To the end, however, he was also the sympathetic man, who tried to help wherever he could. This is shown by the many affidavits which have been submitted here, some of them having been sent unsolicited, when it became known that he had been indicted here.
The very fact, however, that Lautz was not merely an official, not merely a Public Prosecutor, but also a man with a feeling heart, constitutes the great tragedy of his life. During the course of the war, the tendency of harsher legislation and administration of justice to become even harsher resulted in his growing inner conflict. He is one of the many German jurists to whom the statement of Professor Radbruch, made in 1925, and quoted in my exhibit 94, applies in full; and I quote:
"To sacrifice one's own sense of justice to the authoritative legal order; to ask only what the law is and not if it is also just; to serve, under given circumstances, the cause of injustice in a profession which cannot be conducted with satisfaction without a love for justice; that is the task and the tragedy of the jurist."
May I interpolate. It is cheap to say today that he could have escaped this conflict between duty and feeling by resigning from his office. He could not do so however strong the attempts were he made. In September 1941, in connection with the Elias case, he tried to do so. Acting Minister of Justice of that time did not allow him to do so. The defendant Schlegelberger, as a witness, confirmed that here. Later on Lautz believed that particularly during the hardest hour of his nation's history he should not desert his people, but on no account is Lautz guilty.
Thank you.
DR. HAENSEL (Attorney for the Defendant Joel) I should like to say that I am in a position to refrain from reading out my final plea.
Last week I handed in my final plea in German, and it has since been translated and it is now at the disposal of the Tribunal. Yesterday 196 notes were added, and this morning these notes were distributed in English.
My final brief and these notes I would ask you to take into consideration, to give them due consideration without my reading them out here, and I would, ask for them to be incorporated into the record.
I should like to add this. The Defense Counsel have asked me to deal with the forms of participation under Control Council Law 10, Article II/2 and concerning the knowledge, under Article II/ld. I would refer to my written statements in which I have dealt with these matters, and as concerns the Prosecution, I would like to tell them that the extracts Warton which have been submitted, here certainly speak of respect for that well known lawyer, but that those extracts cannot be applied, to our case. It has been my basic tendency always to assume that our case here comes under international law, and should not be viewed from the aspect of the law of one individual nation.
I have said a great deal about that point, and I do not think there is any need for me to repeat myself now. I only refer to my opinion as I have stated it in writing before. I think that the Tribunal possibly shares my views in some respects because otherwise at my suggestion it would not have dropped the charge of conspiracy for the commission of War Crimes and Crimes against Humanity under AngloSaxon law and would not have decided that it is not decisive for this case. That decision shows that a legal institution belonging only to such a sphere of law does not have legal force for this trial here.
THE PRESIDENT: The request of Counsel will be granted. Your argument will be incorporated in the transcript in accordance with your request.
It will receive the study of the Tribunal and your client will suffer no disadvantage by reason of your waiver of the right of reading your argument.
We have already given consideration to the brief which you furnished us before, and we will do so.
DR. DOETZER (Attorney for the Defendant Nebelung) May it please the Court, at the beginning of my final plea I compiled all the evidence submitted by the Prosecution and the Defense concerning my client Nebelung.
I would like to refer to it without actually reading it out and likewise I ask to be permitted not to read out the quotations. Before I start on my plea I should like to say something about the final plea of the Prosecution. Firstly, the Prosecution has quoted Exhibit 340 and has stated that the Fourth Senate in 1944 had to deal with the following cases: High treason in favor of any country in the world with the exception of the Soviet Union and Poland; undermining of defensive morale, criminal offenses committed by Germans from Lorrain; and offenses committed in Lorrain; offenses committed by foreigners from Moravia if they were committed before the establishment of the Protectorate and did not constitute high treason in favor of Soviet Russia or Poland. According to Exhibit 340, which as I have said I have before me, those statements are incorrect. The Fourth Senate did not deal with high treason, but with treason in favor of all countries of the world with the exception of the Soviet Union and Poland, and it was not undermining of military morale but damage done to military property and installations(Wehrmittelbeschaedigung), i.e. sabotage. And in the last sentence instead of high treason it should say treason.
