-A-BK-24-18-Gaylord (Int. Steuer) in the Baltic States, introduced Soviet Criminal Law and Soviet Civil Law, into these countries, in particular the law of obligations, commercial law, law of property, family law and law of succession, and decreed then the only valid laws (Petersen Exh.
71) and the German Government did merely re-introduce Civil Law valid before the Soviet Regime (Petersen Exhibit 72).
On the subject of criminal law already in respect of basic principles, the conceptions of East and West differ. We understood by the term "crime" an unlawful and culpable act which is subject to punishment by the state. According to the Russian Penal Code, however, crime is synonymus with anti-social acts, no matter whether the offense has been committed by a responsible person or by one who is insane, or whether it is a punishable offense or not. According to the Penal Code each act or omission directed against the Soviet Constitution, or which violates the legal codes fixed, by the Peasant's and Workers' Government, is considered anti-social. In the Western states the jus puniendi became, subjectively, a Magna Charta of the individual The political opponent whose activities against the existing forms of state have centered outside of tangible delictual acts, as well as the ordinary individual who does not commit anti-social acts in a political sense, claim the right of the state to inflict punishment as the guaranteed rights of the individual, by referring to: "Nullum crimen, nulla poena sine lege." There is no roomm for this axiom in Soviet Law. This follows from paragraph 1, 6, 45 of the Penal Code of the Russian Socialistic Federalistic Soviet Repuglics.
I do not quote these articles in detail, and will continue on page 44 Section I: It is the task of the Penal Code of the USSR to safeguard the Socialistic State formed by the workers and peasants and the laws valid therein, against any actions calculated to endanger public safety applying the provisions for the protection of public welfare contained in these laws to the perpetrators.
Art. 6: The term endangering public safety means any act or commission directed against the Soviet system of government. (Petersen Exhibit 79).
Article 4b: In determining the protective measure of a legally corrective type (e.g. penalties) the court is guided.....
3.) By a socialistic sense of justice based on the evaluation of the degree to which the criminal might endanger society, by the circumstances of the deed and by the personality of the criminal (Petersen Exhibit 88).
Article 23: Declaring a man to be an enemy of the workers with the ensuring consequences, loss of liberty with solitary confinement, loss of liberty without solitary confinement and forced labor without loss of liberty are considered to be the main measures of a legally corrective type for the protection of society (Petersen Exhibit 79).
Since the prosecution considers the principles of the independence of the judges to be the general legal horm, it must be pointed out that Soviet law substitutes for this independence the guiding thought that the decisions of the judges, no matter in which domain they may move, must primarily correspond to the interest of the state. This socialistic sense of justice is a revolutionary sense based on class consciousness, as it is expressed in various Russian textbooks. Considering this point of view there was introduced into the penal la.w of the Soviet Union the concept of analogy which has been discussed here so frequently. Section lb of the Russian penal code reads as follows: "If there is no direct provision in this legal code for this or that act endangering common welfare, the reason and extent of responsibility for it are defined by these articles of this legal, code which provide for crimes which are most similar in their nature. (Petersen Exhibit 100).
Therefore it is a strange state of affairs when the Prosecution indicts as a crime that which is legal with a power which has signed the Control Council Law - which is the basis of the Indictment.
It is still more paradoxical in the conflict of two legal concepts existing in the world today, to want to hold especially a layman responsible in complicated legal questions, who all his life in all his actions has been guided only by the principles of law, decency and tolerance.
Therefore, I ask that the defendant Petersen be acquitted.
THE PRESIDENT: The Tribunal will recess until tomorrow morning at the usual hour.
(The Tribunal adjourned until 0930 hours, 17 October 1947).
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 17 October 1947, 0930-1630, The Honorable James T. Brand, Presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: Mr. LaFollette.
MR. LAFOLLETTE: Yes, Your Honor.
THE PRESIDENT: Was the arrangement which you suggested with reference to the brief unsworn statements by the individual defendants, that those statements should be made before or after the final rebuttal argument of the Prosecution?
MR. LAFOLLETTE: My distinct recollection was that it was the desire of the defendants that that should follow the rebuttal statements of the Prosecution; that was my understanding. As far as the Prosecution is concerned, we will conform with the wishes of the defendants, but I have assumed that they would rather make their statements after the Prosecution is finished.
