“I have stated that * * * the plan had to be rejected for

manifold reasons--for reasons of international law, for reasons

of justice, and policy of justice, and primarily, because I

said the administration of justice should never do anything

secretly. I put to him, ‘What kind of suspicion would have to

arise against our administration of justice if these people,

inhabitants of other countries, brought to Germany, would

disappear without a trace’? In my mind, and in the minds of all

others concerned, everything revolted against this particular

part of the plan, which seemed to us to have much more grave

consequence than the question of who should, in the end, deal

with it. That was also the opinion of the leading jurists of the

armed forces * * *.”

Defendant Mettgenberg held the position of Ministerialdirigent in

Departments III and IV of the Reich Ministry of Justice. In Department

III, for penal legislation, he dealt with international law,

formulating secret, general, and circular directives. He handled Night

and Fog cases and knew the purpose and procedure used in such cases,

and that the decree was based upon the Fuehrer’s order of 7 December

1941 to the OKW. In his affidavit Mettgenberg states (_NG-696, Pros.

Ex. 336_):

“The ‘Night and Fog’ section within my subdivision, was headed

by Ministerial Counsellor von Ammon. This matter was added to

my subdivision because of its international character. I know,

of course, that a Fuehrer decree to the OKW was the basis for

this ‘Night and Fog’ procedure and that an agreement had been

reached between the OKW and the Gestapo, that the OKW had also

established relations with the Minister of Justice and that the

handling of this matter was regulated accordingly.

“I was not present at the original discussion with Freisler,

in which the ‘Night and Fog’ matters were first discussed on

the basis of the Fuehrer decree. If I had been present at this

discussion, and if I had had an occasion to present my opinion,

I would, at any rate, have spoken against the taking over of

the ‘Night and Fog’ matters by the justice administration.

It went against my training as a public servant to have the

administration of justice misused for things which were bound to

be incompatible with its basic principles.

“Whenever Mr. von Ammon had doubts concerning the handling of

individual cases, we talked these questions over together,

and when they had major importance, referred them to higher

officials for decision. When he had no doubts, he could decide

all matters himself. We got these cases originally from the

Wehrmacht and later from the Gestapo. The distribution of these

cases to the competent Special Courts or to the People’s Court,

von Ammon decided independently. Von Ammon also had to review

the indictments and sentences and to obtain the minister’s

decision concerning the execution of death sentences. The

question posed by the exclusion of foreign means of evidence

was a legal problem of the first order. Since it had been

prescribed from above, the Ministry of Justice had no freedom of

disposition in this matter. This is another one of the reasons

why we should not have taken over these things.”

Defendant von Ammon was ministerial councillor in Mettgenberg’s

subdivision in charge of the Night and Fog matters. The two acted

together on doubtful matters and referred difficult questions to

competent officials in the Reich Ministry of Justice and the Party

Chancellery, since both of these offices had to give their “agreement”

in cases of malicious attacks upon the Reich or Nazi Party, or in Night

and Fog cases, which came originally from the Wehrmacht, and later from

the Gestapo, and jurisdiction of which were assigned to Special Courts

at several places in Germany and to the People’s Court at Berlin by

defendant von Ammon. In his affidavit he states (_NG-486, Pros. Ex.

337_):

“The decree of 7 February 1942, signed by Schlegelberger,

contained, among others, the following provisions: Foreign

witnesses could be heard in these special cases only with the

approval of the public prosecutor, since it was to be avoided

that the fate of NN prisoners became known outside of Germany.

“The presiding judges of the courts concerned had to notify

the public prosecutor if they intended to deviate from their

notion for a sentence. Freisler noted in this connection that

this constituted the utmost limit of what could be asked of the

courts. The special nature of this procedure made it necessary

to make such provisions.

“Later, when Thierack entered the Reich Ministry of Justice, he

changed the decree in such a manner that the courts no longer

had to declare their dissenting views to the public prosecutor,

but that the acquitted NN prisoners or those who had served

their sentences had to be handed over by the court authorities

to the Gestapo for protective custody. Under Secretary of State

Schlegelberger himself was not present at the conference, but

Under State Secretary Freisler left the conference briefly in

order to secure the signature of Schlegelberger.

“I must admit that, in dealing with these matters, I did not

particularly feel at ease. It was my intention to get the best

out of this thing and to emphasize humanitarian considerations

as much as possible in these hard measures. I have seen from the

first Nuernberg trials that the court has declared the ‘Night

and Fog’ decree as being against international law and that

Keitel, too, declared that he had been aware of the illegal

nature of this decree. Freisler, though, represented it to us in

such a manner as to create the impression that the decree was

very hard but altogether admissible.”

Mettgenberg and von Ammon were sent to the Netherlands occupied

territory because some German courts set up there were receiving

Night and Fog cases in violation of the decree that they should be

transferred to Germany. They held a conference at The Hague with the

highest military justice authorities and the heads of the German courts

in the Netherlands, which resulted in a report of the matter to the OKW

at Berlin, which agreed with Mettgenberg and von Ammon that--

“The same procedure should be used in the Netherlands as in

other occupied territories, that is, that all Night and Fog

matters should be transferred to Germany.”

With respect to the effectiveness and cruelty of the NN decree, the

defendant von Ammon commented thus:

“The essential point of the NN procedure, in my estimation,

consisted of the fact that the NN prisoners disappeared from the

occupied territories and that their subsequent fate remained

unknown.”

The distribution of the NN cases to the several competent Special

Courts and the People’s Court was decided upon by defendant von Ammon.

A report of 9 September 1942, signed by von Ammon, addressed to

defendant Rothenberger, to be submitted to the Minister of Justice and

the defendant Mettgenberg, stated that there are pending in Special

Courts Night and Fog cases as follows: At Kiel, nine cases with 262

accused; at Essen, 180 cases with 863 accused; and at Cologne, 177

cases with 331 accused. By November 1943 there were turned over at

Kiel, 12 cases with 442 accused; at Essen, 474 cases with 2,613

accused; and at Cologne, 1,169 cases with 2,185 accused.

A note dated Berlin, 26 September 1942, for the attention of defendant

Rothenberger, signed by defendant von Ammon, stated that by order of

the Reich Minister the hitherto--

“Exclusive jurisdiction of the Special Courts over NN cases is

to some extent to be replaced by the People’s Court of justice.”

A letter dated 14 October 1942 to Minister of Justice Thierack from

Freisler, then president of the People’s Court, states that he

understood that a conference held on 14 October 1942 extended the

jurisdiction of the People’s Court over NN cases. Freisler states that

he conducted the preliminary proceedings with Ministerial Director

Lehmann of the OKW with regard to the Ministry of Justice taking over

the Night and Fog proceedings. He explains that the Night and Fog

proceedings were top secret and no file or records were made in order

to be quite sure that under no circumstances should any information

be obtained by the outside world with regard to the fate of the alien

prisoners. He also emphasizes the fact that under no circumstances

could any other sentence than the one proposed by the public prosecutor

be passed and to make sure of this in the technical routine it was

decided that--

“1. The prosecutor should be entitled to withdraw the charges

until the pronouncement of the sentence.

“2. The court was to be instructed to give the prosecutor

another chance to give his point of view, in case their view

should diverge from his.”

Freisler further states:

“In fulfillment of my promise I deemed it necessary to inform

you of this, dear sir, as these facts were not permitted to

be recorded in the files and are probably unknown in the

department.”

By his supplemental directive of 28 October 1942, Thierack made note

of the fact that the “jurisdiction of the People’s Court (No. 1, 1

and 2 of the additional circular directives of 14 October 1942)”

had been extended to NN cases. Thierack’s letter, dated 25 October

1942 to defendant Lautz, copy to von Ammon, established and expanded

jurisdiction of the People’s Court over NN cases.

Thereafter the People’s Court handled many Night and Fog cases,

convicting the accused in secret sessions with no records whatsoever

made of any evidence adduced and no record was made of the sentence

pronounced. The defendant von Ammon testified that about one-half of

the Night and Fog prisoners tried by the People’s Court were executed.

Later NN cases were sent to German Special Courts at Breslau and

Katowice, Poland, and to Silesia and other places as will be shown

herein.

_Concentration Camps_

The use of concentration camps for NN prisoners was shown by a letter

dated 18 August 1942, signed by Gluecks, SS Brigadefuehrer and General

Major of the SS, which contained enclosures for information and

execution by officials in charge of concentration camps, including

Mauthausen, Auschwitz, Flossenbuerg, Dachau, Ravensbrueck, Buchenwald,

and numerous others. The letter states that such prisoners will be

transferred under the Keitel decree from the occupied countries to

Germany for transfer to Special Courts. Should that for any reason

be impossible, the accused will be put into one of the above-named

concentration camps. Those in charge of the camps were instructed that

absolute secrecy of such prisoners’ detention was to be maintained

including the prevention of any means of communication with the outside

world either before or after the trial.

The following is illustrative of inhumane prison conditions for NN

prisoners. The affidavit of Ludwig Schirmer, warden in the prison at

Ebrach, confirmed by his oral testimony, states:

“The Ebrach prison which was used for criminal convicts had a

capacity of 595 prisoners. In 1944, however, the prison became

overcrowded and finally held a maximum of from 1,400 to 1,600

prisoners in 1945.

“This crowding had been caused by numerous NN prisoners from

France and Belgium. Among them was the French General Vaillant

who died in the prison of old age and of a heart disease. Owing

to the overcrowding of the penitentiary, it was impossible to

avoid the frequent outbreak of diseases, such as pulmonary

tuberculosis, consumption, and, of course many cases of

undernourishment. The very poor medical care was a serious

disadvantage; the doctor showed up only two or three times a

week. Sixty-two inmates died during the last months of the war.

Many of them, of course, came in already sick. During the last

months, a criminal convict was employed as physician. He was a

morphinomaniac and a man of very low character.

“Although there were stocks of food at hand, the feeding of

prisoners was bad; people got only soup and turnips for weeks.

NN prisoners were crowded together, four in a single cell. From

time to time a certain number of the prisoners was transferred

to the concentration camp.”

The affidavit of Josef Prey, head guard at the Amberg prison,

confirmed by his oral testimony, states that foreigners, Jews, and NN

prisoners at Amberg prison, which had a capacity of 900 to 1,100 were

incarcerated there. Yet shortly before the collapse there were 2,000

prisoners of whom 800 to 900 prisoners were Polish, and NN prisoners

who included Frenchmen, Dutchmen, and Belgians. From time to time by

secret decree prisoners were transferred to the concentration camps

at Mauthausen. Defendant Engert, the official representative of the

department of justice, visited and officially inspected the prison and

knew of these conditions.

By his affidavit Engert states that Thierack told him the Night and

Fog prisoners had to be treated with special precaution, not allowed

any correspondence, locked up hermetically from the outer world, and

that care should be taken that their real names remain unknown to the

lower prison personnel. Engert further states that these orders were

the result of the Fuehrer decree of 7 December 1941 and that Thierack

told him the Night and Fog prisoners were accused of resistance and

violence against the armed forces. He did not know what became of these

NN prisoners at the various prison camps. He did know that an agreement

existed with the Gestapo that the bodies of Night and Fog prisoners

should be given to them for secret burial. It was shown by other

testimony that defendant Engert was ministerial director, who handled

and investigated the Night and Fog prisoners and that he was in charge

of the task of transferring prisoners and knew their nationality and

the character of crime charged against them.

On 14 June 1944 defendant von Ammon wrote Bormann, Chief of the Party

Chancellery, a letter sent by way of defendant Mettgenberg, requesting

permission of the Fuehrer to inform NN women held under death sentence

of the fact that such sentence has been reprieved, since he considers

it to be unnecessarily cruel to keep these “condemned women” in

suspense for years as to whether their death sentence will be carried

out.

Mrs. Solf, the widow of a former distinguished German cabinet officer

and ambassador, testified that she was tried and held as a political

prisoner of the Nazi regime for several years in Ravensbrueck

concentration camp and other prisons where a large number of foreign

women were imprisoned. Concerning the ill-treatment of these women and

the prison conditions under which they were incarcerated, Mrs. Solf

testified:

“As to the prisoners who were with me at Ravensbrueck, as far

as I can remember there was only an Italian woman of Belgian

descent who was treated well, better than we were. However, in

the penitentiary of Cottbus, as well as in the prison of Moabit,

I met many foreigners. In the penitentiary of Cottbus, there

alone were 300 French women who were sentenced to death, and

five Dutch women sentenced to death who after a week or two were

pardoned to penitentiary terms and whom

I saw in the courtyard. The 300 French women sentenced to death

were sent to Ravensbrueck at the end of November 1944. The night

before they were transported they had to sleep on a bare stone

floor. One of the auxiliary wardens, who was also an interpreter

for them and who had a great deal of courage and a kind heart,

came to me in order to ask us political prisoners to give them

our blankets, which we certainly did.”

She further testified:

“I know and have seen for myself that, for instance, in Moabit,

some of the brutal wardens kicked them and shouted at them for

reasons which seemed very, very unjust because these women did

not understand what they were supposed to do.”

The Night and Fog decree was from time to time implemented by several

plans or schemes, which were enforced by the defendants. One plan or

scheme was the transfer of alleged resistance prisoners or persons

from occupied territories who had served their sentences or had been

acquitted to concentration camps in Germany where they were held

incommunicado and were never heard from again. Another scheme was the

transfer of the inhabitants of occupied territories to concentration

camps in Germany as a substitute for a court trial. Defendant Engert

made such an order.

