We further are not surprised when we find on p. 103 of NG 414a report to the State Secretary, this defendant, dated 31 May 1944, by the co-defendant here, Von Ammon, asking for advice as to the admissibility of legal proceedings against stateless Jews. Nor, is it surprising that we find this defendant, Klemm, making the following decision: Turn them over to the Gestapo. This should be enough to convince the Court of the guilt of the defendant of this war crime. But we also point out that in our legal discussion of this crime, that in 1944 alone, there were 42,000 defendants tried under the provisions of this Decree. We have no reason to believe that this activity was appreciably reduced during Klemm's term of office as State Secretary."
If Your Honors' please, the year should be 1942 and the number of defendants should be 62,000, if I may make that correction.
"We do not recall any defense to this crime offered by the defendant in his testimony.
The crime is properly charged in Count II of the Indictment, paragraphs 8, 9, 10, 11, and 12.
The basic crime here, of course, is predicated upon the extension of German law into the incorporated Eastern territories for political reasons contrary to the provisions of International law. The defendant chose in this own testimony, in his own defense, to reveal that he, himself, committed the same crime in Holland while he was there serving in an important legal capacity to the Commissar for the Netherlands. His testimony showed that when he reached Holland all of the shooting had ended and there is not a scintilla of evidence from his own lips, his own documents, or his own witnesses, that there was ever at any time now under discussion, any military necessity which justified the extension of German law into Holland. He also testified that he established German courts wherein citizens of Holland who were German Nationals or German Nationals from anywhere else in the world apparently could try their cases against Dutchmen, instead of using the Dutch courts then available.
He also testified that Dutchmen who had injured or "adversely effected" the interest of a German had to be tried in these courts. He admitted that they exercised criminal jurisdiction, as well as, civil jurisdiction, He also testified that there were no death sentences against Dutchmen in these courts during the time that he was there. He never denied that there were sentences of imprisonment.21 The record also shows that on the 12th of October, 1940, and the 24 September 1940, the defendant notified the Dutch of the changes and agreements which they would have to make in their methods of administrating justice in order to satisfy the German authorities, and the recommendations of the 24th of September, 1940, contained provisions calculated to injuriously effect Jewish businesses and properties in the Netherlands, purely because the owners were Jewish.
The record further shows that on the 17 of July, 1940, German courts to try penal cases in the Dutch territories were established.22 The record further shows that from January 10, to August 11, 1941, four Decrees actually became law and that each of them, was consistent with the recommendations to injuriously effect Jewish businessmen and property owners, which Klemm had previously made.23 This proof is sufficient to convict the defendant of a war crime as defined in the statute, because in every act, he was either a principal or an accessory to the action taken.
To demonstrate the falsehood contained in his statement that he was a mere agent of the Commissioner or of the authorities in the Reich, we cite also his letter of the 3rd 21 - Tr. pp.
4897-4904 and 5096-5099. Ex. 613, NG-2481, Ex.610, NG-2484.
22 - Ex. 615, NG-2519.
23 - Ex. 616, 2112-PS, 618 3323-PS, Ex. 614, 3333-PS, Ex. 617, 3332-PS.
of October, 1942,24 in which he makes certain comments on the personnel in the legal department of the Commissar for the Netherlands and recommends as a particularly severe judge, the notorious SS Leader, Myers of Nurnberg, (This is as good a place as any, to recall to the minds of the Court that when he testified in his own behalf, the defendant, Klemm, insisted that while he was at the Party Chancellery, he was a very unimportant fellow, dealing with questions of law only and defending the "constitutional state" and had nothing to do with personnel management. We ask the court to evaluate this testimony in light of the letter which Klemm wrote to the Netherlands on the 3 October 1942).
JUDGE BRAND: This will be a suitable time for our noon recess until one-thirty this afternoon.
(The Tribunal adjourned until 1330 hours.)
24 - Ex. 609, NG-2483.
Court No. III, Case No. 3.
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 13 October 1947)
DR. WANDSCHNEIDER: May it please the Tribunal, I am merely wishing to offer one more document, Exhibit No. 87, which this morning I did mention. I now hand it to the Secretary-General, and the interpreter certified to it, and that settles the last formalities. The Prosecution has no objection.
THE PRESIDENT: The exhibit has been received.
