At this time we welcome Judge Justin W. Harding, who has been serving as alternate Judge, and the record will show, as Counsel all know, that he has been present in the courtroom and during all of every session of the Tribunal.
Judge Harding has been a former United States District Judge in Alaska, and we welcome him as a member fully empowered in this Tribunal.
The proper notation will be made with the presence of all defendants except the defendant Engert.
We take notice of the application made by Counsel for the Defendant Engert, owing to his illness; and, it has been thought advisable that at this time a conference of physicians and psychiatrists should be held to examine the defendant Engert and report their findings to the Tribunal. It has also been suggested that it would be suitable to have not only American but German physicians appointed to take part in such a conference.
It is the suggestion of the Tribunal that Counnsel for the Prosecution and for the Defense, confer and suggest to the Tribunal suitable medical and psychiatric experts who will, if approved by the Tribunal, be appointed for the purpose of making this examination.
In the meantime and until further order of the Tribunal, the defendant Engert will remain in exactly the position as to the trial in which he now finds himself. His Counsel will continue to represent him before this tribunal until further order.
Are there any other matters before we hear the opening statement, which I understand is to be made by Counsel, Dr. Kuboschok in behalf of all of the defendants.
Are there any other matters before that time? If not we will hear you.
MR. LA FOLLETTE: If Your Honors please, I only wish to inquire whether the Prosecution any obtain translated, copies of the opening statement as soon as possible. We do not have any at our desk.
Does the Court have English translations?
Have you got any at your disposal?
THE MARSHAL: Only one.
MR. LA FOLLETTE: Well, I will borrow one from the Marshal.
THE PRESIDENT: It appears to be mimeographed, there should be other copies.
MR. LA FOLLETTE: Yes, the have not been furnished as yet.
DR. KUBUSCHOK: May it please the Tribunal, in the following statements I shall briefly describe the manner in which the defense believes, by summarizing the treatment of individual general problems, it will expedite the trial. My following statements are to be interpreted only in that sense.
The Prosecution views the development of Justice in administration and jurisdiction during the period of the National Socialist State. It limits its reflections to this period and preceives in everything the consequent execution of National Socialist totalitarian thought. It believes to be able to reduce all phenomena to this denominator.
It must be the task of the Defense to extend the boundaries of this reflection beyond this period. The Defense will show that no new legal system was created and that no new system of jurisdiction was developed. Thus, the historical development which had been built on, also in the period from 1933 onwards, must be presented in its fundamental traits.
The Defense must also be aware of the difficulties encountered in the treatment of the subject matter before a non-German court. The difference between the Anglo-American legal system and the German law, in accordance with which the acts of the German Defendants are judged, lies not only in the solution of individual legal questions and problems, but is fundamental and systematic. Anglo-American law appears to us vitally progressive by the effect which decisions of the highest Courts carry in setting precedents. German law, on the other hand, is a codified law, much less suitable to development by the administration of justice, but a law which in itself demands observance of the legal standard. The written law in inflexible. New concepts of law cannot succeed in the administration of justice as is the case in the gradual development of the "Common Law." The German -- as well as the Continental -- principle of the codified law permits the incorporation of new legal concepts only through sudden changes of the written law. Thus the supplementary laws of the Penal Code in force in Germany since 1877 show an abrupt change at shorter or longer intervals.
For this reason the positivism of law has played a far more important part in Germany since the end of the nineteenth century than has been the case in legal systems outside of the Continent. Only the written law (statutary law) and not general ideas on morals and rights (law) constituted the directive for administration of law and justice. Also in Germany this principle of absolute codification has, with regard to its expediency, been the object of legislative discussion for some time. Finally, in 1935, it culminated in the amendment of article 2 of the Penal Code and thus a synthesis was found between codified law and the development of law as interpreted by the decision of the judge; and historical reflection on this event will show the inaccuracy of the Prosecution's conclusion that, being instituted during the period of the National Socialist State, it must of need be the product of National Socialist thinking and its corresponding political aim. We shall prove that the fundamental basis for this norm was created by plans for reform drafter long before 1933, and that the necessity of supplying the judge with a means, enabling him to counterbalance the defects of an absolutely codified law to a limited degree by analogous application of a penal regulation had been realized long before that. It was recognized that the multiformity of life, the constant change of its forms with regard to social, political and economic aspects could not be regulated by codified law alone; especially so, because codified law always larged one step behind the case in need of settlement by law. Such cases could not, as is possible in "Common Law", be regulated and decided on by general concepts of law; they merely gave cause for establishing new legal standards. This one example already reveals the necessity of dealing with the existing German legal system and with plans for reform entertained in Germany for decades.
