The defendant Klemm has testified hare as a witness with what care these indictments were examined in the Ministry of Justice. And finally the German state has always threatened the prosecutor with the severe penalties provided for in the penal code for failure to obey the legal order to prosecute. And these penalties were to be supplementary to the disciplinary penalties which the disobedient public servant had to expect per se.
With these measures - legality principle, strict adherence to directives and duty to report of the prosecutor liability to be punished in case of disobedience on part of the prosecutor, the providing of penalties for the disobedient prosecutor - the legislation of the seventies of the 19th century believed to have the guarantee that the claim of the State to supremacy in criminal matters against everybody could be ruthlessly enforced. The counterweight to this strong influence of the State leadership on criminal proceedings was formed by the independence of the judge, who need not fear that he would come to any hard on account of his decision - unless he had violated the law. The Third Reich did not change this state of affairs basically. Whether - what regards the court - other factors, for instance the application of the selective principle and the reform of the criminal law since 1933 have brought about a great change, is none of my concern. The prosecutor in any case continued to be subject to law and directive to the same extent as had been before.
All this is corroborated in my exhibits 53-55-58-60, 83-86, 92, 152-165, 172-229.
And it has, again and again, been explained as a matter of course in the testimonies of the witnesses - those of the prosecution and those of the defense as well - that the prosecutor had always been bound to the written law and to the directives of his superiors. I need only mention the testimonies of the witnesses Behl, Brem, Doebig, Court No. III, Case No. 3.Jahrreiss, Gruab, Ruemelin, Engert, Mueller, Paulus, Hofmann, etc.
I want to refer to another aspect which is of considerable importance just for the appreciation of the activity of the prosecutors who are defendants in this trial:
If the prosecutor is bound by law to carry out his duties according to the directives of his official superiors and to hide his own views, he can only draw the line at one point: He cannot be required to commit an offense in law. Apart from that, he has no choice to act one way or the other. As a representative of the State he just cannot, in his official acts, voice any other opinion than the opinion of the State. Accordingly, he need not fear either that he will be made responsible for his official acts, which he has carried out according to directives. That is also the interpretation of the French law. It has only recently been expressed again in the Judgment of the French Military Tribunal at Strasbourg of 3 May 1946 which I have submitted in my exhibit 166. The defendant in this case, amongst other people, was the Chief Public Prosecutor, Luger, of the former German Special Court at Strasbourg, because he had indicted, and asked for death sentences, against such Alsatians - that is to say, Frenchmen - who in the autumn of 1942 had not obeyed the call-up for military service. The French Military Tribunal, whose competence is established by an integral part of Statute No. 10, the London Four-power-Agreement of 8 August 1945, and whose legal argumentation derived from the French liberation law of 28 August 1944 acquitted the Chief public Prosecutor, because he had acted according to orders of his superiors to whom to obey he was by duty bound. The provisions of Statutes No. 10 who were doubtlessly known to the Tribunal. It would have applied them to the detriment of the Chief Public Prosecutor if it had not been of the opinion that the Chief Public Prosecutor, through the directives given to him, was exempted from the duty to examine the problems of international law involved in the proceedings before the German Special Court.
Court No. III, Case No. 3.
In paragraphs 9, 11, 21, and 23 of the indictment, Lautz is charged that by preferring charges against Germans as well as against inhabitants of occupied territories he participated in the suppression of political opposition against the Reich; that, in so doing, he made use of the Extraordinary Special Courts and of a misuse of criminal procedure, that by twisting the penal laws he had classified passive defeatism and unimportant utterances as treason; that he had also prosecuted nonGerman nationals for high treason against the Reich.
As may be gathered from the rounds given in their oral statement, the Prosecution evidently bases this charge on the assumption that Austria, Bohemia and Moravia, as well as the incorporated Eastern territories, are to be regarded as occupied territories and that resistance against the Reich on the part of their inhabitants is to be regarded as lawful. The Prosecution attempted to back their statements by submitting a number of indictments and judgments of the People's Court.
In reply to that, the following has been established by the evidence:
Austria voted itself into the Reich by the plebiscite of 10 April 1938. In accordance with an agreement with Czechoslovakia Bohemia and Moravia were declared parts of the Reich by a decree of the Fuehrer and Reich Chancellor, dated 16 March 1939; and the incorporated Eastern territories were reunited with the Reich after the defeat of the Polish state in 1939 by a decree of the Fuehrer and Reich-Chancellor, dated 8 Oct. 1939. In consequence of these constitutional developments, German law, thus also German criminal law, was introduced in these territories; in Bohemia and Moravia, however, essentially only those criminal statutes were introduced, with applicability to non-German nationals which aimed at the security of the state.
