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.
Court No. III, Case No. 3.
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.
Court No. III, Case No. 3.
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.
By their very nature as occupation law, they can only apply to those who are actually in a position to commit the offense in question; namely, to the inhabitants of the territory under occupation.
All other substantive penal law has been regulated in fig. II of the ordinance. The ordinance of 6 June 1940 (Schlegelberger Exhibit 26) introduced German penal law into the incorporated Eastern territories. Furthermore, the defendant Schlegelberger had no share in this ordinance which carries the signature of Guertner and Frick. The ordinance of 4 December 1941 was intended to summarize all pertinent penal regulations; this hitherto existing provision has been incorporated in the new ordinance under fig. II. The hitherto existing legal status thus remains in force. If, for example, someone committed theft in these territories, he was punished in accordance with Art. 242 of the German Penal Code without regard to the offender's race or nationality, whether German, Pole or Jew. Thus, even after the ordinance came into effect, a Pole who had committed theft was punished not for violation of the Penal Code for Poles and Jews but for violation of Article 242 of the German Penal Code.
Finally, also the law of 4 September 1941 has been introduced in the incorporated Eastern territories according to which dangerous, habitual criminals and sex criminals are to be sentenced to death if necessary for the protection of the people's community and in accordance with the demands of a just atonement. The provisions in Section III, subsection 2, of penal Code for Poles and Jews, incorporated from the draft of this law, specially kept this case in mind. The development of penal legislation in the interval between the drawing-up of the ordinance (April 1941) and its publication (December 1941) robbed it of all practical meaning.
Thus, an examination of the provisions of substantive law of the Penal Code for Poles and Jews does not contain the elements of a crime against humanity either in its Irredenta provisions in Part I, Court No. III, Case No. 3:which did not exceed the penal measures generally applied to such offenses, or in its general penal provisions of Part II.
Therefore, the application of this provision to the Poles and Jews who arrived after 1 September 1939 in the old Reich is fully justified. The Irredenta regulations as well had to be applied to them because, in crossing the border into Germany they brought with them the desire for resistance, that had to be countered; and therefore, our goal to attain protection and to frighten off resistance called for measures against them. Initial consideration must also be given to the fact that they ware judged in accordance with the same law that was applied by the courts in their former place of residence.
With respect to the provisions of the ordinance with regard to penal procedure, it must first of all be premised that they were not applied, whenever a Pole or a Jew who had entered the old Reich after 1 September 1939, was prosecuted (Number XIV, paragraph 2).
Moreover, I can refer chiefly to Schlagalbarger's testimony, according to which the Poles and Jews were not deprived of an opportunity for adequate defense, or of the same opportunity for being granted clemency, that is extended to every convicted person. He also showed what was meant by a general exclusion of a civil suit, rejection of a judge, and exclusive jurisdiction of the prosecuting authority to apply legal remedies. Legal procedure must always consider actually available possibilities for the carrying out of the proceedings. Special conditions in wartime and in trials in occupied territories require amendments in the otherwise valid regulations.
It must at all times be possible to conduct proceedings in such a manner that a just verdict can be reached--and this is a reservation which has not been ignored here. In this connection I can also refer to the presentation by the Chief American Prosecutor in the International Military Tribunal Case, Justice Jackson, and to the statements in the Judgment of the IMT, in the section called "The Law of the Charter".
Court No. III, Case No. 3.
A comparison with the restrictions in legal procedure generally put into effect in Germany during the course of the war, will show to what extent the personnel shortage caused by the war also required changes in this respect.
The provision that polish and Jewish witnesses were not to be put under oath had been categorically demanded by the Party Chancellory. It should be pointed out that for quite some time in the old Reich the swearing in of witnesses in penal matters had been becoming more and more obsolete, and that finally the swearing in of witnesses was left to the due discretion of the court. According to the German law for penal procedure, regardless of whether or not the witness had been sworn in, the court could decide on the probative value of the testimony. Moreover, as the result of the introduction of a penal regulation concerning statements made by witnesses not under oath, the probative value of the testimony of a witness not under oath could in practice be regarded as a sworn statement.