THE PRESIDENT: Very well. Then apparently some special arrangement must be made previous to that time and the Tribunal would be pleased to know, if it is possible for them to know, whether we will reach the point of the final statements of the defendants tomorrow afternoon. Can you -you can't answer that.
MR. LA FOLLETTE: That of course rests with the defendants' attornies.
THE PRESIDENT: Thank you.
DR. SCHILF: Your Honors, I can answer to that that a certain survey is possible now. Defense counsel will probably conclude tomorrow noon, certainly in the afternoon their final please.
I therefore think that already tomorrow morning we may possibly be finished. The Prosecution then would have its one and one-half hours available for rebuttal, and the final statements of the defendants themselves could be held in the afternoon.
THE PRESIDENT: Thank you very much. You may proceed with your argument.
DR. SCHILF: May I say in advance that I will not present in reading all the quotations of my final plea, but I would ask that they be incorporated into the record.
Mr. President, Your Honors:
THE PRESIDENT: Just a minute. We forgot to ascertain whether all defendants are present. The Secretary General informs me that they are so the record may show that all defendants are present, Please, continue.
In opposition to intentions deducible from the indictment, the Prosecution has renounced the exhibition of evidence against my client METTGENSBERG in connection with charges 10 and 22, 11 and 23, as well as 12 and 24. There have been maintained part only of the charges made against Dr. METTGENBERG's activity in Section IV of the Reich Ministry of Justice. Relevant to charges 14 and 26 of the indictment, the erroneous conceptions, by the Prosecution, with regard to the documents introduced in this connection, have been wholly refuted.
My client occupies a special position in this trial in as much as he never belonged to the NSDAP nor to any affiliated organizations of the Party. He who, at the time, exposed himself to the disadvantages incurred by not belonging to the Party would suffer injustice should his attitude be interpreted in any way as having been influenced by Partypolitics. As is clearly shown by the evidence submitted by me, nothing was farther from his intention than to approve of such measures or even to further them. He always understood how to make his actions accord with his sense of justice and his ethical conceptions.
Affidavits by Paul METTGENBERG (METTGENBERG Exhibit 9) and by Frau MEGWITZ (METTGENBERG Exhibit 41) have also refuted the Prosecution's assertion that my client had been in favor of the so-called racial legislation. We never had any share in it. Whatever the Prosecution thought it could deduce from Exhibit 540 has proved erroneous.
The only reason why METTGENBERG took a personal interest in the legal development anticipated at that time was because he hoped to assist Jewish friends of his by gaining an insight into official documents. (Compare statement METTGENBERG, English translation page 6321. German page 6131). Whoever takes the trouble to try to become acquainted with my client's personality can see for himself that he was an official of long standing and of the old school, educated and trained in accordance with the highest traditions. Witnesses HUPPERSCHWILLER (METTGENBERG Exhibit 37), PREISER (METTGENBERG Exhibit 37) and RICHTER (METTGENBERG Exhibit 44) have been able to prove that my client never even attempted to exceed ethical limits. He must pass for an experienced, that is to say scientific and practical expert on international penal law. He worked continuously for 23 years in the Reich Ministry of Justice and has been able to contribute his part in establishing the good reputation which, even in the opinion of the Prosecution in its opening statement, was enjoyed by the Ministry prior to the year 1933. The Court can also gain information from my evidence METTGENBERG exhibits 3 to 8 and 38 with regard to my client's standing and performance. For more than one and a half decades Dr. METTGENBERG has been advisor to the Ministry, finally being made Sub-Department Chief (Unterabteilungsleiter). He remained, therefore, in a modest position, far below the group of lending officials in the Ministry. At no time was he authorized to make fundamental or important decisions. Finally, Dr. METTGENBERG was entitled to sign letters or orders by the Ministry only in cases, where insignificant matters were concerned, namely such of a purely executive nature. Whenever, to avoid delays, he signed declarations, deputizing for the absent Department Chief, their contents and wording had previously been established by the Department Chief (compare statement METTGENBERG, English transcript page 6252, German page 6071, and of Frau Felder.)
