Now if the defendants are to appear before the forum of true justice, it is the quest for justice that concerns us.
1. The purpose of justice can only be to analyse the personal guilt of a defendant, to weigh it up and to bring about punishment. The real responsibility must be established and defined. The deed is to be isolated from all implications of destiny and the influence of the inescapable and therefore the tragic; for "the tragic moment" is not intrinsic in justice. On the contrary. As the truly tragic always moves us to pity, a verdict which would ultimately provoke our pity would have to be considered unsatisfactory and therefore unjust. Mankind will approve only of that punishment which alone is appropriate for the defendant's personal guilt, and no other. It can, therefore, not be the purpose of true justice to put a tragic end to an action which had to be carried out because a legal obligation or inescapable compulsion dictated it, or because it originated in an error outside criminal jurisdiction. Rather is it the purpose of true justice to recognize where the perpetrator's personal responsibility begins or ends.
Therefore, one cannot feel it to be just if Control Council Law No. 10, in article 11, paragraph 1 c, quite generally precludes reference to the German national legislation on behalf of the perpetrator. If we do not wish to be the authors of essentially tragic destinies, we must recognize the legal position in force at the time of perpetration, and the perpetrator's confidence in this legal position, when weighing up his guilt and responsibility, as indeed "contravention of the law" is a real crime-constituting fact in the sense of criminal jurisprudence.
If the French judge in the great Goering trial, Donnedieu de Vabros, already issued a warning against the preclusion of "reference to higher orders" (see statement Dr. Jahrreiss, transcript page 4288), how much more justified - from the purely legal aspect - is the objection raised here against the retrospective transformation of facts constituting a legal action into unlawful facts.
2. True justice further demands clarity about the deed and the real motives of the perpetrator. But just as it is impossible to separate the deed from the perpetrator, so one cannot separate the perpetrator from his views and the opinions of his time. To judge, or what is more, to condemn lawyers for their legislative and judicial activities, one must be acquainted with the development of German jurisprudence and must know how it was possible for men of law to drift into the province of injustice. This relaization is important especially when the ultimate purpose of the trial is not just to punish the defendants if guilty or acquit them if innocent. That would only be the outward result of the trial. Therefore, if this trial is not to be in vain, the ultimate and deepest idea of the proceedings must be to show the German nation end the world that under the spell of subservience to the National Socialist state, legislation and jurisdiction also went astray.
Only then can the trial be instrumental in avoiding the same mistakes in the future. But for this purpose one must know the origin of these mistakes.
3. The defendant Altstoetter can demand, with more justification than anybody else, a complete clarification of all inner and outer circumstances and also a thorough study of the development of German law, because he is the first and the last person in this trial; the first, because these proceedings will carry his name for all time United States of America against Altstoetter and others; the last not only because he appears outwardly as the last in the list of defendants, but also because it was proved in this trial - and I shall have to deal with this later - that Altstoetter not only had nothing to do with any of the criminal activities forming the subject of the proceedings, but fought against every injustice wherever he met with it, like a man.
In the following statements of my final plea I shall refer to the development of German jurisprudence. I refer to these statements without presenting them here and now continue on the top of Page 9.
More and more voices were raised against this statutory law (Rechtspositivismus) of the declining 19th and the beginning of the 20th century, showing the urge for a deeper conception of law. As early as 1906, Flavius demanded a free law, independent of the state, and a rehabilitation of natural law in a new form, and several other teachers of law adopted his theories in more or less similar forms.
However this new theory had not yet established itself. Even under the Weimar constitution, we saw that the moral background and background in relation to international law of an act of legislation was beyond the scrutiny of an official, and that even the judge, as shown here by Professor Jahrreiss, had no right of examination in this connection. And, in fact, it was the fanatical followers of democracy who fought against such a right of examination ot the last. Now we experience the whole tragic character of legal development after National Socialism seized power. On the one hand National Socialism propagates a new "natural law" formed according to its theses of blood and soil (Blut und Boden), thus drifting toward the realization that statutory law could never provide the basis of a constitutional state. On the other hand, however, it used the philosophy of absolutism (Positivismus) to stabilize its power. It was only because absolutist legal thought predominated, that legal development in the German Reich could stray on to the way with which the Prosecution now reproaches it; for it was only because the majority of the German jurists had learned - and that long before National Socialism came to power - that law is the same as justice; that they had; according to that theory, to regard even unjust law as justice and had to apply it in the same way as the Fuehrer order that had become law.
