(IMT Judgment Vol.
I, pages 222, 223).
THE PRESIDENT: Judge Harding will continue the reading for the Tribunal.
JUDGE HARDING: "Racial Persecution.
The record contains innumerable acts of persecution of individual Poles and Jews, but to consider these cases as isolated and unrelated instances of perversion of justice would be to overlook the very essence of the offense charged in the indictment. The defendants are not now charged with conspiracy as a separate and substantive offense, but it is alleged that they participated in carrying out a governmental plan and program for the persecution and extermination of Jews and Poles, a plan which transcended territorial boundaries as well as the bounds of human decency. Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws and in atrocities, illegal even under German law, in furtherance of the declared national purpose. Others, as judges, distorted and then applied the laws and decrees against Poles and Jews as such in disregard of every principle of judicial behavior. The overt acts of the several defendants must be see and understood as deliberate contributions toward the effectuation of the policy of the Party and State. The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged. The material facts which must be proved in any case are: (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law. The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principals or accessories to the crime.
We turn to the national pattern or plan for racial extermination.
Fundamentally, the program was one for the actual extermination of Jews and Poles, either by means of killing or by confinement in concentration camps, which merely made death slower and more painful. But lesser forms of racial persecution were universally practiced by governmental authority and constituted an integral part in the general policy of the Reich. We have already noted the decree by which Jews were excluded from the legal profession. Intermarriage between Jews and persons of German blood was prohibited. Sexual intercourse between Jews and German nationals was punished with extreme severity by the courts.
By other decrees Jews were almost completely expelled from public service, from educational institutions, and from many business enterprises. Upon the death of a Jew his property was confiscated. Under the provisions for confiscation under the 11th amendment to the German Citizenship Law, supra, the decision as to confiscation of the property of living Jews was left to the Chief of the Security Police and the SD. The law against Poles and Jews cited supra (4 December 1941), was rigorously enforced. Poles and Jews convicted of specific crimes were subjected to different types of punishment from that imposed upon Germans who had committed the same crimes. Their rights as defendants in court were severely circumscribed. Courts were empowered to impose death sentences on Poles and Jews even where such punishment was not prescribed by law, if the evidence showed "particularly objectionable motives". And, finally, the police were given carte blanche to punish all "criminal" acts committed by Jews without any employment of the judicial process. From the great mass of evidence we can only cite a few illustrations of the character and operation of the program.
On 30 January 1939, in an address before the Reichstag, Hitler, who was at that very time perfecting his plot for aggressive war, said:
"If the international Jewish financiers within and without Europe succeed in plunging the nations once more into a world war, then the result will not be the Bolshevization of the world and thereby the victory of Jewry, but the obliteration of the Jewish race in Europe."
We quote from the writings of Alfred Rosenberg (since hanged), "High Priest of the Nazi Racial Theory and Herald of the Master Race":
"A new faith is arising today: the myth of the blood, the faith to defend with the blood the divine essence of man. The faith, embodied in clearest knowledge, that the Nordic blood represents that mysterium which has replaced and overcome the old sacraments." (Rosenberg, Dor Mythus des 20. Jahrhunderts, (Munich, 1935), page 114 (1st ed., 1930)). (National Socialism, page 31, Department of State Bulletin.)
The Rosenberg philosophy strongly supported the program of the Nazi Party, which reads as follows:
"None but members of the nation (Volk) may be citizens of the State. None but those of German blood, whatever their creed, may be members of the nation. No Jew, therefore, may be a member of the nation."
It was to implement this program that the discriminatory laws against Poles and Jews were enacted as hereinabove act forth.
A directive of the Reich Ministry of Justice, signed by Freisler, dated 7 August 1942, addressed to prosecutors and judges, sets forth the broad general purposes which were to govern the application of the law against Poles and Jews and the specific application of that law in the trial of cases. We quote:
"The penal law ordinance of 4 December 1941 concerning Poles, was intended not only to serve as a criminal law against Poles and Jews but, beyond that, also to provide general principles for the German administration of law to adopt in all its judicial dealings with Poles and Jews; irrespective of the role which the Poles and Jewsplay in the individual proceedings. The regulations of Article IX for instance, according to which Poles Jews are not to be sworn in, apply to proceedings against Germans as well. * * * "1. Proceedings against Germans should be carried on whenever possible without calling Poles and Jews as witnesses.
