Turning now to the Genova Prisoner of War Convention of 1929, we refer to Page 67 of this manual.
"Article 2. Prisoners of war are in the power of the hostile power, but not of the individuals or corps who have captured them. Measures of reprisal against them are prohibited.
"Article 3. Prisoners of war have the right to have their person and honor respected. Women shall be treated with all regard due to their sex. Prisoners retain their full civil status."
Lastly we refer to Page 69 of this manual.
"Article 4. The power detaining prisoners of war is bound to provide for their maintenance. Difference in treatment among prisoners is lawful only when it is based on the military rank, state of physical or mental health, professional qualifications, or sex of those who profit thereby."
As Exhibit 380 the Prosecution offers for judicial notice the articles of the Geneva and Hague Conventions which we have just read.
THE PRESIDENT: The articles will be received.
MR. KING: The Prosecution calls at this time the witness Rudolf Lehmann. The witness Lehmann will testify in the German language.
RUDOLF LEHMANN, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I.
will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
DIRECT EXAMINATION BY MR. KING:
Q Witness, will you please state your name?
A My name is Rudolf Lehmann.
Q You were, were you not, associated with the OKW?
A Yes.
Q Will you tell us briefly what was your rank and what your duties were in the OKW?
A I was the Ministerial director in the command of the high forces, OKW, and I was chief of the legal division of the armed forces.
Q Do you know of the so-called Nacht und Nebel decree which was issued in the latter part of 1941 over the signature of Keitel?
A I am informed - I am very well informed as to how that came about.
Q Will you tell us briefly how the Nacht und Nebel program was supposed to work? In other words, what was the theory upon which this Erlass or decree was passed?
A The Night and Fog, Nacht und Nobel, Decree came about in the following manner: Between Adolf Hitler and the Administration of Justice of the armed forces before the war already, but even more so during the war, there were considerable differences of opinion. Hitler hold it against the Administration of Justice by the armed forces and within the armed forces that they did not sufficiently support his manner of conducting the war.
At times, as I have been told, he used the expression that the military justice indeed sabotaged his conduct of war. These reproaches first emanated from the Polish campaign. There the Military Justice--the Justice Administration of the Armed Forces--were reprimanded that they had not acted sufficiently severe against members of bands. The next reprimands of that kind occurred during the French campaign. The reprimands were to the effect that military justice, it was said, was to severe in cases of pilfering. Then it came to a rather serious difference of opinion. Shortly before the Russian campaign, Hitler had complained so strongly against the Armed Forces should not at all be taken along into Russian campaign. I only explain that very briefly, according to the wish of the prosecutor.
Now, there arose in France, after the beginning of the Russian campaign, the resistance movement which became more active. Hitler complained to the Armed Forces justice administration that on account of their attitude they were not in a position to supress that resistance movement. That is the general background for the nacht and nebel decree.
In detail this is what happened. In the beginning of October 1941, I received a letter from Field Marshall Keitel--but I want to state here that keitel was always in the headquarters, whereas I was always in Berlin. In this letter, which all my assistants have read, Keitel passed on a directive which he had received from Hitler. The letter was quite long, several pages in handwriting. In that letter, it was expressed that Hitler considered the resistance movement in France a tremendous danger for the German troops. It could be seen that the methods previously used were not sufficient to supress that movement.
There was no sense to pass sentences of prison terms when conditions were as they were, and which were handed down after a long period. That was not the right means to deter which the Armed Forces should have at their disposal; therefore, new means would have to be found.
Q. Now, witness, I think you have given us a background on the history of naht and nebel. Will you tell us with some particularity how the theory on which nacht and nebel was based was supposed to work? In what way were the resistors to be handled or treated under the nacht and nebel decree?