_Trials under NN Decree_

The evidence establishes beyond a reasonable doubt that in the

execution of the Hitler NN decree the Nazi regime’s Ministry of

Justice, Special Courts, and public prosecutors agreed to and

acted together with the OKW and Gestapo in causing to be arrested,

transported to Germany, tried, sentenced to death and executed, or

imprisoned under the most cruel and inhumane conditions in prisons

and concentration camps, thousands of the civilian population of the

countries overrun and occupied by the Nazi regime’s military forces

during the prosecution of its criminal and aggressive war.

The trials of the accused NN persons did not approach even a semblance

of fair trial or justice. The accused NN persons were arrested and

secretly transported to Germany and other countries for trial. They

were held incommunicado. In many instances they were denied the right

to introduce evidence, to be confronted by witnesses against them, or

to present witnesses in their own behalf. They were tried secretly

and denied the right of counsel of their own choice, and occasionally

denied the aid of any counsel. No indictment was served in many

instances and the accused learned only a few moments before the trial

of the nature of the alleged crime for which he was to be tried. The

entire proceedings from beginning to end were secret and no public

record was allowed to be made of them. These facts are proved by

captured documents and evidence adduced on the trial, to some of which

we now advert.

The first trial of NN cases took place at Essen. A letter from the

prosecutor, dated 20 August 1942, addressed to the Reich Minister of

Justice, was received on 27 August 1942, states that five defendants

were to be tried and that two of them were to get prison terms and

that--

“In the remaining cases the death sentence is to be ordered

and inquiries made whether they should be executed by the

guillotine.”

These sentences were later pronounced.

In response to several inquiries from prosecutors at Special Courts

in Essen, Kiel, and Cologne citing pending NN cases, the defendants

Mettgenberg and von Ammon replied that, in view of the regulation for

the keeping of NN trials absolutely secret, defense counsel chosen by

NN defendants would not be permitted.

In these same inquiries, it is stated that if defense counsel were

carefully selected from those who were recognized as unconditionally

reliable, pro-State and judicially efficient lawyers, no difficulty

should arise with respect to the secrecy of such proceedings. It is

suggested that if an attorney should inquire concerning representation

of an NN defendant, he should be informed that it is not permissible to

investigate whether or not there was any proceeding pending against the

accused. This inquiry related to 16 NN French defendants who were to

be tried at Cologne. Other evidence introduced in the case showed that

this practice was followed.

The foreign countries department of the Wehrmacht High Command reported

to defendant von Ammon on 15 October 1942 a list of 224 alleged spies

arrested in France in the execution of what was known as “Action

porto”, of whom 220 had already been transported to Germany. Inquiry

was made whether these prisoners should be regarded as coming under

Hitler’s NN Decree. A later directive issued 6 March 1943, which was

initialed by defendant Mettgenberg and sent to the SS Chief Himmler,

states that orders and regulations covering NN prisoners in general

will be applied to “porto action” groups. The circular decree states

further that in case of death of “porto action” prisoners, the same

procedure is followed with respect to secrecy as is followed in NN

cases, and that the estates of “porto action” prisoners are to

be retained by the penal institution for the time being, and that

relatives are not to be informed about the death of such prisoners,

especially not of their execution.

A letter dated 9 February 1943, Berlin, to the president of the

People’s Court, chief public prosecutor at Kiel and Cologne, and Chief

Public Prosecutor at Hamm, states that for the purpose of carrying out

the Night and Fog decree or directive (_NG-253, Pros. Ex. 317_):

“In trials (before the Landesgericht), in which according to

the regulations, defense counsel has to be provided for the

defendant, the regulation may be ignored when the president of

the court can conscientiously state that the character of the

accused and the nature of the charge make the presence of a

defense counsel superfluous.”

In connection with the foregoing matter, a secret note to defendant von

Ammon, dated 18 January 1941, suggests that a regulation concerning

counsel for NN prisoners should be drafted. A letter dated 4 January

1943 states that in accordance with the power granted under the

Fuehrer’s order of 7 December 1941 (_NG-253, Pros. Ex. 317_):

“Article IV, paragraph 32 of the Competence Decree of 21

February 1940 (relating to appointment of defense counsel) is

cancelled. The president of the court will order defendant to

be represented only if he is unable to defend himself or for

any special reason it seems desirable that defendant should be

represented.”

A letter dated 21 April 1943, Berlin, by Thierack, Minister of Justice,

states that (_NG-256, Pros. Ex. 320_):

“Your ordinance of 21 December 1942 decreed that in criminal

cases concerning criminal actions against the Reich and the

occupation authority in the occupied territories, defense

counsel of one’s own choice should not be approved of on

principle.”

A letter by Thierack to the president of the People’s Court, Berlin,

dated 13 May 1943, states that (_NG-256, Pros. Ex. 320_):

“The directives given by the Fuehrer on 7 December 1941 for the

prosecution of criminal actions committed against the Reich

or the occupation authorities in the occupied territories are

applicable, according to their meaning and their tenor, to

foreigners only, and not to German nationals or provisional

Germans.”

A draft of an extensive secret order or directives of the Reich

Minister of Justice, dated 6 March 1943, covering secret NN procedure

was sent to and initialed by or for heads of Ministry Departments III

and IV (the defendant Mettgenberg), Department V (headed by defendant

Engert), [initialed by Marx] and Department VI (headed by defendant

Altstoetter). The directives instructed all so concerned to take

further measures “in order not to endanger necessary top secrecy of NN

procedure”. Separate copies of this order, dated 6 March 1943, were

sent to the afore-mentioned ministry departments, including Department

VI, headed by defendant Altstoetter, who admits having seen and

executed the directives, to defendant von Ammon and to, among others,

the chief Reich prosecutor at the People’s Court (defendant Lautz); the

attorneys general in Celle, Duesseldorf, Frankfurt on Main, Hamburg,

Hamm, Kiel, and Cologne; and the attorney general at the Prussian Court

of Appeal; and for the attention of presidents of the People’s Court,

district courts of appeal at Hamm, Kiel, and Cologne, and the Prussian

court of appeal at Berlin. Among the measures of secrecy included

in the order or directives were the following (_NG-269, Pros. Ex.

319_):

“The cards used for investigations for the Reich criminal

statistics need not be filled in. Likewise, notification of the

penal records office will be discontinued until further notice.

However, sentences will have to be registered in lists or on a

card index in order to make possible an entry into the penal

records in due course.

“In case of death, especially in cases of execution of NN

prisoners, as well as in cases of female NN prisoners giving

birth to a child, the registrar must be notified as prescribed

by law. However, the following remark has to be added:

“‘By order of the Reich Minister of the Interior, the entry into

the death (birth) registry must bear an endorsement, saying

that examination of the papers, furnishing of information and

of certified copies of death (birth) certificates is only

admissible with the consent of the Reich Minister of Justice.’”

Department VI headed by defendant Altstoetter handled matters relating

to registration of deaths and births. The order further provides:

“Farewell letters by NN prisoners as well as other letters must

not be mailed. They have to be forwarded to the prosecution who

will keep them until further notice.

“If an NN prisoner who has been sentenced to death and informed

of the forthcoming execution of the death sentence desires

spiritual assistance by the prison padre, this will be granted.

If necessary, the padre must be sworn to secrecy.

“The relatives will not be informed of the death and especially

of the execution of an NN prisoner. The press will not be

informed of the execution of a death sentence, nor must the

execution of a death sentence be publicly announced by posters.

“The bodies of executed NN prisoners or prisoners who died from

other causes have to be turned over to the State Police for

burial. Reference must be made to the existing regulations on

secrecy. It must be pointed out especially that the graves of NN

prisoners must not be marked with the names of the deceased.

“The bodies must not be used for teaching or research purposes.

“Legacies of NN prisoners who have been executed or died from

other causes must be kept at the prison where the sentence was

served.”

Later, in some instances the right to spiritual assistance was denied

and a later directive authorized the turning over of bodies of NN

persons to institutes for experimental purposes.

A letter dated 3 June 1943, from the Reich Ministry of Justice to the

People’s Court justices and the Chief Public Prosecutors, initialed

by defendant Mettgenberg, deals with the subject of trials under the

NN decree of foreigners who were nationals of other countries than

those occupied by the Nazi forces. The difficulty obviously involved a

violation of international law as to such nationals of other countries.

In particular, the difficulty arose as to the regulation for the

maintenance of secrecy of such trials and whether the secrecy with

regard to NN cases should apply. The reply was that they were to be

tried in accordance with the circular decrees of 6 February 1942 and

14 October 1942, and the regulations issued for the amendment of these

circular decrees to be entitled “NN Prisoners Taken by Mistake”. This

decree provides that if the trial of such foreigners could not be

carried out separately from the trial of the nationals of the occupied

countries for reasons pertaining to the presentation of evidence, then

the trials were to be strictly in accordance with the provisions of NN

procedure; otherwise said foreign nationals would obtain knowledge of

the course of the trial against their accomplices.

A note signed by the defendant von Ammon, dated 7 October 1943, states

that NN prisoners were often ignorant of charges against them until a

few moments before the trial. He further states that Chief Reich Public

Prosecutor Lautz asked him whether there were any objections to the

translation of the indictment into the language of the defendant, which

would then be handed to him. Defendant von Ammon replied that there

would be no objection to the proceeding and stated (_NG-281, Pros.

Ex. 323_):

“It proved rather awkward that defendants learned the details of

their charges only during the trial. Also, the interpretation

by defense counsel is not always sufficient because their French

mostly is not good enough and defendants were brought to the

place of trial only shortly before it was held.”

The same difficulty arose as to Czech defendants.

A report on a conference with respect to new procedure in treatment of

Night and Fog cases originating in the Netherlands, signed “von Ammon”

and “Mettgenberg, 9 November 1943”, addressed to Ministerial Director

Engert and others, states that while returning from The Hague to Berlin

the undersigned representative of the Reich Ministry of Justice held on

5 November as scheduled, a conference with the head officials of the

court of appeals at Hamm and that defendant Joel thought the housing of

NN prisoners, also such of Dutch nationality, at Papenburg, would be

possible and unobjectionable. This was later carried out.

A secret letter dated 29 December 1943, addressed to defendant von

Ammon from the presiding judge and chief prosecutor of Hamm Court

of Appeals notified von Ammon of an imminent conference concerning

transfer of the NN trials to the NN Special Courts at Oppeln and

Katowice.

A letter from Breslau dated 10 January 1944, signed by Dr. Sturm, asks

that ministerial councillor, defendant von Ammon, be available for a

meeting at Breslau between 15 and 31 January 1944 to discuss routine

proceedings for handling NN cases.

A letter addressed to the German commander of the French occupied

zone states that effective from 15 November 1943 all cases of crimes

committed against the Reich or the occupation forces in occupied French

zones hitherto submitted to the ordinary legal authorities were to be

taken over by the Special Court and attorney general in Cologne and

Breslau.

The defendant von Ammon attended conferences with public prosecutors in

Breslau and Katowice (Poland) on 18 and 19 February 1944, concerning

housing of NN prisoners and possibility of transferring NN cases from

the Netherlands, Belgium, and northern France to Special Courts in

Poland for trial; von Ammon reported the results of these conferences

in detail to, among others, the defendant Klemm (under secretary)

and personally wrote on his report that he had secured appropriate

Gauleiter’s concurrence to the proposed transfer. Shortly thereafter

the Ministry of Justice issued a decree endorsed to the defendant

Mettgenberg for signature, and submitted twice to von Ammon, for

information and cosignature, whereby these Dutch, Belgian, and

northern French NN cases were to be transferred to Silesia for trial.

In response to this decree, von Ammon was personally notified that

the defendant Joel (then general public prosecutor at Hamm) feared

objections from the Wehrmacht because of the longer transportation

involved in the transfer.

A directive by the Reich Minister of Justice with respect to treatment

of NN prisoners, dated Berlin, 21 January 1944, initialed by defendant

von Ammon, to the president of the People’s Court, to the Reich Leader

SS, Reich prosecutor of the People’s Court (defendant Lautz), to the

Chief Public Prosecutor at Hamm (defendant Joel), and others, states

that when an NN prisoner had been acquitted by a general court, if

it appears that the accused is innocent or if his guilt has not been

established sufficiently, then he has to be handed over to the Secret

Police. The directive further states:

“If in the main trial of an NN proceeding it appears that the

accused is innocent or if his guilt has not been sufficiently

established, then he is to be handed over to the Secret State

Police; the public prosecutor informs the Secret State Police

about his opinion whether the accused can be released and return

into the occupied territories, or whether he is to be kept under

detention. The Secret State Police decide which further actions

are to be taken.

“Accused who were acquitted, or whose proceedings were closed in

the main trial, or who served a sentence during the war, are to

be handed over to the Secret State Police for detention for the

duration of the war.”

A letter dated 21 January 1944, Berlin, to the OKW and the Judge

Advocate General Department, dispatched 22 January 1944 (copy to

Dr. Mettgenberg with request for approval) complains of lack of

coordination in NN cases between military courts and justice officials.

This complaint relates primarily to transfer of NN cases.

In answer to the objections to the transfer of NN cases arising in

France from Cologne to Breslau, dated 18 January 1944, the defendants

Mettgenberg and von Ammon insisted that the transfer is necessary and

directed its accomplishment. Three days later a letter endorsed by

Mettgenberg informed Himmler that this transfer of NN cases had taken

place.