German law will form the basis for all considerations. We will, therefore, also have to deal with Constitutional Law and the technique of legislation.
We shall proceed from the provisions of the Weimar Constitution. We shall observe there the legislative functions of the Reichstag, the Reichsrat (Council of the Reich) and the Reich President. It will be shown that, since Bruening was Reich Chancellor, the weight of legislation shifted in ever increasing measure towards the right of the Reich President to issue emergency decrees.
The turning point was formed by the Enabling Act (Ermaechtigungsgesetz) of 24 March 1933 which represents the basis for all future legislation. The Cabinet was not empowered to pass laws on its own authority and even the right of the Reich President to draft and promulgate laws was abandoned. Thus, under consideration of Article 56 of the Constitution which allocated powers of policy determination to the Reich Chancellor, the right to legislate was practically conferred upon Reich Chancellor HITLER who, in the course of time, made increasingly extensive use of it. The lawful passing of a law and its legal effects will necessarily be the subject of presentation.
Thus we are faced with the legal problem of the binding effect of the Fuehrer order. It will have to be examined whether this Fuehrer order was a literal order in the meaning of the Control Council Law, the effect of which is not to be looked upon as exempting from guilt, or, at the most, as mitigating, or, whether we are not dealing here with a legislative Act, to which this provision of the Control Council Law does not apply.
We shall have to deal with the entire legislative machinery as it was developed at that time. It will be shown that meetings of the cabinet took place even after Hitler's Cabinet had been formed, that they were, however, of an essentially different character already than formerly. Questions were no longer put to the vote. In individual questions of legislation too, Hitler stood on his right as Reich Chancellor to determine directives of policy, in accordance with Article 56 of the Constitution. As Hitler's position grew stronger, especially after, in August 1934, the positions of Reich Chancellor and President of the Reich had been combined in his person, Cabinet meetings served actually only the purpose of issuing Hitler's instructions.
In accordance with instructions members of the Cabinet were to submit Bills that concerned their Departments. In accordance with Hitler's request these Bills were submitted to other participating members of Departments prior to the Cabinet meetings, in order to obtain their opinion; and at this stage only objections with regard to departmental competency of other Ministries were taken into consideration. The Bill, thus having become "ripe for the Cabinet" (kabinettreif) was then passed in the Cabinet meeting without debate. Since the uselessness of the Cabinet meetings thereby became obvious, they were discontinued completely in 1937. Laws were then legislated by means of a so-called circulation procedure (Umlaufsverfahren) in which the individual Ministers were given opportunity to voice their objections. These objections could, however, deal with purely departmental aspects only, whereas objections against a basic political idea founded on one of Hitler's instructions could not be raised or remained ineffective. As we will show, this had, at the same time, the effect of declassifying certain Ministries and resulted in their being subordinated to other Ministries. This started already in 1935. By the secret National Defense law, the OKW, the Minister of Economy as Plenipotentiary General for Economics, and the Minister of the Interior as Plenipotentiary General for the Administration of the Reich, were brought into prominence as legislative bodies and were combined in Board of Three. The other Ministries were subordinated to them and depended on them for instructions. The Ministry of Justice was subordinate to the Plenipotentiary General for the Administration of the Reich and was permitted to present bills only through him. The Ministry of Justice's signature on a law was therefore only of nominal significance; it indicated that the judicial department had been concerned with the contents of the law. We will show that after the outbreak of the war the Ministerial Council for National Defense was added as legislative body to the Board of Three.
