"As leader of the Gau Legal Office (Gaurechtsamt) and, after the latter's disbanding, as member in the Gau Staff (Gaustabe), he enjoyed a special position of power which enabled him to hold the defense strongly in check; it was well known that a sign from the Gau authorities, instigated by Oeschey, was sufficient to have a lawyer turned over to the Gestapo."
"I had the impression that he supported, knowingly and willingly, the policy of Hitler to 'decimate' (Dezimierung) alliens, especially Poles, by increasing the number of death sentences against them **x*."
On cross examination Eichinger admitted that he did not know of any lawyer who had been turned over to the Gestapo by Oeschey. It is clear that in his statements Eichinger was relying only upon general information as the of his opinion. We think however, that his opinion merits consideration.
Dr. Karl Mayer, defense counsel, said that Rothaug was judge of the worst Special Court in Germany and used to tell defendants even during the trial that they would be exterminated. He adds that after Rothaug was transferred to Berlin Oeschey even surpassed him in the spitefulness of his manner. Space does not permit the discussion of the other cases which illustrate Oeschey's ruthless exercise of arbitrary power. Mention should, however, be made of the trial of a group of foreign boys who had some fights with boys in the Nuernberg Hitler Youth Home. Dr. Mueller characterizes the action of the boys as harmless pranks. At worst they were indulging in street fights with the Hitler Youth. Oeschey held that they constituted a resistance movement and several of the boys were sentenced to death.
The defendant Oeschey is charged under Count four of the indictment with being a member of the Party Leadership Corps at Gau level within the definite of the membership declared criminal according to the Judgment of the first International Military Tribunal in the case against Goering, et. al.
We have previously quoted the findings of the first International Military Tribunal which define the organizations and groups within the Leadership Corps which are declared to be criminal. Oeschey was provision commissioned with the direction of the legal office of the NSDAP in the Franconia Gau and served in that official capacity for a long time. In has testimony he states that from 1940 to 1942 he was solely in charge of the Gnu legal office as section chief.
The evidence clearly establishes the defendant's voluntary membership as the chief of a Gau staff office subsequent to 1 September 1939. The judgment of the first International Military Tribunal lists among the criminal activities of the Party Leadership Corps the following:
"The Leadership Corps played its part in the persecution of the Jews. It was involved in the economic and political discrimination against the Jews which was put into affect shortly after the Nazis came into power. The Gestapo and SD were instructed to coordinate with the Gauleiters and Kreisleiters the measures taken in the pogroms of 9 and 10 November 1938. The Leadership Corps was also used to prevent German public opinion from reacting against the measures taken against the Jews in the East. On 9 October 1942, a confidential information bulletin was sent to all Gauleiters and Kreisleiters entitled 'Preparatory Measures for the Final Solution of the Jewish Question in Europe -- Rumors Concerning the Conditions of the Jews in the East'. This bulletin stated that rumors were being started by returning soldiers concerning tho conditions of Jews in tho East which some Germans might not understand, and outlined in detail the official explanation to be given. This bulletin contained no explicit statement that the Jews were being exterminated, but it did indicate they were going to labor camps, and spoke of their complete segregation and elimination and the necessity of ruthless seventy. * * * "The Leadership Corps played an import ant part in the administration of the slave labor program.
A Sauckel decree dated 6 April 1942 appointed the Gauleiters as plenipotentiary for labor mobilization for their Gaue with authority to coordinate all agencies dealing with labor questions in their Gaue, with specific authority over the employment of foreign workers, including their conditions of work, feeding, and housing. Under this authority tho Gauleiters assumed control over the allocation of labor in their Gaue, including the forced laborers from foreign countries. In carrying out this task the Gauleiters used many Party offices within their Gaue, including subordinate political lenders.
For example, Sauckel's decree of 8 September 1942, relating to the allocation for household labor of 400,000 women laborers brought in from the East, established a procedure under which applications filed for such workers should be passed on by the Kreisleiters, whose judgment was final.
