They have already been identified with these exhibit numbers, and I ask the exhibits be received in evidence now.
THE PRESIDENT: They are received.
DR. KUBUSCHOK: From supplement book No. 2 I am offering Document No. 11 as Exhibit No. 11, and document No. 10 as Exhibit No. 10.
THE PRESIDENT: They are received. That is supplement von Ammon No. 2, they are all received.
MR. LAFOLLETTE: Both of these last affidavits are dated 2 October. They may be the same and repetitious, and might not have to do with an entirely different phase.
DR. KUBUSCHOK: Both of the affiants had already been attested to by my assistant previously. Considering the entire state of affairs of the case, it was, however, necessary to make some supplements, therefore, my assistant reached both of them late, and was only in a position to get these affidavits on 2 October.
THE PRESIDENT: Well, we realize the difficulty that has been involved in getting this in at the last moment. I think we will receive them in evidence.
DR. BRIEGER: (for the defendant Cuhorst): May it please the Tribunal I would like to be permitted to submit to the Tribunal only four more documents the exhibit of which in each case have already been marked for identification. They are, first of all, Cuhorst Exhibit No. 12, Document No. 129 which, as well as the three following documents belong to the Supplement Book for Cuhorst. It is on page 1. It is an excerpt from the French newspaper.
THE PRESIDENT: We can read what you have in your index as well as you. It is in English. In the last days we are giving you considerable leeway in introducing documents that are too late, So, let's cooperate a little.
DR. BRIEGER: May I make only one remark which I am sure the court will consider important. The Prosecution objected recently in connection with these documents that the original French text was not submitted. Therefore, I have added that.
The next number, Exhibit 128, Document No. 130; then Exhibit 130, Document No. 132. Finally Exhibit 129, Document 131. This concludes my submission of evidence.
THE PRESIDENT: Exhibits 127 to 131 are all received.
DR. WANDSCHNEIDER: (for the defendant Dr. Rothenberger):
I have only two more documents to submit for the defendant Rothenberger. First, there is the affidavit by the Justice Inspector Thaden whose affidavit has already been marked for identification as Exhibit 78A. I only had to submit the German and English copies to the General Secretary which I am doing now. It is the affidavit which proves that the general files which I had submitted from the Hanseatic Court of Appeals, referred to the law of protecting custody and the material on that subject had been collected by Rothenberger.
THE PRESIDENT: Just a minute. You say 78A. What is that Exhibit number?
DR. WANDSCHNEIDER: That was the Exhibit No. Rothenberger 78A.
THE PRESIDENT: Document No. what?
DR. WANDSCHNEIDER: The document number? That was Rothenberger 78A.
THE PRESIDENT: In what book?
DR. WANDSCHNEIDER: In Supplement Document Book III for Rothenberger.
THE PRESIDENT: It isn't in your Supplement Document Book III. Supplement Book III contains two documents, NI 04 and N105.
DR. WANDSCHNEIDER: Then it must be two. I am sorry I haven't got it here. It is the collected volume of the Hanseatic Court of Appeals, all the material about protective custody to be found.
THE PRESIDENT: Is it a book you offered before?
DR. WANDSCHNEIDER: It has already been offered a long time ago and it was already received as an exhibit by the court.
THE PRESIDENT: All right.
DR. WANDSCHNEIDER: The next document is an affidavit by Ministerial Dirigen Marx of the 19th of September for that the Exhibit Rothenberger No. 86 has been reserved. It is in the supplement volume Rothenberger No. 3. It was reserved according to the classification of the 26 of September, the Tribunal for the affidavit Marx had reserved the Exhibit No. 86.
THE PRESIDENT: But it is not in your Supplement Book III and I should like to know in what book it is.
DR. WANDSCHNEIDER: It is a loose document. Therefore, I ask that it be added to supplement Document Book 3, that it be put in that book; then there was another Exhibit Number, 87 reserved for the affidavit by the district director Dr. Harmsen of Hamburg, I received that affidavit for various reasons and difficulties only on Saturday. It is in the process of being certified now and I ask for permission to submit it as soon as I receive it. Then the third and last document I am offering, an affidavit by the official of the administration of Hamburg Knoefel of the 9th of October 1947; that statement which I have mentioned on the 26th of September has also been received after the last party for the same reasons Dr. Kubuschok has given.
