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Sixth in a series

In 1949 the Court in Nuremberg heard the "justice" case. This prosecution was of lawyers and judges for actions taken to provide a gloss of legality to atrocities committed by the Third Reich.

The "Justice Case" was officially designated United States of America vs. Josef Altstoetter, et al. (Case 3). Of the sixteen defendants indicted, nine were officials in the Reich Ministry of Justice. The two persons who held the position of Reich Minister of Justice during the Hitler regime, Franz Guertner and Georg Thierack, were both dead before the indictment was filed. Between Guertner's death in January 1941 and Thierack's appointment in August 1942, the defendant Schlegelberger served as Acting Reich Minister of Justice. The defendants Schlegelberger, Rothenberger, and Klemm each had held the position of Under Secretary ("Staatssekretaer", also translated as State Secretary) in the Reich Ministry of Justice. Two other officials of this Ministry were indicted but not tried: the defendant Westphal committed suicide in Nuernberg jail after indictment and before the opening of the trial; a mistrial was declared as to the defendant Engert, whose physical condition prevented his presence in court for most of the trial. The defendants who were not officials of the Reich Ministry of Justice included the chief public prosecutor of the People's Court and several prosecutors and judges of both the Special Courts and the People's Courts. Both the Special and the People's Courts were established as important parts of the administration of justice during the Nazi regime.

The Indictment charged the defendants with, inter alia, [which means "among other things"]

charges that the defendants herein participated in a common design or conspiracy to commit and did commit war crimes and crimes against humanity, as defined in Control Council Law No. 10, duly enacted by the Allied Control Council on 20 December 1945. These crimes included murders, brutalities, cruelties, tortures, atrocities, plunder of private property, and other inhumane acts, as set forth in counts one, two, and three of this indictment. Certain defendants are further charged with membership in criminal organizations, as set forth in count four of this indictment.

--snip--

5. It was a part of the said common design, conspiracy, plans, and enterprises to enact, issue, enforce, and give effect to certain purported statutes, decrees, and orders, which were criminal both in inception and execution, and to work with the Gestapo, SS, SD, SIPO, and RSHA for criminal purposes, in the course of which the defendants, by distortion and denial of judicial and penal process, committed the murders, brutalities, cruelties, torture, atrocities, and other inhumane acts, more fully described in counts two and three of this indictment.

--snip--

7. The said common design, conspiracy, plans, and enterprises embraced the use of the judicial process as a powerful weapon for the persecution and extermination of all opponents of the Nazi regime regardless of nationality and for the persecution and extermination of "races." The special political tribunals mentioned above visited cruel punishment and death upon political opponents and members of certain "racial" and national groups. The People's Court was presided over by a minority of trusted Nazi lawyers and a majority of equally trusted laymen appointed by Hitler from the Elite Guard and Party hierarchy. The People's Court in collaboration with the Gestapo became a terror court, notorious for the severity of punishment, secrecy of proceedings, and denial to the accused of all semblance of judicial process. Punishment was meted out by Special Courts to victims under a law which condemned all who offended the "healthy sentiment of the people." Independence of the judiciary was destroyed. Judges were removed from the bench for political and "racial" reasons. Periodic "letters" were sent by the Ministry of Justice to all Reich judges and public prosecutors, instructing them as to the results they must accomplish. Both the bench and bar were continually spied upon by the Gestapo and SD, and were directed to keep disposition of their cases politically acceptable. Judges, prosecutors and, in many cases, defense counsel were reduced in effect to an administrative arm of the Nazi Party.

--snip--

10. ....Many such persons were given a summary travesty of trial before extraordinary courts, and after serving the sentences imposed upon them, were turned over to the Gestapo for "protective custody" in concentration camps. Jews discharged from prison were turned over to the Gestapo for final detention in Auschwitz, Lublin, and other concentration camps. The above-described proceedings resulted in the murder, torture, and ill-treatment of thousands of such persons. The defendants von Ammon, Engert, Klemm, Schlegelberger, Mettgenberg, Rothenberger, and Westphal are charged with special responsibility for and participation in these crimes.

--snip--

13. The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler's decree of "Night and Fog" (Nacht und Nebel) whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims' whereabouts, trial and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims' relatives and associates and barring recourse to any evidence, witnesses, or counsel for defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for "protective custody" for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned. The defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger are charged with special responsibility for and participation in these crimes.

