THE MARSHAL: The Tribunal is again in session.
MR. KING: He have one comission to note which occurred in the transcript from, which we read. I will just -- It is Footnote 125-A that follows after the last sentence under the Treason and High Treason subject.
THE PRESIDENT: What page?
MR. KING: 131 of the English, and I am trying to describe it so that it can be located in the German text. It is the treason and high treason discussion concerning the defendant Rothenberger, at the end of that sentence, the Footnote 125-A should appear, and that Footnote is 125-A, 4716-17.
THE PRESIDENT: Thank you.
MR. KING: He should also like to ask the Court to request that the four or five pages which we did not read, but which we asked permission to file, will be incorporated in the transcript of the record for this morning's session.
THE PRESIDENT: I understood that that was agreed by both parties and it shall be done.
HR. LAFOLLETTE: Just one further statement. The Prosecution wishes to state that if any defense counsel are reading from prepared speeches and the time should expire that the Prosecution will have no objection to those speeches being also filed and made apart of the record, whether read or not.
THE PRESIDENT: Very well.
DR. KUBUSCHOK: Your Honors -
THE PRESIDENT: May I interrupt you a moment before you begin. There are no English copies for the Tribunal?
DR. KUBUSCHOK: No.
THE PRESIDENT: All right. Go ahead; we will get it later.
DR. KUBUSCHOK: One copy is already in the hands of the interpreter; I don't know whether there is any possibility to get further copies.
14 0ct.-A-BK-13-2-Sampson (Int. Steuer) May it please the Court:
Your task, Your Honors, is certainly without precedence in history. You have to judge the acts of men who once represented -- although the Prosecution's principle of selection is not always clearly discernible the entire administration of justice of a country, its administrative as well as its judicial side. You have to base your judgment on a law, which is altogether novel in its very concepts, quite apart from all the other problems it raises. This alone demonstrates, how difficult even your first task will be, which consists in satisfying yourselves, whether in the individual cases on trial the provisions of the law were in fact violated or not; but the difficulties will become gigantic, when the question has to be examined whether the guilt in the sense of the generally accepted legal principles can be attributed to the defendants. The situation is altogether different from the usual one, where objective facts, which can be ascertained in accordance with the established concepts of law and jurisdiction can without difficulty be related to the person of the perpetrator and thus are easily to judge. When examining the question whether the perpetrator, when he decided to commit the act, was a free agent within the meaning of the Penal Law or whether the act can be justified by the perpetrator's personal circumstances and the general conditions to be evaluated by him, the Judge usually is guided by his knowledge of the general and special conditions in which the perpetrator lived. Things are altogether different in our case: individual acts of the defendants will always involve the Administration of Justice as a whole. This again cannot be separated from the entire administration of the Reich. There we find a fact which we must understand fully and especially with regard to distribution of power, if we want to pass a just judgment; I mean Adolf Hitler's Dictatorial State. The defendants lived and anted in this dictatorial state. If we want to understand this in all its details, we must exclude all experiences and concepts either to accepted as customary and try as it were to live in an altogether different world.
I know how difficult this is. Even we, who ourselves witnessed this world and lived in it, find it now often difficult to recall even imperfectly the day-to-day situation in an epoch subject to constant development. It is even more difficult to judge an individual act of a man in that time. What was a man confronted with at that time? Or an even more difficult question: How could he evaluate the development of the past and of the present and what conclusions could he draw, from this and from other knowledge, as to future developments? Was not all this conditioned by a mass of imponderables, which now cannot even be described by the defendant, and which can even less be evaluated by a third party? We must remember these difficulties if we want to find the right methods to establish the true picture of the facts which we need for a just judgment: The individual case can be of value for us only as a symptom, if we want to evaluate the defendant in fairness. The individual cases can only be the starting points for an evaluation of his conduct as a whole. As in all cases, our task of clarifying the defendant's motives will be facilitated by looking at his personality and life. In our case they will have an importance far in excess of what is usual, they will even be decisive In a state based on law and administered in accordance with fixed legal rules the question of the motive of an act objectively contrary to the law can only affect the extent of guilt. But things are different in a dictatorial state, the head of which does not comply with these rules of law and uses overwhelming power to reach his goal. In this state a mutual relation of interests exists which is not possible elsewhere. A threatening wrong, which otherwise could be redressed with the legal means at the disposal of the State becomes unavoidable, unless a lesser encroachment into the legal interests of the person in question is risked. The idea of necessity, which in all countries is recognized as an excuse, wherever an inescapable situation exists in relations between individuals, is thus transferred to the larger sphere of the State.
