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.
By the decree of 5 May 1944, the judges were substantially freed from all restrictions as to the penalty to be invoked in criminal cases. That decree reads as follows:
"With regard to all offenders who are guilty of causing serious prejudice or seriously endangering the conduct of war, or the security of the Reich, through an intentional criminal act, a penalty may be imposed in excess of the regular penal limits up to the statutory maximum for a given type of punishment, or hard labor for a term or for life, or death, if the regular statutory maximum limits are insufficient for expiation of the act according to the sentiment of the people. The same shall also apply to all offenses committed by negligence by which one made himself guilty of a particularly grave prejudice or a particularly serious danger to the conduct of war, or to the security of the Reich." (1944 RGB1. I, page 115) On 20 august 1942 Hitler issued the famous decree which marks the culmination of his systematic Campaign to change the German judicial system into an instrumentality of the NSDAP.
The decree was as follows:
"A strong administration of justice is necessary for the fulfillment of the tasks of the great German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice and to take all necessary measures in accordance with my directives and instructions made in agreement with the Reich Minister and Chief of the Reich Chancellory and the Leader of the Party Chancellory.
He can hereby deviate from any existing law." (1942 RGB1. I, page 535) The statutes which we have reviewed were merely steps in the process of increased severity of the criminal law and in the development of a loose concept concerning the definition of crime.
The latter concept was especially evident in the statutes concerning the "sound sentiment of the people", crime by analogy, and undermining the defensive strength of the nation.
In place of the control of law there was substituted the control of National Socialist ideology as a guide to judicial action.
The Draconic laws to which we have referred were upon their face, of general applicability. The discriminations on political, racial, and religious grounds are to be found not in the text, but in the application of the text.
But the Nazis were not content with statutes of a non-discriminatory nature even in view of the discriminatory manner in which they were enforced. Coincidentally with the development of these laws and decrees there a rose another body of substantive law which expressly discriminated against minority groups both within and without the Reich, and which formed the basis for racial, religious, and political persecution on a vast scale. On 7 April 1933, a decree by the Reich Government provided in part that:
"Article 2. -- Persons who, according to the Law for the Restoration of the Professional Civil Service of 7 April 1933 (RGBl. I, 172), are of non-Aryan descent, may be refused permission to practice law, even if there exists none of the reasons enumerated in the Regulations for Lawyers. The same rule applies in cases, as where a lawyer described in Section 1, clause 2, wishes to be admitted to another court.
"Article 3. -- Persons who are active in the Communistic sense are excluded from the admission to the bar. Admissions already given have to be revoked." (1933, RGBl. I, page 188).
The act was implemented by the power of injuction. The fact that the license to practice law had been canceled was also stated as a ground for the cancellation of employment contracts and office leases.
On 15 September 1935, the Reichstag enacted the "Law for the Protection of German Blood and Honor." We quote:
"Article 1. -- 1. Marriages of Jews and citizens of German or related blood are prohibited. Marriages which are con eluded nevertheless, are void even if they were concluded abroad in order to circumvent this law.
"2. Only the district attorney can sue for nullification of marriage.
"Article 2. -- Sexual intercourse (except in marriage) between Jews and German nationals of German or German-related blood is forbidden."
By other laws, as amended from time to time, non--Aryans were almost completely expelled from public service. The number of non-Aryans in schools and higher institutions of learning was restricted. (1933 RGBl, I, page 683). Jewish religious communities were regulated. (1938 RGBl, I, page 338). Jews were excluded from certain industrial enterprises and their rights as tenants were restricted. (1939 RGBl, I, page 864, 30 April 1939).
By the act of 2 November 1941 it was provided:
"Section 1. -- A Jew who has his domicile abroad cannot be a citizen of the Protectorate of Bohemia and Moravia. Domimile abroad is established if a Jew was abroad under circumstances which indicated that his tenure there is not of a temporary nature.
"Section 2. -- A Jew loses his citizenship status in the Protectorate if:
"(a) As of the effective date of this decree, he has an established domicile abroad;
"(b) At a date subsequent to the effective date of this decree he establishes a domicile abroad."