Furthermore, when introducing that document the Prosecution on the 22nd of April 1947, German transcript page 2501, English transcript page 2507, did not introduce this against Nebelung, probably because it was dated the 1st of April, 1944, a time when Nebelung did not yet work at the People's Court. The introductory passage to this Prosecu tion exhibit, and the testimony of the witnesses Barnickel and Lautz have shown us that the distribution of work at the People's Court changed frequently.
Nebelung himself in Prosecution Exhibit 177 has given an outline of the theoretical competency of his senate, and the Prosecution has not doubted its Correctness.
Secondly, furthermore, the Prosecution without producing any evidence, has asserted that the work of the Fourth Senate in the second half of 1944 had increased. The Prosecution failed to examine the various compositions of the senate, the various presiding judges that sat during the second half of 1944; nor, has the Prosecution made any statement as to whether Nebelung during his work at the People's Court was always in office, although it would have been easy to discover the contrary.
Thirdly, the Prosecution further more has asserted that the Freisler film shows the defendant Nebelung sitting next to Freisler; and the film shows that Nebelung had done nothing to support the defendants; and had in no way opposed Freisler's shameful way of conducting proceedings. This was an optical illusion on the part of the Prosecution. The film does not show Nebelung sitting next to Freisler. Nebelung was never an associate judge with Freisler. He never sat on the same bench with him. In Germany it was never the custom at a session of a senate for another senate president, as an associate judge, to sit next to the presiding judge. In my view the evidence has revealed the following:
The defendant, who is 51 years old and father of 6 children, was President of the Chamber and in this capacity he occupied the position of a Chairman of the 4th Chamber of the People's Court from 1 July 1944 until the capitulation of the German Army.
After having participated in the 1st World War from 1914 until 1919 and alfter having finished his professional training he was admitted as Attorney-at-Law in the small town of Eschershausen within the jurisdiction of the Braunschweig District Court of Appeal in 1924, and on 25 November 193O he was appointed Notary by the Braunschweig State Ministry at the same place, after approximately 5 months previously, namely on the 12.
8.1939. the Braunschweig-Minister of Justice had written him to the effect that, as an opponent of the democratic parliamentarian republic, he was unsuited for this office.
From 1931 to 1934 the defendant was Attorney-at-Law and Notary in the county seat Seesen in the Court of Appeals District Braunschweig.
With the courts, among his professional colleagues and the population, he enjoyed the reputation of an efficient, distinguished, and absolutely reliable lawyer and notary. As an expert in rural law, and because he was a National Socialist, he was - without any of his own doing, and urged by the Braunschweig Minister of Justice appointed president of the hereditary farm court (Erbhofgericht) and, at the same time, President of the Chamber of the Court of Appeals Braunschweig on 1.7.1934. From 1.1. 1935 to 30.6.1944 the defendant was Chief President of that court and thereby Chief of the Justice Administration of the District.
At the beginning of World War II he was drafted into the army in August 1939. After taking part in the campaigns in Poland and France, he was released from the Wehrmacht, owing to rheumatism, at tho end of 1940. When his health was restored again he rejoined on 1.8.1940, until, in February 1943, seriously ill with malaria., he returned to Braunschweig. There he remained until his reassignment as President of the Chamber at the People's Court. On the 30.11.1943 he wrote the situational report submitted as Prosecution Exhibit 566.
As President of the District Court of Appeal, in spite of his comparative youth, the defendant earned the unreserved confidence of his judges, officials and employees as well as of all his clients, a confidence which has not even been shaken by the indictment to this date. In his sphere he did not tolerate any inter ference on the part of non-juridical agencies, and he assured the independence of his judges.
