We propose to read into the record as slowly as possible for the purpose of affording that which we can possibly afford in the way of a German translation. Now if we are wrong it's because I think the rule isn't adequate. I believe we are complying with the word and the spirit of the rule, with these reservations of course: that 24 hours after this is read, if that 24-hour ruling were to mean anything more than this, defense counsel may say, or the court may say, that the subject matter which we claim is under the judicial notice rule does not come within the category prescribed. If that happens, then no harm can be done by the Court in making an order that it shall be stricken from the record. I know nothing else to say. I certainly don't want to deny this, but if it was meant to have a translation of this, I believe that the rule would be more explicit.
THE PRESIDENT: There seems to be no question that these document's come withing the rule. The only question is if there is any obligation owing to defense counsel concerning the documents, and that of course is governed by Rule 20. We better hear from It. Uiberall as to how competent he feels to correctly translate this into the German language if it's read slowly.
LIEUTENANT UIBERALL: I believe, Your Honor, that if we get the English copy, we will be able to translate it into German. However, since these are official documents, I am sure there must be official translations. If, therefore, we deviate in individual terms from the official translation, we beg to be excused.
MR. LA FOLLETTE: We do have English copies of these excerpts which we intend to real, but we know nothing about official translations. That we never heard of.
THE PRESIDENT: The translator feels that if he has an English copy before him, he will be able to give you an accurate technical translation. That is my understanding of his statement. We dislike to establish a precedent here that may haunt other Tribunal, so we want to stick pretty close to the rule.
DR. SCHILF: May I make one further remark on that subject? As far as I have understood the prosecution, they wish to interpret the rulings which have been quoted to the effect that in the case of all documents which are only submitted for judicial notice to the court, they are not under an obligation to furnish any translation at all. I believe that is not the way in which the rulings can be interpreted for naturally the defense is curtailed, if in the case of all documents which are only submitted for judicial notice, they are dependent on the original text. That might lead to a state of affairs wherein original text in the Russian or Spanish language would be submitted and which too would have to be translated for the aid of the Court, if the Court itself did not master the two languages concerned. For that reason, I should like to say now that in my conviction, it is not in accordance with the proper interpretation of that ruling that a translation of these documents to be made available to the defense. Possibly, the discussion of this question might become acute and therefore I should like to ask now that the translation be handed to us before, so that the doubts of the translating department as to the need of an official translation of official documents can be abolished.
THE PRESIDENT: Well, it's hardly correct to say, Dr. Schilf, that yon will not be furnished with the translation. That will go into the transcript of which you will have a copy. Is that correct?
MR. WOOLEYHAN: That is correct.
THE PRESIDENT: You will hear the translation as it is being read over the microphone. You will have a copy later and you may have an English copy. Is that correct?
MR. LaFQLLETTE: The English copy essentially will also be the transcript because it will be read in English.
THE PRESIDENT: I was thinking of an extra copy for their use. Could that be available?
MR. LaFOLLETTE: In almost every instance they are available; certainly in this case they will be. We intend to use some state reports of allied powers. They are large, but we only intend to ask the Court to receive not more than five or six pages out of those reports, so that we will undertake to furnish the extra English copies in addition to what comes out in the transcript.
I think that is all we can do.
JUDGE BRAND: That procedure will then enable the defense counsel, who would then be in possession of an English copy and also of the German translation which will be reproduced in the transcript, to then have full opportunity to check the accuracy of the German transcript.
MR. LaFOLLETTE: That is correct, sir; and of course since this is judicial notice and if it is qualified as not subject to any objection other than language objections, that should satisfy all requirements of fairness, and also indicates why the rule does not require, I think, a preliminary translation.
THE PRESIDENT: Entirely aside from the rules, it's of course the wish of the Tribunal, as I am sure it is the wish of the prosecution, that every fair consideration be given to these defendants, but it does seem as though what has just been stated by Judge Brand will be perfectly fair.
DR. SCHILF: Your Honor, but we would like to make one request. May we have an English copy before us while the translation comes over the system? If, therefore several copies -- three copies I think will be enough -- could be made available to us at the moment when the German translation comes over the microphone -- I am now talking of three copies in the German language -- not later; but I should like to ask that we should be given these copies at the time when the translation is being made over the system.
JUDGE BRAND: You said in the German language?
DR. SCHILF: A copy in the English language. We would like a copy of the English text at the time the German translation is being read over the system. Three copies will be enough for us.
MR. WOOLEYHAN: By the time we get these three English copies available to defense counsel and distributed, they well have the German and English transcripts. The time element is immaterial on that point.
THE PRESIDENT: I understand that you do not have the copies available at the moment?