And by act of 25 November 1941 it was provided:
"3.--The property of the Jew who is losing his nationality under this amendment shall be forfeited for the benefit of the Reich at the moment he loses his nationality. The Reich further confiscates the property of Jews who are stateless at the moment this amendment becomes effective and who were last of German nationality, if they have or take up their regular residence abroad. The property thus forfeited shall serve to furthering of all purposes in connection with the solution of the Jewish question.
***************** "8.-- It is for the Chief of the Security Police and the SD (of Reichsfuehrer SS) to decide whether the conditions for confiscation of property arc given.
The administration and liquidation of the forfeited property is up to the Chief of the County Finance Office, Berlin." (1942 RGB1. I, p. 627) The Decree of 4 December 1941 "Concerning the Organization and Criminal Jurisdiction against Poles and Jews in the Incorporated Eastern Territories", marks perhaps the extreme limit to which the Nazi Government carried its statutory and decretal persecution of racial and religious minorities, but it also introduces another element of great importance.
We refer to the extension of German laws to occupied territory to purportedly annexed territory, and to territory of the so-called protectorates. The Decree provides:
"(1) Poles and Jews in the incorporated Eastern territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They arc to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.
"(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his being of German blood.
"(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious activities or incitement, particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or offices, or if he, by his conduct, lowers or prejudices the prestige or the well being of the German Reich or the German people.
"(4) The death penalty, or in less serious cases imprisonment, shall be imposed on any Jew or Pole:
* * * * * * * * * "3.--If he urges or incites to disobedience to any decree or regulation issued by the German authorities;"4.--If he conspires to commit an act punishable under subsections (2), (3) and (4), paragraphs 1 to 3, or if he seriously contemplates the carrying out of such an act, or if he offers himself to commit such an a.ct, or accepts such an Offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted.
"II.--Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal, law or commit any act for which they deserve punishment in accordance with the fundamental, principles of German criminal law and in view of the interests of the State in the incorporated Eastern territories.
"III.-(2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover; in these cases where the law docs not provide for the death sentence, it may and shall be imposed if the offense points to particularly grave for other reasons; the death sentence may also be passed upon juvenile offenders.
"XIV. (l) The provisions contained in Sections 1-IV of this Decree apply also to those Poles and Jews who on 1 September 1939 were domiciled or had their residence within the territory of the former Polish State, and who committed criminal offenses in any part of the German Reich other than the incorporated Eastern territories. * * * ".
THE PRESIDENT: The Tribunal will recess until the hour of one-thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 3 December 1947.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal observes that the defendant Klemm is not in the dock. Is it the desire of his counsel that he be further excused for the balance of the afternoon?
DR. DOETZER: On behalf of Dr. Schilf, I will ask you to excuse the defendant Klemm.
THE PRESIDENT: The defendant Klemm will be excused for the balance of the afternoon for the reasons already stated. Judge Harding will continue with the reading for the court.
It will be observed that the title of the foregoing act refers to "Poles and Jews in the Incorporated Eastern Territories", but Article XIV makes the decree also applicable to acts by Poles and Jews within any part of the German Reich, if on 1 September 1939 they were domiciliad within the former Polish State. This section was repeatedly employed by the courts in the prosecution of Poles.
There was promulgated a thirteenth regulation under the Reich Citizenship Law which illustrates the increasing severity by means of which the government was attempting to reach a "solution of the Jewish problem" under the impulsion of the progressively adverse military situation. This regulation, under date of 1 July 1943, provides:
"Article 1. (1) Criminal actions committed by Jews shall be punished by the police.
"(2) The provision of the Polish penal laws of 4 December 1941 (RGB1. I, page 759) shall no longer apply to Jews.
"Article 2. (1) The property of a Jew shall be confiscated by the Reich after his death.
* * * * * * * * * * "Article 3.--The Reich Minister of the Interior with the concurrence of the participating higher authorities of the Reich shall issue the legal and administrative pro visions for the administration and enforcement of this regulation.
In doing so he shall determine to what extent the provisions shall apply to Jewish nationals of foreign countries."
By Article 4 it was provided that in the Protectorate of Bohemia and Moravia the regulation shall apply where German administration and German courts have jurisdiction. (1943 RGBl. I, page 372) Not only did the Nazis enact special discriminatory laws against Poles and Jews and political minorities; they also enacted discriminatory laws in favor of members of the Party.