If, however, such a testimony cannot be evaded, the Pole or Jew must not appear as a witness against the German during the main trial. He must always be interrogated by a judge who has been appointed or requested to do so, * * *.
"2. Evidence given by Poles and Jews during proceedings against Germans must be received with the utmost caution especially in those cases where other evidence is lacking."
On 13 October 1942 the Reich Minister of Justice Thierack wrote to Reichsleiter Bormann, in part as follows:
"With a view to freeing the German people of Poles, Russians, Jews, and gypsies and with a view to making the Eastern territories which have been incorporated into the Reich available for settlements for German nationals, I intend to turn over criminal proceedings against Poles, Russians, Jews, and gypsies to the Reichsfuehrer SS. In so doing I base myself on the principle that the administration of justice can only make a small contribution to the extermination of members of these peoples. The Justice Administration undoubtedly pronounces very severe sentences on such persons, but that is not enough to constitute any material contribution towards the realization of the above-mentioned aim."
On 18 September 1942 a conference was hold among Thierack, Himmler, Bormann, Rothenberger, and others. The notes of the conference, signed by Thierack; disclose that the subjects of discussion included "special treatment" at the hands of the police in cases where judicial sentences were not severe enough. Among other points agreed upon between Bormann, Himmler, and Thierack, were the following:
"The Reich Minister of Justice will decide whether and when special treatment at the hands of the police is to be applied.* * * "The delivery of anti-social elements from the execution of their sentence to the Reich Fuehrer of SS to be worked to death.
Persons under protective arrest, Jews, gypsies, Russians, and Ukrainians, Poles with more than three-year sentences, Czechs and Germans with more than eight-year sentences, according to the decision of the Reich Minister for Justice. First of all the worst anti-social elements amongst those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Borman. * * * "It is agreed that, in consideration of the intended aims of the Government for the clearing up of the Eastern problems, in future Jews, Poles, gypsies, Russians, Ukrainians are no longer to be judged by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reich Fuehrer SS.
* * *" The defendant Rothenberger testified that he was not present when those agreements were made.
However that may be, it is clear that they came to his notice shortly thereafter.
Of especial significance is the record concerning the establishment of penal laws for Poles and Jews in the annexed Eastern territories. On 17 April 1941 the defendant Schlegelberger addressed a letter to the Reich Minister and Chief of the Reich Chancellery. In it he states that as soon as the Special Courts were introduced in the Eastern territories under the decree of 5 September 1939 he tried to make these "courts with their particularly prompt and energetic procedure centers for combating all Polish and Jewish crime". He states that "the procedure of compulsory prosecution was rescinded, as it seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment". Poles and Jews were also prohibited from raising private actions and accessory actions. He further states:
"On being informed of the Fuehrer's intention to discriminate in the sphere of penal law between the Poles (and probably the Jews as well), and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and the attorney generals of the annexed.
Eastern territories, the attached draft concerning the administration of the penal laws against Poles and. Jews in the annexed Eastern territories and in the territory of the former Free City of Danzig."
Again, he says:
"So far I have been in agreement with the opinion held by the Fuehrer's deputy, on the fact that a Pole is less sensitive to the imposition of an ordinary prison sentence. Therefore, I had taken administrative measures to ensure that Poles and Jews be separated from other prisoners and that their imprisonment be rendered more severe. No. 3 goes still farther and substitutes for the terms of imprisonment and hard labor prescribed by Reich law other prison sentences of a new kind, viz., the prison camp and the more rigorous prison camp."
Speaking of the proposed draft prepared by him, Schlegelberger said:
"The part concerned with procedure contains first the special regulations existing up to now of the preliminary decree. In addition, a Pole and a Jew sentenced by a German court is not to be allowed, in the future, any legal remedy against the judgment; neither will he have a right of appeal, or be allowed to ask that the case be reopened. All sentences will take effect immediately. In future, Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice; now will they be able to take an oath. Coercive measures against them are permissible under easier conditions."
