"Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in Chapter II on Violations of the Laws and Customs of War, if such persons have been taken prisoners or have otherwise fallen into its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of cases, (Hyde, International Law, (2d rev. ed.), Vol, III, Page 2412).
According to the Treaty of Versatiles, Article 228, the German government itself "recognized the right of the Allied and associated powers to bring before military tribunals persons accused of offenses against the laws and customs of war. Such persons who night be found guilty were to be sentenced to punishnents 'laid down by law'." Some Germans were, in fact, tried for the commission of such crimes. (See: Hyde, International Law, (2d rev. ed.) Vol. III, page 2414.)
The foregoing considerations demonstrate that the principle nullum crimen sine lege, when properly understood and applied, constitutes no legal or moral barrier to prosecution in the case at bar.
The Tribunal will take fifteen minutes' recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal has been advised that considerations for the health of the defendant Klemm require that he be excused for the rest of this morning's session.
Is that the wish of the defendant, Dr. Schill?
I understand you to say that it is the wish of the defendant that he be excused for the balance of the morning's session.
The defendant Klemm may be excused for the balance of the morning session.
Judge Blair will continue the reading of the opinion of the Tribunal.
JUDGE BLAIR:
Crimes against Humanity as Violative of International Law.
C.C. Law 10 is not limited to the punishment of persons guilty of violating the laws and customs of war in the narrow sense; furthermore, it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law. The force of circumstance, the grim fact of worldwide interdependence, and the moral pressure of public opinion have resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law. We quote:
"If a State is unhampered in its activities that affect the interests of any other, it is due to the circumstance that the practice of nations has not established that the welfare of the international society is adversely affected thereby. Hence, that society has not been incited or aroused to endeavor to impose restraints; and by its law none are imposed.
The Covenant of the League of Nations takes exact cognizance of the situation in its reference to disputes which arise out of a matter which by international law is solely within the domestic jurisdiction of a party thereto. It is that law which as a product of the acquiescence of States permits the particular activity of the individual State to be deemed a domestic one." "Inasmuch as changing estimates are to be anticipated, and as the evolution of thought in this regard appears to be constant and is perhaps now more obvious than at any time since the United States came into being, the circumstance that at any given period the solution of a particular question is by international law deemed to be solely within the control or jurisdiction of one State, given frail assurance that it will always be so regarded." (Hyde, International Law, (2d rev. ed.), Vol. 1, pages 7,8).
"The family of nations is not unconcerned with the life and experience of the private individual in his relationships with the State of which he is a national. Evidence of concern has become increasingly abundant since World War I, and is reflected in treaties through which that conflict was brought to a close, particularly in provisions designed to safeguard the racial, linguistic and religious minorities inhabiting the territories of certain States, and in the terms of Part XIII of the Treaty of Versailles, of 28 June 1919, in respect to Labor, as well as in Article XXIII of that treaty embraced in the Covenant of the League of Nations." (Hyde, International Law, (2d rev. ed.), Vol. I, page 38).
"The nature and extent of the latitude accorded a State in the treatment of its own nationals has been observed elsewhere. It has been seen that certain forms or degrees of harsh treatment of such individuals may be deemed to attain an international significance because of their direct and adverse effect upon the rights and interests of the outside world.
For that reason it would be unscientific to declare at this day that tyrannical conduct, or massacres, or religious persecutions are wholly unrelated to the foreign relations of the territorial sovereign which is guilty of them. If it can be shown that such acts were immediately and necessarily injurious to the nationals of a particular foreign State, grounds for interference by it may be acknowledged. Again, the society of nations, acting collectively, may not unreasonably maintain that a State yielding to such excesses renders itself unfit to perform its international obligations, especially in so far as they pertain to the protection of foreign life and property within its domain.3 The propriety of interference obviously demands in every case a convincing showing that there is in fact a causal connection between the harsh treatment complained of, and the outside State that essays to thwart it.
"Note 3.-- Since the World War of 1914-1918, there has developed in many quarters evidence of what might be called an international interest and concern in relation to what was previously regarded as belonging exclusively to the domestic affairs of the individual State; and with that interest there has been manifest also an increasing readiness to seek and find a connection between domestic abuses and the maintenance of the general peace. See Art. XI of the Covenant of the League of Nations, U.S. Treaty Vol:III, 3339." (Hyde, International Law, (2d rev. ed.), Vol. I, pages 249-250)."
