The first alternative refers to the increase of punishment against a dangerous habitual criminal, the second to the order of a measure of security and reformation against him.
In every trial, the criminal record of the defendant is discussed, that does not imply any extension of the facts. The prosecution, already in the investigations before trial, adduces an exceprt from the criminal record of the defendant. This applied also to the case of Strobel. In the indictment, the prosecutor had expressly mentioned that Strobel had been previously convicted. Therefore, in the first hearing, no new counts arose as to the issue outlined in the indictment and which was the subject of the case. Only the assessment of the facts from a legal point of view has become a new one, as the criminal record of Strobel which formed a subject of the penal investigation from the very beginning, made his offense appear as that of a dangerous habitual criminal.
In the discussions about this case, it was of a certain importance whether the attention of the defendant Strobel has been duly called to the change in the legal point of view, as prescribed by the German law (Article 265, Code of Criminal Procedure). The rulings offered by me (my exhibits No. 134/135) all of which have been enacted a long time before 1933 -- yes, even before the first World War -- deal with just the same facts as in the case of Strobel and affirm that the reference to the change of the legal point of view in a decision of adjournment (Aussetzungsbeschluss) at the end of the first hearing will do justice to the provisions of Article 265 of the Code of Criminal Procedure, even when, in a second hearing, the reference will not be expressly repeated. For the real motive of Article 265 CCP is to give the defendant the possibility for defense in view of the new legal conditions, and one can hardly imagine any better realization of this intention of the legislator than that the procedure - as in the case of Strobel - be suspended for four months with respective reference, and a defense counsel is assigned for the defendant on account of the changed legal situation.
A brief interpolation. In its final plea, the Prosecution mentioned the Zoellner case in which Oeschey is supposed to have applied the concept of the sound instincts of the people contrary to the wishes of the population of the place where Zoellner lived. The Prosecution is wrong here, and apparently Oeschey failed, on the witness stand, to clear up this mistake, for it was not as a public enemy but for a crime against the war economy order - and that under Article 1, Section 1 of that order, as is shown from Exhibit 581 that Zoellner was convicted. The legal factions of this paragraph 1 can be gathered from my Exhibit 47. The term "sound instincts of the people" is not mentioned in that Article 1. Zoellner, therefore, was not convicted by introducing the concept of the sound instinct of the people. That Oeschey's verdict did not find the approval of the local mayor, I do not think is of any importance in our proceedings here. In this connection, the Prosecution once again has mentioned the case of Sponsel end Barth from which the Prosecution believes it can conclude that Oeschey's way of handling cases was merely a farce. Oeschey has stated his views considering the peculiarities of the practice in cases of field post matters (Transcript pages 8648 and following). There is nothing I wish to add, and I would refer you to my Exhibits 103 to 105. On the other hand, whether the Barth case, where the main defendants were sentenced to heavy terms in a penitentiary and not to imprisonment terms as the Prosecution says, as to whether that offense would have been punished with equal severity in another country, that is a question which I should like to leave open, but I seriously doubt that offense would have been punished with greater severity.
In the cross-examination of the defendant Oeschey the Prosecution reproached him for the case of the Jew Schoenbaum, who was sentenced to two years imprisonment because of a malicious acts offense.
Obviously, the Prosecution wants to prove by this case that Oeschey took part in the persecution of man for reasons of racial discrimination, and in the extermination of Jews. Therein, the Prosecution referred to the rejection of the defense counsel employed by Schoenbaun, as well as to some remarks, partly contained in the minutes of the police interrogation, partly in the verdict, and to the fact that Schoenbaum, after he had served his time, was delivered to the Gestapo. To take first the rejection of the Jewish counsel whom Schoenbaum had chosen as his defense counsel, I need not go into the question of legality of the measure ordered, but may confine myself to the statement that Oeschey was not at all involved in this decision. And as to the verdict, passed under the presidency of Oeschey, it refutes expressly the supposition of the Prosecution, The offense of Schoenbaum consisted in remarks, injurious to the State, which he had made towards others, and which, according to their objective contents, could be considered as either undermining the defense spirit, or as spiteful and inciting expressions (Article 2 Malicious Acts: Law concerning insidious attacks against the State) or only as spreading of untrue facts regarding the military situation. (Article 1 Malicious Acts Law). Thus, it depended upon the sense in which Schoenbaum had meant his remarks. Just this case is one more proof for the objectivity and the open mindedness of Oeschey, in that he did not impute to Schoenbaum the intention of undermining the defense spirit, yes, not even spitefulness or inciting intentions, but imposed upon him the mildest sentence, applicable to the offense of circulating untrue allegations. As to the deliver of Schoenbaum to the Gestapo after serving his time, Oeschey had no influence whatsoever upon this, he did not even know about it; this measure has to be answered for exclusively by the authorities which were responsible for the penal execution and administration.