"Under Sauckel's directive the Leadership Corps was directly concerned with the treatment given foreign workers, and the Gauleiters were specifically instructed to prevent 'politically inept factory heads' from giving 'too much consideration to the care of Eastern workers'.
"The Leadership Corps was directly concerned with the treatment of prisoners of war. On 5 November 1941 Bormann transmitted a directive down to the level of Kreisleiter instructing them to insure compliance by the army with the recent directives of the Department of the Interior ordering that dead Russian prisoners of war should be buried wrapped in tar paper in a remote place without any ceremony or any decorations of their graves. On 25 November 1943 Bormann sent a circular instructing the Gauleiters to report any lenient treatment of prisoners of war. On 13 September 1944, Bormann sent a directive down to the level of Kreisleiter ordering that liaison be established between the Kreislciters and the guards of the prisoners of war in order 'better to assimilate the commitment of the prisoners of war to the political and economic demands'. * * * "The machinery of the Leadership Corps was also utilized in attempts made to deprive Allied airmen of the protection to which they were entitled under the Geneva Convention.
On 13 March 1940 a directive of Hess transmitted instructions through the Leadership Corps down to the Blockleiter for the guidance of the civilian population in case of the landing of enemy planes or parachutists, which stated that enemy parachutists were to be immediately arrested or 'made harmless'."
As to his knowledge, the defendant Oeschey joined the NSDAP on 1 December 1931. He was head of the Lawyers' League for the Gau Franconia and a judicial officer of considerable importance within the Gau. These offices would provide additional sources of information as to the crimes outlined.
Furthermore, these crimes were of such wide scope and so intimately connected with the activities of the Gauleitung that it would be impossible for a man of the defendant's intelligence not to have known of the commission of these crimes, at least in part if not entirely.
We find the defendant Oeschey guilty under Counts three and four of the indictment. In view of the sadistic attitude and conduct of the defendant, we know of no just reason for any mitigation of punishment.
THE PRESIDENT: Judge Harding has consented to continue with the reading.
JUDGE HARDING: (Reading) The Defendant Altstoetter Joseph Alstotetter was born 4 January 1892.
He was educated for the bar and passed the State examination in jurisprudence in Munich. Ho subsequently served in the Bavarian and in the Reich Ministries of Justice. In 1932 he was promoted and was sent to the Reich Supreme Court in Leipzig. In 1933 he was a member of the Appeals Criminal Senate. In 1936 he was a member of the Reich Labor Court. From 1939 to 1943 he served with the Wehrmacht. In 1943 he was assigned to the Reich Ministry of Justice where he was made Chief of the Civil Law and Procedure Division in the Ministry of Justice with the title of Ministerialdirektor and served in that capacity until the surrender. He had been a member of the Stalhelm prior to the Nazi rise to power. When the Stahlhelm was absorbed into the Nazi organization, he automatically became a member of the SA. Prior to Lay 1937 he resigned from the SA to become a member of the General SS. His membership in the SS, from his personnel files, dates from 15 May 1937. He applied for membership in the NSDAP in 1938 and his membership was dated back to 1 May 1937. He was awarded the Golden Party Badge for service to the Party.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant Altstoetter is not guilty under Counts two and three of the indictment.
The question which remains to be determined as to the defendant Altstoetter is whether, knowing of its criminal activities as defined by the London Charter, ho joined or retained membership in the SS, an organization defined as criminal by the International Military Tribunal in the case of Goering, et al.