I had been in touch with him before but on account of distances it was not possible for me to receive the affidavit sooner. I ask for permission to offer that affidavit as Exhibit No. 88.
THE PRESIDENT: That has been previously identified?
DR. WANDSCHNEIDER: No, it had not been submitted for identification.
THE PRESIDENT: Where is it now?
DR. WANDSCHNEIDER: Now I ask that it be given Exhibit No. 88.
THE PRESIDENT: Where are the English copies of Exhibit 88 to be found?
DR. WANDSCHNEIDER: I have them here, Mr. President.
THE PRESIDENT: Proceed.
DR. WANDSCHNEIDER: Thank you, your Honor.
THE PRESIDENT: What about your Supplement Book III which is before us containing N 104 and N 105.
DR. WANDSCHNEIDER: Your Honor, I don't remember what numbers they are. Maybe I could look at them.
THE PRESIDENT: A criticism of verdicts.
DR. WANDSCHNEIDER: I'll get the Supplement volumes immediately and explain to the court.
THE PRESIDENT: The Marx affidavit is marked Exhibit 86. Is that right?
DR. WANDSCHNEIDER: Yes, your Honor.
THE PRESIDENT: Next.
DR. ASCHENAUER (for defendant Petersen): I ask to be permitted to submit two documents which were incomplete when I submitted my document book. It is from Document Book Petersen No. 1, Document No. 29. I am offering it as Exhibit No. 32. I had that exhibit number reserved for identification previously.
THE PRESIDENT: It is received, Exhibit 32 Pertesen. What book was that in?
DR. ASCHENAUER: Document Book Petersen No. 1, Your Honor. From Document Book Petersen No. III I am offering the document Petersen No. 131 as Exhibit 138, Document 131.
THE PRESIDENT: Has that been marked for identification before?
DR. ASCHENAUER: No, your Honer, it has not.
THE PRESIDENT: Where is it? Where are the English copies?
DR. ASCHENAUER: The English copy most be in the Document Book Petersen III. These are not new documents but the translations are already before the Tribunal.
THE PRESIDENT: All right. You may proceed.
DR. ASCHENAUER: That concludes the submission of evidence for Petersen.
MR. LAFOLLETTE: Your Honors will recall that I objected on the ground of probative value for the Peterson document. I don't know if at that time the court reserved a ruling. I would like to know at this time if the court had made a ruling.
THE PRESIDENT: We don't recollect at the moment what documents you objected to but we assure you that in the decision of the case we will not give any weight to any document which has no probative value.
MR. LAFOLLETTE: At this time I will withdraw the objection, your honor.
THE PRESIDENT: The Tribunal will take a 15 minute recess.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. ORTH: Dr. Orth for the Defendant Altstoetter. Your Honor, on the 25 of September in the morning session, Altstoetter Document Book IV was offered by me as Altstoetter Exhibit No. 4. I introduced the whole book under that number for purposes of identification only. I now offer Document Book IV which contains Documents 86 to 99, as Altstoetter Exhibit 4 and I will ask you now to accept it finally.
THE PRESIDENT: The exhibit is received.
DR. ORTH: I have now concluded the presentation of evidence for Altstoetter.
DR. KUBUSCHOK: If Schlegelberger Supplement No. 3 has not yet been received by the Tribunal in English I can now hand to the Tribunal the copies which I have with me. The first Document 164 I offer as Exhibit 158.
THE PRESIDENT: What is the exhibit number, please?
DR. KUBUSCHOK: 158
THE PRESIDENT: The exhibit is received.
DR. KUBUSCHOK: Document 165 I offer as Exhibit 159.
THE PRESIDENT: Received.
DR. KUBUSCHOK: Document 166 I offer as Exhibit 160.
THE PRESIDENT: Received.
DR. KUBUSCHOK: Document 167 I offer as Exhibit 161.
THE PRESIDENT: Received.
DR. KUBUSCHOK: Document 168 I offer as Exhibit 162.
THE PRESIDENT: Received.
DR. KUBUSCHOK: Document 169 I offer as Exhibit 163.
THE PRESIDENT: It is received.
DR. KUBUSCHOK: The Supplement Volume Schlegelberger No. 4 consists of one document only. It is No. 170. This is the text of a law of the 11th Order concerning the Reich Citizenship law. The Prosecution introduced it only in part and I ant to offer it in full. I do not have the translation with me and I don't know whether the Tribunal has a translation.