On 24 April 1944 von Ammon reported in detail on a trip he made to

Paris previously referred to. This official visit served particularly

to obtain information of the security situation in France and to

determine whether the NN procedures of the Breslau Special Court

were approved by the army. This meeting occurred in the office of

the Chief Justice of the German Military Governor of Paris, General

von Stuelpnagel. Von Ammon submitted this report both to Klemm and

Mettgenberg who initialed it.

A letter from Hamm (Westphalia), 26 January 1944, to the Reich Minister

Thierack, signed by defendant Joel, suggests the speeding up of

proceedings to avoid delays in NN cases, and suggests that:

“The Chief Public Prosecutor submits record to the chief

Reich prosecutor only if, according to previous experience or

according to directives laid down by the chief Reich prosecutor,

it is to be expected that he will take over, or partly take over

the case.

“As a rule, even now when the draft of the indictment is

submitted for approval to the Reich Minister of Justice, the

records are not enclosed. The decision rests with me, to whom

the documents are brought by courier.”

A note signed by Dr. Reicholt, 20 April 1944, copy to defendant von

Ammon, expresses the same difficulty experienced by defendant Joel and

asks that Chief Public Prosecutor at the People’s Court decide quickly

which of the accused persons he wanted to keep so that they may be

transferred as quickly as possible.

The foregoing requests for speed in handling NN cases were due to

disturbances caused by air raids. The Reich Minister of Justice

replied, 26 April 1944, that in the main “the delay in the proceedings

is unavoidable.”

Defendant von Ammon reported on a conference with German occupying

forces of Belgium and northern France, held in Oppeln on 29 and 30 June

1944. Von Ammon stated that since the Allied invasion had not caused

undue tension as yet, it was unnecessary at that time to make penalties

in NN cases more severe. This report was initialed by defendant

Mettgenberg.

_Disposition of NN Cases_

A statistical survey of NN cases as of 1 November 1943 made to

Ministerial Director Dr. Vollmer, Berlin, 22 November 1943, shows cases

and sentences passed on NN prisoners as follows:

1. Turned over by the Wehrmacht authorities to senior public

prosecutors at Kiel, 12 cases with 442 defendants; at Essen, 474 cases

with 2,613 defendants; at Cologne, 1,169 cases with 2,185 defendants.

2. Charges filed by senior public prosecutors as follows: At Kiel, nine

cases with 175 defendants; at Essen, 254 cases with 860 defendants; at

Cologne, 173 cases with 257 defendants; by chief public prosecutor at

the People’s Court (Lautz), 111 cases with 494 defendants.

3. Sentences passed by Special Courts at Kiel, eight on 168 defendants;

at Essen, 221 cases with 475 defendants; at Cologne, 128 cases with

183 defendants; at People’s Court, 84 cases with 304 defendants.

The defendant von Ammon testified that about one-half of all defendants

tried by the People’s Court were given the death penalty and were

executed. The foregoing documents show that defendant Lautz was Chief

Public Prosecutor at the People’s Court at the time the 304 sentences

were pronounced in the Night and Fog cases.

A similar survey, 5 months later (30 April 1944), shows that of a total

of 8,639 NN defendants transferred to the various Special Courts and

the People’s Court in Germany, 3,624 were indicted, and 1,793 were

sentenced. Defendant von Ammon initialed this survey.

The foregoing statistical reports as to time are obviously incomplete.

They do not show the number of NN cases tried at Breslau, Katowice, and

other places. The foregoing documents show that at these places great

difficulty was experienced because of lack of prisons for the large

number of NN prisoners who were sent to these areas. Nor do they show

the number of NN prisoners committed to concentration camps without

trial. They do not show the number of residue NN prisoners who were

at the end of the control of NN matters by the Minister of Justice

committed to concentration camps and never heard from thereafter.

_Use of NN Prisoners in Armament Industry_

In file of reports for the years 1943 and 1944 of NN cases still

pending in the Ministry of Justice, the attorney general at Katowice

(Poland) stated to the Ministry of Justice the following (_NG-264,

Pros. Ex. 334_):

“NN prisoners held within the jurisdiction of the Court of

Appeal of Katowice are already employed to a large extent in

the armament industry, regardless of whether they are being

held for questioning or punishment. They are quartered there in

special camps at or near the place of the respective industrial

enterprise. In this way it is intended, if possible, to place

all NN prisoners at the disposal of the armament industry.

“It has been disclosed that the NN prisoners already employed

in the armament industry, as for instance the 400-odd prisoners

working in Laband, have done a very good job and excel in

particular as skilled workers. The armament industry therefore

wants to retain the employed NN prisoners also after their

acquittal or after they have served their sentence.

“I ask for a decision on whether and, if so, how that demand can

be complied with. Considerable doubts arise from the fact that

there is no legal right to confine them further and that the

judicial authorities would thus take preventive police measures.

There is the question, however, whether the situation of the

Reich does not justify even such extraordinary measures.”

This request was handled by defendant von Ammon, who endorsed it as

follows:

“Submitted * * * first to Department V (headed by defendant

Engert) with the request for an opinion. If you have no

objections I intend to contact the RSHA in accordance with the

report of the attorney general at Katowice.”

_Clemency in the NN Cases_

As Under Secretary, defendant Klemm was required to pass upon clemency

matters either while acting with or in the absence of the Minister of

Justice. He admits passing upon clemency pleas in NN death cases and

refusing all of them. Fourteen documents concerning NN matters passed

through defendant Klemm after he became under secretary of State. He

knew of the transfer of NN cases from Essen to Silesia and knew of

“routine” NN matters which passed through his department.

In the fall of 1944 Hitler ordered the discontinuance of the NN

proceedings by the justice and the OKW courts and transferred the

entire problem to the Gestapo, the NN prisoners being handed over

to the Gestapo at the same time. In later conferences attended by

defendant von Ammon, the Ministry of Justice agreed to and later

actually carried out the transfer by committing them from the

Ministry’s prisons to the Gestapo’s custody. Defendant Lautz was

ordered to suspend People’s Court proceedings against NN prisoners and

transfer them to the Gestapo. The witness Hecker stated that those NN

prisoners of the Berlin district, of which he had knowledge, were sent

to Oranienburg.

The final order of the Ministry of Justice committing all NN prisoners

on hand to the Gestapo and the concentration camps was one of extreme

cruelty.

The foregoing documents and the undisputed facts show that Hitler and

the high ranking officials of the armed forces and of the Nazi Party,

including several Reich Ministers of Justice and other high officials

in the Ministry of Justice, judges of the Nazi regime’s courts, the

public prosecutors at such courts, either agreed upon, consented to,

took a consenting part in, ordered, or abetted, were connected with the

Hitler NN plan, scheme, or enterprise involving the commission of war

crimes and crimes against humanity during the waging of the recent war

against the Allied nations and other neighboring nations of Germany.

The foregoing documents and facts show without dispute that several

of the defendants participated to one degree or another either as a

principal; or ordered, or abetted, took a consenting part in, or were

connected with the execution or carrying out of the Hitler NN scheme or

plan. The defendants so participating will be later discussed in the

summation of the evidence.

The Night and Fog decree originated with Hitler as a plan or scheme

to combat alleged resistance movements against the German occupation

forces but it was early extended by the Ministry of Justice to include

offenses against the German Reich. Often the offenses had nothing to

do with the security of the armed forces in the occupied territories.

Many of them occurred after military operations had ceased and in areas

where there were no military operations. The first secret decree of the

Ministry of Justice for the execution or carrying out of the NN decree

provided for:

“1. The prosecution of criminal offenses against the Reich or,

”2. The occupation troops in occupied areas.”

It declared that the directive will be as a rule applicable to the

seven above listed general types of offenses or crimes, including

“Communist activity”. The term “Communist activity” is general and

political in nature. The evidence shows that political prisoners in

occupied territories were tried and sentenced to death under the NN

proceedings. Pertinent here with respect to the so-called resistance

activities is the finding of the IMT that:

“The local units of the Security Police and SD continued their

work in the occupied territories after they had ceased to be

an area of operations. The Security Police and SD engaged in

widespread arrests of the civilian population of these occupied

countries, imprisoned many of them under inhumane conditions,

subjected them to brutal third degree methods, and sent many of

them to concentration camps. Local units of the Security Police

and SD were also involved in the shooting of hostages, the

imprisonment of relatives, the execution of persons charged as

terrorists, [and saboteurs without a trial], and the enforcement

of the ‘Nacht und Nebel’ decrees under which persons charged

with a type of offense believed to endanger the security of the

occupying forces were either executed within a week or secretly

removed to Germany without being permitted to communicate with

their family and friends.”[656]

Defendant Schlegelberger explained the fundamental purpose of the NN

decree to be a deterrent “through cutting off of the prisoners from

every contact with the outside world”. He further explained “that the

NN prisoners were expected and were to be tried materially according

to the same regulations which would have been applied to them by the

courts martial in the occupied territories” and that accordingly, “the

rules of procedure had been curtailed to the utmost extent.”

The enforcement of the directives under the Hitler NN plan or

scheme became a means of instrumentality by which the most complete

control and coercion of a lot of the people of occupied territories

were affected and under which thousands of the civilian population

of occupied areas were imprisoned, terrorized, and murdered. The

enforcement and administration of the NN directives resulted in the

commission of war crimes and crimes against humanity in violation of

the international law of war and international common law relating to

recognized human rights, and of article II, paragraphs 1(_b_) and

(_c_) of Control Council Law No. 10.

During the war, in addition to deporting millions of inhabitants of

occupied territories for slave labor and other purposes, Hitler’s Night

and Fog program was instituted for the deportation to Germany of many

thousands of inhabitants of occupied territories for the purpose of

making them disappear without trace and so that their subsequent fate

remain secret. This practice created an atmosphere of constant fear

and anxiety among their relatives, friends, and the population of the

occupied territories.

The report of the Paris Conference of 1919, referred to above, listed

32 crimes as constituting “the most striking list of crimes as has ever

been drawn up, to the eternal shame of those who committed them.” This

list of crimes was considered and recognized by the Versailles Treaty

and was later recognized as international law in the manner herein

above indicated. Among the crimes so listed was the “deportation of

civilians” from enemy occupied territories.

Control Council Law No. 10 in illustrating acts constituting violations

of laws or customs of war, recognizes as war crimes the “deportation

to slave labour or for any other purpose of civilian population from

occupied territory.” (Art. II, 1(_b_).) C. C. Law 10 [Article II]

paragraph 1(_c_) also recognizes as crimes against humanity the

“enslavement, deportation, imprisonment * * * against any civilian

population.”

The IMT held that the deportation of inhabitants from occupied

territories for the purpose of “efficient and enduring intimidation”

constituted a violation of the laws and customs of war. The deportation

for the purpose of “efficient and enduring intimidation” is likewise

condemned by C. C. Law 10, under the provision inhibiting “deportation

* * * for any other purpose, of civilian population from occupied

territory.”

Also among the list of 32 crimes contained in the Conference Report of

1919 are “murder and massacre, and systematic terrorism”. C. C. Law

10 makes deportation of civilian population “for any purpose” a crime

recognized as coming within the jurisdiction of the law. The admitted

purpose of the Night and Fog decree was to provide an “efficient and

enduring intimidation” of the population of occupied territories. The

IMT held that the Hitler NN decree was “a systematic rule of violence,

brutality, and terror”, and was therefore in violation of the laws of

war as a terroristic measure.

The evidence shows that many of the Night and Fog prisoners who were

deported to Germany were not charged with serious offenses and were

given comparatively light sentences or acquitted. This shows that they

were not a menace to the occupying forces and were not dangerous in the

eyes of the German justices who tried them. But they were kept secretly

and not permitted to communicate in any manner with their friends and

relatives. This is inhumane treatment. It was meted out not only to the

prisoners themselves but to their friends and relatives back home who

were in constant distress of mind as to their whereabouts and fate.

The families were deprived of the support of the husband, thus causing

suffering and hunger. The purpose of the spiriting away of persons

under the Night and Fog decree was to deliberately create constant fear

and anxiety among the families, friends, and relatives as to the fate

of the deportees. Thus, cruel punishment was meted out to the families

and friends without any charge or claim that they actually did anything

in violation of any occupation rule of the army or of any crime against

the Reich.

It is clear that mental cruelty may be inflicted as well as physical

cruelty. Such was the express purpose of the NN decree, and thousands

of innocent persons were so penalized by its enforcement.

The foregoing documents show without dispute that the NN victim was

held incommunicado and the rest of the population only knew that a

relative or citizen had disappeared in the night and fog; hence,

the name of the decree. If relatives or friends inquired, they were

given no information. If diplomats or lawyers inquired concerning the

fate of an NN prisoner, they were told that the state of the record

did not admit of any further inquiry or information. The population,

relatives, or friends were not informed for what character of offense

the victim had been arrested. Thus, they had no guide or standard by

which to avoid committing the same offense as the unfortunate victims

had committed which necessarily created in their minds terror and dread

that a like fate awaited them.

Throughout the whole Night and Fog program ran this element of utter

secrecy. This secrecy of the proceedings was a particularly obnoxious

form of terroristic measure and was without parallel in the annals of

history. It could have been promulgated only by the cruel Nazi regime

which sought to control and terrorize the civilian population of the

countries overrun by its aggressive war. There was no proof that the

deportation of the civilian population from the occupied territories

was necessary to protect the security of the occupant forces. The

NN plan or scheme fit perfectly into the larger plan or scheme of

transportation of millions of persons from occupied territories to

Germany.

