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."
With respect to the statute against economic sabotage, found on Page 16, Document Book 2, this report states:
"The main purpose of this law was to introduce the mandatory death penalty for an offense which thereto fore was hardly considered a crime."
With respect to the statute inflicting penalties up to death in excess of regular statutory limits permitted for both voluntary and negligent offenses if the sentiments of the people demanded it, which is found on page 43 of Document Book II, this report states the following by footnoted table: the report indicates that this statute has been completely superseded and abolished by Military Government action.
As Exhibit No. 251 we offer the report from which we have just been reading for judicial notice of the Tribunal.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: The prosecution regrets that it must ask for a recess until 11 o'clock sharp, Your Honor, for the purpose of making sure that we have certain things available for a witness to go on the stand at that time.
THE PRESIDENT: We will recess at this time until 11 o'clock sharp.
MR. WOOLEYHAN: Thank you.
THE MARSHAL: The Tribunal is in recess until 1100 hours.
(A recess was taken.)
THE MARSHAL: All persons in the Court will find seats.
The Tribunal is again in session.
MR. LAFOLLETTE: Your Honors please, I would like to have the witness Eberhard Schwarz brought in.
(The Marshal brought forth the witness.)
JUDGE BLAIR: Will the Witness testify in German?
MR. LAFOLLETTE: Yes, your Honor.
EBERHARD SCHWARZ: A witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat this oath after me: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may sit down.
MR. LAFOLLETTE: First, your Honors, before questioning this witness, I would like to offer NG 414, which I understand Dr. Schilf has examined, as Prosecution's Exhibit 252, and that is in document book 3-L. There is one other document in that book, NG 398. I do not think your Honors will need the book. I am sorry I did not tell you but I want to examine this witness with reference to this document.
THE PRESIDENT: Now, there may be some confusion about this NG 414. This document, I have that marked as Exhibit 246.
MR. LAFOLLETTE: Your Honor will recall that I withdrew that the other day.
THE PRESIDENT: Yes, it has been withdrawn.
MR. LAFOLLETTE:NG 398 contains a list of tho death sentences given at the Special Court, and as I also recall, the criminal sentences of the Oberlandesgerich at Stuttgart. Now, it was not signed in the document book.
DIRECT EXAMINATION BY MR. LAFOLLETTE:
Q Now, Dr. Schwarz, you have before you a photostatic copy of a document which is labeled NG 398; that purports to contain a list of death sentences at the Court of Justice at Stuttgart. What do you know about that list?
A In the summer of 1946, I received from an assistant of the General Prosecutor in Stuttgart -- the present General Prosecutor of Stuttgart, the list which contains all death penalties which had been executed from the year 1942 until the destruction of the court house in Stuttgart, and asked me to check that list with my notes, and if necessary to supplement it. I did that. A supplement was only necessary concerning the dates in a very few cases. The list, that is to say, the notes, beginning from the year 1942, were made in the manner -- that I was on the day before the execution of death sentences -- I went into the prison where I had an opportunity to look into the official notes which were sent to the prosecution for the execution of sentences, and from these official notes I have made the notations for myself. Therefore, I was in a position to check the accuracy of the list -- of that list which was given to me by the General Prosecutor and to confirm it and to make the necessary supplements.
Q Now, the list you received from the Prosecutor's office container more names than those in the photostatic exhibit which you have there before you; is that right?
A It contains more names, and that is because in Stuttgart not only death sentences of the Special Court and Penal Senate of the District Court of Appeals in Stuttgart were executed, but also sentences passed by the courts from other cases, that is, from Baden and Alsace, and other places.
Q Now, the photostatic copy then contains only those names of people who were executed or sentenced for execution which were from the Special Court at Stuttgart and the criminal sentences of Oberlandesgericht Stuttgart; is that correct?
A Yes.
Q Now, do you have also with you a mimeograph copy of this document, NG 398?
A Yes.
Q This morning did you go over that list and mark those cases, in which you are prepared to testify under oath, that the defendant Cuhorst acted as presiding judge?
A Yes.
MR. LA FOLLETTE: I do not know of any other way to do this, your Honors, than to read this. It will take a little time, but it is the only way.
Q No. 13, Leczinski?
A Yes.
Q No. 14, Pitra?
A Yes.
Q No. 15, Strawcwski?
A Yes.
Q No. 16, Majcher, Stanislaw?
A Yes.
Q No. 27, Polleck, Helene?
A Yes.
Q No. 29, Krupa?
A Yes.
Q No. 36, Fritz?
A Yes.
Q No. 37, Neuschwander?
A Yes.
