At the time when my client was familiarized with these matters - the NN-cases were assigned to his sub-division in view of their pertinence to international penal matters - there existed already the agreement made between the OKW (Supreme Command of the Wehrmacht) and the Reich Minister of Justice guaranteeing that foreign civilians could be brought before a court at all. This was just in accordance with the International Law and the individual provisions of the Hague Convention, regardless what Hitler and Keitel originally may have intended by their notorious "NachtNebel-Decree". The civilian prisoners were not anymore merely left in the hands of the police but both, the Wehrmacht and the genera, justice had created the practical prerequisites enabling the military commanders in the light of Art. 3, paragraph 2 of the KSTVO (Criminal Proceedings in wartime) to dispense with a criminal procedure of their own and yet to make a verdict against the defendant possible.
"In presenting my evidence it will also be possible to make clear that the decree issued by Keitel, put military interests in the foreground. It was the duty of the justice of the Wehrmacht to find a procedure, which considered this interest on the one hand but respected the international law on the other. Only by considering the later development of these NN-matters, it will be possible to recognize that the Administration of Justice succeeded in directing again back into channels corresponding to generally recognized rules of law the policy of disregarding International Law, intended by other authorities.
"In elaborating my case, in connection with the NN-matters, it will be unavoidable to discuss also the reasons of the duty of secrecy, which was imposed to such considerable extent to judicial authorities in Germany proper. Most of the charges made by the prosecution are concerned with details of the formulation of this secrecy of procedure.
The reasons given by the military authorities for this secrecy were sufficient in the sense of international law as being in the interest of military operations in the meaning of the Hague Convention, and furthermore the officials of the Ministry of Justice - such as my client - were not in a position to verify these reasons. My client, too, as will be clearly shown by my evidence, could never be in a position to determine, whether these military interests were or were not determined by arbitrary judgments of the military commanders.
"For him as an expert in international law it was an established fact that according to the Hague Convention the military interests had no priority over the rights of the civilian population with regard to the protection of their elementary vital interests.
"This point of view is already clearly indicated in the documents submitted by the prosecution which I shall discuss further in my demonstration of evidence. It seems to me that it is advisable to give the Tribunal already now, in my introductory statement some hints where these indications can be found in the documents of the prosecution. By doing so I believe to be in the position to assist the Tribunal in its task of arranging the material which is difficult to survey.
"In Section V of the basic decree of Keitel of 12 December 1941 i.e. exh. 305 - NO 669-PS - and in par. 3 of the basic decree of the Reich Minister of Justice of 28 October 1942 - i.e. exh. 313 NG 226 - the term "military interests" is used explicitly. From these two documents we can clearly recognize the legal foundation for the activities of the officials of the Ministry of Justice. Above all they show that the "transfer" (Abgabe) of the NN prisoners who were in se subjected to the proceedings in wartime were put under the jurisdiction of the Justice authorities only for the duration of those proceedings in Germany and for the period during which they were subjected to the general exeutory administration of the inland.
This is important for the fact that - I believe to be able to make this clear when I present my case - the justice authorities and, therefore, also my client did not have the possibility to prevent in September 1944 the withdrawal of all NN prisoners remained under the jurisdiction of the military offices from the time of the first charge raised against them in the occupied territories until the end. The military authorities could therefore ask for the return of these prisoners at any time, during their "transfer" to the German justice authorities of the inland. They could do so not only during the criminal proceedings themselves but also during the serving of the sentence or after the termination of the prison term. Also in this connection I think it advisable, to direct your attention to the decree of the Reich Minister of Justice of 6 February 1942 - exh. 308 - NG 232 - and exh. 326 - that is NG 203.
"If I should succeed in clarifying through the evidence which I shall submit, the legal foundation and its unanimous interpretation by all authorities which have to handle this matter, then the court will see that the Military Authorities which were alone responsible for the handling of these affairs were, in September 1944, without further ado in the position to change the "transfer proceedings" without even consulting the offices of the Ministry of Justice.