C. C. Law 10 makes deportation of the civilian population for any

purpose an offense. The international law of war has for a long period

of time protected the civilian population of any territory or country

occupied by an enemy war force. This law finds its source in the

unwritten international law as established by the customs and usages

of the civilized nations of the world. Under international law the

inhabitants of an occupied area or territory are entitled to certain

rights which must be respected by the invader occupant.

This law of military occupation has been in existence for a long period

of time. It was officially interpreted and applied nearly a half

century ago by the President of the United States of America during

the war with Spain in 1898. By General Order No. 101, 18 July 1898

(U. S. Foreign Relations, p. 783), the President declared that the

inhabitants of the occupied territory “are entitled to the security

in their persons and property and in all their private rights and

relations.” He further declared that it was the duty of the commander

of the Army of Occupation “to protect them in their homes, in their

employments, and in their personal and religious rights,” and that

“the municipal laws of the conquered territory, such as affect private

rights of persons and property and provide for punishment of crime,

are continued in force” and are “to be administered by the ordinary

tribunals, substantially as they were before the occupation.” The

President referred to the fact that these humane standards of warfare

had previously been established by the laws and customs of war, which

were later codified by the Hague Conventions of 1899 and 1907, and

which constituted the effort of the civilized participating nations

to diminish the evils of war by the limitation of the power of the

invading occupant over the people and by placing the inhabitants of

the occupied area or territory “under the protection and the rule of

the principles of the law of nations, as they result from the usages

established among civilized peoples, from the laws of humanity and the

dictates of the public conscience.”

A similar order was issued during the first war with Germany by

the President of the United States of America when the American

Expeditionary Forces entered the Rhineland in November 1918. (General

Order No. 218, 28 November 1918.) At the conclusion of this occupancy,

the German Government expressed its appreciation of the conduct of the

American occupying forces.

But Germany soon forgot these humane standards of warfare, as is shown

by the undisputed evidence. The general policy of the Nazi regime

was to terrorize and in some instances to exterminate the civilian

populations of occupied territories.

Pertinent here is the finding of the IMT that:

“In an order issued by the defendant Keitel on 23 July 1941, and

drafted by the defendant Jodl, it was stated that:

“‘In view of the vast size of the occupied areas in the East,

the forces available for establishing security in these areas

will be sufficient only if all resistance is punished, not

by legal prosecution of the guilty, but by the spreading of

such terror by the armed forces as is alone appropriate to

eradicate every inclination to resist among the population * *

*. Commanders must find the means of keeping order by applying

suitable Draconian measures’.”[657]

Both Keitel and Jodl were sentenced to death by the IMT and later

executed. It was the same Keitel who had issued, over his own

signature, the Hitler NN decree which provided that (_NG 669-PS,

Pros. Ex. 305_):

“Efficient and enduring intimidation can only be achieved either

by capital punishment or by measures by which the relatives of

the criminal and the population do not know the fate of the

criminal. This aim is achieved when the criminal is transferred

to Germany.”

Beyond dispute the foregoing decrees were inspired by the same thought

and purpose and represent the general policy of the Nazi regime in

the prosecution of its aggressive war. This general policy was to

terrorize, torture, and in some occupied areas to exterminate the

civilian population. The undisputed evidence in this case shows that

Germany violated during the recent war every principle of the law

of military occupation. Not only under NN proceedings but in all

occupations she immediately, upon occupation of invaded areas and

territories, set aside the laws and courts of the occupied territories.

She abolished the courts of the occupied lands and set up courts manned

by members of the Nazi totalitarian regime and system. These laws of

occupation were cruel and extreme beyond belief and were enforced by

the Nazi courts in a cruel and ruthless manner against the inhabitants

of the occupied territories, resulting in grave outrages against

humanity, against human rights and morality and religion, and against

international law, and against the law as declared by C. C. Law 10,

by authority of which this Court exercises its jurisdiction in the

instant case. The evidence adduced herein provides undeniable and

positive proof of the ill-treatment of the subjugated people by the

Nazi Ministry of Justice and prosecutors to such an extent that jurists

as well as civilians of civilized nations who respect human rights

and human personality and dignity can hardly believe that the Nazi

judicial system could possibly have been so cruel and ruthless in their

treatment of the population of occupied areas and territories.

The foregoing procedure under the NN decree was clearly in violation of

the following provisions sanctioned by the Hague Regulations:

“_Article 5._--Prisoners of war * * * cannot be confined

except as an indispensable measure of safety and only while the

circumstances which necessitate the measure continue to exist.

“_Article 23(h)._--* * * It is expressly forbidden * * * to

declare abolished, suspended, or inadmissible in a court of law

the rights and actions [of the nationals] of the hostile party.

“_Article 43._--The authority of the legitimate power

having in fact passed into the hands of the occupant, the latter

shall take all the measures in his power to restore, and ensure,

as far as possible, public order and safety, while respecting,

unless absolutely prevented, the law in force in the country.

“_Article 46._--Family honor and rights, the lives of

persons and private property, as well as religious convictions

and practice, must be respected. Private property cannot be

confiscated.”

Both the international rules of war and C. C. Law 10 inhibit the

torture of civilians by the occupying forces. Under the Night and Fog

decree civilians were secretly transported to concentration camps and

were imprisoned under the most inhumane conditions as was shown by

the above statements from captured documents. They were starved and

ill-treated while in concentration camps and prisons. Thus, the Night

and Fog decree violated these express inhibitions of international law

of war as well as the express provisions of C. C. Law 10.

Such imprisonment and ill-treatment was also in violation of the rule

prescribed by the Conference of Paris of 1919 which prohibits the

“internment of civilians under inhumane conditions”. The Night and

Fog decree was in violation of the international law as recognized by

the Paris Conference of 1919 in that the NN prisoners were deported to

Germany and forced to labor in the munitions plants of the enemy power.

The foregoing documents establish beyond dispute that they were so

employed in munitions plants with the sanction and approval of the

Reich Ministry of Justice under the approval of the defendant von Ammon.

The extent of activity and the criminality of the defendants who

participated in the execution and carrying out of the Night and Fog

decree will be discussed under the summation of the evidence relating

to each such defendant. Each defendant has pleaded in effect as a

defense the act of State as well as superior orders in justification

or mitigation of any crime he may have committed in the execution of

the Night and Fog decree. The basis for individual liability for crimes

committed and the law relating thereto was clearly and ably declared by

the IMT judgment which reads as follows:

“It was submitted that international law is concerned with

the actions of sovereign states, and provides no punishment

for individuals; and further, that where the act in question

is an act of state, those who carry it out are not personally

responsible, but are protected by the doctrine of the

sovereignty of the State. In the opinion of the Tribunal, both

these submissions must be rejected. That international law

imposes duties and liabilities upon individuals as well as

upon States has long been recognized. In the recent case of

_Ex parte Quirin_ (1942 317 U. S. 1), before the Supreme

Court of the United States, persons were charged during the war

with landing in the United States for purposes of spying and

sabotage. The late Chief Justice Stone, speaking for the Court,

said:

“‘From the very beginning of its history this Court has applied

the law of war as including that part of the law of nations

which prescribes for the conduct of war, the status, rights, and

duties of enemy nations as well as enemy individuals.’

“He went on to give a list of cases tried by the Courts, where

individual offenders were charged with offenses against the

laws of nations, and particularly the laws of war. Many other

authorities could be cited, but enough has been said to show

that individuals can be punished for violations of international

law. Crimes against international law are committed by men, not

by abstract entities, and only by punishing individuals who

commit such crimes can the provisions of international law be

enforced.”[658]

_RACIAL PERSECUTION_

The record contains innumerable acts of persecution of individual

Poles and Jews, but to consider these cases as isolated and unrelated

instances of perversion of justice would be to overlook the very

essence of the offense charged in the indictment. The defendants

are not now charged with conspiracy as a separate and substantive

offense, but it is alleged that they participated in carrying out a

governmental plan and program for the persecution and extermination

of Jews and Poles, a plan which transcended territorial boundaries

as well as the bounds of human decency. Some of the defendants took

part in the enactment of laws and decrees the purpose of which

was the extermination of Poles and Jews in Germany and throughout

Europe. Others, in executive positions, actively participated in

the enforcement of those laws and in atrocities, illegal even under

German law, in furtherance of the declared national purpose. Others,

as judges, distorted and then applied the laws and decrees against

Poles and Jews as such in disregard of every principle of judicial

behavior. The overt acts of the several defendants must be seen and

understood as deliberate contributions toward the effectuation of the

policy of the Party and State. The discriminatory laws themselves

formed the subject matter of war crimes and crimes against humanity

with which the defendants are charged. The material facts which must

be proved in any case are (1) the fact of the great pattern or plan

of racial persecution and extermination; and (2) specific conduct

of the individual defendant in furtherance of the plan. This is but

an application of general concepts of criminal law. The person who

persuades another to commit murder, the person who furnishes the lethal

weapon for the purpose of its commission, and the person who pulls the

trigger are all principals or accessories to the crime.

We turn to the national pattern or plan for racial extermination.

Fundamentally, the program was one for the actual extermination of

Jews and Poles, either by means of killing or by confinement in

concentration camps, which merely made death slower and more painful.

But lesser forms of racial persecution were universally practiced by

governmental authority and constituted an integral part in the general

policy of the Reich. We have already noted the decree by which Jews

were excluded from the legal profession. Intermarriage between Jews

and persons of German blood was prohibited. Sexual intercourse between

Jews and German nationals was punished with extreme severity by the

courts. By other decrees Jews were almost completely expelled from

public service, from educational institutions, and from many business

enterprises. Upon the death of a Jew his property was confiscated.

Under the provisions for confiscation under the 11th amendment to the

German Citizenship Law, _supra_, the decision as to confiscation

of the property of living Jews was left to the chief of the Security

Police and the SD. The law against Poles and Jews cited _supra_

(4 December 1941) was rigorously enforced. Poles and Jews convicted of

specific crimes were subjected to different types of punishment from

that imposed upon Germans who had committed the same crimes. Their

rights as defendants in court were severely circumscribed. Courts

were empowered to impose death sentences on Poles and Jews even where

such punishment was not prescribed by law, if the evidence showed

“particularly objectionable motives”. And, finally, the police were

given _carte blanche_ to punish all “criminal” acts committed by

Jews without any employment of the judicial process. From the great

mass of evidence we can only cite a few illustrations of the character

and operation of the program.

On 30 January 1939 in an address before the Reichstag, Hitler, who was

at that very time perfecting his plot for aggressive war, said:

“If the international Jewish financiers within and without

Europe succeed in plunging the nations once more into a world

war, then the result will not be the Bolshevization of the world

and thereby the victory of Jewry, but the obliteration of the

Jewish race in Europe.”

We quote from the writings of Alfred Rosenberg (since hanged), “High

Priest of the Nazi Racial Theory and Herald of the Master Race:”

“A new faith is arising today--the myth of the blood, the

faith to defend with the blood the divine essence of man. The

faith, embodied in clearest knowledge, that the Nordic blood

represents that mysterium which has replaced and overcome the

old sacraments.”[659]

The Rosenberg philosophy strongly supported the program of the Nazi

Party, which reads as follows:

“None but members of the nation (Volk) may be citizens of the

State. None but those of German blood, whatever their creed, may

be members of the nation. No Jew, therefore, may be a member of

the nation.”

It was to implement this program that the discriminatory laws against

Poles and Jews were enacted as hereinabove set forth.

A directive of the Reich Ministry of Justice, signed by Freisler, dated

7 August 1942, addressed to prosecutors and judges, set forth the

broad general purposes which were to govern the application of the law

against Poles and Jews and the specific application of that law in the

trial of cases. We quote (_NG-744, Pros. Ex. 500_):

“The penal law ordinance of 4 December 1941 concerning Poles was

intended not only to serve as a criminal law against Poles and

Jews, but beyond that also to provide general principles for

the German administration of law to adopt in all its judicial

dealings with Poles and Jews, irrespective of the role which

the Poles and Jews play in the individual proceedings. The

regulations of article IX for instance, according to which Poles

and Jews are not to be sworn in, apply to proceedings against

Germans as well. * * *

“1. Proceedings against Germans should be carried on whenever

possible without calling Poles and Jews as witnesses. If,

however, such a testimony cannot be evaded, the Pole or Jew

must not appear as a witness against the German during the main

trial. He must always be interrogated by a judge who has been

appointed or requested to do so, * * *.

“2. Evidence given by Poles and Jews during proceedings against

Germans must be received with the utmost caution especially in

those cases where other evidence is lacking.”

On 13 October 1942 the Reich Minister of Justice Thierack wrote to

Reichsleiter Bormann, in part as follows (_NG-558, Pros. Ex. 143_):

“With a view to freeing the German people of Poles, Russians,

Jews, and gypsies, and with a view to making the eastern

territories which have been incorporated into the Reich

available for settlements for German nationals, I intend to turn

over criminal proceedings against Poles, Russians, Jews, and

gypsies to the Reich Leader SS. In so doing I base myself on

the principle that the administration of justice can only make

a small contribution to the extermination of members of these

peoples. The justice administration undoubtedly pronounces very

severe sentences on such persons, but that is not enough to

constitute any material contribution toward the realization of

the above-mentioned aim.”