Here too, the Ministry of Justice was subordinated to the Plenipotentiary General for the Administration of the Reich, who was a member of the Ministerial Council for National Defense. Bills were drafted in accordance with his instructions. If the initiative for drafting a Bill came from the Ministry of Justice itself the Plenipotentiary Central for the Administration of the Reich had to concur in the matter.
To judge the position of the individual Defendant in the Ministry, a detailed presentation of the organization of the judicial administration becomes necessary. We must deal with the problem of subordination of the various offices in their relations with each other. In particular, the Defense will attempt to give the Tribunal a picture of the actual workings of the Ministry of Justice. Within the framework of a bureaucratic organization the sphere of activity of a minister, an Under-secretary, a Division-Chief, a sub-Division Chief, a Principal (Referent) and an Assistant will be defined and certain organizational changes wrought in the course of time will be taken in consideration.
Court No. III, Case No. 3.
The scope of authority pertaining to the superior-subordinate relationship is also of importance. Of equal importance are the limits of signing power fixed for each individual official of the Ministry of Justice as well as the degree of responsibility he assumed whenever he affixed his signature. A signature does not always imply the assumption of a responsibility nor does it always signify that some one in particular was charged with the handling or discharging of a specific task. A document has quite frequently been submitted to an official of the Ministry of Justice for the sole purpose of having him take official notice of its contents, i.e. the only object being to apprise the official in question of some measure or other. This method of passing on information, of course, could serve many other purposes which remain to be discussed. A simple request, however, to take official notice, combined with an accompanying acknowledgment of receipt signed by an official, never meant that the official had, by affixing his signature, assumed responsibility for the matter on hand. Finally, there remains the problem of throwing light upon the relationship existing between individual departments of the Ministry of Justice and that of defining the meaning and aim of a co-signature. The act of co-signing indicated primarily that the subject matter and its treatment as viewed in the light of the co-signer's own field of activity, i.e. from an expert's point of view alone, gave rise to no objections.
A study of departmental limitations will afford insight into the nature of the Judiciary in its relationship with, and its dependency on other Reich Ministries and Party Offices. An understanding of the reciprocal connection between the Ministry of Justice and the Reich Ministry of the Interior, as well as the limitations imposed upon both will yield enlightening information on many questions. We shall also find these necessary connections with other Ministries existing before 1933 and thereby refute the assumption of the Prosecution that these intersectional connections, which are to be found in Court No. III, Case No. 3.any system of government, constitute a creation of the Nazis and were adopted by them for the purpose of achieving their own ends.
It will be necessary, in this connection, not only to discuss the strictly legal aspects involved, but also to show what the actual conditions were with respect to power and authority. We will have to re-construct the events as they occurred at that time in a State under dictatorship and show what legal consequences a necessary examination conducted from the viewpoint of constitutional law will yield. The question will be raised as to what would have been the consequences of a failure to comply with an order, and would obedience, therefore, legally exclude guilt. A factor of great importance in considering that problem is the determination of the relationship between the Judiciary and the Police. The effective role played by HIMMLER, as chief of the entire Police force, must also be taken into consideration. The full presentation of facts will show how the Police interloped in affairs of the Judiciary, and how this interference led, during the course of the years, to an appreciable weakening of the position held by the Judiciary. We shall see what means were and had to be employed to fight that battle. The contrast between the position of the Justice Administration, which was weak by nature, and that of the Police, which was equipped with all the instruments of power it employed ruthlessly through the offices of HIMMLER and HITLER, will become manifest. Again and again one will perceive how the Judiciary was confronted with accomplished facts, how it strove to defend or re-capture lost ground, how all of its activities, as a matter of fact, were overshadowed by the constant pressure and expansionistic aims brought into play by the Police. It will be shown how everyone in the Ministry sought to retain as a last bulwark the concept of the constitutional state for practical usage. It will be brought out how the Police, beginning with the protective custody order and ending up with the establishment of its own preserve in the concentration camps and the subsequent creation of its own SS jurisdiction over its members finally Court No. III, Case No. 3.secured their exemption from the Judiciary.