It is only one document.
THE PRESIDENT: It has been translated?
DR. KUBUSCHOK: It submitted it sometime ago and I cannot tell you for certain whether it was reached the center yet.
THE PRESIDENT: Will you describe it once more then, the document number and so on?
DR. KUBUSCHOK: Document Schlegelberger No. 170. It is offered as Exhibit 164. It contains the text of the 11th Order concerning the Reich Citizenship Law.
THE PRESIDENT: What document book is that in?
DR. KUBUSCHOK: It should be Schlegelberger Supplement Volume IV. And, as I said, the supplement volume has only this one document.
THE PRESIDENT: The number will be reserved for it. When you present it in proper form it may be received.
DR. KUBUSCHOK: And finally I have an affidavit by Dr. Lammers. It was deposed on Saturday and this affidavit was taken at such a late date because during rebuttal reference was made to a discussion by the undersecretaries concerning the evacuation of Jews.
I have made an attempt to obtain an affidavit from the former Ministerial Dirigent Gritzinger who is interned here. Gritzinger has died in the meantime and, therefore, I had to obtain an affidavit from another person and I got such an affidavit. I have had the translations made and I am now handing these to the Tribunal.
MR. KING: The Prosecution objects to this, your Honor, not only from the point of view of date but from the fact that Lammers himself took the stand. The subject matte was brought to his attention and discussed and he was cross examined on it. I don't think there is any reason at this time for even considering the accepting of an affidavit from Lammers.
DR. KUBUSCHOK: I should like to point out that when Lammers was examined this discussion held on the 20 of January 1942 among the under-secretaries had not yet been mentioned at all. It was only during the last few days of rebuttal when the witness Waiter was examined that that question arose at all.
Concerning the term "discussion of under-secretaries," I now want to submit an affidavit by Gritzinger, and in the case of Gritzinger I was always told from one day to another that I might be able to contact him.
THE PRESIDENT: We are not concerned with the explanation of why you can't have the affidavit of a man who is now dead. The question is whether we should receive this affidavit.
DR. KUBUSCHOK: When I heard that Gritzinger had died I immediately obtained an affidavit form Lammers. He was Gritzinger's chief.
THE PRESIDENT: I think the question must be this: whether the subject matter which is covered in this affidavit was also covered in the examination or cross examination of Lammers when he was on the witness stand. If it was not, and if a new matter came up in rebuttal, then the affidavit would be properly received. If the same subject matter was covered in the examination of Lammers as a witness then we will reject the affidavit.
Now, the decision on that matter can only be made by a comparison of the affidavit with his former testimony. You can register your objection and we will examine the testimony and the affidavit and rule accordingly.
MR. LAFOLLETTE: That statement of the Court is completely satisfactory to the Prosecution.
THE PRESIDENT: What exhibit number do you want for it, 165?
DR. KUBUSCHOK: The Document number is 171 and the Exhibit number is 165. I have finished, your Honor.
DR. WANDSCHNEIDER: I should like to give an explanation to the Tribunal concerning the question that remained unsettled this morning. Supplement Volume III contains extracts from the general files of the District Court of Appeal. That volume from the District Court of Appeal had been received for purposes of identification. The exhibit number 78 was reserved for it.
To confirm the point that these are files from the District Court of Appeal concerning documents about protective custody, I had offered the von Thaden affidavit for which I asked for the Exhibit No. 78-a to be reserved. I have handed the translations to the SecretaryGeneral. The affidavit is by von Thaden.
In Supplement Volume III the next document number is 105 and the exhibit number is 79. That had been settled.
The further documents which I introduced today belong in this Supplement Volume III. They are an affidavit by Marx, Document Rothenberger No. 106. The Exhibit number is 86 and the Tribunal knows about that.
THE PRESIDENT: Exhibit No. 78 was reserved.
DR. WANDNHUERDER: 78 was reserved for Rothenberger Document 104.
THE PRESIDENT: That is received. 78-a-
DR. WANDNHUERDER: That was 78.
THE PRESIDENT: Now 78-a. That was received also.
DR. WANDNHUERDER: That was reserved for an affidavit by von Thaden. He is an official of the Hamburg Administration of Justice.