A memorandum dated 22 April 1941, bearing the same file number as the letter of Schlegelberger, states that Schlegelberger has transmitted the proposed draft, and adds:
"The draft establishes a draconic special criminal law for Poles and Jews, "giving a wide range for the interpretations of the facts of the case, with the death penalty applicable throughout.
The conditions of imprisonment are also much more severe than provided for in the German criminal law."
The note further states:
"The Minister of Justice differs only in two points from the suggestions of the Fuehrer's deputy."
It then states that the Fuehrer's deputy considered it more appropriate to authorize the Reich governors to introduce the special criminal law, whereas the Minister of Justice provides for its introduction by a Reich decree. The second difference of opinion was somewhat to the credit of the defendant Schlegelberger. The Fuehrer's deputy considered the introduction of corporal punishment appropriate, and the Minister of Justice refused to agree.
On 3 August 1942 the Reich Minister of Justice sent a draft of the proposed ordinance to a number of high officials, including the Reich Minister of Interior and the Reich Minister for Popular Enlightenment and Propaganda. The letter was signed "by order, Freisler". Freisler was at that time State Secretary in the Reich Ministry of Justice. The letter contained this significant statement:
"I have emphasized the importance in war of this ordinance because it indirectly serves national defense."
The enclosed draft provided that Jews should not be entitled to make use of the right of appeal, revision or complaint against decisions in criminal cases, and could not appeal to the courts for a decision against sentences inflicted by the police. It also provided that in cases where an appeal had already been filed it should be considered cancelled.
On 13 August 1942 the Reich Minister of Interior wrote to the Reich Minister of Justice, requesting that the draft be extended so as to restrict the right of Jews to appeal in administrative as well as criminal cases.
On the same day the defendant Schlegelberger wrote to the Reich Minister for Popular Enlightenment and Propaganda concerning the addition to the draft as suggested by the Reich Minister of the Interior. We quote:
"I declare that I have no objections against an extension of my draft to matters of administrative law and to decisions by administrative authorities."
He then suggested an additional provision to the effect that Jews should be forbidden to testify on oath, but that they might be prosecuted as for perjury though no oath is to be taken.
On 8 March 1943 the Chief of the Security Police and the SD, Kaltenbrunner, wrote to Minister of the Interior, Frick, urging immediate passage of the proposed ordinance. The following reasons were given:
"1. Previous evacuations of Jews have been restricted to Jews who were not married to non-Jews. In consequence, the numbers of Jews who have remained in the interior is quite considerable. As the ordinance would also include these Jews as well, the measures it plans are not objectless.
"2. The provision of Article 7 of the ordinance according to which, at the death of a Jew, his fortune escheats in its entirety to the Reich, results in the accumulation of considerably less work for the state police. At the present time the procedure used by the state police in handling the confiscation of such Jewish inheritances must frequently be modified to suit each special case."
He adds that the provision for the transfer of Jews to the police is based on an agreement between Himmler and Thierack, who had by that time succeeded Schlegelberger as Reich Minister of Justice.
On 21 April 1943 a memorandum for the files of the Reich Chancellery reports a conference of State secretaries on the proposed ordinance at which the defendant Rothenberger was present. The conference came to the conclusion that certain modifications should be made. The final result of the prolonged discussion was the enactment of time 13th Regulation under the Reich Citizenship Law of 1 July 1943, which was signed by Frick, Bormann, and Thierack.
It will be recalled that that regulation, supra, provided that criminal actions committed by Jews should be punished by the police; that the property of a Jew should be confiscated after his death. These and other provisions were also made effective in the Protectorate of Bohemia and Moravia, where German courts had jurisdiction.
With few exceptions Jews were wholly excluded from the administration of justice. In a speech before the NSDAP Congress on 14 September 1934, Hans Frank stated:
"It is unbearable to us to permit Jews to play any role whatsoever in the German Administration of Justice.* * * It will, therefore, be our firm aim to exclude Jews increasingly from the administration of the law as time goes on."
On another occasion Frank, as President of the Academy for German Law, directed: "For all future time it will be impossible that Jews will act in the name of German Law. * * *".