Here, too, a situation arises, out of which there is no other escape, because overwhelming power is not used for the prevention of the threatening evil, but on the contrary for its perpetration. To him, who is in a position to prevent the threatening evil, this poses the question of whether his encreachment is justifiable by what he can attain. His decision is therefore of a moral kind. This must be the basis for the decision on whether the perpetrator is guilty or innocent before the law, to take out case, on his guilt for war crimes and crimes against humanity with which the defendant is charged.
This result is no doubt at first sight surprising for the jurist. But is it not made inevitable by the complete lack of legal protection, creating in its turn an irremovable compulsion? But the intended purpose which went beyond the act itself, and the perpetrator's motives are fundamental for your decision also because the concept of the war crime and crime against humanity no doubt presupposes a certain attitude of the perpetrator. This general concept has been declared the constituent element of a punishable offense; since the law did not make the various crimes mentioned in the explanatory list subject to punishment, it follows that this law was intended to punish acts which were to be branded internationally and were to be prevented in future because of their special nature and the special danger inherent in them: crimes against human civilization as such, crimes against the human spirit as such. The perpetrator must have acted contrary to the eternal law of mankind itself. That the con-stituent elements of a crime against humanity are present can be established only if the perpetrator has shown himself inhuman by his deeds. This is automatically excluded, if the intended purpose of the act is justified ethically; i.e. by the moral law of mankind.
Therefore I shall shortly deal with Dr. Schlegelberger's person and work up to the time referred to by the indictment against him, before I deal with the period itself. Schlegelberger's personality lies before us upon and easily discernible. The qualities of this man become clearly apparent from his work. His life is a straight path leading up to the highest position attainable by an official in the Administration of Justice and by a jurist. After a fast rise, the result of his excellent qualifications, he soon took over special tasks of outstanding legal importance in the Administration of Justice. He became a first class specialist, universally recognized as such by all jurists and administrators, in his special fields of Commercial Law, in particular Corporation Law, and on the very difficult problem of valorisation. You will get an idea of Schlegelberger's eminence as a jurist from the list of his publications submitted to the Tribunal. His reputation far transcends the frontiers of his own country, his "Encyklopaedisches Handwoerterbuch" (legal encyclopedia) is a standard work for the legal profession all over the world. He satisfied his scientific leanings by writing a unique number of publications and by teaching the law as a Professor at the University of the Capital. As an administrator he attained in 1931 the highest position in the Mnistry open to a Civil Servant. As he had never been a politician, he did not desire the political post of a Minister. He was still in bis position, when Hitler assumed power on 30 January 1933. His work as Civil Servant in the Civil Law Section of the ministry had always been independent of the comings and goings of ministers of Justice chosen by the political parties; accordingly he remained in office also after the Hitler government had been formed. This decision was made all the easier for him, since the Reich Minister of Justice, Guertner, was not a man with a National Socialist past and had formerly been recognized by all Parties in his native country as blameless in his incorruptible conception of Law. Under him, Schlegelberger retained, his old field of work, Civil Law, until he was put as the Senior State Secretary at Guertner's death, in charge of the Ministry of Justice.
