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.
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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.
If international practice goes to prove that the great powers decide in favor of the annexing nations (in this problem of annexation which has not been regulated by the Hague Rules of Land Warfare) when, furthermore, there does not exist a complete subjugation of the enemy and his allies, one can still less disregard in the case of Poland that the Polish State was completely subjugated and dissolved by the events of September 1939. This views of the situation must count in favor of the defendants, particularly with respect to the problem of their allegedly criminal intent.
The war between Germany and Poland which began on 1 September 1939, led to a complete military collapse of Poland within a few weeks. The Polish Army disintegrated. Its largest part was captured by the Germans. Single detached sections crossed the frontier into neutral Hungary where they were interned. The Polish Government resigned. Their successors fled abroad. On 9 September 1939 Soviet troops entered Poland, occupied those parts of Poland which were not then in German hands, and there captured the remnants of the Polish army. Thus the whole State of Poland was occupied and its Army completely destroyed. This furnished the objective prerequisites for an annexation. Germany as well as the Soviet Union expressed their opinion that they considered the Polish State non-existent. In a diplomatic Soviet note at Moscow (Schlegelberger Exhibit 149) it is stated, e.g. "that the Polish State and its government actually have ceased to exist."
In the joint declaration of the German and Soviet governments (Schlegelberger Exhibit 149), which was published one day later, it reads similarly in regard to the operations of German and Soviet troops in Poland: "The task of these troops consisted in restoring order and quiet in Poland, which had been destroyed during the collapse of the Polish State."
The demarcation of the Polish territories annexed by Germany and the Soviet Union is carried out on the basis of the border and Court No. III, Case No. 3.friendship agreement of 28 September 1939 (Schlegelberger Exhibit 149) which "determines the frontier between the interests of the two powers in the territory of the former Polish State" (Art.
1) and which states "that Germany will be responsible for the new necessary constitutional regulations in the part located west of this line" (Art. 3). The common declaration of the two governments of the same day underscores once again the conviction of the two governments as to the fact that "the agreement signed today has definitely settled the problems arising from the dissolution of the Polish State, thus creating a sound basis for a lasting peace in Eastern Europe" (Schlegelberger Exhibit 149).
That other states besides these two were also of the opinion that the former Polish State had ceased to exist is shown by the fact that parts of these territories were ceded to other countries; thus, the Soviet Union gave the territory of the City of Wilna to Lithuania, by the agreement of 10 October 1939 (Schlegelberger Exhibit 150) and Germany gave a strip of territory in the Carpathians to Slovakia, by the agreement of 21 October 1939 (Schlegelberger Exhibit 151).
In summing up it can be stated that the actual facts justify the point of view which considers the former Polish State as dissolved and that thus the incorporation of parts of the Polish Republic into the German Reich did not contradict the practice of international law.
The IMT verdict has left the question open as to whether the international legal situation is changed if one considers the occupation of Poland as having been the result of an aggressive war. Permit me, therefore, to make a few statements on this point.
If one wanted to answer this question in the affirmative, one would arrive at the following results: If the aggressive war on the part of the attacking party would, to its disadvantage, not come under the rules of the usual international law, the limits drawn by international law would, as a matter of course, not exist any longer for both parties in regard to this war. The entire conduct of the war by the attacking party would, in all its details, become contrary to inter Court No. III, Case No. 3.national law.
Every shot by a soldier of the attacking party would be murder or attempted murder. It is perfectly clear that when the matter is viewed in such a way any application of international rules would become a practical impossibility in the fact of the situation thus created. This is also necessary to protect the application of these rules themselves. It is not necessary to determine in the individual case who the attacker is; this is frequently only determined by history after the archives have been opened. When a war breaks out it is common practice for each of the two warring nations to accuse the other of having caused the war. If the regulations of international law would be lifted to the disadvantage of the attacking party, this would mean, in practice, that both parties were conducting the war outside the realm of international law. Actually in the second World War the Allies, too, expressly recognized the binding force of international law; for example, in regard to the prisoner of war problem. Such recognition cannot be restricted to individual fields. Already the practical needs of the conduct of war make it necessary to recognize or reject international law as a whole.