Like every German official, the Defendant Lautz was obliged by his office, to respect the legal position, as laid down by the law. The evidence made clear beyond doubt that during the time of the Empire as well as during the time of the Weimer Republic and during the 3rd Reich, no official had either the right or the duty to examine laws, which he had to carry out, from the point of view of whether they were in agreement with the principles of the law of nations; may I here amongst others, refer to the statements of the expert Professor Dr. Jahreiss and my exhibits Nos. 87 -- 109. This naturally held good also for the Defendant Lautz. He neither ever had the authority to doubt the validity in the sphere of international law of the pertinent principles. Apart from that, it has to be stressed emphatically that ho neither was nor even could have been acquainted with any of the facts, which might have caused him to nourish such doubts.
His knowledge concerning the political situation was based exclusively on the official announcements of the German regime. These, however, gave him the following aspect:
a) Austria:
The law of 13 march 1938 regarding the re-union of Austria with the German Reich, which had been agreed on by the Austrian Federal government, had been overwhelmingly approved by the Austrians in the plebiscite of 10 April 1938. The Great European Powers, above all England and France, had recognized the Anschluss of Austrian de facto and had concluded the agreement concerning the Sudetan districts in September 1938 in Munich.
b) Bohemia and Moravia:
The occupation of the so-called "rest of Czechoslovakia" in March 1939 had equally been accepted by the Great European Powers without a protest and been de facto recognized through recall of their diplomatic representatives from Prague. I may in this connection also refer to the Schlegelberger Exhibit 134 (Schlegelberger Document 140), from which England's de facto recognition of the new situation in the territory of Czechoslovakia can be shown.
c) Eastern territories:
After the defeat of the Polish Republic in autumn 1939, according to the German-Russian agreement for mutual interests of 29 Sept. 1939 (Schlegelberger Exhibit 149), the Reich was entitled to decide on its own discretion or the constitutional form for the territories west of the demarkation line. With certain territorial adjustments, - it therefore declared those territories to be German Reich territory which had been parts of the kingdom of Prussia until 1918, i.e. for approximately 120 years.
Similar considerations held good for the Memelland, the Danzig Free State, Eupen and Malmedy-Moresnet. If these areas had to be regarded as parts of the Reich -- and nobody had any doubts in this respect, as in also shown in the extracts from the competent commentaries and the decisions of the Reich Supreme Court in my exhibits No. 193, 212 - 215, then it was self understood that every attempt by force to remove the new constitutional situation constituted the preparation for an act of High Treason against the Reich, and that was the case even if the perpetrators were not Germans.
In this connection may 1 point to my exhibits 227 and 228. In addition, it will be shown that in Bohemia and Moravia, but above all in the incorporated Eastern territories, the aim of the resistance movement was by no means limited to the reestablishment of the so-called status quote at the time of the occupation by the Reich, but aimed beyond that at the extension of their own territories at the expense of the so-called Altreich. They thus constituted a very real danger, which had to be taken into account, especially as the means, with which the underground struggle against the Reich was being carried on above all in the East, - grew more and more menacing. This is proven by Schlegelberger Exhibit 157.
If, however, facts were present, in a case which pointed in the direction of the realization of these aims, then it was even the legal duty of the Reich Chief Prosecution at the People's Court to bring a charge, in accordance with the principle of legality pursuant to article 152 of the Code of Criminal Procedure in my exhibit No. 83. Lautz complied with this duty within the framework of the directions which he. received from his superior, the Minister of Justice. The Prosecution was unable to submit any proofs that he proceeded in this from any but an absolutely objective point of view.
May I in this connection state the following in detail: Eastern territories:
Very soon after the re-incorporation into the Reich of the territories which had been lost to Poland in 1918, illegal resistance groups formed there. They prepared for an armed insurrection against the Reich; they collected arms and decided on the primary points of attack in the case of insurrection.