THE PRESIDENT: Where is that affidavit?
DR. WANDNHUERDER: That is also contained in Supplement Book III. It follows after Exhibit 78 and this is Exhibit 78-a. I submitted that at an earlier time, this statement by von Thaden, and in the English translation it was submitted today.
THE PRESIDENT: What page of your Document Book does that affidavit begin?
DR. WANDSCHNEIDER: The affidavit, your Honor, is just an affidavit all by itself. It is a loose affidavit. It is not yet contained in a Document Book.
THE PRESIDENT: Now, Exhibit 79 -
DR. WANDSCHNEIDER: Exhibit 79 -
THE PRESIDENT: -- is 105?
DR. WANDSCHNEIDER: 105, yes.
THE PRESIDENT: In Supplement Book III?
DR. WANDSCHNEIDER: Yes, III. The next document is the Marx affidavit which I mentioned before and it had already been accepted for purposes of identification. The exhibit number is 86.
THE PRESIDENT: 86.
DR. WANDSCHNEIDER: In Supplement Volume III. The next document is the affidavit by Harmsen Rothenberger Document 107.
THE PRESIDENT: Are we supposed to have that here? I don't find it.
DR. WANDSCHNEIDER: No, your Honor, you haven't had it yet. It is still with the Translation Department and I shall be able to introduce it after lunch. The exhibit number is 87. It has already been received for purposes of identification only.
The next document is the Knoefel affidavit. This morning it was received, the exhibit number being 83. It is also contained in Volume III. That finishes my Supplement Volume III and all I shall have to do this afternoon is to hand, after lunch, the Harmsen affidavit to the Tribunal.
Now I have to say something about Supplement Volume II. The exhibit numbers 80 through 85 in that volume were received only for identification for the simple reason that at that time the translations were not yet available.
THE PRESIDENT: Were all of your documents from N-94 through N-103 identified before?
DR. WANDSCHNEIDER: Yes. They were identified but, as a matter of form, they now have to be received because now the translations are available and I just wanted to attend to that matter now.
THE PRESIDENT: Give us the exhibit numbers, please. 94?
DR. WANDSCHNEIDER: That is Exhibit 80.
THE PRESIDENT: 95?
DR. WANDSCHNEIDER: Nothing; 96, nothing. Document 97, Exhibit 81. The next two numbers will be dropped. Document No. 100 is Exhibit 82. The next number is 83. Document No. 102 is Exhibit 84, and Document No. 103 is Exhibit No. 85.
THE PRESIDENT: They are all received.
DR. WANDSCHNEIDER: Thank you very much. I believe I have now cleared up all the matters pertaining to these Supplement Volumes 2 and 3.
DR. KOESSL: Koessl for the Defendant Rothaug. I have just found that the information sent out that Rothaug Document 234 which I had offered as Exhibit 225 has now been handed to the Secretary-General in English and I would ask the Tribunal now to receive this exhibit. Document 237 was offered today as Exhibit 225. These are extracts from the personal files of the District Court of Appeals at Nurnberg concerning Hermann Gottfried.
THE PRESIDENT: Book 13, Document 237 is received as Exhibit 225.
DR. KOESSL: That is all.
MR. KING: The Prosecution has two corrections of the English text of Documents offered by the Defendant Joel and the Defendant Lautz.
In the English text of Joel, Document 35, Exhibit 25, a slight error was made in the translation and we offer herewith a certificate of correction signed by the translator who made the original translation of that document.
The other correction concerns Lautz Document 287 which was Lautz Exhibit 184. The original translator in that case has also certified to the correction. We have adequate copies for the Court and the Defense counsel concerned and we will hand those up now.
THE PRESIDENT: I have a correction for the Joel exhibit, but not for the Lautz exhibit. I have it now.
Are we to understand that both the Prosecution and each of the defendants have now rested their case?
Hearing no objection, we declare that the testimony is closed.
Just a moment, Mr. LaFollette. We are informed tha.t Lautz VIII and Schlegelberger Supplement III have been delivered. They will both be received in evidence.
We will now again close the case.
The Prosecution may address the Court in its final argument.
MR. LaFOLLETTE: May it please Your Honors, the Prosecution in this case believes that this is a lawsuit, not a pageant. We have tried to conduct it on that basis. We hope to conclude it with a closing statement, so organized that it will enable man, on the exercise of his reason alone, to understand that which we do here.
