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.
-A-BK-24-8-Gaylord (Int. Steuer) the war The war is the basis of these crimes.
It must be pointed out, therefore, that according to the deposition of Lord Mayor Dr. Menge whom Dr. Goerdeier had named as his deputy, the supreme SACommand was against the war. He said that in August 1939 Lutze had spoken out very forcefully against war with Poland in a conference with Hitler, when the latter and Dr. Goebbels had advocated it, (Petersen Exhibit 119). It is in line with this attitude, when Max Juettner states in Petersen Exhibit 117: "That among other things is the reason, why Lutze was regarded as defeatist in wide Party circles, no less knows was his hostile attitude toward the Gestapo state. It is from this angle that Petersen's appointment as lay judge of the People's Court is to be viewed. As far as I am informed, Petersen was a vehement opponent of Himmler. At the request of the judiciary SA leaders were nominated by the Chief of Staff of the SA for the office of lay judge at the People's Court. The decision in regard to the nominees rested with the Chief of Staff himself. The latter, as a master of principle, always selected unblemished, respectable, experienced and sedate SA leaders from the higher and medium ranks band of fairly advanced age. Petersen was nominated in the first place because he was a man with the best of reputation. He had a large store of experience. Petersen was an extremely fair-minded man, inclined to reconciliation and leniency. In cases of dispute he always strove for a reconciliation and patience with human weaknesses. Frequently Petersen reported to me about the unpleasant things going on at the People's Court owing to the ever-increasing severity of wartime legislations. He repeatedly wanted to resign, but I pointed out to him that he, as an advocate of humaneness and justice in all situations of life, was the very man to stand for and vindicate the principles of humaneness before the People's Court". A statement to the same effect is made by Oskar Milberg in his affidavit who points out how dissatisfied Petersen was, both with the harshness of the legislation and the attitude of a part of the members of the People's Court in l6 0ct.
-A-BK-24-9-Gaylord (Int. Steuer) applying a more regorous interpretation of the law.
He staled, literally: "At times he carried his indignation to the point of odiously contemplating retirement from this office. If in spite of all that it never came as far as that, it was because he wanted to avoid eliminating his moderating influence, and moreover, to do his share on his own initiative towards the prevention of harshness and to see to it that leniency was shown in a great variety of causes. I think I can remember that also SA Obergruppenfuehrer Juettner, who saw eye to eye with Petersen again and again, dissuaded him from resigning from his office as lay judge at the People's Court in order to secure his influence so that clemency and humaneness might prevail in the judgment." (Petersen Exhibit 121).
The affidavits of Maria Weichel (Petersen Exhibit 122) and Mathilde Lindner show the same tenor. The last proof for Petersen's attitude was furnished by the witness Dechant who stated: "It was Petersen, who as Chief of the Personnel Main Office of the Supreme SA Command, was responsible for bringing about a decision of the Chief of Staff according to which no full-time SA leader could be delegated to the office of lay judge at the People's Court any longer after July 1944. or thereabouts. At the same time the Chief of Staff promised to effect the withdrawal of the full-time SA leaders employed, as lay judges by consulting with the Reich Minister of Justice." (End of quotation).
Could Petersen adopt any other altitude? This Court aill surely remember the heated clash between Petersen and Gauleiter Jordan. Unfortunately, owing to the attitude of the Soviet occupation authorities, I have only circumstantial evidence to offer in this trial. The affidavits of Erich Morgenroth, Dr. Karl Ludwig Wolters, Dr. Hoffmann and Gerda, Moench (Petersen Exhibit 113 through ll6) disclose the complete picture of Petersen's fight against the all-powerful party hierarchy. He fought relentlessly against the ascendancy of the Party over the State administration. Because he could not prevail, he ostentatiously tendered his resignation as Councillor of State. This 16 0ct.
-A-Bk-24-10-Gaylord (Int. Steuer) man could not change his nature.
Petersen could not possibly harbor ( any intentions aiming at the extermination of political opponents. In. this connection it is wrong to point to his own affidavit. It has been clarified how it came about.