The substance of the Prosecution's charges deals with the subsequent 1½ years, when he was in charge of the Ministry. But in order to be able to systematize his acts during this time, to illustrate its points and to strengthen its case against the defendant, the Prosecution has included in the picture the events of the preceding years from January 1933 onward. The Prosecution wants to conclude from all this that Schlegelberger was among those who consciously and systematically helped, ever since 1933 to give the entire Administration of Justice a direction which necessarily had to lead to the final consequences of the last years of the Hitler regime. What evidence does the Prosecution produce against Schlegelberger up to 1941, when he was put in charge of the Ministry?
We find mainly documents which are intended to prove that Schlegelberger showed signs of a National--Socialist mentality and activity.
The defendant Schlegelberger hrs already made it clear on the witness stand that he occasionally signed documents in Minister Guertner's absence for him, but that in these cases he did not have to deal with the matters concerned and therefore could not give details on these matters, partly perhaps also because he could not remember the contents and the exact circumstances relating to the letters signed by him.
The first of all applies to Prosecution Exhibit 428, the letter deeding with political Catholicism. We do not know the antecedents leading to this letter. Certainly Guertner could not escape the pressure of a "higher authority". We would on no account be justified in assuming that the letter was in harmony with his own personal tendencies. Guertner had formerly been Minister of Justice in predominantly Catholic Bavaria and there his good qualities had been recognized by everyone.
He was himself a Catholic and strictly religious up to his death.
That the idea of a prosecution of Catholicism cannot be in any way connected with Schlegelberger himself, is shown by his action in the Horneff case, as is proved by Schlegelberger Exhibit No. 76.
Futhermore the prosecution has by producing documents brought Schlegelberger in connection with the People's Court. Occasionally during vacation periods he issued deeds of appointment for the lay assessors chosen by Hitler. Copies of the People's Court President's directives concerning the distribution of the lay assessors among the various Divisions was sent to all Government agencies and organizations. This, too, was an action outside his normal sphere of activity, which he explained in detail on the witness stand as being in the nature of a routine administrative act.
The speech made by Schlegelberger at the jubilee of the People's Court was a purely representative affair, which he could not avoid in Guerther's and Freisler's absence; also the contents of the speech warrants no conclusion as to possible national socialist convictions.
Finally the Prosecution has pointed out the fact that in Exhibit 520 Schlegelberger signed an ordnance concerning the reunion of the Eupen and Malmedy districts with the Reich. This document has in no way been brought into any relation with the charges of war crimes and crimes against humanity, which makes it unnecessary for us to go into details regarding this ordinance. This comparatively small border district had become subject to a special arrangement in the Versailles Treaty, the execution of which has been actacked in many reports. For the reason just stated I need not enter into the question whether the Fuehrer's decree of 18 May 1940 which forms the basis of the ordnance signed by Schlegelberger, constitutes an annexation or not. For completeness' sake I want to point out that according to the conditions of the Armistice Belgium unconditionally surrendered to Germany, without the latter ever expressly renouncing an annexation.
The decree concerning the border zones and its reference to preparations for mobilizations must be regarded neither as a political act nor as preparation for a war of aggression. It is routine administrative act referring to the event of a war as such for which provisions must be made in every country.
The Prosecution tries to characterize the Defendant Schlegelberger's person especially by pointing out the speech made by him at the University of Bostock in 1936. This speech makes it especially clear to us how difficult it is today to form a correct picture of the conditions prevailing at that time, which alone would enable us to interpret the speaker's intentions. It is too easily forgotten what a speech in public and the attainment of the aim pursued in this speech were altogether only possible it its style employed the National Socialist stock-phrases. Only when cloaked in this phraseology could a subject be brought up for discussion and could thereby be dealt with effectively.
During his examination Schlegelberger pointed out that in this speech his idea was to oppose a very dangerous opinion, which was advocated above all by Freisler, that the party program was an'overruling law which was binding for jurisdiction. This opinion undermined the entire hitherto existing basis of the law. Schlegelberger opposed this opinion. It would have been impossible to declare in public, that the party program must be rejected as an overruling law, because this or that point of the program was open to objections. Criticism could only start from objections of a technical legal character, The political attack implied in that had to be couched in national socialist phraseology.