A. Yes. That was also stated in that letter by keitel: "The Fuehrer demands," it said, "that Frenchmen who were suspected of such acts during the night and fog"---that is were the expression comes from---"should be brought across the border and that in Germany they should be completely in communicado. That should not apply only to those cases where immediately a death sentence could be passed in France." This measure could be used as a deterrent but not the procedures as have been used heretofore. That was the general plan of Hitler's which did not include anything about the question as to who should deal with these people after they had been brought to Germany.
Q. Yes. Now, witness, did you, in your position with the OKW, negotiate with the Ministry of Justice regarding the nacht and nebel decree?
A. Yes, but not immediately. At first, in a lengthy conference with Field Marshal Keitel, I tried to thwart the entire plan because I disagreed--I definitely disagreed with it. Details about that conference, I am sure are not interesting for us now.
In doing that, I only had a very limited success; that is, Keitel said that he would be ready to speak to the Fuehrer once more. But already on the occasion of this first conference, he stated that the Fuehrer insisted on the carrying out of that thought and he used a term which I cannot forget. Hitler had said with reference, to that: "Nobody can deny that I am a revolutionary of considerable format. But is that is so, I should know best how uprisings can be suppressed." Keitel then spoke once more to Hitler, as he stated, but to no avail. According to Keitel's information, Hitler said that there were such things of which he understood more than jurists do.
In the conference with Keitel, 1 raised the question immediately as to who should deal with these matters in Germany now. Thereupon, Keitel said, "It would be most according to the desire of the Fuehrer if the Secret Service--that is the Gestapo--would deal with it." But we were against that form the very beginning, and also Admiral Canaris was against it with the same severity.
After the argument had gone back and forth, I received the permission from Keitel to get in touch with the Ministry of Justice.
Q. Do you have any reason which you can state at this time as to why Hitler preferred that the Ministry of Justice rather than the Army court system deal with nacht and nebel cases?
A. That question can only have been discussed between Keitel and Hitler. It was a way out which I had suggested, because under all circumstances I wanted to achieve that these matters should continue to be dealt with by judges, and since the aversion of Hitler against the Armed Forces justice was known it could be assumed that he would still prefer civilian courts than us.
Q. Excuse me. Have you finished?
A. I have finished.
Q. Is it or is it not true that Hitler felt at that time that the Ministry of Justice was more politically reliable than the court system of the Army?
A. That I could not state as far as that period was concerned because I held that he considered civilian justice a minor evil than military justice, because beyond doubt he attributed a higher political reliability to civilian justice later because later he took all political criminal cases away from us and gave it to civilian justice. But that was only under the Ministry of Thierack.
Q. When did you first confer with any member of the Ministry of Justice regarding the assumption by the Ministry of Justice of the nacht and nebel program?
A. I went to see Under-Secretary Freisler, I believe, in October '41. I went to Freisler because he dealt with the criminal cases of the Ministry. He was in charge of them.
Q. Can you tell us what purpose you had in mind in going to Freisler; what proposition did you discuss with him?
A. I discussed with him the proposition that the cases which tho military courts in France would not keep should be taken over and dealt with by and tried by the civilian justice administration.
Q. What was Freisler's reaction to this suggestion which you made?
A. He was not enthused about it, but he agreed that one had to try to turn over those to keep these cases for the administration of Justice as such.
Q. Can you tell me this: Did Freisler have the authority to agree on behalf of the Reich Ministry of Justice to assume the trying of Nacht und Nebel cases?
A. That question I can only answer by saying that Freisler told me that first he had to think it over; and secondly, he had to discuss it with Under Secretary Schlegelberger who was at that time in charge of the Ministry.
Q. Is it your impression that Schlegelberger was the individual in the Ministry of Justice to whom Freisler went to secure permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases?
A. That is hard to answer. I can only say from my -- I can only answer it out of my general background by saying that this was a considerable question -- a question of considerable importance, and I thought it was quite clear that Freisler told me that he had to ask the man who was in charge of the Ministry, the acting Minister.
Q. Herr Lehmann, on the 24th of December, -- on the 23rd of December, 1946, you put your name to an affidavit. Do you recall signing an affidavit about that time?