In an order reminiscent of the "burning of the books" in medieval days, Frank also directed that the works of Jewish authors should be removed from all public or study libraries whenever possible.
On 5 April 1933, the defendant, Barnickel, made an entry in his diary:
"Today it is said in the newspaper that in Berlin there are about 3,500 attorneys and more than half of them are Jewish. Only 35 of them are to be admitted as lawyers. * * * To exclude these Jewish attorneys from one day to the next means terrible brutaLity."
The defense witness, Fritz Walentin, stated that in general all nonaryan judges were removed from the administration of penal justice very soon after 30 January 1933. The evacuation of Jews to the East for extermination was in full swing at least as early as November 1941.
and continued through the war years thereafter. As an illustration of the nature of this program as carried out throughout the Reich, we cite the report of the Secret State Police Rain Office, Nurnberg-Furth; Branch Office Wurzburg. This report refers to the deportation from a comparatively small area around the city of Wurzburg and shows evacuations of Jews to the East in the following numbers: On 27 July 1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942, 850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on 23 September 1942 (to Theresienstadt) 562 persons; on 17 June 1943 (to Theresienstadt) seven persons; on 17 June 1943, 57 Jews were evacuated to the East. The report continues: "With this last transport, all the Jews who had to be evacuated according to instructions issued have left Main Franken." The report shows that the total number of 2,063 Jews were evacuated from the Main Franken area alone. The furniture, clothing and laundry items left by the Jews were given to the Finance Offices of Main Franken and turned into cash by them.
Even before transfers to the Gestapo had been substituted for judicial procedure time position of a Pole or a Jew who was tried by the courts was not a happy one. The right of self defense on the part of a Pole was specifically limited. Poles and Jews could not challenge a German judge for prejudice. Other limitations upon the right of appeal and the like are set forth, supra (Law against Poles and Jews, 4 December 1941).
On 22 July 1942 Reich Minister Goebbels stated that "it was an untenable situation that still today a Jew could protest against the charge of time president of the police, who was an old Party member and a high SS leader. The Jew should not be granted any legal remedy at all nor any right of protest."
The defendant Lautz testified that according to time provisions of a decree which antedated the war and by reason of the general regulations of the law in every case it had to be pointed out in the indict ment if the person was a Jew or of mixed race.
On 23 January 1943 the Oberlandesgerichts President at Koenigsberg wrote to the Minister of Justice concerning defense of Poles before tribunals in incorporated Eastern territories. We quote:
"The decree of 21 May 1942 * * * states that in accordance with the order on penal justice in Poland of 4 December 1941 attorneys are not (to) undertake the defense of Polish persons before tribunals in the incorporated Eastern territories. This decree has been received with satisfaction by all the judges and prosecutors in the whole of my district."
These directives by the authorities in the Reich under Hitler were not mere idle threats. The policies and laws were rigorously enforced. We quote from a sworn statement of former defendant Karl Engert as follows:
"The handing over to the Gestapo Of Jews, Poles, and Gypsies was not under my supervision, but under that of Mr. Hecker, who worked under me in my division. However, he was not responsible to me, but directly to the Minister Thierack."
Again he said:
"About 12,000 inmates of the correction houses were assigned for transfer to the Gestapo * * * Out of the total 12,000 , my division assigned. 3,000 for transfer in 1942.
How many Jews, Poles, and gypsies were assigned I do not know; that must be in the statistics."
Reich Minister Goebbels, in an address to the judges of the People's Court, on 22 July 1942, stated that "if still more than 40,000 Jews, whom we considered enemies of the State, could freely go about in Berlin, this was solely due to the lack of sufficient means of transportation. Otherwise the Jews would have been in the East long ago."
Between 9 and 11 November 1938, a pogrom was carried out against the Jews throughout the Reich, and upon direct orders from Berlin. Defense witness Peter Eiffe testified that he heard rumors of the proposed pogrom on the night of 8 November and called at tho Ministry of Propaganda where he was told that "somebody has let the cat out of the bag again". During the three-day period Jewish property was destroyed throughout the Reich and thousands of Jews were arrested.
