As will be seen, the foregoing pronouncements by the leaders in the field of Nazi jurisprudence were not mere idle theories. Hitler did, in fact, exercise the right assumed by him to act as Supreme Judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.
The evidence demonstrates that Hitler and his top-ranking associates were by no means content with the issuance of general directives for the guidance of the judicial process. They tenaciously insisted upon the right to interfere in individual criminal sentences. In discussing the right to refuse confirmation of sentences imposed by criminal courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr. Lammers, Chief of the Reich Chancellery, as follows:
"When the Fuehrer has expressly requested the right of direct interference over all formal legal provisions, this is emphasizing the very importance of the modification of a judicial sentence."
The Ministry of Justice was acutely conscious of the interference by Hitler in the administration of criminal law. On 10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as follows:
"It has come to my knowledge that just recently a number of sentences passed have roused the strong disapproval of the Fuehrer. I do not know exactly which sentences are concerned, but I have ascertained for myself that now and then sentences are pronounced, which are quite untenable. In such cases I shall act with the utmost energy and decision. It is, however, of vital importance for justice and its standing in the Reich, that the head of the Ministry of Justice should know to which sentences the Fuehrer objects, * * * ."
On the same date Schlegelberger wrote to Hitler in part as follows:
"In the course of the verdicts pronounced daily there are still judgments which do not entirely comply with the necessary requirements. In such cases I will take the necessary steps. * * * "Apart from this it is desirable to educate the judges more and more to a correct way of thinking, conscious of the national destiny.
For this purpose it would be invaluable, if you, my Fuehrer, could let me know if a verdict does not meet with your approval.
The judges are responsible to you, my Fuehrer; they are conscious of this responsibility and are firmly resolved to discharge their duties accordingly. Hail, my Fuehrer!"
Hitler now only complied with the foregoing request, out proceeded beyond it. Upon his personal orders persons who had been sentenced to prison terms were turned over to the Gestapo for execution. We quote briefly from the testimony of Dr. Hans Gramm, who for many years was personal referent to the defendant Schlegelberger, and who testified in his behalf.
"Q: Do you know anything about transfers of condemned persons to the police, or to the Gestapo?
"A: I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and such a man into their custody. These orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed. These transfers, as far as I can remember, took place only during the war."
This procedure was well-known in the Ministry of Justice. Gramm was invormed by the defendant Schlegelberger that the previous Reich Minister of Justice, Dr. Guertner, had protested to Dr. Lammers against this procedure and had received the reply:
"That the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue."
The only net result of the protest was that "from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that."
The witness, Dr. Lammers, former Chief of the Reich Chancellery, whose hostility toward the prosecution, and evasiveness, were obvious, conceded that the practice was continued under Schlegelberger, though Lammers stated that Schlegelberger never agreed to it.
By reference to case histories we will illustrate three different methods by which Hitler, through the Ministry of Justice, imposed his will in disregard of judicial proceedings. One Schlitt had been sentenced to a prison term, as a result of which Schlegelberger received a telephone call from Hitler protesting the sentence. In response the defendant Schlegelberger on 24 March 1942 wrote in part as follows:
"I entirely agree with your demand, my Fuehrer, for very severe punishment for crime, and I assure you that the judges honestly wish to comply with your demand. Constant instructions in order to strengthen them in this intention, and the increase of threats of legal punishment, have resulted in a considerable decrease of the number of sentences to which objections have been made from this point of view, out of a total annual number of more than 300,000.
"I shall continue to try to reduce this number still more, and if necessary, I shall not shrink from personal measures, as before.
"In the criminal case against the building technicial Ewald Schlitt from Wilhelmhaven, I have applied through the Public Prosecutor for an extraordinary plea for nullification against the sentence, at the Special Senate of the Reich Court. I will inform you of the verdict of the Special Senate immediately it has been given."
On 6 May 1942, Schlegelberger informed Hitler that the ten-year sentence against Schlitt was "quashed within ten days and that Schlitt was sentenced to death and executed at once".
In the case against Anton Scharff, the sentence of ten years penal servitude had been imposed. Thereupon, on 26 May 1941, Bormann wrote to Dr. Lammers: "The Fuehrer believes this sentence entirely incomprehensible * * * . The Fuehrer requests that you inform State Secretary Schlegelberger again of his point of view."