From this time a declaration in accordance with art. 3 subpar. 3 sentence 2 of the decree concerning criminal proceedings in war-time was not given anymore and therefore the German Courts of the inland were not competent any more. As far as NN-prisoners were at that time in the custody of the justice authorities, the military offices could ask for their return no matter how far the legal proceedings had progressed, since these prisoners were always at the disposal and under the jurisdiction of the military offices.
But as long as the military offices, in accordance with justmentioned legal provision, made use of their right of "transfer" in the western territories of Europe during the time of the occupation by German troops, the justice authorities of the inland considered it as very important that all NN-prisoners be tried before a court. It will be possible to prove by the exh. 342 -- that is, NG 216 -- that the Ministry of Justice referred with success to the observation of the legal previsions and that it did so first of all in opposition to the different intentions of the police. This will be an example to prove how far the justice authorities had success with their conception that law has to prevail.
Objections with regard to international law can also not be raised against the execution of penalties, pronounced by German Courts of the inland against NN-prisoners, in German penal institutions. I will be able to demonstrate during the submission of evidence that it was in accordance with the accepted rules of international law that foreign civilians, who were sentenced by civilian authorities, were subjected to the same conditions as the nationals of the occupying power. No objection can be made to the fact that NN-prisoners worked in so-called "armament plants" although the division V of the Ministry was competent and responsible for this matter, and my client had therefore personally nothing to do with it.
Proof will be submitted to this Tribunal from which it may recognize the vast extent given to the term of "armament work" in Germany. During the last years of the war there was in Germany simply no other possibility of work, the only work was "armament" work.
During the submission of evidence it will also be my task to discuss the subjective side of all measures of my client.
It was clear to all justice officials who had to deal with this matter that from a military point of view one had to fight the new methods of the underground forces with new countermeasures. According to international law a resistance movement against the occupational power necessarily lead to reprisals. It was clear that it was the task of the military commanders to prevent any communication between the scattered individual groups of the resistance movements. The absolute secrecy was therefore not only imperative in order to protect the security of the state but it had also a special purpose in these cases. When submitting the evidence I will refer, if possible, to all the legal previsions with regard to the obligation to keep these matters secret. I will be able to point to analogous cases in the German law of the past, and also to the fact that other occupying powers used to exercise similar rights. Thus it will be demonstrated that in the final result the provisions with regard to the obligation to keep these matters secret were justified and that the criminal intention of Hitler's order of 12 December 1941 to start these proceedings exclusively for deterring purposes practically lost its significance completely. Besides, it is a debatable point whether in view of the extraordinary conditions during the second World War such deterring purposes (prevention of crimes in general) cannot be justified from the point of view of the policy of penal legislation. At any rate the practice of the German Courts of the inland has shown that as a result of the strict observation of the rules which order to keep these matters secret, indicted NN-prisoners were acquitted in many cases for lack of proofs, or received for the same reason a much milder sentence than they would have had to expect from a Military Court in the occupied territories.
This was, so to say, the price which the military authorities had to pay for keeping these matters secret in accordance with their orders.
This trial will therefore offer an opportunity to acquire a more detailed knowledge of the real circumstances of the "Nacht und Nebel" matters. Thus we will see that corrections have to be made in matters which provided the basis for the verdict of the IMT.
I have now concluded my opening statement.
DR. KUBUSCHOK (Counsel for the defendant Wilhelm von Ammon): May it please the Court, the prosecution has submitted no evidence connecting the defendant von Ammon with counts 10, 16, 22 and 28 of the indictment. The defense will therefore deal only with the count concerning the NN matters while disputing the legal admissibility of the accusation of conspiracy. The defense will explain the origin and the legal basis of the NN regulations. It will be shown that the legal authorities participated in the work on the NN matters only to such an extent and as long as they were delegated to do so by the competent Wehrmacht authorities.