This is of fundamental importance when inquiring into the guilt of the defendants, especially in the question of their subjective guilt.
4. In view of this exposition of legal policy on the German jurists' conception of justice and law, it becomes obvious that at all stages of this development, and especially during the period of the Third Reich, there were jurists and judges who, being followers of a generally recognized law or of a natural law, did not agree with the statutory law (Rechtspositivismus), who put a stop to unjust drafts of laws, who in their capacity as judges did not apply laws which they considered to be unjust. But this allusion could lead to unjust conclusions for, apart from the fact that it concerned an exceptional outcome only, the person who was taught statutory law and therefore advocated it, can be charged with personal guilt just as little as anyone who did not support statutory law from his own inward conviction and who drew a particular personal advantage from his support of natural law, for in both cases they have done what they considered to be their duty according to their knowledge and belief.
Therefore if I show in my following explanations how the defendant Altstoetter was struggling for justice - a man whose whole outlook made an adversary of positive law and who in principle was in favor of a justice above laws and who, as in the case of the draft of the law concerning treatment of a social elements (Gemeinschaftsfremdengesetz) placed this principle above statutory law, and if I explain how his point of view was opposed to all kinds of injustice, I do not want to claim any unusual and special merit for Altstoetter by this means. By this I only wish to prove that he did only what ho considered to be his duty, and what his whole outlook and his conscience made him do.
Court No. III, Case No. III.
The Indictment is based on the fundamental idea that in the Third Reich right and justice were abolished in order to establish and strengthen National Socialist despotism. By the abolition of right, independent courts were to be deprived of the power to examine the acts of National Socialism which were illegal and not in accordance with the law, and even the smallest balance of right which was still left to the suppressed in spite of the suppression caused by the legislation was to be abolished. In the pursuance of this aim, according to the indictment, breaches of International Law contrary to the Hague Convention for Land Warfare and crimes against humanity were committed.
At any rate, whatever the aims of National Socialism in legal policy may have been, in the filds of civil law and the administration of civil law, the pursuit of these aims was not specially emphasized and no crimes such as those described by the indictment and thus subject to punishment according to Control Council Law No. 10, were committed in this field.
I.
In a number of documents the Frosecution submitted as evidence the views expressed by leading politicians of the Third Reich. But also these observations refer chiefly to penal law only and not to civil law, though - with a view to creating a diversion - attempts were made to prove the National Socialist character of the civil law. The correctness of this point of view is proved quite clearly by examining the question of what changes of law were effected by National Socialism in the field of material and formal civil law during its 12 years of power.
I now refer to Page 12 and the subsequent pages to the question on the changes brought about by National Socialism in this sphere of law; and may I now refer to Page 15, Figure 3, and continue from there.
I will even go further -
THE PRESIDENT: Page 15 did you say?
DR. ORTH: Your honor, Page 14 at the bottom:
3) I even go further: The very administration of civil law was the fixed point in the Third Reich and for many unjustly persecuted people it was the place of safety during the period of the Third Reich. Is it not proved by Prosecution document, exhibit 561, submitted in the proceedings against the defendant Rothaug, that judgment was given in favor of a Jew by the District Court of Appeal of Nuernberg, although a Julius Streicher was the absolute ruler of this town; and does the affidavit of Genandt not not prove that, when the defendant Alstoetter was the judge to summit a report on the case, the German Supreme Court - in defiance of all might - stood up for justice even though it concerned a Jew? And those who were there at the time could add many more examples of this.
To what extent the field of civil law was free from National Socialist tendencies is best proved by the fact that men like Freisler and Thierack were not interested in this field of law. Even Adolf Hitler, whenever he occupied himself with questions of justice, always did so in the field of penal law. This applies especially to his speech of April 1942, which plays - perhaps unjustly an important part in these proceedings.