The evidence in this case as to his connection with the SS is found primarily in ills personnel record which covers a groat many pages, in his correspondence with SS leaders, and his own testimony. From this evidence it appears that the defendant, upon the request of Himmler, joined the SS in May 1937. He stated that Himmler told him he would receive a rank commensurate with his civil status. The record does not indicate what rank in the SS was commensurate with his civil status as a member of the Reich Supremo Court, but on 20 April 1938 ho was promoted to Untersturmfuehrer, which corresponds to a second lieutenant in the army. He was subsequently promoted on 20 April 1939 to Obersturmfuhrer; on 20 April 1940 to Hauptsturmfuehrer. On 12 March 1943, according to a letter to the SS Main Personnel Office, signed by Himmler, he was promoted to Sturmbannfuehrer, effective 25 January 1943 and, by the same letter, to Obersturmbannfuehrer as of 20 April 1943, and it was directed that he be issued a skull and crossbones ring. In June 1943 he wrote to the Chief of the SS Main Office, SS Gruppenfuehrer Berger, thanking him for this ring bestowed by the Reichsfuehrer SS. In this letter he wrote:
"Both this promotion and the honoring of this decoration with the skull and crossbone ring I will take not only s a token of the Reichsfuehrer's most distinct proof of trust in me, but also as an incentive for further active proof of my loyalty and for strictest adherence to my duties in my career as an SS man."
On 11 February 1944 he wrote SS Gruppenfuehrer and Lt. General of the Waffen SS, Professor Dr. Karl Gebhardt, a letter containing the following paragraph:
"One more personal remark: You kindly promoted me SS Oberfuehrer. It is not that far yet. At least I did not get to know it until now. I merely tell you this because I do not want to claim anything for me which does not correspond to facts."
By letter dated lb June 1944 he was notified that the Reichsfuehrer SS had promoted him to the rank of Oberfuehrer, effective 21 June 1944.
The defendant stated that he was assigned to the legal staff of the 48th Standarte and later to the legal staff of the SS Main Office. He stated that he had no actual duties. However, part of his service credentials dated 14 March 1939, under the heading of qualifications, signed by Dalski, SS Obersturmbannfuehrer, the following is stated:
"So Untersturmfuehrer Altstoetter is frank, honest, and helpful. His ideology is firstly established on a National Socialist basis. A. was a loader of the staff of the 48th Standarte and there at all times performed his duties in a satisfactory manner."
In a report from Leipzig, dated 10 June 1939, it is stated that he was awarded the "badge of honor for legal service in silver", effective 19 April 1938, signed Sachse, SS Untersturmfuehrer and Adjutant.
The defendant was evidently highly regarded by Himmler who, on 18 September 1942, at a meeting with Thierack and Rothenberger, referred to him as a reliable SS Obersturmfuehrer.
It also appears that his appointment to the Ministry of Justice was at the suggestion of Himmler and that the defendant's relationship with Himmler was one which Thierack fostered for purposes of his own.
At the instance of Thierack, he visited Himmler at his headquarters and was present at a speech given by Himmler at Kochem, where he attended a dinner for twelve people, including SS Standartenfuehrer Rudolf Brandt and SS Obergruppenfuehrer Pohl.
He visited Berger, a high SS official, at Berger's request. He carried on considerable correspondence with high officials in the SS, including Himmler, SS Gruppenfuehrer Professor Dr. Gebhardt, SS Gruppenfuehrer Berger, and Kaltenbrunner, Chief of the Security Police and SD.
On 25 May 1940 Altstoetter wrote to the Reichsfuehrer SS as follows:
"If I can contribute my small part towards helping our Fuehrer to accomplish his great task for the benefit of our nation, this causes me particular joy and satisfaction, especially in my capacity as SS officer."
According to a letter to Gebhardt, Himmler had instructed the SS leaders to request Altstoetter's advice in certain matters.
On 6 June he wrote Gebhardt, congratulating him upon a recent award. In this letter he states:
"I am especially glad about your distinction, especially because I do not see only in it a recognition of your great war service as a physician and surgeon but also as a research scientist and organizer and which is attributed to our old and trusty friend."