For this purpose funds were collected, information channels established within the various groups and a readiness for revolt instigated by propaganda which was carried on with great efforts amongst the population by means of pamphlets and secret radio stations. Forged identity papers served to protect functionaries from discovery. The aim proclaimed by the insurgents was the destruction of the Reich at the first favorable moment, and the founding of a Greater Poland whose borders were to be pushed on to the Oder, at the expense of the Old Reich. Thus it should contain also those areas which always have had purely German populations, as it actually happens to be the case today, when the Poles drove out its 12 million inhabitants.
This set of facts is the base of the indictment in the prosecution exhibit 137. It accuses all defendants for having prepared the commission of high treason against the Reich.
The prosecution exhibits 125 end 134, or which only the latter contains an indictment signed by Lautz, is also concerned with the distribution of leaflets of the Polish resistance movement. Their printed request to hide weapons and war implements for the purpose of a revold and the demand for the forcible founding of a Polish state with its historical frontiers as far as the Oder, all unequivocally prove the violent aims of the authors, which the distributors of the pamphlets then adopted as their own. In this case, too, German law compelled an indictment for preparation to commit high treason. Of different nature are the cases treated in the prosecution exhibits 135 and 138. These acts were committed in the Old Reich. Concerning the case Kotzlovski, exhibit 138, it should be added that although the perpetrator was a native Pole, he had acquired German citizenship many years before. The indictment's charge that he propagandized the violent aims for a Greater Poland amongst Polish civilian workers legally constitutes the act of preparation to commit high treason. I wish to refer to the decisions of the Reich Court Martial in my exhibits 210 and 211 according to which the facts of the case on which the indictment in exhibit 135 are based, to wit, the attempted freeing of an allied flier held as prisoner of war, for the purpose of enabling him again to participate in the fight against the German Wehrmacht, constitutes pursuant to German law, the act of aiding and abetting the enemy.
Bohemia and Moravia:
The documents presented by the prosecution and the statements of defendant Lautz on the witness stand have shown that also in the area of Bohemia and Moravia, scon already after their incorporation into German Reich territory, far-reaching and dangerour attempts were made to reconstitute the Czechoslovakian state, and to extend its borders at the expense of the Old Reich - and indeed that communists tried to set up in all European countries people's republics according to Soviet precepts. These ideas were propagated partly by national, partly by communistic groups, who however were kept up mutual contact amongst themselves. They disposed of a large number of weapons and ample funds, were reinforced by agents dropped by enemy planes who brought them weapons, radio apparatus and other intelligence material, and they carried on very zealous and successful propaganda activities by means of all kinds of leaflets. By this as well as by numerous sabotage acts and surprise attacks of armed bands, quite a dangerous situation was conjured up for the security of these areas which were particularly important for the defense of the Reich.
These conditions which were described in detail by the defendant Lautz when interrogated as a witness, could all very easily be proved to the last item from the files of the People's Court if it would have been possible to present them here. But even the few documents submitted by the prosecution convoy a picture of the situation at that time. Firstly, there is the case of Charvat et al in exhibit 509. It concerns an indictment signed by the defendant Lautz against nine, very active members of an illegal communistic group in Chotzen in Bohemia. In its pleadings the prosecution described them as men who had no criminal record, and who distributed harmless leaflets.
But what they really did and intended to do follows from what they have said themselves; the aim of their illegal work was to set up a communistic people's republic in the territory of Czechoslovakia, and the spreading of the communistic revolution to the other countries of Europe. The population of the Protectorate, therefore, was to be incited against its own government, and the power of the Reich weakened by every type of sabotage acts. For this purpose active campaigns to recruit members and to distribute leaflets of similar contents were carried on. On this set of facts the indictment signed by Lautz bases its accusation for having committed the preparation of high treason, and of aiding and abetting the enemy. This indictment was drawn up in every respect according to the instructions of the Ministry of Justice and the rules of law as constantly practiced by German courts, particularly the Reich Court Martial, as is shown for instance by the prosecution exhibit 66 and my own exhibit 185. The same applies to the case Jamrozy et al, in prosecution exhibit 185. In this case only the sentence is available which sets forth that two of the three defendants prepared for the revolt, being leading functionaries of a communistic group in the mining district Michalkowitz (Moravia). To this category belongs also the prosecution exhibit 513. It concerns the case of one Chalupa, who, according to the indictment signed by Lautz, procured for a communistic functionary explosives for sabotage purposes. Finally, the prosecution submitted exhibit 567, which contains the indictment signed by Reich prosecutor Parrisius, and which accuses the defendant Nohawiska to be guilty of having aided and abetted the enemy, and to have committed acts in preparation of high treason, by spreading inflammatory news heard on enemy stations, to have kept in hiding saboteurs wanted by the police and to have distributed illegal pamphlets. The exhibit 184 does not sufficiently show what the Reich prosecuting authority really charged the defendant with; the document contains neither the indictment nor the reasons of the sentence.
