I may perhaps point out one document especially, Document 132, which contains the testimony of the Danish parson, Erik Christensen, who at the time was the chief of the prisoner of war relief work of the YMCA in Germany.
PRESIDENT:Then the order will be with respect to Exhibits 109 to 132, inclusive, that the index showing these document numbers with the statements thereafter appearing will be inserted at this point in the record as for the purposes heretofore mentioned.
DR. SURHOLT:This brings me to Document Book Number IX. It contains defense documents for Reinecke Number 133 to 144. They are offered as exhibits to receive the same numbers.
PRESIDENT:These document number 133 to 144 will receive corresponding numbers to the document numbers and under the order heretofore made are admitted and subject to the conditions of this order.
DR. SURHOLT:Your Honor, Documents 133 to 136 concern the general treatment of prisoners of war in Germany, in particular, directives for the plant leaders and plant functionaries and the sub-leaders in industrial plants. They furnish information as to the manner in which care was taken by general directives that they were to take care in guarding and assigning prisoners of war, that they were themselves subject to disciplinary controls; 136 shows the assumption of responsibility by Keitel for orders, directives, and instructions of the OKW, also covering the measures taken by the offices under him. Moreoever, Document 139 seems to be of inportance, and Document 140. In both a precise comment of Keitel's is furnished regarding the protest of Admiral Canaris and the order dated the 8th of September 1941. The documents show that Canaris' protest was submitted to Keitel, that Reinecke did not participate in this protest, neither did this protest concern Reinecke, and that the decision regarding this protest took place along the lines testified to by Reinecke when he testified in his own behalf.
Regarding the prosecution document, the order of the 8th of September 1941 about Canaris' protest, Prosecution Exhibits 363 and 253, the defense have introduced the decree by the consul of people's commissars of the Soviet Union dated the 17th of January 1943 regarding the treatment of prisoners of war. It is contained in the German document book of the prosecution, but was not translated for the benefit of the Tribunal. The decree in particular lays down that prisoners of war of the NKVD were subordinate to the NKVD, the political police in Russia. It also contains approximately ten regulations which clash with the Geneva Convention, and the practice followed by the Russians was completely different. It was even worse than the German. Your Honor, these are the documents which I have to submit at the present time. Two more books are still in the Translation Branch, They are still in process of translation.
PRESIDENT:Very well. When they are received, you may present those books.
MR. DOBBS:May I make an objection to one document at this time, Your Honors? In Book VIII, Document Number 130, appearing at page 89, I ask that it be stricken, being incompetent, irrelevant, and immaterial.
DR. SURHOLT:Your Honor, the purpose of presenting this document is not an attack against the leadership of the American Army, it is merely designed to prove that isolated incidents of this type occur everywhere, without the leadership being made responsible for these incidents, without any blame attaching to the leadership. It also concerns the defendant, Reinecke personally.
PRESIDENT:The ruling will be reserved on that--on Exhibit 130, and we will read the document. I haven't had time, only just to glance at it. Now, who is next with some documents?
DR. SURHOLT:Your Honor, during the noon recess I have pointed out the urgency of the position to some of my colleagues, but I couldn't concern myself any more with it because I myself had very much to do with my own presentation of evidence, but of course I am ready to find somebody to carry on.
PRESIDENT:To my way of thinking, you have put your document books into the record in a way where it will be far easier to follow those books than very many of the books that have been put in, and even though you worked under pressure, the Tribunal feels that you have gotten them in shape where they can be referred to and referred to very easily. We haven't had such good luck with some others where the numbers got away from us.
DR. SURHOLT:Your Honor, I am just informed that the document books of my colleagues haven't been translated as yet.
PRESIDENT:I think some--have you made any inquiries? The Tribunal will take a short recess with the instructions to the marshal to go down and find some more document books.
(A recess was taken.)
THE MARSHAL:The Tribunal is again in session.
THE PRESIDENT:You may proceed, Dr. Keller, with the opening statement for the defendant Lehmann.
DR. KELLER:Herr President, your Honor, may it please the Tribunal, I shall conduct the defense of the former Chief of Wehrmacht judiciary, the Defendant Dr. Rudolf LEHMANN, whose case is the last one in these proceedings. In the Indictment he is charged with:
Crimes against the Peace War Crimes Crimes against Humanity, and Conspiracy.
The extent of the material submitted to the Nuernberg Military Tribunals as well as the length and detailed nature of the individual proceedings in no way serve to diminish the difficulties which with all the participants in each trial are confronted over and over again. These trials are not ordinary criminal proceedings, like those, dealing with an alleged murder or theft or any other offense committed in civilian life. What is to be clarified in these Nuernberg court rooms are not individual deeds that can be isolated, which may find a repetition - though under changed circumstances - at this or that period of time, in this or that country in more or less the same manner. What is on trial before the Nuernberg Tribunals are the unrepeatable historical events of the past decades, with their opposing forces, their tood and bad elements, all their imponderable factors. The colossus of the Third Reich is on trial, its origin, its growth, its strength and its gruesome downfall. The Third Reich is dead. The remains of its incomprehensible existence are millions of corpses, mountains of rubble, an endless parade of ruined lives and immense volumes of lifeless files.
It is from these files, orders, notes, drafts, marginal notes, reference numbers of letters and initials that the Prosecution attempts to reconstruct sections of the Third Reich.
What was formerly only an interdependent part of a whole, is now to be considered by itself. The Prosecution wants to dissect individual cells out of a dead body and to examine whether those cells were a whole by themselves, independently of the organism of which they formed part. By the Prosecution's method of putting one such cell at a time into the focus of their investigations, they are-wittingly or unwittingly-construing causal connections which never existed, and cut or blurr the connections which at the time were of decisive importance.
I am aware of the fact that it is impossible to present the past with all its enormous complexity in just the way, in which it actually took place. Nobody will succeed in completely analyzing all the forces which brought about this or that event, the more so, as only the archives of the one side are open for perusal. Whoever undertakes the daring task to analyze historical phenomena of the past epoch therefore carries a great responsibility towards history and towards the defendants. In such an attempt the basic facts shaping the happenings and color of that period, must under no circumstances be ignored.
And this basic fact of the Third Reich was the existence of dictatorship.
The outward forms of development from the so-called seizure of power to the final establishment of dictatorship must not be allowed to obscure the fact that what took place in reality was a revolutionary onslaught upon the existing order, that order which had developed and become established by law, custom, tradition in Germany as in other countries within the sphere of Western civilization. The constitutional set-up, the Church, the economic and social order, the educational and intellectual set-up and last not least the legal system experienced one revolutionary assault after the other. This process took many forms. The process commonly called "Gleich - schaltung" coordination (bringing into line) which in reality was the transformation from the Weimar Republic to the Hitlerite dictatorship, ranged from the breaking up by force of existing organization - such as the political parties, the trade unions and similar associations - to the apparent preservation of the existing associations, while Party functionaries infiltrated among their members.
I realize that it is difficult for the Prosecution to visualize the atmosphere under a dictatorship. Even we survivors do not find it easy to go back to those years, during which we were contemporaries of the Third Reich and experienced the oppressive force of the regime upon ourselves. To enter into the spirit of such a situation must be particularly difficult for the citizens of a country, which is one of the very few nations of this world, which has never experienced tyranny, has never been in the inescapable grip of the evil spirit of totalitarianism. It may therefore be excusable if the prosecution is unable of comprehending the subtle features of that atmosphere. It is, however, certainly not excusable any longer, if the Prosecution attempts to present matters, in such a way, as if the center of gravity had not lain with the tyrant but with the oppressed, if it attaches the responsibility to the second, third or fourth in command, i.e. to those grades of the state hierarchy, which in an authoritarian state, no longer shared in the power, but who rather impeded than furthered the will of the evil spirit.
In the course of these Nuernberg trials, the Defense discovers with astonishment that Hitler's person is with each trial pushed more and more unimportant by the Prosecution. More and more new figures are being placed in the limelight as the chief agents, and responsibilities are being ascribed to them, which in reality rested on a much higher level; they are being invested with powers, which they were never able to exert under an authoritarian state system. This faulty construction of the Nuernberg trials may be based on a program, namely the desire to achieve by this method what was once rejected by the IMT, namely the establishment of collective guilt.
It is therefore the task of the Defense to correct the false premises of the Prosecution and to render a true picture of the conditions, prevailing during the 12 years of dictatorship.
It follows from this, that in this trial, dealing with events during the Third Reich which are of importance as regards International Law, it is necessary to go back to the person of the dictator, to Hitler, himself, his deeds, and his aims.
Hitler's aims were certainly clear and unmistakable in one respect; hamely his drive for power and the retention of power. For his further aims could only be realized by means of unlimited power. He therefore had nothing to fear, except the power of others. The power of others, however, which constituted a possible danger to him, which did not want to bow to his omnipotence, consisted not only of physical power, but also of moral independence which many people and some institutions amongst such people had preserved.
Every modern state is based on the principle that the total power of the state must not be vested in one hand, but that the authority of the state administration and of the legislative branch should be limited through an independent judiciary.
On the basis of this appointment as Reich Chancellor on 30 January 1933 Hitler was put in charge of practically the entire administration. His first step was through the emergency decree of the Reich President, dated 28 February 1933, to revoke the basic constitutional rights of the German citizens, including in particular the right of personal liberty, the right of free speech, free press, free association and asssembly, the secrecy of mail, post, telegraph and telephone communications, the inviolability of dwellings and property. After the elections of 5 March 1933, he then had himself invested with legislative power by the government appointed by him through the so-called EnablingAct of 24 March 1933, which did not only apply to ordinary laws, but also to changes in the constitution. In this way, he had combined the administrative as well as the legislative power in his hand. There was only one limitation left, namely the independent courts, which according to their nature, had the task to render judgment according to law and justice regardless of politics, ideology and party interests.
This was the last bastion Hitler had to remove before he could be really a dictator.
This necessary antithesis explains Hitler's attitude toward the judiciary; it was more than an aversion; it was a fight against the independent courts and against all those who stood up for their preservation. "Law is, what benefits the people" was the slogan with which Hitler wanted to discredit publicly a judiciary that was only subject to the law. But the real depth of his hatred is shown by the following remark he made in his most intimate circle, and to which the witness Halder testified before this Tribunal:
"I shall not rest until every German realizes that it is shameful to be e jurist."
As therefore, Hitler wanted to shake off the control on the part of the Courts of Justice, he had in the main only two methods open to him: one of them being to narrow down the judges' competency more and more, and to transfer the past functions of the courts to the police, his own executive organs; the other by far cruder method was personal interference in proceedings pending or already concluded;
At the outset of Hitler's term in office, it was not to be foreseen how far he would go in his right against the judiciary, just as little as one could anticipate the methods he would apply in individual cases. These methods were manifold and changed according to the desired aim.
In the sphere of civil jurisdiction, he thought of being able to gain ground for the considerations of the party policy by having officials of a national socialist outlook infiltrade. As such measures, however, proved insufficient and in the long run again and again were frustrated by the solid mass of civil servants who were devoted to the treditional principles of a state based on law, Hitler was forced to apply stronger measures in individual cases. Thus, he had the murders committed in connection with the Rohm - Putsch of 30 June 1934-in order to pick a striking example - even removed from the sphere of court jurisdiction by means of a Reichgovernment law and had them declared legal acts as committed in self-defense on behalf of the state.
The fact that the principles of jurisdiction only subject to the law were not to be done away with so easily is shown by the case of Fritsch, which was already mentioned in the Opening Statement of the Prosecution. Hitler and his clique attempted to remove the then Supreme Commander of the Army, General Freiherr von Fritsch, from public life by means of a charge based on false accusations. The proceedings were to follow a course fixed in advance by Himmler and his Gestapo. Why they did not come up to Hitler's expectations will be stated here by the defendant Lehmann who was one of thejudges at that trial and himself gave the judgment.
The result of the Fritsch trial which undoubtedly represents a victory of justice over political expediencies was that Hitler realized that justice could be a stronger opponent than he had thought originally and that, in case of real danger, he would have to adopt more drastic methods if he whished to realize his political aims either in a specific case or in their overall aspect. Since the judgment in the Fritisch trial, Hitler's suspicions with regard to judicial authorities, especial y those in the Wehrmacht, had become firmly established.
I, as Defense Counsel for Lehmann have now the task to illustrate the results of these suspicions and to describe Hitler's efforts to deprive the judicial authorities in the Wehrmacht of one province after another.
Hitler's struggle against the judicial authorities in the Wehrmacht had other reasons apart from the defeat in the Fritsch trial. At least equally decisive for him was the fact that the Wehrmacht was the government organ which had preserved a relatively pronounced independence from the party and which adhered to traditional methods. The very fact that the Wehrmacht had a tradition which the Party lacked, constituted a barrier. But an even more important moment was the fact that the special knowledge and experience of a soldier cannot be replaced by political convictions and a ready tongue thus saving the Wehrmacht from a personnel policy governed by party politics. Thus the Wehrmacht comprised strong forces which, it is true, advocated a strong and self-reliant state but which declined or even opposed political games of hazard and the ideological extravaganzas of the Party. This attitude was particularly prevalent among judicial officers of the Wehrmacht. The Wehrmacht Legal Corps mainly comprised jurists who had come into conflict with the Party in the prosecution of their profession in civilian life and who had joined the Wehrmacht in the hope of carrying out their professional duties free from Party influence, since the Party had hitherto respected that organization.
In the course of the hearing of witnesses, I shall show that the proper task of the legal machinery of the Wehrmacht was jurisdiction as applied to the troops. During the war, this task came to include jurisdiction over the inhabitants of occupied territories whenever this function was not carried out by indigenous courts or other organs according to government orders. These were the tasks which Hitler tried, in an ever increasing measure, to take out of the hands of the judges in order to subordinate them to political expediencies. In the course of my argumentation, I must deal with Hitler's struggle against judicial authorities in relation to Wehrmacht troops as well as in relation to the inhabitants of occupied territories. For both express the same suspicions, one and the same basic attitude towards the potential opponent of the dictator, i.e. towards the judicial authorities. In order to show to Your Honors the degree to which Hitler's suspicions of the judicial authorities of the Wehrmacht increased, I shall, in examining the defendant, not only deal with the documents and orders with which he has been charged, but I shall mention, in chronological order, the many and varied methods, with with Hitler tried to undermine Wehrmacht jurisdiction. In this connection, I shall show that these attacks did not only emanate from Hitler but in the same measure from party offices and the police which all tried to gain more influence.
Concerning jurisdiction over Wehrmacht troops, we must mention, to begin with, that, since the outbreak of war, Hitler in his capacity of supreme judicial authority of the Wehrmacht and as the military superior of all other judicial authorities, had the possibility of making his direct influence felt in some of the criminal proceedings.
He had reserved for himself the right to confirm or reject judgments against generals and all death sentences against all officers pronounced by Wehrmacht courts. But this measure of influence upon the activity of Wehrmacht Courts by no means satisfied the aspirations of the regime. A decisive step in the desired direction was taken by the p rty when it demanded to be informed of all verdicts of Wehrmacht Courts against members of the Party. The Party feared that its members could possibly be treated unfavorably as compared to non-Party members. Furthermore, it expected that judgments should be influenced by political considerations; it hoped to procure a weapon against the judicial authorities in the Wehrmacht by knowledge of the judgments, and to be able, at least in specific cases, to intervene with Hitler, Bormann or Himmler. Upon Hitler's orders, the demands of the Party had to be complied with.
A decisive attempt to undermine and discredit the judicial authorities of the Wehrmacht in the eyes of the Wehrmacht troops was made when Hitler issued the order to remove from the jurisdiction of the Wehrmacht all criminal cases of a political character which were directed against the Third Reich itself, and to transfer them to ordinary courts. No. experienced soldier of a foreign army will be able to comprehend how the Commander in Chief of the Armed Forces of new country could allow such a problem to arise during war-time. And yet after long and tenacious opposition, it came to pass that Hitler ordered all political cases to be handed over to civil jurisdiction. He even went as far as to contemplate the complete abolition of judicial authorities of the Wehrmacht. In the course of this trial, I shall have to deal on various occasions, with the background of these incidents and their actual course, on the basis of the above mentioned and other examples.
The part which was played by Lehmann in these conflicts is of decisive importance for the evaluation of his character and of his basic attitude to his duties and to justice in general and of his sympathetic approach in the incidents which have become the object of the charge against him.
A few weeks after the outbreak of war the Wehrmacht judicial authorities were not only put more and more on the defensive, but they were also exposed to the most severe attacks with regard to their competency for the inhabitants of the occupied territories. Whereas the attacks concerning jurisdiction over Wehrmacht troops emanated from Hitler and the Party, the latter incidents originated from Himmler and the police. Soon after the campaign in Poland, these quarters raised the charge that the military courts had failed in their task, that they had allowed partisans to escape and that they had failed to appreciate the actual requirements of warfare. These accusations were refuted. Nevertheless, they showed that serious forces were at work against the continued existence of Wehrmacht jurisdiction. After conclusion of the fighting in the netherlands, Goering, on his own initiative and without consideration for the existing judicial Wehrmacht authorities, ordered that, in proceedings against Dutchmen accused of illtreatment of German parachutists, Luftwaffe Courts should be composed of officers and not judges. The decisive phase in the elimination of Wehrmacht Courts with regard to the civilian population in occupied countries commenced, however with Hitler's order to leave the Wehrmacht Courts behind in the campaign against Soviet Russia and to place punitive power into the hands of the troops. Hitler finally went as far, as to order that procedure which was originally only applicable to the Russian theatre of war, to be extended also to the other theatres of war and occupied areas, with the provision that the accused were not to be sentenced by the Army but to be handed over to the SD.
His aim was therefore, to completely remove the civilian population from the jurisdiction of the Wehrmacht, because he considered the proceedings before the Wehrmacht courts as clumsy and from his point of view, politically unreliable.
It will be my task to demonstrate what superior powers Hitler had at his disposal in this struggle and how the defendant Lehmann, in spite of that superiority, did everything at all humanly possible, in order to maintain the Wehrmacht jurisdiction.
II.
Within this historical framework just outlined, the sphere of duty of the Chief of the Wehrmacht Legal Branch in general as well as Lehmann's activities in particular have to be examined. As concerns the position of the defendant, the Prosecution avoided to define it in detail, be it only with one word. The only thing they said up to the present in this connection was that Lehmann's position corresponded to that of a "Judge Advocate General", without, however, substantiating that comparison in any way. They are obviously hoping by means of the haziness concerning the defendant's competency, to establish responsibilities that never existed.
Already at this juncture, the Derense wishes to draw attention to the remarkable fact that the Prosecution does not charge my defendant with an offenees which took place within the sphere of the Wehrmacht judiciary. On the contrary, all the charges against the defendant Lehmann are concerning cases in which the competency of the Wehrmacht juris diction had been infringed upon through Hitler's personal interference, i.e. cases which had been taken out of the hands of the Wehrmacht judiciary.
Does the Prosecution think, perhaps, that a convinced jurist, a man who sees his life's task in the maintenance of a free jurisdiction, only subject to the law, can find satisfication in handing over his tasks to the police? Has it ever been heard that a man voluntarily acted as the pall bearer of the vocation of his life? In this respect the Prosecution did not only become the victim of a factual error; their theory also contradicts every reasonable experience of life.
May I in this connection draw the attention of the Honorable Tribunal to a sentence in the opinion of Tribunal II in case IV "The United States of America against POHL et al." which contains the following interesting remarks concerning the actual position of a defendant within an organization (English transcript page 8079) I quote as follows:
"At the outset of the testimony, the Tribunal realized the necessity of guarding against assuming criminality or even culpable responsibility, solely from the official titles which the several defendants held. The Tribunal has been especially careful to discover and analyze the actual power and authority of the several defendants, and the manner and extent to which they were exercized, without permitting itself to be unduly impressed by the official designations on letterheads or office doors." End of quotation.
In order to afford the Tribunal a concrete idea of the sphere of tasks of Dr. Lehmann and his department, I shall start out with a definition of the position and tasks of a judge in the Wehrmacht in general and shall have to draw in rough outlines a survey over the organization of the Wehrmacht judiciary system as a whole.
Special consideration will have to be devoted to the problem of who had the highest responsibility for the correct application of justice within the Wehrmacht.