The witness Dochant gave us a description of in what state he found Petersen: "Physically broken, suffering from chronic heart trouble. Petersen was a sick man, hardly able to keep down his food. In spite of that, he was taken to Nuernberg alone in an ambulance." (End of quotation).
The consequences of this ailing condition were inevitable. The affidavit only reflects the symptoms of his illness. The physician of the prison, Dr. Pfluecker said, and rightly so (Petersen Exhibit 36): " When it was explained to me that Petersen is 6l years old, that he is 24 kilos underweight and that he was fairly low as early as in the summer of 1946, I think it possible that Petersen would not have signed the affidavit of 3 December 1946, drafted by the interrogator, had he been in a normal condition". (End of quotation).
Furthermore, a study of Petersen Exhibit 37 and 38 also shows up the basic misunderstanding in regard to the meaning of the word "to exterminate" .
It can only be called an irony of fate if one imputes to Petersen the intention of exterminating political opponents, as the Prosecuting authority appears to do, not having bothered to prove what attitude Petersen took and how he voted in the individual cases which have been presented.
There is no need for me to waste many words; permit me to tell this Court just two episodes which took place when it became known that Petersen had been indicted.
It was not so much Petersen's defense which endeavored to obtain affidavits. K.Z. prisoners whom Petersen got out of the concentration camps although he did not know conditions there in detail, in other words political opponents or their relatives, were the persons who brought their affidavits right to Mr, Petersen's house.
So it happened that I had to return these affidavits "because they were not drawn up in due form. I merely presented a certain number. I remember the affidavits Schneider, Mueller., Pfau, Steiner, Heiseler, Pink, Sckocnin, Boeck, (Petersen Exhibit 127, 128, 129, 130, 131, 132, 133, 135).
The second episode, which the witness Erfurth would have reported, had he not been prevented from coming to Dessau, is as follows: "The citizens of Dessau wanted to make a list and a description of Petersen's attitude and to submit it to the Tribunal, in order to bring about his acquittal. Petersen's main qualities are eagerness to help, regardless of Party-membership, respect for personal convictions of others and hatred of any violent measures on account of differences in political opinion (Petersen Exhibit 126).
It thus happened in the case of Gertrud Dantzer (Petersen Exhibit 136) who like other women whose husbands were kept in protective custody, applied to Petersen, that he devoted himself wholeheartedly to the task of having those kept in custody released, because he did not consider it justifiable that somebody was taken into protective custody because of his political convictions. Therefore Petersen also was loyal to the Wilhelm Leuschener family (the latter belonged, to the conspirators' circle of 20 July 1944 and was condemned to death by the People's Court). (Petersen Exhibit 134). Along the same lines Petersen supported deported persons (Petersen Exhibit 137). From 1933 to 1945 Petersen remained ad ways the same. Petersen never made a secret of being an old. Party-member. Petersen Exhibit 113 is exactly in keeping with his character. It reads as follows: "Chief of Staff Lutze complained about the general political development, especially from that point of view, that in his opinion a difference had crystallized between National Socialism proper, as it was 10 0ct.
-A-BK-24-l2-Gaylord (Int. Steuer) represented during the time of the struggle and the system of today, which he called "Nasism". As the most conspicuous characteristic of the latter he considered the supporession of every individuality and of every honest utterance of opinion.
The National Socialist People's State, they had aimed at was turned into an intolerant police-state. He spoke of a total standardization of individuals not only by out and appearance but also in spirit. The world would have put up with the old decent "National Socialism"; the "Nazism.", however, ressulted in rousing the hatred of everybody". (End of quotation).
The chapter "Legality and Recognition Abroad" will be skipped by me. I would also have to present the final chapter "Violation of International Law". If the Tribunal so wishes, I can do so immediately.
TEE PRESIDENT: You may proceed.
Legality Recognition Abroad.
The witness Behl's standpoint was that the so-called coming-intopower never took place legally hut was an illegal usurpation. On the other hand the witness Jahrreis states that Hitler's appointment to the chancellorship took place completely legally. There also could be no doubts about the legality of the development, which started with the acceptance of the Reich Law of 24 March 1933. For they were the foreign countries, which recognized Hitler without limitations. It could be pointed out how much friendship with the Reich was sought. On being interviewed for the French Press on 3 November Lord Rothermere of the London "Daily Mail"' thought very much in the same line with Mr. Gerard when he stated: "I believe that one should not miss any opportunity to hold out one's hand in a spirit of friendshin to Germany. One cannot but admire the present government". (End of quotation) .