All the restrictions placed upon this ordinance resulted from the requirements of the occupied territory and, in the last analysis, this can be best shown by the fact that the Poles and Jews who had entered the old Reich after 1939 were sentenced in accordance with the regulations for legal procedure generally valid there.
An argument for the inhumanity of the ordinance can no more he advanced from the nature of the punishment than it can from the extent thereof. As sentences of imprisonment, the ordinance calls for detention in an ordinary penal camp and in a penal camp under especially severe conditions. The meaning of these two terms has been repeatedly discussed during the course of the trial. Witness Hacker, who was formerly Referent (Department Head) in the Department for Execution of Sentences in the Reich Ministry of Justice, and therefore is a special expert on this subject, has given a detailed statement on this matter. (Transcript of 7 July 1947, pages 4866-4867 of the English text). According to his statement, prior to the issuance of the ordinance for Poles Court No. III, Case No. 3.and Jews, the Party Chancellory had demanded a new kind of sentence by imprisonment and that such a sentence be served in camps instead of in the institutions used until then.
This desire was only given apparent consideration in the ordinance. The Reich Ministry of Justice confined itself merely to giving the institutions new names. Poles and Jews were confined separately from other prisoners in the jails and penitentiaries used until then, and these institutions were named "Stammlager" (main camps). In these Stammlager and their subsidiary camps, the prisoners received the same food and treatment as the German prisoners. The same applied especially to matters of discipline as well. Corporal punishment as demanded by Bormann, and referred to in the testimony of Defendant Schlegelberger and in Prosecution Exhibit 200, was not allowed.
Detention in a penal camp under especially severe conditions was to be distinguished from detention in an ordinary penal camp, by the assignment of especially heavy work. According to the testimony of Witness Hecker (Transcript; pages 4866-4867 of the English text, this difference was not put into effect.
During the course of the trial it was argued whether or not the Stammlager had been concentration camps. There can be no question about this. The Stammlager, as already mentioned, were the old jails and penitentiaries, now merely called by another name. The concentration camp question came up for particular discussion in connection with Prosecution Exhibit 267. It is actually this document which clarified the situation. In May 1942; Kubiak, a Pole, was in the Stammlager at Schieratz. In January 1943, upon the order of Thierack, the Gestapo transferred him to the Auschwitz concentration camp. This measure, which can obviously be traced back to Thierack's letter to Bormann on 13 October 1942, Prosecution Exhibit No. 143, would not have been necessary if Schieratz had been a concentration camp and not a penal camp subordinate to the Ministry of Justice. Concerning the nature of the penal camps, I refer to an affidavit which was recently given to me by Marx, who had for many years been leader of the Department for the Execution of Sentences, in the Reich Ministry of Justice (Schlegelberger Exhibit No. 162).
As already mentioned, the Penal Code for Poles and Jews was issued by the Council of Ministers for the Defense of the Reich. As Defendant Schlegelberger told in detail while on the witness stand, this was due to Himmler's constant insistence that the administration of penal law for Poles and Jews be taken over by the police, and due to the special instigation of the Party Chancellory (formerly "Fuehrer's Deputy"). In its judgment the IMT found that Hess; the "Fuehrer's Deputy", had demanded a special penal code for Poles and Jews. The Judgment of the IMT deemed it just that this fact was not sufficient to sentence Defendant Hess for a crime against humanity (English transcript, page 16,987). I request that this opinion of the IMT concerning former Defendant Hess, be compared with what Defendant Schlegelberger can claim.