We believe that a better understanding of what is being done here will follow if we reduce the crimes committed under International Law to terms that are understood by the layman and lawyer in the civilizations which have drafted or adhered to Control Council Law No, 10, and, before it, the London Agreement and the Charter. We shall speak of corpus delicti, homicide, unlawful imprisonment, forcible entry and detainer, malice, intent, responsibility, consent and similar definitions and the reasoning by which the guilt of felons is determined in the national criminal laws of those nations. From these definitions we hope to prove that there is no new mysterious law invoked here; nothing novel in the crimes committed here and no romantic martyrdom attached to the conviction of the common felons who are the defendants here.
We shall argue the guilt of the defendants under the crimes charged in the indictment in that order. We shall in the case of each crime which we discuss establish (1) the corpus delicti of the crime, (2) the guilty relationship of each defendant to the corpus delicti as that relationship is defined in Contro.
Council Law 10; (3) the rules of evidence end procedure governing the proof of guilt of the defendant; (4) that the crime is adequately alleged in one or more of the Counts of the Indictment and finally, we shall discuss the defense which is being offered by each defendant so far as we can discern it.
We are filing with this closing statement, and making a part of it by reference, appendices numbered 1 to 4 inclusive covering the following legal subject matter:
1) The Rules of Malice, Intent, Purpose and Responsibility which apply here;
2) The Rules by which the Relationships set out in Law 10, Art. I, Par. 2 are to be interpreted;
3) Definitions of the Crimes which are punishable under Law 10;
4) The Rules of Interpretation of Criminal Statutes and of the Rules of Procedure which apply here.
We shall also file with and make a part hereof in the same manner, an Appendix No. 5 containing a review of the evidence relevant to the Nacht und Nebel decree.
We shall not read these appendices, but we ask that they be incorporated in the Transcript of the Record as a part of this final argument, along with the footnotes which we also shall not read.
At this time I ask the Tribunal if it will make such a ruling that they may be considered as part of the transcript.
THE PRESIDENT: They will be incorporated in the transcript of the record.
MR. LA FOLLETTE: Transcript of the record, yes. Thank you, Your Honor.
Finally, in this introduction we wish to dispose of the subject of the corpus delicti involved here, because we believe it will make more readily understandable that which we do here.
For crime under International Law too has its corpus delicti.
Wharton's1 contains the following succinct statement of the simple elements which are inherent in every criminal act.
"Sec. 349. A criminal charge against an accused involves both the commission of the offense and his guilty agency in connection therewith, and both these propositions must be fully established... Thus, in a prosecution for murder, proof of the corpus delicti involves the establishment (1) that the person named is dead, (2) that he came to his death through the criminal act or agency of another human being; but such proof does not involve the establishment of the guilt of the accused; this requires the further proof (3) of the agency of the person accused in bringing about the death."
It is, of course, clear that the legally inferrable death of factually ascertainable human beings must be established. It is equally clear that the second element of the corpus delicti, the criminal "act of agency", is not established in this case until the Prosecution establishes as a matter of law, as in a murder case for example, that the person came to his death through the "act or agency" of another human being (not necessarily one of the defendants) which was "criminal" under international law, Finally, the "agency" of each defendant is determined by the provisions of Art. II, Par. 2 of that la.w.2 This case is, after all, a normal criminal action.
The fact that some persons who are dead cannot be identified by name3 does not 1. Wharton's Criminal Law (12 Ed. 1932). Hereafter all references to Wharton or Wharton's refer to the above authority.
2. The purpose of Appendix 2 is to show the simple, well known standards by which this definition of agency is to be interpreted.
3. The 500 to 800 prisoners shot at Sonneburg (Tr. 2421, Ex. 293), the persons transferred to Mauthausen (Tr. 2942), and other concentration camps (Tr. 2946, 2961); the fifty to sixty Jews of Wuerzburg out of the 2063 deported to the East, who one witness personally knew never came back (Tr. 9258, 9260). Is the spirit of the law violated if the dead at Sonnenburg are not given names? Is it an inference repugnant to the law to find that persons sent to Mauthausen, Flossenburg and Auschwitz died there (Tr. 2942, 2946, 2961). Or that Jews sent to the East and never heard of again are not dead?