Yet in spite of the constant rivalry between the Judiciary and the Police we must not lose sight of the fact that certain contacts between both offices had to be maintained because of the very nature of German criminal procedure. Since the Judiciary had no investigation agencies of its own, it was dependent upon the co-operation of the Police in that respect. Finally, I shall also show how HIMMLER attempted to wrest all Public Prosecutor offices from the Justice Administration for systematic absorption by his Police machine, although he did not succeed in doing so. When the unique position held by the Judiciary within the entire administrative system is made clear in the presentation, one will become aware of the difficulties of the situation in which the Judiciary found itself in this battle. We need but have a clear conception of the difference in denotation of the terms "dictatorship" and "Justice" in order to gain an appreciation of the difficulties of that situation. The dictatorship derived both stimulus and pattern from the Party in its manifold manifestations. We will show up the predominance and influence of the party offices, some of which were legally established, and demonstrate how both expanded in all directions and by the employment of any and all means through the person of the Fuehrer of the Party, namely the dictator.
The Defense will show, at the proper time, how the Party sought to push its interests ruthlessly in opposition to the Judiciary. The activities of the Party constituted a perpetual obstacle to the progressive administration of Justice. It will be shown how the Gauleiter, either directly or indirectly through BORMANN, deliberately added fuel to HITLER'S repugnance against the judiciary and thereby showed the Reich Ministry of Justice into a spot similar to that of an isolated animal at bay.
The various aspects just outlined will also furnish us with a broad foundation for those laws to which objections were raised in the Indictment, and the substance of which we shall subject to an exhaustive Court No. III, Case No. 3.examination.
We will show, when dealing with the problem of violation of the principle "nullum crimen sine lege", that all those laws with which the Indictment is concerned and which had been made retroactive do not furnish a basis for punishment. The punishable offense itself, to which they referred, had already been made punishable by laws in force at the time the deed was committed.
The rules of Penal Law were not only part and parcel of the general body of Law, but had also been fixed long before by virtue of positive law at the time the appropriate supplementary laws went into effect. In every instance revisions were applied only to the evaluation of a crime in relation to the amount of punishment. Since the prescribed rules of the German Penal Code, generally speaking, did not allow a judge much leeway in awarding punishment, it was found necessary to provide for changes with regard to the fixing of penalties.
We will show that conditions of public distress in Germany were in each instance responsible for the changes, and, furthermore, that these legislative measures were, above all, inspired by criminological propositions that had played an important part in scientific discussions long before 1933. We will also show that the drafting of such legislative measures was strongly influenced by the knowledge and experience of other countries.
We shall have to proceed from the assumption that a retroactive measure, characterized only by an increase in severity of punishment, does not constitute a violation of the principle "nullum crimen sine lege", according to common German and continental legal conceptions.
If the Prosecution should construe the substance of various laws as crimes against humanity, we will have to enter into an investigation of the actual living conditions which gave rise to the necessity for the legislation of strict measures. One of the cardinal determinants of any system of Penal Law is the principle of the deterrent influence Court No. III, Case No. 3.of punishment.
Variations in the forms and uses of deterrents are at all times dictated by circumstances. Thus, when living conditions everywhere are at high tension, deterrents, if they are to be effective at all, must be accompanied by a corresponding increase in severity of legislative measures.
Some of the legal terms found in German Court decisions that are to be examined by the Courts will require explanation. Such terms as "dangerous habitual criminal", "perpetrators of crimes of violence, juvenile major criminals", "public enemies", "asocials", and "criminal type" (Taetertyp). In defining these terms it will become apparent that they were used as necessary aids in the quest for laws and that they represented, by no means, a one-sided attempt at increasing the harshness of measures in the administration of justice. These terms were established for the purpose of setting up clear-cut, definable boundary lines encompassing a definite group of major criminals. Such a move paved the way for pronouncements of restricted judgments, i.e. less severe ones upon those who did not fall within that group.