Q Now, I will ask you to turn to the last page of that document that you have, and you will read 113, Wagner. Did you mark that?
A Yes.
Q Did you mark Rueffer, No. 114?
A Yes.
Q No. 115, Jatzeck?
A Yes.
Q Now, will you turn to the photostatic copy and tell the Court whether or not these last three names followed the names, Fritz and Neuschwander on the photostatic exhibit?
Are they the same on the photostat?
A Yes, they are the same.
Q The same on the photostat as they are on the German copy; is that right?
A Yes.
Q I ask you whether or not the dates with reference to cases 113, 114, and 115, which appears in the German copy as 22 October 1944, should be the 22 October 1942?
A They should read 1942, because that was the trial where all the defendants were sentenced on the same day.
Mk. LA FOLLETTE: I call the Court's attention to the fact that in the English document book the year 1942 appears, and in the German book there is a typographical error, the year 1944 appears.
Q Now, then we turn again to the list. Do you find No. 39, Paetzold?
A Yes.
Q No. 41, Ezkstein?
A Yes.
Q No. 42, Winter?
A Yes.
Q No. 43, Milk?
A Yes.
Q No. 45, Margitay?
A Yes.
Q No. 51, Esterle?
A Yes.
Q No. 57, Cehlbach?
A Yes.
Q No. 58, Schmidt?
A Yes.
Q No. 65, Englert?
A Yes.
Q No. 66, Stiegler?
A Yes.
Q No. 72, App?
A Yes.
Q No. 73, Keudelka?
A Yes.
Q No. 77, Kreutle?
A Yes.
Q No. 87, Wolf, Karl?
A Yes.
Q No. 88 Wolf, Wilhelm?
A Yes.
Q And, then, No. 97, Pfaud, Karl?
A Yes.
Q No. 106, Grassman?
A Yes.
Q Now, returning to No. 73, Keudelka, can you assume as a proven fact, that Keudelka and App were tried on the same day, and that the defendant Cuhorst, as the President of the Special Court, presided at the trial of Keudelka and App? I ask you whether or not you are prepared to assume as a fact, that Keudelka was also tried by Cuhorst, and to state why you believe it?
A. Yes, that's so. If the Special Court had proceedings scheduled outside of Stuttgart and the Presiding Judge took place in that trip then it was quite impossible that, say, an efficient judge, could have taken part in the proceedings. He, as presiding Judge of the Special Court, was always Presiding Judge of the proceedings outside of Stuttgart of that Special Court.
MR. LAFOLLETTE: At this time, your Honor, the prosecution offers Exhibit No. 398 as an accurate list of the death sentences given and executed as a result of sentences given by the Special Court and at Stuttgart in Criminal Senates Nos. 1 and 2 of the Oberlandesgericht at Stuttgart. We also offer it as evidence of death sentences given by the defendant Cuhorst or the individuals named by this witness at this time. In other words, I may have other witnesses who will identify names from this list as being cases in which the defendant Cuhorst presided. I think I have established the validity and accuracy of the list; then the Court will remember that previously there has been testimony that the records of these Courts were destroyed at Stuttgart and also evidence, although it isn't material on this point, that the newspaper in Stuttgart published accounts which came with the approval of the prosecutor's office so that the list, I believe, I have established as having full probative value but I offer it for that purpose and as against -from this witness, as against this defendant. I only offer it as against those names which he has just listed.
THE PRESIDENT: Nothing was said about dates.
MR. LAFOLLETTE: If your Honor please, you have the document book. Opposite each number which I have given a name is the date.
I only thought it necessary to identify through this witness.
THE PRESIDENT: You say, we hare the document book. What document book is it?
MR. LAFOLLETTE: If your Honor please, I am sorry. I said at tHe beginning that it is in the Document Book 3-L and I should have brought this book in but this is the only document I wanted to put in and the last one from that book.
THE PRESIDENT: What exhibit number will you attach to this?
MR. LAFOLLETTE: I will attach Exhibit No. 253. It's Exhibit 253.
THE PRESIDENT: It will be received in evidence. I am wondering if there is any question abort the Tribunal actually receiving 252 in evidence?
THE SECRETARY: The Court ruled that it will be received. This large book.
Q. Dr. Schwarz, your name is Eberhard Schwarz and you live now at Stuttgart. Is that correct?
A. Yes.
Q. Now, you have signed an affidavit in this matter?
A. Yes.
Q. Dated 2 November 1946?
A. Yes.
Q. Before Mr. Einstein?
A. Yes.
Q. That is Exhibit -- it's been previously introduced as Exhibit 209, your Honor. I will ask you whether or not you were in any way oppressed, coerced or intimidated to sign that affidavit?