The evidence will show that Dr. Barnickel's attitude in those years was always directed towards the legal state. He tried successfully in numerous cases to mitigate the severity of the laws and jurisdiction by which he, too, was bound.
As the position of Reich Public Prosecutor and the duties in connection with it were a heavy burden for him, he tried to get a transfer from the People's Court in summer 1942. His transfer was rejected by the former President of the People's Court Dr. Thierack, who at that time had been appointed Reich Minister of Justice.
That the defendant Dr. Barnickel remained at his post despite his inner misgivings regarding the party and its ever increasing influence on the administration of Justice and jurisdiction is due to the fact that he believed that the position which would have become vacant if he were to have left would in all circumstances have been filled by a radical. He believed to be able and believed it to be his duty to prevent the worst by staying at his post.
I shall be able to present evidence by statements of witnesses with regard to this count which appears to be decisive to me.
III.
With regard to the question whether participation in procedure against the seditious undermining of defensive strength is a crime against humanity the following must first be pointed out: This procedure was laid down by the government of the state by means of decrees and regulations which were binding for every judge and to an increased degree for every Public Prosecutor.
The Reich Public Prosecution at the People's Court also adopted this procedure by Order of the State. Non-compliance with this order meant to sacrifice one's life. Should the Prosecution there fore maintain that participation in this procedure is a crime per se it would claim a martyr's attitude.
But martyrs are always individual personalities, the church sanctifies martyrs. However, a martyr's attitude can not he claimed, as a principle. The lack of it can not he taken as a basis for criminal accusation.
The evidence will prove that Dr. Barnickel's participation in this procedure was conditioned by the law which bound him and that he also helped many people, as far as he was able to do so. I will present a number of affidavits to that effect.
IV.
In 1944 the activity of Dr. Barnickel in the Reich Public Prosecution at the People's Court ended by his transfer to the Reich Supreme Court at Leipzig after an investigation lasting for months in the Reich Ministry of Justice. I shall prove this through submission of documents.
V.
It will be proved by the evidence to be presented by the defense in the case of Dr. Barnickel that Dr. Barnickel was transferred to the Reich Public Prosecution at the People's Court in his capacity as a professional jurist and not because of his political activities or his political merits.
Furthermore proof will be brought that in Dr. Barnickel's mind the idea of a legal state stood always above Hitler's State and that he always tried to oppose danger to the individual and to human development, even if he endangered his own interests thereby.
Dr. Barnickel, like every Civil Servant, every Official of Justice of the Hitler Reich in particular, was torn between recognition of the fact that justice in the Third Reich was no longer a servant of the law but of the state, and his sense of responsibility which kept him at his post to safeguard an even worse state of affairs. The attitude which he maintained as far as was possible should in my opinion be the guiding factor in his judgment by the Tribunal.
But the evidence will prove clearly that he himself was a servant of the idea of the law.
THE PRESIDENT: The Tribunal will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 24 June 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nuernberg, Germary, on 24 June 1947, 0930-1630, The Honorable James T. Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honor, the defendants are all present in the courtroom except the defendant Engert, who is sick in quarters.
THE PRESIDENT: The defendant Engert has been excused.
The Court will come to order.
May I suggest to counsel for both sides that it is desirable that they give to the Tribunal their recommendations concerning the medical and psychiatric examiners at the earliest convenient time so that we may have an early report on the condition of the defendant Engert. We suggested yesterday that prosecution and defense counsel confer upon that matter.
We are ready to hear the next statement.
DR. HAENSEL (Counsel for the defendant Joel): I ask to be permitted to begin reading my opening statement.
When the newly appointed Minister of Justice Thierack in the late summer of 1942 met Guenther Joel, at that time Ministerialrat, in the hall of the ministry in Berlin, he addressed him with the following words, "Besides all this traveling of yours do you also have an office?" He had been told that Guenther Joel was traveling a great deal. He knew that, because of all this traveling the Gauleiters had lodged bitter complaints against him with the Minister of Justice, with the Chief of Police Heydrich, and the then powerful/Reich Marshal, complaints to the effect that Joel had dared to proceed ruthlessly against members of the Party by judicial means.
Thierack was determined to remove from his ministry this inconvenient accuser whom the Party could not trust. He told Joel so before long and subsequently accomplished it by transferring him to Hamm where, as General Public Prosecutor, he had to follow the directions issued from Berlin without having a chance to make himself obnoxious by his criticism.
