Articles 80-93 a (High treason and treason) Article 94 (Attacks on the Fuehrer and Reich Chancellor) Articles 102-104 (Hostile actions against friendly states) Article 110 (Incitement to disobey to laws) Article 112 (Incitement of soldiers to disobedience) Articles 134a, 134b (Insults to the Reich or the Party) Article 135 (Disregard of National Emblems) etc."
It is not the task of Petersen's defense to exhaust completely the question of the introduction into the Protectorate of German law, it is rather their task, to decide if the judge has to examine whether the laws of the Reich correspond to International Law and whether he renders himself liable to punishment, if he applies laws which are not in accordance with International Law.
Professor Jahrrcis has expressed himself on this question in the witness box. His opinion is a follows:
"If the Reichstag made a law, in democratic Germany, which contradicted International Law, this law was binding for all German offices. What applied to the democratic Fuehrer order, applied all the more, to Hitler's decision. No State on earth thinks that it's own laws should not apply to its own officials. Judges and subordinates are bound also to apply and observe National Law which is in contradiction to International Law. It is not their affair, but the affair of the Government, to consider the differences from International Law, which might Arise from this. A judge who in a case of conflict had applied International Law instead of the Reich Law, would, if this were intentionally done, be guilty 16 0ct-A-FL-22&23-14-Cook (Int.
Steuer) of a punishable wrong application of the law.
If this judge is now called to account for the fact that he applied the German law instead of international law, then he would be in a tragic situation. Because whatever he does, he will always be doing the wrong thing." (German transcript page 4236 ff).
Professor Hahrreis's opinion is supported by a passage in the "Manual of German Constitutional Law" published by the crown lawyer of the Weimar period, Gerhard Anschuetz. We read on page 145:
"International courts of arbitration, to which the German Reich has submitted by treaty, not only have to examine German administrative acts as to their being in accordance with international Law, but also if necessary German laws (including constitutional laws), and if the result is negative, to deal with them as legally invalid. German courts on the other hand, do not possess these powers. It is a mistake to think that the opposite arises from the theory of the primacy of International Law. International Law is directed at the State as a whole, it does not break the outer shell of the edifice in order to disturb the hierarchy of it's inner organs." (Lautz Exh. 90).
In the decision of the Reichsgericht (Reich Supreme Court) in penal matters, volume 62, No. 114, I Penal Senate, verdict of 23 November 1928 (Petersen Exhibit 63), we also read:
"It could be conceived, however, that the opium law and the regulations for execution decreed for it had not satisfied the commitments as undertaken in 10A; in this case the judge would of course then be restricted to the limits imposed on him by the law."
In the course of Professor Jahrreis' cross-examination, the Prosecutor quoted from the work of Charles Hyde, "International Law":
I will now skip the next two lines and the first half of page 14 and will continue with the paragraph starting "Mr. La Follette":
International as well as National Law of every State is necessarily above every administrative regulation or law or public decree to the contrary.
There can be no conflict on the same level: the exact relationship between the recognized law of International Law and a local law contradictory to it, before the superiority of the former has been finally established. A local court can therefore be bound, in view of the nature of the matter and the limitations of the rights conferred upon it, to apply a law and even a National Court of the highest instance, may be found to approve of such an action. This, however, only means that no local court has the possibility of forcing the state to apply that law. It does not mean that this kind of relationship can be defended from an international point of view, or that the judges approve of it as such."
Mr. LaFollette has quoted Hyde Volume I page 16 par. 5. If the Prosecutor had quoted Volume II page 57 par. 527 and following, it would have become clear that the American Courts were bound to the interpretation of the Government in dealing with "political"questions. Wright (Legal Nature in American Journal of International Law X, 1916, page 735) and More are of the same opinion. In English law too, we find acts of state to be outside the jurisdiction of the English judge, in the same way as he is unable as a judge, to criticize a law which was properly promulgated (Petersen Exhibit 64). At the beginning of my final plea, I referred to Austin. The latter contrary to the handed down tradition of the liberalistic conception of world law, according to which International law as a generally valid law must ipso facto be a component part of the English legal system, emphasized definitively the radical positivistic point of view that international law only comes into question as an indirect source for National Law proper, since, in point of fact, all positive law must be instituted by national organs, be it by the immediate legislative organ, the Parliament, or by the delegate organs, the English judges. In this connection, the verdict in the Mortensen case is of interest (c.f. Petersen Exhibit 66). This dealt with the question of whether an English law, as opposed to Inter national Law, can legally apply the English Criminal Court laws on the high seas to foreign nationals as well.