In Berlin the destruction of Jewish property was particularly great. To cap the climax on 12 November 1938 Field Marshal Goering issued the following decree:
"Article 1.--All damage done due to the indignation of the people at the incitement of international Jewry against National Socialist Germany carried out on the 8, 9, and 10 November 1938, on Jewish enterprises and living quarters is to be removed by the Jewish owners immediately.
"Article II.--The costs of restoration are to be borne by the owner of the Jewish business concerned * * * .
"Section 2.---Insurance claims of Jews of German nationality will be confiscated in favor of the Reich. " (RGB1. 1938 I, page 1581).For this purpose a fine of one billion marks was imposed upon the Jews.
The witness Eiffe, who was an attorney in Berlin, acted in behalf of Frau Liebermann, the widow of the internationally known artist, Max Liebermann. Frau Liebermann was at that time eighty years old and the share of the fine imposed upon her was 280,000 marks. Ultimately orders were issued for her deportation to the East. She, however, died, either from heart failure or poison, as she descended tho steps to be carried away. Defense witness Eiffe also testified concerning other methods of Jewish persecution. He Said:
"* * * When a Jew wanted to emigrate, I had much to do with it. He had to pay the Reich excape tax, that was so and so much percent of his property and then a large amount was taken away from his by assessing his property very high. After all of that was done and the day he went to the Passport Office in order to get his clearance, his passport, and get his visae then he was told that now he still had to go to the Notary, Dr. Stege, and had to deposit a voluntary fee to promote the emigration of the Jews, and that is where he paid the balance, and then left with his personal satchel, with his little valise."
Speaking of the "a-social" persons, Dr. Thierack, on 5 January 1943, at a mass meeting of the NSDAP, stated:
"I have seen to it that these people shall no longer be employed for any sort of work that is not dangerous. The most dangerous tasks are just the thing that is for them. Now, today, when thousands of these people are carrying supplies in the far North or building roads, I cannot help it if some of them die, but at least they are of some use. " The Roman Catholic chaplain at Amberg prison stated under oath that a large proportion of the inmates of that prison were Poles who had been sentenced under the "Poles Act". Many of them died from under-nourishment.
They were forced to eat potato peelings and hunt through rubbish heaps for eatable refuse. From this prison "a-social elements" were picked out and sent in batches to the Mauthausen concentration camp. All of the first batch was said to have perished. Among the prisoners were Jews who had been sentenced for race pollution.
The witness Hecker stated under oath that after Thierack's "doubtful decree" concerning tho transfer of Jews, Poles, and gypsies, prisoners in protective custody, and a-social elements from the Justice prisons to the RSHA in the autumn of 1942, the Jews as a whole were immediately handed over. The work was carried out by Department V of the Ministry of Justice. Lists were prepared monthly and sent to Minister Thierack through the chief of the department.
On 22 October 1942 a directive under the letterhead of the Reich Minister of Justice was issued to various prosecuting officers in which it was stated that "by agreement with the Reich Fuehrer SS, lawfully sentenced prisoners confined in penal institutions will be transferred to the custody of tho Reich Leader SS. " Those designated for transfer to the SS included "Jews, men and women, detained under arrest, protective custody, or in the workhouse, * * * and Poles, residing in the former Polish State territory on 1 September 1939, men and women, sentenced to penal camps or subsequently turned over for penal execution, if sentence is above three years, * * * . With completion of the transfer to the police, the penal term is considered interrupted.
Transfer to the police is to be reported to the penal authority and in cases of custody to the superior executive authority, with the information that the interruption of the penal term has been ordered by the Reich Ministry of Justice" The directive is signed "Dr. Crohne".
A secret directive dated Berlin, 5. November 1942, was issued to the heads of the SS and to the police services, in which it was stated:
"Re: Jurisdiction over Poles and Eastern Nationals.-
"I. The Reichsfuehrer SS has come to an arrangement with the Reich Minister of Justice Thierack whereby the Justice waives the execution of the usual penal procedure against Poles and Eastern nationals. These persons of alien race are in future to be banded over to the police. Jews and gypsies are to be treated in the same way. This agreement has been approved by the Fuehrer.