The evidence in this Case clearly establishes that the defendant joined and retained his membership in the SS on a voluntary basis. In fact it appears that he took considerable interest in his SS rank and honors. The remaining fact to be determined is whether he had knowledge of the criminal activities of the SS as defined in the London Charter. In this connection we quote certain extracts from the Judgment of the International Military Tribunal in the case of Goering, et al, as to the SS:
"Criminal activities: SS units were active participants in the steps leading up to aggressive war. The Verfuegungstruppe was used in the occupation of the Sudetenland, of Bohemia and Moravia, and in Memel. The Henlein Free Corps was under the jurisdiction of the Reichsfuehrer SS for operations in the Sudetenland in 1938, and the Volksdeutsche Mittelstelle financed Fifth Column activities there.
"The SS was even a more general participant in the commission of war crimes and crimes against humanity. Through its control over the organization of the notice, particularly the Security Police and SD, the SS was involved in all the crimes which have been outlined in the section of this Judgment dealing with the Gestapo and SD. * * * The Racce and Settlement Office of the SS, together with the Volksdeutsche Mittolstelle were active in carrying out schemes for Germanization of occupied territories according to the radial principles of the Nazi Party and were involved in the deportation of Jews and other foreign nationals. Units of the Waffen SS and Einsatzgruppen operating directly under the SS Main Office were used to carry out these plans.
These units were also involved in the widespread murder and illtreatment of the civilian population of occupied territories. * * * "From 1934 onwards the SS was responsible for the guarding and administration of concentration camps.
The evidence leaves no doubt that the consistently brutal treatment of the inmates of concentration camps was carried out as a result of the general policy of the SS, which was that the inmates were racial inferiors to be treated only with contempt. There is evidence that where manpower considerartions permitted, Himmler wanted to rotate guard battalions so that all members of the SS would he instructed as to the proper attitude to take to inferior races. After 1942 when the concentration camps were placed under the control of the WVHA they were used as a source of slave labor. An agreement made with the Ministry of Justice on 18 September 1942 provided that anti-social elements who had finished prison sentences were to be delivered to the SS to be worked to death. * * * "The SS played a particularly significant rule in the persecution of the Jews.
The SS was directly involved in the demonstrations of 10 November 1938. The evacuation of the Jews from occupied territories was carried out under the directions of the SS with the assistance of SS police units. The extermination of the Jews was carried out under the direction of the SS Central Organizations. It was actually put into effect by SS formations. * * * "It is impossible to single out any one portion of the SS which was not involved in these criminal activities.
The Allgemeine SS was an active participant in the persecution of the Jews and was used as a source of concentration camp guards. * * * "The Tribunal finds that knowledge of those criminal activities was sufficiently general to justify declaring that the SS was a criminal organization to the extent hereinafter described.
It does appear that an attempt was made to keep secret some phases of its activities, but its criminal programs were so widespread, and involved slaughter on such a gigantic scale, that its criminal activities must have been widely known.
It must be recognized, moreover, that the criminal activities of the SS followed quite logically from the principles on which it was organized. Every effort had been made to make the SS a highly disciplined organization composed of the elite of National Socialism. Himmler had stated that there were people in Germany "who become sick when they see these black coats' and that he did not expect that 'they should be loved by too many'. * * * Himmler in a series of speeches made in 1943, indicated his pride in the ability of the SS to carry out these criminal acts. He encouraged his men to be 'tough and ruthless'; ho spoke of shooting 'thousands of leading Poles', and thanked then for their cooperation and lack of squeamishness at the sight of hundreds and thousands of corpses of their victims. He extolled ruthlessness in exterminating the Jewish race and later described this process as 'delousing'. These speeches show that the general attitude prevailing in the SS was consistent with these criminal acts. * * * "In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS, including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf Verbaende, and the members of any of the different police forces who were members of the SS.
* * * "The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph who become or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter * * *."In this regard tie Tribunal is of the opinion that the activities of the SS and the crimes which it committed as pointed out by the Judgment of the International Military Tribunal above quoted are of so wide a scope that no person of the defendants intelligence, and one who had achieved the rank of Oberfuehrer in the SS, could have been unaware of its illegal activities, particularly a member of the organization from 1937 until the surrender.