As regards the participation of the defendant von Ammon in this department which had been allocated to him in the course of the allocation of duties in the ministry, the following will be dealt with: von Ammon's position as an expert, who was subordinated to the subdivisional chief Ministerialdirektor Mettgenberg, divisional chief at first Ministerialdirektor Crohne, later Ministerialdirektor Vollmer, Under-Secretary, at first Freisler and later Klemm, and lastly the minister himself. If, therefore, von Ammon only ranked fifth in seniority, then this fact determines also his authority to sign and his actual responsibility. All important matters required the signature of at least the sub-divisional chief, in most cases that of the divisional chief.
We therefore find that none of the letters from the Reich Ministry to another office, which have been submitted by the prosecution, were signed by von Ammon.
I shall prove that von Ammon did not participate in drawing up the basic legal regulations. Thus the legal argument arises whether a person who has merely to carry out administrative tasks without thereby causing a wrong to be done in the sense of sufficient causality by this activity itself, bears a criminal responsibility for this.
I shall describe how the NN proceedings were carried out and shall show that no special regulations were issued, restricting the proper trial beyond the secrecy decreed by law. As can be seen from the Circular of 6 March 1943 -- NG 269 -- submitted by the prosecution, care was taken that the prisoners did not forego their otherwise customary rights, as long as the purpose of this secrecy was not endangered. I shall disprove the view of the prosecution that persons who had obviously not committed any act of resistance were treated in the same way as guilty NN prisoners. I shall explain that on principle the Wehrmacht authorities in the occupied territories handedover only such cases to the legal authorities in Germany where the evidence was materially complete, as the witness Lehmann testified earlier. It will be proved that even where the innocence of the prisoner was established only in Germany, there was the possibility of being released to the occupied territories.
Evidence will be produced from the proceedings of the courts that the NN trials were in no way conducted differently from other trials, except for the restrictions for reasons of secrecy. It will particularly be shown Court No. III, Case No. 3.that the difficulties in procuring evidence from the occupied territories in so far favored the defendant as he was protected by the principle employed in German criminal procedure:
in dubio pro reo, i.e., the defendant had to be acquitted in case of doubt where the evidence in support of the indictment was incomplete. I shall endeavor to give a summary of the sentences given in actual practice.
In regard to the handing over of NN prisoners to the police, no responsibility can be attached to the defendant von Ammon for participation.
Documents will prove that the defendant von Ammon always showed a tendency towards leniency, considering the prevailing circumstances and the extent of his competence. This will also be clearly in keeping with the whole personality of the defendant. We shall find him an official who entered the ministerial career solely on the strength of his expert knowledge immediately after he passed his legal examination with special distinction, the type of man with a sense of duty who lives only for his work. Von Ammon was not an active National Socialist, this is confirmed by his entering the Party only in 1937, comparatively late for a ministerial official. I shall produce testimonials, characterizing the defendant as a deeply humane and strictly religious man. I feel also that the trial will enable the Tribunal to form their own impression in this respect. In these circumstances it will have to be examined all the more carefully whether the evidence shows that this man is guilty of a crime against humanity irreconcilable with his character.
DR. FREDERSDORF (Assistant to Dr. Haensel, Defense Counsel for the Defendant Joel): May it please the Court, owing to some difficulties which occurred either during the translation or duplicating of the opening statement for the defendant Joel, this translation has not yet been completed as I heard during the recess. Therefore I would ask the Tribunal to permit me that the defense counsel who should follow Joel's defense counsel should read his opening statement before the opening Court No. III, Case No. 3.speech for the defendant Joel is read and to permit me to read the opening statement for the defendant Joel out of chronological order at a later time.
I should like to say that we for our part did submit the opening statement at the proper time. I was assured that in the course of this afternoon of evening the mimeographing of the opening statement would be completed.
THE PRESIDENT: You would be prepared, then, to make your opening statement sometime tomorrow?
DR. FREDERSDORF: Yes, of course.
THE PRESIDENT: You may postpone your opening statement until tomorrow. We will hear the next.
DR. KOESSL (For the defendant Rothaug):
May it please the Tribunal.
If I correctly understand the unuttered yet cogent logic of the charges listed in the indictment, the effect and example of that legal system, to which the Prosecution tries to attach the stigma of a criminal government institution, begins with the Rothaug case. The evidence against him, out of proportion considering the entire framework of the indictment is in contrast to his mere functional position, based on his activities as judge and prosecutor.