May I interpolate. For example, the special case Zinser, raised by the Prosecution, in Exhibit 140, Footnotes 80 and 81 of the final plea of the Prosecution involves a case for which Mettgenberg had no jurisdiction whatsoever. Here too he only signed a finished document drawn up in a hurry. Moreover, in this case the convicted person was not, as is asserted a Pole, but beyond a doubt a German national. Dr. Grube has already emphasized this for the defendant Lautz. Further more it is incorrect what was stated in Footnote 89 of the Prosecution's plea about the distribution of business in Exhibit 310. Certainly changes were made in details occasionally, but Mettgenberg was always only authorized to deputize for the department chief for a certain sphere of work. Beside him there were and other sub-department chiefs who were likewise authorized to deputize for their chief for their field of work and actually did so. In reference to this I wish to refer to my opening statement for Mettgenberg and to his testimony which clarified everything fully. Furthermore, it is erroneous to refer as Prosecution has done in its Footnote 72 to Prosecution Exhibit 339. Mettgenberg had nothing whatsoever to do with negotiations which led to the intervention of the Gauleiters into clemency practice. The Prosecution is attempting to identify Department IV with Mettgenberg. This is incorrect as above statements reveal. Moreover, the Exhibit of the Prosecution No. 539, Klemm Exhibits 40 and 76 further prove beyond doubt that the intervention of the Gauleiters decreed by Hitler himself and did not by any means have the effect which the Prosecution believes. In Footnote 72 the mere assertions of Altmayer, as per Exhibit 411, altogether have been refuted beyond doubt. It is also incomprehensible how the Prosecution believes to be able to assert that Hettgenberg had in advance been in possession of secret official information to the effect that Germany was undertaking to wage war.
The Prosecution Exhibit 102, mentioned in Footnote 76, refers to a decree of the Supreme Commander in Chief of the army concerning the executive power to be exercised in operational areas and various districts of the district courts of appeal wore designated as operational area; of these Mettgenberg may have heard by way of the circular decree, but only after the outbreak of war. The final conclusion drawn by the Prosecution there this, therefore, is impossible. The further Footnotes 71 to 83, rather the Exhibit mentioned in Footnotes 71 to 83 have already been dealt with in detail by Hettgenberg on the witness stand.
Documents METTGENBERG exhibits 1 to 4, submitted by me, prove in detail what was the general sphere of work assigned to my client within Department IV in contrast to his work in the legislative Department III. In my opening speech I have given a detailed account of the import of this work and the status of my client. These assertions have also been confirmed on all points by the evidence. As no administration of justice can omit the regulating of specific procedures, for instance how a death-penalty is to be carried out, so METTGENBERG, in his activity, did nothing in excess of his duties. (Compare, in this connection, statement METTGENBERG relevant to the question of the death-penalty - English transcript page 6252 and following, German page 6072 and following and of the general measures for execution - English transcript page 6261 and following, German page 6078 and following).
As for METTGENBERG's activity with regard to the exercise of pardon - there also he acted only occasionally, when the Department Chief was otherwise engaged -- I can refer to the statements made by me in the Final Plea for my client KLEMM, also with a view to the legal aspect. METTGENBERG's vote did not carry any weight at all with Minister THIERACK (compare statement METTGENBERG, English transcript page 6260, German page 6078). The additional exhibit 625 introduced by the Prosecution as rebuttal--evidence is of no importance.
The points discussed in this document were occasioned by the outbreak of the war. They remained in the stage of drafts.
As Dr. Kubuschok already stated in behalf of the defendant, Schlegelberger, in connection with this point the application of this clemency question was in effect only for a few weeks during the Polish campaign.
Mettgenberg's collaboration in the deliberation of other offices at this time cannot be ascertained from this document. But since they never attained the point of becoming laws, nobody can have been affected hereby either favorably or detrimentally. Moreover, inasmuch as Dr. Mettgenberg acted in lieu of his Department Chief on the occasion of the unfortunate events at the Ploetzensee prison, no evidence has proved a causative assistance nor, over and above this, any real guilt. During his examination in the witness-stand, Dr. Mettgenberg has been enabled to give his opinion on all details (English transcript, page 6257, German, page 6075, and English transcript, 6325, and following, German 6134 and following;) all possibly remaining questions of doubt having been clarified by the witness, Hartmann (English transcript, page 9013, German, page 8634.). Also how far Mettgenberg had participated in the measures for the control of jurisdiction - again in each single case only in place of the Department Chief - the facts have clearly been proved that no illegality was either intended or attained Here, too, in alluding to exhibits 541 and 542, I can refer to Mettgenberg's statements (English transcript, page 6328 and following, German 6138 and following and English transcript, 6357, German page 6166) and to the relevant arguments in my final plea for my client, Klemm.