The international concern over the commission of crimes against humanity has been greatly intensified in recent years.
The fact of such concern is not a recent phenomenon, however. England, France, and Russia intervened to end the atrocities in the Greco-Turkish warfare in 1827. (Oppenheim, International Law, Vol. I, (3d ed.) (1920), page 229).
President Van Buren, through his Secretary of State, intervened with the Sultan of Turkey in 1840 on behalf of the persecuted Jews of Damascus and Rhodes. (State Department Publication No. 9, pages 153-154).
The French intervened and by force undertook to check religious atrocities in Lebanon in 1861. (Bentwich, The League of Nations and Racial Persecution in Germany, Vol. 19, Problems of Peace and War, page 75, (1934)).
Various nations directed protests to the governments of Russia and Roumania with respect to pogroms and attrocities against Jews. Similar protests were made to the government of Turkey on behalf of the persecuted Christian minorities. In 1872 the United States, Germany, and five other powers protested to Roumania; and, in 1915, the German government joined in a remonstrance to Turkey on account of similar persecutions. (Bentwich, op. cited, supra).
In 1902 the American Secretary of State, John Hay, addressed to Roumania a remonstrance "in the name of humanity" against Jewish persecutions, saying: "This government cannot be a tacit party to such international wrongs."
Again, in connection with the Kishenef and other massacres in Russia in 1903, President Theodore Roosevelt stated:
"Nevertheless, there are occasional crimes committed on a vast scale and of such peculiar horror as to make us doubt whether it is not our manifest duty to endeavor at least to show our disapproval of the deed and our sympathy with those who have suffered by it. The case must be extreme in which such a course is justifiable . . . .The case in which we could interfere by force of arms, as we interfered to put a stop to the intolerable conditions in Cuba, are necessarily very few."
(President's Message to Congress, 1904).
Concerning the American intervention in Cuba in 1898, President McKinley stated:
"First. In the cause of humanity and to put an end to the barbarities, bloodshed, starvation, and horrible miseries now existing there, and which the parties to the conflict arc either unable or unwilling to stop or mitigate. It is no answer to say this is all in another country, belonging to another nation, and therefore none of our business. It is specially our duty, for it is right at our door." (President's Special Message of 11 April 1898. Hyde, International Law, Vol. 1, (2d ed.), page 259 (1945))."
The same principle was recognized as early as 1873 by a learned German professor of law, who wrote:
"States are allowed to interfere in the name of international law if 'humanity rights' are violated to the detriment of any single race." (J.K. Bluntschel, Professor of Law, Heidelberg University, in "Das Moderne Volkerrecht der Civilisierton Staaten", (3d ed.), page 270 (1873)).
Finally, we quote the words of Sir Hartley Shaweross, the British Chief Prosecutor at the trial of Goering, et al.:
"The right of humanitarian intervention on behalf of the rights of man trampled upon by a State in a manner shocking the sense of mankind, has long been considered to form part of the law of nations. Here, too, the Charter merely develops a pre-existing principle." (Transcript, page 813).
We hold that crimes against humanity as defined in CC Law 10 must be strictly construed to excludo isolated cases of atrocities or persecutions whether committed by private individuals or by a governmental authority. As we construe it, that section provides for the punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic governmentally organized or approved procedures, amounting to atrocities and offenses of that kind specified in the act and committed against populations or amounting to persecutions on political, racial, or religious grounds.
Thus the statute is limited by the construction of the type of criminal activity which prior to 1939 was and still is a matter of international concern. Whether or not such atrocities constitutes technical violations of laws and customs of war, they were acts of such scope and malevolence, and they so clearly imperilled the peace of the world that they must be deemed to have become violations of international law. This principle was recognized although it was misapplied by the Third Reich. Hitler expressly justified his early acts of aggression against Czechoslovakia on the ground that the alleged persecution of the racial Germans by the government of that country was a matter of international concern warranting intervention by Germany. Organized Czechoslovakian persecutions of racial Germans in Sudetenland was a fiction supported by "framed" incidents, but the principle invoked by Hitler was one which wa have recognized, namely, that governmentally-organized racial persecutions are violations of international law.
As the prime illustration of a crime against humanity under C.C Law 10, which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law, we cite "genocide" which will receive our full consideration. A resolution recently adopted by the General Assembly of the United Nations is in part as follows:
"Genocide is a denial of the right of existence of entire human groups, as homicide is a denial of the right to live of individual human beings;
such denial of the right of existence shocks the conscience of mankin, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.