As regards his activity as judge, the 72 year old. Oberlandesgerichtsrat von Schmidt-Phiseldek states anong others: "I have come to know him as an objective and just judge, who did not allow political considerations, especially those pertaining to race, religion, and nationality, to influence him." His constant readiness to aid everyone, as well as his hunble, humane and conciliatory Manner, were born of his conviction, that humans erred more frommistakes and weaknesses than from malice.
He was a bitter opponent of radicalism in any form, particularly of political radicalism. No judge suffered professional disadvantages from him, if he retired from the NSDAP or its organizations, or if he was excluded from them. He openly rejected the agitation against the Jews, he defended Jews before the court inspite of all prohibitions of the Party to the contrary, he protected the Jewish hybrids among the judges from all hostilities, and he objected strongly to the actions instigated by Goebbels around the 9 November 1938. How deep his indignation about these deeds was, can best be seen from the fact, that, still during the war, he discussed these things with his battery comrades at the front equally frankly and so pointedly, that they have not forgotten it to this day.
He was not afraid of attacking the Gestapo and he did not hesitate even in 1944, to order them out of the court room. Justice and the independence of jurisprudence were the greatest values to him, and he defended them openly and vigorously and not merely by tactical maneuvers. For all these reasons, there were conflicts generally known in the Braunschweig judicial circles between him and the offices of the Gestapo, the SS, the NSDAP, and the inner administration already from 1935 on. Many files substatiate this.
These conflicts were the reason for his removal from Braunschweig. Thus he, the highest judge of his district, and although he was neither an officer nor had modern training, and although he was 43 years old, was drafted as a front-line soldier on the first day of the war. On the 1.8.1941, scarcely having recuperated from a severe illness, he was to his surprise drafted again, and the Ministry of Justice did not even reply to his inquiry of 15.7.1941 (compare page 8 of the prosecution exhibit 409) concerning a position in the justice administration in the occupied Russian territories. When, seriously ill with malaria, he had returned to Braunschweig in Febraury 1943, Thierack, in the course of his scrutiny of the presiding judges of the district courts of appeal informed him, that in view of his strained relations with the Gestapo,SS, and Party, his transfer as presiding judge to the Reich Court was absolutely necessary in the interest of the judiciary.
Thereupon the defendant wrote the letter dated 7.2.1944 (Nebelung exh. 27). The notation written on this letter by Ministerialrat Grussendorf shows the correctness of the presentation. - Instead of this, Nebelung was transferred back to the office of president of the chamber at the people's court. That this constituted a demation, emerges sufficiently from the testimony of the witness Doebig (compare German record p. 1772, 1818-1819, English record p. 1752, 1796-1797) and of the witness Klemm (German record p. 4997, English record p. 5085). It is also undisputed, that Thierack would legally have been able to effect the transfer of the defendant to another position. That the transfer to the people's court is a forced one, follows alone from the fact, that it was a demotion.
Above all, this is evident to any objective person from the context of the letter of 7.2.1944, Nebelung exhibit 27, and is confirmed by the fact, that the defendant, in his farewell speech before the Braunschweig judges, flatly answered the question as to whether he liked to go to the people's court in the negative, pointing out, that the activity there did not suit him because of his principles. He could not foretell whether it would turn out all right. He looked upon his transfer to the people's court during the war as a military order, which he simply had to obey, whether he liked it or not (compare for instance Nebelung exh. 13).
The remaining doubt, however, is dispelled by the notation on the files by Ministerialdirektor Letz, dated 17.11.1945 (Nebelung exh. 28). There it says: "Herr Minister considers it out of the question for N. to return to Braunschweig."
b) Nebelung joined the NSDAP in 1928 and belonged to it without interruption from that time on. Just as before the accession to power he was Ortsgruppenleiter of the NSDAP in the small town of Eschershausen, so he was in Seesen from 1934 until May 1939, until, being allocated an official residence, he moved to Braunschweig on 15.5.1939.- Those findings follow from the prosecution exhibit No. 13 and the Nebelung exhibits No. 4, 5, 25, and 26.