DR. WANDSCHNEIDER: Yes.
THE PRESIDENT: You may proceed with the argument for the Prosecution, Mr. King.
BY MR. KING:
Rothenberger, as President of tho Hanseatic Court of Appeals, was fully advised as to measures to be taken against Poles and Jews through letters from and conferences with Reich Justice Ministry officials. Letters on this question addressed to Rothenberger, among others, from Schlegelberger and Freisler are in evidence in abundance.25 We take as further evidence the statement of the witness Timmermann, who as Rothenberger's former SD Reporter and President of a Special Court, Ms testified that the Decree against Poles and Jews was applied in the Hamburg courts.26 The further testimony and evidence27 that one of Rothenberger's judges, who was President of the District Court, demanded that the Decree against Poles and Jews be applied against a Polish defendant, and so advised Rothenberger, is evidence that Rothenberger knew of and did not disapprove the policy. While it may be true that there were fewer opportunities to apply the law in Hamburg than in other districts, that alone is not an exculpatory fact when there is creditable evidence on the other hand showing that the decree was in fact applied.
25. For example, Pros. Ex. 71, 500.
26. Tr. P. 9211.
27. Pros. Ex. 597.
Court No. III, Case No. 3.
After August 1942 when Rothenberger became Under Secretary, there is ample evidence showing that he continued to approve the application of the decree. In clemency matters whore Rothenberger made the final review of death sentences, there are numerous instances where Rothenberger authorized the execution knowing that the condemned individual was a Pole, not a German national, and that he had been sentenced under the Decree against Pales and Jews.
The Prosecution believes further that it is entirely incompatible with the character of this man, which has been well demonstrated in this trial, that he would oppose any measure - much less this one - that carried the endorsement of other high officials which he strove to emulate. This would not be the policy of a man who while holding the position of Under-Secretary in the Reich Ministry of Justice could advocate before his colleagues the "ruthless extermination of asocials" as this defendant has done. Fortunately, from the point of view of proof, it is not necessary to rely only on logical inferences of this kind. The evidence shows that he know about the decree, that he applied it and that in this application he achieved a measure of satisfaction in carrying out the objectives of the Party.
The defendant Lautz as Chief Public Prosecutor for the People's Court from 20 September 1939 until the collapse charged violation of the decree against Poles and Jews in countless indictments which he either signed personally or authorized his deputy to sign in his absence. Those which he signed he read and for all he was responsible.28 Based on these indictments Polish nationals were tried in Berlin, sentenced to death and executed for offenses committed both in the Incorporated Eastern Territories and in Germany as well. Not only did the defendant Lautz authorize the citation of the decree against Poles and Jews in the indictments but he approved the plea for the death sentence in every case where it was requested by the Prosecution of the People's Court.29 28.
Pros. Ex. 126, P. 5-6.
29. I bid.
Court No. III, Case No. 3.
He was also responsible, pursuant to the Executive Order concerning the decree against Poles of 7 January 1942, for the execution of penal sentences pronounced by the People's Court which were to be served in penal camps.30 There is no denial of these facts from this defendant.
He has testified that he knew the purpose of the law from reading it, that it was self-explanatory, and that he considered it to be a "very harsh" measure; he further knew of its purpose from reading the Freisler articles in Deutsche Justin.31 As a lawyer his first reaction, as he has testified, was to question in his own mind at least the differentiation in treatment for Poles sentenced to penal servitude under the decree and for Germans under the Penal Code. On inquiry and upon being told that "penal camp" as described in the decrees simply meant that Poles under sentence were to be separated from Germans, he apparently was satisfied with the explanation even though one of the "penal camps" described to him by name - and remember, this was in 1942 was the notorious concentration camp, Schiratz, located in Poland.32 He also had - albeit briefly - doubts that the decree either procedurally or substantively came within the competence of the People's Court but this momentary hesitation was soon resolved by assurances from the Reich Justice Ministry that such doubts were groundless.
33 This is the same Reich Ministry of Justice, so we heard in his Opening Statement, in whose measures he took no part.34 Even these pale shadows of doubt which scurried across his mind must have been mere imaginary for at another point the defendant Lautz seeks refuge in the defense of superior orders, specifically barred as a defense by Law 10, by saying:
"I did not have the right and I did not consider that I was authorized to doubt that legislation."35 30.