Therefore, this case does not incriminate but clears Oeschey.
Finally, I want to go into the cases Heubeck and Sauer for which the defendant Oeschey was reproached by the Prosecution in the crossexamination, and by which the Prosecution obviously tries to prove some sort of connection of Oeschey with the methods of the Gestapo and the concentration camps. Heubeck, as well as Sauer, was sentenced by the Special Court Nuernberg, under the presidency of Oeschey, on account of an offense according to Article 1 of the Malicious Acts Law concerning malicious attacks against the State, because they had made false allegations as to the conditions in certain concentration camps. However, the Special Court did not - as supposed by the Prosecution - adduce evidence for the untruth of these allegations from the statements of the respective concentration camp commanders which were in the records of the Court, but were not requested by it. This information, as Oeschey testified on the stand and as can be seen from the findings, were never part of the presentation of the evidence; the judicial conviction of the defendant's guilt, on the contrary was exclusively based upon the defendant's confessions in the trial. They, therefore, were only sentenced insofar as they themselves admitted that their allegations as to their experiences in the concentration camps were false or at least exaggerated or misrepresented; as far as they denied having made such allegations or claimed that their statements were true to the facts, the Court did not find them guilty.
Now, the Prosecution remonstrated with Oeschey that these confessions had no probative value, because the defendants Heubeck and Sauer had been in a position of constraint on account of their verbal promise, given when released from the concentration camps, not to tell anything about the conditions there. Today, we cannot state whether such a position of constraint really existed with these defendants. Neither does it matter very much. It might possibly be relevant whether the Court had to recognize such a position of constraint of the defendants , and that is not the case.
The defendants would have made their defense in another way, if really they would have been afraid of imminent disadvantages from the part of the Gestapo. They would have denied, and they would have denied everything, in order to avoid treatment by the Gestapo. Instead of this they only denied partly, and partly they confessed, which had to give the Court the impression of correctness and of a voluntary confession. No normal human being will accuse himself of punishable acts or of such which would involve police-measures, if he did not commit such acts, Neither could Oeschey and his assessors gather from the records anything to the contrary, in particular nothing about the fact that Heubeck and Sauer, after they had served their time, would be delivered to the Gestapo and taken to a concentration camp. Such a request for delivery was never made to the finding Court as this had nothing to do with the execution of the punishment. And the request of the Gestapo to the investigating judge - not the finding court! which was cited during the cross-examination of the defendant Oeschey by the Prosecution - had nothing in the least to do with it. It did not refer to measures after serving the time, but only to the case that the investigating judge, to whom the Gestapo had delivered the defendant, would not impose the judicial arrest pending trial. The Prosecution has also failed in the further attempts to prove that the defendant Oeschey should have been aware of the treatment of defendants who had made remarks about concentration camps, on account of the case Heubeck which had been judged before the case Sauer. It has been established unambiguously that the records of the case Heubeck were not produced in the trial of the case Sauer, but most important, that at the time of the trial against Sauer the defendant Heubeck who had been previously sentenced was still serving his time, that is, he had not yet been delivered to the Gestapo at all.
Thus, Oeschey had no knowledge of such measures, nor did he assist in this case nor in any other case in delivering to the Gestapo persons whom he had sentenced, in order to have then taken to a concentration camp.
VI.
Summary Court Oeschey was until shortly before the collapse president of a Civil Summary Court.
In the indictment, the Summary Courts are not mentioned. In Count 9 of the Indictment, extraordinary irregular courts are mentioned. Some lines below, in the sace count of the Indictment, mainly the People's Court and the Special Courts are designated as such extraordinary irregular courts, but not the Summary Courts. The same applies to the Count 21 of the Indictment, in which also a special responsibility is imposed on Oeschey.