I need not refer here to further details dealing with this activity of Mettgenberg. He, personally, had an opportunity, in the witness-stand, of expressing an exhaustive opinion on each document in question. Only one point I must stress here, that being the question whether the credibility of Dr. Mettgenberg's testimony as a whole can possibly have suffered as a result of the statement made by the witness, Suchomel, in his exhibit 543. Suchomel said he had received a report by Mettgenberg on a journey made to Mauthausen with his department chief. Mettgenberg has affirmed under oath that he was never in the concentration camp, Mauthausen.
Suchomel's memory must have failed him considerably. His statement can only be explained by the fact that he mistook for Mettgenberg the person supposed to have told him of such a visit at the time. Suchomel, in the question of euthanasia (exhibit 419) has already once before mentioned the name of my client in error. Suchomel has also been proved seriously wrong on other occasions. In particular I can point here to my statements made on behalf of Klemm with regard to the numbers of executions claimed by Suchomel to have been effected in 1944. My colleagues will probably add further incorrect declarations made by this witness. Mettgenberg's evidence in this respect is wholly credible (English transcript page 6296, German page 6109, English page 6319, German page 6121, English page 6348, German page 6157 and English page 6360, German 6169). Besides, it has been possible to introduce additional evidence proving that during the years 1943 and 1944 my client could not have made any journey whatever into the neighborhood of Mauthausen. This has been established not only from the statements by the witness Hartmann (English transcript page 9048, German page 8668), but also by the affidavit of the witness, Bruns (Mettgenberg exhibit 46) as far as the year 1943 is concerned and by the affidavit of the female witness, Velder (Mettgenberg exhibit 45) relevant to the year 1944. Assisted by these details, the Court may convince itself that my client's credibility could in no way be affected by witness Suchomel's tales.
Moreover, statements made by this witness, by my colleagues about evidence in this respect is wholly credible. Moreover, in cross examination in reference to his affidavit, Exhibit 543, Suchomel states he had never had occasion to doubt the credibility and truthfulness of Megggenberg, English transcript 7767. I do not say that Suchomel lied, but I declare with all emphasis that he made a mistake. Also other exhibits of the Prosecution furnish no evidence to the effect that Mettgenberg actually could have made this visit. It is wrong if the Prosecution in its final plea refers to Prosecution Exhibit 32 and believes to be able to insinuate that Mettgenberg handled reports of the subject of shootings and lynchings in concentration camps and other similar subject.
These reports were never handled by Mettgenberg. Exhibit 32 does not by any means reveal that such reports were handled. Exhibit 32 represents information which was circulated in the Reich Ministry of Justice and does not contain one single word of the subject of shooting of inmates in the flight. In a similar manner it is incomprehensible how the Prosecution believes to be able to identify or bring back in Mettgenberg's case a report of Prosecution Exhibit 310 which is a document submitted to the IMT. Originally it never became public in the Reich Ministry of Justice and could not have been made public as the document proves itself. Dr. Orth has also referred to this yesterday morning.
Finally, the Prosecution in its final plea reproaches my client, Dr. Mettgenberg, that he is responsible for lynching justice applied against Allied fliers. The Tribunal cannot give any consideration to this new incrimination. Various defense counsel therefore in their final pleas have already referred to the decision made in the physicians' trial according to which it is impermissible to raise a charge supplementary which was not contained in the indictment. The corresponding statements of the Prosecution in its final plea must, therefore, be rejected.
Moreover, my client, Dr. Mettgenberg, as a matter of fact has no reason whatsoever to fear the factual discussion of these matters. He was the Ministerial Dirigent who is mentioned in the note of the Supreme Ministerial Dirigent Steiner, dated 23 September, 1944, in Klemm Exhibit 86, English transcript page 13; he was the man who shared the opinion that the proceeding against Kluettgen must absolutely be carried through, and an arrest warrant must be produced.