On 18 September 1942 a conference was held among Thierack, Himmler,

Bormann, Rothenberger, and others. The notes of the conference, signed

by Thierack, disclose that the subjects of discussion included “special

treatment” at the hands of the police in cases where judicial sentences

were not severe enough. Among other points agreed upon between

Bormann, Himmler, and Thierack, were the following (_654-PS, Pros.

Ex. 39_):

“The Reich Minister of Justice will decide whether and when

special treatment at the hands of the police is to be applied. *

* *

“The delivery of asocial elements while serving penal sentences

to the Reich Leader of SS to be worked to death. Persons under

security detention, Jews, gypsies, Russians, and Ukrainians,

Poles with more than 3-year sentences, Czechs and Germans with

more than 8-year sentences will be turned over without exception

according to the decision of the Reich Minister for Justice.

First of all the worst asocial elements among those just

mentioned are to be handed over. I shall inform the Fuehrer of

this through Reichsleiter Bormann. * * *

“It is agreed that, in consideration of the intended aims of

the government for the clearing up of the eastern problems,

in future Jews, Poles, gypsies, Russians, Ukrainians are no

longer to be judged by the ordinary courts, so far as punishable

offenses are concerned, but are to be dealt with by the Reich

Leader SS. * * *”

The defendant Rothenberger testified that he was not present when these

agreements were made. However that may be, it is clear that they came

to his notice shortly thereafter.

Of special significance is the record concerning the establishment of

penal laws for Poles and Jews in the annexed eastern territories. On 17

April 1941 the defendant Schlegelberger addressed a letter to the Reich

Minister and chief of the Reich Chancellery. In it he states that as

soon as the Special Courts were introduced in the eastern territories

under the decree of 5 September 1939 he tried to make those “courts

with their particularly prompt and energetic procedure centers for

combating all Polish and Jewish crime.” He states that “the procedure

of compulsory prosecution was rescinded, at is seems intolerable that

Poles and Jews should in this way compel the German prosecutor to

issue an indictment.” Poles and Jews were also prohibited from raising

private actions and accessory actions. He further states:

“On being informed of the Fuehrer’s intention to discriminate

in the sphere of penal law between the Poles (and probably the

Jews as well), and the Germans, I prepared, after preliminary

discussions with the presidents of the courts of appeal and

the attorney generals of the annexed eastern territories, the

attached draft concerning the administration of the penal laws

against Poles and Jews in the annexed eastern territories and in

the territory of the former Free City of Danzig.”

Again, he says:

“So far I have been in agreement with the opinion held by the

Fuehrer’s deputy, on the fact that a Pole is less sensitive to

the imposition of an ordinary prison sentence. Therefore, I had

taken administrative measures to ensure that Poles and Jews

be separated from other prisoners and that their imprisonment

be rendered more severe. Number 3 goes still farther and

substitutes for the terms of imprisonment and hard labor

prescribed by Reich law other prison sentences of a new kind,

viz, the prison camp and the more rigorous prison camp.”

Speaking of the proposed draft prepared by him, Schlegelberger said:

“The part concerned with procedure contains first the special

regulations existing up to now of the preliminary decree. In

addition, a Pole and a Jew sentenced by a German court is not to

be allowed in the future any legal remedy against the judgment;

neither will he have a right of appeal, or be allowed to ask

that the case be reopened. All sentences will take effect

immediately. In future, Poles and Jews will also no longer be

allowed to object to German judges on the grounds of prejudice;

nor will they be able to take an oath. Coercive measures against

them are permissible under easier conditions.”

A memorandum dated 22 April 1941, bearing the same file number as the

letter of Schlegelberger, states that Schlegelberger has transmitted

the proposed draft, and adds:

“The draft establishes a draconic special criminal law for Poles

and Jews, giving a wide range for the interpretations of the

facts of the case, with the death penalty applicable throughout.

The conditions of imprisonment are also much more severe than

provided for in the German criminal law.”

The note further states:

“The Minister of Justice differs only in two points from the

suggestions of the Fuehrer’s deputy.”

It then states that the Fuehrer’s deputy considered it more appropriate

to authorize the Reich governors to introduce the special criminal

law, whereas the Minister of Justice provides for its introduction by

a Reich decree. The second difference of opinion was somewhat to the

credit of the defendant Schlegelberger. The Fuehrer’s deputy considered

the introduction of corporal punishment appropriate, and the Minister

of Justice refused to agree.

On 3 August 1942 the Reich Minister of Justice sent a draft of the

proposed ordinance to a number of high officials, including the Reich

Minister of Interior and the Reich Minister for Popular Enlightenment

and Propaganda. The letter was signed “By order: Freisler.” Freisler

was at that time State Secretary in the Reich Ministry of Justice. The

letter contained this significant statement:

“I have emphasized the importance in war of this ordinance

because it indirectly serves national defense.”

The enclosed draft provided that Jews should not be entitled to make

use of the right of appeal, revision, or complaint against decisions

in criminal cases, and could not appeal to the courts for a decision

against sentences inflicted by the police. It also provided that in

cases where an appeal had already been filed it should be considered

cancelled.

On 13 August 1942 the Reich Minister of Interior wrote to the Reich

Minister of Justice, requesting that the draft be extended so as to

restrict the right of Jews to appeal in administrative as well as

criminal cases. On the same day the defendant Schlegelberger wrote to

the Reich Minister for Popular Enlightenment and Propaganda concerning

the addition to the draft as suggested by the Reich Minister of the

Interior. We quote:

“I declare that I have no objections against an extension of

my draft to matters of administrative law and to decisions by

administrative authorities.”

He then suggested an additional provision to the effect that Jews

should be forbidden to testify on oath, but that they might be

prosecuted as for perjury though no oath is to be taken.

On 8 March 1943 the Chief of the Security Police and the SD,

Kaltenbrunner,[660] wrote to Minister of the Interior Frick urging

immediate passage of the proposed ordinance. The following reasons were

given:

“1. Previous evacuations of Jews have been restricted to Jews

who were not married to non-Jews. In consequence, the numbers of

Jews who have remained in the interior is quite considerable.

As the ordinance would also include these Jews as well, the

measures it plans are not objectless.

“2. The provision of article 7 of the ordinance according

to which, at the death of a Jew, his fortune escheats in

its entirety to the Reich, results in the accumulation of

considerably less work for the State Police. At the present

time the procedure used by the State Police in handling the

confiscation of such Jewish inheritances must frequently be

modified to suit each special case.”

He adds that the provision for the transfer of Jews to the police is

based on an agreement between Himmler and Thierack, who had by that

time succeeded Schlegelberger as Reich Minister of Justice.

On 21 April 1943 a memorandum for the files of the Reich Chancellery

reports a conference of State secretaries on the proposed ordinance at

which the defendant Rothenberger was present. The conference came to

the conclusion that certain modifications should be made. The final

result of the prolonged discussion was the enactment of the 13th

regulation under the Reich Citizenship Law of 1 July 1943, which was

signed by Frick, Bormann, and Thierack. It will be recalled that that

regulation, _supra_, provided that criminal actions committed

by Jews should be punished by the police; that the property of a Jew

should be confiscated after his death. These and other provisions were

also made effective in the Protectorate of Bohemia and Moravia where

German courts had jurisdiction.

With few exceptions Jews were wholly excluded from the administration

of justice. In a speech before the NSDAP congress on 14 September 1934,

Hans Frank stated:

“It is unbearable to us to permit Jews to play any role

whatsoever in the German administration of justice. * * * It

will therefore be our firm aim to exclude Jews increasingly from

the administration of the law as time goes on.”

On another occasion Frank, as president of the Academy for German Law,

directed: “For all future time it will be impossible that Jews will act

in the name of German Law. * * *”

In an order reminiscent of the “burning of the books” in medieval days,

Frank also directed that the works of Jewish authors should be removed

from all public or study libraries whenever possible.

On 5 April 1933 the defendant Barnickel made an entry in his diary:

“Today it is said in the newspaper that in Berlin there are

about 3,500 attorneys and more than half of them are Jewish.

Only 35 of them are to be admitted as lawyers. * * * To exclude

these Jewish attorneys from one day to the next means terrible

brutality.”

The defense witness, Fritz Wallentin, stated that in general all

non-Aryan judges were removed from the administration of penal justice

very soon after 30 January 1933. The evacuation of Jews to the East for

extermination was in full swing at least as early as November 1941, and

continued through the war years thereafter. As an illustration of the

nature of this program as carried out throughout the Reich, we cite

the report of the Secret State Police Main Office, Nuernberg-Fuerth;

Branch Office Wuerzburg. This report refers to the deportation from

a comparatively small area around the city of Wuerzburg and shows

evacuation of Jews to the East in the following numbers: On 27 July

1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942,

850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on

23 September 1942 (to Theresienstadt) 562 persons; on 17 June 1943 (to

Theresienstadt) seven persons; on 17 June 1943, 57 Jews were evacuated

to the East. The report continues: “With this last transport, all the

Jews who had to be evacuated according to instructions issued have

left Main-Franken.” The report shows that the total number of 2,063

Jews were evacuated from the Main-Franken area alone. The furniture,

clothing and laundry items left by the Jews were given to the finance

offices of Main-Franken and turned into cash by them.

Even before transfers to the Gestapo had been substituted for judicial

procedure the position of a Pole or a Jew who was tried by the courts

was not a happy one. The right of self defense on the part of a Pole

was specifically limited. Poles and Jews could not challenge a German

judge for prejudice. Other limitations upon the right of appeal and

the like are set forth, _supra_ (law against Poles and Jews, 4

December 1941).

On 22 July 1942 Reich Minister Goebbels stated that “it was an

untenable situation that still today a Jew could protest against the

charge of the president of the police, who was an old Party member and

a high SS Leader. The Jew should not be granted any legal remedy at all

nor any right of protest.”

The defendant Lautz testified that according to the provisions of

decree which antedated the war and by reason of the general regulations

of the law in every case it had to be pointed out in the indictment if

the person was a Jew or of mixed race.

On 23 January 1943 the Oberlandesgericht president at Koenigsberg wrote

to the Minister of Justice concerning defense of Poles before tribunals

in Incorporated Eastern Territories. We quote:

“The decree of 21 May 1942 * * * states that in accordance

with the order on penal justice in Poland of 4 December 1941

attorneys are not (to) undertake the defense of Polish persons

before tribunals in the Incorporated Eastern Territories. This

decree has been received with satisfaction by all the judges and

prosecutors in the whole of my district.”

These directives by the authorities in the Reich under Hitler were not

mere idle threats. The policies and laws were rigorously enforced. We

quote from a sworn statement of former defendant Karl Engert as follows:

“The handing over to the Gestapo of Jews, Poles, and gypsies was

not under my supervision, but under that of Mr. Hecker, who

worked under me in my division. However, he was not responsible

to me, but directly to the Minister Thierack.” Again he said:

“About 12,000 inmates of the correction houses were assigned

for transfer to the Gestapo. * * * Out of the total 12,000 my

division assigned 3,000 for transfer in 1942. How many Jews,

Poles, and gypsies were assigned I do not know; that must be in

the statistics.”

Reich Minister Goebbels, in an address to the judges of the People’s

Court, on 22 July 1942, stated that “if still more than 40,000 Jews,

whom we considered enemies of the State, could go freely about in

Berlin, this was solely due to the lack of sufficient means of

transportation. Otherwise the Jews would have been in the East long

ago.”

Between 9 and 11 November 1938, a pogrom was carried out against

the Jews throughout the Reich, and upon direct orders from Berlin.

Defense witness Peter Eiffe testified that he heard rumors of the

proposed pogrom on the night of 8 November and called at the Ministry

of Propaganda where he was told that “somebody has let the cat out of

the bag again.” During the 3-day period Jewish property was destroyed

throughout the Reich and thousands of Jews were arrested.

In Berlin the destruction of Jewish property was particularly great. To

cap the climax on 12 November 1938, Field Marshal Goering issued the

following decree:[661]

“Article I.--All damage done due to the indignation of the

people at the incitement of international Jewry against

Nationalist Socialist Germany carried out on the 8, 9, and 10

November 1938, on Jewish enterprises and living quarters is to

be removed by the Jewish owners immediately.

“Article II.--The costs of restoration are to be borne by the

owner of the Jewish business concerned * * *.

“Section 2.--Insurance claims of Jews of German nationality will

be confiscated in favor of the Reich.”

For this purpose a fine of one billion marks was imposed upon the Jews.

The witness Schulz, who was an attorney in Berlin, acted in behalf of

Frau Liebermann, the widow of the internationally known artist, Max

Liebermann. Frau Liebermann was at that time 80 years old and the share

of the fine imposed upon her was 280,000 marks. Ultimately orders were

issued for her deportation to the East. She, however, died, either from

heart failure or poison, as she descended the steps to be carried away.

Defense witness Schulz[662] also testified concerning other methods of

Jewish persecution. He said:

“* * * When a Jew wanted to emigrate, I had much to do with it.

He had to pay the Reich escape tax, that was so and so much

percent of his property and then a large amount was taken away

from him by assessing his property very high. After all of that

was done and the day he went to the passport office in order to

get his clearance, his passport, and get his visa then he was

told that now he still had to go to the notary, Dr. Stege, and

had to deposit a voluntary fee to promote the emigration of the

Jews, and that is where he paid the balance, and then left with

his personal satchel, with his little valise.”

