions from all branches of justice will be presented to me On publication, neither the judge nor the deciding court will be named.
I am convinced that tho Judges' Letters will help to orient the administration of justice uniformly according to National Socialist doctrines.
The first letter was published on 1 October, 1942. In a sort of hertatory prelude, many thoughts and ideas from the Rothenberger thesis were embodied. Thereafter, a number of criminal cases and tho sentences therein imposed were set forth and commented upon.
Four cases dealing with crimes committed during blackouts were described; those decisions in which tho loathe penalty had been imposed were approved, tho others were all criticized for being too mild. Six cases dealing with sex offences followed; the sentences in five of than were condemned as utterly inadequate. No case was cited whore the sentence was thought too severe.
At the end of the letter, three cases dealing with Jews were discussed in great detail. On of these dealt with the racial law which required all Jews to adopt the surname "Sarah" or"Israel" according to their sex. A Jewish women had neglected to apply to the telephone company to change her listing by the addition of the name "Sarah". The district court sentenced her to a fine of thirty Reichsmarks, or 19 days in prison. The court set forth in its opinion that certain other courts had construed the law as not requiring an application to change a telephone listing, and that the Jewess might have relied on these decisions. Thierack's letter described the Jewess' action as "typical Jewish camouflage in her business dealings" and stated that the lack of uniformity in the decisions in no way justified leniency in the punishment.
In the second case, a special coffee ration had been distributed in a certain town, in the autumn of 1940. A large number of Jews had applied to receive the ration, However, since Jews were automatically excluded from the distribution, they did not receive any coffee. The following year, the food authorities imposed a fine on the Jews for the offense of having applied for tho coffe; thereupon several hundred Jews sought relief against the fine in tho district court. The judge rescinded tho fine on the basis of the statute of limitations and for other legal reasons, and expressed tho opinion that the Jews had not committed any punishable act in merely applying for the coffee. On this decision, tho Reich Minister's letter commented as follows:
The ruling of tho district court, in form and content borders on embarrassing a German administrative authority to tho advantage of Jewry. Tho judge should have asked himself the question: what is the reaction of the jew to this 20-page-long ruling, which certified that he and the 500 other Jews are right and that ho 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 time higher authorities, he should have chosen a form Its ruling which, under my circumstances, avoided her tho prestige of the food office and thus putting the Jew expressly in the right toward it.
In the third case, a wealthy young Jew had committed certain violations of the German foreign currency regulations. The district court, although it found certain estenuating circumstances, imposed a heavy fine on the jew and sentenced him to two years' imprisonment. This decision particularly provoked the Reich Minister Justice who said:
The court applies tho same criteria for the award of punishment as it would if it were dealing with a German follow citizen as defendmt. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this. In doing so, he has brought unspeakable misery upon our people. Not only is he of different, but he is rise of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial respect must be considered in the award of punishment. Here, where a profiteering transaction typical for tho defendant as a Jew, and to the disadvantage of the German people had to be judged, the verdict, in rewarding punishment, must take into consideration in the first place that the defendant for years had deprived the German people of considerable assets...........This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment.
Beginning with this issue in October 1942, the Judges' Letters were issued regularly and continued to be filled with exhertations to the utmost ruthlessness in the imposition of sentences. Later on, they were supplemented by "Lawyers' Letters" (Rechtsanwaltbriefe). As time wont on, German criminal law and procedure scarcely retained my other elements than that of throatoning wavering elements of the population into submission. The sholesale destruction of legal process culminated at the very end of the war in the creation of the emergency civilian courts martial, which have already been mentioned. Those courts martial were given jurisdiction "for all kinds of crimes endangering the German fighting power or undermining the people's defensive strenght", And, if they found tho defendant guilty, could impose only the death sentence.
The end of the war out short the life of those tribunuls, after ten weeks of judicial terrorism.
"roughout the war, the administrative and penal brunches of the Ministry of Justice continued to cooperate in protecting loyal followers of the Third Reich from criminal prosecution for their innumerable atrocities against Poles, Jews, and other "undersirable clements". At the successful conclusion of the Polish campaign, an unpublished decree suspended all prosecution against racial Germans in Poland for any punishable offences which they night have committed against Poles during the polish was "due to to anger aroused by the cruelties committed by the Poles." In 1941, tho defend Schlegelberger assured Rudolf Hess that ho would consider "benevolently" an umnesty in any particular case of atrocities committed after the conclusion the polish campaign. An example of this "benevolent consideration" may be worth noting. Have Germans, one of whom was a sergeant of police, shot two Polish priests in Poland in the spring of 1940 "for no reason other than hatred for the Catholic clergy." A Special Court imposed 15 yours' penal servitude for manslaughter. After two years of the sentence had been served, Himmler asked that the Germans be pardoned, and that it be made possible for them to "win their reprieve" through service at the front. At Himnler's request, the Ministry of Justice reduced the sentence to five yours and both non were released from confinement and assigned to duty in a waffen-SS unit.
After the advent of Thierack and Rothenberger, cooperation between tho Ministry of Justice and Himmler's police become oven closer. On the 18th of September, 1942, Thierack and Rothenberger hold a long conference with Himmler and other high-ranking SS loaders at Hitler's headquarters. Thierack's notes of the meeting included the following:
1. Correction by special treatment at the hands of the police in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reichsfuehrer SS, that is Hitler, and myself, Thierack.
a) In principle, the Fuehrer's time is no longer to be burdened with these matters.
b) The Reich Minister for Justice will decide whether and when special treatment at the hands of the police is to be applied.
c) The Reichsfuehrer SS will send tho reports, which he sent hitherto to Reichsleiter Bormann, to the Reich Minister for Justice.
d) If tho views of the Reichsfuehrer SS and those of the Reich Minister for Justice agree, the final decision on the case will rest with them.
e) If their views are not in agreement, tho opinion of Reichsleiter Bormann will be brought to bear on the case, and he will possibly inform the Fuehrer.
f) In cases where the Fuehrer's decision on a mild sentence is sought through other channels (such as by a letter from a Gauleiter) Reichsleiter Bormann will forward the report to the Reich Minister for Justice. The case will then be decided as already described by tho Reichsfuehrer SS and tho Reich Minister for Justice.
2. The delivery of anti-social elements from the execution of their sentences to the Reichsfuehrer SS to be worked to death. Persons under protective arrest, Jews, Gypies, Russians and Ukrainians, Poles with more than 3-year sentences, Czechs and Germans with more than 8-year sentences, according to the decision of the Reich Minister for Justice. First of all, the worst anti-social elements amongst those just mentioned are to be handed over. I shall inform the Fuehrer of this through Bormann...........
14. It is agreed that, in consideration of the intended aims of the Government for the clearing up of tho Eastern problems, in future Jews, Poles, Gypies, Russians and Ukrainians are no longer to judged by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reichsfuehrer SS. This does not apply to civil lawsuits, nor to poles whose names are announced or entered in the German Racial Lists.
We said at tho outset that the defendants and their colleagues accomplished tho complete overthrow of justice and law in Germany. The foregoing recital of the stops in this process and the proff to be introduced will, we think, make this abundantly clear. The Third Reich became a realm of despotism, death, and finally, of despair.
But the very perversion and brutality of the Nazi penal system may lead us to think of it as aimless cruelty, which it is not. Fanatical, ruthless, and even unbalanced as tho German leaders might have been, they were never purposeless. Law and justice were destroyed for a reason. They were destroyed because by their very nature they stood athwart the path of conquest, destruction and extermination which the lords of the Third Reich were determined to follow. The Nazi Special Courts, double jeopardy, the flaunting of the letter and the spirit cf the law ---- these things were not ends in themselves. They were methods deliberately adopted for the purpose of causing death, torture, and enslavement. Now that we have traced the stops in the conspiracy, it is timely that we examine the murders and other atrocities which were its intended and actual outcome.
Two facts stand out when we study the crimes charged in this indictment. First, the diabolical novelty presented by the designed use of a nation's system of Justice and its machinery by the governing power of that nation, as weapon of destruction - an instrumentality of murder, kidnapping, slavery, torture, brutality and larceny.
Second, the mass character, and therefore the enormity of the crimes committed by these defendants with this new weapon - this headman's axe fashioned from the scales of justice in a forge, stoked with national greed and racial bigotry and hatred, fanned by blasts of directed propaganda and shaped by the calculated blows of designedly infamous legislation, controlled and dominated courts, and a studied effort to make ineffectitive or to eliminate completely, the defensive aids customarily enjoyed by defendants in the courts of civilized nations.
These facts in turn have the definite effect of confusing and dulling the minds of lawyers and laymen alike, so that they do not clearly understand either the right and the power of this Tribunal to try these defendants under international law or the simple standards by which their crimes can be measured and judged.
It follows, therefore, that we should now pause at the threshold of this trial to males clear the authority under and by which we act, and the time honored standards under which we shall assert and prove the guilt of these defendants.
A concise review of recent history will be helpful and therefore proper.
On October 30, 1943, Prime Minister Churchhill, Premier Stalin and President Roosevelt issued their Moscow Declaration. That part which is pertinent to an understanding of what we do here reads as follows:
"The above declaration is without prejudice to the case of the major criminals, whose offenses have no particular geographical localization and who will be punished by the joint decision of the governments of the Allies."
It is clear that those criminals, whose offenses have no particular geographical localization, are to be punished," not necessarily tried, by the "joint decision," not necessarily a joint or international tribunal, of the Allies. The basic policy to punish is thus clearly laid, down.
Thereafter, the same three powers met at Potsdam after the unconditional surrender of Germany. At this meeting representatives of the French nation also participated. There agreements and understandings relative to the future policies to be pursued by those governments toward Germany and war criminals were reached. Two of them should be recalled, because they throw light upon the stature and the international character of this Tribunal and also of the purpose behind the definition of the crimes, for the commission of which these defendants have been indicted and are being tried.
In the statement released at Potsdam on August 2, 1945, they said:
"The three governments have taken note of the discussions which have been proceeding in recent weeks in London****with the view to reaching agreement on the methods of trial of those major war criminals whose crimes under the Moscow Declaration of October 1943 have no particular geographical localization, ***they regard it as a matter of great importance that the trial of those major criminals shall begin at the earliest possible date."
We thus see that the three powers have now advanced from their thinking at Moscow, in that they have determined the method by which these criminals are to be "punished". But the method of trial is still to be the result of the "joint decision" of the powers who signed the Moscow Declaration, concurred in by the representatives of the French nation. The decision to try by judicial proceeding came six days later at London.
But another significant decision was reached at Potsdam. The powers concerned reached agreement on "The Political and Economic Principles to Govern the Treatment of Germany in the Initial Control Period." Among these we find the following which are pertinent to an understanding of what we do here.
"A. Political Principles.
"1. In accordance with the agreement, *** supreme authority in Germany is exercised, on instructions from their respective governments, by tho Commanders-in-Chief of the armed forces (of the governments concerned) each in his own zone of occupation and also jointly, in matters affecting Germany as a whole, in their capacity as member of the Control Council.
"2. So far as practicable, there shall be uniformity of treatment of the German population throughout Germany.
"3. The purpose of the occupation of Germany by which the Control Council shall be guided are:
" (iii) To destroy the National Socialist Party and its affiliated and supervised organizations, to dissolve all Nazi institutions, to insure they are not revived in any form,*** "(iv) To prepare for the eventual reconstruction of German political life on a democratic basis and for eventual peaceful cooperation in international life in Germany."
On August 8, 1945, the powers, which were represented at Potsdam, through their equally accredited representatives, brought forth at London an agreement which in its preamble refers to "major war criminals," and in Article I, to "war criminals." The Agreement also contemplated an International Military Tribunal for the trial of such criminals and for a Chapter to define the constitution, jurisdiction and functions of that tribunal, which Charter was in fact made a part of said Agreement on the same day. Two things deserve our attention at this point. The Charter defined crimes and thus fixed an objective standard by which "war criminals" were to be identified. The adjective "major" was thereupon immediately relegated to the role of superficial invective or at most to that of fixing a comparative standard of criminal importance, measured solely by the judgment of the Committee of Chief Prosecutors or the Practical and mechanical necessities of the actual trial. - The crimes of most of these defendants are so great that, if they choose, they may consider themselves slighted by the Committee of Chief Prosecutors.
The Prosecution in this case shall do its ethical best to see that they were not fortunate.
On December 20, 1945, the same three Allied powers, which had issued the Moscow Declaration, and the same four powers, which had reached the Potsdam agreements and entered into the London Agreement and created the Charter of the International Military Tribunal also enacted Law 10 of the Control Council for Germany.
Law 10 provided for this tribunal and the method by which it was thereafter to be brought into existence; defined the crimes over which it exercises jurisdiction; and adequately described the persons it had jurisdiction to try and punish and the punishment it was authoritized to impose. The preamble clearly discloses that Law 10 was enacted and therefore this Court was created to accomplish two purpose. First, "In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945 and the Charter issued pursuant thereto," and second, "In order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the international Military Tribunal."
Although this preamble does not expressly say so, it is clear that the second purpose is to implement the Potsdam Agreement, which required "uniform treatment of the German population throughout Germany" as an inter-allied multi-powered policy. The policy was thus made inter-allied. The method of implementing it was all that was delegated as a matter of right not power, to tho several contracting nations acting within their zones of occupation through their zonal commander. This tribunal therefore is international in its source as well as in its jurisdiction over subject matter and persons.
On September 30 and October 1, 1946, approximately 13 months after the London Agreement and Charter were created and more than 9 months after Law 10 was promulgated, the International Military Tribunal rendered its decision and judgment upon the individual defendants whom it found guilty.
After the judgment of the International Military Tribunal, on October 18, 1946, the zone Commander of the American Zone, for the purpose of implementing Law 10 of tho inter-Allied Control Council for Germany, and to carry out the purposes therein stated and previously agreed upon by the four signatory powers at London and Potsdam, promulgated Ordnance No. 7, concerning the Organization and Powers of Certain Military Tribunals. The ordnance brought this Tribunal, into existence and laid down many of the procedures under which it operates, but it did not restrict nor limit its jurisdiction over persons or subject matter as set out in Law 10 nor did it define new crimes.
Nothing that has been done since the four powers adopted tho London Agreement and Charter has operated to materially limit the jurisdiction over persons and subject matter of this Tribunal from that conferred upon the International Military Tribunal by those international instruments.
A study of tho Charter, Law 10 and Ordnance 7 discloses that Law 10, Article II, Sec. 15 tells any and all status of limitations for the period from 30 January 1933 to July 1, 1945. It also contains provisions which have the effect of depriving this Tribunal of recognizing as a valid defense in this trial any immunity, pardon or amnesty granted to any of these defendants by the Nazi Government. This is a limitation not imposed by the charter upon the International Military Tribunal.
Likewise, Ordinance 7, Article X is in nowise a limitation upon the powers of this court to determine the guilt or innocence of those defendants. It reads as follows:
ORDINANCE NO. 7 ARTICLE X "The determinations of the International Military Tribunal in the judgments in Case No. 1 that invasions, aggressive acts, aggressive wars, crimes, atrocities or inhumane acts were planned or occurred, shall be binding on the tribunals established here under and shall not be questioned except insofar as the participation therein or knowledge thereof by any particular person may be concerned.
Statements of the International Military Tribunal in the judgment in Case No. 1 constitute proof of the facts stated, in the absence of substantial new evidence to the contrary."
This provision is couched in language calculated to adequately safeguard the rights of defendants, so that, by tho same reasoning, it cannot be said to operate as an oppressive rule, which in any material manner unduly restricts this court in making its own ultimate determination as to the guilt or innocence of those defendants. It is a reasonable rule designated to avoid undue repetitious production of acknowledged facts in tho trial of this cause. As such it does not detract from the dignity of this court nor affect tho concurrent nature of the jurisdiction which this court enjoys in relation to the International Military Tribunal.
In conclusion, therefore, we take the position that this Tribunal, like the International Military Tribunal, derives from the "joint decision" of the signers of the Moscow Declaration and of the French nation; that the subject matter over which it has jurisdiction, the crimes which it has jurisdiction to try, are codified by the same powers, and that it has jurisdiction over tho same persons, those persons who are charged by indictment with having committed those crimes. These are the basic elements upon which concurrent jurisdiction as a matter of law has always been determined to exist by all courts which have had occasion to decide this question.
We have belabored this question of the equal dignity and concurrent jurisdiction this Tribunal with that of the International Military Tribunal for reasons which are legal and also arise from the standpoint of policy. To us they seem important and because they do, a due regard for the candor owed to this Tribunal and to the world obligates us to state them.
THE PRESIDENT: It is now 12:30, and the Court will be in recess until 1:30 o'clock.
AFTERNOON SESSION
THE MARSHAL: Military Tribunal No. 3 is again in session.
MR. LAFOLLETTE: Your Honors are ready? May it please your Honors, first, I will read down to approximately page 50 and thereafter I will ask Mr. King, who is of counsel, to read a further part of the opening statement and Mr. Willingham and then I will follow Mr. Willingham and General Taylor as Chief Counsel will close.
THE PRESIDENT: It will be agreeable to divide the time any way that is suitable.
MR. LAFOLLETTE: I am reading from page 38 of the English translation --English document--the paragraph which begins: "First, we believe--" Perhaps it would be proper to go back one paragraph beyond that I read this morning: "We have belabored this question of the equal dignity and concurrent jurisdiction of this Tribunal with that of the International Military Tribunal for reasons which are legal and also arise from the standpoint of policy. To us they see important and because they do, a due regard for the candor owed to this Tribunal and to the world obligates us to state them."
First, we believe that this Tribunal has the right and power to decide all questions of law, other than the "criminal nature" of these groups or organizations which the International Military Tribunal found to be criminal, and as distinguished from the ultimate facts set out in Ordinance 7, Article X, as original questions of law which it has the right to decide, contrary to the decisions reached by the International Military Tribunal, if it is convinced that a proper interpretation of the Charter and Law 10, or of the ultimate facts to be inferred from the evidence in this case, require it logically, and therefore, by the exercise of intellectual integrity, to reach a contrary decision. We do not deny the persuasive authority of the decision and judgment of the International Military Tribunal, but we point out that between the International Military Tribunal and this Tribunal the relationship of a court of superior juris diction to that of one of inferior jurisdiction does not exist in fact or in law.
Therefore the decision and judgment of the International Military Tribunal is not binding upon this court, except to the extent fixed by said Ordinance 10 and the other provisions to which are referred.
Second, from the standpoint of policy the prosecution believes it owes it not only to this Tribunal but to the world to establish the concurrent jurisdiction and therefore the equal dignity of this Tribunal, and of the proceedings before it, with those before the International Military Tribunal, which preceded it. We try here war criminals charged with the commission of international crimes, codified, as such, by the same nations which codified the crimes for which the International Military Tribunal tried the defendants indicted and arraigned before it. This is not an American side show, national in character. On the contrary, it is the avowed program of the government of the United States to carry on the obligation assumed at Moscow in 1943 by living up to the inter-Allied agreements made at Potsdam in 1945. Finally, we assert the high character of this Tribunal and therefore of the proceeding before it, in order that we ourselves may understand the high judicial character of our actions and the obligations of candor and ethical conduct which these proceedings of necessity impose upon counsel appearing before this Bar.
We try these defendants, therefore, in a court whose authoritative source and whose jurisdiction over subject matter and persons is equal to and concurrent with the International Military Tribunal. We try them for crimes, War Crimes, and Crimes against Humanity, which were unlawful, as alleged in the indictment, when committed because they were in violation of the "universal moral judgment of mankind" as attested by the judicial decision of the International Military Tribunal.
We try them in an international court for crimes under international law which finds its authority not in power or force, but in the universal moral judgment of mankind.
We shall now present our general theory of the prosecution's case.