On 28 June 1941, defendant Schlegelberger wrote Dr. Lammers:
"I am very obliged to the Fuehrer for informing me, on my request, of his conception of atonements of blackout crimes in reference to the sentence of the Munich Special Court against Anton Scharff. I shall re-instruct the presidents of the courts of appeal and the Chief Public Prosecutors of this conception of the Fuehrer as soon as possible."
As a final illustration of a general practice, we refer to the case of the Jew Luftgas, who had been sentenced to two and one-half years imprisonment for hoarding eggs. On 25 October 1941 Lammers notified Schlegelberger: "The Fuehrer wishes that Luftgas be sentenced to death". On 29 October 1941 Schlegelberger wrote Lammers: " * * * I have handed over to the Gestapo for the purpose of execution the Jew Luftgas who had been sentenced to two and one-half years imprisonment * * * ".
Although Hitler's personal intervention in criminal cases was a matter of common occurrence, his chief control over the judiciary was exercised by the delegation of his power to the Reich Minister of Justice, who, on 20 August 1942, was expressly authorized "to deviate from any existing law".
Among those of the Ministry of Justice who joined in the constant pressure upon the judges in favor of more severe or more discriminatory administration of justice, we find Thierack Schlegelberger, Klemm, Rothenberger, and Joel. Neither the threat of removal nor the sporadic control of criminal justice in individual cases was sufficient to satisfy the requirements of the Ministry of Justice. As stated by the defendant Rothaug, "only during 1942, after Thierack took over the Ministry, the 'guidance' of justice was begun. * * * There was an attempt to guide the administration of justice uniformly from above."
In September 1942 Thierack commenced the systematic distribution to the German judges of Richterbriefe. The first letter to the judges under date of 1 October 1942 called their attention to the fact that Hitler was the Supreme Judge and that "leadership and judgeship have related characters". We quote:
"A corps of judges like this will not slavishly use the crutches of law. It will not anxiously search for support by the law, but, with a satisfaction in its responsibility, it will find within the limits of the law the decision which is the most satisfactory for the life of the community."
In the judges' letter Thierack discussed particular decisions which had been made in the various courts and which failed to conform to National Socialist idealogy. Ag an illustration of the type of guidance which was furnished by the Ministry of Justice to the German judiciary, we cite a few instances from the Richterbriefe:
A letter to the judges of 1 October 1942 discusses a case decided in a district court on 24 November 1941. A special coffee ration had been distributed to the population of a certain town.
A number of Jews applied for the coffe ration, but did not receive it, being "excluded from the distribution per se". The food authorities imposed fines upon the Jews for making the unsuccessful application. In 500 cases the Jews appealed to the court and the judge informed the food authorities that the imposition of a fine could not be upheld for legal reasons, one of which was the statute of limitations. In deciding favorably to the Jews, the court wrote a lengthy opinion stating that the interpretation on the part of the food authorities was absolutely incompatible with the established facts. We quote, without comment, the discussion of the Reich Minister of Justice concerning the manner in which the case was decided:
"The ruling of the district court, in form and content matter, borders on embarrassing a German administrative authority to the advantage of Jewry. The judge should have asked himself the question: What is the reaction of the Jew to this 20-page long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority, and does not devote one word to the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right toward it."
A Richterbrief also discusses the case of a Jew who, after the "Aryanization of his firm", attempted to get funds transferred to Holland without a pemit. He also attempted to conceal some of his assets. Concerning this case the judges of Germany received the following "guidance";
"The Court applies the same criteria for the ward of punishment as it would if it were dealing with a German follow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of different but he is also of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment."
Space does not pemit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the minister that the independence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions.
If the letter, the Judges letter, had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be "carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges' letters are concerned."
In a letter of 17 November 1943 Thierack instructs the judges that "in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the judges' letters."
Not being content with regimenting the judges and Chief Prosecutors and making them subservient to the National Socialist administration of justice, Dr. Thierack next took up the regimentation of the lawyers. On 11 March 1943 he wrote to the various judges and prosecutors announcing the proposed distribution of confidential lawyers' letters. An examination of those letters convinces the Tribunal that the actual, though undeclared purpose, was to suggest to defense counsel that they avoid any criticism of National Socialist justice and refrain from too much ardor in the defense of persons charged with political crimes.