The first page of the prosecution exhibit No. 409 does not contradict this either. This personnel record from the Ministerial files is antiquated and not kept up to date by the Reich Ministry of Justice. Neither the current number nor the year is filled in, that is to say, it has not been completed. This conorns a filled-in form No. 188, personnel sheet - (circular dated 28.3.1936 / I a 9303). A comparison with the completed personnel sheets of the defendants Altstoetter, Cuhorst, Engert, Oeschey, and Joel (prosecution exh. 405, 406, 407, 408 and 410) shows the difference in the personnel sheets clearly and distinctly. It follows also from the fact, that for instance, under No. 10, the number of Nebelung's children is given as 5, while in 1938, he became father of a sixth child; that, under No. 12b, the note of the SA to the effect that it did not consider Nebelung a member of the SA, since they did not have his SA card, was not contained; and that, under No. 13b, there is no mention concerning his service in the Wehrmacht since the beginning of the war.
Anyway, there exists a completed personnel sheet in the Ministerial files of the defendant, which the prosecution did not present. In this Nebelung is described as former Ortsgruppenleiter.
As Ortsgruppenleiter of the NSDAP in Eschershausen, he also appeared in a calm and unpretentious manner. "Hw was the exact opposite of the Ortsgruppenleiters who succeeded him; frictions between National Socialists and other parties did not occur at all" , states the witness Pastor prim. Spangenberg of Eschershausen (Nebelung exh. 2). Concerning his activity as Ortsgruppenleiter in Seesen, the witness Pastor Teichmann (Nebelung exh. 4) testifies that the defendant had earned the respect of everyone by his impartial attitude toward all men. The same is described by witness Ruehe (Nebelung exh. 5), who also cites individual cases, as for instance, Nebelung's intervention on behalf of the Jews in an Ortsgruppen meeting and his rejection of the dictum "Right is what the Fuehrer considers right."
The defendant saw in the NSDAP the party, which wanted to unit the already then conflicting worlds of the West and East in a form acceptable to his fatherland situated in the heart of Europe.
In this he was convinced, that this synthesis vfould meet obstacles, but could only be achieved when eternal justice and the preservation justice for everyone prevailed.
Thus he carried on his fight tenaciously and silently, in hopes and despairs, openly and manfully against radicals and opportunists, agitators and the roused mob, against violence, lies and error, always animated by the love for his people and by his faith in law and justice. What is better suited to characterize him than his words spoken at the time of the German victories: "If we old members of the Party had known how the situation would develop, many of us would not have joined the Party. I do not want to live in a Germany ruled by injustice." (Nebelung Exh. 1).
c) In early July 1944 the defendant Nebelung took over the office of Presiding Judge of the 4th senate of the People's Court.
I gratefully acknowledge that the prosecution carried out extensive investigations concerning his activity as President of the Senate, but of its examinations and findings it submitted only the affidavit of the attorney at law Gruenwald, Pros. Exh. 283, and Pros. Exh. 567, which concerns the national of the Protectorate, Nohawicka.
In his cross-examination Gruenwald described the main trial versus Ingelhorn et al. under the presidency of the defendant (German record p. 3864-3867, English record p. 3906 - 3909). His statements tally with the description by the witness Poden (German record p. 6038-6044, English record p. 6214-6219). According to this, Nebelung, as was his nature, did not permit himself to be influenced against the perpetrators of the 20 July 1944 by the stirred up and particularly excited public opinion, much loss by Freissler. He conducted the hearing with extraordinary fairness, calm and simplicity and granted a full hearing to each of the defendants and defense counsels. At the end of the proceedings, the senate acquitted the defendant von Ramin and suspended the case against the others.
The defendant who had been in cross opposition to Freissler already for years, a fact which was also known in the Reich Ministry of Justice, ( see German record p. 4996, English record p. 5084 was then eliminated by Freissler from the presidency at the new main trial when he was sick and had to be absent.