Before I turn to Dr. Mettgenberg's activity in N.N. (Nacht und Nebel) affairs, I should like to refer briefly to individual questions of legal doctrine on behalf of the defense in general. The Prosecution and its alleged expert witness, Behl, have raised numerous objections of a general nature against the administration of justice, against the legislation, and against the jurisdiction of the the from 1933 until 1945.
In the course of the trial it has become obvious that Behl is not someone who could speak of these legal problems with real authority, compare Mettgenberg Exhibit 33 to 35). Here I only need to refer to the statements of Professor Jahrrelss' (English translation page 4253 and following, German page 4198 and following) who had something decisive to say about the problem of the development of constitutional law in Germany, as well as the relation of international law to German national law. In my final plea for Klemm, I had already seated that the application of analogy to penal law was no "tyrannical doctrine. Here i should merely like to draw the attention of the Court once more to the statements by Professor Schoenke, Freiburg, an internationally recognized authority compare Mettgehberg, Exhibit 23).
Also inasmuch as, during the so-called Third Reich, penal laws were made (retrospective) in a few cases (compare the exhaustive compilation by Schoenke in Kettgenberg Exhibit 16 referring to Article 2a of the Penal Code), the charge of inhumanity cannot be made against anyone. In all the cases which are mentioned then, the unlawfulness of these deeds was established. The principle nullum crimen sine lege could not be violated. The newer development in legislation, particularly on the basis of the charter of the International Military Tribunal and of law No. 10 of the Control Council, proves however that the were threat of punishment shall not, by its character and extent, take punishability for granted. There is no reason why this thesis, which has long been acknowledged in extracontinental penal law, might not have been accepted, at least partly, in German penal codification after 1933. If today the charge of an ex-postfacto law shall not be made against Law No. 10 of the Control Council, then the charge can also not be made against laws which already since 1933 showed similar tendencies in their legal theory. In no instance were new criminal facts of a case established; it was rather a question of actions, which had always been criminal, being made subject to another form of punishment. I should like to save myself further explanations of a theoretical character, but I should like to refer - out of the mass of documentary material as submitted by the defense - to my document book III for Mettgenberg, and here especially to Professor Radbruch's commentary on the verdict of the District Court of Constance in the Tillessen case of 28 February 1947, in Mettgenberg Exhibit 22.
I should like to add that Radbruch was even found worthy to be cited by the Prosecution in their trial brief of 23 June 1947.
The assumption, too, of the Prosecution that Germany had in an unlawful way extended the sphere of validity of its laws, has been proven wrong by the evidence. It may here suffice to refer to the evidence as submitted in my document book IV for mettgenberg, and further to the statements by Professor Jahrreiss and the Lotus case which has been thoroughly discussed by him and which had been decided by the International Court at Hague long before 1933. It is Professor Jahrreiss' statements that have given the Court the possibility of forming a correct judgment of these questions. He has described how in Germany Constitutional Law really developed and what sort of effects it had on all other legal spheres.
III. If now I come to the participation of my client, Dr. Mettgenberg, in the so-called N.N. affairs, I should like to state in advance that it cannot serve a just examination, especially of legal problems of the most difficult type, to lock at them from one side only. Even the strongest expressions in the enumeration of the charges made by the Prosecution (trial brief of 23 July 1947) do not serve the solution of legal questions.
At the examination of my client, Mettgenberg, the legal principle was explained how it was at all possible that courts, which were subordinated to the Reich Ministry of Justice, came to deal with these so-called N.N. affairs. The name N.N. affairs is incorrect. The Ministry of Justice always spoke of the "prosecution of punishable deeds against the Reich or the occupying power in the occupied countries" as is shown by the documents. With this the essential point of the whole affair was rightly described. It was probably because this description was so lengthy that the other but misleading name became familiar. It cannot be doubted that the German Occupying Power had the right to punish foreigners if these, as inhabitants of the occupied area, committed deeds which were punishable according to the laws of the Occupying power.