Tr. P. 7830-33; Pros. Ex. 269.
31. Tr. P. 5903.
32. Tr. P. 5904; see also Tr. P. 7829-30.
33. Tr. P. 5904; 6029-6033; Pros. Ex. 126, P. 14.
34. Lautz Opening Statement; Tr. P. 4120.
35. Tr. P. 5809.
Court No. III, Case No. 3.
And thus very early in 1942 did the defendant Lautz begin his participation in this crime.
Citation of the decree as a sole charge against a defendant, except possibly for treason and high treason, remained outside the competence of the People's Court. With this exception, to charge a crime under the decree against Poles and Jews, it was necessary also to include a charge in the indictment which the court was competent to hear.36 Once the court gained jurisdiction of the cause in this manner, the Polish defendant could be, and in practice was, sentenced under the more severe provisions of the decree.
What we have said here, we submit demonstrates the mechanics contrived and applied by the defendant Lautz to bring cases under the decree against Poles and Jews before the highest political court in the greater Reich of which he was the Chief Prosecutor. We shall refer to this defendant's guilt again in connection with the application of the decree against Poles and Jews in treason cases.
It matters not that another man, equally lacking in moral fiber, might have accomplished the same design, or that judges were equally guilty in applying the decree. We submit that the evidence in this case which we have briefly reviewed here shows that this defendant knowingly and willingly acquiesced in the criminal objectives of the decree and as such is guilty of a war crime, defined and prohibited by Law 10, or a crime against humanity.
Poles and Jews - Joel The defendant Joel became a referent in Department IV of the Reich Justice Ministry competent for, and whose job it was, to review penal cases from the Incorporated Eastern Territories soon after Poland had bowed to the aggressive power of the Wehrmacht.
He reviewed among others the cases which were tried pursuant to the decree against Poles and Jews. Joel, too, like so many of his former colleagues with him to 36.
See for instance, Tr. P. 5908.
Court No. III, Case No. 3.
day, as he has testified, "felt obligated to apply the existing laws and to comply with them."37 But on the Polish question at least he did not indulge in the fallacious legal sophistry demonstrated by some of his co-defendants in attempted justification of his acts. He knew that a person possessing Polish citizenship before the war was not ipso facto made a German national by the mere presence of the unwelcome aggressor. Joel has testified on cross-examination clearly and unequivocally to this as the following excerpt reveals:38 "Question.
Dr. Joel, how do you define a Polish national, after 1 September 1939?
"Answer. A Polish national, after tho 1st of September 1939, is exactly the same as a Polish national before the 1st of September 1939.
"Question. Not Germans then?
"Answer. A Polish national is never a German."
This action of Joel in approving and applying tho decree is, therefore, not in tho usual stereotype pattern presented here. This defendant frankly admits that he knew he was not dealing with Germans but with foreign nationals. In has official position as a referent for the Incorporated 37.
Tr. P. 6639.
38. Tr. P. 6619; 6620.
Court No. III, Case No. 3.
Eastern Territories' penal matters, and as liaison representative between the Reich Ministry of Justice and the Gestapo. Joel participated in conferences with others from Department IV concerning disposition of pending cases. In one of these conferences in November 1942, Joel is reported discussing an order of Himmler as to the treatment of Poles and Jews, and in another in December 1942, Joel is reported ordering the transfer of a Pole who had been sentenced to a penal camp for three years to the Gestapo.39 Pros. Ex. 280 shows that Joel from 10 September 1942 to March 1943, the period covered by the report, reviewed 105 death sentences passed by courts in the Incorporated Eastern Territories for most of which he gave final authorization for execution. Joel has contended, however, that these individuals were not Polish nationals, even though nearly all the names are obviously of Slavic origin and the executed persons were residents of the Incorporated Eastern Territories. We are told that he assumed these persons had voluntarily acquired German citizenship, and again that he was not concerned with the question of their nationality, and finally that from their files one could not see that they were foreigners.40 The Prosecution has not been impressed by the sum total of this explanation and we urge the court to examine it carefully. Joel in his official position at the request of Himmler, effected the release of two "deserving National Socialists" who had shot in cold blood two Polish priests for no other reason than a dislike of their victims' professed religion.41 Joel saw and approved the extended interpretation of the Nurnberg Law for the Protection of Blood and Honor in the Incorporated Eastern Territories.42 We also submit that Pros.