According to his own statement, he joined the SS with misgivings, not only on religious grounds but also because of practices of the police as to protective custody in concentration camps.
Alstoetter not only had contacts with the high-ranking officials of the SS, as above stated, but was himself a high official in the Ministry of Justice stationed in Berlin from June 1943 until the surrender. He attended conferences of the department chiefs in the Ministry of Justice and was necessarily associated with the officials of the Ministry, including those in charge of penal matters.
The record in this case shows as part of the defense of many of those on trial here that they claim to have constantly resisted the encroachment of the police under Himmler and the illegal acts of the police.
Documentary evidence shows that the defendant knew of the evacuation of Jews in Austria and had correspondence with the Chief of the Security Police and. Security Service regarding witnesses for the Hereditary Biological Courts. This correspondence states:
"If the Residents' Registration Office or another police office gives the information that a Jew has been deported, all other inquiries as to his place of abode as well as applications for his admission of hearing or examination are superfluous. On the contrary, it has to be assumed that the Jew is not attainable for the taking of evidence."
It also quotes this significant paragraph:
"If in an individual case it is to the interest of the public to make an exception and to render possible the taking of evidence by special provision of persons to accompany and means of transportation for the Jew, a report has to be submitted to me in which the importance of the case is explained. In all cases offices must refrain from direct application to the offices of the police, especially also to the Central Office for the Regulation of the Jewish Problem in Bohemia and Moravia at Prague, for information on the place of abode of deported Jews and their admission, hearing, or examination."
He was a. member of the SS at the time of the pogroms in November 1938, "Crystal Weak", in which the IMT found the SS to have had an important part. Surely whether or not he took a part in such activities or approved of them, he must have known of that part which was played by an organization of which he was an officer. As a lawyer he knew that in October of 1940 the SS was placed beyond reach of the law. As a lawyer he certainly knew that by the 13th Amendment to the Citizenship Law the Jews were turned over to the police and so finally deprived of the scanty legal protection they had theretofore had. He also know, for it was part of the same law, of the sinister provisions for the confiscation of property upon death of the Jewish owners, by the police.
Notwithstanding these facts, he maintained his friendly relations with the leaders of the SS, including Himmler, Kaltenbrunner, Gebhardt, and Berger. He refers to Himmler, one of the most sinister figures in the Third Reich, as his "old and trusty friend." He accepted and retained his membership in the SS, perhaps the major instrument of Himmler's power. Conceding that the defendant did not know of the ultimate mass murders in the concentration camps and by the Einsatzgruppen he know the policies of the SS and, in pant, its crimes. Nevertheless he accepted its insignia, its rank, its honors, and its contacts with the high figures of the Nazi regime. These were of no small significance in Nazi Germany. For that price he gave his name as a soldier and a jurist of note and so helped to cloak the shameful deeds of that organization from the eyes of the German people.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant Altstoetter is guilty under Count 4 of the Indictment.
JUDGE BRAND: Judge Brand continuing:
This Tribunal was held that it has no jurisdiction to try any defendant for the crime of conspiracy as a separate substantive offense, but we recognize that there are allegations in Count One of the Indictment which constitute charges of direct commission of war crimes and crimes against humanity. However, after eliminating the conspiracy charge from Count One, we find that all other alleged criminal acts therein set forth and committed after 1 September 1939 are also charged as crimes in the subsequent counts of the indictment. We therefore find it unnecessary to pass formally upon the remaining charges in Count One. Our pronouncements of guilt or innocence under Count two, three, and four dispose of all issues which have been submitted to us.
Concerning these defendants who have been found guilty, our conclusions are not based solely upon the facts which we have set forth in the separate discussions of the individual defendants. In the course of nine months devoted to the trial and consideration of this case, we have reached conclusions based upon evidence and observation of the defendants which cannot fully be documented within the limitations of time and space allotted to us. As we have said, the defendants are not charged with specific overt acts against named victims: They arc charged with criminal participation of governmentally organized atrocities and persecutions unmatched in the annals of history. Our judgments are based upon a consideration of all of the evidence which tends to throw light upon the part which these defendants played in the entire tragic drama. We shall, in pronouncing sentence, give duo consideration to circumstances of mitigation and to the proven character and motives of the respective defendants.