Although I am aware of the fact that such purely external disproportion between the importance of the matter on the one hand and the deployment of means on the other hand, as seen from a higher point of view, may cause a shifting of the focus in the eyes of a superficial observer, I am however certain that the desire for a true and just sentence will prevent the overlooking of the limitations and degrees of responsibility.
Yet the direction of the main thrust of the Prosecution has become rather clearly discernible by the few submitted documents, out of thousands of files. We face it with a clear conscience, calm and courageously, for documents do not lie.
What distresses us, is the evidence submitted in order to impress Court NO.
III, Case No. 3.
and otherwise help the main thrust, evidence which has been available in accessible localities and without difficulties, with incriminating tendencies, sometimes even eager to incriminate and which has offered in hundreds of variations and superlatives an almost unfathomable jungle of assertions, estimates and opinions.
The mobilization of this evidence compels us to handle the most enervating and tedious detail for truth's sake.
I expect to relieve us of much of this wearisome detail by first treating and solving problems touched upon by coarsening efforts, misrepresentations, distortions and half-truths, in their entirety and from the broadest view-points possible.
At this point in the proceedings, I do not wish to put to the fore legal questions within the framework of the defense, such as the concept of conspiracy or the subjective fact and the confines of the crimes against humanity.
On the other hand, it will be unavoidable within the frame of the producing of evidence to convince the Court that the entirely individual, biased power position between the state on the one hand and the individual judge or prosecutor on the other hand, in accordance with the regulations governing German Civil Servants allows no scope in the field of the application of the law for a simultaneously existing intellectual alliance in the sense of a conspiracy, but that a connection of this power position, in full knowledge of its legal nature, with a simultaneous assumption of a conspiracy would mean a contradiction in itself. Here it becomes necessary to prove that the activity of a judge at the Special Court or a Reich Public Prosecutor is limited to the application of the law which is based on the official Reich legislation in the field of criminal law. I shall demonstrate that this Reich legislation in all its harshness has, in its purpose, neither lost nor limited its character of purely criminal law and that, on this point, it has not been misinterpreted as clearly proved by the literature on the subject and the jurisdiction by the supreme judicial Court No. III, Case No. 3.authorities and others.
Here must be proved a fact evident in itself, namely that judges and prosecutors in the same position as Rothaug, were never and in no context expected to have objects alien to the field of criminal law in carrying out their official duties.
Records of sentences already submitted and others still to be submitted will prove that this had in no way been intended.
This touches on the legal question, whether official functions resting on the official Reich legislation which, up to this very moment, is covered in International Law by the principle of nationality and sovereignty, functions which were carried out in public, may be conceived as actions of persecution on racial, religious or political grounds and may be treated as being on the same level as actions which were carried out secretly and without control and which could be recognized as wrong already by their cruelty and severity by every person concerned as offending against justice and law.
Here I wish to convince the Court that offenses of the latter kind, if they ever did happen within the legal sphere could and should only be known to the immediate participants but not to persons who held positions like the defendant Rothaug.
In the concrete reflection on the relationship to the law of the position of judges and likewise prosecutors, it is of decisive importance to elucidate in public law that the German judge, under any regime, had merely to examine whether a law had been announced in accordance with rules and regulations whereas an examination from other points of view was outside his jurisdiction. In this context it is further necessary to elucidate the significance and import of the judge being subject to the law and the meaning of a sentence in the sense of German public law especially in relationship to the legislative and executive power in an authoritarian state, thus to the governing power.
Here we can not omit to clarify the basic legal principles and corresponding regulations which determine this relationship or to prove the practical application based on files.