By the Decree of 17 October 1939, it was provided that "for the area of the Greater German Reich, special jurisdiction in penal matters will be established for:
"1. Professional members of the Reich leadership of the SS.
"2. Professional members of the staffs of those higher SS and police chiefs win possess the authority of issuing orders in those units which have been specially designated under numbers 3 to 6 below;
"3. Members of the SS united for special purposes;
"4. Members of the SS Death Head Units (including reinforcements);
"5. Members of the SS Junker schools;
"6. Members of Police units for special purposes."
On 12 March 1938, the German army invaded Austria. The methods employed "were those of an aggressor". (IMT Judgment, page 194) On the next day Austria was incorporated in the German Reich. As a result of the Munich pact of 29 September 1938, and of threatened invasion, Czechoslovakia was compelled to cede the Sudetenland to Germany (IMT Judgment, page 197), and on 16 March 1939, Bohemia and Moravia were incorporated in the Reich as a protectorate. On 1 September 1939, Poland was invaded and thereafter occupied and, later on, Germany, by military force, occupied all or portions of Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece and Russia. These occupations and annexations furnished the motive for an extension into many areas outside the old Reich of the Draconic and discriminatory German laws which had been put in force within the old Reich.
By the Act of 14 April 1939, it was provided;
"Article II, Section 6 (2). Persons who arc not German nationals are subject to German jurisdiction for offenses:
"(a) to which German, criminal law applies, "(b) if they are prosecuted under a private action provided the action has been brought by a German national.
"Section 7.-- German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided."
The Decree of 5 September 1939 against public enemies, supra, was made "applicable in the Protectorate of Bohemia and Moravia and also for those persons who are not German citizens," By a Decree of 23 November 1939 concerning damage to war material, it is provided in part:
"Section 2.--Whoever disturbs or imperils the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population in that he made a thing serving the enterprise completely or partially unusuable or put it out of commission, shall be punished by hard labor or in especially serious cases by death.
"Section 6.--In the Protectorate of Bohemia and Moravia, the provisions of Section 1, 2, * * *and 3 of this Decree are valid also for persons who are not nationals of the German State."
The "Decree on the Extension of the Application of Criminal Law of 6 May 1940" provided in part:
"German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:
"1. Crimes committed while holding a German governmental office, as a German soldier or a.s member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office of the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;
"2. Actions constituting treason or high treason against Germany; * * * *" "Paragraph 153a.--A crime committed by a foreigner abroad will be prosecuted by the public prosecutor only if so demanded by the Reich Ministry of Justice.
The public prosecutor may abstain from the prosecution of a crime if the same crime has already been punished abroad and if the punishment has been care ried out and the sentence to be expected in Germany would, after deducting the time served abroad, not be heavy."
The Act of 25 November 1941, supra, concerning the confiscation of Jewish property was made applicable in the Protectorate of Bohemia and Moravia and in the incorporated Eastern territories. (1941 RGBl, I, page 722). Of greatest significance in this category was the law against Poles and Jews already cited in another connection. The thirteenth regulation under the Reich citizenship Law of 1 July 1943, supra, was also made applicable within the Protectorate of Bohemia and Moravia "where German administration and German courts have jurisdiction". It is also made applicable to Jews "Who are citizens of the Protectorate." (Article IV).
Thus far we have taken note of the substantive criminal law and its extension to occupied and annexed territories, but these laws were not self-executing. For the accomplishment of the ends of aggressive war, the elimination of political opposition and the extermination of Jews in all of Europe, it was deemed necessary to harness the Ministry of Justice and the entire court system for the enforcement of the penal laws in accordance with National Socialist ideology.
By Decree of 21 March 1933 special courts were established within the district of every court of appeal. Their jurisdiction was rapidly extended. It included the trial of cases arising under the Decree relating to the defense against insidious attacks against the government of the national revolution. (1933 RGBl. I, page 136).
The Decree of 21 March 1933 provided in part:
"Section 3. (1) The special courts shall also be competent if a crime within their jurisdiction represents also another punishable deed.
"(2) If another punishable act is factually connected with a crime within the jurisdiction of the special courts, the proceedings on that other punishable deed against delinquents and participants may be referred to the special court by way of connection."
* * * * * * * * * * "Section 9. (1) No hearings relating to the warrant of arrest will be hold.