Finally Schlegelberger is charged with having welcomed the transfer of the Administration of Justice to the Reich, which, it is said, can only be made understandable from a national-socialist mentality; to refute this I may refer to Mettgenberg, Exhibit 35, which proves that this transfer of the Administration of Justice to the Reich had, to mention only one example, been included in its program by the Social Democratic Party of Germany in 1921.
I may also ask you to remember what this transfer meant in practice, it concentrated, the entire Administration of Justice in the hands of a man like Guertner and took it out of the hands of the Laender, where the ministers in charge of justice were predominantly old National Socialists in Bavaria Hans Frank and Thierack in Saxony.
This is in all essentials the evidence from which the Prosecution thinks it can draw the conclusion that Schlegelberger had, since the beginning of the Hitler regime, tried to surrender the Administration of Justice to National Socialism, as far as he had the power to do so, and that the thus paved the way for the later developments. What the Prosecution has to say - and it can always only interpret phenomenais by no means sufficient to prove such an assertion; the charge is, in my opinion, clearly refuted, if we subject Schlegelberger's personality to closer scrutiny.
In his political opinions Schlegelberger belonged to the old bourgeois parties. In 1933 he did not follow the enemy example of the opportunist majority of the German Civil Servants: he did not become a Party member. Even for a subordinate official this would have been a recommendable profession of opposition, which could be easily taken amiss and in most cases was taken amiss; for a man who held the position of a State Secretary this was an emphatic disaproval of the national socialist "movement" which had now assumed power. We may even say, that a Civil Servant who was one of the leading officials of a whole Branch of Administration, by refusing to joint the Party became a symbol for this administration, both to the outside world and to the subordinate officials within this Branch of Administration itself. I feel, therefore, justified in saying that a Civil Servant who held the position of State Secretary, by deciding to become a Party member, sufficiently proved his inner anti-national socialist attitude.
What the Party thought about it is self-evident. Hitler ended this state of affairs in 1938, at least for the outside world, by issuing a special decree ordering Schlegelberger's admission into the Party without previously heard him about it; this is best suited to illustrate the situation. Hitler's political opinion of him is shown by the fact that the Party did not even make a show of honoring him, as it was done in similar cases, by bestowing the Golden Party badge upon him and thus giving him a position of honor in the Party, and that also his date of membership was not ante-dated as it was customary in other cases.
When we call to mind the pertinent statements of persons who were Schlegelberger's closest colleagues and arc best qualified to give an opinion of his political views, we stand on firm ground and can reject all the interpretations which the prosecution tries to give to external appearances. In that connection I refer to the affidavits sworn by persons, the majority of whom are best qualified to judge the position objectively, either because of their anti-Nazi convictions or from their residence abroad.
Finally, I should like to draw your attention to the following: The German judiciary under Guertner and under Schlegerberger in charge of the Ministry was the object of continuous propagandists attacks, which became more forceful as time went on. The entire propaganda in the National Socialist State was directed from the highest quarters. The editorial staff of the SS periodical "Das Schwarze Corps" was even under Himmler's special direction. Just that publication, as was mentioned repeatedly in this care, made special efforts to discredit the administration of justice up to Schlegelberger's last day in office. One has to try and imagine this really unique situation in the National Socialist "totalitarian" State: a press campaign against a certain part of the Reich Administration being carried on by the Party, i.e., in the last analysis nothing else but the Rational Socialist leadership of the Reich.
Does this not prove sufficiently that this branch of the administration did not submit to the demands of the Party, did not fall in line with the National Socialist ideas, as was done in all other branches of the Administration, but in essence did not let itself be diverted from it traditional course, which was personified through its chiefs?