That is probably no accidental or inadvertent incompleteness of the indictment; as the Prosecution argues tha.t the "extraordinary irregular courts" had illegally been forced upon the ordinary court system by the National Socialist regime, a point of view by the way has been rebutted unambiguously in this trial by the evidence offered. The argumentation of the Prosecution must, however, fail in any case, as far as the Civilian courts martial are concerned, as the establishment of civilian courts martial. (Standgerichte) as well as the establishment of Courts martial (Kriegsgerichte) has been declared admissible already in the Judicature Act of 27 January 1877 and in the Weimar Constitution of the Reich as well. Par. 16 of the Judicature Act corresponding literally to Article 105 of the Constitution of the Reich, runs as follows:
"Exceptional Courts are prohibited. Nobody shall be deprived of his legal judge. The legal provisions concerning Courts Martial and Summary Courts and civilian courts martial are not affected hereby."
This does not only mean that those provisions which existed already when this law was issued remain effective, but that also the competent legislative power is authorized to issue provisions concerning Summary Courts, as was done by the Law of 15 February 1945.
Insofar as civilian courts martial have been established and insofar as somebody is summoned before these Summary Courts, he is therefore not deprived of his legal judge. This is of importance for all Summary Courts cases, and in particular for the case of Count Montgelas.
Oeschey did not voluntarily apply for this office of judge at the civilian court martial but he was ordered to do so as a soldier. Thus, he had no possibility to refuse the office assigned to him, unless he disobeyed a military order and exposed himself to penal prosecution because of military disobedience of desertion.
Paragraph II of the civil courts martial code prescribes that as president of the Summary Court a criminal judge has to he appointed. This prescription was complied with by the appointment of Oeschey; for the prescription had only the purpose to guarantee that the presidency at a civil courts martial should be entrusted to a professional lawyer, qualified for the office of a judge, with special experiences in criminal judicature; but it did not require that the judge who was appointed president he practicing such an office at the moment of his appointment. From 1 January 1939 up to his being drafted for military service at the beginning of February 1945, Oeschey was employed continuously and exclusively as a professional judge in criminal judicature, and most of this time as president of a Special Court, thus, perhaps, he more than any other judge at the Nuernberg courts, was qualified, according to Paragraph II of the Summary Court Code. He had not lost this qualification because of his being drafted to military service only a few weeks earlier, as on the whole, his professional position and his position at the District Court at Nuernberg were not at all affected by this military service.
Oeschey's conduct as a judge of a civil courts martial in particular concerning the interpretation he gave the Summary Court Code (Paragraph IV), according to which the civil courts martial could only pronounce death sentences, acquit the defendant, or remove the case to the ordinary judicature, was humane and reasonable.
He considered this rule only as a directive for the procedure, but not as an aggravation of the substantive regulations of penal law, in such a manner that capital punishment should be imposed for each offense that had been ascertained, even if the substantive penal law did not provide for this typE of punishment. His absolutely credible and logical remarks on this point are affirmed by the procedure pursued by the civil court martial according to which three cases, that is a fourth of all cases tried, were transferred to the ordinary courts, because no offense punishable by death, according to the then valid substantive penal law, was involved. One of these cases which were removed to the ordinary courts, and which is known by its name, namely the case Zippelius, has also been confirmed by the witness Eichinger (Exh. 150 p. 82).
There are ho records available of any of the cases tried, by the civil court martial. Therefore it is extremely difficult, if not impossible, to establish merely from the witnesses depositions, whether the decisions passed were materially correct or not.
The defendant Oeschey explained in the witness box the principles of the practice and the conformity of the same with the real penal law which was valid at that time, and the prosecution has offered nothing that could shake this statement. Therefore, my following statements will only deal shortly with the substantive decision, and more fully with the formal procedure.
The only case that has been discussed more detailed before the Honorable Court, is the case of Count Montgelas. In this case, the witness, that is Oeschey as well as the Investigating Judge Eser who interrogated Montgelas, the State-Attorney Mueller who dealt with the case before the records were transferred to the Feople's Court; and finally the defende counsel Eichinger, attorney-at-law; deposed unaminously that it was a question of very serious remarks, which, if they did not constitute high treason, at least approached it closely, and would have unconditionally involved death penalty at the People's Court, according to the judicature as it was practised since the beginning of war.