The defendant was declared guilty and condemned.
In addition, by document Petersen-Exhibit 66 I have proved, that, although, according to Article VI of the constitution of the Union, State treaties are to be the highest State lawn, in spite of the fact that American law, when taking over the English common law system also took over the English statute, according to which the generally recognised International Law is to be a part of common law, it is especially the American practice of law which has, perhaps, worked out the principle the mosts, that in spite of the continuance of duties under International Law the American legislator can make valid laws contradictory to International Law which, regardless of that fact are to be applied and observed by the authorities, courts and citizens. The American practice has developed on some-what parallel lines to the corresponding English practices, in the closest connection with the systematic positivism as observed by Austin in the nineteenth century. This radical positivistic legal theory strongly was met by the need for a strict organization within the State, the need to counter balance more and more the International claims of the International community with the specific claims of their own State, in making the laws.
In the case of Foster and Flam v. Neilson, the Supreme Court as early as the first third of the 19th century, gave priority to congressional legislation over any possible norms of International Law. (Supreme Court of the United States, 1829, 2 Pet. 253, 7 L Ed. 415).
Even if this decision may still give rise to all kinds of limiting attempts at interpretation, the verdict in the case of Whitney v. Robert son made entirely clear that, in a conflict between a state treaty binding the U.S.A. and a later contradicting federal law (unionsgesetz) the latter merits preference before the public courts. Judge Field in his judgment explained:
I will now skip the paragraph on page 16 beginning with "The act of congress" and start on page 17:
"The act of Congress.... was passed after the treaty with the Dominican Republic, and, if there be any conflict between the stipulations of the treaty, is primarily a contract between two or more independent nations, and is so regarded by writers or public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other.... If the treaty contains stipulations which are self-executing, that is, require translation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether., By the constitution a treaty is placed on the same footing, and made of like obligation, with an Act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other... if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. The duty of the Courts is to construe and give effect to the latest expression of the sovereign will. In Head Money Cases, 112 U.S. 580, 5 Sup. Ct 247, 28 L Ed. 798, it was objected to an act of Congress that it violated provisions contained in treaties with foreign nations, but the court replied that so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country." Precisely the same principle is propounded in the case of Botiller v. Dominguez (1889) (130 U.S. 238, 247, 9. Sup.Ct 525, 32 L. Ed. 926).
Thereby, however, the validity of the American federal law - which is contrary to international law - is fully recognized. The American judge in deciding the legal conflicts before him, must be guided not by the perpetuated state treaty, but solely by the onesided newer law as far as it contradicts the former.
16 0ct-A-FL-22&23-18-Cook (Int. Steuer) This practice is shown to be in constant use in a series of other decisions, so that its legal recognition cannot be doubted - and this is practically unanimously recognized by the American theoreticians.
Thus we have the strange result that Art, VI of the American Constitution was in effect used as a basis for the recognition of the law of the country, which was contrary to international law. The decisions are numerous (compare for example Taylord v. Morton 1855, 2 Curtis, 454; Clinton Bridge, 186, 1 Wollworth, 150) Cherokee Tobacco, 1870, 11 Wallace, 6l6) Ropes v. Clinch 1871) 8 Blatchford, 304, Head Money cases, 1884, 112 U.S. 580) Hijo v. United States, 1904, 194).
In view of all this, it is objectively considered puzzling, how the prosecution can demand Petersen's conviction in the three named cases To this be added, that international law only stipulates the privileges and duties between the states as such) its norms are directed exclusively to the states, not to the judges or the citizens.
I will skip the Chapter beginning "The Peoples' Court" and will continue on page 23 of the English version: "The Lay Judge":
The People's Court Lessing coined the saying:
"If God held all truth in his right hand and the ever lasting urge for truth in his left, but with the stipulation that I should be eternally wrong, and said to me: Choose. - I should grasp his left in humility and reply: Give, oh Lord. For the truth is thine and only thine alone."
This solution is perhaps not exactly satisfying the mortal man. But it contains that which has been brought again to the fore in our time It is perhaps not for us to find the truth.
