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.”