The mutineers against Germany, however, were not content to operate only in the areas which were joined by the Reich. The insurrection was effected, at least by the attempt, to extend military aid to the Polish and Czech legionaires who, as in generally known, fought in considerable numbers on the side of the Allies against Germany. The perpetrators were in part inhabitants of the Protectorate, recruited from all classes; partly they were Poles who came from the incorporated Eastern territories as free workers to the Old Reich, as they have expressly declared according to my exhibit 200, and prosecution exhibit 136, and they made these statements to the investigating judge, and not as the prosecution now asserts to the Gestapo. Even if all other view points concerning the legal position of these men were excluded, their actions undoubtedly would contravene international law. For about the following no doubt was left by the powers which were represented at the Hague Conference of 1907: As soon as an area is firmly occupied by the enemy, every resistance by its inhabitants must cease. In this regard I wish to refer to the writing of the well-known Austrian professor of international law, Verdross, as quoted in my exhibit 256.
In order to show cases that men were recruited to join the Czech Legion, the prosecution submitted exhibits 514, 512 and 131. Exhibit 514 contains an indictment signed by Parrisius. It describes in detail the comprehensive and dangerous methods which were used in Bohemia and Moravia to recruit for the Czech Legion. The description is identical with the declarations of the German military counter-intelligence offices in Prague and Bruenn which can be found in the prosecution exhibit 127. The defendants in the exhibits 131, 512, and 514 have either admitted that they wanted to join the legion or convincing reasons for suspicion were available against them. Lautz or Parrisius, therefore, had to indict them. In doing so both acted according to the legal regulations which were binding for them and on the basis of explicit instructions from the Ministry which ordered the Reich Public Prosecutors to carry out such proceedings as it follows from prosecution exhibit 127. Furthermore, the prosecution has submitted a series of documents which concern those cases in which Polish workers, who had come into the old Reich as free workers, tried from there through agents in Switzerland, to get into contact with the Polish organizations which fought in Africa and other places against the German Wehrmacht.
Only two of these documents contain indictments which were signed by Lautz, namely exhibits 132 and 136. I have discussed in detail with the defendant Lautz the reasons which led to these indictments. It was clearly established at that time that the information he had received from the German military counter-intelligence and the information which he himself had procured from the German border police - I refer to the entry in my exhibit 199, p. 15 of my document book IV C - as well as the general behavior of the defendants which was ascertained in the individual case by the examining magistrates, gave ample reasons for suspicion so that according to the law it was necessary to bring a charge of treasonable support of armed resistance.
This was also the opinion of the Minister of Justice who in every individual case approved the indictments submitted to him. It cannot be held against Lautz or Parrisius, that the Senates of the Poople's Court - as it becomes evident from various documents of the prosecution - sometimes did not consider this suspicion to be sufficient, because they had reached a different opinion on the basis of the result of the trial evidence. In order to avoid repetitions I want to refer in ill other respects to the discussions on page 5910 of the English transcript. Documents concerning criminal procedures which might have been carried out in other parts which were incorporated into the Reich do not exist. The prosecution exhibits 484 and 488 (NG-783, NG-823, III SA) give, however, information as to criminal investigations in the former Austrian Republic. Whereas exhibit 484 according to the statements of the defendant Lautz (Tr. 5975) refers to criminal acts committed by German soldiers who had deserted from the army exhibit 488 gives us an inside view of communist activities in Vienna, Salzburg, and other places which were connected with dynamiting, arson, and other acts of sabotage. The German authorities could not remain indifferent in the face of the particular danger involved in these activities.
The picture of the activity of the defendant Lautz, however, becomes only complete when we consider how Lautz conducted himself. The evidence has produced important information in this regard which, in my opinion, speaks absolutely in his favor.