"Many instances of such crimes of genocide have occurred when racial, religious political and other groups have been destroyed, entirely or in part.
"The punishment of the crime of genocide is a matter of international concern.
"The General Assenmbly therefore "Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices -- whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds -- are punishable; * * *."(Journal of the United Nations, No. 58, Supp.
A-C/P. V./55, page 485; Political Science Quarterly (March 1947), Vol. LXII, No. 1, page 3).
The General Assembly is not an international legislature, but it is most authoritative organ in existence for the interpretation of world opinion. Its recognition of genocide as an international crime is persuasive evidence of the fact. We approve and adopt its conclusions. Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes. They are chargeable with knowledge that such acts were wrong and were punishable when committed.
The defendants contend that they should not be found guilty because they acted within the authority and by the command of the German laws and decrees. Concerning crimes against humanity, C.C. Law 10 provides for punishment whether or not the acts were in violation of the domestic laws of the country where perpetrated. (C.C. Law 10, Article II, 1 (c)). That enactment also provides "the fact that any person acted pursuant to the order of his government or of a superior does not free him from from responsibility for a crime, but may be considered in mitigation."
(C.C. Law 10, Article II, paragraph 4 (b)).
The foregoing provisions constitute a sufficient, but not an entire, answer to the contention of the defendants. The argument that compliance with Gorman law is a defense to the charge, rests upon a misconception of the basic theory which supports our entire proceedings. The Nurnberg Tribunals are not German courts. They are not enforcing German Law. The charges are not based on violations by the defendants of German law. On the contrary, the jurisdiction of this Tribunal rests on international authority. It enforces the law as declared by the Charter and C.C. Law 10, and within the limitations on the power conferred, it enforces internationa law as superior in authority to any German statute or decree. It is true, as defendants contend, that German courts under the Third Reich were required to follow German law (i.e., the expressed will of Hitler) oven when it was contrary to international law. But no such limitation can be applied to this Tribunal. Here we have the paramount substantive law, plus a Tribunal authorized and required to apply it notwithstanding the inconsistent provisions of German local law. The very essence of the prosecution case is that the laws, the Hitler decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime.
We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge.
Frank recognition of the following facts is essential. The jurisdictional enactments of the Control Council, the form of the indictment, and the judicial procedure prescribed for this Tribunal are not governed by the familiar rules of American criminal law and procedure. This Tribunal, although composed of American judges schooled in the system and rules of common law, is sitting by virtue of international authority and can carry with it only the broad principles of justice and fair play which underlie all civilized concepts of law and procedure.
No defendant is specifically charged in the indictment with the murder or abuse of any particular person. If he were, the indictment would, no doubt, have named the alleged victim. Simple murder and isolated instances of atrocities do not constitute the gravamen of the charge. Defendants are charged with crimes of such immensity that more specific instances of criminality appear insignificant by comparison. The charge, in brief, is that of conscious participation in a nation-wide governmentally-organized system of cruelty and injustice, in violation of the laws of war and of humanity, and porpotratod in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist. The record is replete with evidence of specific criminal acts, but they are not the crimes charged in the indictment. They constitute evidence of tho intentional participation of the defendants and serve as illustrations of tho nature and effect of the greater crimes charged in the indictment.
Thus it is that apparent generality of tho indictment was not only necessary but proper. No indictment couched in specific terms and in the manner of the common law could have encompassed within practicable limits tho generality of the offense with which those defendants stand charged.
The Prosecution has introduced evidence concerning acts which occurred before the outbreak of the war in 1939. Some such acts are relevant upon the charges contained in Counts 2, 3 and 4, but as stated by the Prosecution, "None of these acts is charged as an independent offense in this particular indictment." We direct our consideration to the issue of guilt or innocence after the outbreak of the war in accordance with the specific limitations of time set forth in Counts 2, 3, and 4 of the indictment. In measuring the conduct of the individual defendants by the standards of C.C. Law 10, we are also to be guided by Article 2, paragraph 2 of that law, which provides that a person is deemed to have committed a crime as defined in paragraph I of Article 2, if he was "(a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime***."