MR. WOOLEYHAN: That is the point, Your Honor. If we undertake to supply them, they will have to be translated.
THE PRESIDENT: When we adjourn, which we will in a few moments-I am sure that any consideration which can be extended will be so extended.
THE MARSHAL: The Tribunal is in recess until 0930 hours tomorrow morning.
(The Tribunal adjourned until 17 April 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the Matter of the United States of American, against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 17 April 1947, 0945. Justice Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: The Marshall will ascertain whether the defendants are all present.
THE MARSHAL: May it please your Honors, all the defendants are present with the exception of defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Those two defendants have been excused from regular attendance. The proper notation will be made.
DR. SCHILF: Dr. Schilf for the defendants Klemm and Mettengenberg:
May it please the Court, the gentlemen of the prosecution and the defendants whom I represent, yesterday after the end of the session again discussed the matter of the translation of the documents which are to be read today; documents which are to be submitted to the Court only for judicial notice. Since it has been established that only those passages will be read for judicial notice which will be entered in the transcript I have no further objections if that procedure is adopted such as the prosecution suggested. That is to say, that is without making the translation available to us, the document will be read in the English text and we will have the opportunity to examine the German translation from the transcript. That means that all difficulties have been removed which apparently arrived yesterday.
THE PRESIDENT: I am very glad to have the matter so easily adjusted and I may say to you, Dr. Schilf, if you need time to digest this you will have time, even after the reading and after the transcript, to bring the matter up again.
MR WOOLEYHAN: May it please the Court, the first official Government document from which the prosecution reads this morning is a report by the Office of Strategic Services, Research Analysis Branch, Washington, 13 August 1945 entitled "Nazi Plans for Dominating Germany and Europe -- Domestic Crimes". This is a draft for the War Crimes Staff. We Will read and submit for the Tribunal's judicial notice pages 49 through 55, inclusive. The following compilation compares the crimes punishable "by death under the pre-Nazi regime to those for which the death penalty was imposed under the Nazi law. In contrast to the three crimes punishable by death before 1933 there appear no less than 46 under Nazi laws.
"A. Crimes punishable by the death penalty under pre-Nazi laws:
1. Murder;
2. Homicide through the use of explosives;
3. Slave raiding involving the loss of human life.
B. Crimes punishable by the death penalty under Nazi law;
1. High treason;
2. High treason by means of coercion:
3. Conspiracy to commit high treason;
4. Certain acts preparatory to committing high treason;
5. Undertaking to kill the Reich President;
6. Armed riots;
7. Deprivation of liberty for the purpose of taking hostages in political strife;
8. Causing the death of a person by violating certain executive security regulations;
9. Terrorizing the populace by committing offenses while wearing a Nazi uniform;
10. Posing as a member of the police or of the armed forces while committing a crime;
11. Causing danger to life or property by the use of explosives;
12. Arson or explosion of a public building in order to intimidate the populace;13.
Cause a public danger by use of poison or by inundation, floods;
14. Spreading news from foreign broadcasts;
15. Undertaking to betray State secrets;
16. Undertaking to obtain State secrets with the intent to betray;
17. Disloyal conduct of diplomatic affairs;
18. Serving with enemy forces during the war;
19. Aiding and abetting the enemy;
20. Causing a grave danger to German reputation by untrue statements;
21. Sabotage;
22. Illegal guerilla, warfare;
23. Undermining military strength by incitement to disobedience or desertion or by self-mutilation and certain other means.
24. Any offense intentionally or negligently involving a serious danger or disadvantage to the war effort or to the security of the Reich whenever the sound instincts of the people indicate that the regular penalty would not be sufficient revenge for the act committed;
25. Persistent acts of injuring the vitality of the German people through abortion;
26. Serious cases of failure to report certain impending capital crimes;
27. Sabotage of military equipment, defense installations or pertinent raw materials;
28. Sabotage of vital supply plants;
29. The offense committed by a German national of transferring to or holding in another country any private property to the detriment of the German economy;
30. Setting read blocks with intent to rob;
31. Kidnapping of children with the intent of extortion;
32. Intentionally endangering rail or air transportation;
33. Destruction, concealment or retention of necessary raw material or products or concealment of falsification of pertinent coupons and certificates;34.
Misappropriation of objects gathered through the public metal collection;
35. Misappropriation of objects gathered in the collection-of winter garments;
36. Making untrue statements about the demand or amount of labor or raw materials, products, machines and tools in the armament industry;
"37. Looting in evacuated districts.
"38. Any offense against life, limb or property committed while taking advantage of air raid precautions.
"39. Edangering national resistance by committing arson or other crimes which create dangers to the public.