If so, then away with the law, for its spirit is not logical or rational, but idiotic and sinful.
prevent the corpus delicti from being established to the satisfaction of the most meticulous adherent to the substance and purpose of that legal concept; the fact that the "act or agency" may be novel does not alter the fact that in the final analysis it is criminal; the fact that the words "a consenting part in" or "connected with plans and enterprises" heretofore may not have been used to define a guilty relationship to a crime, does not detract from the fact that the relationship to the corpus delicti, thus defined, is one which has long been accepted as criminal by the legal systems of the initiating and consenting nations.
In Appendix 2 the Prosecution has demonstrated that the "plan or enterprise", defined in Law 10, Art. II, Sec. 2, is not one in which only these defendants or even one in which only the Reich Justiz Ministerium was engaged. The law, therefore, is complied with if the "plan or enterprise" is proved to be one, criminal under Law 10, which the Nazi Government, acting through individuals in their official capacity, was engaged in carrying out. The guilty "act or agency" of any of the defendants is established if he had knowledge of that "plan or enterprise" and then was "connected with" it, or took a "consenting part" in it. We present this basic premise a.t the outset for two reasons. First, it makes the position of the Prosecution more easily understood; second, an acceptance of the correctness of this interpretation will enable the Court to properly evaluate the defenses so often heard during the presentation of the defense, namely; "The Wehrmacht wanted it and the Ministry (of Justice) could do nothing about it." - "That was Hitler's Order - the State and we had to go along"; - "Bormann and the Party Chancellery persuaded Hitler to do it"; or "Himmler and the SS did it and we had to agree."
A study of the Indictment, the law and the proof in this case discloses that most of the defendants are involved in one or more crimes which the prosecution has chosen to denominate as major crimes.
This designation of major crime is not applied because the crimes are more important or more heinous. It is made solely because it will readily appear from the evidence that certain defendants occupied one of the guilty relationships defined by Par. 2 of Article II of Control Council Law No. 10 and discussed in Appendix 2 to certain basic crimes. We conclude, therefore, tha.t we will make a clearer presentation of the Prosecution's position if we first establish that these crimes have been committed and then establish the guilty relationship to this crime of each of the defendants involved in its commission.
The Crimes Committed by the Enactment and Enforcement of the Law against Poles and Jews.
The corpus delicti of this crime lies not only in the abundant proof of the death of Poles and Jews pursuant to this decree and its extensions, but also in the promulgation of the decree in which certain of the accused, particularly Schlegelberger, took a leading part with full knowledge of its criminal purpose and its basic violation of international law.
This decree of 4 December 1941, among other things, ordered Poles and Jews in the Incorporated Eastern Territories to conduct themselves in "conformity with German law and regulations" and to abstain from conduct liable "to prejudice the sovereignty of the German Reich or the prestige of the German people".4 The decree provided that the death penalty "shall be imposed" against Poles and Jews if they commit an act of violence "against a German on account of his being of German blood". In cases where the death penalty was not provided the decree stated that "it shall be imposed" if "particularly objectionable motives" or "grave reasons" were shown; juveniles could be sentenced 4. Pitra, a Pole, was convicted by the defendant Cuhorst for having sexual intercourse with a German woman, not only with her consent but at her amorous instigation.
to death (at that time German juveniles could not be), and a Pole or Jew could be prosecuted "if punishment is in the public interest". Other provisions related solely to the Incorporated Eastern Territories and, others to the Government General, under the "beneficent" Hans Frank, who has been denounced in this case by the defendant Schlegelberger, Klemm and Rothenberger.
We must keep in mind that the patent purpose of this law was not to preserve order in the Incorporated Eastern Territories, a. concept which finds justification in international law. There is no modern history precedent to match the purpose of this decree even if we look to the imposition of German law on the Belgians during the first World War which was itself declared as an unlawful act. This decree was for, and only, for the punishment of crimes by Poles against Germans and had no relation whatsoever either to the requirements of military necessity or the keeping of domestic order in Poland for the benefit of a Polish nation composed of people enjoying the privileges of full citizenship.