Before considering the progressive degeneration of the judicial system under Nazi rule it should be observed that at least on paper the Germans had developed, under the Weimar Republic, a civilized and enlightened system of jurisprudence. A few illustrations will serve. The power of judicial appointment and the interdependence of the judges was jealously guarded by the individual States within the Reich. The following acts were declared criminal under the provisions of the German criminal code:
"The acceptance of bribes or inducements by a judge, offered for the purpose of influencing his decision". - Section 334.
"Action by an official, who, in the conduct or decision of a case, deliberately makes himself guilty of diverting the law to the disadvantage of one of the parties." - Section 336.
"The securing of a confession by duress." - Section 343.
"The act of an official who, in the exercise of his duty in a criminal proceeding, knowingly causes any person to escape penalty provided by law." - Section 346.
"Action by a superior officer who intentionally induces*** his subordinate to commit a punishable act in office, or knowingly connives at such a punishable offense on the part of his subordinate."
-- Section 357.
In the Weimer Constitution it was provided that "the generally accepted rules of International law were to be considered as binding, integral parts of the law of the German Reich", (Article IV).
The Constitution also guaranteed to all Germans:
Equality before the law. (Article 109):
Citizenship, the right of travel and emigration. (Articles 110, 111, 112):
Freedom of person. (Article 114);
Freedom of speech, assembly, and association. (Articles 118, 123, and 124);
Right of just compensation for property expropriated.
(article 153):
Right of inheritance. (article 154);
There were, however, in the Weimer Constitution the germs of the diseaase from which it died. In article 48 of the Constitution it was provided:
"The Reich President may, if the public safety and order of the German Reich are considerably distrubed or endangered, take such measures as are necessary to restore public safety and order. If necessary, he may intervene with the help of the armed forces. For this purpose he may temporarily suspend, either partially or wholly, the fundamental rights establish in Articles 114, 115, 117, 118, 123, 124, and 153."
A reivew of the evidence will disclose that substantially every principle of justice which was enunciated in the above-mentioned laws and Constitutional provisions was after 1933 violated by the Hitler regime.
The first step in the march towards absolutism was, of necessity, the assumption and consolidation of power. It was doomed essential that the government be authorized to make lavs by decree, unhampered by the limitations of the Weimer Republic, by the Reichstag, or by the independent action of the several German States (lands). To accomplish this end, and on 28 February 1933, a decree was promulgated over the signature of President von Hindenburg, Chancellor Hitler, Reich Minister of the Interior Frick, and Reich Minister of Justice Guertner.
Briefly stated, this decree expressly suspended the provisions of the Weimer Constitution guaranteeing personal liberty, free speech, press, assembly association, privacy of communication, freedom from search, and inviolability of property rights.
The decree further procided that the Reich government might, to restore public security, temporarily take over the powers of the highest State authority. It was declared in the preamble that the decree was passed "in virtue of Section 43 (2) of the Weimer Constitution". This is the section to which we previously referred and which authorized tho Reichspraesident to suspend tho very provisions which were in fact stricken down by the Hitler decree of 28 February. The decree was reinforced on 24 March 1933 by the act of an intimidated Reichstag. Tho enactment was subtly drawn to accomplish a double purpose. It provided that "laws decreed by tho Government may deviate from the Constitution, but the act did not stop there; it also provided that "laws of the Reich can be decreed by the Government apart from the procedure provided by the Constitution". We quote in part:
"article 1. -- Laws of the Reich can be decreed, apart from the procedure provided by the Constitution of the Reich, also by the Government of the Reich. This also applies to the laws mentioned in Articles 85, paragraph 2, and 87 of the Constitution of the Reich.
"Article 2. -- Tho laws decreed by the Government of the Reich may deviate from the Constitution of the Reich as far as they do not concern the institution of the Reichstag and the Reich Council as such. The rights of the Reichspraesident remain untouced.
"Article 3. -- Articles 68 through 77 of the Constitution of the Reich do not apply to laws decreed by the Government of tho Reich."
Though tho enabling act expressly repealed only a small portion of th Constitution, nevertheless that portion which was repealed cleared the procedural way for tho nullification of the rest if and when decrees should be promulgated by "the Government". On 14 July 1933 a law was passed de claring the Nationalsezialistische Deutsche Arbeiterpartei (NSDAP) to be the only political party; and making it a crime to maintain or form any other political party; (IMT Judgment; page 178). Thus it was made doubly sure that any legislation thereafter enacted by the Reichstag would be in harmony with the will of the government.