From his description of the happenings in Bohemia and Moravia first of all the essential points must be kept in mind:
1.) When Lautz learned, after the first investigations which he had made around the turn of the year 1939/40 at the order of Minister Dr. Guertner that the Chief of the Security Police in Prague was planning to establish summary courts, he immediately tried everything in his power to frustrate this plan (Tr. 5845/48)
2) The "stop" signal at first ordered by Hitler led when it lasted over a longer period of time to an unfair extension of the custody ponding trial of those who wore incriminated to a lessor degree. Lautz intervened on their behalf with Guertner. Hitler's decision which was brought about by Guertner, ordered that henceforth the proceedings were to be carried out; at the same time it gave expression to his opinion that death sentences were not desired (Tr. 5849).
3.) Lautz obeyed this decree not only insofar as he forbade his Public Prosecutors to ask for death penalties in the main trial -- in other respects, too, the decree gave him the occasion to very possible leniency, Above all, Lautz referred proceedings - declaring they were of lesser importance - to the district courts of appeal in Dresden, Breslau and Leitmeritz to such an extent that he had difficulties with Thierack on that account who maintained that too many cases were withdrawn from the People's Court. This very difference in opinion concerning the treatment of the Protectorate cases caused Thierack, as Lautz has stated to undertake the attempt, proven by exhibit 437 (NG-919) to bring, with the help of the party chancellery, a change of the legal regulations to the effect that the power of the Reich Chief Public Prosecutor to hand over cases, was put under the control of the People's Court (Tr. 5793).
I have particularly emphasized these three points, because only, if we know the, we can understand the events which occurred on the occasion of the first state of emergency in the Protectorate at the end of September 1941. By that I mean the elimination of the defendant Lautz from the proceedings against Elias and Klapka and the transfer of his function to the Chief of the Gestapo in Prague. Thierack and the Chief of the Gestapo Heydrich brought this about behind the back of the Ministry of Justice and of Lautz, because Lautz had refused to prosecute these two cases without a particularly careful examination of the facts involved. In this regard I refer to Lautz' statements on page 5857 ff of the English transcript and to the prosecution exhibits 374, 375 and 480.
At that time Lautz demanded his release which was testified to by the defendant Schlegelberger as witness (Tr. 4499). As it is well known, however, his request was not fulfilled (Tr. 5976/77).
Only with greatest efforts and thanks to the negotiating skill of the defendant Joel it was possible at that time to prevent that the other Protectorate cases pending at the Reich Chief Public Prosecutor's Office were taken away from it and handed over to the summary courts ( compare testimony Lautz (Tr. 5852).
Lautz can certainly not be blamed that finally - particularly after the murder of the deputy Reich Protector Heydrich and the subsequent second state of emergency - the policies in the Protectorate also in regard to the administration of criminal law became more severe, it was rather a question of measures -- as it was testified to by the defendant Schegelberger - which the government was obliged to take , because of the changed situation.
Cases of high treason in the re-incorporated, formerly Polish territories did not play a significant part numerically in the jurisdiction of the People's Court - this has also become clear from the statements of the Prosecution. The reason for this, however, was not that nothing happened there. The Schlegelberger exhibit 157 (Schlegelberger document 163) gives proof to the contrary. Lautz explained the reason rather in this way that the Gauleiters of the incorporated Eastern territories had called the attitude of the Reich Chief Public Prosecutor as well as the jurisdiction of the Senates of the People's Court not severe enough; therefore, they had brought about an instruction from Hitler according to which these cases were to be tried by the district courts of appeal in Posen; Danzig and Kattowitz.
The demand for more rigid policies did likewise not induce the defendant Lautz, in cases of charges against persons from the incorporated Polish territories, to base the charge also on the penal regulations concerning Poles.
Lautz, as a matter of fact, disregarded this at first; he considered it superflous; because the facts of the cases concerned came under article 91 b of the Penal Code (treasonable favoring of the enemy) the penalty of which was equally severe. Later on however, he was directed by the Minister of Justice, as he testified as witness, to quote in the indictments also the decree of 4 December 1941, amongst the legal provisions which had been infringed, because this fact was according to the opinion of the Ministry, of importance in case of the pronouncement of a prison sentence; in that case a sentence to a penal camp had to bo pronounced. (Prot. 5904.) of course; the result was of no practical importance. The punishment described as penal camp was served in prisons of the administration of justice and not in camps or even concentration camps. A simple penal camp was considered equal to a prison sentence and a severe penal camp equal to penal servitude. After all, the difference only consisted in the fact that the Polish prisoners were separated from the other inmates. The witness Hecker (Prot. 4851,4866) testified in this sense and the SchlegelbergerExhibit.... Schlegelberger-Document 168, affidavit Marx) describes it in the same way. According to his testimony, the defendant Lautz did not know of further particulars. (Prot. 5904).