The official text of this Opinion will be filed with the Secretary General.
10932a CORRECTED COPY
BY JUDGE BLAIR: Judge Blair continuing. I wish to file a dissenting opinion with regard to one aspect of the source of authority of Control Council Law 10.
With the balance and all the remainder of the Judgment and all of the sentences pronounced upon each defendant; I whole-heartedly concur. I also extend my concurring opinion to include the belief that Count I of the Indictment on Conspiracy should be likewise applied to all defendants who have been convicted.
OPINION OF M.B. BLAIR, JUDGE OF MILITARY TRIBUNAL III I concur in the final judgment and verdict filed herein, which I have signed.
A difference of view has arisen, however, with respect to certain findings and conclusions made in the judgment under the title "Source of Authority of Control Council Law No. 10". Under this title a lengthy and able discussion is made in the judgment concerning the effect and meaning of the term "unconditional surrender" of Germany to the Allied powers. From the meaning given to the term of "unconditional surrender" of the armed forces of the Hitler regime and the collapse of his totalitarian government in Germany, the view is expressed that a distinction arises between measures taken by the Allied powers prior to the destruction of the German Government and those taken afterwards; and that only the former may be tested by The Hague Regulations because they relate only to a belligerent occupation. To support this view, quotations are made from articles expressing views of certain text writers, which articles are published in the American Journal of International Law. The Judgment then adopts the view expressed in the quoted texts, which is admittedly contrary to the views of the equally scholarly writers whose articles are also cited.
The foregoing decision is made to depend upon a determination of the present character of status of the occupation of Germany by the Allied Powers; that is, whether or not it is a belligerent occupation. This interesting but academic discussion of the question has no possible relation to or connection with the "source of authority of Control Council Law No. 10," which is the question posed in the judgment. No authority or jurisdiction to determine the question of the present status of belligerency as the occupation of Germany has been given this Tribunal. This question of present belligerency of occupation rests solely within the jurisdiction of the military 10933 a occupants and the executives of the nations which the members of the Allied Control Council represent.
The determination by this Tribunal that the present occupation of Germany by the Allied powers is not belligerent may possibly involve serious complications with respect to matters solely within the jurisdiction of the military and executive departments of the governments of the Allied powers.
If, however, any possible questions arc here presented for determination with respect to (1) the character of the present status of occupation of Germany: and (2) the present status of belligerency, such questions can only relate to the rights of the victorious belligerent to exercise control over Germany. Such matters as regards the American Zone are controlled by both the written and unwritten laws, rules, and customs of warfare and by the rights and obligations of a victorious occupant under international law. The determination of these matters has not been entrusted to this Tribunal. This Tribunal has not been given any jurisdiction to exercise any sovereign power of Germany; nor has it been given any jurisdiction to exercise any sovereign power of Germany; nor has it been given any jurisdiction to determine that because of the unconditional surrender Germany's sovereignty was thereby transferred to the victorious Allied powers. There matters are controlled in the American Zone by the Basic. Field Manual on Rules of Land Warfare issued (1940) by the Judge Advocate General of the United States Army.
As concerns questions of transfer of sovereignty of a defeated belligerent to the victorious belligerent, the foregoing rules of land warfare provide:
"373.--Does not transfer sovereignty. Being an incident of war, military occupation confers upon the invading force the right to exercise control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity for maintaining law and order, indispensable to both the inhabitants and to the occupying force.
"374.--Distinguished from invasion. The state of invasion corresponds with the period of resistance. Invasion is not 19033 b necessarily occupation, although it precedes it and may frequently coincide with it.
An invader may push rapidly through a large portion of enemy country without establishing that effective control which is essential to the status of occupation. He may send small raiding parties or flying columns, reconnoitering detachments, etc., into or through a district where they may be temporarily located and exercise control, yet when they pass on it cannot be said that such district is under his military occupation.