Furthermore it cannot be doubted, that they could be punished in the same way as if they had committed these deeds within the area of the Reich proper. This is the contents of article 161 of the Military Penal Code (Mettgehberg exhibit 12). This regulation, which long before 1933 also existed in other countries, has never been described as violating International Law. Which individual criminal deeds are meant, is apparent from the penal law, which for Germany has been formulated in the Special Military Penal Code (Mettgenberg Exhibit 10). No occupying power can tolerate espionage, sabotage within war areas, partisan activities and offenses against lawful orders of the Military Commander. According to the supplement to the Hague Convention which contains the regulations concerning the laws and usages of land warfare, the inhabitants of the occupied country are bound to observe the fundamental regulations which are intended to guaranee public order and public life. According to the Decree concerning the Military Administration of Justice (Mettgenberg Exhibit 11), the German legislator has made a regulation of jurisdiction, which cannot be objected to from the point of view of International Law, and has decided that foreign civilians who usually come under Martial Law, could be dealt with by the general courts of the occupying power. Neither the Hague Convention concerning Land Warfare, nor the Rules of International Law, nor any other codes demand that such trials should be dealt with only by Military Courts. A clear Legal principle therefore exists, which in fact governed the procedure against N.N. prisoners. At the discussion of the legal principle of these proceedings, Dr. Mettgenberg (Translation English page 6274 and following, German page 6090 and following) further pointed out that besides these two material and procedural groups of regulations, the proceedings have also been influenced by the so-called Fuehrer decree of 7 December 1941 (Translation English page 6275, German page 6091). Here I should like to state that this "Fuehrer decree" has affected the proceedings only insofar as strict secrecy was ordered.
Only this duty to treat the matter as secret, which all participants in the case had to observe, gave the procedure the special character of the N.N. affairs. It will have to be discussed whether in this way an offense against international Law can be construed against this legal procedure. It is the only point which might evoke doubts at all in this respect.
Professor Jahrreiss had an opportunity of explaining to this Court the significance of a Fuehrer decree as an act of legislation. All officials who at any time had had anything to do with N. N.
affairs; had; according to Professor Jahrreiss' statements; to start from the supposition that they did not observe secrecy simply on an "order from above"; but because it was in law. This is important with regard to the question - subjectively speaking - whether the new principles concerning the responsibility of individual law the aspects of international law can be applied at all to any one of the defendants.
This Fuehrer decree of 7 December 1941 was based exclusively on political-military reasons. The letter of the OK./ 9High Command of the Armed Forces) to the Foreign Office of 24 September 1941 (Mettgenberg Exh. 13) has explained the background which three months previously had already led to Hitler's decree of 16 September 1941. The intimidation of the occupied war areas which Hitler and Keitel intended with the decree of 12 December 1941 and its reason in the constantly increasing resistance against the German occupation troops.
It was not intended to affect those who had already made themselves punishable, but it was hoped thereby to prevent punishable deeds in the future (compare letter from Canaris to the counterintelligence offices Kettgenberg Exh. 39). As far as the carrying out of legal proceedings was concerned which had to be dealt with within the sphere of the Reich Ministry of Justice, this objective could thus play no part at all. The NN decree has been objected to by the International Military Tribunal only because of this objective. With regard to his objective the decree may have violated Article 46 of the Hague Convention. No objection was made nor could it be made against the fact that the culprits were "condemned and punished in Germany", (compare Part 7 under the title of the verdict of the IMT "Murder and Maltreatment of Civilian Population"). With regard to Keitel, too, the only act regarded as criminal was his order to hand over guilty civilians to "the Gestapo for deportation to Germany".
The findings of the International Military Tribunal therefore cover entirely different ground. It is perhaps possible to characterize as "deportation" the way in which persons who had been found guilty guilty of punishable deeds, were taken away from their home-country.