Not only did Thierack exert direct influence upon the judges, but he employed as his representative the most sinister, brutal and bloody judge in the entire German judicial system. In a letter to Freisler, President of the People's Court, Thierack said that the judgment of the People's Court must be "in harmony with the leadership of the State". He urges Freisler to have every charge submitted to him and to recognize the cases in which it was necessary "in confidential and convincing discussion with the judge competent for the verdict to emphasize what is necessary from the point of view of the State."
He continues:
"As a general rule, the judge of the People's Court must get used to regarding the ideas and intentions of the State leadership as the primary factor and the individual fate which depends on him as only a secondary factor. * * * ."
He continues:
"I will try to illustrate this with individual cases:
"l. If a Jew--and a leading Jew at that--is charged with high treason--even if he is only an accomplice therein22, he has behind him the hate and the will of Jewry to exterminate the German people. As a rule this will therefore be high treason and must be punished by the death penalty."
He concludes with the following admonition to Freisler, which appears to have been wholly unnecessary:
"In case you should ever be in doubt as to which line to follow or which political necessities to take into consideration, please address yourself to me in all confidence."
It will be recalled that on 26 April 1942 Hitler stated that he would remove from office "those judges who evidently do not understand the demand of the hour." The effect of this pronouncement upon such judges as still retained ideals of judicial independence can scarcely be overestimated. The defendant Rothenberger stated that it was "absolutely crushing."
In a private letter to his brother, the defendant Oeschey expressed his view of the situation created by Hitler's interference in the following words:
"After the well-known Fuehrer speech things developed in a frightful manner. I was never a supporter of the stubborn doctrine of the independence of the judge which granted the judge within the frame of the law the position of a public servant, only subordinated to his conscience but otherwise 'neutral', that is, politically completely independent. * * * Now it is an absurdity to tell the judge in an individual case which is subject to his decision bow he has to decide. Such a system would make the judge superfluous; such things have now come to pass. Naturally it was not done in an open manner; but even the most camouflaged farm could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished and the proceedings in a trial become a farce. I will not discuss who bears the guilt of such a development."
The threat alone of the removal was sufficient to impair the independence of the judges, but the evidence discloses that measures were actually carried out for the removal or transfer of judges who proved unsatisfactory from the Party standpoint.
On 29 March 1941 Schlegelberger received a letter from the Chief of the Reich Chancellery protesting against the sentence which had been imposed against the Polish farmhand Wojciesk. The Court at Lueneburg had recognized some extenuating circumstances in the case.
Schlegelberger was advised as follows:
"The Fuehrer urges you to take immediately the steps necessary to preclude repetition in other courts of the view of the Lueneburg court."
On 1 April 1941 Schlegelberger wrote to the Chief of the Reich Chancellery informing him that "by means of a circular with the order for immediate transmittal to all judges and public prosecutors, I brought the mistake in the viewpoint as it is shown in this passage of the court's statement to the knowledge of the penal justice without delay. I consider it impossible that such an incident will occur again."
Schlegelberger ordered the responsible president of the appellate court and the judges concerned in the case to report to him on the next day, and on the third, day of April 1941 he advised as follows:
" * * * I beg to inform you that the Presiding Judge of the Criminal Division which passed the sentence in the case of the Polish farmhand Wolay Wojciesk, is no longer chairman, and, the two associate judges have been replaced by other associate judges."
There is substantial evidence to the effect that the witness Ostermeier who was a judge on the Special Court in Nuernberg, was removed fron his office because of his lenient attitude in criminal cases.
In a letter addressed to the Chief of the Reich Chancellery and to the head of the Party Chancellery on 20 October 1942, Thierack discussed the necessity of the removal or the transfer of officials in the Ministry of Justice who are "not suited for the new tasks" and adds that it nay become necessary" in some particular cases to transfer or retire such judges as cannot be kept in their present positions." He therefore asked approval "so that in urgent cases judges and officials of the Reich Administration of Justice may by me be transferred to other positions * * * or may by me be retired."
On 3 March 1942 Bormann gave his approval in general terms to Thierack's proposal. A like approval was given by Dr. Lammers on 13 November 1942.
In connection with the discussion of removals, we find a list of proposed staff reductions in which seventy-five judges and prosecutors are named. Among the reasons stated for reduction we find the following: Persons of Jewish ancestry, persons having Jewish wife, lack of cooperation with Party, religious grounds, not a Party member, pro-Jewish or pro-Pole, The conception of the national leadership of the Reich concerning the function of the law under the influence of the Party ideology must also be briefly noted.