Thus, this case is restricted in essential on some questions concerning the procedure. The witnesses of the prosecution discussed the question whether the Civil Court Martial was competent for the decision after the records had been transferred to the Oberreichsanwalt (Public Chief Prosecutor) at the People's Court; this question was of no importance for the Court itself. The transfer of the records may affect; at the most; the competency of the Public Prosecution. But as the records did not reach the Oberreichsanwalt; and thus he had not taken over the case, it remained in the competency of the transferring Public Prosecution at Nurnberg. The Court had only to examine the question whether the conditions of Article III of the Code of Civil Court Martial existed, and this examination could not turn out but positively. The Civil Court Martial could not evade trying and judging the case, after the charge had been brought before it, Oeschey did not exert any influence that the case came to trial as it never happened in all the other cases.
The fact mentioned by the witnesses of the Prosecution that the commission of the offence occurred some time in the past is likewise of no importance in regard to the competence of the Civil Court Martial; for the Summary Court decree does not contain a clue for the Prosecution that only those offences should be tried by tne Summary Court which have occurred after the Civil Court Martial decree was issued, or after the Civil Courts had been established. It was indeed the punpose of the Civil Court Martial to replace the regular jurisdiction which no longer functioned, and only the endangering of the German fighting power and the determination to fight constituted the jurisdiction of the Civil Court Martial. However, there is hardly any need of a detailed proof for the fact that the crime of seditious undermining of the fighting power endangers the German fighting power and the determination to fight.
The defense counsel for Count Montgelas did not appear at the trial, Out of this fact the Prosecution constructed a charge against Oeschey which, however, was not justified. Oeschey summoned the defense counsel as he has testified in a trustworthy manner. What sensible reason could there have been for him to refrain from summoning the defense counsel in this case? Since in other cases too, he permitted the defense counsels to exercise their functions, especially so in the case Zippelius with the same attorney Eichinger. Everyone who has witnessed the conditions at that time must have understanding for the fact that, as a result of the external circumstances, the summoning of the defense counsel could not be carried out, even though all concerned had the best intentions. It may indeed be possible that Attorney Eichinger had his emergency office in the Courthouse, neither will I dispute the fact that he had made arrangements for notifying the Court Authorities about the transfer of his office.
What guarantee, however, was there under the then prevailing circumstances that such a notification actually reached the individual offices of the court, One air-raid alarm followed the other, the Courthouse had suffered serious damages, the telephone service was not operating, there was no mail service and no street-car traffic. This, obviously , affected also the zeal and eagerness for work on the part of the intermediate officials who were making out the summons and ascertained the parties involved in the trial. It is therefore absolutely conceivable that the summons could not be served to the Attorney who had been bombed out, and I must energetically reject that in this respect any fact was evident for the malicious intent of the persons, in particular Oeschey, who were concerned with the summons of the defense counsel. Besides, the prevailing legal provisions dealing with the necessary defense were already rescinded by the 4th simplification decree, dated December 1944 and Count Montgelas had not objected to the absence of his defense counsel during the trial.
If it is a fact that Count Montgelas was only given a period of 24 hours for the last preparation of his defense, this may seem to be a short period today to one who observes the facts after the event. However, one must realize that the time of notice given to appear at trials of the Special Courts had already been reduced to 24 hours as a result of the competency decree dated 21 February 1940 (Par. 23 II). In addition to that one must realize that Count Montgelas, owing to his repeated examinations by the police and the Examining Magistrate who certainly did not exert any influence on Montgelas description of the facts, was familiar with the subject of the indictment and, through discussions with his defense counsel, would have had the opportunity for preparing his defense. Consequently one can by no moans assert that he had been sentenced by a summary procedure; for since his arrest he had 16 0ct-A-FL-18-4-Goldberg (Int.
Hahn) a period of almost two months at his disposal for preparing the defense.
Count Montgelas had evidently recognized the seriousness of the situation for a long time, therefore he has made a manly admission of his guilt and accepted the sentence allotted to him by law. Count Montgelas, in view of the undisputable facts, would have been able to make his defense with a certain prospect of success only if he had named the woman with whom he had conversed, or at least would have given her name. This, however, he failed to do in spite of the fact that he was asked to do so by the Court, evidently in order to protect this lady; at this time we are no longer in a position to determine the motive for his acting, whether Count Montgelas refrained from doing so for personal or political reasons, In any case, the very fact that the Count refused to disclose the lady's name - not only the defendant Oeschey has confirmed this fact in his testimony but also the witness Huemmer (Prot.S. 3980) - could not but convince the Court that this lady was not a Gestapo agent, but a personal acquaintance of the Count.