Therefore he did not expect and also could not expect, that the reference to the decree of the 4 December 1941 imposed upon him by the Ministry, could put the defendants in a worse position, either with regard to the length of the prison term or to the way it was served. He never introduced wrongly in any of his indictments the charge for high treason or treason in order to give the senate the chance to condemn a person because of a different charge, for instance because of breach of a working contract, through the subsidiary application of the Law against Poles and Jews. This is a statement of the Prosecution which can not be supported by any evidence. The prosecution refers in its pleadings to its exhibits 132 and 133. It is however evident from both documents that the Reich Prosecuting Authority holds the opinion in the indictment, an well as in its final pleadings, that the flight into the legion is proved and that therefore the elements for the crime of High Treason and of the aid to tho enemy are established.
Lautz, however, contrary to the statements of the prosecution, did not say in his direct examination or in his cross examination, that he had no reason to contest these verdicts; on the contrary, he stated that he had objected to this kind of jurisdiction, but that he was not able to state for sure in what way he had expressed his disapproval, without having the documents submitted to him. Tho Law against Poles and Jews had no influence whatsoever on the proceedings before the People's Court. The proceedings in cases concerning Poles were on principle tho same as against all the other defendants with the only exception that the second senate and only this senate, held the opinion, that according to the decree of 4 December 1941 the re-opening of the proceeding was inadmissible and such notions should be considered as motions concerning acts of clemency.
The facts which I mentioned according to the result of the evidence show beyond doubt that the defendant Lautz acted according to German Law, as he had to act, at least however, that he was convinced that he had to act in this way.
Evidently the prosecution starts from the assumption that the German Law should not have been applied in the cases mentioned above, because they concerned offences committed by foreigners in foreign countries. Even if this assumption of the Prosecution were correct that the cases concerned acts committed by foreigners in foreign countries, even the Lautz's activity would be in conformity with the German Law. The revolutionary movements in the Polish and Czech territories aimed not only at the overthrow of the then Reich government, but also at the annexation of territories of the Altreich. That menat the preparation for high treason against the Reich. Such an act come under the terms of the German Law, oven if it had been committed by a foreigner in a foreign country.
It required of course for its prosecution a directive by the Reich Minister of Justice. This directive has practically been supplied in all the cases which were discussed here. Lautz was forced to the prosecution with which he is charged now, through general directives of his Minister. In addition to it, he also obtained the Ministry's approval in each single case; since, according to the provisions which were in force - I may refer to my exhibits 157 and 229 (L - 261,III B 13; L - 142 IV A 62) the Minister was informed of all indictments in due time, so that he could have prevented the proceedings, if he had not desired them to be carried out. (Prot.6048) The Prosecution does not want to accept this as valid. It is of the opinion that the extension of the sphere of application of the German Law beyond the frontiers of the Reich, ensues from the unjustified imperialistic lust for power and that it therefore could not be accepted. The Prosecution, however, here overlooks the fact that this legislation was not a particular characteristic of the Third Reich, not oven a typical German invention. Already before 1933 namely in article 11 of the Law for the Protection of the Republic of 1922 - Germany applied the principle of the international law concerning political crimes, as it is pointed out in my exhibit 9 ( L-38, I -16). The Weimar Republic required such a legal protection which by the way was not contested by anybody, because very soon after its proclamation, the opponents of the new system - I only mention the separatist - persons guilty of High Treason in the Rhineland - had fled abroad and from there, supported by foreigners, had continued the struggle against their native country. Also during the discussions concerning the compilation of a new Penal Code in 1928, the Penal Law Committee of the German Reichstag, particularly the Social Democratic party, advocated again the principle of the International Law with regard to political crimes; This is evident from my exhibit 228 (L -91, IV A 49). It also has to be mentioned that at this time, they referred to the fact that this was the practice of other countries, for instance of Russia.
Indeed the German lawyers only knew that nearly every modern state applied for instance its provisions concerning Treason and High Treason to foreigners, even when the act had been committed abroad; I only have to mention the official statement in my exhibit 227 (L -54, IV A 45). It also actually is in conformity with the international custom that the person guilty of treason, the spy is prosecuted, even if he committed the crime in a foreign country as a foreigner, unless he acted officially in the service of an enemy country and hereby did not cross the frontiers of the country itself. The German Lawyer could therefore never take offence at such a Law. Lautz too was permitted and even had to start from this legal principle, and can not be reproached for it.