In answer to the question of sterilization, we shall outline its historical development in Germany and other countries both in theory and practice. We will find that sterilization, as a program, was advocated long before 1933 in Germany and even found champions in socialist and church groups. Closer examination of the law under consideration will reveal the great care and caution exercised in hedgingin its specific provisions. Should the law itself, however, lie beyond the pale of any possible extensive explanation, we shall then furnish proof that it has never been misapplied for political or race-political purposes.
The subject of euthanasia will be dealt with at length and judged with fairness and justice. We will show that the measures originated with HITLER, himself, and in the Chancellery of the Fuehrer. We will also show, - and this is symptomatic of the position held by the judiciary in the Administration - that the judiciary did not receive Court No. III, Case No. 3.word of the existence of those measures directly but in trailing states from outside sources.
We will bring out how the Ministry of Justice attempted thereafter to thwart the execution of those measures, and then disclose how those same attempts led to a premature discontinuance of the program.
In order to decide the question of whether the judiciary is responsible for these measures, which they neither caused to be put in effect nor carried out, we again must consider the actual existing facts.
A trial which concerns verdicts rendered by various courts calls for a study of the organization of these courts as well as their manner of functioning. We will deal with the structure of the Special Courts and of the People's Courts as well as the courts before them. We shall consider whether the Special Courts are extraordinary courts in the sense of the indictment, which were prohibited by the constitution. We will also define the term "extraordinary court" and we shall see that a court which has not been established for the purpose of bringing certain persons to trial but for the purpose of passing judgment on certain punishable acts cannot be considered an extraordinary court. The legal regulations which are prescribed for proceedings in Special Courts and which deviate from regulations prescribed for regular proceedings will be scrutinized with regard to extent and purpose. We will deal with the structure of the People's Court in like manner.
In order to discuss these questions, it will also be necessary to give the Tribunal a clear-cut, plastic picture of German criminal procedure. We hope to be able to achieve this by examining an expert on the characteristic features of German criminal procedure. Thus, we will be able to show the fundamental differences between the German and Anglo-American criminal procedure. We will become acquainted with the preliminary proceedings as well as with the actual main proceedings. Preliminary proceedings are in the hands of the prosecutor. The necessary investigations to ascertain the facts of the case must be carried out with the aid of the police and through its own or judicial interrogations. The public prosecution is bound by law to an objective consideration of the matter. The prosecution in so doing of course represents the instance which later on submits the indictment in court; yet it is under obligation to draw up the indictment not as an agent of an interested party, which he will represent later on in the main proceed ings, but as a purely objective agent engaged in clearing up the facts of the case.
He is also obligated with procuring and submitting facts which serve the purpose of the defense. After the facts of the case have now been established in this manner and the transcript of the interrogations of the defendant, the witnesses and the experts as well as the record on any inspection, seizures, or searches have been recorded to the court, then the public prosecutor draws up a written indictment and submits to the court the documents which contain the entire material collected by him with the request that a date be set for the trial. In considering the question whether action should be brought or whether proceedings should be quashed beforehand, he must take into consideration whether the findings are sufficient to justify the suspicion that a punishable act has been committed. This question will then be examined by the court, which has to decide about the opening date of the trial. If, in the opinion of the court, the findings as laid down in the documents are not sufficient to warrant a conviction of the accused, then the court may decide against instituting proceedings, or it may request the public prosecutor to collect further material, which will be of an exonerating nature also. After the trial has been ordered, the proceedings are entirely in the hands of the judge, and in the case of the courts attended by several judges, in the hands of the presiding judge. By studying the documents, the court finds out how the preliminary proceedings were conducted as well as the results. However, except in a few instances, the court may make use of the preliminary proceedings for informational purposes only, so to speak, as a jumping-off point for the main proceedings, which alone are decisive for the final decision. In these proceedings the oral principle alone applies. Only that which is presented at these proceedings by the defendant himself, by witnesses, experts and documents can be considered by the court in passing judgment, but not the interrogation transcript of the police or the public prosecutor. The presiding judge guides the proceedings. He examines the defendant, who can make statements pertaining to the case in question, but who may not take the stand as a witness as is the case in American proceedings and who can also not be sworn in.