Thereupon he asked Thierack and later on Ministerial Director Letz, head of the personnel department of the Reich Ministry of Justice, to be transferred from the People's Court, but met with a refusal. (See Nebelung Exh. 28, German record p. 4996, English record p. 5085/5086).
Concerning other hearings directed by the defendant, the witness attorney-at-law Gruenwald says likewise that the defense counsels had all been very glad whenever Nebelung took the chair.
Never, and this should be a rare case for any judge, have defense counsels and defendants criticized Nebelung's manner of directing hearings or passing judgment. (See the statement of the witness for the prosecution Wargin, German record p. 3821-22, English record p. 3861-62, of Pastor Buchholz, German record p. 3693/94 English record p. 3732/34 and of the witness for the defense attorney-at-law Boden. German record p. 6038/44, English record p. 6214/6219.)
The exh. of the prosecution 567 has been taken from the files of the Reich Ministry of Justice, It contains the indictment served on Nohawicka and the death sentence of the IVth senate of the People's Court, dated 24 October 1944 which had been attached to the Clemency report of the Reich Prosecutor Parisius, the decision on clemency and the execution of the sentence. The files of the People's Court which had been attached to the clemency report of 1 November 1944, have not been submitted by the prosecution.
Briefly, the following facts are disclosed in the opinion:
In spite of legal prohibition, the 41 year old national of the Protectorate Nohawicka, a merchant, formerly a functionary of the Czech Labor Party and of the Sokol, an organization inimical to Germany, since early 1943 listened in approximately 30 times to instigating transmissions of the London broadcast which were inimical to the Reich and made in the Czech language, and asked about 12 people of his acquaintance to listen in.
They participated in the listening in in groups of always 2 or 3 and discussed the transmissions later. He even continued listening in by switching in a flat iron, after the short wave cail of the receiver had been removed by orders of the authorities and informed a woman of his acquaintance of this possibility to hear the London station.
One Krus who was working for the former Sokol, which was hostile to Germany, as a functionary and was living there illegally, told him that the merchant Mastny provided illegal persons with food and concealed them in the forest near Kremsier. At the same time Krus asked Mohawicka to introduce persons living there illegally to Mastny. Upon request he gave Krus 1300 Kronon to support the persons looked after by Mastny. In September 1942, Nohawicka sent to Mastny a certain Fiala who was being sought by the Gestapo and had attempted to cross the Slovakian border in order to join the partisans, and suffered his wife to give to Fiala linen, clothing and 30 Kronen.
I believe the next passage has not yet been translated:
Under date of February 1943 he heard that Fiala intended to derail a train and that later he did so.
I continue:
and furthermore, that he had committed burglary in the hunting lodge of the Reichsfuehrer SS, and robbed a merchant's wife during which time he wore a mask. Inspite of all that, Nohawicka, contrary to the law, did not report Fiala, but continued to aid and conceal him. Finally, in 1943 he also distributed inflammatory anti-German pamphlets.
On the strength of these irrefutable facts the Fourth Senate of the People's Court sentenced Nohawicka to death for treasonably giving aid to the enemy (article 91 b Reich Penal Code), but declined to sentence him for preparations to commit high treason.
The juridical evaluation of the facts as constituting treason was in keeping with the constant practice of the Supreme Military Tribunal and the Reich Supremo Court which was already established before such cases of treason were brought up for trial before the People's Court (cp Lautz Exhibit 24 in conjunction with 26 which in Nebelung's opinion being the more lenient law, was also applicable retrospectively 193-215 The sentence was pronounced by the professional judges Nebelung and Haumann and the lay judges Goetz, Stutzer and Schaefer-Hanse.
In keeping with the provisions of law, the written opinion is signed by Nebelung and Haumann alone.