No proof has been established for the assertion that Ocschey was conspiracing with political authorities for the purpose of liquidating Count Montgelas shortly before the collapse. The contrary has been proven through the testimony of the Prosecution witness Mueller (Prot. page 3772) - Of just as little proof is the malicious remark allegedly made by Oeschey in an air-raid shelter which is merely attested in an unsworn statement (Prosecution Exh. 150, page 39), as it also has been established according to the Huemmer statement that Oeschey was not present at the execution of the Count.
The reason that of all the other cases tried by the Civil Court Martial I only emphasize the political cases is, because I assume that the conviction of a spoliator or a criminal against the war economy could involve any problems not yet dealt with. The cases Wahlrab, Rupp and Gottfried were of political nature.
There is no material available pertaining to these cases except the rather scanty statements of the witnesses Huemmer and Filbig.
Any fundamental divergencies between these statements and Oeschey's testimony are not in evidence. Consequently there is no cause given why the trustworthy and consistent testimony of Oeschey should not be followed. According to this testimony Oeschey was outvoted in the case of Wahlrab whose statements of seditious undermining of the defense spirit cannot be ascertained any more at this time. Rupp, however, deserved the death sentence according to the then prevailing legal provisions; Rupp had urged several soldiers to throw away their arms.
A somewhat clear picture can be obtained in the case Gottfried through the testimony of the witnesses Filbig, Huemmer and Oeschey, who wore interrogated in this matter. Gottfried, at that time, has prevented the defense measures ordered by the Wehrmacht and has given a statement regarding these defense measures to the american troops. For such an act he would have been sentenced to death by any Court and the fact that both co-defendants of Gottfried were acquitted in broad realization of the then prevailing situation, proves in my opinion the independence and courage shown by the members of the Summary Court Martial Gottfried was tried in a regular proceeding, there was no lightings trial. Oeschey was not present when he was executed.
The records of the Court Martial show that, in spite of the harsh laws, out of a total of 12 defendants, three were acquitted, three were committed to the regular Courts and 6, that is half of the defendants were sentenced to death, the only admissible penalty. Further proceedings against 25 members of the Volkssturm were not intentionally carried through by Ocshey and Schroeder because the competence of the civil Court Martial was extremely doubtful for proceedings of that kind. This is not a justice based on terror or bloodshed. The fact that the Civil Court Martial did not judge according to Nazi-political views either is shown on the one hand by the death sentence against Rupp who was a political leader, on the other hand by the acquittal of the shoemaker Dirscherl who was an open and declared opponent of National Socialism.
Even if it may seem tragic to us today that at that time, in other words at a moment when the war was objectively lost for a long time, people were still subjected to trial before this Court and eventually were executed, one must nevertheless be on guard not to attach a legal significance to this argument; for every German who has contributed in any way to the conduct of this fatal war - and that was the case directly or indirectly with all active Germans - could eventually be held responsible on the basis of the same argument. It is not decisive whether Judge Oeschey has continued to fulfil the duty, conferred upon him, up to the first or to 15th of April 1945 but whether in carrying out his duties he acted in accordance with the provisions of the law, as an objective and humane judge.
May it please the Court, these are my statements to counts II and III of the indictment which, after count I has been settled through the decision of the Tribunal on conspiracy, contains the main charges of the indictment. Oeschey is accused of a particular responsibility in counts 11 and 23 of the indictment while counts 9 and 21 in general object to the activities of the so-called extraordinary Special Courts.
Counts 9 and 11 refer to war crimes, that is, crimes committed on foreigners and Jews. To be particular, count 9 refers to "Suppression of the political opponents of the Nazi regime", and count 11 to the classification of "passive defeatism, minor offences and insignificant remarks as high treason". This leads to the conclusion that only the eventual participation of Oeschey in convicting non German persons for political offences can fall under these counts of the indictment.
However, it has not been proved that Oeschey pronounced any death sentences for political crimes by foreigners or Jews.
To be sure, the Prosecution has attempted to give a political coloration to the case of the "Freikorps Plaerrer" and the case where foreigners circulated ration cards that had been dropped from airplanes. However, it has been proved beyond any doubt that both were cases involving a general, genuine criminality. And so Count II of the Indictment seems to me refuted for this reason alone. And even if one should give a broader interpretation to Count II and also include general criminality in it, then nevertheless, according to what has already been brought out, there has not been a single case where any objection could be raised against Oeschey on account of his conduct or his administration of justice with respect to foreigners and Jews within the meaning of the indictment. I therefore come to the conclusion that Oeschey is not guilty under Count II of the Indictment.