But the problem which has to be decided upon by this Court is only concerned with the question whether the legal officials who are here as defendants have collaborated in such "deportation" or even whether they favored it. According to the evidence this is out of the question. The defendants in this case had only to deal with regular proceedings before the courts. The statements of the Prosecution in their trial brief of 28 July 1947 cannot change this fact. The reference under I that the presence of the NN, prisoners at the trial in Germany was compulsory, and therefore differed from proceedings against Germans, not only leads to an erroneous conclusion - criminals, especially if caught in the act, are arrested everywhere and forcibly led before their judge - but also cannot concern the defendants as they could never have been instrumental in the transportation from the occupied areas to Germany. That was the exclusive concern of the Wehrmacht courts which transferred the case, authorities commissioned by them, such as police and the other departments mentioned in the letter Canaris (Mettgenberg, Exh. 39). It is further maintained in this trial brief under I B that the NN decree was "admittedly a terror measure"; and this cannot concern the defendants either. It can only have referred to the purpose of the general preventive measures and to the circumstances governing the removal of the culprits from the occupied areas. But the responsibility for this does not lie with any department connected with the administration of justice which had to deal with such proceedings within its competence according to established laws. Keitel's testimony before the IMT deals only with political-military reasons insignificant to the development of the legal proceedings. Justice was never intended to deal with matters which concerned the occupying power; it was its duty to administer justice according to International Law. The question is only whether the departments for the administration of justice alone because of their pledge to secrecy could be guilty of a violation of the articles of war.
Judging objectively this is not possible, because this secrecy for departments of the administration of justice was justified as a military necessity according be the conception of Internation Law at the time, based on the Hague Convention. Control Council Law No. 10, II, first section, paragraph b, expressly recognizes the justification of actions mentioned therein through military necessity. The Prosecution also especially emphasized this justification in their final plea, supplement 4. That the secrecy was due to this military necessity is shown in Mettgenberg exhibit 15 and 15a. The powers occupying Germany today have specifically ordered secrecy in individual cases for security reasons. Exhibit 15a contains directives from the government of USA given to General Lucius D. Clay, and it is stated that persons under arrest are permitted "to contact close relatives or friends, unless an exception is warranted owing to compelling security reasons." Security reasons can only be legally based on the military necessity of the Hague Convention. In the trial brief of 28 July 1947, it is attempted to dispute the defendant's justification in referring to military necessity. It is even maintained that this basic rule (compare Prof. Laun's statement, Mettgenberg Exh. 14) no longer conformed with International Law, as the former occupying power, Germany, violated International Law by starting a war of aggression. As far as I can see, the attitude of the Prosecution is moreover not logical in this respect. In their trial brief of 31 July 1947 on the theory of criminality under I A their object is to prove that the Hague Convention is an important basis for the definition of the term "War Crime" as laid down in Control Council Law No. 10. The stipulation of the IMT concerning aggressive war as a violation of Internation Law, can by no means be interpreted to mean that an unlawful aggressive war also renders unlawful the actual state of the occupation as such. If an aggressive war leads to occupation, the laws and customs of war on land as stipulated in the Hague Convention, must be adopted. Any other conception would lead to the conclusion that an occupying power is exempted from its obligations according to the Hague Convention, if the occupation is occasioned by an unlawful war of aggression.
Only that occupying power would be tied to these obligations which waged war lawfully. It is understood that the Hague rules not only should apply to the privileges, but also the obligations apply to every power once the actual occupation has become a fact. War commenced in violation of Internation Law must also conform to the International agreement on the rules of war compare Mettgenberg exhibit 42). If a different legal interpretation were applied, every German soldier who killed his enemy during the war committed murder in the legal sense and could be prosecuted, because he would not be justified in referring to the articles of war in the case of an individual act of war. In dealing with the question under discussion, we must therefore undoubtedly start from the principle that the defendants can refer for their justification to the articles of war, that is also the fundamental agreement of the Hague Regulations for War on Land. According to this, the military interests of an occupying power take precedence over the most fundamental rights of a member of the occupied state (compare Mettgenberg Exh. 14). For these reasons my argument expounded in my opening statement for Mettgenberg that these military interests were a justification for secrecy, still holds good.
With the developments during the war, of course, up to the military authorities whether or not in their legal directives they allowed themselves to be guided by arbitrary judgment of the military necessity as laid down by the basic agreement of the Hague Regulations for Land Warfare. The IMT condemned Keitel's actions, because, as military commander, he actually judged the necessities of warfare arbitrarily. The departments of the administration of justice, entirely inexperienced in military matters, could not by any means survey or even judge whether or not the directive concerning secrecy issued to themthe relevant part of the NN decree - was the result of arbitrary judgment on the part of the military commanders.