We shall demonstrate the corpus delicti of this crime by summarizing the evidence in this cause shoving: (a) that Poles and Jews were summarily put to death, turned over for extermination in concentration camps or imprisoned, tortured and subjected to ill-treatment; (b) that each individual defendant accused hereunder knew or must be charged with the responsibility for knowing that the decree and its extensions were introduced and applied for "political" purposes and that its promulgation and enforcement had no relationship to "military necessity" and as such that it was in violation of the Hague Convention of 1907, and; (c) that the actual drafting of the basic law was performed by the defendant Schlegelberger and others in the Reich Ministry of Justice who shaped its purpose to murder, enslave, imprison and torture other human beings with full knowledge of its criminal character; and lastly, that the various crimes, as have been set out in (a), (b) and (c) above, were effectuated in part by courts operating under the jurisdiction of the Reich Justice Ministry, by the People's Court and by other courts passing sentences pursuant to the decree and its extensions with knowledge of, consent of, and under the direction of the Reich Ministry of Justice.
We now review, although not exhaustively, the evidence necessary to establish beyond a reasonable doubt the corpus delicti and the guilty agency of each of the accused.
Proof that Poles and Jews were sentenced to death, turned over to the Gestapo for extermination in concentration camps, sentenced to prison and subjected to ill-treatment is established by the following evidence. In Poland these facts are clear from the Polish Government report which is Prosecution Exhibit No. 3795 and by reports from German Justice officials themselves in Poland.
6 In Germany the facts are established by the dozens of sentences against Poles by Special Courts7, and by the People's Court.8 A report of the Reich Justice Ministry shows that approximately 62,000 defendants were tried before German courts for violation of the decree during 1942 alone.9 The defendants accused who were principals or took a consenting part in these crimes did so with knowledge, or with every opportunity to know, that their acts were violations or international law.
The official publication of the Reich Justice Ministry, Deutsche Justiz, in articles beginning shortly after the decree became effective, made it clear that the primary purpose to be gained was "political". In one of the first of these, from the issue of 19 December 1941, Freisler expressly stated that the purpose was to establish "Germanism" in Poland.10 He goes on to say, "Thus also without express legal permission, the application of German penal law was legally founded."
5. Tr. pp. 2578-2582.
6. Ex. 350, NG-360, dated 28 Febr. 1941; Tr. pp. 2527 Ex. 353, NG-211, dated 30 Apr.
1940; Tr. pp. 2529 Ex. 351, NG-309, dated 22 Sept.
1943; Tr. pp. 2528 Ex. 352, NG-305, dated 1 Oct.
1943; Tr. pp. 1529 Ex. 366, NG-318, dated 8 Oct.
1942; Tr. pp. 2549 Ex. 367, NG-329. dated 27 Aug.
1942; Tr. pp. 2549 7. Ex. 186, NG-337, dated 26 Oct.
1942; Tr. pp. 1235 Ex. 201, NG-457, dated 29 Oct.
1943; Tr.pp. 1487, 2968 Ex. 244, NG-459, dated 26 Jan.
1945; Tr. pp. 2103 Ex. 152, NG-154, dated 13 March 1943; Tr. pp.
1015 Ex. 154, NG-681, Tr. pp.
1060 Ex. 197, 632-PS, Tr. pp.
1477 Ex. 232, NG-563. Tr. pp.
1634, 3934 Ex. 465, NG-1253, date:
June 1943; Tr. pp. 3277. 3283, 3303 Ex. 147, NG-562, dated 30 Aug.
1943; Tr. pp. 1075 Ex. 227, NG-161, Tr. pp.
1561 8. Ex. 128, NG-355. dated 24 Feb.
1942; Tr. pp. 844 Ex. 129, NG-352, dated 12 Aug.
1942; Tr. pp. 852 Ex. 130, NG-641, dated May 1943; Tr. pp.
864 Ex. 132, NG-351, dated 21 May 1943, Tr. pp.
877 Ex. 133, NG-642, dated 24 Feb.
1942; Tr. pp. 881 Ex. 134, NG-597, dated 22 Feb.
1941; Tr. pp. 890 Ex. 135, NG-354, dated 21 Apr.
1943; Tr. pp. 898 Ex. 136, NG-595, dated 20 May 1943; Tr. pp.
902 Ex. 137, NG-596, dated 17 Dec.
1941; Tr. pp. 908 Ex. 138, NG-613, dated 4 Sept.
1943; Tr. pp. 914 9. Pros.
Ex. 507 10 Ex. 627, NG-1187 Tr. pp.
9351 In the same article Freisler also states: