Your Honors, it is now up to you to decide. What is wanted, is not a decision of the question, whether Justice was administered well or badly during Schlegelberger's term of office, but rather of the question, whether in the conditions of compulsion prevailing in the dictatorship he was able or was even justified to act otherwise than he actually did.
An immense mass of material has been examined in a six months' trial individually, but also against the background of general conditions; all this was done to ensure a just verdict. This justifies my confidence, that your verdict, which will determine the fate of the Defendant, will bet Schlegelberger is rot guilty of the charges brought against him.
To the statements made by the Prosecution this morning I have to add some short statements on my part. To start with, it is right that the Law No. 10, in virtue of which the indictment was filed contains now concepts of the facts of a case, and of the participation which were not known to German law. If, however, beyond that the Prosecution applies general concepts of law in this trial and takes these particularly from American law, then I wish to point out that a defendant without approaching the problem of reproductive force of the law No. 10 can be convicted only under those provisions which were recognizable as binding for him at the time at which he committed the deed. If this is true in a general way, it is true in particular with the construction concerning the responsibility of Schlegelberger for those acts which took place in the time of Thierack. The Prosecution says among other things that the legislation at the time of Schlegelberger provided a possibility for now measures which Thierack took. Schlegelberger had expected that after he had left, a more severe course would be taken, and, therefore, had taken such developments into account in his intentions. This constention is erroneous and particular because it is proved by evidence that Schlegelberger in the case of his resignation was afraid that a more severe course might be taken, but just because of that was doing everything to avoid such a course.
If the Prosecution were consistent in its construction, it would have to take the view that Schlegelberger in all circumstances should have remained in office even beyond the limit that he had set for himself. The point which is generally interpreted in this favor, that is to say, his resignation at a time when he could no longer assume the responsibility of staying in office, his resignation to which special tribute was paid in the verdict of Tribunal II in the case of Erhardt Milch, is now the same point which he is being charged with.
Another point the Prosecution stressed is that the law against Poles and Jews besides being in the incorporated eastern territories and tho Altreich was also applied in the Government General. The Prosecution is wrong in saying so. In the Government General that law was not applied. There in effect the conditions prevailed which it was possible to avoid in the territory where the law against Poles and Jews applied. The IMT-Trial revealed a clear picture as to the terrible effects which the transfer of competency to the Police had in those territories.
Further more, I recognize the right of the Prosecution to draw a picture of a defendant which shows merely the incriminating points, and particularly to evaluate the motives. However, if in its expression, contents and legal construction it goes beyond a comprehensible measure, I can only appeal to the objective, critical sense of the Tribunal. This is true in particular concerning the interpretation that Schlegelberger had opposed the efforts of the police because he was jealously intent on the prerogatives of the Ministry of Justice. Such a misinterpretation can naturally not be opposed with any obvious signment-
THE PRESIDENT: You have covered that point very adequately already. You had adequately covered that point already as far as you can.
DR. KUBUSCHOK: And now, in conclusion, may I deal with the statement made by the prosecution concerning Schlegelberger's resignation.
It is easy to discredit a commendable fact by bringing it into contact with material interests. It is true that Schlegelberger when he resigned did receive a check for 100,000 reichsmarks. He did not however, ask for that check, and he didn't expect to get it. Meissner described the situation and stressed that it wasn't possible to recuse such a gesture of Hitler's. What reasons Hitler had to give that check to Schlegelberger one can only guess. Hitler looked carefully to it that when Schlegelberger left office, nothing was there to show that there were inner differences of opinion within the higher authorities of the state. Therefore, as a rule minsters and under secretaries when they left office were awarded a title or a high rank for show. I refer to the cases of Nourath and Yhacht. In the case of Schlegelberger he believed that he had to do something of lesser importance. Schlegelberger never used that check, nor did he ever intend to use it. If later on in connection with his request to be given permission to buy some real estate he made reference to that check, he only did so to have a better chance of having his request filled. We shall be able to understand that he asked permission to buy the property. If in view of the housing conditions, as they have been described, at his age he wished to retire to a small farm which he wanted to buy with his own money.
THE PRESIDENT: It may be an appropriate time to call attention to it before the next argument begins, to the fact that we have allotted this week to the defendants, subject only to a brief closing by the Prosecution, and that we have also had the agreement, as we understand it, with the Defense Counsel, that they are to divide their own time in their own way. We have allotted a gross sum of time to the entire Defense. It follows that if the first defendants who are represented and whose counsel speak absorb an undue proportion of the time, the complaints which we will hear no doubt from the last defendants will be a complaint directed at their associates and not at the Court.
You may address the Tribunal in behalf of the next defendant.
DR. SCHILF: If the Court please -
THE PRESIDENT: This argument has been translated, we are told.
INTERPRETER: No, your Honor.
THE PRESIDENT: I think we will save time by finding out where the translation is. You are not ready? It was the suggestion of the defendants that we should extend the arguments somewhat over the usual time, but in view of the fact that this argument has not been translated, I think we will postpone your opening argument until tomorrow morning at the usual time, Dr. Schilf.
DR. SCHILF: Yes, I believe that would facilitate matters.
THE PRESIDENT: We will recess until 9:30 tomorrow morning.
(The Tribunal adjourned until 0930 hours, 15 October 1947.)
Court No. III, Case No. III.
Official Transcript of Military Tribunal III in the matter of the United States of America against Josef Altstoetter, et al, Defendants sitting at Nurnberg, Germany, on 15 October 1947, 0930-1650. The Honorable James T. Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: The proper notation will be made.
Two corrections should be made at this time for the record, and they are minor. Dr. Kubuschok, the SecretaryGeneral advises that your exhibit for Schlegelberger, No. 128, was Document 164. It was marked for identification only. It has been reoffered and accepted as Exhibit 158-the same identical document. The Exhibit 128 will be withdrawn and it will take the number 158.
An error was also made in the offering of exhibits for the defendant Petersen to this extent, that two exhibits were offered, each of which was given the exhibit No. 138. In order to avoid changing the numbers of subsequent exhibits, the Secretary-General is directed to name or to designate the second of the two exhibits as 138-A. That will correct the error.
You may proceed with the closing argument.
DR. SCHILF (For the Defendant Klemm):
Mr. President, Your Honors:
"In view of the preliminary decision of the court I need no longer deal with Count I of the indictment, that is with conspiracy. The prosecution on the other hand declared in its opening statement that it will not prosecute as crimes, acts that have been committed prior to the outbreak of the war.
This applies not only to war crimes as such but also to crimes against humanity. Thus, so far as the Prosecution have submitted evidence dating from the period prior to the outbreak of the war I need only deal with it to the extent in which the Prosecution think they can explain by it a crime at a later date, inferring this, a participation of my client. In introduction I may further point out that the corpus delicti 'which the Prosecution consider constitute war crimes or crimes against humanity are the same. I may therefore be allowed to deal with them simultaneously and discuss their factual merits, under legal aspects, under Counts 2 and 3 respectively.
"I. My client is charged with having participated in the creation of a criminal discriminatory law for members of foreign races and Jews. In doing so the following legal provisions would be taken in consideration: the penal decree against Poles, the 13th amendment to the Reich citizenship law which excluded Jews from German jurisdiction and the exclusion of Juvenile Poles, Jews and Gypsies in applying German Juvenile law.
"1a. The evidence offered established unequivocally that my client did not participate in the creation of a discriminatory law against Poles. This special decree against Poles was enacted already in 1940 (Schlegelberger document book I, No. 60, page 18) that is at a time when Klemm was still a soldier and could not have exerted any influence on German legislation (compare Klemm's testimony, page 4920 of the English and page 4842 and the following of the German transcript). When Klemm took charge of Justice group III c in the Party Chancellery, legislative work on penal law against Poles was practically concluded. Moreover this department III C had not at all participated in this work.
In creating a penal law for Poles, the political factor to treat the Poles according to their race out weighted the legal aspects. Consequently all preliminary work on the Penal decree against Poles was not done by department III c. It is not evident at all from the document submitted by the prosecution that the Party Chancellery dealt with the special penal decree against Poles again after its basic letter of 20 November 1940 (Exh. 200) and the discussions of 10 December 1940 (Exh. 342) - that is to say prior to Klemm's time of office in the Party Chancellery (Klemm testimony page 4921 of the English and page 4843 and the following of the German transcript).
"Klemm likewise did not participate in any way in the later legal measures in this field. The party Chancellery also was not asked regarding the establishment of courts martial in the so-called incorporated Eastern territories. Involved here was only the execution of provisions of the already previously enacted penal decree against Poles. (Klemm testimony, page 4920 of the English and page 4844 of the German transcript). The same applies to the transfer to Reichsstatthalters (Regional Governors) in the so-called incorporated Eastern territories of the power to pardon Poles. Exh. 556, that is Lammer's accompanying letter reveals clearly that it was not the Party Chancellery (Partei Kanzlei) which participated but rather the so-called 'Chancellery of the Fuehrer.' This was an organization completely separated from the Party Chancellery which had been established by Hitler in Berlin, with Reichsleiter Bouhler."
I now interpolate. The day before yesterday, the prosecution, concerning Exhibits 199, 200 and 334 said that Klemm could be in connection with these discriminating laws for the mere reason that "approximately at the same time" he was appointed to the Party Chancellory.
But the Prosecution exhibits themselves show that those questions were settled by April 1941. Klemm--I shall show that later-was never Martin Bormann's legal adviser. As has been revealed by the evidence, Bormann was nearly always at the Fuehrer's Headquarters, which at that time was more than 1,000 kilometers away from Munich. Bormann always had his so-called legal adviser at Hitler's Headquarters.
"In this connection it is worth mentioning that my client never participated in the previously considered amnesty for so-called 'ethnic Germans' in Poland. The general accusation of the prosecution that Klemm destroyed the equity of the law by granting legal favors to certain circles of persons is likewise without base. It is of course correct that the Party Chancellery once suggested amnesty for ethnic Germans. This however was also done prior to Klemm's entry into the Party Chancellery (compare Klemm testimony page 4924 of the English and page 4855 of the German transcript). The Ministry of Justice rejected the proposal at that time and this proposal was never taken up again after my client had entered the Party Chancellery.
"b. As far as legislation against Jews and general racial legislation on the whole is concerned, the previous phase of development prior to the outbreak of war need not oe discussed since the prosecution cannot support charges. For the rest, the Reich Ministry of Justice and in particular Klemm, who, prior to the outbreak of the war was not working in the legislative department of the Ministry but worked exclusively in the department for administration of the penal law had nothing to do witn legislative measures, especially with the Reich citizenship law. So far as legis lation against Jews during the war is concerned, the first incidents submitted by the prosecution occurred likewise at a time when Klemm was still in Holland.
When later on in March 1941 he came into the Party Chancellery he was not subsequently informed on the discussions mentioned in Exh. 396; he neither read of nor worked on the proposal by the Reich Ministry of Justice for amendment of the Jewish question (Exh. 401) (Klemm testimony page 5015 and page 4924 and the following of the English and page 4931 and page 4845 and the following of the German transcript).
"The question whether a limitation of legal remedies for Jews was to take place (Exh. 204) was, of course for the time being, the concern of the operational sphere of Justice Group III c of the Party Chancellery. Insofar as the Ministry of Justice * - had suggested such a limitation it was purely & legal matter; it was to affect proceedings in court. Klemm however has neither seen nor worked on Bormann's letter dated 9 September 1942 in which the latter gave his approval to this suggestion of the Ministry of Justice and proposed further implementation. (Klemm testimony page 4928 of the English and page 4849 of the German transcript). As is evident from the affidavits of Klopfer (Klemm Exh. 54) of Enke (Klemm Exh. 35), and of Mueller (Klemm Exh. 36), as well as from Klemm's own testimony (page 4912 and the following of the English and page 4834 and the following of the German transcript) it happened not infrequently that Bormann personally drafted such replies under the file notes of department III c without asking the expert and without subsequently informing him.
"This matter of evidence however is unimportant, for, even if Klemm had participated in this letter in any way, his collaberation would not have influenced the formulation of the legal position, since the agreement between Thierack and Himmler, which was approved by Hitler came about after the aforementioned letter. (Exhibit 38).