In history, legal decisions have always been disputed, the more so when political questions were involved. There was a crisis concerning the confidence enjoyed by the judicial system already in the period before 1930. After 1933 it was above all the people's court and the special courts, which moved into the focal point of criticism. The peo ple's Court was described as being an extend arm.
of the Gestapo and a terror court.
By the fact, that the people's court was set up as a special court, it is assumed that it constitutes an exceptional court.
To this the jurisdiction regulation, dated 21 April 1934 states as follows:
"The people's court is a proper court in the meaning of the law governing the constitution of courts," This short sentence refutes the assertion of tho expert witness for the prosecution WEHL (compare 724 German Record). The people's court replaced the Reich court solely and alone in the proceedings against high treason and treason. Thus again the Reich court was reinstituted as the highest court of appeal guarding the uniformity of law in tho Reich.
The critics of the people's court overlook the fact that there existed before 1933 a state court for the protection of the Republic. The critics overlook the fact that it was especially the Reich court, which in the sphere of treason - above all by applying the useless experiment, which it developed out of the so-called theory of volition on an Extensive group of cases - considered the possibility of punishment and thereby opened the way for an important sphere. Nor must it be overlooked when considering the jurisdiction in the people's court, that the law of 24 April 1934 eliminates the admission of mitigating circumstances, which were almost everywhere provided in the former law, for the entire sphere of high treason and treason.
One of the chief arguments of the prosecution against the people's court was, that the judges worked according to directives, that is to say, they were no longer independent. The prosecution itself, however, submitted documents, which rendered its accusation doubtful. I refer to prosecution exhibit 127, 194; 220. The Reich Ministry of Justice reprimands inadequate reasons for verdicts, it emphasizes the points of danger when tes 16 0ct-A-FL-22&23-20-Cook (Int.
Steuer) timonies of witnesses are shaken.
It is here admitted off hand, that the function of the judge within the National Socialist system has deviated from the conception in the liberalistic state. It was not up to the judge to control the political behavior or to guarantee the sphere of individual liberty. The adherance to the law, however, remained the requisite basis of jurisdiction for him. The law was regarded as the expression of the conscience of the community. He judged and was independent of official directives. The conception, that the law served only to protect the rights of the individual, was considered to be superseded.
When we consider that already before 1933 the word was spoken: "reasons of state stand above the independence of the examining magistrate", and that it was demanded that behind the judicial decision there should be a political principle, namely the preservation of the democratic, republican people's state, it is not to be wondered at, that the National Socialist law doctrine described the judge as the "sovereign guardian of the living rights of the community". This conception, in war-time, entailed prodigious burdens for the individual judges This is also indicated by that speech of Hitler in the Reichstag in which he said: "I therefore ask the German Reichstag to confirm explicitly, that I possess the legal right to hold everyone to the fulfilment of his duties or to remove him from office and position regardless of his person or the right he may have gained." (End of quotation) The picture which the people's court represents differs from the assertion of the prosecution.
12 presiding judges were discussed here. Only two were generally rejected: Freisler and Engert; opinion vary concerning Albrecht. 9 presidents (Vorsitzende) were described as being alright. The witness Boden, after rejecting Freisler, described Laemmle as just and impartial, Springmann as objective, calm, and as a good judge Dr. Greulich he described likewise, Kohler a strict, just and objective, and Hartmann as objective and just.
(German Record p. 6033). The witness for the prosecution, Dr. Gruenewald, Attorney-at-Law, too, describe Laemmle - of whom we know, as we know of Dr. Greulich, that he was Freisler's assistant judge (Beisitzer) - as most understanding, cal, and professional, man who treated the. defendants humanly and always let them have their say. (German Record p. 3848). Dechant assesses Laemmle's Character in a similar vein. The witness states literally: "Laemmle impressed me favorably as an assistant judge as well as a person. He conducted his trials calmly and professionally, without duress and without violating or jeopardizing the rights of the defendants. His attitude towards the witnesses was equally correct. His justice and sense of responsibility could be recognized without doubt." (End of quotation) These testimonies show that there were men around Freisler who were the opposite.
It is therefore entirely understandable, that the witness Boden states that differences arose between Freasler and his assistant judges during the sessions, just as there had constantly existed strong contrasts between Freisler, judge, and assistant judge.