Thus, the question of the judge's subjection to the law calls for a clarification of the consequences on his task resulting thereof. It necessitates the recognition of the law as a form of expression of Justice, as part of the legal system and as immediate emanation of the ruling state doctrine at any given time, as well as the recognition of the judge's actual position in this legal system. Therefore it is also necessary to show in a condensed form the general basis and principle of the legal doctrine which since 1933 was decisive for the German judge in establishing the intentions of the law in a concrete individual case. The accusations which have been made in general or in individual cases concerning Rothaug's method of handling proceedings or which have been connected with such proceedings become meaningless or lose in importance if their explanation is tackled in general from the angle of the correct basic procedure regulations or from the available records of individual proceedings. This leads, as a matter of course, to a basic discussion of the individual cases which have been particularly stressed by the Prosecution, and which lie in the direction of the Prosecution's main thrust.
No one knows better than the judge the human inadequacy and fallibility because by the very nature of his profession he deals with that aspect of life. Thus he would be the last to believe himself immune from human error, least of all at a time of intellectual revolution and under the effect of the very highest wartime pressure. Nevertheless, I beg the Tribunal not to think me presumptious if I try to prove that the sentences pronounced by the Special Court at Nuernberg were in keeping with the basic principles of jurisdiction of the Reich's Courts and that among thousands of cases only very rarely one has been successfully contested or otherwise amended.
In this connection, one could discuss the outward development of the judgment and all those legal questions allegedly discussed in individual cases or in general in Rothaug's circle during the course of six years.
The submitted records of individual proceedings provide plenty of opportunity to form an opinion on all individual questions thrown up by this trial especially on the aim of judicial activity, the sentence in its relationship to the requirements of the proceedings and its assailability in the interest of legal security, from which it will clearly emerge that the sentence, even that of the Special Court, was only an intermediate and by no means the final stage of the work of ascertaining justice either when finding the defendant guilty or when pronouncing the sentence. Thereby it may be possible too to clear up the linguistically unfortunate term of "psychological producing of evidence" which has found its way into this trial. Thus, the legal and psychological task of the presiding judge in accordance with German criminal law will have to be explained and it will have to be shown how Rothaug confronted his task, solved it in the practical legal procedure and which objection he had to face in connection with the results of his work by departments which in the course of their own duties had to examine, control and, if necessary, correct.
Furthermore, it will be my task to prove that in Rothaug's official working sphere without exception all defendants without consideration of nationality, folkdom or race, were granted the same legal guarantees as any German according to German criminal law, thus that no case was treated as an exception to the general rule; that this was also done in all proceedings against Poles, who apart from one outstanding case bearing special character, were the only foreigners against whom Rothaug proceeded.
This, generally and in particular, touches upon the problem which determines the judge's and the prosecutor's position to the legislation for Poles from an objective legal point of view, of which have to be discussed the actual and legal basis and aspects from and through which the German judge and prosecutor whether in the North, South, East or West, had to view matters under the spell of the German doctrine.
Here the greatest importance has to be attached to the kind of offence in question, the place of the crime and last, not least, the question whether these Poles had readily been deported and had not voluntarily, accepting certain conditions, placed themselves at the disposal of the German war power.
In this context, we can not omit to discuss the principles which the jurisdiction of the Final Court of Appeal has developed in connection with this whole complex. Here I must leave the justification of the legislation as such to others who are responsible for it.
To this belongs, from a psychological viewpoint, the discussion of Rothaug's actual basic attitude toward the Jewish problem in order to do away with all insinuations which have wilfully and on purpose been made during this trial by persons who seem to have cause to stress and demonstrate their innocence in this connection by calling "catch the thief".
Another complex fitted into the direction of the main thrust of the Prosecution is Rothaug's alleged political power position, inflated so as to appear almost like a myth, which, to begin with, is supported by an assertion which is the object of Count IV of the indictment. I shall prove that Rothaug's duties did not extend beyond the professional organization of the Lawyers' Association (Rechtswahrerbund) and that, beyond that, he held no political post, and that in particular he did not belong anywhere, at any time and in any function to the so-called Corps of Political Leaders.
In this I shall take special care to reduce the case Doebig which has been brought into this context for the purpose of substantiation, to the proportions it deserves in the knowledge of the true facts of the case, as we ourselves feel urged to clear Rothaug's real relationship to the Security Service (SD) as expressed in its principles, development, contents and Rothaug's inner attitude to it down to minute details.