"40. Any criminal offense committed with intention of taking advantage of the exceptional war conditions, provided the sound instincts of the people require the death penalty in view of the viciousness of the offense.
"41. Any use of arms or similar dangerous instruments while committing rape, robbery, or any other act of serious violence, or threatening a person's life or limb with such weapons.
"42. A third offense committed by a person regarded as a dangerous, habitual criminal, provided the death of the offender is necessary for the protection of the national community or for the sake of just retribution.
"43. Any further sex offense committed by a person previously sentenced for indecent assault by duress, or against children, or for rape.
"44. Violation, either intentionally or by negligence, of orders issued by certain executive agencies concerning the organization of total war.
"45. Violation of the law against Violent juvenile criminals."
May I interpolate for a small correction of the record? The beginning paragraph of this report which I read gave the figure "46". That should really read "45".
The Prosecution offers as Exhibit No. 249, for judicial notice, the report from which the excerpt was just read. One moment. That is Exhibit No. 248, and this is it.
THE PRESIDENT: The document will be received.
MR. WOLLEYHAN: Thank you, Your Honor.
The next official Government report is entitled, "Army Service Forces Manual, M 356-3." Title: "Civil Affairs Handbook, Germany.
"Section 3. Legal affairs.
Dated: 29 February 1944.
"This study on legal affairs in Germany was prepared by the Research and analysis Branch of the Office of Strategic Service."
The Prosecution wishes to refer only to pages 65 and 6 of this report, beginning on page 65:
"An article was published by Georg Thierack, Minister of Justice, on 23 August 1944, in which are given the figures for the growth of the number of death sentences during the 1940-1943 period. These figures seem to include death sentences handed sown by all courts coming under the jurisdiction of the Ministry of Justice, including the People's Court but not the Military and SS Courts."
There follows a tabulation headed "Year and Number of Death Sentences":
"1940 - 926 death sentences.
"1941 - 1,292 death sentences.
"1942 - 3,660 death sentences.
"1943 - 5,336 death sentences.
"A break-down of the death sentences handed down in 1943 is drawn in the following table."
There follows a tabulation headed "Crimes and Number Sentenced," the number sentenced referring to the death sentence.
"High treason, 1,747."
Footnote: "These figures were published in the Reich Ministry of Propaganda publication, Delage, 23 August 1944, and are taken from News Digest, 21 April 1944, number 1740.
"Crimes against the broadcasting laws, 11.
"Undermining, the people's will to resist, 108.
"Crimes against the occupying power, 282.
"Sabotage and insubordination by foreign workers, 138.
"Retention of arms by citizens of the Protectorate, 39.
"Retention of arms by Poles, 2.
"Sabotage in the Protectorate, 66.
"Murder, attempted murder, and violent crimes, 250.
"Refusal to help air raid victims, 3.
"Arson, 35.
"Dangerous habitual criminals, theft, fraud, taking advantage of the blackout and wartime conditions, 938.
"Thefts from the railways, 122.
"Theft of field post parcels, 136.
"Abortion, 1 "Looting, in bomb-damaged houses, 182.
"Crimes against the war economy, 236.
"Sexual crimes, 114.
"Embezzlement of National Socialist charity funds intended for bomb victims, 2.
"Defrauding, soldiers on from service, 2.
"Desertion, 19.
"Crimes against the decree for the protection of the Winterhilfswerk, 3.
"Race pollution, 4.
"Other crimes, 6.
"Death sentences from the Occupied Eastern Territories, 894.
"Total, 5,336.
"Of the 5,336 death sentences reported for 1943, 1,747 concerned political offenses of German citizens; 526 political offenses of foreign nationals."
The Prosecution offers as Exhibit No. 249, for judicial notice by this Tribunal, the report from which this excerpt was just read.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: May the Court please, in shuffling these dossiers I have made a clerical error, which I would like to correct. The second excerpt which I just read was from pages 65 and 66 of the exhibit which was first put into evidence as number 248.
JUDGE BRAND: You have read nothing from 249 yet?
MR. WOLLEYHAN: No, Your Honor.
From the exhibit which has already been described as 249, I would like to read only a brief excerpt from page 54: "The following tables snow the increase in the severity of punishment under the Third Reich."
Title of table: "Distribution of Punishments in Germany per one hundred thousand convictions."
There follows a tabulation entitled "Year", "Death", "Life", and five other columns which I will not read.
I would suggest, for the reporter, that this particular table be put into the record in tabular form; three columns, "Year", "Death, and "Life". "Life", of course, refers to life imprisonment.