A. Yes.
Q. I point out to you that this affidavit is now in evidence before this Court as Exhibit No. 484. I wish to read you a statement from that affidavit, and ask you a question concerning it after I have read.
it. The statement is as follows: "Schlegelberger, who was then Acting Minister of Justice, was in my opinion the only person who could consent to take over these Nacht und Nebel cases by the Ministry of Justice." I ask you now, do you still agree with that statement?
A. Yes, with the reservations that I have made before; as far as I was informed about the routine in the Ministry.
MR. KING: The Prosecution has no more questions.
CROSS EXAMINATION (RUDOLF LEHMANN) BY DR. BEHLING: (Attorney (Assistant) for Defendants Schlegelberger and von Ammon)
Q. Witness -
THE PRESIDENT: Will you please tell us how you spell your name?
DR. BEHLING: B-e-h-l-i-n-g.
THE PRESIDENT: Thank you.
BY DR. BEHLING:
Q. Witness, you have just reported about your negotiations with the Ministry of Justice at the Ministry of Justice, and in particular about the negotiations with the former State Under Secretary Freisler. Is it correct that Freisler was incharge of the conduct of trials in the Reich Ministry of Justice?
A. Yes, as Chief of the Criminal Department, Department of Criminal Justice in the Reich Ministry of Justice.
Q. On the occasion of your negotiations at that time, did you state to Freisler especially that it was of absolute importance that these matters should not be dealt with outside of the Administration of Justice?
A. That was the purpose of my visit.
Q. What were you afraid would happen if Freisler would not accede to your proposition?
A. That the cases which came to Germany would immediately have to be turned over by us to the Police; and that I did not want; neither did the branch of the armed forces for whom I had negotiated for quite some time about that matter, that is, the administration of Justice in the various branches of the armed forces were mostly concerned with it because they had to carry out these plans.
Therefore, I considered it important that the plans of the Fuehrer should be discussed widely and publicly as possible with the various offices of the armed forces; and it was the concensus of opinion among the various offices who were contacted that one should try to include civilian administration of justice so that the people who were suspected of criminal acts should come before the regular judge.
Q. You believe, therefore, that that guarantee was not given if they were turned over to the Police?
A. No, because there was no court in that sense, or especially by measures especially set up for that purpose; the police, the SS, would have to be made competent for that.
Q. Witness, when you came to Freisler, you had had several internal conferences with the judges of the armed forces court?
A. Yes.
Q. Was it certain at that time already that the Frenchmen concerned had to be brought at any rate to Germany, into Germany, and to be tried here?
A. That they were to be brought to Germany was Hitler's order.
Q. The entire action then was based upon an order of Hitler, which was binding for the subordinate offices?
A. Yes, it was based upon Hitler's order no doubt because nobody else had or could have conceived that thought. I want to re-peat it was based upon an order by Hitler because nobody else could ever have conceived that thought.
Q. In your negotiations internally, as well as with the Ministry of Justice, if I understood you correctly, you practically wanted to circumvent the order of Hitler?
A. Yes, yes.
Q. If I may be permitted to speak about these negotiations in some more detail, I should like to point out that your partner in the negotiations was Freisler.
A. Yes.
Q. The participation of Schlegelberger in these negotiations, as far as you know, is not evident to you?
A. No. Only by conclusions which I have to make after the Ministry of Justice agreed, but as well as I can remember I never talked to Schlegelberger about it.
Q. Did the Ministry of Justice agree in writing, and did that agreement in writing show the signature of Schlegelberger?
A. That I cannot remember; I am sorry.
Q. You said, witness, that during all these negotiations Admiral Canaris was present or took part in them.
A. Yes.
Q. Will you be kind enough to tell the Tribunal, and all those present, something about the character and personality of Admiral Canaris?
MR. KING: If the Court please, I think we object, your Honor, to that question on the ground that it is beyond the scope of the direct examination. We are not interested in other characters at the conference with Freisler.