A traveling prosecutor in cases against Party big shots and other personalities under the protection of some prominent Party member, a man who supported and shielded the provincial judicial authorities when under pressure of local Party offices, a man who was apt to be rung up at any time by hard-pressed public prosecutors, and who often spent three or four nights a week in a sleeper - this was, according to the testimonies I am going to introduce, the Public Prosecutor Guenther Joel. I shall submit a few dozen, although I could bring in hundreds of them.
The typical German official of a ministerial department is a man who passes his law degrees with excellent grades, who has time for nothing but his legal documents, who wears thick glasses because he overstrained his eyes through much reading, and whose movements are limited to the read between his house and his office. Joel does not wear glasses. He passed his examinations well but without giving evidence of any particularly remarkable learning. Characteristic for him are his striking intelligence, his energy, his indefatigability, his courage, his frankness, and the passion with which he fought for justice for ten years.
Gentlemen of the Court, it is not difficult to stand up for Guenther Joel against a charge which does not apply to him, but it is difficult to stand by him as counsel for the defense and to have to watch every day how a man whose nature is all movement, ardent activity and energy, is sitting in his cell, not being able to do anything except to brood over the reason why he should be charged with being a conspirator against the law, he who was one of the most active champions of the law. "Why am I here?" he calls out to me again and again. And I understand his question only too well.
What must Joel think when the prosecution introduces as witnesses also against him the highest official of justice in Nuernberg and some judges, who explain their their weakness, their compliant attitude towards the Party which, moreover, meant violations of their duty, by saying that opposition would have been identical with suicide? Joel knows the conditions in Nuernberg; he appeared 1939 in person before Streicher informing him that he was going to start investigation proceedings against him, and he did so, as the Court was in a position to see from a document submitted by the Prosecution, and Gauleiter Streicher had to disappear.
Joel was not impressed, neither by Streicher, the Gauleiter of Franconia, nor by all the other Gauleiters whom he dauntlessly opposed when they wanted to infringe upon the independence of the administration of justice. "If I had done nothing against the injustices and the twistings of the law carried out by the Party, if I had kept quiet, I should not have been put to trial, because in that case," he continues, "my name would not have appeared in any documents," And I think Joel is right in this matter, too. Whenever the administration of justice was endangered, Joel was put on the job; it was like that under Minister Guertner, and remained that way under Undersecretary Schlegelberger. Not because Joel was more efficient than the other approximately 200 officials of the Reich Ministry of Justice, did they make use of him - I shall explain subsequently why he wars called upon by his minister but because he took action at all, he is now sitting before you; because the majority of his colleagues and superiors do not appear in any activities outside the Reich Ministry of Justice, they are not to be found among the defendants. In view of these facts, is not his question understandable?
Joel never had anything to do with legislative work; he was never a judge. As a Public Prosecutor and as a Ministerialrat he never had the power of decision in the Reich Ministry of Justice, and therefore it is correct when he says in answer to the charges of the prosecution:
"I am being made responsible for laws which I did not create, for verdicts which I did not pronounce, and for decisions of the Reich Ministry of Justice which I did not make."
The prosecution in its opening speech of 5 March 1947 stated that part of the evidence produced referred to events which took place before the outbreak of the war in 1939. It stated that it wanted to demonstrate thereby that the defendants were accomplices to a conspiracy for the purpose of committing crimes which had been carried out after the outbreak of the war. We read there: "But not one of these acts has been made the object of the indictment as an independent crime."
Will you permit me to indicate here in a few words what I shall subsequently expound in proper detail against this legal argument?
Conspiracy, the common planning for the perpetration of criminal acts, is, as "independent crime" (in the wording of the indictment), that is, a crime independent of single criminal acts, unknown to continental penal law. The prosecution bases its opinion on Control Council Law No. 10 and draws from it the conclusion that such a conspiracy aiming at the perpetration of war crimes and crimes against humanity be punishable.
This law, however, does not provide a legal basis for this indictment. If it could be inferred from Law No. 10 that such a conspiracy is punishable, we would find ourselves in the position of having to act according to a law which denies the principle "nullum crimen sine lege". This principle, however, has been solemnly confirmed by Law No. 1 of the Military Government in its article IV, No. 7. According to it, and I quote, "indictments can be filed only if a law, valid at the time of the act, explicitly declares that act to be punishable".