YEAR DEATH LIFE
1930 7.2 0.8 1931 8.7 1.4 1932 9.2 1.4 1933 16.
0 3.9 1934 25.
5 3.9 1935 20.
6 3.2 1936 17.
0 2.0 1937 12.
5 2.1 1938 20.
3 1.8 1939 45.
7 3.7 1940 110.
0 0 We again offer as Exhibit 249 the report from which I just read.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: I next read from an official State Department publication entitled "Digest of International Law" by Hackworth, 1943; Volume 5, Chapter 18, Pages 471-472. This excerpt is entitled "State Responsibility and International Claims -- General Criteria of Responsibility."
"The admission of aliens into a state immediately calls into existence certain correlative rights and duties. The alien has a right to the protection of the local law. He owes a duty to observe that law and assumes a relationship towards the state of his residence sometimes referred to as 'temporary allegiance.' The state has the right to expect that the alien shall observe its laws and that his conduct shall not be incompatible with the good order of the state and of the community in which he resides or sojourns. The state has the obligation to give him that degree of protection for his person and property which he and his state have the right to expect under local law, under international law, and under treaties and conventions between his state and the state of residence. Failure of the alien or of the state to observe these requirements may give rise to responsibility in varying degrees, the alien being amenable to the local law or subject to expulsion from the state, or both, and the state being responsible to the alien or to the state of which he is a national.
"We are here concerned primarily with responsibility of the state. State responsibility may arise directly or indirectly. It does not arise merely because an alien has been injured or has suffered loss within the state's territory. If the alien has suffered an injury at the hands of a private person, his remedy usually is against that person, and state responsibility does not arise in the absence of a dereliction of duty on the part of the state itself in connection with the injury, as for example by failure to afford a remedy or to apply an existing remedy.
When local remedies are available, the alien is ordinarily not entitled to the interposition of his government until he has exhausted those remedies and has been denied justice. This presupposes the existence in the state of orderly judicial and administrative processes.
"In theory, an unredressed injury to an alien constitutes an injury to his state, giving rise to international responsibility. If the alien receives the benefits of the same laws, protection, and means of redress for injuries which the state accords to its own nationals, there is no justifiable ground for complaint unless it can be shown that the system of law or its administration falls below the standard generally recognized as essential by the community of nations. The mere fact that the law and procedure of the state in which the alien resides differ from those of the country of which he is a national does not of itself afford justification for complaint.
"Elihu Root said, 'Each country is bound to give to the nationals of another country in its territory the benefit of the same laws, the same administration, the same protection, and the same redress for injury which it gives to its own citizens, and neither more nor less, provided the protection which the country gives to its own citizens conforms to the established standard of civilization. There is a standard of justice very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The conduction upon which any country is entitled to measure the justice due from it to an alien by the justice which it accords to its own citizens is that its system of law and administration shall conform to this general standard.
If any country's system of law and administration does not conform to that standard, although the people of the country may be content or compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens. The foreigner is entitled to have the protection and redress which the citizen is entitled to have, and the fact that the citizen may not have insisted upon his rights and may be content with lax administration which fails to secure them to him furnishes no reason why the foreigner should not insist upon them and no excuse for denying them to him."
That excerpt from ELihu Root was taken from Pages 20, 21, and 22 of the proceedings of the American Society of International Law, 1910. We offer for the Tribunal's judicial notice as Exhibit No. 250 the excerpt from Hackworth which has just been read. Dr. Schilf, there is an extra copy in that dossier. Why don't you take it if you want it?
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: The last official government report which we seek to bring to the notice of the Tribunal at this time is a report prepared by the Special Legal Unit of Germany and Austria under the Supreme Headquarters of the Allied Expeditionary Forces, G-5, dated 23 February, 1945.
THE PRESIDENT: What other country besides Austria did you say?
MR. WOOLEYHAN: Germany and Austria. Entitled "Nazi Changes in the Field of Criminal Law." Reading from Pages 1 and 2:
"This report discusses the numerous changes in German criminal law made by the Nazis since they assumed power in January, 1933. Military criminal law is not included. Each change is discussed individually in order to call attention to the provisions of Nazi criminal law which may be considered objectionable. The suggestions made with regard to the elimination of obnoxious legislation are put forward for consideration by those concerned without expressing any opinion on the question whether any particular reform is properly a task of military government or should be dealt with at a later stage."