Perhaps the question will come to mind at this juncture why the party found it necessary to use such round-about ways in order to bring about a change of course through intimidation as well as a change of the personalities holding the highest pests, through defamation. As far as it is possible at all to conjecture in such matters, the solution may perhaps be found in the fact that the main obstacles in the way of reshaping the State structure and the government apparatus according to Rational Socialist ideas were inherent in the Bureaucracy, which is necessary to every State administration. From the time of the Empire on, right beyond the time of the Weimar Republic, the German bureaucracy as such held itself aloof from politics. National Socialism, which came into power in 1933, invaded all its branches. In the leading positions we see old National Socialists, whose ministries are soon vying with, the Party agencies in order to put the ideas of National Socialism into practice, which had sometimes been delayed for mere reasons of expediency. This is particularly obvious in e.g. the sphere of internal administration, whore we see a Ministry of the Interior, which is not only under National Socialist direction but steeped in the ideas of National Socialism and completely in step with them. Let us imagine the situation that would have arisen if the Ministry of Justice would have approached its task under similar leadership Looking at it objectively, however, it can only be said that even on the day when Schlegelberger relinquished his office, the administration of justice was still somehow a foreign organism within the over-all administration of the State.
This becomes evident with convicting clarity from the fact that even on 22 August 1942, at a time when Germany's entire public life was completely submerged in National Socialist ideas and directed according to them, Adolf Hitler called for the establishment of a National Socialist Administration of Justice.
I am aware that these observations merely state an over-all result and have to be evaluated as such. It goes without saying that an enormous number of important traditional concepts had been sacrificed during the preceding years of existence of the National Socialist dictatorship. It will be the purpose of the following observations to point out their scale, their effects, and also their causes.
I shall proceed from the important starting print just established, that Schlegelberger was not an exponent of National Socialist ideas. If in individual examples we subsequently find deviations from his inner conviction, we shall not be able to agree to the view of the prosecution that Schlegelberger turned renegade in these special cases. We shall not do so, especially, when we can see no material reasons whatsoever for the opportunism thus implied. If we recall to mind that Schlegelberger personally had really nothing to hope for, there must have been reasons other than opportunism prompting this man of advanced age to remain in his burdensome of ice. In this connection I beg you to consider also the following: Is it really such an unlikely idea, that a man who devoted his entire life Court No. III, Case No. III.
to serving the idea of justice and whom Fate placed in a responsible position in the Judiciary, should feel it his duty to remain in office in spite of the onslaught of the times, which rocked the very foundations of his thought? In such a man not bound to consider it his duty to preserve the administration of justice, as such, at all costs, even if most serious concessions have to be faced?
In the search for the real justice, only one question is decisive: Did the individual measures which diviated from the line resulting out of his inner attitude, also constitute a wrong within the meaning of the law statutes applicable in this case? Even if this question should have to be answered in the affirmative, as far as it refers to the facts, the essential criterion for the evaluation of the subjective side of the case on which a judgment must be based is whether the purpose of the action does not merit the approval of the law. It must always be put to the decisive counter test, what would have happened had the contested action not taken place, and this also must be carefully examined in each case in the defendant's favor--what development could he expect on the basis of what he knew?
In this matter we shall be faced again and again by a problem of major importance, which had to be taken into account in practically every decision; namely, the problem of the presumable consent of the injured party. It appears to be recognized by every criminal code, that an otherwise punishable act for which a punishment is held out in order to protect the interests of the injured party, is justified if the injured party himself gives his consent or if his consent may at least be presumed. During these proceedings, situations were discussed repeatedly where decisions had to be taken on whether the temporary or partial violation of a person's interests could be justified if such violation served to save the injured party from the certain threat of an even greater danger.