Especially here as in all positions where the witnesses are interested in a certain presentation of conditions, we are fully conscious of the difficulties and we know how easy it is today to find witnesses who by incriminating statements are given the chance to clear themselves. On the other hand, bearing in mind the totality of present psychological conditions it is difficult to find a person who would be prepared to stand up for truth's sake if he were asked to do so for a person who by reason of biased evidence has been publicly defamed in such a manner that it has given rise to the fear of becoming involved in the greatest difficulties by confessing to a mere acquaintance with Rothaug.
Because Rothaug's political power position has extensively been brought in, in an attempt transparent to our eyes, to reduce the responsibility of others, he feels pressed to clarify his real relationship to his collaborators and the prosecutors within his sphere of work minutely and in its totality in its official and personal aspect irrespective of whether it concerns Rothaug's official or unofficial statements, his alleged relationship to Streicher, Holz and Zimmermann, his actual relationship to Haberkern, the "Blue Grape", the mysterious "Stammtisch", his rank of "Tenno", his attitude toward the judicial administration, his "recording section" in alleged spectacular proceedings or his representation of the devil on earth. In all these matters and questions we have but one aim: To restore the truth in all its glory, for only in truth can we see the way which honorably and serenely will lead us out of this endangered vital position.
DR. TIPP (Counsel for defendant Barnickel):
The indictment has charged the defendant Dr. Paul Barnickel with having met together with the other defendants between January 1933 and April 1945 to form a conspiracy in order deliberately and knowingly to commit war crimes and crimes against humanity, Legally, the indictment is based on the Control Council Law No. 10. It has already been pointed out that the Control Council Law No. 10 contains no provision threatening punishment in the case of a conspiracy for committing war crimes and crimes against humanity. The Ordinance No. 7 shows no additional new paragraphs in the Penal Code, as has already been stated by the prosecutor in his opening statement. Consequently, a legal basis for the indictment as regards this point does not exist.
However, in my plea for the defendant I shall as a matter of precaution bring evidence for the following statements:
In 1933 Dr. Barnickel was a judge in Munich. At that time none of his co-defendants were known to him. At the end of 1944 he became Reich Public Prosecutor at the Reich Supreme Court. Since then he has had no contact at all with any of his co-defendants.
During these two hears he got to know some of the gentlemen who are charged together with him, in view of his work for the Reich Public Prosecution at the People's Court. I shall prove by examining the defendant in his own case and by statements of the codefendants that the relations between Dr. Barnickel and those codefendants who were known to him were confined to official matters and were not in the least connected with the charges forming the basis of the indictment.
With regard to this point I shall, as a matter of precaution, furthermore prove that the dependent position of the defendant Dr. Barnickel, who was obliged only to act on orders, altogether excluded the possibility of a conspiracy.
II.
Before dealing with the charges of the indictment in detail, I must refer to the following: The prosecution has not explained in the written indictment nor in the otherwise very detailed opening statement, nor in the evidence, on what it really intends to base its general charges against Dr. Barnickel. As defense counsel I have consequently only assumptions to go on. In doing so, I believed that the prosecution had lodged an indictment against Dr. Barnickel in view of his position as Reich Public Prosecutor at the People's Court between 1 December 1938 and 1 December 1944 and the work he was doing at that time.
The prosecution seems furthermore to take the view that the People's Court was established in 1934 as a special court, that as special tribunal it violated the Weimar Constitution and that work ing for such a tribunal included participation in punishable acts.
Against this the evidence will prove that the People's Court, in any case after 1935, was an ordinary court in agreement with German law and German judicial system.
I shall furthermore produce evidence that the People's Court has at no time been a special court or, to put it clearly, a revolutionary tribunal. Attacks against the State in its inner and outer existence are considered a crime by every legal system.