But Law No. 10 does not declare conspiracy with regard to war crimes and crimes against humanity to be punishable. Its article II establishes four types of criminal acts: Crimes against the Peace (a), War Crimes (b), Crimes against Humanity (c), and Membership of a Criminal Organization(d). Only in the case of Crimes against the Peace (a) the law defines as an independent criminal act, in addition to the initiation of aggressive wars, also the - and I quote - "participation in a common plan or conspiracy for the perpetration of the above-mentioned crimes". This crime against the peace (a), however, is only conceivable under violation of international law and international agreements; the problem whether Germans can be punished for it can only be judged according to the standards of international law.
It lies outside the sphere of this trial, since no charge has been made here because of the planning of an aggressive war. This trial finds its basis in Control Council Law No. 10 (record page 84) and has only to decide on the accusation of having perpetrated crimes according to section b, c and d of article II, 1. An explicit definition of a conspiracy is, however, not given in sections b through d of article II, 1. ns far as war crimes and crimes against humanity are concerned, a conspiracy is punishable neither according to Law No. 10 nor to continental penal legislation nor according to German Penal Law as far as it bad been developed up to the time of the Control Council legislation.
One could stumble over the regulation in article II, 1, as defined in section 1, c, where it says that crimes against humanity are to be prosecuted regardless of the fact whether they violate the national law of the country in which they have been committed. But this regulation, if a violation of the fundamental principle "Nullum crimen sine lege" confirmed by Law No. 1 is to be avoided, can only be interpreted in such a way that such a national, let us say more explicitly nationalistic, or even National Socialistic law cannot be considered, which itself, it is true, is a formal law but not law. The meaning of the regulation is therefore; The violation of a legal right which has been so generally accepted that without its recognition civilization or a community life of civilized people is inconceivable, cannot be declared free of penalty on account of the fact that a legal machinery which stands in opposition to the whole of civilized humanity and which meanwhile has been repudiated by its own people, had temporarily declared it not subject to punishment. All the crimes against humanity which the law mentions in section c of article II, 1, such as : murder extermination, enslavement, deportation, enslavement, torture, rape, -- violate the law valid up to now in all civilized countries and the German law as well, Law No. 10, as the law valid inside Germany, did not define completely now crimes but only summed up the already existing crimes under the labels of "War Crimes and Crimes against Humanity."
By including those legal rights which previously were taken frail the individual sphere such as life, physical inegrity and freedom of the individual, more comprehensive legal rights referring to the whole of humanity were put under legal protection, and the criminal intent was persued beyond its nearest individual aim, i.e. the individual human being, to its more distant aim, such as the extermination of whole groups for instance. The range of view was hereby raised and enlarged, the comprehension of the dangerousness and the depravity of criminal intent was deepened, but nothing was included into the orbit of punishable acts that had not been there before.
Conspiracy as an independent war crime and crime against humanity, regardless whether the perpetrator was personally guilty or an accessory to the crime, does not fall within this orbit of punishable acts in a Germany now occupied and therefore subject to the military jurisdiction but not to the substantive penal law of the respective occupying power.
The I.M.T. in its verdict has stated not only in order to lay down a precedent but also in order to establish the fact; It is one of the most essential legal principles that every criminal guilt is a personal one. Mass punishments without personal guilt of the individual do not exist (section 9 of the verdict). The prosecution expressly quoted the above-mentioned regulation from the Control Council Law No. 1 in the meeting of 17 April, Page 2268 of the German protocol. The prosecution has also quoted from the Hague Pact of 1907 which was published for Germany in the Reichsgesetzblatt (Reich Law Gazette). In article 43 of this pact is stated that the occupation power into whose hands the legal authority has fallen must re-establish and maintain public life under observation of the nation's laws, insofar as no cogent hinderance to this exists.
From this and in connection with the fact that already before the capitulation of Germany an interstate penal law was in existence, it result that the prerequisite for the punishment of the actions under indictment here necessitates the knowledge on the part of the defendant that his actions were illegal and that this can be proved, and that he cannot be sentenced for actions which could not appear illegal to him. Therefore all those actions are not punishable which can be charged to the defendant solely from the point of view of planning and which were without individual criminal intention. I request:
That the indictment be declared "insufficient" and that, indeed, for "legal reasons" insofar as it charges the defendant with joint planning, with conspiracy to commit war crimes and crimes ...against humanity as a separate and specific point of the indictment aside from other frets of crime which may be derived as such_from Law 10 and the international as well as German penal code.