In presenting this document the prosecuting authority did not assert that Nebelung was responsible for, and approved of, this death sentence, and that he cast his vote for it. It only stated that he had signed it (German record page 7620, English record page 7929). The signing of the sentence of a German bench by the judges taking part in tho trial only proves that the majority, but in no case all of tho judges, have approved the sentence to its full extent. This was demonstrated almost daily during the presentation of the evidence against tho defendants Rothaug Cuhorst and Oeschey. The assistant-judges of these presidents who had been heard as witnesses for the prosecution have confirmed that they were partly against the pronounced sentence, but had to sign it. In Germany dissentient votes always were, and still are, prohibited on account of the secret character of the deliberations, the so-called secrecy-in-council. It would have been easy for the Prosecution to call in the assistant judges as witnesses to prove that the defendant Nebelung has voted for a death sentence. It is almost certain that one or the other was heard by the prosecuting authority, but was not called to the witness box later. This also explains why tho Prosecution, in presenting this exhibit, only stated that the defendant had signed it.
Tho Prosecution, then, did not even maintain, let alone prove that the defendant Nebelung had cast his vote for the death sentence. Considering this situation the defense did not deem it necessary to offer counter-evidence.
III.
The indictment demands Nebelung's punishment according to the Control Council Law No. 10 on account of war crimes, crimes against humanity and membership in criminal organizations.
a) Control Council Law No. 10 has been enacted at a convention of the four great victorious powers. Without being able to go into details I take the liberty to state that while this law does aim at substantive justice in fails to take into consideration the principle of International Law "nulla poena sine lege" (no punishment without law) in all its implications.
b) Membership in criminal organizations. The Prosecution failed to prove that the defendant was local leader of the NSDAP after 1 September 1939. It has been established, on the contrary, by tho argumentation of the defense, that he has not been local group leader since May 1939.
c) War crimes and crimes agains humanity. According to the statements in subsections 8 and 20 of the indictment no charge has been brought for participation in war crimes or crimes against humanity according to section II, 2e, but according to Section II, 2a, b, c, and d. On comparing section II 1 with section II, 2 it becomes evident, I think that section II, 2d alone is the form of participation in the main delict of crime against peace. The very wording of tho passage "was connected with plans or enterprises" points already to the facts that it only refers to the material facts of Art, II, 1a, in which planning is mentioned.
This is not opposed to the findings of the IMT in so far as they there are directed against Streicher and von Schirach; as a detailed examination proves that both were condemned as perpetrators. Streicher because of persecutions, incitement to murder for racial reasons and Schirach because of deporting Jews from Vienna. These acts were connected with war crimes, - the IMT was only empowered to judge these, - and only those factors have been established. If Art. II, 2a, b, c and c were applicable as a form of participation to war crimes and crimes against humanity as well, then the provisions of Art.
II, 2a, b, c and e would be superfluous, as all of them are contained therein. Guilt, aiding and abetting, instigation, command, consent and membership in an organization are after all but parts of "connection with plans and enterprises."
Otherwise, in the proceedings before the IMT, to define only certain organizations and groups as criminal ones, would have been superfluous as well. Finally, in the acquittal of Fritzsche, Schacht and von Papen in the IMT trials, we find evidence to support this view.
To that extent therefore, the Control Council Law lacks the legal basis for the indictment.
In subsections 11 and 23 of the indictment, the defendant Nebelung is charged with special responsibility for and participation in war crimes which are not specified in detail, his name is however mentioned in the charges, while under subsection 9 and 21 all defendants are mentioned without being named.
There is insufficient evidence against Nebelung to lead to his conviction for either of the following acts; perpetrator, accessor, commander, instigator, consenting by participation, nor as one having any connection with the crime. From his activities as Supreme Court President and the manner in which he was appointed President of the Penal Chamber of the People's Court, the way he behaved as Presiding Judge of tho Penal Chamber IV and by his repeated requests for a transfer from the People's Court and his methods of procedure, this is quite evident.
Quite apart from the fact that the prosecution failed to bring proof to the effect that Nebelung approved of the death sentence being imposed upon Nohawicka, the sentencing of a member of the Protectorate who has been proved guilty of having treasonably aided the enemy does not fall within any of the categories enumerated in the under above subsections.