On 23 December 1934 Lloyd Goerge followed the same line with his speech in the House of Commons, where he gave his opinion about Nazi Germany as follows:
"Germany is situated right in the heart of Europe, and if its resistance against Communism breaks down... Europe will follow. Don't let us condemn Germany too quickly, we want to greet Germany as our friend." (End of quotation) . On 3 June 1937 in a report of the New York Times the English Ambassador in Berlin, Sir Neville Henderson, stated as follows: "In England far too many people have a completely wrong idea of what the National-Socialist government stands for, otherwise they would put less stress on the Nazi dictatorship but on the other hand attach greater importance to the great social experiment, which is being carried out in their country". (End of quotation).
It was stated from another English source:
"It must be admitted that in the course of history there has never been a revolution of that grandeur, as was produced by the Third Reich and which treated those elements in the state, Which for one or the other reasons were not of the opinion of the majority with so little harshness. As far as the continuous criticism is concerned which maintains, that Nazism is of a cruel harshness, forced upon the others by an oligarchical government - then one must state that such a criticism is unwarranted and uninformed." (Petersen exhibit 40). Then: "I had many discussions with Hitler. I believe that everybody who really came in touch with that eminent man, will agree in one point, no matter how much we may differ in other points - and that is the fact that he is absolutely trustworthy, sincere and unselfish. All agree in this point, also those who consider his politics per se as wrong. (Petersen Exhibit 49).
That was her foreign countries judged Hitler. How could the individual German judge differently about the legality of the government, since also German representatives were invited by other states at the regular international congresses and conferences. Even when the German troops marched into Bohemia and Moravia, the diolomatic relations with the Reich were not broken off.
In this connection may I point to Petersen Exhibit 53, which reads: "The British Prime Minster Neville Chamberlain delivered a speech in the House of Commons on the situation created by the declaration of independence of Slovakia and by the marching into Moravia and Bohemia of German troops. He stated at the same time that the declaration of guarantee for Czechoslovakia proclaimed by Sir Thomas Inskip on 4 0ct.l938 ceased to exist by the independence of Slovakia. What happened had happened with consent cf the Slovakian government..." (End of quotation). The British Ambassador in Berlin, Sir Neville Henderson, who was recalled after the occupation of Bohemia, and Moravia, went back to Berlin (Petersen Exhibit 54). So the individual German could have no doubt that the action in regard to Bohemia and Moravia had been recognized abroad, all the more that Dr. Hacha and Chvalkovsky signed a treaty in which it says: "At the meeting the serious situation created by the events of the last weeks on the former Czechoslovakian state territory was examined quite frankly. On both sides the conviction was unanimously expressed that the aim of all endeavors must be the maintenance of quiet, order and peace in this part of Central Europe.
The Czechoslovakian state president declared that, in order to serve this aim and to reach a final pacification in full confidence he places the fate of the Czechoslovakian people and country into the hands of the Fuehrer of the German Reich. The Fuehrer accepted this declaration and expressed his decision that he will put the Czechoslovakian people under the protection of the German Reich and will guarantee the autonomous development of her racial life in accordance with her own characteristics.
He rejected rumors which stated that Dr. Hacha had been forced to ride back to Berlin. He expressively states:That the Prague govern ment rather on its own made inquiries in Berlin, whether the President of the State and the foreign Minister Chvalkovsky would like to come to Berlin in order to negotiate about the future relationship between the German Reich and Bohemia-Moravia.
. In no case had a ready-made document been submitted to the gentlemen in Berlin.
Only after these negotiations were completed had the text of this well-known document been recorded by concerted action and signed by both parties. Before signing this document he deemed it necessary to turn to the Prague Government with a further inquiry, prior notification of the Government itself he did not feel he could make up his r.ind to sign the document. The Prague Government then had deliberated about the matter that same night and approved the attitude of the President on the basis of his telephone inquiry. The President of the State expressed his pleasure several times during the conversation that he had succeeded in acquiring the confidence of the Fuehrer. In addition, in particular the report by the foreign correspondent of the "Daily Telegraph" which asserted that Hacha, had been forced by threats to sign the agreements which were purported to have been all ready for Hacha before his arrival" . (Petersen Exhibit 52).