Speaking of the “asocial” persons, Dr. Thierack, on 5 January 1943, at

a mass meeting of the NSDAP, stated (_NG-275, Pros. Ex. 25_):

“I have seen to it that these people shall no longer be employed

for any sort of work that is not dangerous. The most dangerous

tasks are just the thing that is for them. Now, today, when

thousands of these people are carrying supplies in the far north

or building roads, I cannot help it if some of them die, but at

least they are of some use.”

The Roman Catholic chaplain at Amberg prison stated under oath that

a large proportion of the inmates of that prison were Poles who

had been sentenced under the “Poles’ Act.” Many of them died from

undernourishment. They were forced to eat potato peelings and hunt

through rubbish heaps for eatable refuse. From this prison “asocial

elements” were picked out and sent in batches to the Mauthausen

concentration camp. All of the first batch was said to have perished.

Among the prisoners were Jews who had been sentenced for race pollution.

The witness Hecker stated under oath that after Thierack’s “doubtful

decree” concerning the transfer of Jews, Poles, and gypsies, prisoners

in protective custody, and asocial elements from the justice prisons to

the RSHA in the autumn of 1942, the Jews as a whole were immediately

handed over. The work was carried out by Department V of the Ministry

of Justice. Lists were prepared monthly and sent to Minister Thierack

through the chief of the department.

On 22 October 1942 a directive (_648-PS, Pros. Ex. 264_) under

the letterhead of the Reich Minister of Justice was issued to various

prosecuting officers in which it was stated that “by agreement with

the Reich Leader SS, lawfully sentenced prisoners confined in penal

institutions will be transferred to the custody of the Reich Leader

SS.” Those designated for transfer to the SS included “Jews, men and

women, detained under arrest, protective custody, or in the workhouse;

* * * and Poles, residing in the former Polish state territory on 1

September 1939, men and women, sentenced to penal camps or subsequently

turned over for penal execution, if sentence is above 3 years, * *

*. With completion of the transfer to the police, the penal term is

considered interrupted. Transfer to the police is to be reported to

the penal authority and in cases of custody to the superior executive

authority, with the information that the interruption of the penal term

has been ordered by the Reich Ministry of Justice.” The directive is

signed “Dr. Crohne.”

A secret directive dated Berlin, 5 November 1942, was issued to the

heads of the SS and to the police services, in which it was stated

(_L-316, Pros. Ex. 265_):

“Re: Jurisdiction over Poles and eastern nationals.

“I. The Reich Leader SS has come to an arrangement with the

Reich Minister of Justice Thierack whereby the justice waives

the execution of the usual penal procedure against Poles and

eastern nationals. These persons of alien race are in future to

be handed over to the police. Jews and gypsies are to be treated

in the same way. This agreement has been approved by the Fuehrer.

“II. This agreement is based on the following considerations:

Poles and eastern nationals are alien and racially inferior

people living in the German Reich territory.”

The order continues:

“Such considerations which may be right for adjudicating a

punishable offense committed by a German are however wrong for

adjudicating a punishable offense committed by a person of alien

race. * * * As a result of this, the administration of penal law

for persons of alien race must be transferred from the hands of

the administrators of justice into the hands of the police.”

On 24 September 1942 the defendant Joel prepared a secret report

concerning the Reich Marshal’s plans for action in the Occupied Eastern

Territories. The report states that “the Reich Marshal is looking for

daring fellows who will be employed in the East for special purposes

and who will be able to carry out tasks of creating confusion behind

the lines.” The suggestion was that “poachers” and “fanatical members

of smuggling gangs who take part in gun battles on the frontiers,”

should be employed for this purpose. A copy of the report was sent to

State Secretary Rothenberger for his attention and was submitted in

connection with a proposed conference to be held on 9 October 1942.

Minutes of a conference of 9 October 1942, signed by Dr. Crohne,

incorporate the substance of Joel’s report, and state that the poachers

have already been turned over to the Reich Leader SS for special

duties. The report recommends that the district attorneys be given the

task of obtaining the convicts for this special service, and provides

further (_662-PS, Pros. Ex. 263_):

“_Delivery of asocial convicts._--Persons in penal

institutions designated as asocial persons by judicial decision

are to be turned over to the Reich Leader SS.

“1. _Persons in custody for reasons of security._--Persons

in custody for reasons of security who are in German penal

institutions will be put at the disposal of the Reich Leader SS.

The execution of sentence will be regarded as interrupted by the

delivery. * * *

“_b._ Whether women are also to be delivered is still

doubtful. * * * In this regard it will have to be a fundamental

point from the beginning that in the case of female Poles, Jews,

and gypsies no doubt about the delivery can exist.

“_c._ Foreigners are not affected. Poles, Russians,

Ukrainians, Jews, and gypsies do not rank as foreigners. * * *.

“2. _Jews, gypsies, Russians, and Ukrainians_ will be

delivered to the Reich Leader SS without exception.

“3. _Poles._--Ethnic Poles who are subject to the Polish

criminal law regulations, or have been delivered to the Polish

penal authorities, and who have more than 3 years’ sentence to

serve, will be delivered to the Reich Leader SS.

“Poles with smaller sentences will remain in the custody of

the prison system. After serving their sentences they will be

reported by name to the police just the same.”

It will be observed that the decisions concerning special treatment

for Poles and Jews which were reached at this conference of 9 October

1942 antedate by almost 9 months the enactment of the 13th regulation

concerning the Reich Citizenship Law of 1 July 1943 which provided

“that criminal actions committed by Jews shall be punished by the

police.”

On 1 April 1943 a letter from the Reich Ministry of Justice to the

public prosecutors of the courts of appeal and others stated that the

“Reich Security Office has directed by the decree of 11 March 1943 as

follows:

“_a._ Jews, who in accordance with number VI of the guiding

principles, are released from a penal institution, are to be

taken by the State police (chief) office competent for the

district in which the penal institution is located, for the rest

of their lives to the concentration camps Auschwitz or Lublin

in accordance with the regulations for protective custody that

have been issued. The same applies to Jews who in the future are

released from a penal institution after serving a sentence of

confinement.

“_b._ Poles, who in accordance with number VI of the

guiding principles, are released from a penal institution, are

to be taken by the State police (chief) office competent for

the district in which the penal institution is located, for the

duration of the war to a concentration camp in accordance with

the regulations on protective custody that have been issued.

“The same applies in the future to Poles who after serving a

term of imprisonment of more than 6 months are to be discharged

by a penal institution.”

It was stated that the ruling replaces previous orders. The instrument

is stamped “Reich Ministry of Justice” and is signed by Dr. Eichler.

As a crowning example of fanatical imbecility, we cite the following

document issued in April 1943 which was sent to the desk of the

defendant Rothenberger for his attention and was initialed by him

(_NG-1656, Pros. Ex. 535_):

“The Reich Minister of Justice

“Information for the Fuehrer

“1943 No.

“After the birth of her child a full-blooded Jewess sold her

mother’s milk to a pediatrician and concealed that she was a

Jewess. With this milk babies of German blood were fed in a

nursing home for children. The accused will be charged with

deception. The buyers of the milk have suffered damage, for

mother’s milk from a Jewess cannot be regarded as food for

German children. The impudent behavior of the accused is an

insult as well. Relevant charges, however, have not been applied

for, so that the parents, who are unaware of the true facts,

need not subsequently be worried.

“I shall discuss with the Reich health leader the

racial-hygienic aspect of the case.

“Berlin, April 1943”.

The witness Lammers, former Chief of the Reich Chancellery, testified

as follows:[663]

“Q. * * * Now, you answered Dr. Kubuschok that the subject of

sterilization of half-Jews was an alternative to their being

moved to the East and that it had been raised by half-Jews

themselves in 1942 or prior thereto.”

“A. Yes. I said so.”

He testified further that the half-Jews were not subject to any

compulsion. He was apparently of the opinion that a person was a free

agent if he had a choice between sterilization and deportation to a

concentration camp.

It will be recalled that the law of 4 December 1941 against Poles

and Jews applied to the “Incorporated Eastern Territories.” Those

territories were seized in the course of criminal aggressive war, but

aside from the fact it is clear, as we have indicated, _supra_,

that the purported annexation was premature and invalid under the laws

and customs of war. The so-called annexed territories in Poland were

in reality nothing more than territory under belligerent occupation

of the military forces of Germany. The extension to and application

in these territories of the discriminatory law against Poles and Jews

was in furtherance of the avowed purpose of racial persecution and

extermination. In the passing and enforcement of that law the occupying

power in our opinion violated the provisions of the Hague Convention

from which we quote:

“Until a more complete code of the laws of war has been issued,

the high contracting parties deem it expedient to declare that,

in cases not included in the regulations adopted by them, the

inhabitants and the belligerents remain under the protection and

the rule of the principles of the law of nations, as they result

from the usages established among civilized peoples, from the

laws of humanity, and the dictates of the public conscience.”

Other relevant portions are as follows:

“_Article 43._--The authority of the legitimate power

having in fact passed into the hands of the occupant, the latter

shall take all the measures in his power to restore, and insure,

as far as possible, public order and safety, while respecting,

unless absolutely prevented, the laws in force in the country.

“_Article 46._--Family honor and rights, the lives of

persons, and private property, as well as religious convictions

and practice, must be respected. Private property cannot be

confiscated.” (_Hague Convention No. IV of 18 October 1907_

36 Stat. 2277; Treaty Series No. 539; Mallory Treaties, Vol. 2,

page 2269.)

The prosecutions which were proposed by Lautz cannot be justified

upon any honest claim of military necessity. As a lawyer of ability,

he must have known that the proposed procedure was in violation of

international law.

Although the authorities are not in accord as to the proper

construction of article 23h of the regulations annexed to the Hague

Convention of 1907, we are of the opinion that the introduction and

enforcement of the law against Poles and Jews in occupied Poland

resulted in a violation of that provision which is as follows:

“It is forbidden to declare abolished, suspended, or

inadmissible in a court of law the right and actions of the

nationals of the hostile party.”[664]

The evidence discloses that the transfer of persons to concentration

camps was done even before the war and on direct orders of Hitler. Dr.

Lammers, Chief of the Reich Chancellery, on 8 August 1939, notified the

Reich Minister of Justice that “the Fuehrer has given an order that all

dispensable persons in security detention are to be put at the disposal

of the Reich Leader SS immediately.” The same procedure was employed as

to persons who had never been convicted.

On 24 January 1939, a conference was held at which reports were

received from eight different court districts. The subject was

“Protective Custody after Serving Term of Imprisonment, after

Acquittal, after Release from Imprisonment on Remand.” Among the cases

reported were those of defendants who were taken into custody by the

police in the court room immediately after their acquittal. Others were

taken by the police in cases where there had been a refusal to issue a

warrant of arrest. The report on the Hamburg situation by the defendant

Rothenberger states that the number of persons taken into protective

custody has increased. Rothenberger reports that in six cases Jewish

women had been taken into protective custody because of sexual

intercourse with Aryans. He quotes the State Police file as follows:

“1. Protective custody, ‘to make the punishment finally

effective’ * * *.

“2. Protective custody, ‘to make the served sentences still more

effective’ * * *.

“3. Protective custody, ‘because of the big number of previous

convictions’.

“4. Protective custody ‘to prevent prejudicing the course of

justice through the interference of lawyers as defense counsel’.”

The report on the conference ends as follows:

“The Minister concludes the discussion by indicating that it is

to be the task of the chief presidents to see that arrests in

the court room by the State Police are avoided, and recommends

for the rest to maintain the connection with the State Police.”

The report is signed by the defendant Klemm.

Former defendant Engert as vice president of the People’s Court, and

Thierack, the president of the People’s Court, protested in July

and August 1940 against the trial of minor cases in the People’s

Court as not being compatible with the dignity of the tribunal and

suggested that the defendants in such cases should be transferred to a

concentration camp. As Thierack put it--

“However right it is to exterminate harshly and uproot all the

seeds of insurrection, as for example we see them in Bohemia and

Moravia, it is wrong for every follower, even the smallest, to

be given the honor of appearing for trial and being judged for

high treason before a People’s Court or, failing that, before

an appellate court. In order to deal with these small cases and

even with the smallest, the culprits should surely be shown

that German sovereignty will not put up with their behavior

and that it will take action accordingly. But that can also be

done in a different way and I think in a more advantageous one,

than through the tedious and also very expensive and ponderous

channels of court procedure. I have therefore no objection

whatsoever, if all the small hangers-on who are somehow

connected with the high treason plans which have been woven by

others are brought to their senses by being transferred to a

concentration camp for some time.”

As early as 29 January 1941 the senior public prosecutor at Hamm wrote

to the Reich Minister of Justice, for the attention of State Secretary

Schlegelberger (_NG-685, Pros. Ex. 259_):

“Upon inquiry, the Reich Trustee for Labor for the economic

territory of Westphalia-Lower Rhine has informed me that ‘in

accordance with an agreement between the Reich Minister for

Labor and the Reich Leader SS as Chief of the German Police,

breach of work contracts by Poles are to be punished by the

Secret State Police with protective custody or concentration

camps. The meaning of this step’--so writes this Reich

trustee--‘is that in the case of Poles the strictest measures

are to be taken at once * * *’. For this reason we made it a

point in my office to transfer the cases involving breaches

of work contracts by Polish civilian workers, to the Gestapo

(Secret State Police) for further action.”

The same letter informs the defendant Schlegelberger of uncertainty

which has arisen in the treatment of Polish civilians because in some

cases the courts would sentence to 2 or 3 years imprisonment while the

State Police may pronounce the death sentence for the same crime.