On 22 July 1942 Reich Minister Dr. Goebbels addressed the members of the People's Court. The speech was reported in part as follows:
"While making his decisions the judge had to proceed loss from the law than from the law than from the basic idea that the offender was to be eliminated from the community. During a war it was not so much a matter of whether a judgment was just or unjust but only whether the decision was expedient. The State must ward off its internal foes in the most efficient way and wipe them out entirely. The idea that time judge must be convinced of the defendant's guilt must be discarded completely. The purpose of the administration of the law was not in the first place retaliation or even improvement but maintenance of the State. One must not proceed from the law but from the resolution that the man must be wiped out."
On 14 September 1934 Hans Frank, Reichsleiter of the Nazi Party and President of the Academy of German Law, said:
"by means of the law of 18 June 1935; the liberalist foundation of the old Penal Code: 'no penalty without a law' was definitly abandoned and replaced by the postulate: 'no crime without punishment' , which corresponds to our conception of the law."
"In the future, criminal behavior, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behavior is considered punishable according to the healthy feelings of the people."
This is the Hans Frank (since hanged) who at his trial testified concerning the racial persecution in which he had participated. He said, we quote:
"A thousand years will pass and this guilt of Germany will still not be erased."
On 10 March 1936 the defendant Schlegelberger said:
"In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the New Reich has been opened up by a new wording of Section 2 of the Criminal Code, whereby a person is also to be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto."
Reich Minister Thierack on 5 January 1943 said:
"The inner law of the guardian of justice is National Socialism; the written law is only to be an aid to the interpretation of National Socialist ideas."
In the words of the defendant Rothenberger the project was "to organize Europe anew and to create a new world philosophy". Again, he said, we quote:
" * * * this reaction of 'antigonism toward law' is justified because the present moment absolutely demands a rigid restriction of the power of law.
He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice."
Strangely enough we find the Nazi judicial system condemned by a judge who in practice was its most fanatical adherent. The defendant Rothaug testified as follows:
"As of every other civil servant , of the judge there was demanded not only obedience but also loyalty and an inner connection with the doctrine of the State. The change-over of the judiciary to that different intellectual leval was attempted via the political factor of the Administration of Justice and that was when things came to grief; and it was then that the notorious 'back door' which I have mentioned, took effect."
After discussing the extraodrinary legal remedies by which final judgments in criminal cases were set aside by means of the nullification plea and the extraordinary objection, Rothaug said:
"As far as that went no objections could be made. What was more dangerous was the influence by means of judges' letters and the guidance of jurisdiction."
To the domination by Hitler and the political "guidance" of the Ministry of Justice must be added the direct pressure of Party functionaries and police officials. The record is replete with testimony of specific instances of interference in the administration of justice by officials of Party and police. But for the demonstration of the viciousness and universality of the practice it is only necessary to cite the words of the defendants themselves.
The defendant Rothenberger describes the manner in which the "administration of justice was burdened by the Party and by the SS", and referred to in his testimony to the "thousand little Hitlers who every day jeopardized the independence of the individual judge."
The defendant Schlegelberger spoke with more caution:
"If in a trial testimonials of political conduct were submitted for the characterization of the accused, it has to be left to the judge's dexterity to avoid conflict with the department which furnishes the testimonial of political conduct."
The defendant Lautz testified concerning attempted interference with his duties by the SS. We have already quoted the opinion of the defendant Oeschey as expressed in a letter to his brother.
A reliable witness, Dr. Harms AnschuetZ; testified:
"After the issuance of the German Civil Service Code; strong pressure was brought to bear upon all officials; including judges to join the NSDAP; or not to reject requests to join; otherwise there existed the danger that they might be retired or dismissed. But once a Party member; a judge was under Party discipline and Party jurisdiction which dominated his entire life as official and as private person. " The witness Wilhelm Oehlicker; formerly a Justice official and at present judge in Hamburg, testified that "the longer the war proceeded, in my opinion the more and more they (Party officials) tried to interfere with the courts and influence the courts directly."