Concerning the people's court the following facts were established in general by the witnesses for the prosecution Wergin and Gruenewald: It was not a prerequisite for the official defense counsel to belong to the NSDAP. The proceedings were public, and governed by the Code for Criminal Procedure. The rights of the defense counsels were not climinated. A real defense before the people's court was possible, when the time limits, for which the presiding judges were responsible, were too short, recess on a the basis of request for evidence was possible. The shortness of the time Units, especially from 1944 on, was due to technical difficulties. (Bombardment, transport and delivery difficulties). (German Record p. 3806 and 3837 and the following). The witness Storbek in his affidavit (Pertersen Exhibit 33) points out that no external influence had been exerted on the proceedings. Nor had the judges at the people's court been made to attend lectures by Gestapo officials.
Strong contrasts had existed between extensive circles within the sphere of the judiciary and the Gestapo. It was feared that the division of powers would be eliminated. There had been no differences in the treatment of Germans and nationals of other states. There were no regulations regarding exceptions. The proceedings had been conducted in conformity with the Code for Criminal Procedure which provides for the exclusion of the public in stipulated cases. Concerning the conception of "sound sentiment of the people" (Gesundes Volkeempfinden) and Freisler's personality, he states as follows: "The concept of sound sentiment of the people was made the subject of jokes at the people's court as well as at the other courts, We used to consider public sentiments as a slogan which only served to cover up a certain incapacity; for a reasonable, realistic attitude was entirely a matter of course. Freisler cannot be described as a typical judge. He was a man of great opposites, These opposites manifested themselves rather strongly. Freisler gave the impression of a hysterical mistress." (End of quotation) If we consider furthermore that, according to prosecution exhibit 147, the question of access to the files was handled very obligingly this is also confirmed by other witnesses - the exaggeration in the claim that the people's court was a terror court bound by directives, becomes obvious.
The severity of the verdicts lay in the law, The method of procedure, used under Freisler in the cases of the 20 July, is an exception.
In the fact that Gestapo denunciations were screened by investigating magistrates of the Reich public prosecution (Compare testimony DREM), and the conduct of the judges when members of the Gestapo violated the law in any way, (Petersen Exhibit 33) afford proof that the courts were not bound by directives. The judges letters do not prove either that the courts were bound by directives. For these were only of a critical nature. The criticism was similar to the criticism in other works.
Furthermore the witness for the prosecution had to admit, that in the judges letter defense counsels were reprimanded, if their defense was scanty. (German Record p. 3850).
The extraordinary plea, which had its model in the Austrian and French law, did not need a specific decision by the judge either, but only an additional examination. It could be entered negatively or positively for the defendant. It was also entered in the case of death sentences. (Compare Petersen Exhibit 33). The highest Reich authority expressed weighty misgivings as to the preliminary propriety of the verdict. (Lautz Exhibit 135). The court had no means of rejecting the extraordinary plea, it had to accept it. (prosecution exhibit 174); it was especially directed against the death sentences passed by Freisler (German Record p. 4919). The principle "ne bis in idem" was not violated by it. (German Record p. 4371).
The Lay Judge.
I had before me the German Judges Journal (Deutsche Richtezeitung) of the year 1929. From it I take the following quotation from the "Hamourger Nachrichten" dated 4.1.1929, contained on page 180 of the journal:
"The decomposition of the sonse of justice spreads through the channels of influence, which seep into the people from these schools (meant are the schools for lay judges erected in Vienna by the Social Democrat Party), without each individual having first to complete a course The indiscriminate acquittals are represented by the Marzist Leadership as reactionary acts against the class courts and their anti-labor function. "Let the Bourgeois be outraged in the face of these acquittals", they sneer. (Petersen Exhibit 425). This shows a problem of the lay judge before 1933. The same problem is apparent also with the lay judges of other countries, for instance, at the courts of aldermen of Scandinavia (Petersen Exhibit 424).
Both cases in foreign countries raise the question: Why did one permit the institution of lay judges to arise.
Its re-institution - it existed even before the acceptance of foreign laws - is to be traced to two half political, half judicial currents of thought. For one thing, the consultation of the people in the law administration was a concession to the general democratic spirit of modern times. One also wanted to avoid, by such an appeal to common sense that a purely formal judicial thinging would disturb the sense of justice and the life of the people, in that the professional jurists would judge too much according to the letter of the law, instead of judging the case by all its characteristic circumstances.