These cases were judged by the Reich Supreme Court until the establishment of the People's Court. Even the prosecution will not want to maintain that the Senates of the Reich Supreme Court which passed judgment in cases of this type were Special Courts. These powers of the Reich Supreme Court were transferred to the People's Court after its establishment. I shall be able to prove by presentation of documents and the examination of witnesses that procedure regulations of the German penal code which had hitherto been in force were in the same way used as a basis for procedure in the People's Court.
Neither is the lack of a legal appeal against the verdict of the People's Court of special note. The lack of legal appeal does not result in making verdicts of the People's Court verdicts of a Special Court, as there is no legal appeal against the decisions of the Reich Supreme Court in matters of high treason and treason.
I will bring the following evidence concerning the position of the defendant Dr. Barnickel as Reich Public Prosecutor with the People's Court by examination of the defendant as witness in his own defense, by documents and the examination of witnesses. The title Reich Public Prosecutor was taken over from the Reich Supreme Court. The Reich Supreme Court received its name because until the administration of justice was transferred to the Reich in 1935 it was the only Court in Germany which was directly subordinate to the Reich. The title of Reich Public Prosecutor was purely formal in nature and did not mean that these officials had greater authority in representing the power of the State than other public prosecutors.
His position as Reich Public Prosecutor was not different from that of any other public prosecutor. He was not the head of an office, he was not the superior of these officials who had been chosen to assist him. The Chief Reich Public Prosecutor at the People's Court alone was the superior and senior official. He alone represented the authorities to the public, within the office he alone was authorized to give directions. The Reich Public Prosecutor was bound to his directives just as any other member of the Reich Public Prosecution.
B.
Special Part.
As already mentioned above the prosecution has made no concrete charges against the defendant Dr. Barnickel. His name is mentioned in only one court of the indictment, and that is where the prosecution points out his participation in the persecution of the defeatists. No concrete charges have been made on this count either. The prosecution has merely shown several documents which contain the name of the defendant Dr. Barnickel. As far as these documents are concerned I will show by questioning the defendant in this matter and by the statements of witnesses that his co-operation was limited to those duties which were placed upon him by the law, ordinances and orders from his superiors. Beyond the concrete charges which have just been mentioned the indictment states that Dr. Barnickel participated in the persecution and extermination of the opponents of National Socialism without regard to nationality, above all the prosecution and extermination of races, to which I will show the following:
I.
The type of training and the spiritual structure which Dr. Barnickel received in his youth would alone have made this attitude, with which the prosecution charges him, impossible. Dr. Barnickel's mother grew up in Paris and London. Through her he came into contact with the spiritual life of other peoples in his early youth.
Dr. Barnickel spent part of his student years in the University of Paris. Later he was often in France, England and other countries. He always found that contact with people of other nations and races was an important factor in the development of his life. In his later professional years he attended lectures at the Academy for International Law in the Hague. He was a contributing member of its student's community for a number of years.
This wordly attitude of Dr. Barnickel, which frew out of his training, made it impossible from the very beginning for Dr. Barnickel to accept the narrow minded racial doctrine, to represent it or to act upon it.
I shall be able to bring proof of this by means of affidavits of a number of witnesses and questioning of the defendant himself.
II.
I shall further prove by presentation of original documents the reasons for which Dr. Barnickel joined the NSDAP in the Spring of 1933. This happened, not for the sake of personal advantage, but because he considered it necessary from a more idealistic viewpoint. The evidence will show that Dr. Barnickel was not transferred to the People's Court because of his political activity, but rather for the sake of his professional abilities. He had already been suggested, on the basis of his abilities in the field of civil law, for a position with the Reich Supreme Court prior to the time when the NSDAP took charge of the State. Before the expiration of his activities as Chief Public Prosecutor in the District Court II in Munich he made an effort to find again a position as judge in civil administration of justice. However, these efforts failed and he was transferred to the People's Court as Reich Public Prosecutor in the 1938.
Furthermore the evidence will show that Dr. Barnickel tried to fill the position of a Reich Public Prosecutor at the People's Court according to his education and training as a professional jurist as far as was possible with the little remaining liberty which was left in Germany by the political development of the years between 1938-1944.