Therefore, everything that the Prosecution has produced in order to demonstrate the decline of the German legal system and jurisdiction, all the documents produced in evidence by the Prosecution, and all the testimonies of the witnesses - all this concerns the administration of penal law, and in no case was there proof of any action belinging to the field of administration of civil law which could be considered as being criminal.
I must give special emphasis to this statement because the defendant Altstoetter was only active in this field of civil law, since his professional interests lay only in this field of law and the scope of his duties was clearly separated from that of criminal law.
II.
In their document books the Prosecution submitted many documents on the question of conspiracy. However, since the Tribunal stated in its decision that conspiracy did not represent a criminal action by itself, it only remains to examine the question whether and to what extent these documents serve as proof of participation by the defendants, and in particular by the defendant Alstoetter.
1. With regard to the question of participation my colleague Dr. Haensel stated the case very clearly and several other colleagues referred to this problem in their final pleas. I may refer you to these statements.
As far as the application of these legal findings to the case of the defendant Altstoetter is concerned, I am not going to speak here of the definite accusations raised by the Prosecution against him for participation in NN matters and in the persecution of Jews. To these questions I shall refer later. I only wish to discuss here whether the statement of the Prosecution has proved that Altstoetter can be regarded as having participated in the crimes of which other defendants may have been accused.
In order to discuss this, only the method of participation, as set forth in rather general terms in Article 2, paragraph 2 d, of the Control Council Law No. 10 must be examined, for, in accordance with the actual facts, there is no question whatever that Altstoetter could not possibly be regarded as principal accomplice, or acessory, or that he was an intellectual abettor in the meaning of Article 2, paragraph 2 c.From the accessory nature of every participation it follows that also in the case d) a principal act must have been completed, i.e., a crime in the meaning of Article 2, paragraph a-c, must have been committed.
The mere planning of a crime can suffice as such a principal act only when it is recognized as an independent state of facts. This applies only to the cases in paragraph la. These cases are not included in the Indictment. It remains therefore that "to be connected with the planning or execution is only punishable if an accomplished principal act according to paragraph 1 b and c is proven. This is the opinion most favorable to the Prosecution. The following solution, favorable to the defendant, would also be possible and justifiable: The provision of paragraph 2d, similarly to paragraphs 2 e and f, represents only a special form of participation in those cases where the facts as laid down by criminal law are already met by planning and execution (attempt), without an accomplished principal act with criminal results otherwise necessary having been committed. Reasons connected with the structure of the law appear to favor this solution.
What are the prerequisites to be fullfilled to realize the act of participation in paragraph 2 d in the meaning of the Prosecution? These prerequisites in every form of participation are of an objective and subjective nature.
Objectively it would be sufficient for the defendant "to have been connected with the planning or the execution of a crime (proven as accomplished) pursuant to paragraph 1 b or c". What is the meaning of "to be connected with"? That is the decisive question. It is certain this does not mean collaboration or aiding and abetting with advice and action in the meaning of the usual assistance, but that less is sufficient.
However, it can not be assumed that any sort of connection of a person with the planning or execution would be sufficient, because this would lead to an unlimited extension of the cirle of persons involved. Not only each participant in a discussion which could be regarded as planning would be involved, but for instance also the technical staff concerned with the recording, the transmission to other offices, the registration ect. of such minutes. This cannot be the meaning, the more so as the subjective part would not always be of any help in such cases. This consideration alone shows that the meaning of "to be connected with" enlarges the sphere of causality but does not eliminate it. The connection of a person with the planning or execution of the act must therfore be a causal one for the act itself. That means, there must exist an immediate connection with the planning or the execution of the act in such a way that it affected the execution of the act itself - at least indirectly.
In subjective respect the general rules apply and must be applied, There is no obvious reason why and that it should be different with regard to this form of participation, as perhaps in the cases mentioned in Article 2 a-c. The Control Council Law No. 10 required for its application that the principal or the participant acted wilfully. Therefore also the "connection with" must have been wilful,
a) regarding the connection with the planning or the execution of a crime,
b) regarding the crime generally.