"II. This agreement is based on following considerations: Poles and Eastern nationals are alien and racially inferior people living in the German Reich territory."
The order continues:
"Such considerations which may be right for adjudicating a punishable offense committed by a German are, however, wrong for adjudicating a punishable offense committed by a person of alien race. * * * As a result of this, the administration of penal law for persons of alien race must be transferred from the hands of the administrators of justice into the hands of the police."
On 24 September 1942 the defendant Joel prepared a secret report concerning the Reich Marshal's plans for action in the occupied Eastern territories. The report states that "the Reich Marshal is looking for daring fellows who will be employed in the East for special purposes and who will be able to carry out tasks of creating confusion behind the lines". The suggestion was that "poachers" and "fanatical members of smuggling gangs who take part in gun battles on the frontiers" should be employed for this purpose.
A copy of the report was sent to State Secretary Rothenberger for Ms attention and was submitted in connection with a proposed conference to be hold on 9 October 1942. Minutes of a conference of 9 October 1942, signed by Dr. Crohne, incorporate the substance of Joel's report and state that the poachers have already been turned over to the Reich Fuehrer SS for special duties. The report recommends that the district attorneys be given the task of obtaining the convicts for this special service, and provides further:
"Delivery of A-social Convicts,--Persons in penal institutions designated as a-social persons by judicial decision are to be turned over to the Reichsfuehrer SS.
"1. Persons in custody for reasons of security.--Persons in custody for reasons of security who are in German penal institutions will be put at the disposal of the Reichsfuehrer SS. The execution of sentence will be regarded as interrupted by the delivery. * * * "Whether women are also to be delivered is still doubtful.
* * * In this regard it will have to be a fundamental point from the beginning that in the case of female Poles, Jews, and gypsies no doubt about the delivery can exist.
"Foreigners are not affected. Poles, Russians, Ukrainians, Jews, gypsies, do not rank as foreigners. * * * "2. Jews, gypsies, Russians, Ukrainians will be delivered to the Reichsfuehrer SS without exception.
"3. Poles.--Ethnic Poles, who are subject to the Polish criminal law regulations, or have been delivered to the polish penal authorities and who have more than three years sentence to serve will be delivered to the Reichsfuehrer SS.
"Poles with smaller sentences will remain in custody of the prison system. After serving their sentences they will be reported by name to the police just the same."
It will be observed that the decisions concerning special treatment for Poles and Jews which were reached at this conference of 9 October 1942 antedate by almost nine months the enactment of the 13th Regulation Concerning the Reich Citizenship law of 1 July 1943 which provided "that criminal actions committed by Jews shall be punished by the police".
On 1 April 1943 a letter from the Reich Ministry of Justice to the public prosecutors of the courts of appeal and others, stated that the "Reich Security Office has directed by the decree of 11 March 1943 as follows:
"a). Jews, who in accordance with number VI of the guiding principles, are released from a penal institution, are to be taken by the State Police (Chief) Office competent for the district in which the penal institution is located, for the rest of their lives to the concentration camps Auschwitz or Lublin in accordance with the regulations for protective custody that have been issued. The same applies to Jews who in the future are released from a penal institution after serving a sentence of confinement.
"b). Poles, who in accordance with number VI of the guiding principles are released from a penal institutional to be taken by the State Police (Chief) Office competent for the district in which the penal institution is located, for the duration of the war to a concentration camp in accordance with the regulations on protective custody that have been issued.
"The same applies in the future to Poles who, after serving a term of imprisonment of more than six months, are to be discharged by a penal institution."
THE PRESIDENT: Judge brand reading further from the opinion of the Tribunal.
JUDGE BRAND: It was stated that the ruling replaces previous orders. The instrument is stamped "Reich Ministry of Justice" and is signed by Dr. Eichler.
As a crowning example of fanatical imbecility, we cite the following document issued in April 1943, which was sent to tho desk of the defendant Rothenberger for his attention and was initialed by him.
"The Reich Minister of Justice "Information for tho Fuehrer 1943 No."After the birth of her child a full--blooded Jewess sold her mother's milk to a pediatrician and concealed that she was a Jewess.