The final degradation of the judiciary is disclosed in a secret communication by Ministerial Director Letz of the Reich Ministry of Justice to Dr. Vollmer, also a Ministerial Director in the Department. Not only were the judges "guided" and at times coerced; they were spied upon. We quote:
"Moreover, I know from documents, which the Minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes aummarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. This procedure is secret and the person who gives the information is not named.
In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as the direct interests cf the State security are concerned, nothing can be said against it, especially in wartime."
In view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his Ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity. The doctrine that judges are not personally liable for their judicial actions is based on the concept of an independent judiciary administering impartial justice. Furthermore, it has never prevented the prosecution of a judge for malfeasance in office. If the evidence cited supra does not demonstrate the utter destruction of judicial independence and impartiality, then we "never writ nor no man ever proved." The function cf the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner.
In operation the Nazi system forced the judges into one of two categories. In the first we find the judges who still retained ideals of judicial independence and who administered justice with a measure of impartiality and moderation. Judgments which they rendered were set aside by the employment of the nullity plea and the extraordinary objection. The defendants they sentenced were frequently transferred to the Gestapo on completion of prison terms andwere then shot or sent to concentration camps. The judges themselves were threatened and criticized and sometimes removed from office. To this group the defendant Cuhorst belonged. In the other category were the judges who with fanatical zeal enforced the will cf the Party with such severity that they experienced no difficulties and little interference from party officials.
To this group the defendants Rothaug and Oeschey belonged.
We turn to a consideration and classification of the evidence. The prosecution has introduced captured documents in great number which establish the Draconic character of the Nazi criminal laws and prove that the death penalty was imposed by courts in thousands of cases. Cases in which the extreme penalty was imposed may in large measure be classified in the following groups:
1. Cases against proven habitual criminals;
2. Cases of looting in the devastated areas of Germany;committed after air raids and under cover of blackout;
3. Crimes against the war economy - rationing, hoarding; and the like.
4. Crimes amounting to an undermining of the defensive strength of the nation; defeatist remarks; criticisms of Hitler; and the like;
5. Crimes of treason and high treason;
6. Crimes of various types committed by Poles; Jews; and ether foreigners;
7. Crimes committed under the "Nacht und Nebel" program, and similar procedures.
Consideration will next be given to the first four groups as above set forth. The Tribunal is keenly aware of the danger of incorporating in the judgment as law its own moral convictions or even those of the Anglo-American legal world. This we will not do. We may and do condemn the Diaconic laws and express abhorence at the limitations imposed by the Nazi regime upon freedom of speech and action , but t he question still remains unaswered: "Do those Draconic laws or the decisions rendered under them constitute war crimes or crimes against humanity?"
Concerning the punishment of habitual criminals; we think the answer is clear. In many civilized States statutory provisions require the courts to impose sentences of life imprisonment upon proof of conviction of three or more felonies. We are unable to say in one breath that life imprisonment for habitual criminals is a salutary and reasonable punishment in America in peace times, but that the imposition of the death penalty was a crime against humanity here when the nation was in the throes of war.
The same considerations apply largely in the case of looting. Every nation recognizes the absolute necessity of more stringent inforcement of the criminal law in times of great emergency. Anyone who has seen the utter devastation of the great cities of Germany must realize that the safety of the civilian population demanded that the were-wolves who roamed the streets of the burning cities, robbing the dead and plundering the ruined homes should be severely punished. The same considerations apply, though in a lesser degree, to prosecutions of hoarders and violators of war economy decrees.
Questions of far greater difficulty are involved when we consider the cases involving punishment for undermining military morale. The limitations on freedom of speech which were imposed in the enforcement of these laws are revolting to our sense of justice. A court would have no hesitation in condemning them under any free Constitution, including that of the Weimar Republic, if the limitations were applied in time of peace; but even under the protection of the Constitution of the United States a citizen is not wholly free to attack the Government or to interfere with its military aims in time of war. In the face of a real and present danger, freedom of speech may be somewhat restricted even in America. Can we then say that in the throes of total war and in the presence of impending disaster these officials who enforced these savage laws in a last desperate effort to stave off defeat were guilty of crimes against humanity?
It is persuasively urged that the fact that Germany was waging a criminal war of aggression colors all of these acts with the dye of criminality. To those who planned the war of aggression and who were charged with and were guilty of the crime against the peace as defined in the Charter, this argument is conclusive, but these defendants are not charged with crimes against the peace nor has it been proven here that they knew that the war which they were supporting on the home Court3, Case 3 front was based upon a criminal conspiracy or was per se a violation of international law.