Even the Czechoslovak State paper of 29 September 1943, in German record p. 2559 - 2561, in Eng.
record p. 2570-2572, objects on the grounds that it is definitely illegal only to the sentencing of Czech nationals for preparations of high treason. In a case of a sentence imposed for treasonably aiding the enemy, it is of no importance whether the creation and occupation of the protectorate is, from an abjective point of view, contrary to International Law; for the occupation carried out contrary to International Law does not in itself remote the legitimacy of those actions committed by the said occupation authorities during the period of occupation, which correspond to martial law the usages of war and the military necessities.
The fact of the occupation alone, demanded of the German Reich as well as of the population of the Protectorate that both acted in a manner agreed upon by International Law in the event of war. (see also the detailed arguments in the IMT findings, concerning the criminal activities of the defendant von Neurath in Czechoslovakia.)
Occupation law is dominated by military necessity, even though it is of course always, at any time and in all occupied countries resented by those concerned as being specially rigorous measures. Each member of the occupation authorities must and is entitled to demand, in particular during the time of battle, that the inhabitants of the occupied territories refrain from any action in any way directing against him, and if necessary enforce loyalty by means of severe punishment and security measures, (compare Klemm Exh. 24, in particular VO No. 1 of Military Government, Germany and Mettgenberg, Exh. 15a). According to the generally accepted principles of International Law, the inhabitants of the occupied territory must obey only the occupying authority but not their sevoreigns and his allies. The will of the occupying authority alone is ruling decisive and he is the executor of this own will (compare letter of prosecution dated 23 June 1947).
The Hague Convention governing War on Land and the Usages of War have taken the middle course between the sovereignty of the occupying forces and the human rights of the individual. They do not, however, protect any political rights of the inhabitants of the occupied territories.
The term military necessity which, by the way, has been translated in the official German Translation of the Hague Convention on War on Land by the German Foreign Office as military interests, can be interpreted in various ways.
It is clear that these necessities have precedence over the moderation of an occupation and that the occupying power cannot make decisions in his own sphere, without limits or arbitrarily, concerning the extent of his powers. No occupying power, hower, will be able to accept acts such as were committed by Nohawicka, who was fully aware of their importance and had been warned, by many prohibitions, (c.f., also, KlemmExhibit, 241, V.O. No. I of the Military Government.) The penalty imposed on this man is severe, but who would decide without knowledge, at least without knowledge of the prevailing circumstances, of the oral main trial, of all the documents and the record of the main trial, that it was inhuman or criminally cruel. The opinion does not contain anything which was evident or generally known then. Just to mention one instance, the fact that a fortified forest camp existed in the forest near Kremsier, which was in charge of Mastny, and where the members of the underground were supplied with arms, and furthermore, that this camp situated behind the front, was stormed by troops after heavy fighting, is left out. Every experienced judge knows well how difficult it is to formulate a judgement in such a way that it can stand up to any investigation from whatever angle. In this respect I need not go into any further details concerning Judge Oliver Holmes and his struggle for a well-formulated opinion and the attacks of the press against his obscure opinions which are also difficult to understand.
In my opinion, my legal arguments are valid International Law, for the examination and application of which the Tribunal has been appointed since the Tribunal has to judge in accordance with valid International Law, i.e. according to the Law which was valid at the time of the sentencing of Nohawicka. Not even Law No. 10 of the Control Council can change this.
Even if I were mistaken in this respect and the IV, Senate of the People's Court had made in re Nohawicka a decision in contravention to International Law, the question would have to be put as to whether, in view of the above facts of the case, this mistake should be prosecuted as a war crime and a crime against humanity. To ask this question means to answer it in the negative. Few people in this world have been able to establish the insufficiency of their own perception in such a way as a judge can do it.
His belief in tho immutable law impelled him to strive for the office of judge. His spiritual and mental conception of the law made him realize the time element involved.