In Count III of the Indictment - crimes against humanity - I already mentioned Figures 21 and 23 as relevant. 21 refers against to the "suppression of the political opposition". Figure 23, to be sure, does not contain an express reference of this kind to political crimes; however, through its reference to Figure II it indicates that the charge is to be exclusively or chiefly that of participating in political trials, in this case also trials against German citizens. Oeschey's participation in trials of a political nature is very slight. With the exception of the Civil Court Martial cases of Count Montgelas, Rupp, Wahlrab and Gottfried, at the most only the Strobel and Therese Mueller cases during the time of the Cavil Court Martial can be considered political cases which ended in a death sentence. These cases have been thoroughly discussed and clarified as much as possible. He conduct of Oeschey which could be considered as a crime against humanity is apparent. Neither the trial nor the verdicts show any deviation from law, and the same holds true for the cases of general criminality, of which a large number were discussed.
If the Prosecution raises the charge of murder against Oeschey, then it must be made clear that any act of killing could only be found in connection with Oeschey's judicial activity, that is in applying the laws of his country. By its very nature, then, this judicial activity can only be criminal if it constitutes, in a concrete case, a perversion of justice, that is, a deliberate and voluntary abuse of the law established by the State. However, no case of the perversion of justice could be proved against Oeschey; on the contrary, all the witnesses examined on this point have unanimously declared that Oeschey never committed a perversion of justice. That refers to his application of both procedural law and substantive law. Every defendant received a trial by due process of law, with regard to both fact and law, in every instance the facts of the case were exhaustively clarified, the law was applied to it in a responsible and conscientious way, and he deliberated to the best of his ability on what punishmmnt was deserved according to the requirements of the law, A judicial endeavor of this kind is free from the stain of any criminal action and criminal intent, even if subject to the imperfections of all human effort.
THE PRESIDENT: Before we take our recess, I want to bring up one matter. The Secretary General informs us that he has not received proper copies of all the arguments of Defense Counsel. They are requested to hand over to the Secretary General two copies each of the English and two of the German text of their arguments one being for the record and one for the archives. And now we will take our recess.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
DR. SCHUBERT: I now come to an interpolation, Your Honors.
In Appendix III to the final plea the Prosecution arrives at a conclusion which is altogether correct, that in Article 21-B the Control Council Law 10, and the same is true of Article 21-C, requires for one of the incriminating offenses a definition under penal law according to the standards that apply within the state, and that offense is murder; but if the Prosecution then proceeds to draw the conclusion that the authors of the Control Council Law had been having in mind the common law definition of murder as they did not think it necessary to give a express definition, then one can say with the same justification that the authors were having in mind the French or the Russian definitions, as among the authors of Control Council Law there were French and Russian delegates with the same rights. Therefore, one does not arrive at a solution of the problem by that argumentation. It is difficult to understand why the Prosecution who in their Appendix III quoted Article 43 of the Hague Land Warfare Convention, charging the defendants in this trial with the point that they had not treated the inhabitants of the occupied countries that were occupied by Germany at the time according to their own laws while they don't grant to the inhabitants of the German Reich now under occupation the same benefits, that is to say the benefits of Article 43 of the Hague Land Warfare ConventionI think that two standards have been applied here. Therefore I arrive at the only possible conclusion if the authors of Control Council Law No. 10 did not draw a more closely defined definition of murders, by that reference they wanted to leave the interpreation of murder to the German law which under Article 43 of the Hague Land Warfare Convention is to be applied unless there is an obvious obstacle in their way, and that the Land Warfare Convention, the IMT says has described as being valid international law. In 1939, however, the rules laid down in the Convention had been recognized by all civilized nations and were being regarded a compilation of the laws and the customs of war to which Article 6-G of the statute refers.