The Tribunal is already today in a position to come to this clear decision on the basis of the material presented by the prosecution. Such a decision would simplify the further trial considerably, and would reduce the pleas of the defense. To make suck a decision beforehand would serve the economy of this trial, which otherwise threatens to go interminably. This is valid not only for the defendant JOEL, but also for all the other defendants, whose defense counsel have requested me, to discuss the problems connected with the legal concept of conspiracy.
In my opening statement I do not wist to deal with the idle question as to whether or not the Court, as American Military Tribunal, is competent to pass judgement on offenses which took place prior to the occupation of Germany. It is an established fact that the tribunal has been legally constituted and that it must make its decisions in accordance to Ordinance No. 7 of Control Council Law No. 10, the London Act of 8 August 1945 and the Executive Order of the President of the United States by which the judges were appointed. The question of procedure, however, must be sharply differentiated from the question as to what substantiate penal law is to be employed in the decision. The publication of Ordinance No. 7 alone shows the fact that even the American legal procedure was not considered applicable without legislative action by the occupation power.
As a further line of defense for Guenther JOEL I would like to point out the following: JOEL had indeed seen that much "was rotten in the State of Denmark" - to use the words of die greatest poet - but had derived no private benefit from it. He, in his position, did everything possible to fight this rottenness and tried to remove the elements which to him appeared to be responsible for it . He not only fulfilled his duties as expert official in the administration, but went far beyond this by doing everything possible to protect law and order. I cannot restrict myself to answer the Prosecution with legal arguments only, but will also have to consider the detailed facts which the Prosecution legally evaluates and upon which it bases its conclusions. The facts, too, are different from the way in which they were presented, and also the seemingly irrefutable documents gain their real meaning only by their interpretation, and only through completion and connection with other facts not yet presented by the Prosecution do they obtain life and real significance.
The documents presented by the Prosecution in the case against JOEL, as far as they do not represent insignificant information or they like, are, on the contrary, in part evidence of high lights in the battle of the administration of the law for its independence against party despotism in which battle JOEL publicly took part like no other official.
The defendant JOEL is charged with joint responsibility for the suppression of the criminal procedure against the guards of the concentration camp Kemma in 1935. The Prosecution submitted in Document bock I c, P. 23 a report of the senior Public Prosecutor in Nuppertal dated 20 January 1956, furthermore a report of the Reich Ministry of Justice dated 19 February 1936 addressed to HITLER which culminated in the proposal for suppression of the aforementioned criminal procedure. JOEL did not sign any of these reports; however he initialed them and made file notes In the session of 18 March I found fault with the fact that the documents submitted presented only a few pages from voluminous files as can be seen from the pagination. A written application for presentation of the entire files was also submitted. They will show, just as well as affidavits to follow, that it was JOEL himself who brought it about that the camp was dissolved. At that time he was the youngest official in the Ministry. Against the strongest opposition of the Party and the SA, and through personal intervention and interference right on the spot, he started the criminal procedure against the guards. He was not intimidated by the fact that the Gauleiter complained about him to the then Prussian Prime Minister GOERING and requested his immediate dismissal.
But these counter-forces were stronger then the very young Referent JOEL. By order of his superior, the chief of the penal section of the Ministry, the report of the Ministry was made, when HITLER had indicated that he did not want criminal proceedings. In this report, however, the activities of the concentration camp guards are not all extenuated, but are represented so unsparingly that these descriptions have already been quoted repeatedly by prosecution authorities. According to instructions, the last sentence had to ask for clemency. But whoever had ears to listen and eyes to read had to realize that the authorities really were intended to reject a quashing. The Tribunal may find it difficult to put itself into the position of officials who were forced to work under a dictatorial regime. Everyone in Germany read between the lines at that time. Only in the frame of sentences apparently acceptable to the regime could the truth be told. If one, therefore, now wants to check the views of a man, whether he was or was not a conspirator against the Law, one must read a document completely and judge it according to the language used in those days, and according to the way it could, only have been understood by people who knew.