With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage, for mother's milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for so that the parents, who are unaware of the true facts, need not subsequently be worried.
"I shall discuss with the Reich Health Leader the racialhygienic aspect of the case.
"Berlin, April 1943."
The witness Lammers, former Chief of the Reich Chancellery, testified as follows:
"Q: * * * Now, you answered Dr. Kubuschok that the subject of sterilization of half-Jews was an alternative to their being moved to the East and that it had been raised by half-Jews themselves in 1942 or prior thereto.
"A: Yes, I said so."
He testified further that the half--Jews were not subject to any compulsion. He was apparently of the opinion that a person was a free agent if he had a choice between sterilization and deportation to a concentration camp.
It will be recalled that the law of 4 December 1941. against Poles and Jews applied to the "incorporated Eastern territories". Those territories were seized in the course of criminal aggressive war, but aside from that fact it is clear, as we have indicated, supra, that the purported annexation was premature and invalid under the laws and customs of war. The so-called annexed territories in Poland were in reality nothing more than territory under belligerent occupation of the military forces of Germany. The extension to and application in those territories of the discriminatory law against Poles and Jews was in furtherance of the avowed purpose of racial persecution and extermination. In the passing and enforcement of that law the occupying power in our opinion violated tho provisions of The Hague Convention from which we quote:
"Until a more complete code of the laws of war has been issued, the high contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by then, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."
Other relevant portions are as follows:
"Article 43.--The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
"Article 46. -- We have already quoted before - -
The prosecutions which were proposed by Lautz cannot be justified upon any honest claim of military necessity.
Although the authorities are not in accord as to the proper construction of Article 23h of the regulations annexed to The Hague Convention of 1907, we are of the opinion that the introduction and enforcement of the law against Poles and Jews in occupied Poland resulted in a violation of that prevision which is as follows:
"It is forbidden * * * to declare , suspended, or inadmissible in a court of law the right and actions of the nationals of the hostile party." (Hyde, International Law, Vol . 2 (2d edition, page 1714).
The evidence discloses that the trans fer of persons to concentration camps was done even before the war and on direct orders of Hitler. Dr. Lammers, Chief, of the Reich Chancellery, on 8 August 1939, notified the Reich Minister of Justice that "the Fuehrer has given an order that all dispensable persons in security detention are to be put at the disposal of the Reich Fuehrer SS immediately. " The same procedure was employed as to persons who had never been convicted.
On 24 January 1939; a conference was held at which reports were received from eight different court districts. The subject was "Protective Custody after Serving Term of Imprisonment after Acquittal, after Release from Imprisonment on Remand." Among the cases reported were those of defendants who were taken into custody by the police in the courtroom immediately after their acquittal. Others were taken by the police in cases where there had been refusal to issue a warrant of arrest. The report on the Hamburg situation by the defendant Rothenberger states that the number of persons taken into protective custody has increased.
Rothenberger reports that in six cases Jewish women had been taken into protective custody because of sexual intercourse with Aryans. He quotes the State Police file as follows:
"1) protective custody, 'to make the punishment finally effective'* "2) protective custody, 'to make the served sentence still more effective' * * * "3) protective custody, 'because of the big number of previous convictions' "4) protective custody 'to prevent prejudicing the course of justice through the interference of lawyers as defense counsels'. " The report on the conference ends as follows:
"The Minister concludes the discussion by indicating that it is to be the task of the chief presidents to see that arrests in the courtroom by the State Police are avoided and recommends for the rest to maintain the connection with the State Police."
The report is signed by the defendant Klemm.
Former defendant Engert as Vice President of the People's Court, and Thierack, the President of the People's Court, protested in July and August 1940 against the trial of minor cases in the People's Court as not being compatible with the dignity of the Tribunal and suggested that the defendants in such cases should be transferred to a concentration camp. As Thierack put it:
"However right it is to exterminate harshly and uproot all the seeds of insurrection , as for example we see them in Bohemia and Moravia, it is wrong for every follower, even the smallest, to be given the honor of appearing for trial and being judged for high treason before a People's Court or, failing that, before an appellate court. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and that it will take action accordingly.