In such cases we shall give some scope to our imagination and imagine a hypothetical situation in order to clarify the problem. To quote two examples, let us suppose that prior to the decision concerning the promulgation of the Decree on Criminal Jurisdiction over Poles, a deputation of Poles and Jews had called on Hitler and that Hitler, in Schlegelberger's presence, had discussed his plans to let the police instead of the courts administer criminal law. If, faced with the impossibility to bring Hitler to abandon his plan altogether, Schlegelberger had, during the interview, suggested as a solution the Decree on Criminal Jurisdiction over Poles and Jews which was promulgated later, would not the deputation of Poles and Jews have consented to that suggestion under all circumstances? Let us extend this example to the Nacht-und-Nebel cases, which were to be taken over. Had members of the resistance movements in the occupied Western countries been told that the present method of jurisdiction was to be abandoned and death sentences would become the rule, in order to act as a deterrent; or had they been informed that it had been decided to let culprits held by the Gestapo disappear in Nacht und Nebel (night and fog); would not also these members of the resistance movements have agreed that the general judiciary should take over their cases in the suggested form?
After these initial remarks, may I now turn to the time during which Schlegelberger was in charge of the Ministry. There is foremost the problem of legislature in occupied territory. As by agreement with my colleague I have undertaken to deal with this problem in particular, I beg to be excused if I dwell on the subject perhaps more extensively than would be necessary in Schlegelberger's case only.
The prosecution considers the introduction of German law in part of the occupied territories a breach of international law within the meaning of Article 43 of the Hague Rules of Land Warfare. To justify this, the prosecution quotes the opinion given in the IMT Judgment, on which I shall base my remarks. The IMT Judgment went as follows: (page 16,500, German transcript, IMT Judgment; page 16,926 English transcript): "A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after the first of September 1939."
The IMT thus acknowledged by implication a general principle of international law; namely, that a belligerent is justified in annexing a subjugated country. It contrasts with this implicitly acknowledged principle of international law, however, the practice according to which that principle was never considered applicable as long as one of the armies concerned attempted to return the occupied territories to their original owners.
I agree with the opinion laid down in the IMT Judgment which recognizes the implications of a general customary practice embodied in the law of nations.
I cannot agree, however, that in international affairs an annexation never has occurred or never has been recognized while an army of one of the belligerent parties was still under arms.
It seems very significant to me that Hyde in the third edition (1945) of his "International Law" does not mention the principle that in spite of complete conquest an annexation were illegal while the allies of the conquered nation continue to fight (Vol. I, par. 106; Vol. III, par. 907). Also, the decision of Chief Justice Marshall of the Supreme Court of the United States of America in the case of Insurance Company vs. Vanter, mentions only the complete subjugation of the enemy and not that of his allies. (Hyde, Vol. I, par. 106, page 357, footnote 3). I believe to have proved in my Supplementary Document Book No. II that the point of view of the IMT has not been shared in practice either, by the countries concerned.
It is generally recognized and never has been contested by anyone that there existed no regulation in international law until the latter half of the nineteenth century which made the annexation of militarily-occupied territories dependent on the existence of certain prerequisities. The belligerents could annex the conquered enemy territories and demand the oath of allegiance from the subjects, irrespective of whether or not the enemy had been completely subjugated. This originally prevailing interpretation is still expressed in the "Instructions for the Government of the United States Army in the Field", Issued in the United States in May 1862, which were drawn up by Francis Lieber, an immigrant lawyer from Europe, and which later formed the basis for the Hague Rules of Land Warfare. I am referring especially to Article 33 of these instructions (Schlegelberger Exhibit 136). These instructions are clearly based upon the presupposition that the conquest of one part of enemy territory is sufficient a condition for the annexation of this part.
The orders issued by General Pope (Schlegelberger Exhibit 137), which were based upon these instructions, stipulate that the inhabitants of those confederate areas which had been occupied by Federal troops, had to take an oath of allegience, and if they refused to do so they were to be driven out of the occupied territory. These orders were severely criticized in the United States at the time. Not quite clear is whether this criticism was only directed against the proposed expulsions or also against the demand of the oath of allegiance. Important is, however, that these orders never were expressly cancelled.