While the part played by the Ministry of Justice in the extermination

of Poles and Jews was small compared to the mass extermination of

millions by the SS and Gestapo in concentration camps, nevertheless the

courts contributed greatly to the “final solution” of the problem. From

a secret report from the office of the Reich Minister of Justice to

the judges and prosecutors, including the defendant Lautz, it appears

that 189 persons were sentenced under the law for the protection of

German blood and honor in 1941, and 109 in 1942. In the year 1942,

61,836 persons were convicted under the law against Poles and Jews.

This figure includes persons convicted in the Incorporated Eastern

Territories, and also convictions for crimes committed in “other

districts of the German Reich by Jews and Poles who on 1 September

1939 had their residence or permanent place of abode in territory of

the former Polish state.” These figures, of course, do not include any

cases in which Jews were convicted of other crimes in which the law of

4 December 1941 was not involved.

The defendants contend that they were unaware of the atrocities

committed by the Gestapo and in concentration camps. This contention

is subject to serious question. Dr. Behl testified that he considered

it impossible that anyone, particularly in Berlin, should have been

ignorant of the brutalities of the SS and the Gestapo. He said: “In

Berlin it would have been hardly possible for anybody not to know about

it, and certainly not for anybody who was a lawyer and who dealt with

the administration of justice.” He testified specifically that he could

not imagine that any person in the Ministry of Justice, or in the Party

Chancellery, or as a practicing attorney or a judge of a Special (or)

People’s Court could be in ignorance of the facts of common knowledge

concerning the treatment of prisoners in concentration camps. It has

been repeatedly urged by and in behalf of various defendants that they

remained in the Ministry of Justice because they feared that if they

should retire, control of the matters pertaining to the Ministry of

Justice would be transferred to Himmler and the Gestapo. In short, they

claim that they were withstanding the evil encroachments of Himmler

upon the justice administration, and yet we are asked to believe that

they were ignorant of the character of the forces which they say they

were opposing. We concur in the finding of the first Tribunal in the

case of United States et al. _vs._ Goering, et al., concerning the

use of concentration camps. We quote:

“Their original purpose was to imprison without trial all those

persons who were opposed to the government, or who were in any

way obnoxious to German authority. With the aid of a secret

police force, this practice was widely extended, and in course

of time concentration camps became places of organized and

systematic murder where millions of people were destroyed.

* * * * * * *

“A certain number of the concentration camps were equipped with

gas chambers for the wholesale destruction of the inmates, and

with furnaces for the burning of the bodies. Some of them were

in fact used for the extermination of Jews as part of the ‘final

solution’ of the Jewish problem.

* * * * * * *

“In Poland and the Soviet Union these crimes were part of a

plan to get rid of whole native populations by expulsion and

annihilation, in order that their territory could be used for

colonization by Germans. Hitler had written in ‘Mein Kampf’ on

these lines, and the plan was clearly stated by Himmler in July

1942, when he wrote:

“‘It is not our task to Germanize the East in the old sense,

that is to teach the people there the German language and the

German law, but to see to it that only people of purely Germanic

blood live in the East’.”[665]

A large proportion of all of the Jews in Germany were transported to

the East. Millions of persons disappeared from Germany and the occupied

territory without a trace. They were herded into concentration camps

within and without Germany. Thousands of soldiers and members of

the Gestapo and SS must have been instrumental in the processes of

deportation, torture, and extermination. The mere task of disposal of

mountainous piles of corpses (evidence of which we have seen) became

a serious problem and the subject of disagreement between the various

organizations involved. The thousands of Germans who took part in the

atrocities must have returned from time to time to their homes in the

Reich. The atrocities were of a magnitude unprecedented in the history

of the world. Are we to believe that no whisper reached the ears of

the public or of those officials who were most concerned? Did the

defendants think that the nationwide pogrom of November 1938 officially

directed from Berlin and Hitler’s announcement to the Reichstag

threatening the obliteration of the Jewish race in Europe were

unrelated? At least they cannot plead ignorance concerning the decrees

which were published in their official organ, “The Reichsgesetzblatt”.

Therefore, they knew that Jews were to be punished by the police in

Germany and in Bohemia and Moravia. They knew that the property of Jews

was confiscated on death of the owner. They knew that the law against

Poles and Jews had been extended to occupied territories, and they knew

that the Chief of the Security Police was the official authorized to

determine whether or not Jewish property was subject to confiscation.

They could hardly be ignorant of the fact that the infamous law

against Poles and Jews of 4 December 1941 directed the Reich Minister

of Justice himself, together with the Minister of the Interior, to

issue legal and administrative regulations for “implementation of the

decree”. They read _The Stuermer_. They listened to the radio.

They received and sent directives. They heard and delivered lectures.

This Tribunal is not so gullible as to believe these defendants so

stupid that they did not know what was going on. One man can keep a

secret, two men may, but thousands, never.

The evidence conclusively establishes the adoption and application of

systematic government-organized and approved procedures amounting to

atrocities and offenses of the kind made punishable by C. C. Law 10

and committed against “populations” and amounting to persecution on

racial grounds. These procedures when carried out in occupied territory

constituted war crimes and crimes against humanity. When enforced in

the Alt Reich against German nationals they constituted crimes against

humanity.

The pattern and plan of racial persecution has been made clear. General

knowledge of the broad outlines thereof in all its immensity has been

brought home to the defendants. The remaining question is whether or

not the evidence proves beyond a reasonable doubt in the case of the

individual defendants that they each consciously participated in the

plan or took a consenting part therein.

_THE DEFENDANT SCHLEGELBERGER_

The defendant Franz Schlegelberger was born on 23 October 1875 in

Koenigsberg. He received the degree of doctor of law at the University

of Leipzig in 1899 and passed the higher state law examination in 1901.

He is the author of several law books. His first employment was as an

assistant judge at the local court in Koenigsberg. In 1904 he became

judge at the district court at Lyck. In 1908 he was appointed judge

of the local court in Berlin and in the fall of the same year was

appointed as an assistant judge of the Berlin Court of Appeals. He was

then appointed councillor of the Berlin Court of Appeals in 1914, where

he worked until 1918. During the First World War, on 1 April 1918 he

became an assistant to the Reich Board of Justice. On 1 October 1918

he was appointed Privy Government Councillor and department chief. In

1927 he was appointed ministerial director in the Reich Ministry of

Justice. On 10 October 1931 he was appointed Secretary of State in the

Reich Ministry of Justice under Minister of Justice Guertner, which

position he held until Guertner’s death. Upon Guertner’s death on 29

January 1941 Schlegelberger was put in charge of the Reich Ministry of

Justice as administrative Secretary of State. When Thierack became the

new Minister of Justice on 20 August 1942, Schlegelberger resigned from

the Ministry.

In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger

testified that he made no use of the Party, that he never attended

a Party meeting, that none of his family belonged to the Party, and

that Party attitudes often rendered his position difficult. However,

upon his retirement as Acting Minister of Justice on 20 August 1942,

Schlegelberger received a letter of appreciation from Hitler together

with a gift of 100,000 RM.

Later in 1944 Hitler gave Schlegelberger the special privilege to

use the 100,000 RM to purchase a farm, which under the rule then

prevailing could have been purchased only by an expert agriculturist.

Schlegelberger states that the 100,000 RM were on deposit in a Berlin

German bank to his account when the collapse came. Thus, it is shown

that Hitler and Schlegelberger were not too objectionable to each

other. These transactions also show that Hitler was at least attempting

to reward Schlegelberger for good and faithful service rendered in the

performance of some of which Schlegelberger committed both war crimes

and crimes against humanity as charged in the indictment.

We have already adverted to his speech at the University of Rostock on

10 March 1936, on the subject, “A Nation Beholds Its Rightful Law.” In

this speech Schlegelberger declared:

“In the sphere of criminal law the road to a creation of justice

in harmony with the moral concepts of the new Reich has been

opened up by a new wording of section 2 of the criminal code,

whereby a person is also (to) be punished even if his deed

is not punishable according to the law, but if he deserves

punishment in accordance with the basic concepts of criminal

law and the sound instincts of the people. This new definition

became necessary because of the rigidity of the norm in force

hitherto.”

As amended, section 2 remained in effect until repealed by Law No.

11 of the Allied Control Council. The term “the sound people’s

sentiment” as used in amended section 2 has been the subject of much

discussion and difference of view as to both its proper translation

and interpretation. We regard the statute as furnishing no objective

standards “by which the people’s sound sentiment may be measured”. In

application and in fact this expression became the “healthy instincts”

of Hitler and his coconspirators.

What has been said with regard to the amendment to section 2 of the

criminal code is equally true of the amendment of section 170a of the

code by the decree of Hitler of 28 June 1935, which is also signed by

Minister Guertner and which provides:

“If an act deserves punishment according to the common sense

of the people but is not declared punishable in the code, the

prosecution must investigate whether the underlying principle of

a penal law can be applied to the act and whether justice can

be helped to triumph by the proper application of this penal

law.”[666]

This new conception of criminal law was a definite encroachment upon

the rights of the individual citizen because it subjected him to the

arbitrary opinion of the judge as to what constituted an offense. It

destroyed the feeling of legal security and created an atmosphere of

terrorism. This principle of treating crimes by analogy provided an

expedient instrumentality for the enforcement of Nazi principles in

the occupied countries. German criminal law was therefore introduced

in the incorporated areas and also in the nonincorporated territories,

and German criminal law was thereafter applied by German courts in the

trial of inhabitants of occupied countries though the inhabitants of

those countries could have no possible conception of the acts which

would constitute criminal offenses.

In the earlier portions of this opinion we have repeatedly referred to

the actions of the defendant Schlegelberger. Repetition would serve

no good purpose. By way of summary we may say that Schlegelberger

supported the pretension of Hitler in his assumption of power to deal

with life and death in disregard of even the pretense of judicial

process. By his exhortations and directives, Schlegelberger contributed

to the destruction of judicial independence. It was his signature

on the decree of 7 February 1942 which imposed upon the Ministry of

Justice and the courts the burden of the prosecution, trial, and

disposal of the victims of Hitler’s Night and Fog. For this he must be

charged with primary responsibility.

He was guilty of instituting and supporting procedures for the

wholesale persecution of Jews and Poles. Concerning Jews, his ideas

were less brutal than those of his associates, but they can scarcely

be called humane. When the “final solution of the Jewish question”

was under discussion, the question arose as to the disposition of

half-Jews. The deportation of full Jews to the East was then in full

swing throughout Germany. Schlegelberger was unwilling to extend the

system to half-Jews. He therefore proposed to Reich Minister Lammers,

by secret letter on 5 April 1942 (_4055-PS, Pros. Ex. 401_):

“The measures for the final solution of the Jewish question

should extend only to full Jews and descendants of mixed

marriages of the first degree, but should not apply to

descendants of mixed marriages of the second degree. [First

degree presumably those with two non-Aryan grandparents, and

second degree with only one.]

“With regard to the treatment of Jewish descendants of mixed

marriages of the first degree, I agree with the conception of

the Reich Minister of the Interior which he expressed in his

letter of 16 February 1942, to the effect that the prevention

of propagation of these descendants of mixed marriages is to be

preferred to their being thrown in with the Jews and evacuated.

It follows therefrom that the evacuation of those half-Jews

who are no more capable of propagation is obviated from the

beginning. There is no national interest in dissolving the

marriages between such half-Jews and a full-blooded German.

“Those half-Jews who are capable of propagation should be given

the choice to submit to sterilization or to be evacuated in the

same manner as Jews.”

Schlegelberger knew of the pending procedures for the evacuation of

Jews and acquiesced in them. As to half-Jews his only suggestion was

that they be given the free choice of either one of the impaling horns

of a dilemma. On 17 April 1941 Schlegelberger wrote to Lammers as

follows (_NG-144, Pros. Ex. 199_):

“On being informed of the Fuehrer’s intention to discriminate

in the sphere of penal law between the Poles (and probably the

Jews as well), and the Germans, I prepared, after preliminary

discussions with the presidents of the courts of appeal and

the attorneys general of the annexed eastern territories, the

attached draft concerning the administration of the penal laws

against Poles and Jews in the annexed eastern territories and in

the territory of the former Free City of Danzig.”

The draft of a proposed ordinance “concerning the administration

of justice regarding Poles and Jews in the Incorporated Eastern

Territories” was attached to his letter and is in evidence. A

comparison of its phraseology with the phraseology contained in the

notorious law against Poles and Jews of 4 December 1941 discloses

beyond question that Schlegelberger’s draft constituted the basis

on which, with certain modifications and changes, the law against

Poles and Jews was enacted. In this respect he was not only guilty of

participation in the racial persecution of Poles and Jews; he was also

guilty of violation of the laws and customs of war by establishing that

legislation in the occupied territories of the East. The extension of

this type of law into occupied territories was in direct violation

of the limitations imposed by the Hague Convention, which we have

previously cited.

It is of interest to note that on 31 January 1942 Schlegelberger

issued a decree providing that the provisions of the law against Poles

and Jews “will be equally applicable with the consent of the public

prosecutor to offenses committed before the decree came into force”.

We doubt if the defendant would contend that the extension of this

discriminatory and retroactive law into occupied territory was based on

military necessity.

Schlegelberger divorced his inclinations from his conduct. He

disapproved “of the revision of sentences” by the police, yet he

personally ordered the murder of the Jew Luftgas on the request of

Hitler, and assured the Fuehrer that he would, himself, take action if

the Fuehrer would inform him of other sentences which were disapproved.