Ex. 353, which is a summary of 16 death sentences passed on Poles, which Joel, in his capacity as referent for the Incorporated Eastern Territories reviewed, is further proof of 39.
Pros. Ex. 444, pp. 2 - 6 40.
Tr. pp. 6620-21 41.
Pros. Ex. 255, Tr. p. 2347 42.
Pros. Ex. 377, Tr. p. 2564 Court No. III, Case No. 3.his attitude on this general question.
Particularly revealing is a comment on one of these cases in which the condemned man was thought to be a United States citizen. Joel stated that in his opinion this should make no difference unless perhaps German foreign policy would thereby be effected.
What we have referred to here in this connection is but one facet of Joel's acts which we submit are War Crimes or Crimes against Humanity. But what we have said demonstrates clearly Joel's willing violation of International Law.
Poles and Jews - Rothaug The defendant Rothaug was a specialist in committing crimes against humanity.
In fact, he needed no legislation, unlawful under international law, to permit him to commit war crimes. If anything, legislation, no matter how suitable for his purposes of using his Bench as an executioner's block, only disturbed him and required him to use his admittedly ingenious mind to twist the legislation to suit his purposes. The witness Elkar, the SD agent with whom Rothaug regularly conferred every Saturday morning, has testified that Rothaug did not need the law against Poles and Jews; he had been able to act more effectively and do more before the law was passed against Poles than he was able to do after its enactment.43 Nevertheless, in addition to his Crimes against Humanity, we find that Rothaug is also guilty of War Crimes through his application of the Law against Poles and Jews.
He was too good a lawyer not to know that the law was contrary to every provision of international law. He was also such a good racist that he found his provisions for rendering death sentences against Poles who would commit conduct "liable to prejudice the sovereignty of the German Reich or the prestige of the German people", or a Pole who by his conduct "lowers or prejudices the prestige or well-being of the German Reich or the German people" suit 43.
Tr. 2892-3 Court No. III, Case No. 3.able to his purpose and dear to his heart, for the range of opportunities to wreck vengence upon Poles included in this broad language, under the guise of legality, a weapon which we can expect Rothaug to seize upon with naussating glee.
The outstanding cases are those of the case against Lopata 44, Kassing 45, and the two Polish girls Durka and Struss, described in the Kern affidavit and upon which Kern was extensively cross-examined.46 In addition to these cases are the cases set out in the affidavit of Hoffmann 47 introduced during the cross-examination of Rothaug.
The Hoffmann affidavit gives the case Salisch decided 14 September 1942; the case of Sarafin decided 20 May 1942; the Durka and Struss cases above referred to were decided on 19 September 1942. The court will recall that these were the two girls who were brought to Nurnbarg from Bayreuth one night, triad lass than twenty-four hours later and sentenced to death for alleged sabotage. There is also the case of Skalka, decided on 26 June 1942, sat out in the Situation Report from Bems to Schlegelberger.48 The record shows the guilt of the defendant on this charge.
We cannot recall a defense offered by the Defendant sufficiently adequate to justify our spending any time on it here.
POLES AND JEWS - Barnickel The defendant Barnickel did not held office under the Nazis with any illusions as to their immorality, purposes or aims.
In his diary on 6 August 1934, he wrote:
"Hitler's entire system of government is based on lies, violence, terror and a dangerous gamble with the masses." (Tr. 7666) As an able lawyer he must be held to have had knowledge of the unlawful nature of the Decree of 4 December 1941.
Yet ha remained 44.
Ex. 186, NG 337, III E 99 45.
Ex. 477, NG 663, III Sup. 67 46.
Ex. 232, NG 563, III J 129 47.
Ex. 556, NG 982, Tr. 7551.
48. Ex. 478, NG 688, III A Sup.
Court No. III, Case No. 3.
as Lautz's deputy knowingly enforcing this law until he left in 1944. He had knowledge of the Lautz device to give the People's Court jurisdiction to enforce the decree, by incorporating it as a count or as a violated law in all cases for high treason brought against Poles 49 so that if the high treason charge based on the "Polish Legion" fiction failed the other fiction of "owing the German people and the German Reich his labor as a Pole" based upon the Decree of 4 December 194-1 would guarantee success -- a murder or an imprisonment of a Pole by judicial fraud. He used this device himself. 50 He also used to full advantage the provisions for serving sentences in severe penalty camps51 (given to Poles as a special dispensation, possibly so as to base a duty of allegiance to a benevolent Nazi Germany). In the case in Ex. 267, the Pole, Johann Kubiak, was sentenced to six years.