Should the public prosecutor or the counsel for the defense desire to ask questions of the defendant, they may do so only through the presiding judge. The examination of the defendant is followed by the hearing of the witnesses and of the experts. This is also carried on by the judge. The public prosecutor and the defense counsel have the right to put pertinent questions to the witnesses and to the experts, which the judge may permit in accordance with the code regulations of the Code of Criminal Procedure.
The role played by the counsel for the defense must be described in detail. In comparison with his role in the Anglo-American procedure he is not as important here. Whereas in Anglo-American procedures the prosecution as well as the defense, so to speak as two parties, submit their case for the decision of the court, in German procedures the investigation of the facts of the case in the trial, the rules concerning the extent of evidence to be collected, the serving of summons to witnesses for the prosecution end defense, without the prosecution or the defense filing any requests, are in the hands of the court. According to that, the public prosecutor and the defense counsel in reality only support the court in investigating the facts of the case, which is the duty of the court itself. Because of this role played by the defense counsel, it follows that in German criminal proceedings the defendant is represented by a counsel only in a comparatively small percentage of cases, and in all the other cases the defendant just does not employ a defense counsel.
The question regarding the appealing of a verdict rendered by a court of first instance demands thorough clarification. In this connection we will demonstrate the meaning and the purpose of the nullification plea and of the extraordinary objection. We will prove that it was not National Socialistic thinking in terms of violence which gave rise and impulse to their introduction, but rather considerations regarding the technique of procedure.
By extending the competency of such courts, which had to decide only in one instance, the necessity arose for a higher instance to be able to take care of reviewing decision. To be sure, considerably eased regulations regarding the review of verdicts rendered by Special Courts had already been introduced when these courts were first established; however, these regulations proved by providing a "resumption of proceedings" (Wiederaufnahme des Verfahrens) insufficient in practice, particularly after it became evident that economic offences called for uniform laws throughout Germany. Considerable divergence insofar as the legal interpretation of the new laws was concerned and with regard to the meting out of punishment became apparent in the procedure of the different courts, through a constant surveillance, which became especially necessary in view of the changing economic conditions. To obtain uniformity in this respect, new opportunities for additional legal redresses were created. We shall demonstrate that the nullification plea is a method of procedure which has been taken over from the former Austrian law. The diversity in legal conceptions concerning the principle of "ne bis in idem" (double jeopardy) with regard to legal remedies will be treated in this respect.
The indictment also makes it necessary for us to decide how far a state may and can consider itself competent to extend its power to punish to acts committed abroad. Is it consistent with international law to prosecute foreigners for punishable acts committed abroad? The extent to which a state may take it upon itself to take action for acts committed abroad depends on whether such state inclines toward the principle of personality (Personalitaetsprinzip), the principle of territoriality (Territorialitaetsprinzip), the principle of protective law (Schutzrechtsgrundsatz), or the principle of universal law (Weltrechtsgrundsatz). As can be seen from a study of comparative law and from the history of law, diverse and variable opinions are held about this in the different countries, and the science of international law after the first World War shows this in particular.
We shall point out the basic principles which are contained in Section 3 and 4 of the Penal Code of 1870, and we shall find again in the Supplementary Law (Novelle) of 6 May 1940, which extends the sphere of authority of the Penal Law and which is now being assailed by the prosecution, ideas drafted for the reform of the Penal Law conceived long before 1933. Article 153 a of the Code of Criminal Procedure is, to a certain degree, intended to act as a safety valve against a too exaggerated application, and has in fact greatly reduced prosecutions, and it shall be dealt with in this context.