By the way, in this connection the last paragraph of my Document No. 155, where Foreign Minister Molotov accuses Poland of being guilty of the war seems to me to be of certain interest. As far as German laws have been introduced in the so-called Protectorate of Bohemia and Moravia, it would suffice to say that a state of war never existed between Czechoslovakia and Germany. This eliminates the prerequisite for a war crime; namely, the violation of the customs and laws of war. The exhibits submitted by me shall prove to what extent the legislation in the Protectorate can find its intrinsic justification from the point of view of constitutional law.
The concept "Protectorate" permits many interpretations. In a more narrow, scientific sense protectorate means a relationship between two States based on international law; the foundation of this relationship is a treaty between two sovereign States. In addition, Court No. III, Case No, 3.there is a wider concept of protectorate.
It comprises all types of relationships of constitutional dependence. I refer to the explanations of Fenwick in Schlegelberger Exhibit 129.
In the case of Bohemia and Moravia, such a relationship of dependence was created by treaty.
On 15 March 1939 the treaty contained in Schlegelberger Exhibit 130 was signed by the Czechoslovak President Dr. Hacha and the Czechoslovak Foreign Minister Chvalkovsky on the one hand and by Hitler and the German Foreign Minister Ribbentrop on the other. This treaty goes beyond the more narrow concept of a protectorate treaty and has not been considered as such--as is proven by the documents submitted-by Germany or by Czechoslovakia or by any other country. As correctly stated by the verdict of the International Military Tribunal (page 16,425 in the German text, page ______ in the English), it was rather "an agreement concerning the immediate incorporation of the Czech people into the German Reich". The wording of the agreement makes this very clear, for it is not stated there by the Czech President that he puts the Czech State under German protection but that he "puts the fate of the Czech people and the country trustingly into the hands of the Fuehrer of the German Reich". This full power to dispose of the fate of the Czech people and country (the expression "State" is not applied any more) is expressly accepted by Hitler, who then expresses his decision to put the Czech people under the protection of the German Reich and to guarantee it an autonomous development of its racial life in accordance with its peculiarity; in other words, Hitler declares that he is ready, after Czechoslovakia has been incorporated into Germany, to grant the Czech people--unilaterally, by Reich statute--a large amount of autonomy. Subsequent procedures were in accordance with this decision.
On the same day, i.e., on 15 March 1939, the German troops occupied Czechoslovakia and Hitler issued a proclamation to the German people. In this proclamation (Schlegelberger Exhibit 131) Germany Court No. III, Case No. 3.clearly expresses its opinion that the Czechoslovak State has perished.
A day later, on 16 March 1939, the decree of the Fuehrer concerning the Protectorate of Bohemia and Moravia is issued which by Hitler's order is announced on the radio from Prague by the Foreign Minister and of which later all the foreign powers were notified. The decree (Exhibit 132) states once more in its preamble, that "the Czechoslovakian State had now disintegrated also in fact" and then orders the incorporation into the German Reich of the former ethnically Czech parts of the former Czechoslovakian Republic. The erection of the Protectorate is mentioned only after the declaration of incorporation.
Article one of the decree sums up both acts in the following wards: "The parts of the country of the former Czechoslovakian Republic which were being occupied by the German troops in March 1939 are from now on part of the territory of the Greater German Reich and come under German protection as the Protectorate of Bohemia and Moravia". This Article is of fundamental significance for the problem which is to be solved here. It has the effect that the Protectorate of Bohemia and Moravia constitutes a part of Germany, that therefore its relations to Germany are not based on international but on national legal rules, and that the basis for its relations is a German law, namely the Fuehrer decree dated 16 March 1939, and not an international treaty.
In the meantime the Slovakian part of Czechoslovakia had declared itself an autonomous State, Slovakia, which had been recognized by Germany and which had put itself under the protection of the German Reich by concluding an international treaty of "protection" in the above-stated narrower, scientific sense. Parts of the territory of Czechoslovakia bordering on Hungary and on Poland had been annexed by Hungary and Poland respectively. Thus the Czechoslovakian State had disintegrated. Apart from the new Slovakian State, it had been merged into other States and had lost its sovereignty (see SCHLEGELBERGER Exhibit 160). This also applies to the Protectorate of Bohemia and Moravia. The Government of the Protectorate could not be formed Court No. III, Case No. 3.independently, but according to Article 5, paragraph 3 of the decree the confirmation by a Reich official was necessary, the "Reich Protector" residing in Prague.
Article 11 of the decree dated 16 March 1939 especially stipulated that the German Reich was authorized to issue laws in the Protectorate, as far as the common interest made this necessary. While, in the following Article 12, the decree maintained as valid the laws than in force in Bohamia and Moravia, as far as they were not in contradiction to the effect intended by establishing the Protectorate, this concession had its limit, where, at Germany's discretion, it would become necessary to introduce according to Article 11 the German law in the common interest.
But even if the introduction of the German Penal Code in the Protectorate of Bohemia and Moravia would have constituted an infringement of article 12, only the national German law would have been infringed and not International Law, sine a the relations between the German Reich and the Protectorate were regulated by national law and not by International Law.
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The documents I have submitted unanimously prove that all other countries took the events of 15 and 16 March as being a German annexation of parts of Czechoslovakia, and not as establishing a Protectorate as understood by International Law. The other countries based their attitude on the incontestable fact that Czechoslovakia did no longer exist, even if they stated that the events in Czechoslovakia were contrary to law and even launched protests. In this respect I refer to the following declaration by the Czech Minister in Paris, Osuski, dated 2 April 1939: "The result is that the Czechs and the Slovaks continue to exist as a nation, though Czechoslovakia as a State does no longer exist." Furthermore I refer to the British Government's declaration, read in the House of Commons on 15 March 1939, on the expiration of the territorial guarantee which England had given to Czechoslovakia in Munich in the Autumn of 1938. This expiration was being based on the fact that the Czechoslovakia State had ceased to exist.
Thus I arrive at the final result that the starting point of the indictment, that the introduction of new laws in the occupied Eastern territories and in the Protectorate was contrary to International Law, can not be maintained for factual reasons.
But even if the point of view of the Prosecution concerning the legal problem is accepted as correct the defendants must be excused for having taken the opposite point of view in this very complicated legal problem, which in itself is not a problem of penal law but only concerns a prerequisite in the sphere of non-penal law. In this connection it has to be considered that the evaluation of problems of International Law in reality essentially depends on the exact knowledge of international political events. This necessity was recognized by the regulation that the Foreign Office was responsible for the preexamination of all problems concerning International Law for all the Ministries, including the Reich Ministry of Justice.
May I return to the case of Poland. If, contrary to my ex Court No. III, Case No. 3.position, we start from the assumption that no valid annexation within the meaning of International Law had taken place, than the legal situation in the annexed Eastern territories must be judged according to the Hague Rules for Land Warfare.
Then we have to consider the following: Article 43 of the Hague Rules for Land Warfare is not cogent law. It only regulates the normal case "as far as no compelling obstacle exists." The actual situation which forms the basis for the possibilities to maintain peace and order, decides on the obligation of whether or not to apply it. In this respect I beg to refer to SCHLEGELBERGER Exhibit 156, in which Thomas Erskine Holland agrees that in the sphere of penal law it would be necessary to introduce new legal stipulations. The Polish Republic had actually disintegrated. A complete occupation of the country and a dissolution of all State powers had deprived the country of the sovereign authority in the name of which justice could be administered. A government in exile, domiciled in London, to which was opposed a government recognized by the Russians, with its seat first in Moscow and than in Lublin, could not be considered to be the authority in which sovereignty was vested.
Moreover, the dissolution of the entire governmental administration comprised the former Polish judicature so that there was no practical possibility of applying Polish law. I refer to Freisler's article in the "Deutsche Justiz" (Prosecution Exhibit 627) in which the states that when, in the autumn of 1939) the first German judges had to be sent into occupied territory they were forced, not by legal regulations but merely in view of circumstances, to apply the only law with which they were familiar, that is to say, German law. In this connection I should like to refer to an analogous situation which is mentioned in Lautz' Exhibit 226 according to which, in 1923, in the occupation area of the Rhineland, the Allias and their associates had their judges administer law "according to the principles of international law solely in keeping with the laws of their own country". Moreover, the fact that the areas concerned still applied German law even during Court No. III, Case No. 3.the era of the Polish Republic has already been ventilated in the defendant 's examination.
So much for the question whether the introduction of a new legal system may contain the elements of a war crime.
I shall now deal in detail with this legislature in order to examine whether the introduction of those new laws may be regarded as a crime against humanity. The chief subject of the proceedings before the Tribunal was the "Ordinance concerning the administration of the penal law for Poles and Jews for the incorporated Eastern territories" dated 4 December 1941.
To begin with, I must mention that this ordinance had been issued not by the Minister of Justice but by the Council of Ministers for the Defense of the Reich. It bears the signature of Goering, Frick and Lammers but not the signature of Schlegelberger who was not a member of the Council of Ministers.
The Minister of Justice had, under fig. XVII, merely been authorized "to issue, in agreement with the Reich Minister of the Interior, the legal and administrative regulations pertaining to the implementation and supplementation of the ordinance and to decide doubtful cases through administrative channels."
In connection with this ordinance the following may be said: The substantive law of the ordinance comprises two widely different parts.
General penal law is regulated in fig. II of the ordinance and conforms in the main to the hitherto existing legal state. I shall postpone the subject until later in order to deal first with the regulations contained in fig. I of the ordinance which settle issues which I should like to call Irredenta laws.
These regulations contain provisions for the protection of the occupation power and against riots, provisions which in contents and range of penalties are not more severe than customary. Their range of penalties includes the death penalty.
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No State when acting as occupation power can do without it. Here I refer to the occupation law of the Allies. There is one offense for which the ordinance provides for the death sentence without appeal, that is in the case of outrages against a German for belonging to the German ethnic community. This penal norm has been taken over from the ordinance of 6 June 1940, previously in force. It covers for occupation power the most dangerous type of offense which in itself denotes violent Resistance to the occupation power. In all other cases, the death sentence is the extreme measure of a wide range of penalties which even includes imprisonment for three months.
Defendant Schlegelberger, as witness in his own case, has already pointed out that this provision already constitutes an essential and, in practice, considerable alleviation of the previous legislation in so far as the largest number of offenses involving weapons--probably the chief offense in occupation law, and incendiarism is no longer liable to the death penalty without appeal. In accordance with the new regulation, that is in view of the retroactive provision of 31 January 1942, (Prosecution Exhibit 346), these offenses, also if committed in the past, may be atoned by a prison sentence, determined by the importance of the individual case.
This alleviation of penal provision in the case of offenses involving weapons gains greater significance by the well-known fact that the resistance movement in all territories under German occupation, in particular in Poland, after the outbreak of the war against Russia, was steadily on the increase. I refer to Schlegelberger Exhibit 157 for the corresponding figures for a period of four months. In view of this fact, the significance of the reduction in penalties becomes clear: it is a surrender of the absolute principle of the warning example, most frequently so necessary in occupation law, in favor of the possibility of doing justice to the individual offender and to the significance of his deed for the interests of the whole community.
No reproach of unequal judicial treatment may be made against Court No. III, Case No. 3.the regulations for applying to Poles and Jews only.