Although the process by which the Hitler regime came into power was tainted with illegelity and duress, nevertheless the power thus seized was later consolidated and the regime thereafter did receive the organized support of the German people and recognition by foreign powers. On 30 January 1934; more than ten months after the enactment of the enabling act, and subsequent to the Reichstag election of 12 November 1933, the Reichstag passed an act by unanimous vote providing that "the sovereign powers of the Laender are transferred to the Reich", and further providing that "The Reich Government may issue new Constitutional laws". The act was regularly signed by Reich President von Hindenburg; and by Reich Chancellor Hitler; and Minister Frick. (See: 1934 RGBI I; page 75). The provisions of the enabling act were renewed by acts of the Reichstag on 30 January 1937 an d again on 30 January 1939.
On 14 June 1942; Dr. Lammers; Reich Minister and Chief of the Reich Chancellery; stated that he would "stress the fact that the Fuehrer himself and the Reich Cabinet should not be eliminated from the powers of legislation. " The conduct of the defendants must be seen in a context of preparation for aggressive war, and must be interpreted as within the framework of the criminal law and judicial system of the Third Reich.
We shall, therefore, next consider the legal and judicial process by which the entire judicial system was transformed into a tool for the propagation of the National Socialist ideology; the extermination of opposition thereto, and the advancement of plans for aggressive war and world conquest. Though the overt acts with which the defendats are charge occurred after September 1939; the evidence now to be considered will make clear the conditions under which the defendants acted and will show knowledge; intent, and motive on their part; for in the period of preparation some of the defendants played a leading part in molding the judicial system which they later employed.
Beginning in 1933; there developed side by side two processes by which the Ministry of Justice and the courts wore equipped for the terroristic functions in support of the Nazi regime. By the first, the power of life and death was ever more broadly vested in the courts. By the second, the penal laws were extended in such inclusive and indefinite terms as to vest in the judges the widest discretion in the choice of law to be applied, and in the construction of the chosen law in any given case. In 1933, by the law for the "Protection against Violent Political Acts", the death sentence was authorized, though not required, as to a number of crimes, "whenever milder penalty has been prescribed hitherto". (Law of 4 April 1933, 1933 RGBI I, page 162).
On 24 April 1934, the definition of high trenson was greatly expanded and the death sentence was authorized, though no required, in numerous instances. The manner in which tins law was applied renders it all-importan The following provisions, among others, illustrate the scope of the amended law and the discretionary power of the judge:
"83. Whoever publicly incites to or solicits an undertaking of high treason shall be punished by confinement in a penitentiary not to exceed ten years.
"Whoever prepares an undertaking of high treason in any other way shall be punished in like manner.
"The death penalty, or confinement in a penitentiary for life, or for not less than two years, shall be inflicted;
"(1) if the act was directed toward establishing or maintaining an organized combination for the preparation of high treason or * * * * * * * * "(3) if the act was directed toward influencing the masses by making or distributing writings, recordings, or pictures or by the installation of wireless telegraph or telephone, or "4. if the act was committed abroad or was committed in such a manner that the offender undertook to import writings, recordings or pictures from abroad or for the purpose of distribution within the country."
(Law of 24 April 1934; 1934 RGB1 I, page 341.)
On 20 December 1934, the Government promulgated the follow ing enactment "Law on Treacherous Acts against State and Party and for the Protection of Party Uniforms", which provided in part as follows:
"Chapter 1. Article 1. (1) Unless heavier punishment is sanctioned under the authority of a law previously established, imprisonment not to exceed two years shall be imposed upon anybody deliberately making false or grievous statements, fit to injure the welfare or the prestige of the Government of the Reich, the National Socialist Workers' Party, or its agencies. If such statements are made or circulated in public, imprisonment for not less than three months shall be imposed.
"Article 2. (1) anyone who makes or circulates statements proving a malicious, baiting or low-minded attitude toward leading personalities of the State or the NSDAP, or toward orders issued by them or toward institutions created by them -- fit to undermine the confidence of the people in its political leadership -- shall be punished with imprisonment.
"(2) Statements of this kind which are not made in public shall warrant the same punishment -- provided the offender figures on his statements eventually being circulated in public."