Schwarze the commentator of the Penal Code in Note 2-C , ad paragraph 211, says in the case of murder intention is necessary. It consists in the knowledge and the will to kill a human being illegally. Olshausen in his note 9 ad Article 211 states the same. Under Note No. 2-B, add Article 211, Schwarze says the act of killing must be illegal, an act in virtue of an official or professional duty renders the person free of punishment. That applies to official or professional duty renders the person free of punishment. That applies to the killing of a person in the case of an execution. From that it results that the intention in the case of murder must refer note solely to the act of killing, but also to the illegality of the act of killing, but such an intention must of necessity be absent in the case of the judge when he passes a death sentence without defining the purposes of the law. Such a judge, therefore, cannot commit murder. The question of defining the provision of the law is connected with the further question as to what law the German judge was allowed to apply. Concerning that question the Prosecution does not take up a clear point of view. In Appendix III for their final plea the Prosecution refers to Article 21-C of the Control Council Law, from the last sentence of which persecution for political, racial or religious reasons without regard to the fact whether the national law of the country in which the act was committed was violated. The Prosecution concludes that obedience to national laws must be excluded as defense, but referring back to the case of the judge, it would mean that the application of a German law perhaps in a political case might be illegal and therefore may constitute a crime against humanity, and that leads to the conclusion which Professor Jahrreis ip his examination and under cross examination described as follows with the concise words: He may do as he likes; he always does wrong.
The last conclusion from that would he that the German judge in that conflict would have had to make the sacrifice, the very sacrifice which the Prosecution does not expect him to make. That reflection alone leads us to the point that the interpretation which the Prosecution has attempted to give the Article 21-C cannot be correct. He arrive at the same conclusion when we discuss the text of the law. Article 21-C says no more and no less than that to establish whether a crime against humanity has been committed; it does not matter where the crime was committed, violated or not, that is to say, whether the perpetrator of a crime against humanity at the same time has violated a law which prohibits such an act or whether such an act is not covered by any legal prohibition, or finally whether the law which prohibits the act has been rendered invalid by special regulations for the case in point. Interesting for this case is the Euthanaisa or the case of a police official who orders the execution of a Jew, but Article 21-C says noting about it that the civil servant whose task it is to apply the law to certain facts of a case, that is to say that the judge, the public prosecutor, the Justice officials should be prohibited from invoking the proper application of the law. It is an entirely basically different thing whether an act does not violate a law -- and only that case interests us here -- or, whether an act consists in the very application of the law. The Control Council Law was having in mind only the first, that is the negative case, not the second, the positive case, the case of the proper application of the law. The Prosecution continues to argue that a national law which covers prosecution for racial, political or religious reasons covers it or orders it cannot be used for defense. That is an assertion about which in truth one may argue, but for the moment I will assume that it be correct. What conclusion is to be draw from that? The fact that the Control Council Law speaks of persecution indicates that particular importantance it attaches to this word, it cannot refer to any prosecutions. I think every state allows prosecution for high treason or for treason, and that is to say for political reasons, or for instance for sacrilege or for religious reasons.
The limitation which is absolutely necessary results from the word "persecution." That indicates that a special treatment and exceptional treatment is to be applied. The racial or religious reasons lead to persecution within the meaning of the Control Council Law if they are being used to subject the person concerned to a treatment which either has not been deserved at all or which he has not deserved on that scale, and which differs from the treatment which is customary in such a case, and a treatment such as is accorded to all other persons concerned and which is to the disfavor of this particularperson concerned, that is to say for example: If a foreigner who renders himself liable to punishment is sentenced with severity only because of the fact that he is a foreigner. The Prosecution has charged Oeschey with such cases but it has failed to prove them. That is a bad selection, and I would like to characterize it in brief. Now I refer to the case Kamminska, the violent criminal; Strobel who was convicted on large-scale food thefts, Giani and Sala who committed one burglary after another. Klein and Eisenberger the burgulars; Jancovitch the looter, and Manchube the robber. In every single one of these cases one would have been a parallel case committed by a German national, nor does the case of Strobel constitute a case of political exceptional treatment. If one wanted to consider him a political case at all, I would refer you to treatment. If one wanted to consider him a political case at all, I would refer you to the case of Koein and Eisenberger which were dealt with by Schroder under his cross examination and the practice of the Reich Supreme Court on which Oeschey testified as a witness.
Therefore, I cannot perceive any guilt on Oeschey's part under Count III, just as under Count II of the indictment.
Oeschey is also charged with membership in criminal organizations. Under Figure 33 of the Indictment he is designated as a member of the Leadership Corps of the National Socialist Party of the Gauleiter's level.