Barnickel directed him to be sent to an aggravated prison camp in May 1942. He died in Auschwitz in February, 1943.
Barnickel's defense seems to be his good intentions, confided to his diary and confined to it also as far as action is concerned. At least two Poles, Bratek and Kubiak are dead.
This defendant is guilty under the law for these war crimes.
POLES AND JEWS - Petersen The defendant Petersen's guilt under this crime, with the permission of the Court, will be covered under our discussion of his guilt for applying the laws of treason, high treason and attempted high treason.
POLES AND JEWS - Nebelung The defendant Nebelung's guilt under this crime, with the permission of the Court, will be covered under our discussion of his guilt for applying the laws of treason, high treason and attempted high treason.
49. Ex. 133, EG 642, III A 114; Ex. 124, NG 597, III A 125; Ex. 137, NG 596, III B 50.
50. Case of Bratek, Ex. 136, NG 595, III B 28.
51. Ex. 266, NG 598, IV A 48; Ex. 267, NG 614, BK IV A 50.
Court No. III, Case No. 3.
POLES AND JEWS - Cuhorst The defendant Cuhorst, according to the testimony of Eberhard Schwarz - whose credibility has never beep shaken in this court, sentenced a Pole, Stanislaus Pitra, to death under the Law against Poles and Jews.
Pitra was a young Pole, possibly 19 years old, who succumbed to the advances of a German woman who had had a criminal record under German authorities for associating with men. Upon these facts, using the Law against Poles and Jews, Cuhorst sentenced Pitra to death (Tr. 2261).
Also, Berthold Schwarz, whom the court will recall was no willing witness for the Prosecution, testified to the same effect. (Tr. 1950) We also have in the record the Fuehrer Information Sheet #6652 which Information Sheet advised Hitler with great glee that now the acme of judicial reasoning had been reached.
A Pole had been sentenced to death for merely having intercourse with a German woman with her consent. This decision was further than any court had gone in determining what was meant by the words "Prejudicial to the German people". The defendant Cuhorst insists that this Pole got a prison term of 6-8 years, and there is evidence in the record that he was tried in August 1942, or a month after the Fuehrer Information Sheet was issued. There is also some evidence that this Pole was tried twice. Be that as it may, there can be no question on the face of this record that the defendant Cuhorst knowingly and willingly used the law against Poles and Jews to sentence this Pole on these facts. In the face of this, the defendant was willing to testify that he had never used the law against Poles and Jews. However, we call to the Court's attention the testimony of the witness Foetsch (Tr. 9363), that the entries which she made in her employer's record showed that this Pole was indicted under the Law against Poles and Jews.
52. Ex. 197, 632 PS, Bk III H 14.
Court No. III, Case No. 3.
We further call the court's attention to the testimony of the witness Hegele, who, upon being asked a hypothetical question, fairly and adequately covering the facts in this case, then testified that there was no law under which a defendant Pole could have been found guilty except the Law against Poles and Jews (Tr. 8383).
There is further corroborating evidence in the shifting defense which the defendant Cuhorst made in the Pitra case. He spent a great deal of time in attempting to prove that because the Fuehrer Information Sheet was not signed it had never had validity. Finally, after the witness Gramm's testimony (Tr. 9070) which cleared this issue up once and for all, he then shifted his ground and stresses evidence on the fact that Pitra was not sentenced to death.
It is certain that Cuhorst tried, convicted and sentenced Pitra. If he sentenced him to death, he committed a War Crime resulting in murder; if he sentenced him to a term of years, he committed a War Crime resulting in unlawful imprisonment.