Meanwhile, during a conference held by the Secretaries of State, Kaltenbrunner had expressly demanded the elimination of Jews from the administration of justice. (Affidavit Stuckert: Rothenberger Doc. Book IV, No. 60, page 39). Thus this problem, which originated at the Ministry of Justice, did not concern the administration of justice any more, but belonged to the internal administration, and accordingly the handling of this subject was transferred from the Ministry of Justice to the Ministry of the Interior. The expert handling of matters by Justice group III c was thus automatically done away with after the organization of the Party Chancellery. Klemm therefore did not have any share whatever in the entire elimination of Jews from the administration of justice, which in accordance with the 13th amendment to the Reichsbuergergesetz (Reich citizenship law) led to their being subordinated to the authority of the police. Developments showed that something entirely different resulted. Due to the initiative of other offices, the problem of considering a limitation of legal remedies for Jews, had become entirely devoid of object. (Affidavit Klopfer, Exh. Klemm 34). For this reason, the previous discussions, from a criminal viewpoint, are not causal at all for the result, which Blight be seen in the 13th amendment to the Reich Citizenship Law.
As far as the fact is concerned that Klemm has parsed on Bormann's approval regarding the standpoint of the Ministry of Justice, that Poles, Jews and Gypsies should be excluded from the Reich Juvenile Law (Exh. 205), it is not the case at all of creating a new law, but only one of interpreting and clarifying an already existing law. According to its structure and its contents, the Reich Juvenile La.w could be applied), to no others but Germans, for it provided to a large degree the inclusion of the "Hitler Youth" and aimed essentially at educating the juvenile as a German (Affidavit Kuemmerlein,: Klemm Exh. 37 b).
This has also been made entirely clear by NG-279, the Prosecution's document (Doc. Book III h, affidavit Kuemmerlein-Klemm, Exr. 376) and Klemm's testimony, page 4929 and the following of the English, and page 4850 and the following of the German transcript. The Reich Ministry of Justice of course interpreted the existing law and the existing legal situation from a purely dogmatic legal standpoint. Every jurist necessarily draws the conclusion that the exempt groups had to be treated differently than the Germans, due to the provisions of the law. On account of the fact that the law had been established previously, the juvenile law also could not be applied to Poles, Jews and Gypsies "according to its meaning". Klemm too could not deny this purely juridical deduction of the Reich Ministry of Justice.
During the time when Klemm was State Secretary, new legal provisions have not been suggested or made from any side, with one exception: The penal decree against Poles was amended by the decree of 20 December 1944 - Reich Law Gazette 1944, page 353 - to the effect that the minimum penalty was reduced from three years to one month. (Klemm's testimony, page 5015 and the following of the English and page 4932 of the German transcript). According to the evidence offered, therefore, there is no proof that Klemm in any way collaborated in the creation of special laws for members of other nations.
2. Now it remains to be examined whether Klemm has been guilty of a crime in the application of such special laws.
As far as the application of the penal decree against Poles is concerned, Klemm could have participated only during the time when he was State Secretary, from January 1944 until April 1945. In this case, he could only have participated in the resort which dealt with the granting of clemency. It has been established that, with respect to the decisions to be made there no distinction was made regarding the application of the legal provisions. As far as the question was concerned, whether a sentence had to be carried out or not, provisions were the same for Germans and Poles.