Schlegelberger’s attitude toward atrocities committed by the police

must be inferred from his conduct. A milking-hand, Bloedling, was

sentenced to death in October 1940, and during the trial he insisted

his purported confession had been obtained as a result of beatings

imposed upon him by the police officer Klinzmann. A courageous judge

tried Klinzmann and convicted him of brutality and sentenced him to

a few months imprisonment. Himmler protested against the sentence of

Klinzmann and stated that he was going “to take the action of the

Hauptwachtmeister of the police Klinzmann as an occasion to express

gratitude for his farsighted conduct which was only beneficial to the

community.” He said further:

“I must reward his action because otherwise the joy of serving

in the police would be destroyed by such verdicts. But finally

K. has to be rehabilitated in public because his being sentenced

by a court is known in public.”

On 10 December 1941 Schlegelberger wrote to the Chief of the Reich

Chancellery stating that he was unable to understand the sentence

passed against Klinzmann. We quote:

“No sooner had the verdict passed on Klinzmann become known

here, orders were for this reason given to the effect that the

sentence in case of its validation should not be carried out

for the time being. Instead, reports concerning the granting of

a pardon should be made as soon as possible. In the meantime,

however, the sentence passed on Klinzmann became valid, by

decision of the Reich [Supreme] Court of 24 November 1941 which

abandoned the procedure of revision as apparently unfounded.

Taking into regard also the opinion you expressed on the

sentence, Sir, I now ordered the remission of the sentence and

of the costs of proceedings by way of pardon as well as the

striking out of the penalty note in the criminal records.”

On 24 December 1941 Schlegelberger wrote to Lammers that he had quashed

the proceedings. In February 1942 Himmler wrote expressing appreciation

of the efforts in quashing the proceedings against Klinzmann and stated

that he had since promoted him to Meister of the municipal police.

Schlegelberger presents an interesting defense, which is also claimed

in some measure by most of the defendants. He asserts that the

administration of justice was under persistent assault by Himmler and

other advocates of the police state. This is true. He contends that

if the functions of the administration of justice were usurped by the

lawless forces under Hitler and Himmler, the last state of the nation

would be worse than the first. He feared that if he were to resign,

a worse man would take his place. As the event proved, there is much

truth in this also. Under Thierack the police did usurp the functions

of the administration of justice and murdered untold thousands of Jews

and political prisoners. Upon analysis this plausible claim of the

defense squares neither with the truth, logic, or the circumstances.

The evidence conclusively shows that in order to maintain the Ministry

of Justice in the good graces of Hitler and to prevent its utter

defeat by Himmler’s police, Schlegelberger and the other defendants

who joined in this claim of justification took over the dirty work

which the leaders of the State demanded, and employed the Ministry

of Justice as a means for exterminating the Jewish and Polish

populations, terrorizing the inhabitants of occupied countries, and

wiping out political opposition at home. That their program of racial

extermination under the guise of law failed to attain the proportions

which were reached by the pogroms, deportations, and mass murders by

the police is cold comfort to the survivors of the “judicial” process

and constitutes a poor excuse before this Tribunal. The prostitution

of a judicial system for the accomplishment of criminal ends involves

an element of evil to the State which is not found in frank atrocities

which do not sully judicial robes.

Schlegelberger resigned. The cruelties of the system which he had

helped to develop were too much for him, but he resigned too late.

The damage was done. If the judiciary could slay their thousands, why

couldn’t the police slay their tens of thousands? The consequences

which Schlegelberger feared were realized. The police, aided by

Thierack, prevailed. Schlegelberger had failed. His hesitant injustices

no longer satisfied the urgent demands of the hour. He retired under

fire. In spite of all that he had done he still bore an unmerited

reputation as the last of the German jurists and so Hitler gave

him his blessing and 100,000 RM as a parting gift. We are under no

misapprehension. Schlegelberger is a tragic character. He loved the

life of an intellect, the work of the scholar. We believe that he

loathed the evil that he did, but he sold that intellect and that

scholarship to Hitler for a mess of political pottage and for the vain

hope of personal security. He is guilty under counts two and three of

the indictment.

_THE DEFENDANT KLEMM_

Herbert Klemm, formerly State Secretary of the Reich Ministry of

Justice, was born in Leipzig on 15 May 1903. After normal schooling,

he passed his first legal state examination in 1925, his second legal

state examination in 1929. From 1929 to 1933, he was court assessor

of the prosecution authority of Dresden. From March 1933 to March

1935 he was the personal Referent and adjutant of Thierack, Minister

of Justice, Saxony. In 1935, at the time of the centralization of the

administration of justice, he was transferred to the Reich Ministry

of Justice where he remained until he was mobilized for war service

on 23 June 1940. On 20 April 1939 he was promoted to the office

of Ministerialrat. In July of 1940 he was assigned to the Reich

Commissioner for the Occupied Dutch Territories, upon the request of

the Plenipotentiary for Occupied Dutch Territories. On 17 March 1941 he

was transferred to the staff of the deputy of the Fuehrer, which later

became the Party Chancellery, in Munich. He remained with the Party

Chancellery until 4 January 1944, when he became state secretary of the

Reich Ministry of Justice under Thierack. He remained in this capacity

until the surrender.

Klemm’s Party connections were as follows: he applied for membership in

the NSDAP on 4 November 1930; his membership card, 405576, was received

1 January 1931. On 30 June 1933 he joined the SA; the highest rank

which he received in the SA was that of Oberfuehrer. When in Saxony he

was the legal advisor of the SA for Saxony and liaison officer between

the SA for Saxony and the Minister of Justice for Saxony. When he was

transferred to Berlin, he was the liaison officer between the Reich

Ministry of Justice and the SA Chief of Staff for Germany and the legal

advisor to the Chief of Staff of the SA for Germany.

He was a member of the National Socialist Jurists’ League from 1933.

In September of 1944 he was appointed deputy chief of the National

Socialist Jurists’ League by Thierack, who was at that time chief.

He received the Bronze Party Service decoration in 1941 and the Golden

Party decoration, the latter being conferred by Bormann in 1943.

During the time in which the defendant was in Saxony, he was a member

of the disciplinary court of the SA group which dealt with the purge of

the SA in connection with the Roehm Putsch.

A brief outline of the official activities of the defendant Klemm is

as follows: after transfer to Berlin in 1935, the defendant dealt with

acts against the State and Party and, later, the malicious acts law. In

this field prosecution could be ordered only by the Ministry of Justice

with the permission of the office of the deputy of the Fuehrer, which

later became the Party Chancellery.

It was during this period that the following circular, dated Berlin, 18

October 1937, and initialed by Klemm, was issued (_NG-310, Pros. Ex.

33_):

“1. Criminal procedures concerning more severe interrogations

by the Stapo will be dealt with centrally by Chief Prosecutor

Klemm. They are to be sent to the competent co-worker Prosecutor

Winkler.

“2. As far as reports concerning executions when escaping from

concentration camps, etc., suicides in K.Z. arrive, they shall

continue to be dealt with by the specialist competent for

the respective subject. The general consultant for political

criminal matters, however, is to be informed of the reports.

They are to be submitted to him once.”

The practice of more severe interrogations, according to the testimony

of Lautz, caused much worry to those concerned with the administration

of justice. By the term “more severe interrogations” is meant “third

degree” methods which Hitler authorized the police to use in cases

considered important for the safety of the State.

From July 1940 to March 1941, while Klemm was in Holland, he had

charge of both civil and penal law. The penal section in Holland was

for German citizens not in the army and Dutch who infringed on German

interests. He was also liaison officer between the commissioner general

for the administration of justice and secretary of the Dutch Ministry

of Justice at The Hague.

During this period there were published in the official gazette for

the occupied Dutch territories, in the year 1944,[667] decrees of

the Reich Commissioner of Occupied Dutch Territories, Seyss-Inquart,

pertaining to the registry of Jewish property, the confiscation of same

under certain circumstances, and for the transfer of Jewish property

to an official in the nature of an administrator. During this time a

letter was written by Tenkink, Secretary General of the Dutch Ministry

of Justice, to the Reich Commissioner of Holland, which shows the

defendant’s signature, informing the commissioner of excesses committed

against Jews in Holland.

During this period letters dated 24 and 30 September 1940, marked

“Secret,” and signed by the defendant, to the department for

legislation, Lange Vijverberg, with opinions and recommendations as to

the registration and confiscation of Jewish property in Holland, were

transmitted.

A letter dated 24 September 1940 contains the following statement:

“In my view it must be achieved with other means to eliminate

Jewish influence from such corporations. In the Reich, too,

it needed months of careful work to gradually extract Jewish

capital without disturbing the economy or to eliminate Jewish

influence altogether.”

The defendant Klemm was in the office of the deputy of the Fuehrer

and Party Chancellery from March 1941 to January 1944. The Party

Chancellery had to approve the drafts of decrees in connection

with national laws and ordinances and also was charged with the

responsibility for the approval of high official appointments. The

Party Chancellery was formed from what had originally been the office

of the deputy of the Fuehrer under Hess. It was the instrument of the

Party in matters of State and soon became virtually the instrument of

Bormann.

In the Party Chancellery Klemm was Chief of Group III-C. This group had

the following functions, as stated by the defendant:

“First, it had to deal with laws and drafts and decrees of the

Reich Ministry of Justice, unless for reasons of their subject

they were dealt with by another group, because that group

appeared to be competent. Secondly, penal matters based on the

law against malicious acts, as far as on the basis of legal

provisions the approval of the Chief of the Party Chancellery

was required for the prosecution. Thirdly, complaints from

Party offices or individuals against decision by the courts.

Fourth, complaints from the administration of justice against

interference by Party offices into pending trials. Fifth, to

observe especially civil and penal cases which concerned the

Party. Sixth, matters of legal reform, and seventh, expert

opinions in the field of the Party law.”

Among his activities, and in conference with officials from the

Ministry of Justice, he made suggestions for strengthening the powers

of the police.

At another conference with officials from the Ministry of Justice

concerning the political evaluations of persons in connection with

legal procedure, he represented the standpoint of the Party that Party

evaluations should be accepted by the courts.

During the time that Klemm was Chief of Group III-C, the act providing

for the retroactive application of law concerning treason was enacted

and applied to the annexed eastern territories. It was claimed by the

defendant that this was based upon a decision of Bormann.

At this time legislation depriving the Jews of legal rights was also

contemplated; drafts of the proposals made were dealt with, and the

letter of 9 September 1942, prepared in Department III, was dispatched.

Also as part of the activities of Group III-C under Klemm, the proposal

of the defendant Schlegelberger regarding confirmation of sentences

of penal cases by the president of the district court of appeals was

disposed of and the defendant claims he influenced Bormann to oppose

this recommendation of the Ministry of Justice.

During this period a circular entitled, “The New Organization of

Justice,” signed by Bormann, and which the defendant Klemm claims was

intended to free the Ministry of Justice from Party criticism, states

as follows:

“Hereby is further required that you report to me all complaints

which you have to bring in matters of justice, so that I can

clear up the situation immediately by confidential negotiations

with the Reich Minister of Justice. Should it, after a

discussion with the Reich Minister of Justice, seem absolutely

necessary that a problem is brought to the Fuehrer, then this

will be taken care of by Reich Minister Dr. Lammers and myself.”

During this period Klemm wrote the Minister of Justice as follows:

“Your letter of 5 August 1943 is agreed to. No objections are

raised to applying the German Criminal Code for Juveniles to

foreign juveniles, unless they are Jewish, Polish, or gypsies.

Regarding juvenile gypsies and those of mixed gypsy descent,

you are asked to see to it that, simultaneously with the coming

into force of the new law concerning Reich juveniles, a special

regulation will come into effect which will prevent the German

Criminal Code for Juveniles from applying to gypsies and those

of gypsy descent merely because a definite regulation is

lacking.”

The defendant states that during this period Bormann called him on the

telephone and inquired whether he knew Rothenberger and inquired about

Rothenberger. Also he later submitted to the defendant Klemm an inquiry

as to the background and qualifications of persons presumed to have

been possible appointees as Reich Minister of Justice. These included

Thierack, and Klemm states that his report to Bormann was favorable to

Thierack. These inquiries were made of the defendant in spite of the

fact that, according to his testimony, he had to deal only with matters

pertaining to the administration of justice, and these were definitely

personnel matters under another department of the Party Chancellery.

During this period he was the liaison officer between Thierack and the

Party Chancellery. As to this relationship, Klemm states:

“Thierack asked me in all matters concerning the justice

group of the Party Chancellery to come to him, that is to him

personally, immediately and not to discuss them with the various

Referents at the Ministry * * * and as I had worked in both

fields, the best thing for him to get acquainted with the matter

would be if I reported to him in person.”

With reference to Klemm’s duties as Under Secretary of State, the

following paragraph of a report of the conference of the department

chiefs, held 6 January 1944, outlines in part his duties in the

Ministry as follows (_NG-195, Pros. Ex. 45_):

“The Minister announced that from now on the Departments III,

IV, and V, too, would be placed under the control of the State

Secretary and hereby recalled the contrary regulation in office

routine, which was published on 27 August 1942, but added that

all death sentences must continue to be submitted to him. He

would request the State Secretary to be present when they were

submitted. Furthermore, all political and legal matters of

particular importance must be reported to him.”

Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III · 第 18 / 22 章