DR. BEHLING: I believe, however, that this question is very important in order to clarify this matter.
THE PRESIDENT: Will the reporter read that question.
DR. BEHRING (Continuing)
Q. During these negotiations which you had either with the Minister of Justice or internally, did Admiral Canaris consider them?
A. Yes, it was the position of Canaris in these negotiations --
THE PRESIDENT: Just a moment, answer the question.
A. Admiral Canaris was Chief of the Office of Auslandabsehr, counterintelligence, in the high command of the armed forces. The purpose of the question by Defense Counsel is obviously for what reasons admiral Canaris was against the transfer to the Police -
MR. KING: Your Honor, that is practically the same question I objected to a moment a go when the Court asked for a restatement of the question. We got a different question, and now we are around to the question which I objected to before.
THE PRESIDENT: The objection will be sustained as to the reasons that actuated Canaris.
Q. Then may I ask, Witness, who told you this when you spoke to the person in the Ministry of Justice who dealt with these matters?
A. The negotiations with the Referent in the Ministry of Justice were carried out by my two assistants, generally, that is, at any rate, I cannot remember any personal conversations or any negotiations, at least not so well that I can make a statement about them under oath now.
Q. Witness, what is your opinion as to what happened to these people in as much as they received prison sentences?
A. That was the main subject of my conference with Freisler. I had asked him to tell me whether in the administration of justice these prisons would be in a position to accept these prisoners in their own institutions. And, Freisler confirmed without reservation that was possible. These prisoners, therefore, after they had been sentenced should be put in the institutions of the Administration of Justice, meaning the prisons.
Q. In conclusion, Witness, may I ask you once more whether the aforementioned Admiral Canaris was one of tho leaders of the resistance movement, and was executed in 1944?
A. That I know only from the newspapers?
DR. BEHLING: I have no further questions.
WITNESS LEHMANN: I ask to be permitted to add one more sentence to my last answer. I ask for the permission to add one more sentence to the last answer which I have given. I do not only know it from the newspapers, but the fact that he was one of the leaders of the resistance movement was also known to me through official channels.
DR. SCHILF (for defendants Klemm and Mettgenberg):
I should like to continue the cross examination for my client Mottgenberg with the permission of the Tribunal. First I have to put one question concerning Canaris, and that is on the basis of the following circumstances: In document book VI, there is a document No. 226, exhibit 312, which has been offered in evidence, and that is a notice by the defendant von Ammon, at the end of this notice the date is 26 September 1942. It is on page 49 in the German document book and the same page in the English document book. Von Ammon made tho following remark: "To give consideration to those questions, several questions which have been enumerated at the department meeting with the OKW legal section of the Armed Forces and counter espionage section is to be held on the 2nd of October 1942." From this evidence produced by the Prosecution, there can be seen that there existed a connection between the Ministry of Justice not only to the legal divisions of the Armed Forces but also to the department Auslandahwehr -- counter espionage, was headed by Admiral Canaris. For that reason, I believe since the name of Canaris has been mentioned by the witness, we be permitted to put a further question to the witness now.
MR. KING: I want to point out merely that the witness did not mention the name of Canaris to this extent in the direct examination, and Dr. Schilf is limited to ask questions as to what was developed on direct examination and not what was developed on cross examination.
DR. SCHILF: I may recall it incorrectly, but I do not believe that I am wrong that he mentioned the name of Canaris in the direct examination.
THE PRESIDENT: In any event we will hear your question.
DR. SCHILF: That was my intention, anyway.
Q. Witness, in what way was Canaris committed to the execution of the nacht und nebel decree, and in what way did he fight the nacht und nebel decree? That is the expression mentioned by the witness as far as his own efforts were concerned.
A. To bring it to a
MR. KING (Interposing): Your Honor, I renew my objection.
A. (Continued) Admiral Canaris -
THE PRESIDENT (Interposing): One moment. He may answer the question.