The prosecution secs in the lay judge a political element in the people's court. I believe, the prosecutors misjudge the influence the honorary assistant judge could exercise.
Under the head-line: "Shall the conscientious personality of the judge of the chance figures of voting be the foundation of the sentence?" the following remarks can be found on page 79 of the Periodical of the Academy for German Law. 2nd Year, 1935:
"If there is an inner preparedness to comply with the principle of leadership, the purely advisory activity will not at all be felt as something inadequate, because the adviser must assume the responsibility for his advice, and the Presiding Judge, in his sentence, the heavy responsibility for the rejection of this advice." (End of quotation) The advisory character of the activity of the Lay judge has been expressed by these words.
Beyond any doubt, the witness Behl has been proven to be mistaken when he says that the lay judges had the possibility to out-vote the professional judges. Quite unequivocally, Klemm declared that a 2/3 majority was required in the voting, and that this proportion had been in force for decades prior to 1933. As an example ho referred to the Grand Jury (German Record p. 4599). His words were confirmed by the witness for the prosecution Wergin.
The political role of the layman judge was absolutely insignificant The witnesses for the prosecution Wergin and Gruenwald declare that such honorary Assistant Judges did not exercise any political activity. (German Record pa. 3840 and 3848). This statement is on full confomity with the opinion of Schlegelberger that only such members of the organization were proposed who were not especially in the lime-light or did not exercise any special activity. For his person he adds: "If the lists are checked, a greater number of elderly, not active men will be found." (Gorman record p. 4371/72). In his affidavit (Petersen Exh. No. 33) the witness Sterbeck pointed out that, in many cases, it was the question of elderly men who were very experienced and, partly, very goodnatured. As regards their political reliability in the sense of National Socialism, mention may be made of the fact that especially l6 0ct.
-A-BK-24-1-Geylord (Int. Steuer) officers of the department of Admiral Canaris were called in case of treason.
(Petersen-Exh. No. 32). The fact that the men around Canaris were opposed to National Socialism is too well known to be pointed out especially. Concerning the possibilities for the honorary assistant judges to exercise influence, I should like to let the witness Dechant speak for himself; in his statement before this Court be said: "The first knowledge of the facts on which a charge was based was imparted to the lay judge by a copy of the indictment prior to the main hearing. He played no part whatever in all the preceding proceedings, beginning with the charge, on to the investigations and inquiries up to the indictment, and had no knowledge of the files. The conducting of the main hearing was in the hands of the respective I resident of the chamber who was assisted by the professional Assistant Judge, the Reporter. The lay judge took only a passive part in the conduct of the hearing, which fact was not affected by his right to ask questions either. In the consultation on the sentence, the legally trained Assistant, the Reporter, took the word first. He summed up the results of the hearing of the evidence, referred to the respective legal regulations and made the first proposal for the sentence. A discussion followed in this regard, and this was the first opportunity for the lay judge to voice his opinion regarding the case. Purely human viewpoints found their limits in the legal regulations whose knowledge and correct application was a matter of the jurists. If no agreement could be reached, a ballot took place. With the announcement of the sentence, the activity of the lay judge ceased; he had no influence whatever on penal execution, carrying out of the sentences, and matters of clemency."
The next chapter, "The Laws of War" will be skipped by me, and I will resume on page 32, under the heading "Participation and Personal Attitude."
The Laws of War.
On page 124 of "Marxism and the German Forces in the World War", 16 0ct.
-A-BK-24-2-Geylord (Int. Steuer) Written by Erich Otto Volkmann, the author says:
"The new Commander in Chief of the French Army, Petain, who had replaced Nivelle on 15 May, stemmed the mutiny with as much ability as energy, proceeding with great severity and ruthlessness against the ringleaders of the rebellion. According to Painleve. death sentences were passed in about 150 cases (Petersen Exh. 18).
After quoting additional examples from the German, British and French Martial Laws, Prof. Dr. Erich Schwinge outlines the position of Austria as follows: "Excellent provision in case of war had thus been made in the field of legislation. In clear perception of the Command of the hour, jurisdiction in no way was inferior to legislation, was never found wanting in watchfulness when facing the powers of destruction and made then feel the severity of the law whenever the welfare of the state called for such action. To be sure, the total number of convicted members of the forces cannot be stated with certainty as the sentences passed by courts martial during the years of the world war include numerous sentences against Civilians, But, according to expert estimation, the total number of persons occused before courts martial does not amount to less than 3 millions." (End of quotation).