I could go on and on, but you should click the link and read the indictment for yourselves. It's a real eye opener.

You should also read the opening statement made by the prosecution.

BRIGADIER GENERAL TAYLOR: This case is unusual in that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues, were the embodiment of what passed for justice in the Third Reich.

I found this passage particularly evocative. It could be spoken today (well, if you took the reference to Germany.)

But a court is far more than a courtroom; it is a process and a spirit. It is a house of law. This the defendants know, or must have known in times past. I doubt that they ever forgot it. Indeed, the root of the accusation here is that those men, leaders of the German judicial system, consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter.

--snip--

The defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals obedient only to the political dictates of the Hitler regime. They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The "trials" they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims.

This conduct was dishonor to their profession. Many of these misdeeds may well be crimes. But, in and of themselves, they are not charged as crimes in this indictment. The evidence which proves this course of conduct will, indeed, be laid before the Court, as it constitutes an important part of the proof of the crimes which are charged. But the defendants are not now called to account for violating constitutional guaranties or withholding due process of law.

On the contrary, the defendants are accused of participation in and responsibility for the killings, tortures, and other atrocities which resulted from, and which the defendants know were an inevitable consequence of, the conduct of their offices as judges, prosecutors, and ministry officials.
--snip--
In summary, the defendants are charged with judicial murder and other atrocities which they committed by destroying law and justice in Germany, and by then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale.
--snip--
I have said that the defendants know, or should know, that a court is the house of law. But it is, I fear, many years since any of the defendants have dwelt therein. Great as was their crime against Germany was even more shameful. They defiled the German temple of justice, and delivered Germany into the dictatorship of the Third Reich, "with all its methods of terror, and its cynical and open denial of the rule of law."¹

The temple must be reconsecrated. This cannot be done in the twinkling of an eye or by any mere ritual. It cannot be done in any single proceeding or at any one place. It certainly cannot be done at Nuernberg alone. But we have here, I think, a special opportunity and grave responsibility to help achieve this goal. We have here the men who played a leading part in the destruction of law in Germany. They are about to be judged in accordance with the law. It is more than fitting that these men be judged under that which they, as jurists, denied to others. Judgement under law is the only just fate for the defendants; the prosecution asks no other.

From the Sentencing Opinion

If the party knowingly aided and abetted in the execution of the plan and became connected with plans or enterprises involving the commission of war crimes and crimes against humanity, he thereby became a co-conspirator with those who conceived the plan. It makes no difference whether the plan or enterprise was that of only one of the conspirators. Upon this point we quote from the judgment of the International Tribunal —

"The argument that such common planning cannot exist where there is complete dictatorship is unsound. A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do not avoid responsibility by showing that they acted under the direction of the man who conceived it." ¹
This holding answers the further contention that one connected with execution of such a plan of Hitler could not be guilty of conspiracy, or punishable for helping carry out the plan or scheme as a co-conspirator. It is undoubtedly true that not all of the defendants had any part in the formulation of the plan, scheme, or conspiracy of the Nazi regime's Ministry of Justice to carry out the NN decree, but they did know of its illegality and inhumane purpose and helped to carry it out. The facts show beyond a reasonable doubt that they did knowingly aid, abet, and become connected with the plan, scheme, or conspiracy in aid of waging the war and committed those war crimes [and crimes] against humanity as charged in the indictment. A more perfect plan or scheme to show a conspiracy to commit crimes could hardly be written than was the agreement entered into by the OKW, Ministry of Justice, and the Gestapo to execute and carry out the Hitler Night and Fog decree. All the defendants who took a part in the execution and carrying out of the NN Decree knew of its illegality and of its cruel and inhumane purposes.

[all emphasis, including the part in red, mine]

None of this needs any analysis from me. It is all quite simple and plain on its face. Please do click the links and read the original documents in their entirety.

Many thanks to the Mazel Online Library which has an amazing archive of these documents in a surfable form. You can read the transcripts of the testimony and see the exhibits.

[Editor's note: The photo atop the post, by takomabibelot, features a banner created and designed by Firedoglake reader BonnieT of Austin, Texas, where she operates OpposeTorture.org.]