In addition, the record of the witness Eberhard Schwarz shows that the defendant Cuhorst in May 1942 sentenced the Pole, Leczinski to death under the Law against Poles and Jews, for urging Polish workers to sabotage the farm machines they were working on, and for offending the dignity of the German Reich and the German people by wiping the seat of his pants with Hitler's picture. The defense to this case is unique. We are asked to believe that so ardent a National Socialist as Cuhorst, who sentenced people to death for stealing a bicycle or cigarettes from a post office because they were not supporting the war effort sufficiently, would be so lax in his support of his Fuehrer's war that he would take Saturday afternoons off to visit with his family in the mountains. This defense is so contrary to the fact that it cannot rise to the dignity.
of raising a reasonable doubt in the mind of any man who has read the defendant Cuhorst's record, and who saw him testify on the stand. We are not trying the defendant Cuhorst for being the most ardent Nazi in the Deck, but we are entitled to have his credibility, and the credibility of a defense based upon lax support f his Fuehrer's was measured and and estimated in the light of the fact that support of Hitler, the Nazi Party and the war permeated his whole being throughout the time he was on the Bench, and still permeates it as his conduct in the witness stand evidenced.
The Prosecution very frankly believes that only those with a degree of credulity which is saint-like in its naivity would believe such a defense. Leczinski, beyond a reasonable doubt, was tried by Cuhorst and sentenced to death.
On the 19 September 1942, Cuhorst sentenced a Pole, Krupa to death (Tr.2261) under the Law against Poles and Jews under the fallowing facts. Krupa had an affair with the farmer's daughter. The farmer turned her out in the cold night; Krupa, the lover, came back to burn the barn. Krupa is now dead because this was an act prejudicial to the dignity of the German Reich and the German people. Indeed a tragic twist to time told tales. The defendant Cuhorst never denied trying this case, but first said it was a murder case. When confronted with a newspaper account, appearing in the Naze Stuttgart journal, the N.S. Courier, the official paper for the Gau of Wuerttenberg, whose reports of judicial matters were approved by the Justice press section 53, he admitted that even he, Cuhorst, might have, for once in his life, made a mistake.
Then the defense shifted, and the witness Atzesdorfer, an associate judge of Cuhorst's, came up as a witness and testified that on the day Krupa was sentence by the Special Court, Stuttgart, Cuhorst was, on that Saturday, up in Laupheim trying a murder case (Tr. 8453). This story, of course, conflicts with the story in the Leczinski case that Cuhorst 53.
Berthold Schwarz testimony, Tr. 1929-30.
never worked on Saturdays and is also subject to some inquiry as to its credibility for the reason that Atzesdorfer produced no note or written record from which to refresh his memory. Experience shows that it is quite a feat of memory to place any man in any one town on any one specific Saturday out of fifty-two, five years prior to date of testifying.
The Pole Skowrow was sentenced to death in September 1943 under the Law against Poles and Jews for robbery; also the Pole Mrovice was sentenced to five years' imprisonment, date unknown but admittedly after 4 December 1941 (Tr. 8021-2); and the Pole, Wociniak was sentenced to five years and the penalty was admittedly given under the Law against Poles and Jews (Tr. 8083).
Certainly there can be no reasonable doubt that Cuhorst knew that the Law against Poles and Jews was unlawful under international law. He did not at any time in his testimony deny this fact, or offer any explanation for his use of this law based upon his belief that it was lawful.
The defendant Cuhorst is guilty of war crimes as alleged in Count II of the indictment.
Poles and Jews --Oeschey The defendant Oeschey, like the other Nurnberg Special Court defendant, Rothaug, was a specialist on crimes against humanity.
But he, too, could not turn down the opportunity to use this Decree as an opportunity to commit murder under the guise of legality. It would be contrary to all reason to assume that he would not know that the Decree was a violation of international law and he must be held responsible to have used the Decree as a weapon for death sentences with this knowledge before him. This is sufficient to establish malicious intent. On the 29 October 1943, he sentenced a Polish woman, Kaminska, to death under the Decree against Poles and Jews, at the same time that he used the Public Enemy Decree to judiciously murder Kaminska's associate, a Ukrainian named Wooden.
54 Oeschey was versatile in using weapons. He could use the broad ax Decree against Poles and Jews with his right hand while he 54.
Pros. Exh. 201, NG-457, II 25, Exhibit 201A, NG-457, III H, following page 25.
9653 a stabbed to death a Ukrainian with the Public Enemy stiletto.
The facts in this case cannot be rationalized in such a way that a reasonable doubt could exist that the purpose of the decision was extermination on the basis of race. This is undoubtedly a crime against humanity. By the use of the Decree of 4 December 1941, it was also a war crime.