In the era of domination of totalitarianism which absorbs the individual human being like a simple part, like a simple small cog of a gigantic mechanism with ever increasing power and oppressiveness, it is comprehensible that martial law was extended from the military field, to the sector of civilian and labor life. Total war made man subservient to collectivism, and extended the discipline of the soldier to every citizen of the state. In legislation, the question of apportioning punishment should be regarded from this angle.
Every day the attention of the German judge was draw to the fact that life and existence of the German people was at stake. He was referred to the sayings of politicians and militarists of the former enemy states which emphasized this impression. General Eaker for instance, in an interview which was published in the "Daily Mail" on 22 September 1942, said:
"There are sufficient air-bases ready or under construction within the British Isles to harbor all air-fleets which are necessary for the destruction of Germany.
The German workers need houses to live in. Nobody will like to work underground if he knows that in his absence perhaps his home is being destroyed and his family annihilated." (End of quotation.)
At the annual conference of the Conservative Party in London, Mr. Eden said on 20 May 1943.
"We know, the best for Germany is - not night-time air raids, not day-time air raids, but bombing attacks by day and night, without cessation, without interruption, hour after hour". (End of quotation).
"New Statesman and Nation" writes on 4 December 1943: ".... Nobody any longer attaches any credit to the talk about purely industrialdamage. Whenever our bombers are starting out our country people are shaking their heads and hope that it will mean the speedy end of the war. If mass slaughters and the work of destruction cannot be circumvented, then it is much better they take place in Germany." (End of quotation).
And then there are in addition the smoking ruins left by a relentless war of bombing, ruins which buried under them women and children.
This was the atmosphere which, like a burden, weighed upon the judges and made the decision between performance of duty within the framework of the law and human sentiments a hard inner conflict.
From this point of view must be understood the decisions according to Prosecution Exhibit 495 (case Dr. Will) and Exhibit 490 (case Friedrichs).
Dr. Will, a well-known Hamburg lawyer, had made seditious utterances and instigations. He had been sentenced to death. The secondary punishment pronounced at the same time - seizure of pant of his property -was legally inadmissible (German record page 4925). This was a legal error. The extraordinary exception that was taken was not against Dr. l6 0ct.
-A-BK-24-4-Gaylord (Int. Steuer) Will - to bring about, perhaps, the seizure of the whole property but in his favor.
It could not possibly have any effect because the witnesses turned about, that is to say their testimony for Dr. Will was even more unfavorable than that in the first hearing. (German record Page 5787). It is regrettable that it proved impossible to bring the witness Behrens, who had been admitted by the Court, from Hamburg to Huernberg. It would have been possible to show that Dr. Will was not an opponent of the National Socialist regime, but a person who, inspired by the success of the German Army, was in favor of the war.
Friedrichs, a German citizen who had become stateless, worked for the Communist Third International. This can be seen from the incomplete Prosecution Exhibit 490 at which not fewer than l4 pages of the indictment are missing. Moreover, this exhibit, which is worthless for purposes of evidence, clearly shows the fact that Friedrichs was not a Belgian. On the other hand, the circumstances under which his arrest at Hamburg took place are not clear.
Activities in behalf of the Communist revolutionary idea was punished even before 1933. The commentary supplement to the "Deutsche Juristenzeitung 1933, year 1928, number l4, contains the following passage: "It considered it also as proven that the Communist Party of Germany (KPD) , after its attempts failed to reach a revolution according to its ideology, has by no means given up this plan but carries on working for its realization, ready to strike at any moment which would prove favorable." This view of the Court is identical with the opinion of one of the prime experts on Soviet Russia, William C. Bullitt, who writes: "As before, Stalin's guiding idea prevails: The goal of our foreign policy is always the same - to set up a Communist dictatorship all over the world." (End of quotation).
In the book "Questions of Leninism", which was published in Moscow in 1931, Stalin writes on page 221: "Only the final victory of Socialism offers the full guarantee against all attempts at restauration because every serious attempt to interfere is conceivable only with the full support of international capital.