I shall then turn my attention to the particular field of activities of the defendant Lehmann. Already the official designation of "Chief of the Wehrmacht Legal Branch" Chef des Wehrmachts Rechts which was given to his office during the war, is liable to create erroneous impressions. In the first place it must be taken into consideration that the Chiefs of the Legal Branches of the OKW as well as of the individual branches of the Wehrmacht were doing nothing more than to act as the special advisors and experts to their commanding officers and that only the commanding officers had the authority to issue orders. As far as the relations of the OKW to the branches of the Werhmacht in respect to legal matters were concerned, it was of course correspondingly affected by the fact that the OKW was not a Supreme Command of the German Wehrmacht in the technical sense, but only a staff under Hitler's command, for the purpose of coordinating the three branches of the Wehrmacht, as was already sufficiently elucidated in the course of the hearing of evidence. Just as the OKW did not have the authority to issue orders to the individual branches of the Wehrmacht, neither did the Legal Branch of the Wehrmacht have the authority to issue orders to the Legal Branches of the branches of the Wehrmacht. Within the OKW, however, the Wehrmacht Legal Branch was by no means to only agency handling legal questions. This applied also to the sphere of International Law which is of particular interest here.
It will furthermore have to be defined, which tasks in particular were the individual duties of the department headed by Lehmann, and where their center of gravity lies.
The Defense will have to examine, how far Lehmann was able to or forced to develop his own initiative, and in particular what were the limitations imposed on his powers of exerting influence.
III.
I shall then turn to the specific acts with which the defendants are charged.
With respect to the asserted planning and waging of wars of aggression and to the alleged conspiracy, I shall be albe to present my evidence very concisely. The documents introduced by the prosecution do not justify the slightest shadow of suspicion of participation by Dr. Lehmann in the alleged crimes. In this connection the IMT established principles which do not admit unlimited generalizations but which make participation in these crimes dependent upon the existence of certain specific requirements. Without wishing to critize the prosecution, I feel it my duty to state that it could have dropped these counts had it taken the reasons for the IMT judgment into consideration.
The principal subject of my argumentation will be Hitler's four orders, in connection with which my client is accused of criminal complicity. They are the following, in order of date:
a. the decree concerning the exercise of jurisdiction in the Barbarossa territory, b. the Commissar order, c. the Nacht und Nebel decree with the subsequent so called "Terrorist Order" superseding it, and d. the "Kommando" order.
With regard to the Kommissar and Kommando orders, I shall attempt to prove that Lehmann had no part in them. The Kommissar order contains even in its original version a regulation according to which the measures ordered in it fall outside the competency of the Wehrmacht judicial authorities, that is to say, beyond any influence Lehmann might have been able to exert.
The only way in which my client had anything to do with the matter was that he suggested a clearer, more precise wording for the above-mentioned regulation to which Keitel had referred specifically, stating that the order had nothing to do with the Legal Division.
THE PRESIDENT:At this time we will take our recess.
(recess)
THE MARSHAL:The Tribunal is again in session.
DR. KELLER:I just mentioned the specific facts which the Defendant Lehmann is being charged with.
The same is true of the Kommando order, which was neither issued nor formulated by the Wehrmacht Legal Division. The final version emanated from Hitler himself, as did the previous announcement in the Wehrmacht report of the 7 October 1942. The activity of the Wehrmacht Legal Division in connection with this matter ended with Lehmann's repeated and pressing demands for a conference to clarify certain preliminary questions. Such a conference never took place.
With regard to the decree concerning the exercise of jurisdiction in the Barbarossa area it appears imperative to oppose the prosecution's insulting insinuation in its Opening Statement (page 55), that the Barbarossa jurisdiction order, and I quote:
"permitted German soldiers to engage in wanton slaughter at the whim of any officer and without fear of any punishment". End of quotation.
The picture drawn by the prosecution could give the impression that the course of the war on the Eastern front would have been entirely different had there been no Ministerialdirektor Lehmann. I think I shall be able to prove the falsity of such an idea from the prosecution documents themselves. The evidence already presented by my colleagues has given a clear picture of the actual conditions under which the battles in the East were fought. The general defense will offer the High Tribunal further material in this connection.
In presenting my evidence I shall first deal with the events leading up to that order. With regard to those events, there is a particularly striking case which shows the difficulties which arise for the defense when it has access only to certain sets of documents which appear to be complete. Even if I am not able to submit the notes and drafts made at the time, I shall be able to fill the regrettable gaps by means of verbal statements and affidavits.