The defendant who is accused of this participation must therefore be proved to have known and desired one or several specific crimes to have been committed and that he himself became involved with the planning and execution of those crimes or that he had any desired and conscious connection with them.
Above all it is important that, contrary to the views of the Prosecution, a mere knowledge is by no means sufficient. The connection in this case also must be an intentional one.
In closing this brief legal consideration, may I draw attention to just one more conclusion based on what has been said: It is the principles governing the socalled break in the chain of causation which must be applied. Furthermore no person can be said to have adopted this form of participation, who, although he may have had some objective connection with the planning of a crime, yet personally resisted the project and was only subsequently confronted by a fait accompli when, through the action of a third person which he had not condoned or had actually opposed, the criminal act had thereby been effected.
2. To these legal viewpoints another must be added which concerns the person of the defendant Altstoetter himself. It is the question of which conception of the law did the defendant Altstoetter represent, and did he act in accordance with this conception; for it is from his attitude that it may be concluded whether on principle he was inclined to approve any criminal action, sanction it or even take part in it.
During his examination as witness, the defendant Altstoetter emphasized that he always had represented the idea of the constitutional state, and if you, Your Honors, will read the submitted affidavits, you will notice the repeated statements of the witnesses that the fundamental attitude of the defendant Altstoetter was the principle of the constitutional state. It is significant that not only his many colleagues of the Reich Supreme Court, not only his many collaborators at the Ministry of Justice, but that also those persons who only came in contact with him in his private life, report on this attitude of Altstoetter.
This proves that this conception of the constitutional state completely filled the jurist, the jurist, the judge and the civil servant Altstoetter, that not only officially out also outside his work he apoke of this attitude of his, emphasizing it time and again.
The conception of a constitutional state demands just laws, consonant with the laws of International Law. Altstoetter always acted in accordance with this conception.
a) He always resolutely rejected drafts of unjust laws. In this connection I would again mention the law concerning the treatment of asocial elements (Gemeinschaftsfremdengesetz), to his fight against the decree concerning the liability of the Farty (Parteihaftungsverordnung), and to his attitude against the ordinance for carrying out the 13th provision of the Reich Citizen Law, demanded by the Department VI of the Ministry for the Interior.
In individual cases also, ALTSTOETTER always represented tne principle of the law, and in fact he always accomplished this principle. In this connection I recollect his interference in the rent tribunals in Vienna, where at that time contrary to the existing regulations, Party officials had their say in deciding legal disputes. I refer to the attempt of the NSV to appropriate a home for children in Saxony, which was frustrated by ALTSTOETTER. I recollect so many other single examples which the individual witnesses testified to In their affidavits.
This line of action of ALTSTOETTER shows that he put into practice his conception that a law must be just and applied in a just manner.
b) His wish that the law must be in accordance with International Law, ALTSTOETTER clearly proved by the case of the statute Frenchmen, where he upheld the international regulations, and also by his decree regarding the treatment of illegitimate children in which he expressly stated that the international regulations must be observed at all events.
3. If, on taking into consideration my explanations regarding the participation, one examines the submission of the Prosecution, only two of the exhibits submitted against the defendant ALTSTOETTER need to be gone into, i.e. the minutes on the discussions of the department heads (exhibit 45) and the correspondence with Dr. MESSINER (exhibits Nos. 481 and 484).
a) The minutes on the discussions of the department heads may have been submitted by the Prosecution in proof -- this has been omitted. I now continue on Page 24 under III.
III.
Among other things the Prosecution accused Herr AETSTOETTER of participation in NN matters (Nacht und Nebel) and in proof of this accusation submitted the circular ordinance of 6 March 1943 (exhibit 319, NG269).