He did not act of his own free will, as Hess, who, unhampered by any opposition, merely followed the political aims of the Party, on his own initiative. It was actually Hess with whom Himmler had allied himself, on this point, who had confronted Schlegelberger with the alternative of giving in to the transfer of authority to the police, as requested, or, by creating a new law, to attempt to dissuade these authorities and Hitler himself from their plans. In practice the choice amounted to whether the Poles and Jews should be surrendered to an uncontrollable fate -- this was the solution chosen by Thierack after Schlegelberger had left -- or whether the provisions of the law should be changed in such a manner that they would remain assured of a legal proceedings carried out in an orderly manner.
Schlegelberger could choose only the latter way. His submitting the draft of the new decree to the decision of Council of Ministers' for the Defense of the Reich was a tactics which later on proved to have been absolutely correct.
He himself testified in the witness stand now he had to proceed and also what was the purpose of his letter of 14 April 1941, prosecution exhibit No. 199. For the evaluation of the contents of a letter the characters of the receiver and of his advisors are always of decisive importance. If one is anxious to succeed with one's proposition one must talk the receiver's language, one must choose arguments for which one can expect to find some kind of understanding. Practically, the Council of Ministers could not issue any law without Bormann's consent. The letter, therefore, had to be conceived in a way that would appeal to his personality and to the members of the Council of Ministers. Considering the sharp demands that had been made, all individual points which seemingly aimed at even stricter measures had to be placed in the foreground and thus the general tendency of the draft had to be camouflaged.
With regard to the evaluation from a psychological point of view of such letters to Party offices, I take the liberty of referring to the statements in this verdict of the Tribunal I concerning the Defendant Blome.
Himmler's letter of November 5, 1942, prosecution exhibit No.256 clearly reveals the meaning of the new decree and what Himmler had demanded instead, who apparently had only retracted before Goering's cleverly interposed authority.
He complains that the decree completely neglects the problem that foreign peoples are to be treated entirely different from Germans and that, on principle, the same points of view determining the sentencing of a German, are still to be applied. Himmler wants to do away completely with the personal motives of the perpetrator and in the end he draws the conclusion that the administration of criminal law concerning foreign peoples should be transferred from the hands of the judiciary into those of the police.
One has to read this one letter in order to see that the new decree constituted the maximum of what could be achieved in the way of maintaining court protection for Poles and Jews. Retrospectively it can be stated that it was probably only Goering's intervention as president of the Council of Ministers which prevented the realization of Himmler's request. In order to judge Schlegelberger's action it seems to be not without importance to realize for one short moment what that solution would have meant for the countless Poles and Jews falling under that decree. The criminal statistics for the year 1942 presented in exhibit 507 according to which 61,336 Poles and Jews were sentenced in that year will be of assistance in this case. The number of death sentences pronounced was 930. In 45,197 cases sentences involving confinement in prison were pronounced, in 16,939 cases fines were imposed. It can thus be stated that over 60,000 Poles and Jews have been saved from an uncontrollable fate at the hands of the police, a fate, which, after what we have learned lately, we can imagine only too well.
I am referring to the reports of the officials of the Vorstand of the District Court of Kattowitz, prosecution exhibit 285, of the Reich Statthalter of Danzig, prosecution exhibit 470, as well as of the General Public Prosecutor at Nuernberg in exhibit 478 and to the prosecution exhibit No. 537.
The verdict of the IMT characterizes the situation best, according to which Bormann is found guilty of crimes against humanity because he "deprived Poles and Jews of the protection of the courts and placed them under the exclusive jurisdiction of the Gestapo" (transcript Pag ).
The indictment in figures 16 and 28 charges Schlegelberger with having issued "discriminatory measures against Jews, Poles, "gypsies" and others designated 'asocials' and finally charges him with having "transferred to the Gestapo for "special treatment" all cases in which Jews were involved."
The course of the proceedings should have sufficiently clarified the fact that measures of that kind were not taken until the time after the defendant had withdrawn from his office. Not until the year of 1943 was the authority to punish criminal actions committed by Jews transferred to the police. (Decree of 1 July 1943, Reich Law Gazette I, page 372.)