From the turn of tho 18th century on, he saw in the rise of the historical school of law of Savigny the diminution and ultimate disappearance of the old belief in a natural law binding for all times and for all peoples. The judicial Positivism, forced him - in any event, in Germany - to acknowledge the binding power of each and every Reich Law, even through the Weimar Constitution and its interpreters, and did not allow him to enter upon an examination of the laws with respect to commandments of natural law, of morals, or of international law. Other public offices were empowered and responsible for this examination. It must therefore be conceded, what the French Chief Prosecutor de Menthom has set forth in his prosecution address before the International Military Tribunal on 17 January 1946, in the morning session, when he said "It is evident, that in a state organized along modern lines, responsibility is confined to those who act directly for the state, since they alone are in a position to judge the legitimacy of the given orders; they alone can and should be prosecuted".
It was and still is tho duty of the German judge and I suppose of the American, the English, the French and the Russian judge, to apply the state laws even then, when they violate International Law. (c.f, for example:
Court, III Case III
1.) A. Hensel: The scale of Law Sources, Manual of the German State Law by Anschuetz and Thoma II (1932); page 323.
2. ) Supremo Court of the United States of America in re Whithey versus Robertson US. (1888) 190.
3. ) Constitution of the United States of America of 1787 Article VI; 2, "anything in the Constitution or laws of any State to the contrary notwithstanding".
4.) Oiciotto: The relations of International Law to the Law of England and of the United States, page 125.
5.) Prof. G. Keeton - 1944 - at the Session of the Grotius Society (Transactions page 22): "Obviously in the first place, no English Court can accept or apply a rule of international law which conflicts with a British statute".
6. ) Decision of the privy Council in re Chung Chi Chung versus the King (1939). H.C. 160, 1O7 "they will treat it as incorporated into the domestic law so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals!"7. ) Prof.
Andre Gros at the Session of the Grotius Society 1944 (Transactions of the Grotius Society; Volume 30; page 40): "Just as the French judge is not a judge of the French Constitution, he is also not a judge with regard to the agreement of the new law with International Law". Over and above that, it is maintained that the English and American judges are bound to the political decisions of the executive (branch of government) (e.f., for example, 1 ) Keeton of the Grotius Socioty in 1944, Transactions volume 30, page 22, 2.) Supreme Court of the USA in re Max Jutsch, 29 May 1931 (Lauterpacht Annual Digest of Public International Law Bases) "and the fourth limitation arises from the fact that the Courts will necessarily have to rely upon decisions of the executive in matters of policy, though that is not a doctrine peculiar to the application of international law in English Court".Therefore, a judge cannot be made responsible with respect to International Law, for having taken part in a violation of International Law through a decision sanctioned by him.
It is his duty to obey his legislature. The opposite stand is predicated on a world-state, on world citizens and world law - thus not International. Law - and disregards the sovereign state and the relation of the judges of this state to the laws placed at their disposal (c.f. also Oeschey exhibit 31-33).
Neither is Control Council Law No. 10 contrary to this conception.
It claims to be the expression of International Law, and therefore it cannot eliminate existing International Law. Nor can the conception which is laid down in the International Military Tribunal, that individuals have international obligations, be interpreted in any case in this way, that every individual in a state, irrespective of whether such an individual has a definite responsible station in the organization of the state, is to assume international obligations which take precedence over deviating national obligations. Control Council Law No. 10 and the Statute of the International Military Tribunal obviously share this view.
Control Council Law No. 10 Article II, 4 b shows that an order does not cover the responsibility in the sense of International Law, but he points out that he acted in accordance with the laws and law decrees published in the Reich Law Gazette and placed at his disposal, and in this connection the correctness (truth) of Prof. Jahrreis's oral expert opinions may be left open.
Control Council Law No. 10, Article II, 4a, precludes any reference by the defendant to his official position as head of the state or as responsible official in a government department. But if it is already doubtful whether a German judge can be regarded at all as a government official in the sense of the Control Council Law, at any rate it is plain and unequivocal that he is no government official responsible for the application of laws which are inconsistent with International Law; and this is the only and decisive criterion.