As further evidence for the attitude and actions of JOEL, it is necessary to refer back to other happenings of that time. The ill-famed Camp Bredow near Stettin played a role already in the IMT trial. JOEL and a co-worker succeeded in approaching GOERING and describing the conditions so impressively that GOERING put his guards on trucks, supplied them with live ammunition, and, under conditions which remind one of the liberation scene in Beethoven's opera "Fidelio", the arrest of the camp commander and his helpers took place. Also other concentration camps in which political opponents were mistreated, were dissolved due to the interference of JOEL and his co-worker, as for instance camps Esterwegen, Hohenstein and Hamburg. Why should JOEL have thought differently in the case of KEMNA?
if he had not wanted the persecution, why did he risk his position and his person in order to obtain a complete explanation of the matter? But not only did JOEL bring it about that the NSDAP strongholds for political opponents were disolved, he was also always in action from 1933 until the time he left the Reich Ministry of Justice in 1943 when an orderly execution of criminal proceedings was to be hindered by Party officials. Everyone in the Reich Ministry of Justice and the majority of officials in the Justice Administration in the country know him in that capacity.
When the occurrences of 30 June, the ROEHM Putsch, necessitated discussions regarding criminal law, when the collectors for the Catholic Welfare Organization Caritas were ill-treated and robbed in Munich, when a priest was publicly accused and led through a city as a "Jewish servant" (Judenknecht), when he energetically took action in the penal persecution occasioned by GOEBBELS' Jewish Program of 9 and 10 November 1938, whether a Jewess or an owner of a department store, whose business a Party member wanted, were being persecuted, whether high Party officials seized rationed food-stuffs or other items short during the war, JOEL appeared and interfered without regard to personal danger. JOEL did not sit idly by and complain; he took action. He could have made things easier for himself, and would not have had to expose himself to the dangers which he encountered thereby, that he left the Berlin Ministry and its protection in order to go to the dangerous positions in the Province. He had at that time the protection of the Minister of Justice GUERTNER. We have already heard from a witness of the prosecution, the prison chaplain WEIN, of the change, which as seen from the outside, from the rural areas, took place also in the execution of sentences, after GUERTNER had died and National Socialism with THIERACK after a short interregnum arrived successfully at the Ministry of Justice in Wilhelmstrasse. The battle for law and its execution conducted in this house until that time must be presented and discussed.
If one can speak of planning, that concept must apply to those men, who under the most difficult circumstances hold together amidst perpetual danger, who came to an understanding and supported one another in order to rescue what could be rescued; but in a positive, not negative sense. A man, such as Superior Counsellor v. Dohnany, must be remembered in this trial as coadjutor, who finally was murdered as a victim of the Naxi persecution after 20 July 1944. He was GUERTNER's adjutant, a friend of JOEL. JOEL belonged to those men who made the opposition of the Ministry and provincial authorities wherever it occurred, materialize against Party interference in such a way that the suspicion of participation, a taking part in the abolition of judicial responsibility and autonomy in favor of a totalitarian state, can be resolutely refuted by many individual arguments. JOEL's discussions with Under-Secretary FREISLER who represented the Party interests in the Reich Ministry of Justice were known in Berlin.
The assumption of the Prosecution -- page 73 of the opening statement of 5 March 47, I quote: "That he had had a working agreement with the SS for the purpose of carrying our HITLER'S orders for shooting those people who had received too lenient a punishment" -- end quote -will be refuted. Quite on the contrary, he did everything in his power sought and had negotiations eight the persons around HITLER during the day but also during the night, and used every means to hinder the so called orders for handing over those unfortunate people who had attracted HITLER'S attention. But at this bureaucracy level JOEL was really a small man. Above him were the chiefs of the sub-divisions and divisions, the Under-secretary and the Minister. And in this machinery, the Chief of the, Reich Chancellery, Mr. LAMMERS, interfered, as well as the Chief of the Presidential Chancellery Office, Mr. MEISSNER; and above him were the real holders of the political sovereign power in Germany, BORMANN, who had the satraps of the Party call him for lenient judgments, and HIMMLER, who held his own armed authority, and commanding them all was HITLER'S almighty arm, who, through his aide-de-camp gave a brutal telephone message, ordered executions to be reported to him within 24 hours, and tolerated no contradiction.
Consequently, what could a little wheel in the machinery do? If it locked, it was beaten, and then it moved in accordance with the law of force and violence against which there is no resistance. JOEL "did not take part through his consent" (as is stated in Art. II, 2c of Law No. 10), but despite his opposition and resistance, the events passed over him, as well as his superiors and the Minister, and his co-operation was limited to the passing on of a telephone message, the substance of which he tried to prevent from being carried out. Are we to go so far as to demand of an official in the Ministry of Justice the instituting of a criminal procedure against the head of tho State in an authoritative state? What did other officials of the Reich Ministry of Justice do against such orders of HITLER, what the chiefs of the division and sub-divisions, what the head of the penal department? According to Art. II, 4, even HITLER's order does not release a person from responsability for a crime, although mitigation of the penalty in his case can be considered. However, a crime must always be proved, consequently the culprit must be either the chief perpetrator, an accessory to the crime, or one of the accomplices, which makes him answerable for somebody else's act, and as I have already stated, each of these manners of participation, each responsibility for somebody else's act therefore requires the proof of his own wrong-doing, his own criminal intention, the granting of the sanguinary result.