The lying propaganda of Hitler and Goebbels concealed even from many public officials the criminal plans of the inner circle of aggressors. If we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality. In the opinion of the Tribunal the territory occupied and annexed by Germany after September 1939 never became a part of Germany, but for that conclusion we need not rest upon the doctrinethat the invasion was a crime against the peace. Such purported annexations in the course of hostilities while armies are in the field are provisional only, and dependent upon the final successful outcome of the war. If the war succeeds, no one questions the validity of the annexation. If it fails, the attempt to annex becomes abortive. In view of cur clear duty to move with caution in the recently charted field of international affairs, we conclude that the demestic laws and judgments in Germany which limited free speech in the emergency of war cannot be condemned as crimes against humanity merely by invoking the doctine of aggressive war. All of the laws to which we have referred could be and were applied in a discriminatory manner and in the case of many, the Ministry of Justice and the courts enforced them by arbitrary and brutal means, shocking to the conscience of mankind and punishable here. We merely hold that under the particular facts of this case we cannot convict any defendant merely because of the fact, without more, that laws of the first four types were passed or enforced.
A different situation is presented when we consider the cases which Court3, Case 3 fall within types 5, 6, and 7.We will take our afternoon recess of fifteen minutes.
Court No. III, Case No. III.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Judge Harding will continue with the reading of the Opinion.
Treason and High Treason We have expressed the opinion that the purported annexation of territory in the East which occurred in the course of war and while opposing armies were still in the field was invalid and that in point of law such territory never became a part of the Reich, hut merely remained in German military control under belligerent occupancy.
On 27 October 1939 the Polish Ambassador at Washington informed the Secretary of State that the German Reich had decreed the annexation of part of the territory of the Polish Republic. In acknowledging the receipt of this information, Secretary Hull stated that he had "taken note of the Polish Government's declaration that it considers this act as illegal and therefore null and void." (Department of State Bulletin, 4 November 1939, page 458; Hyde, International Law, Vol. 1 (2d ed.), page 391). The foregoing fact alone demonstrates that the Polish Government was still in existence and was recognized by the Government of the United States. Sir Arnold D. McNair expressed a principle which we believe to be incontestable in the following words:
"A purported incorporation of occupied territory by a military occupant into his own kingdom during the war is illegal and ought not to receive any recognition. * * *" (Legal Facts of bar (2d ed.), (Cambridge, 1944), page 320, Note).
We recognize that in territory under belligerent occupation the military authorities of the occupant may, under the laws of customs of war, punish local residents who engage in Fifth Column activities hostile to the occupant. It must be conceded that the right to punish such activities depends upon the specific acts charged and not upon the name by which these acts are described. It must also be conceded that Poles who voluntarily entered the Alt Reich could, under the laws of war, Court No. III, Case No. III.
be punished for the violation of non-discriminatory German penal statutes.
These considerations, however, do not justify the action of the Reich prosecutors who in numerous cases charged Poles with high treason under the following circumstances: Poles were charged with attempting to escape from the Reich. The indictments in these cases alleged that the defendants were guilty of attempting, by violence or threat of violence, to detach from the Reich territory belonging to the Reich, contrary to the express provisions of Section 80 of the law of 24 April 1934. The territory which defendants were charged with attempting to detach from the Reich consisted of portions of Poland, which the Reich had illegally attempted to annex. If the theory of the German prosecutors in these cases were carried to its logical conclusion it would mean that every Polish soldier from the occupied territories fighting for the restoration to Poland of territory belonging to it would be guilty of high treason against the Reich and on capture, could be shot. The theory of the Reich prosecutors carries with it its own refutation.
Prosecution in these cases represented an unwarrantable extention of the concept of high treason, which constituted in our opinion a war crime and a crime against humanity. The wrong done in such prosecutions was not merely in misnaming the offense of attempting to escape from the Reich; the wrong was in falsely naming the act high treason and thereby invoking the death penalty for a minor offense.
Membership in Criminal Organizations
C.C. Law 10 provides:
"(1) Each of the following acts is recognized as a crime:
* * * * * * * * * * "(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal."
(Article II, Section I (d)).
Article 9 of the Charter provides:
"At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of Court No. III, Case No. III.