During the second half of the nineteenth century one proceeded to codify the rules of land warfare which heretofore only had been applied as common law. The HRLW (Hague Rules of Land Warfare) were the result of these attempts of codification. The law governing the military occupation of enemy territory as laid down in HRLW contained stipulations which presume--as does the rule prohibiting the occupying power to demand the oath of allegiance from the inhabitants--that the once existing right of the belligerents to act at their discretion in regard to the annexation of conquered territories no longer is recognized within the framework of these codified restrictions. However, it must be emphasized that the HRLW themselves do not contain clauses stipulating conditions in which a belligerent may proceed to annex conquered enemy territory. These conditions must be supplemented from the usages of international law.
In practice an interpretation has been maintained under certain conditions and in various cases, according to which the annexation of parts of enemy territory were considered permissible even before the completed conquest of the whole country.
Upon the instruction of His Majesty's Government, the British Commander-in-Chief, Lord Roberts, issued a proclamation on 24 May 1900 concerning the annexation of the Free State of Orange (Schlegelberger Exhibit 138). He declared in his proclamation of 31 May 1900 that he would take all measures and issue all laws which were necessary "to maintain order, quiet and good government" in the annexed area, without making any reservations in this proclamation in favor of the existing laws of the country. Corresponding proclamations for the Free Spate of Transvaal were issued several months later. It is common knowledge that at the time of the issuing of this proclamation in 1900, only parts of the territories of these two Boer republics were occupied by English troops and that the Boer War was not terminated until the complete subjugation of the Boer States in 1902 (Schlegelberger Exhibit 137, page 18).
It is true that the above-mentioned proclamations were considered contradictory to international law by the opposition in the British House of Commons. However, from the fact that they have not been invalidated, one may conclude that the British government did not share the oppisition's point of view.
This is confirmed by a farther precedent. On 5 November 1914, the British government informed the belligerent countries that it had annexed the island of Cyprus which belonged to Turkey. England was at war with Turkey at the time of this latter declaration, a war which was terminated only in 1923, by the Peace Treaty of Lausanne (Schlegelberger Exhibits 140, 141).Further examples prove that not only Great Britain out also other countries, continued the practice of annexing parts of conquered enemy countries, i.e., the case of Italy in Tripoli (Schlegelberger Exhibits 142, 143), and Czarist Russia in the case of East Galicia.
Court No. III, Case No. 3.
The Governor General, appointed by Russia, proclaimed in his programatic address of 23 September 1914 in Lamberg, that it was intended to introduce in East Galicia "the Russian language, Russian law and Russian administration " (Schlegelberger Exhibit 144).
The annexation of the German colony of New Cameroon proves that the attitude of France was also in accordance with this customary practice. France took the view that New Cameroon had come back to France when French troops occupied it militarily in 1916. This had two reasons:
(1) New Cameroon was not among the German colonies which were ceded to the Allies in accordance with Article 119 of the Treaty of Versailles and then assigned by them to the League of Nations as mandates.
(2) The Treaty of Versailles did not contain specific stipulations concerning the cession of New Cameroon to France, but merely Germany's renunciation of her rights originating in the Treaties of 1911 (Schlegelberger Exhibit 147).
The above-mentioned international practice has been maintained even recently. The Potsdam Declaration of 2 August 1945 recognized the Soviet Union's annexation of the northern part of the German province of East Prussia including Koenigsberg. There can be no doubt that Germany was at that time completely subjugated. But Germany's ally, Japan, was then actually still fighting. If it is held that this annexation differs from Germany's and Russia's annexation of Poland in so far as the subjugation of Japan was only a matter of a short time when the Potsdam Declaration was drawn up, I can only reply that in 1939 and 1940 Germany and its ally at that time, the Soviet Union, were in undisputed mastery over the European continent and that according to the situation then existing--or at least the situation as it was justifiably looked upon by the defendants--a reconstitution of Poland through the landing of British troops on the Continent was beyond all Court No. III, Case No. 3.possibilities based on realistic thought.