1. I need not thoroughly examine the question whether the NN-decree itself violated International Law; this problem has been carefully examined and discussed by several of my colleagues. I myself believe that in this respect the verdict of the IMT is not in accordance with the actual legal position and that, in particular, the execution of this decree by the law authorities was not wrong at all. But whatever the case may be, the defendant ALTSTOETTER did not in the least and on no account commit a criminal offense in carrying out the decree. It was not the function of Department VI, nor did it come within its responsibility, to examine the international and criminal principles of the NN-decree and investigate various points in connection with the order, dated 6 March 1945. Therefore it does not even matter whether ALTSTOETTER knew the Fuchrer-decree; even if he had known it, he could and should have relied on the authenticity of the decree in this respect, all the more so, as the matter had been on the way for a long time. The fact must also be taken into consideration that, at the time when he became a co-signatory of the decree, he had been in charge of Department VI for 6 weeks only, and that there is absolutely no proof that he had been implicated, before or also afterwards, with the decree or its application.
If I may use an example, the circumstances of the case will, perhaps, became clearer. If in a factory an engine is being manufactured, involving the collaboration of various departments, each department has to it that the manufacture of parts in their own department has been properly executed according to schedule.
The engine-wheels, to be manufactured by Department VI, must be in strict accordance with the Law of physics. If another department in the factory fails in the correct production of parts to be manufactured by them, the former department does not share the responsibility for this. And if the engine in its entirety, is out of order, then the party which either imperfectly assembled the engine or manufactured the faulty parts, has to bear the responsibility.
Department VI, in dealing with the order dated 6 March 1943, was concerned merely with the two questions relevant to their sphere of tasks and had to investigate, whether the order complied with the actual laws. Department VI, therefore, with reference to the order dated 6 March 1943 has only to investigate -- if I may use here a practical example, whether the engine wheels supplied by them are in accordance with the laws. These wheels had to be produced without any flaws by skilled laboerers. They might be manufactured without knowing the rest of the construction of the engine. Hero we are first concerned with the establishment of wills by NN-prisoners. To know the contents of the NN--decree is of no importance when dealing with or investigating such an order. The same applies to to the regulation of tho personal status, dealt within the decree. According to existing laws, therefore, especially according to the Fuehrer's order No. 1, Department VI could not be informed. And the defendant METTGENBERG and v.
AMMON expressly confirmed in the witness stand that the defendant ALTSTOETTER had not been informed. These facts arc completely in keeping with ministerial customs. As mentioned above, concerning collective orders, individual departments were active merely within their own sphere and are responsible only for their own activity.
This applies above all -- I must stress this fact once more - to the exceptionally secret NN-affairs, the true nature of which was completely unknown outside the criminal departments and even within those departments, with the exception of officials directly involved, section-chiefs only had any knowledge. From GOERING's trial ALTSTOETTER first gained knowledge of the actual existence of the NN-decree and not until this trial did he learn of the share in it attributed to the Ministry of Justice and of the provisions for the execution of the decree by the latter as well as their application by the courts. Affidavits submitted here also agree with his statement.
If the Prosecution asserts that this statement by the defendant seemed improbably, the fact must be mentioned that the witness SUCHOMEL, for instance, learned of the NN-cases only very late and then merely by accident when deputizing for the department chief competent for these matters. Mention must further be made in this connection of the fact that the witness SUCHOMEL, for years, belonged to the department which was in charge on NN affairs. Therefore, I am asking: How could it be possible for the chief of civil affairs to become acquainted with the nature of NN cases if Ministerialdirigent SUCHOMEL, who belonged to the department, which constantly dealt with NN Matters, never learned anything about this matter.
I now interpolate: The Prosecution, the their final plea on Pages 67 and 68 have accused the Defendant Altstoetter, of participation in NN matters. The reasons which they state for this opinion are, however, as I have already presented, not decisive.
Exhibit 310 to which the Prosecutor refer is a letter of the WVHA to the chiefs of all concentration camps giving directives for the case of transfer of NN prisoners.
That the Reich Ministry of Justice at that time is supposed to have had knowledge of this letter and of this directive has neither been asserted nor proved and that in particular Department VI of the Reich Ministry of Justice ever received knowledge therefore is absolutely out of the question. In no case did Altstoetter know of this letter.