No evidence of greeter probative value can be found than the quotation from Ocschey on reason in his judgment which reads as follows:
"The German nation which is engaged in a hand defensive struggle, rightly expects the most severe methods against such alien elements.... The fact that the criminal is a Pole is of particular significance."
The Polish woman is dead. In normal times in all civilized countries, one woman murdered by a man, is sufficient to find the man guilty of murder. The defendant is guilty of a war crime, to wit, murder. We should not lose track of the enormity of his guilt in the saturnalia of killing which has been revealed by the record in this case and the record in the other cases being tried here of which this court takes judicial notice.
MR. KING: I call to the Court's attention that on page 32, the foot note reference a.t the top of the page, foot note No. 42 is mission. That should be Exhibit 377, Transcript page 2564.
JUDGE HARING: What page?
THE PRESIDENT: Transcript what page?
MR. KING: 2564.
Criminal Responsibility for "Night and Peg" (Nacht und Nebel) Trials The corpus delicti of this crime lies in two principal uncontraverted facts.
First, several thousands of persons from France, Belgium, the Netherlands and other occupied countries were abducted from their homelands to Germany by the Wehrmacht and turned over for secret trial to the Public Prosecutors at certain Special Courts and the People's Court.
As a sreult of this action hundreds of death sentences were executed and other hundreds of persons were held completely incommunicado until September 1944, when the entire Nacht und Nobel program and all prisoners were transferred by the Reich Justice Ministry to the Gestapo. Secondly, by the fact, likewise uncontraverted, that the accused who were high officials in the Reich Justice Ministry accepted the responsibility for trying Nacht und Nebel cases with full knowledge at the outset that the decree of 7 December 1941 and the requirement of secrecy under which the trials were to be held was in violation of the Hague Conventions and other principles of international law accepted by all civilized nations.55 To these two uncontraverted facts may be added a valid presumption; namely, that each of these defendants being skilled lawyers by their own proud admission, must be presumed to have known that trials of Nacht und Nebel prisoners conducted in the manner ordered by the Reich Justice Ministry, assuming for argument that they never saw the decree itself, were in violation of the Hague Conventions.
The actual number of Nacht und Nebel prisoners removed to Germany from the occupied countries is undoubtedly higher than stated 56 in Pros. Exhibit 333 which shows a total of 6639 as of 30 April 1944.
55. See Appendix 4, particularly pp. 4, 5 and 6; and Pros. Ex. 380, Tr.p. 2584 56.
See Von Ammon testimony, Tr.p. 6462.
The original program continued under the jurisdiction of the Reich Justice Ministry for four months after 30 April 1944 and we can only approximate the additional victims during this later period. Similarly, the number of victims against whom indictments were filed before the Special Court and by the People's Court, are definitely known only as of 30 April 1944, also from Ex. 333, which shows the total for Special Courts to be 3036 and 588 for the People's Court. We know from the same exhibit that on this date the Special Courts had sentenced 1366 and the People's Court 427. The record is replete with testimony that a very high percentage of these sentences carried death penalties which were executed in the spirit of the program in complete secrecy.
For present purposes and without attempting here to approximate the total number of victims, it is abundantly clear that hundreds of foreign nationals were executed in Germany pursuant to the Nacht und Nebel Decree.
Initial negotiations for the OKW- with the Reich Justice Ministry concerning the Nacht und Nebel program were carried out by General Rudolph Lehmann, Chief of the Legal Division of the Armed Forces, and Freisler for the Justice Ministry. Even before the first discussion with Freisler, it was Lehmann's view, as he stated on cross-examination that:
"I attempted to persuade Field Marshal Keitel that the plan had to be rejected for manifold reasons for reasons of international law, for reasons of justice, and policy of justice, and primarily, because I said the administration of Justice should never do anything secretly. I put to him: What kind of suspicion would have to arise against our Administration of Justice if these people, inhabitants of other countries, brought to Germany, would disappear without a trace? In my mind, and in the minds of all others concerned, everything revolted against this particular part of the plan, which seemed to us to have much more grave consequence than the question who should, in the end, deal with it. That was also the opinion of the leading jurists of the Armed Forces in France......" 57 57 Tr.pp.
2601-2.