In this connection I have to refer to the summary court martials established in the incorporated Eastern territories.
As stated by the defendant in the witness' stand, Himmler's and Bormann's minimum request was the establishment of summary courts martial. Considering the distribution of power it was not possible to deny altogether, without endangering the decree itself, There was, however, the possibility of inserting a safety valve. Schlegelberger succeeded in tying--up the practical realization of this request with the consent of the Reich Minister of justice by inserting a special regulation into that decree, Through this regulation the opponents were to be pacified at least for the moment and thus the question was to be postponed for possible later negotiations.
Once the decree was issued there would be better possibilities for opposition.
The following time, however, showed that this calculation had been wrong. Himmler did not follow the path prescribed by the decree, but sent Gauleiter Greiser, a special advocate of the Party in this field, to Hitler and he succeeded in getting Hitler's direct decision, to have summary courts martial established and the right to grant pardon transferred to the Reichstatthalter. I am referring to prosecution exhibit 345. Through this decision from highest authorities Himmler had circumvented the question of the consent of the two Ministries and Schlegelberger's hands were tied.
The question discussed by the prosecution in exhibit No. 360 concerning the deprivation of civil rights is a purely technical matter of terminology, which seems to me to have been sufficiently cleared up by Schlegelberger's own testimony.
In exhibit No. 71 the prosecution presented a decree issued by Schlegelberger on 24 July 1941, by which he considers the death sentence adequate for sexual crimes committed by definitely criminal characters. The Defendant, while in the witness stand, explained the reasons for the issue of this decree concerning the Poles. In addition to his statements I want to point out, that in the case of sex criminals and dangerous habitual criminals, the death penalty is also provided for German perpetrators, as stated in the law of 4 September 1941. Those dates reveal that the decree of 24 July 1941 represents ideas which were at that time the basis of a general law already prepared.
The prosecution is wrong in stating through presentation of exhibit No. 70 that Schlegelberger changed the personnel of the penal chamber in Lueneburg, because the court had arrived at a decision favoring a Pole. Not because the decision was in favor of the Pole -- after all, decisions of that kind were made every day, without the personnel of the court being changed - but because Schlegelberger deemed it necessary in the interest of the administration of law, that the judge involved be given a different field of activity.
By its decision, the motivation of which had been sharply rejected by the Reich Supreme Court, the penal chamber had demonstrated that it was in no way master of the actual situation.
His later attitude shows most impressively that nothing was less in the interest of the Defendant Schlegelberger than the subject of the Poles and the Jews to a treatment unreconcilable with the laws of humanity, and that, on the contrary, he was anxious to grant them just proceedings.
The witness (Gramm(English transcript page 723 testified that Schlegelberger constantly reminded the judges in the Eastern territories to proceed with the utmost of care and in the same manner as if Germans were concerned, when making factual investigations and when passing sentences against Poles and Jews.
That the Fuehrer Information 66 was not known to Schlegelberger is clarified by the affidavit Ebersberg: Schlegelberger was at that time on vacation and then also was represented by Freisler at the Fuehrer Information. The Official title of the chiefs of the agency had to be signed by a deputy, as follows: "By the order of."
In the same way Schlegelberger knew how to make those points of view clear to all the judges. After, in December 1941, Freisler had published in the official magazine the "Deutsche Justiz" (German Justice) in order to introduce the decree, an article in which he used the usual national socialistic slogans, Schlegelberger prevailed upon Freisler, who actually was a very unbalanced character, to publish in the same magazine another article which is contained in the Schlegelberger exhibit No. 27. Two things were accomplished by this article: Freisler had himself committed to a more moderate new line. The Judges, on the other hand, certainly were most impressed by this moderate attitude of Freisler's of all people, who, after all was known in all legal circles for his extreme tendencies, and they had to be interested in a just decision.