The circular decree of the Reich Minister of Justice, Exhibit 319, was addressed to the judicial agencies involved and not to concentration camps. Nor did the circular decree concern any directives to the section of the Ministry of Justice but was addressed to outside field offices. Particularly the agencies concerned with the administration and the execution of punishment were directed in the case of the births and deaths to submit the generally prescribed reports to the Public Registry Office even if NN prisoners were involved. Neither to other agencies nor to the Reich Ministry of Justice were such reports submitted either by penal institutions or by the concentration camps. Consequently, the assumption of the Prosedution that department VI had knowledge of any registries concerning cases of death of NN prisoners in concentration camps is absolutely wrong and fictitious.
With regard to information given by the death and birth register of the Public Registry Offices, the obligation to observe secrecy proscribed that information was to be given only with the approval of the Ministry of Justice; However, a) it is not known to the defendant Altstoetter whether such a case over occurred; and, b) this regulation only applied to prisoners of the Justice administration and did not apply to prisoners who were in concentration camps; and, c) any approval to give such information would have been given in the Reich Ministry of Justice, not by Department VI, but exclusively by Department IV, and consequently an application for such an approval could never have been submitted to Department VI.
It is also incorrect that Exhibit 319 clearly shows that the NN prisoners involved foreigners, that is, foreign civilians. This is clearly shown from the portion which is quoted by the Prosecution on Page 67 literally whereby, however, by omitting the words "and the Occupation Power" it may perhaps have distorted the picture. Moreover, there cannot be the smallest doubt on this point. Also foreigners may be Brought before internal courts of justice without violating international law.
The assumption of the Prosecution that ALTSTOETTER participated in NN-affairs, and in a criminal manner at that, is therefore erroneous. If one wanted to infer this from the assistance given to the decree dated 6 March, then the clergymen, for instance, preparing condemned NN-prisoners for their last hour, would consistently and all the more have to be considered as participants in the crime assumed; for there can be no doubt that the clergyman who has spent his last hours with the condemned NN-prisoner was as a matter of course better informed on NN-matters as such by the condemned prisoners, than AETSTOETTER could even be. But both only have done what was really humane. One interceded for the right of the condemned prisoner to make his will, that his death was duly reported to the registrar's office and the other one prepared the condemned for death. Therefore in both cases there is no direct connection between the function and the persons performing this function and the carrying out of the action constituting the case, which is considered as criminal by the Prosecution.
Therefore from whichever angle one views the question of a punishable offence in NN--matters on the part of the defendant ALTSTOETTER, the result always remains the same: In this respect ALTSTOETTER is not guilty.
IV A further point of the indictment deals with the accusation of ALTSTCETTER's cooperation in depriving the Jews of their citizenship and with the confiscation of their property by the Reich, also that Jewish property in case of death lapsed to the Reich without compensation of Jewish heirs.
Here, too, the Prosecution is mistaken.
1. ALTSTOETTER had nothing to do with the legislation in connection with the expatriation of the Jews or Poles, their deportation and the confiscation of property, or with the execution of this legislation.
Document Exhibit 204, submitted by the Prosecution itself, if a refutation of the assumption that Dept. VI of the Reich Ministry of Justice had been participating in publishing the 13th ordinance of the Reich citizenship law, dated 1 July 1943, This has been proved not only by the defendant ALTSTOETTER's statements. On the contrary, it follows from the document itself and above all it has been proved by all pertinent affidavits that Dept. VI had no connection with this decree. This clearly fallows also from Dr. BREITHAUPT's statement, reporting on a conversation between him and the competent official in charge of Dept. VI in the course of which the latter stressed the fact that Dept. VI had not been cooperating in the issue of the decree.
The same has been declared under oath by Dr. STAGEL, who being Referent, was bound to have shared in the issue of the decree, had Dept. VI been participating in it.
In the course of the year 1944, Dept. VI was required to publish a provision for execution of the 13th ordinance of the Reich citizenship law but, as I have already explained, ALTSTOETTER opposed this demand. Following internal negotiation which the official in charge, the late Ministerialdirigent Dr. HESEE, held, with the Ministry of the Interior, by ALTSTOETTERS's request.