Added hereto is the fact that the penal decree against Poles played only an insignificant part at the time when Klemm was State Secretary. Only few sentences against Poles were submitted to the Ministry for examination. After the decision to grant clemency had been transferred to the Reichsstatthalter in all the incorporated Eastern territories, no sentences at all from this territory came to the Ministry. There remained only the few cases where Poles had been sentenced in the Reich territory. According to the testimony of the witness Oeschey (Page 8617 of the English and page 8261 of the German transcript), these sentences, already in 1943, were scarcely of any practical, importance. According to the testimony of the witness Lautz,(Engl. Trans, on page 5908, German transcript on page 5756), this special penal decree against Poles was not applied any more for the objective foundation of the verdicts. As a matter of fact, the Prosecution has not submitted a singular verdict of this kind against my client. No case can be shown either in which for example the Ministry has punished a Pole in 1944 on account of mere disobedience. The presumption that such sentences may once have been proclaimed at all in the Reich territory, is insufficient to prove the guilt in this respect. Concrete evidence would have been necessary to prove that at the time Klemm was State Secretary, any such decision of a German court had been approved by the Ministry. Nothing has been shown regarding any participation of Klemm in such a procedure. Even the witness Altmeyer could not mention any case which had been submitted to Klemm. (Page 5278 of the English and page 5180 of the German transcript). This emphasizes the correctness of Klemm's statements with regard to Exhibit 252, whereby out of the 85 cases which he has decided himself to, not a single case was submitted to him in which Poles had participated. My client was able to state the criminal criteria for each of the 95 cases, on which was based the granting of clemency. (Compare Klemm's testimony, page 15 0ct.
-M-BK-2-4-Gaylord (Int. Steuer) 4979 of the English and page 4897 of the German transcript.)
I interpolate. The day before yesterday the Prosecution quoted a name from the report list of 2 August 1944. The Prosecution hereby wants to prove that Klemm decided the Potemsky case. Klemn, however, on the 2nd of August 1944, could not decide on the Potemsky case because, no reports were submitted to him on that day. The list concerns Minister Thierack, which is evident from the fact alone that on this day reports on doubtful cases were made. The Prosecution has quoted the Lopi-Saki case from the list of 31 August 1944, although they do not say that this was Klemm's list. In both cases, the Prosecution bases its assertion that the Law against Poles was applied on the names. Such evidence is impossible. In Germany, as in the United States, foreign names are nothing unusual. The names are not of Polish origin. They may have been German names. Furthermore, the lists in question mention the Penal Law, which was applied in detail, in the case of Potemsky, Treason, page 63, under "B", Exhibit 252, in the case of Lopi-Saki, this is an unpolitical death sentence. Therefore it could have been a common murderer. The case Lopi-Saki as a whole was not decided on 31 of August 1944 but on the 31 of May 1944. (See Page 92 of Exhibit 252 under item 8, figure 7.
As far as the Administration of Justice in general is concerned, the following should be added: The Prosecution has not proved at all its assertion that inhuman severity has been applied against Poles. Exhibit 507, submitted by it - statistics of penal justice from the year 1942 - contradicts this.
I interpolate. The day before yesterday, the Prosecution indicated the year 1944 but immediately corrected this year. The cases mentioned in connection herewith cannot involve Klemn. The statistics 1942 proves it. Dr. Kubuschok yesterday indicated the absolute figure, and I will not indicate percentages.
It is shown hereby that, in accordance with the penal decree against Poles, only 1.5% have been sentenced to death out of 100 cases; 67.7% to simple disciplinary camp, and 26.6% to fines. 75.4% of the cases sentenced to simple disciplinary camp were under one year. This means that 51% of all those sentenced to imprisonment were sentenced to less than a year. These figures show that there can be no talk of an abnormal and criminal severity in general. If one compares this figure with the statistics regarding sentenced Germans, one cannot find a discrepancy in this connection.
Regarding the year 1942 - the Prosecution has not submitted later statistics, while it has not been possible for the defense to get the pertinent documents - a participation of Klemn, to be sure, is out of the question, but from it the conclusion may be drawn that Justice in general was applied moderately and that verdicts were humane. This may be applied fully to Klemm. His basically human and just attitude has been confirmed by a great number of witnesses on the witness stand. (Compare Miethsam's testimony, page 4882 of the English and page 4805 of the German transcript, Fritsche, page 5222 and the following of the English and page 5126 and the following of the German transcript, Ehrhardt, page 6372 of the English and page 6179 of the German transcript, Mettgenberg page 6313 and the following of the English and page 6123 and the following of the German transcript, von Ammon, page 6435 and the following of the English and page 6237 and the following of the German transcript, Hartmann, page 9024 and the following of the English and page 8644 and the following of the German transcript) and also by affidavits (Kuehne, Klemm Exh. 14, the Hohnstein documents, Klemm Exh. 19,20, 21; the witness Stagel, Klemm Exh. 6l; the witness Kriege, Klemm Exh. 63 2; the witness Bruns, Klemm Exh. 63 b; the witness Reichert, Klemn Exh. 64; the witness Wilkerling, Klemn Exh. 66; the witness Preiser, Klemm Exh. 69 and 74; the witness Willers, Klemm Exh. 70; the witness Proboese, Klemm Exh. 72;
Wogatzky, Klemm Exh. 75; the witness Rubold, Klemm Exh. 78; the witness Marx, Klemm Exh. 79 and last but not least the Dutch witnesses Tenkink and Hooykaas, Klemm Exh. 80).