The discussion on the introduction of German law and the establishment of German courts in the Protectorate will cover the three decrees of the Ministry of Justice, which were also issued as a result of a decree published by Hitler in the form of a law, and an ordinance supplementing this decree, both of which were not countersigned by the Reich Ministry of Justice. In this connection it is necessary to clarify the international relations existing between the so-called Protectorate and the German Reich. Are we concerned with a bilateral international treaty negotiated between Hacha and Hitler, an intervention, an annexation, or an occupation? From the subjective point of view, what the German public and what the defendants actually knew about conditions then prevailing will be decisive in each case. We shall have to discuss here and at other occasions - and this is not dependent on the above whether, within the scope of the indictment concerning a crime against humanity, the actually selected form of legislation and administration of justice is not also justified in its scope under different international conditions. Can one, to give an example, consider it inhuman if members of the Protectorate were subjected to the provisions of the German Penal Code regarding treason and high treason, if the provisions of the Law Governing Occupied Territories would also have justified the same penalties for aiding and abetting a hostile army?
With regard to the Introduction of German Law in the Eastern Territories we must first of all consider that they were essentially divided into the following three groups, namely:
1) territories which were part of the Union of Soviet Republics after September 1939;
2) the so-called Congress Poland, the principal part of the Polish Republic, which was administered under the designation of Government General, and finally
3) the western parts of Poland, which before 1918 were made up mainly of the German provinces of Posen, Upper Silesia, and other small parts of provinces. German Jurisdiction was introduced only in areas mentioned under 3) and they were designated as "Incorporated Eastern Territories". The former Russian territories mentioned under 1) were subordinate to the military and civilian governors, and the Government General mentioned under 2) was subordinated to Governor General Dr. Frank. Both these groups were completely outside the administrative competence, or even the sphere of influence of the Reich Ministry of Justice.
If, therefore, we have to concern ourselves with the question of the introduction of German jurisprudence only in the so-called incorporated Eastern territories, then we shall call attention to a point of view widespread in science and actual application, whereby a declaration of war renders municipal treaties between the parties at war meaningless. Not only was this point of view especially advocated in a detailed justification by the Reichsgericht, as the German Supreme Court, already after 1918, but it was also championed in French works on international law, as for instance in Foignet's "Droit International Public". It will be shown that other states have in fact also accepted this point of view.
The recognition that this viewpoint concerning international relations was actually followed in practice will be shown by an agreement concluded between Germany and the Soviet Union, which pertains to judicial procedure in civilian matters in Polish territories incorporated into the Soviet Union in 1940.
The answer to the question - which has already come up many times during the examination of witnesses by the court - namely the question whether it was permissible to apply the crime ordinance for Poles also to those Poles who did not come to Germany of their own volition, will depend on whether we consider the introduction of German jurisdiction in the above mentioned extent admissible. I don't believe that the evidence presented by the prosecution covers a case which proves that a Pole who did not come to Germany voluntarily was sentenced. Generally speaking however, we will have to take into consideration the fact that the pole who came to Germany was subject to that law which then applied in his former place of residence.
So that the jurisdiction in so-called "Night and Fog" cases (Nacht und Nebelsachen) can be judged, we shall put in evidence that, in the main, the military courts alone were competent. Section 3, subparagraph 2, of the Decree concerning Military jurisdiction during War (Kriegsstrafverfahrensordnung) formed the legal basis for handing over those cases to the general courts. This "decree concerning military jurisdiction during war and special operations" was issued on 17 August 1938, and published in the Reich Law Gazette 1939, part I, page 1457. It was only signed by the "Fuehrer and Reichschancellor" and by the Chief of the Supreme Command of the Wehrmacht.
This decree fixes the scope of military jurisdiction and subordinates all foreigners and Germans to this military jurisdiction for all criminal offenses committed by them in the area of operations. According to section 3, sub-paragraph 2, of this decree, military courts however, are to prosecute such crimes only if it is judged necessary for military reasons. It is within their discretion to turn over the prosecution of criminal cases to the general courts.