If one really wore to assume that the countries concerned were not German Reich territory, but occupied territory, then it must not be overlooked that the prosecution of all these criminal offences would not have been denied to the German Reich in its capacity as occupying power, since all these crimes were directed against the occupation. Therefore the defendant Lautz has pointed out in his direct examinationin my opinion very much to the point - that the judicial measures taken against the numerous acts of sabotage and against the incitements to revolt in the Polish territory and in the district of Bohemia and Noravia had according to his opinion been necessary, for the security of the German Eastern front, and were consequently required by military necessity.
It might well be without any significance that the prosecution authorities and courts which were charged with the prosecution and conviction of those offences, were, in part, no military organizations; i.e. no organizations composed of military persons. In the same way, it appears to us to bo unimportant - at any rate in the final result - whether the resistance activities were prosecuted and punished on the strength of special penal threats of the occupation army or whether they were class ified as aiding and abetting the enemy or as preperation for high treason in accordance with the common German Penal Law, which, by the way, as far as the penalty threatened is concerned, was the more lenient one.
This should not have constituted a problem for Lautz, the less so, as after the first World War offences of German nationals directed against the occupation army in the Rhineland zone wore prosecuted and tried by the courts of the Allied and Associated Nations, according to their national laws, i.e. according to French, English, American, etc. laws. I may be allowed to remind you here of the note of the four Allied Governments of 29 July 1919 which I have reproduced in my exhibit 226 (L - 126, IV 39). The protect of the German Government dated 12 July 1919 against the application of foreign penal laws in the occupied Rhineland zone belonging to the German Reich, was, as is known, answered by the four Allied Governments, stating that " according to the principles of international law, the Military Tribunals of the Allied and Associated Nations can only apply the laws which have been issued in their national states."
The prosecution objects against the criminal prosecution as conducted by German authorities in their capacity as an occupying power: that the Reich had waged agressive war; that all territorial actions which had been taken to prepare it and carry it out, were illegal and would not establish any rights arising out of the Hague Rules of Land Warfare. Evidently, the prosecution itself is not convinced of the correctness of this opinion. For in paragraph 8 of the indictment it takes the opposite point of view. There it speaks of persons who were kept in the custody "of the German Reich in the exercise of belligerent control"; in other words, there it recognizes Germany's rights arising out of the Hague Rules of Land Warfare. A different position, however, could not be upheld. It would overlook the fact that the Hague Rules of Land Warfare consider the occupation of the territory of a foreign state from a matter of fact point of view and formulate their conclusions irrespective of the possibility that the state of affairs might have been brought about in contrast to the law.
Accordingly, the verdict in paragraph 8 on pages 16925/27 of the English transcript of the IMT trial is based upon the interpretation that the Hague Rules of Land Warfare were binding for Germany. This binding force, however, can-according to its very nature - only be complete, that is a reciprocal one which also recognizes the right for Germany arising out of it. This is also the position taken by the Control Council in its Law No. 10. For example, Article II, paragraph 1, letter b of this law, only considers those devastations a war crime which could not be justified as a military necessity.
To these rights of Germany as a belligerent power belongs, however, (as I have already emphasized and as the prosecution admits in paragraph 8 of the indictment) the controlling right of a belligerent power, i.e. the right to defend its occupational regime against attacks. And a last point World War II was brought upon by the Polish-German conflict.
Even before its final and military termination the well-known note of the Soviet Government to the foreign governments of September 17, 1939 was published in the Reich. There it says:
"The Polish Government has disintegrated and shows no sign of life. This means that the Polish State and its government actually have ceased to exist.
The Soviet Government intends to take all measures to lead the Polish people out of a war into which it was plunged by its unreasonable leaders". (Schlegelberger Exhibit 149, Schlegelberger Document 155).
Which German could have derived from such an announcement of a large State that his own State leadership had provocated the war in a criminal manner and had done violence to a foreign State's territory after the successful conclusion of their war?
One may look upon the facts from all possible points of view one thing one will be able to establish again and again, i.e. that defendant Lautz has acted as he believed he had to act according to the laws and orders guiding him.