Just as the general accusations of the Prosecution have not been proved in a single concrete case with regard to the treatment of Poles, the same is the case regarding the treatment of other foreigners. In this connection it must be added that, when Klemm became State Secretary, the Jews were no longer under the jurisdiction of the administration of justice, Officially speaking, he could neither intercede for nor against the Jews.
They were entirely excluded from criminal jurisdiction by the 13th amendment to the Reich Citizenship Law of 1943. I now interpolate:
In this connection I can also prove that the Prosecution, the day before yesterday, distorted the evidence serving as a basis in this respect. The Prosecution asserts that Klemm, when Ammom presented a report to him - Page 103, Exhibit 252 - had directed him to transfer stateless Jews to the Gestapo. If you will inspect the quoted portions, the result will be different altogether.
There was an abstract legal question involved herewith, that is, the legal question based on the 13th amendment to the Reichsbuergergesetz, the Reich Citizenship Law. No name is specified, no file reference. All that had to be decided was a general question of law. Without knowing facts, without receiving files, it is impossible to draw any conclusions. In any case, Klemm never told the Defendant von Ammon, "Transfer them to the Gestapo." There is no reasonable doubt whatsoever that the contrary has been proved. If the memorandum is read as per report list of 31 May, 1944, to the effect as it is submitted, no conclusions can be drawn which concrete case and which circumstances were discussed in connection therewith.
The further remarks of the Prosecution to this point in its final plea to the extent as these refer to Klemm's activity in Holland, cannot receive consideration by the Tribunal. In the indictment my client was not made any reproach in this respect. It is not permissible as has already been decided by Tribunal II, to supplement facts afterwards which were not mentioned in the indictment. But Klemm has no reason to avoid the discussion of his activity in Holland.
When questioned as a witness, after the rebuttal documents had been presented by the Prosecution against him, he commented on them in detail. The establishment of German courts involved only Reich Germans, not racial Germans, and to the extent that criminal proceedings were carried out against Dutchmen, these involved exclusively offenses against the Occupying Power.
Thereby the international law was not violated. Moreover, particularly in reference to Jewish business, Klemm endeavored to exercise mitigating influence as is proved by exhibits of the prosecution.
Moreover, as a witness he referred to the fact that Exhibits 6l5 and 6l6 contain his comments to drafts of law which drafts were not submitted by the Prosecution. It presented other decrees of the Occupying Powers which do not belong or touch these comments of Klemm's.
Exhibit 609 was a private affair. Wimmer, long after Klemm had left the Administration in H olland, submitted a private inquiry to him. Klemm originally notified Wimmer of his very personal opinion, Wimmer being his former superior. He had nothing whatsoever to do with management of personnel.
Only the Czechs were concerned as members of other nations apart from the N.N. matters with which I will deal at a later point. In this group, too, the prosecution could not show one single concrete case in which Klemm participated. In the only decision which might have caused criminal harm to a Czech citizen, the case of the Pole Nohawica (Exh. 567), no actual participation by Klemm in the decision can be recognized. The so-called Reich Protector in Bohemia and Moravia, who was the competent clemency authority for this Czech, states that Klemm had only temporarily repeated an already published general directive by the Minister for this actual case, without exerting influence on the case itself. By Hitler's decree, dated 25 January 1944 - Reich Law Gazette 1944 paga 59 - the clemency authority in cases against Czechs had been transferred to the Reich Protector, even in those cases in which sentence had been passed by a Court in Germany. (Statement Klemm Tr. Engl. page 9390 et seq., German page 8991 et seq.)
