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.
In doing so, we shall outline the broad legal principles which establish the relevancy of our evidence to the crimes charged. We shall not at this time, except perhaps for the purpose of illustration, relate it to each of these defendants. That will be done adequately enough to satisfy the court and disconcert the defendants when we sum up.
in Count 2 of this indictment, we charge these defendants with the commission of War Crimes as defined in Article II paragraph 1 (b) of Law 10, and in Count 3 we charge them with the commission of Crimes against Humanity as defined in Law 10, Article II, paragraph 1(c). We have demonstrated that as we have charged these crimes in this indictment, we only ask for convictions for the same crimes for which the defendants before the I.M.T. were tried; therefore, we adopt basically the following statements from the decision of the I.M.T.:
"With respect to war crimes, I quote:" however, as has already been pointed out, the crimes defined by Art. 6, Section (b) of the Charter which are the same crimes defined by Law 10, Sec. 1 (b) were already recognized as war crimes under international law." There's a parenthetical statement in there your Honors will note.
"But it is argued that the Hague Convention does not apply in this case, because of the 'general participation' clause of Article 2 of the Hague Convention of 1907."
"In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt "to revise the general laws and customs of war", which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter."
"A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were a part of Germany."
" * * * The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after the 1st September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that those territories were never added to the Reich, but a mere protectorate was established over them."
" * * * but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar 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, the aggressive war, and therefore constituted crimes against humanity."
It is proper to point out also, that in order to establish the guilt of any of these defendants for Crimes against Humanity, it is not necessary that they themselves shall be indicted for or convicted of a Crime against Peace; that is, the waging of aggressive war, which the I.M.T. hold began on September 1, 1939.
In the trial before the I.M.T. the record discloses that seven defendants were convicted of Crimes against Humanity, who either were not indicted for or were found not guilty of participation in a Conspiracy to commit Crimes against Peace or of the commission of a Crime against Peace.
We want to discuss briefly the substantive law under which we try this case.
Law 10, Article II, paragraph 2 is part of the substantive law under which this indictment is brought. An effective presentation of the meaning and effect of this paragraph is aided by presenting those parts of it which are relevant to this case, verbatim at this time:
"And person without regard to nationality or the capacity in which he acted is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal, or (b) was an accessory to the commission of any such crime or ordered or abetted the same, or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission, or (e) was a member of any organization or group connected with the commission of any such crime, or * * *" Clause (f) of the above paragraph applies only to Crimes against Peace, for which none of these defendants are indicted.
We are not concerned in this opening statement with discussing niceties of legal draftsmanship nor shall we now use American legal terminology to describe the ultimate relationship of defendants, whose guilt is fixed by paragraph (2) of Article II to the overt act, namely, any crime as defined in paragraph (l) of Article II. But we are concerned with offering to this court our observation upon its legal effect.
We do not concern ourselves now with principals or accessories. We do discuss the relationships arising out of the words "abetted" and the relationships set out in clauses (c), (d) and (e) to the overt act. At the threshold we point out that the crime which defendants who occupy any of the last referred to relationship, are guilty of committing is any crime as defined in paragraph 1 of Article II. The proof must show that a crime as defined in Law 10, Article II paragraph (1), that is, a crime within the jurisdiction of this Tribunal, was committed, but if it was committed by any of the defendants or a person other than the defendants in the dock or any of them, and any of these defendants abetted the doing of that act, was connected with a plan or enterprise to commit it, consented to its commission, or was a member of any organization or group connected with the commission of any crime within the jurisdiction of the Tribunal, he is guilty of committing that crime.
The I.M.T. has given two persuasive interpretations of the meaning of the words "being connected with" which we cite.
In the case of the defendant, Streicher, who was found Guilty of committing Crimes against Humanity, the I.M.T. said:
"Streicher's incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes, as defined in the Charter and constitutes a crime against humanity."
The case of Von Schirach is also most enlightening, Anschluss with Austria took place on March 12, 1938. Von Schirach was appointed Gauleiter of Vienna in July 1940. Von Schirach was found Guilty of Commiting Crimes against Humanity:
The I.M.T. said:
"As has already been seen, Austria was occupied pursuant to a common plan of aggression. Its occupation is, therefore, a "crime within the jurisdiction of the Tribunal", as that term is used in Article 6(c) of the Charter. As a result, "murder, extermination, enslavement, deportation and other inhumane acts, and persecutions on political, racial or religious grounds" in connection with this occupation constitute a Crime against Humanity under that Article."
"The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated in this deportation after he had become Gauleiter of Vienna. He knew that the best the Jews could hope for was a miserable existence in the Ghettos of the East. Bulletins describing the Jewish extermination were in his office."
It seems clear from these cases that there need be no prearrangement with or subsequent request by the person or persons who actually commits the crime and a defendant to make him guilty as the I.M.T. interpreted the words "being connected with". It would appear to be sufficient that the defendant knew that a crime was being committed, and with that knowledge acted in relation to it in any of the relationships set out in paragraph 2 of Article II which we have heretofore been discussing.
We think it is also helpful to call to the attention of this court one rule of evidence by which the existence of a conspiracy, that is, the relationship of individuals to the doing of the overt act, is held to be established.
The case from which we quote arose out of the activities of the Ku Klux Klan during the heighth of its power in Indiana. The people of the United States, on that occasion, at least, had enough courage and foresight not to let that organization acquire the control of all of its judicial system, the way the people of Germany let these defendants and their fellow Nazis acquire control of and pervert theirs. Consequently, our incipient Nazis were tried. The court in the cited case held that the proof of the doing of the overt act, was in itself evidence of the intent of the conspirators to commit the act so as to establish their intent to conspire. I quote from the decision:
"True it is, that if the evidence is as consistent with the innocence of the appellant as with his guilt no conviction can be had. It is equally true that overt acts of the parties may be considered with other evidence and attending circumstances in determining whether a conspiracy exists, and where the overt acts are of the character which are usually, if not necessarily, done pursuant to a previous scheme and plan, proof of the acts has a tendency to show such pre-existing conspiracy, so that when proved they may be considered as evidence of the conspiracy charged."
We point out that proof of murders, enslavement, kidnapping and mayhem, which are a few of the crimes committed through the device of a so-called legal and judicial process, are competent evidence that the preceding acts which perverted a judicial system into a means for committing such crimes were part of a plan and enterprise to make the commission of those crimes possible."
THE PRESIDENT: You are not giving the citation of the Indiana case?
MR. LAFOLLETTE: I beg your pardon, your Honor. It's a CCA case.
U.S. v. Holt, 1939, CCA, 7, 108 Federal 2nd, 365.
THE PRESIDENT: What was the page of the Federal second?
MR. LAFOLLETTE: 365. This mimeograph may not be completely correct. I am sure that's right. Otherwise, if that should not be correct I will advise the Court.
"The overt acts are evidence under the Counts 2 and 3 of this indictment not only of the intent with which the preceding acts were done, but also of the fact that each of those defendants who knew that the preceding acts were being performed - and it is legally inconceivable to believe that they did not know - had knowledge of the fact that there was probable danger that the preceding acts would result in the overt crimes or that the preceding acts being unlawful eo ipso and therefore felonious, would result in the overt acts as the natural consequence of proceeding felonious acts. This is murder - whenever a homicide resulted from the foregoing act. And the murder, being "an act usually done pursuant to" the "previous scheme and plans", establishes the guilty intent of each and all of the defendants to commit that murder who stood in any of the relationships to the murder defined in paragraph 2, Article II of Law 10.
We have also said that it is an inevitable result of the murder of hundreds of thousands and millions of humans, that such mass murder dulls our realization that the basic simple principles of the law which define the crime of murder of a single human, furnish the standard by which were determined the guilt of those who have murdered those millions.
A review of these basic rules is therefore proper.
In 1877, Mr. Justice Stephen undertook to restate the English common law of homicide as he then found it. He states that an unlawful homicide, without adequate provocation was murder, if it followed from an act accompanied by one of the following states of mind: an intention to cause the death of or grevious bodily harm to any person; (2) knowledge that the act will probably cause either of the results, even though the actor hopes that they night not occur or is indifferent about them; or (3) an intention to commit a felony or to resist a peace officer in the execution of his duty.
As to the first category, no one can quarrel and there is evidence to support the commission of such murders by individual defendants.
As to the second category, Mr. Justice Holmes thought that the actor's awareness of the danger was immaterial, that the standard was completely objective. In comm. v. Pierce (1884) 138 Mass. 165, at page 178, he stated his view succintly.
"When the jury are asked whether a stick of a certain size was a deadly weapon they are not further asked whether the defendant knew it was so."
In any event, in this case before this Tribunal, we shall ask the Court to bear in mind that lawyer, by the very nature of their legal training and experience, knew that the enactment of ex post facto laws, specially designed racial legislation and other legislation directly designed to restrict and destroy the right to make an adequate defense to a criminal charge; the handpicking of judges and their control by state and party; the submergence of the courts and prosecutors to the superior authority of the police; pretrial agreement of judges and prosecutor on judgment and penalty; unlawful extra-territorial extension of German law and the issuance of the Nacht und Nebel decree contrary to the laws of war, would probably cause death of human beings, subjected to such a perverted judicial system. These defendants are not farmers or factory workers.
As to the third category, that of homicide resulting from the intention to commit a felony or while resisting arrest, it is not amiss to point out that those who are connected with a plan to extend, or who consent to or abet the unlawful extension of German law and German Courts into overrun countries contrary to the laws of war, are doing acts which amount to larceny while armed or robbery; and that those individuals who commit acts which abet or are connected with the waging of an aggresive war or a plan to do so, or who consent thereto, are resisting the efforts of the peace-enforcing nations of the world to arrest the criminal.
The evidence in this case will establish the unprovocated homicide of countless numbers as the result of the doing of such acts by these defendants which are clearly felony murders.
These are but the most apparent applications of the three categories of murder to the evidence in this case. Time will not permit our further exemplifying them now. They will be presented adequately when we summarize the evidence. We do not wish to be understood by furnishing these few examples as having exhausted the cases, where the application of the principles so readily understood when one life is taken by murderous homicide, to the evidence of this case, will establish murders and mass murders by these defendants. Furthermore, other crimes common to the criminal laws of civilized nations, such as enslavement, kidnapping, or mayhem, have been committed by these defendants, which can be established by the application of similar basic principles to the evidence, which should make the task more simple and at the same time, by reducing the seeming complexities of mass criminality under international law to concepts with which the average citizen of a nation is acquainted, seen to serve the salutary purpose of increasing the hatred of the average man for war and to warn him of the dangers inherent in the totalitarian police state, dominated by the philosophy that the end justifies the means used to attain it.
The crimes charged in Count 2 and in Count 3 fall generally into several categories.
Substantively, there are first those war crimes which arise out of the violation of the laws and customs of war, including Section I, Articles 4, 5, 6, and 7; Section II, Article 23; Section III, Articles 43, 45, 46 and 50 of the Hague Regulations of 1907; and Chapter 6, Title I, Articles 2, 3 and 4 of the Prisoners of War Convention (Geneva 1929); and the decision and judgment of the IMT of September 30 and October 1, 1946.
These defendants, in one or more of the relationships set out in paragraph 2 of Article II of Law 10, committed numerous criminal acts as defined in Law 10, Article II.
These include, as the first substantive group of crimes, the wrongful extension of German law and German courts into and over the Eastern territories and other overrun nations and of the Protectorate, each of which, we contend, was not only an act done by these defendants in connection with and in furtherance of aggressive war, but also done by them for purely political, reasons which made no pretense of being based upon military necessity, so that it was ipso facto unlawful or malum in se and made every act initiated thereafter under such wrongful extension, as against any of the defendants who are responsible under Law 10, Article II, for that wrongful extension of German law, fall into the category of a felony murder or a criminal enslavement, mayhem or atrocity; or a larceny while armed, or a robbery as to the plunder of public or private property.
The other large group in this category of War Crimes is the acts done in connection with the promulgation of the Nacht and Nebel decree of December 7, 1941, and the acts thereafter done in carrying out that program.
The second substantive group consists of the crimes arising out of the activities cf the defendants in connection with the Gestapo, SIPO, SS, and other police groups in which either under the facade of judicial proceedings or by open violation of the meager protection afforded the individuals under Nazi law, Germans and non-Germans were turned over to enslavement and in many cases to demonstrable certain deaths in concentration camps, or in prisons where no pretense was made to operate them other than as concentration camps or human slaughterhouses.
The third group is the cases where, under alleged trials, in the Peoples Court, Special Courts, and civilian courts martial, certain of these defendants, by the use of the prescribed procedures or those actually practiced, the fixing of penalties which outrage the universal moral judgment of mankind, and through convictions based, only upon the subjective conclusions of the prosecutor or judge, which we describe now only as examples, give rise to the legal conclusion that the defendants thus convicted were murdered or unlawfully enslaved under the guise of exercising a judicial process.
The court will get a better understanding of these basic categories of substantive crimes by the following illustrations from the evidence, which I will now ask Mr. Douglas King to first present at this time.
MR. DOUGLAS KING: The extension of German law and German courts into conquered and occupied countries followed as a matter of course after the victorious German armies had done their work. In Poland and the Eastern territories decrees of October 4, 1939 and June 6, 1940 introduced and extended the German jurisprudence into these countries. It was, however, unthinkable to the Nazi mind that a Pole should be able to appeal to German law - that he should have the right to sue a German before a German court in the capacity of a plaintiff, or to appear against a German in a case, or even to serve a wit of execution with the assistance of a bailiff.
To remedy this intolerable situation, the defendant Schlegelberger drafted a decree which, by its terms, placed, beyond the reach of the Roles and Jews in the Eastern territories the last vestige of protection of even the German law. This decree was made effective on December 4, 1941, and from time to time was later amended as the need arose. For instance, approximately a year later, it was amended and made retroactive for crimes committed prior to December 4, 1941. We think it will be of interest to the court to have in Schlegelberger's own words some of the background of this special treatment for the Poles and Jews in the Eastern territories and his own statement as to the purposes which the decree was intended to accomplish. This letter was addressed to the Reich Minister and Chief of the Reich Chancellery (Lammers) and refers to Schlegelberger's draft of the decree which a few months later was made effective on Hitler's order:
"On being informed of the Fuehrer's intention to discriminate in the sphere of the penal law between the Poles (and probably the Jews as well) and the Germans, I prepared, after preliminary discussions with the presidents of the Courts of Appeal and Attorney Generals of the Eastern terri tories, the attached draft concerning the administration of penal laws against Poles and Jews in the annexed Eastern territories and in the territory of the former free city of Danzig.