Above all, one viewpoint must be mentioned: the idea of expecting outspoken resistance. The judgment of the International Military Tribunal defines it as "the question whether a choice corresponding with moral law was really possible." (Chapter 5 at the end.)
The Tribunal No. II which is still in session in Nurnberg has stated in its verdict against Erhard MILCH in the opinion delivered by Judge Musmano, page 96: "It has never been our intention nor had it ever been suggested that he (MILCH) should have chosen a way that could have entailed the loss of his life."
Life, however, - and any open resistance to Hitler's orders would have meant that he would have been delivered to the Gestapo, as Hitler demanded this for criminals who had allegedly received too mild a punishment - is the possession which every person has a right to consider important above all others. JOEL would have been liquidated and Hitler's order would have been carried out all the same. I shall prove that JOEL nevertheless was successful in saving the lives of several condemned persons.
These points of view are also applicable to the whole group of deeds labelled by the Prosecution as NN affairs. On page 64 of the opening statement of % March 1947, the prosecution mentions JOEL last among the participants and those chiefly responsible.
None of the documents of the Ministry of Justice show that JOEL participated in the work on the NN-cases and every official of the Ministry of Justice knows that JOEL had never had anything to do with the work on the corresponding orders of execution, decrees and instructions. Nor did he learn anything by way of conversation about NN-cases which by order of Hitler were kept in strict secrecy. It was only after he had been removed from the Ministry of Justice and some time after he had taken up his post as General Public Prosecutor in Hamm that he came to find out that the Senior Public Prosecutor in Essen, who was subordinated to him, and the District Court in Essen, had been entrusted with the discharge of NN-affairs. I need not draw your attention to the fact that a General Public Prosecutor had nothing to decide in these NN-affairs. The Tribunal knows the decree of 6 February 1942 -Document Book VI, page 22, NG-232, Exhibit 308 - according to which the Chief Public Prosecutors had to inform the Ministry of Justice about the contemplated indictments, the contemplated discontinuance of the proceedings, the contemplated repeal of a warrant of arrest and the contemplated reference to foreign evidence and to ask for its approval.
JOEL was the General Public Prosecutor who as the only one among his colleagues dealt with the NN-matters for approx. 5 months only, since already on 15 March 1944, they were handed over to Kattowitz because of the danger of enemy action in the western provinces. I ask whether the prosecution will make him responsible for the fact that he, after entering office in Hamm, neglected to prohibit further work on NN-matters which had been carried on in Essen for two years. There can be no doubt in my opinion, as to the answer to this question. The prosecution quite rightly did not arraign the 12 officials of the board of the People's Court and of the District Courts of Appeal of Kiel, Cologne, Berlin, Hamm, Breslau and Kattowitz. I conclude from this, that the inclusion of JOEL in the indictment because of the NN-procedure was made in the erroneous assumption that he held an authoritative position in the Reich Ministry of Justice.
The prosecution finally has asserted that JOEL by his membership of the SD had been "especially familiar with the murder practices of the SS" (page 104/105 of the opening statement of 5 March 1947). JOEL's appointment on 19 December 1937 as liaison officer to the SS and the State Police was not made by an office of the SS but by Minister GUERTNER. At that time he was not a member of the SS nor the SD. The appointment served to enable him to continue his activity against arbitrary acts of the Party for the sake of which he was attacked by officials of the Ministry of Justice and even by the undersecretary Dr. FREISLER; the bestowal of a rank in the SD in 1938 was the result of measures taken by GUERTNER. Even after this promotion JOEL, as he had done before, promoted the interests of a proper administration of justice in his dea lings with party and police.
JOEL was merely an honorary co-worker of the SD without special function. It will become apparent that he could not know anything about the war tasks of the SS, SD and Gestapo (State police) which led to the condemnation of the organizations by the International Military Tribunal. The document 638-PS, Document Book IV A, page 47, the statement of former Reichmarshal GOERING, is inadequate as proof of JOEL's knowledge of crimes committed in the East.