The prosecution in its indictment has selected these in which Czech nationals who wanted to escape across the Swiss frontier had been sentenced to death because of treason.
Klemm, however, cannot be connected with any of these sentences. All documents, submitted by the prosecution, referred to cases before 1944.
For the defense of my client it is therefore needless to point out that sentences passed against Czech nationals because of high treason and treason cannot possibly constitute crimes against the laws of warfare or against humanity. It may be said here, however, in addition to what Dr. Kubuschok said yesterday I would like to add-- that no State and no occupational power will tolerate revolutionary plans of persons within its actual sphere of power.
It has been proven (Klemm Exh. 10 and statement of witness Fritzsche, Engl. transcr. page 5221, German page 5125) that the German people had been given the impression at the creation of the so-called protectorate, that the legal relationship between the two nations were based upon a two-sided agreement, and that therewith a duty of allegiance to the Reich had developed for every individual member of the so-called protectorate. What had really happened became known to the public only before the IMT, it was therefore legally quite possible for a German lawyer to accept the conception of high treason. If that would not have been the case, such an act, by the way, would have been regarded as an offense against the occupational power, and therefore shown the same results. It has not been proven that Klemm, before the disclosures of the trial before the IMT, had known anything about the fact that the occupation of the remaining part of Czechoslovakia had been an agressive action in violation of International Law. It has therefore not been proven subjectively either, that my client by any chance approved of a sentence which, in accordance with the basic principles of International Law, which have only now been established, could at that time have been regarded as illegal.
The President: I wonder if Dr. Schilf would care to answer a question. From you argument, I am inclined to inquire if you agree that a duty of loyalty must exist before a person can be charged with high treason.
'
DR. SCHILF: Your Honor, the concept of allegiance was mentioned by me here because the Prosecution particularly emphasized -
THE PRESIDENT: If Counsel does not care to answer, he is at liberty to refrain. My only question is not why you discussed it, but whether you recognized that high treason, when charged against a person, can be proven only if there was a duty of loyalty on the part of that person. Do you care to answer my question?
DR. SCHILF: No; I am not of this opinion.
THE PRESIDENT: You may proceed.
DR. SCHILF: Interpolation Number 4: The Prosecution again wishes to interpret from Exhibit 252 in its final plea that Klemm had approved death sentences passed by the People's Court on account of high treason by rejecting pleas for clemency. In Note 120, which was not read the day before yesterday, the Prosecution states that on the 17 of January, 1945, he had decreed that executions be carried out in five instances. Klemm denies altogether that the death sentences were reported on 17 January, 1945, - Page 7 of Exhibit 252 - to him. On that day reports were only submitted to the minister to the extent as they referred to death sentences. Page 7 of Exhibit 252 has been inserted by error only into this exhibit as a death sentence list dated 17 January, 1945 , that is, into the report list for individual criminal matters of 17 January, 1944.
On 17 January, 1944, that is one year before, it is a fact that Klemm as State Secretary, had reported to him individual, not yet concluded criminal proceedings. Klemm referred to this fact as a witness but the confusion does not seen to have been cleared on the part of the Prosecution as yet.
On the 17 January, 1945, no reports were submitted to Klemm, which is proved furthermore from the fact that doubtful cases were also involved in connection with these death sentences. Such doubtful cases, according to the uniform statement of all witnesses, were only submitted to the minister.
Moreover, it cannot be recognized from this what justifies the Prosecution to draw the conclusion that the people involved were five foreigners. The Prosecution draws its assumption here again only from non-German names as it considers them. This is no proof. The same applies for the reports mentioned in Note 120, dated 17 January, 1944, Page 154.
On 17 January, 1944, reports were made to Klemm but only in individual not yet concluded criminal proceedings. On this day there were also reports made to Minister Thierack and only these reports involved death sentences, among these again doubtful cases. The assumption that foreigners had been included among these can likewise be based here on the mere fact that the names do not sound German. The fact that on the report list of 2 August, 1944, Page 71, Exhibit 252, does not specifically state to whom the reports were made, is being used by the Prosecution for the completely unjustified assertion that those reports were made to Klemm, but this is positively contradicted by the fact that doubtful cases were included.