A decisive step was taken by the "Law to Change the Penal Code", which was promulgated on 28 June 1935 by Adolph Hitler as Fuehrer and Reich Chancellor, and by Dr. Guertner as Reich Minister of Justice, article 2 of that enactment is as follows:
"Article 2. Whoever commits an act which the law declares as punishable or which deserves punishment according to the fundamental idea of a penal law and the sound concept of the people, shall be punished. If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying principle can be most readily applied to the act."
In substance, this edict constituted a complete repudiation of the rule that criminal statutes should be definite and certain and vested in the judge a wide discretion in which Party political ideology and influence were substituted for the control of law as the guide to judicial decision.
Section 90 (f) of the Penal Code, as enacted on 24 April 1934, provided:
"Whoever publicly, or as a German staying abroad, causes serious danger to the reputation of the German nation by an untrue or grossly inaccurate statement of a factual nature, shall be punished by confinement in a penitentiary."
The act was amended on 20 September 1944 as follows:
"In especially serious cases a German may be punished by death." (1944 RGB1 I, page 225) By the act of 28 June 1935 it was provided: "Whoever publicly profanes the German National Socialist Labor Party, its subdivisions, symbols, standards and banners, its insignia or decorations, or maliciously and with premeditation exposes them to contempt shall be punished by imprisonment.
"The offense shall be prosecuted only upon order of the Reichsminister of Justice who shall issue such order in agreement with the Fuehrer's deputy." (1935 RGB1. I, page 839) By the law of 28 June 1935 it was provided:
"If the main proceedings show that the defendant committed an act which deserves punishment according to the common sense of the people but which is not declared punishable by the law, then the Court must investigate whether the underlying principle of a penal law applies to this act and whether justice can be helped to triumph by the proper application of this penal law." (1935 RGB1. I, page 844, Article 267a (Article 2 of the Penal Code) A decree of 1 December 1936 provided in part as follows:
"Section 1. (1) A german citizen who consciously and unscrupulously, for his own gain or for other low motives, contrary to legal provisions smuggles property abroad or leaves property abroad and thus inflicts serious damage to German economy is to be punished by death. His property will be confiscated. The perpetrator is also punishable, if he commits the misdeed abroad." (1936 RGB1. I, page 999) On August 17, 1938 more than a year before the invasion of Poland, a decree was promulgated against undermining German defensive strength.
It provided in part:
"Section 5. (1) The following shall be guilty of undermining German defensive strength, and shall be punished by death:
"1. Whoever openly solicits or incites others to evade the fulfillment of compulsory military service in the German or an allied armed force, or otherwise openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms." (1939 RGB1. I, page 1455) Under this law the death sentence was mandatory.
By the decree of 1 September 1939 the ears of the German people were stopped lest they hear the truth:
"Section 1. Deliberate listening to foreign stations is prohibited. Violations are punishable by hard labor. In less severe cases there can be a sentence of imprisonment. The radio receivers used will be confiscated.
"Section 2. Whoever deliberately spreads news from foreign radio stations which is designed to undermine German defensive strength will be punished by hard labor and in particularly severe cases by death." (1939 RGB1. I, page 1683) It is important to note that discretion as to penalty was vested in the court.
On 5 September 1939, by the Decree Against Public Enemies, it was provided that looting in liberated territory may be punished by hanging. The following additional provisions are of importance because of the arbitrary manner in which the instrument was construed and applied by the courts. The provisions are as follows:
"Section 2. Whoever commits a crime or offense against the body, life or property, taking advantage of air raid protection measures, is punishable by hard labor of up to fifteen (15) years or for life, and in particularly severe cases punishable by death.
"Section 3. whoever commits arson or any other crime of public danger, thereby undermining German defensive strength, will be punished by death. "Section 4. Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to fifteen years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable." (1939 RGB1, I, page 1679) On 25 November 1939 the death penalty was authorized as punishment for intentionally or negligently causing damage to war materials and the like, if it endangers the fight ing power of the German armed forces.
The death penalty was also authorized in case of anyone who "disturbs or imperils" the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population. (1939 RGB1. I, page 2319) On 5 December 1939 the death penalty was authorized for various crimes of violence and it was provided that "this decree is also applicable to crimes committed before it became valid."
On 4 September 1941 the Criminal Code was supplemented and changed to provide the death penalty for dangerous habitual criminals and sex criminals "if necessitated for the protection of the national community or by the desire for just expiation". The decree was signed by Adolph Hitler and by the defendant Dr. Schlegelberger in charge of the Reich Ministry of Justice.