Thus we must credit every judge, who had sat on a court dealing with Czech cases, with acting in good faith, in particular as the question concerning representation of authority by the lawful government of a country is not a legal query in the sense of the present principles of International Law, but a political query. (Petersen Exhibit 55) .
Therefore, Petersen acted in good faith in the cases against Czech Nationals cited by the Prosecution. Naturally he must have been conscious of the lawfulness of his actions as the Reich Court had also pronounced the following in its verdicts: "The Protectorate which at the time that the act was committed was still a foreign 16 0ct.
-A-BK-24-16-Gaylord (Int. Steuer) country in regard, to the German foreign exchange regulations, has now become part of the Greater German Reich.
Therefore, offenses committed, in the area mentioned., are subject in general to German jurisdiction, so that any German Military Court properly composed. with respect to both members of the Court and its locality, is entitled to sit in judgment." (Lautz Exhibit 2l4) . Furthermore: "The accused is a member of the Protectorate of Bohemia and Moravia.. In the sense of these regulations, only persons protected by a foreign government fall into the category of foreign nationals. The members of the Protectorate of Bohemia and Moravia are not included in the above category of persons (Lautz Exhibit 215) .
Violation of International Law.
The requirements of the subjective side for a punishment of judges in cases where a breach of international law is involved, could, anyway, only be assumed, if international law would be a uniform entity. Only if the world did present a uniform legal aspect could it be said that the judges should have known that in the questions of international law under discussion, no conformity of German law to International Law existed. However, this is not the case, instead, of talking of a general Law of Nations, a rift exists not only in International Law but also in customary International Law.
I would like to give detailed reasons:
According to its own convictions, the Soviet Union cannot be a loyal member of any community of Nations respecting International Law. Their securely set aims of revolutionizing the world are firmly opposed to this. All the same it is possible that the Soviet Union might consider the rules of International Law as a modus vivendi - which they accept with reluctance, but do accept as a modus vivendi - between themselves and the capitalistic states. The official Soviet opinion, however, is not content with this. On the contrary it aims at regardding International Law and its accepted rules as a weapon to be used against the non-communistic surrounding world. A detailed description 16 0ct.
-A-BK-24-17-Gaylord (Int. Steuer) of the development and the conceptions of Soviet International Jurisprudence would be going too far.
In the following statements, we merely must draw the most important useful conclusions, from those speculations on International Law. In doing so we follow the official Soviet statements of the leading man who is considered the mouthpiece of the Kremlin, Prof. Korowin, who in his textbook on international law, which he published under the title of "International Law of a transitory Period" declared: "The Soviet Union represents the world of tomorrow, it does not fit into a yesterday. (German Prot. 4256/57).
The Soviet Union is the advocate in principle of the idea, of unlimited sovereignty. As the Soviet Union, inspite of a world revolution, is still isolated, it cannot permit its sovereignty to be bound by conventional fetters, for reasons of self-preservation. The justification of the right to exercise the Veto in the Security Council of the UN is a logical conclusion, so is above all the consideration extended to treaty rights; the clausula rebus sic stantibus finds far reaching application in the Soviet doctrine.
In his work, on page 115, Korowin writes as follows: "On the one hand we know better than anyone else, that obligations contracted in general and with Socialist states in particular, are not honored by the signature of a bourgeois government or not through motives of formal scholasticism. The relative value of this practice cannot be denied even with respect to Russia, but with the unavoidable correction relative to the social revolution which takes the form of the "clausula, rebus sic stantibus". (End of quote) .
It is an exaggeration to state that the extension of the jurisdiction of National Law over other Nations is generally speaking considered a. crime in the world. This may be the case in Great Britain and the United States; it is lawful in the Soviet Union, hay I remind you, that the Soviet Union, as soon as it had assumed power in Poland and 16 0ct.