"275.--Distinguished from subjugation or conquest. Military occupation in a foreign war, being based upon the fact of possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. The occupation is essentially provisional.
" On the other hand, subjugation or conquest implies a transfer of sovereignty. Ordinarily, however, such transfer is effected by a treaty of peace. When sovereignty passes, military occupation, as such, must of course cease; although the territory may, and usually does for a period at least, continue to be governed through military agencies which have such powers as the President or Congress may prescribe.
And as concerns the administration of occupied territory, the same rules of land warfare require:
"285.--The laws in force. The principal object of the occupant is to provide for the security of the invading army and to contribute to its support and efficiency and the success of its operations. In restoring public order and safety he will continue in force the ordinary civil and criminal laws of the occupied territory which do not conflict with this object. These laws will be administered by the local officials as far as practicable. All crimes not of a military nature and which do not affect the safety of the invading army are left to the jurisdiction of the local courts.
"286.--Power to suspend and promulgate laws. The military occupant may suspend existing laws and promulate new ones when the exigencies of the military service demand such action.
Manifestly this Tribunal, created for the sole purpose of trying and punishing war criminals in the broadest sense of that term as used in Control Council Law No. 10, has not by such law been given any jurisdiction to determine matters relating to the far-reaching power or authority which the foregoing rules authorize a military occupant to exercise provisionally. In consequence, the lengthy discussion of the far-reaching power or authority which the Allied powers are now exercising in Germany has no material relation to any question before us for determination, and particularly the question of the "source of the authority of Control Council Law 19033 c No. 10". Certainly this Tribunal has no jurisdiction to determine whether or not the military or executive authorities have exceeded their authority or whether or not they are exercising in fact the sovereign authority of Germany, or whether by her unconditional surrender Germany has lost all sovereignty.
The exercise of such powers has to do with provisional matters of occupation and operates presently and in future. Our jurisdiction extends to the trial of war criminals for crimes committed during the war and before the unconditional surrender of Germany. This jurisdiction is determined by entirely different laws.
Under the foregoing rules of military operation there is no rule which would, because of the unconditional surrender of the German armed forces, transfer the sovereignty of Germany to the Allied occupants, or to either of them, in their respective zones of occupation. It may here be pointed out that the report of 1919 by the Commission of Responsibility of the Authors of War and Enforcement of Penalties lists among other war crimes in violation of international law or of the laws and customs of land warfare, "(10) the usurpation of sovereignty during military occupation". This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant. As concerns this Military Tribunals in the American Zone of Occupation, the problem is dealt with and concluded by the above-quoted rules (285-286), relating to administration of occupied territory.
No attempt has been made by the Allied powers, or either of them, to exercise the sovereign authority of Germany, except in the limited sense provided for by the foregoing rules of land warfare. On 30 January 1946 the Allied Control Council enacted Law No. 11 which repealed most of the enactments of the Nazi regime and continued in force in all of Germany the great body of criminal law contained in 19033 d the German Criminal Code of 1871 with amendments thereto.
This is in accord with the provisions of the above-quoted Rule 285. Thus in the American Zone there has been continued in force the ordinary civil and criminal laws of the German States, each of which has been recognized as a sovereign power. These laws are being administered by German local and State officials as far as can practicably be done with the avowed intention of the Allied powers, and each of them, to surrender all powers now exercised as a military occupant, particularly when the all-Nazi militaristic influence in public, private, and cultured life of Germany has been destroyed, and when Nazi war criminals have been punished as they justly deserve to be punished.
Furthermore, as concerns the American Zone of Occupation, the punishment of war leaders or criminals is being and will be carried out by four separate procedures:
(1) Major German war leaders or criminals are tried by this and similar military tribunals set up under Control Council Law 10933 e No. 10 and Military Government Ordinance No. 7, limited to the crimes or offenses therein defined or recognized.