On page 3, this report discusses the law of conviction by analogy which is set forth on Page 13 of Document Book 2. With respect to that law, this report has the following suggestion to make. This principle places the accused in a position dominated no longer by the law itself, but by the subjective discretion of the judge. Actually, it places German criminal justice outside the law by disregarding the fundamental civil and human rights expressed in the maxim, "nulla poena sine lege." This section has been dealt with by Article IV, Number 7 of Law Number 1 of Military Government for Germany. This article reads, "No charge shall be preferred, no sentence imposed or punishment inflicted for an act unless such act is expressly made punishable by law in force at the time of its commission. Punishment for offenses determined by analogy or in accordance with the alleged sound instincts of the people is prohibited."
On Page 4, this report discusses the laws found on Page 30 of the Document Book 2, namely, the extension of German criminal jurisdiction to foreigners not only in Germany, but anywhere abroad. With respect to that law, the report has this to say," The provision was dictated by the Nazi tendency to claim influence over all German nationals wherever they live. The idea of allegiance to German law of German subjects living under foreign jurisdiction is incompatable with loyalty they owe to the State of their abode. Only as an alternative to extradition, a German Court thus far deputizing for the foreign jurisdiction may try a prisoner for acts committed abroad if these are punishable under the law of the country where they have been committed. The original wording of Section III of the Criminal Code should therefore be restored."
This report next refers to the statute found on Page 37 in Document Book 2, namely, the statute inflicting the death penalty for habitual criminals and sex offenders.
"A dangerous habitual criminal may be punished without regard to the penalty provided for the particular offense he has committed under this statute."
Actually, these terms are chosen so loosely that any repeated offender may be declared to be a dangerous habitual criminal. This innovation is objectionable as a violation of the principle, "nulla poena, sine lete," and because it permits punishment up to death, not in accordance with the gravity of the offense, but in accordance with extraneous factors depending solely upon the discretion of the Court.
With regard to sex offenders, the subjective and loosely worded terms of this decree make the penal provisions of Sections 176 to 178 of the Penal Code meaningless. The imposition of the death penalty required by the need for "just retribution" introduced factors extraneous to the sober consideration of the circumstances. This law has been deprived of effect by Article IV, Number 8 of Law Number 1 of Military Government for Germany.
THE PRESIDENT: Is that particular decree found in Book 2?
MR. WOOLEYHAN: On Page 37, Your Honor.
THE PRESIDENT: I see. The same page as the other.
MR. WOOLEYHAN: The next statute referred to in this report is found on Page 19 of Book 2, namely, the statute inflicting the death penalty against public enemies. With respect to that public enemy statute, the report has this to say, "The language of the decree is written so loosely and the terms used are so subjective, that practically any offense can be brought under the provisions of the decree. Furthermore, penal servitude for life or death penalty should not be imposed for acts normally punishable with short prison sentences, depending only upon the subjective reasoning of the Court as to whether the 'sound feelings of the people' require it. This decree should be eliminated according to the policy stated in Article IV, Number 8 of the Law Number 1 of Military Government for Germany."
On Page 15 of the report, it refers to the juvenile statute found on Page 61 of Document Book 2. With respect to that entire juvenile law statute, which is by the way, 1943 Reichsgesetzblatt 639, the report has this to say:
"The provisions are the worst instances of excessive penalties based on loose terms leaving the Court a free discretionary decision. These provisions should be eliminated. Page 23 of this report refers to the statute on German blood and honor found on Page 46 of Document Book 2. As regards that statute, the report states:
"This law has been deprived of effect already by Article 1, Number 1-G of Military Government Law Number 1."
Likewise, on Page 23 of this report, they refer to the Reich citizenship law and all of its carrying out ordinances. Two of those carrying out ordinances are found in Document Book 2 at Page 47 and 54. With respect to those, this report states:
"The Reich citizenship law and its carrying out ordinances have been deprived of effect by Article 1, Number 1-J, of Military Government Law Number 1." With respect to the first official document to which we call the attention of the Court, all of the death penalties read off in that tabulation, are repeated in this report. With regard to those tabulated death penalties, this report has this to say:
Article 4) Number 8 of Law Number 1 of Military Government states "The death penalty is abolished except for acts punishable by death under law in force prior to 30 January 1933 or promulgated by or with the consent of Military Government."
With respect to the statutes inflicting the death penalty for undermining German defensive strength found on Page 17 of Document Book 2, and statue inflicting the death penalty for spreading foreign radio news found on Page 18, Document Book 2, this report has the following to say:
"These ordinances should be eliminated since they serve only to the strengthen the German war effort." This suggestion refers to the complete ordinances not only to the sections which provide for the death penalty. The contents of the other sections have also been indicated. They have the same aim of enforcing total war on the German home front. The provision listed under Number 24 is already deprived of effect by Article IV, Number 8 of Law Number 1 of Military Government because it bases the imposition of the death penalty solely on the sound feelings of the people."