Therefore, the support of our revolution by the workers of all countries., above all by the victory of the workers in a few states, is the absolute prerequisite for the full security of the dominant victorious state (the Soviet Union) against all attempts at restauration and interference." (End of quotation).
Should, then, working for the Communist Party of Germany (EPD) the active pursuit of Communist aims perhaps have been exempted from punishment in Germany since the beginning of the war with -Russia, on 22 June 1941 Is the Prosecution itself convinced of this, since it submitted Exhibit 239 is which it is said: "If a particular form of government wins followers in various countries who are numerous enough to awake an interest that reaches beyond the borders, there is the possibility that powerful international forces - of an inofficial nature perhaps, but nevertheless not of less influence at that - are turning-against a state which apparently is committed to an opposite doctrine. The latter has doubtless the right to protect itself at its own discretion and, for reasons of self-defense, has a. wide margin in doing so."
Incidentally it may be pointed out that the case Chalupa belongs to this political, international play of forces.
As the latest reports from the United States disclose, this danger, which was threatening the German Reich during the war, has been recognized there in peace time. To prove this permit me to refer to the United. Press report of 3 April 1947 which says: "The Congressional Committee for the Combatting Agitations in America in its session of 30 March unanimously accepted a report in which the Communist Party in the United States is accused of being an agent of the Soviet Union. As Reuter's News Service reports in this connection 16 0ct.
-A-BK-24-6-Gaylord (Int. Steuer) the Committee has demanded of the American Government to prosecute the Communist Party, since it had failed to register as an Agent of a Foreign Power in conformity with the law.
The chairman of the Committee, Parnell Thomas, had asked the Advocate General to start proceedings against the Party and its officials on the "basis of that law.
In the 25,000 words' Congressional Committee report it is said that in the interest of the safety of the Government and the people it was of prive importance to realize the connection "between Moscow and the Communists in the United States. "We must realize that we are confronted with a world-wide revolutionary movement which is directed by a foreign government. (Petersen Exhibit 13).
To what extent the law of war and of emergency can alter the amount of punishment is proven by the Petersen Exhibits No. 69 and 91.
According to Article 1 of the Decree No. I by the Military Government in Germany (Petersen Exhibit 69), the following offenses are punished by death or another penalty depending on the opinion of a Military Government Court:
Subsection 2. Contact with enemy forces or with any other person on enemy territory not occupied by Allied forces, unless the contact is made through channels approved by the authorities;
Subsection 8. Actions or conduct to support or aid any nation which is in a state of war with one of the United Nations, or for the benefit of the NSDAP or of any organization dissolved or prohibited by the Allied Forces.
Subsection 9. Illegal possession or right to dispose of fire-arms, ammunition, explosives or any other war materials, equipment or other means fit for transmission of intelligence;
Subsection 10. Unauthorized use of fire-arms or other dangerous 16 0ct.
-A-BK-24-7-Gaylord (Int. Steuer) weapons, ammunition, explosives or similar war materials;Subsection 20.
Any other violation of martial law or any form of assistance to the enemy or endangering of the security of the Allied Forces.
Hence it follows that such acts as committed by Chalupa, Zelezny and Pichert would have been punished by American counts too if, translated into the present time and analogouslyk they had been committed by Germans.
Concluding this chapter may I still remark that if I compare the law of war, which was decisive for the People's Court with the laws of emergency in the Soviet Zone, startling parallels present themselves, Order No. 60 (Saxon Official News 1945, page 43) concerning sabotage and acts of diversion threatens with imprisonment up to 15 years and in especially grave cases with the death penalty, whoever makes himself guilty of "infringements aiming at thwarting the economic measures of the organs of German autonomous administration or the German administrations", or "whoever commits acts of sabotage for the purpose of paralyzing the operation of the plants or damaging or destroying them" A Thuringian law against rumormengering dated 20 December 1945 (Law Code 1946 page 7) provides penal servitute up to 5 years for "whoever intentionally by spreading a false rumor endangers the pacification of the population or the reconstruction of the country" (Petersen Exhibit 91).
Participation and personal attitude.
It follows from the German record that Schlegelberger, Klemm and Lautz had been asked whether they had been dealing officially with the defendant Petersen. Schlegelberger, Rothenberger as well as Lautz stated that they had not known Petersen even before the trial; nor had Klemm any dealings with him in matters of the Reich Ministry of Justice. The defendants stand indicted for crimes committed during 16 0ct.