A. Admiral Canaris in more than one way participated in the preparation of the decree. For once, I mentioned the notice by Keitel which I have mentioned in the examination by the Prosecutor, I passed that on to Canaris as far as the contents were concerned so that he was immediately informed about it. Then, the department up there, which was headed by Canaris, participated in the conferneces which took place in my department-conferences with all offices concerned of OKW, and branches of the Armed Forces.
Furthermore it is known to me from repeated information received from sources that Admiral Canaris exerted considerable pressure on Keitel, that tho competence of the civilian courts should be established for cases pending in Germany at that time.
Q. Is that all you can say about this subject, Witness? In connection with that question, you mentioned your own efforts to thwart the influence of Koitel and Hitler, but you have added the remark that details are not relovant. It is possible that details are not interesting for tho gentlemen of the Prosecution, but they are very interesting for me, so much so, that I want to ask you to describe these details.
MR. KING: It seems to me that if the details were not brought out in cross examination - I mean direct examination, at the discretion of the Prosecution, it is not up to the Defense Counsel at this time to continue the direct examination. At a later time, if they want to recall this witness and conduct their own direct examination, that certainly is within their own province. I, therefore, object to the question.
DR. SCHILF: May I say something in this connection? The witness limited his statement and did not wait until the Prosecution interrupted him. He, in his own mind, was of the opinion that the details were probably not interesting. The fact, therefore, that now, in the cross examination, I should like to hear what he could tell us about details.
JUDGE BRAND: May I ask you are you attempting to bring out that some one of the defendants in this case was attempting to sabotage Hitler's program, or is your question limited as to whether some other person, a stranger to this case, opposed that program, I do not see the relevancy of what you are talking about.
DR. SCHILF: May I say the following: All those amongst the defendants who were later in any way connected with the nacht und nebel decree were informed that it was a task forced upon them and that they were further controlled accordingly. As the witness has said, it was only possible for one man to work out an idea of that kind, and that was Hitler, and all jurists under the influence, and that if they wanted to exert influence against the resistance, they acted accordingly. Not only the jurists in the so-called Armed Forces administering justice but also the jurist of the Ministry of Justice. For that reason it seems relevant to me to hear everything -- anything which has been done in the way of attempts to persuade Hitler in one point or more to modify his idea.
JUDGE BRAND: Do you think that evidence that this witness or some other admiral opposed Hitler in this respect constitutes evidence that any of the defendants opposed him?
DR. SCHILF: I cannot say right now whether one or another of the defendants who are right here have resisted against the order of Hitler. I am only concerned to ascertain what resistance was offered by the offices concerned, that the attempt of resistance became known, and that, accordingly, the defendants here applied-in other words, the matter from the beginning was considered with a great deal of suspicion, a great deal of averison, also on the part of the Ministry of Justice when they had to accept it, and, therefore, it seems to me to be relevant to find out what those people who were closer to Hitler did on their part in order to thwart what had been ordered, as the witness expressed himself.
THE PRESIDENT: You may answer the question, witness.
WITNESS: In order to answer this question I have to point out first, that immediately resistance against Hitler, I could not offer - that is, personally - because I have never seen Hitler all during the war. My resistance waould only be such that I influenced Field Marshall Keitel, and that I tried to include all other relevant factors. I have stated that in lengthy conferences I attempted to persuade Field Marshall Keitel that the plan had to be rejected for manifold reasons - for reasons of international law, for reasons of justice, and policy of justice, and primarily, because I said the administration of Justice should never do anything secretly. I put to him: What kind of suspicion would have to arise against our Administration of Justice if these people, inhabitants of other countries, brought to Germany, would disappear without a trace? In my mind, and in the minds of all others concerned, everything revolted against this particular part of the plan, which seemed to us to have much more grave consequence than the question who should, in the end, deal with it.
That was also the opinion of the leading jurists of the Armed Forces in France, and so I tried by means of delay, such as one learns in the Ministry, to delay the decree that defeated only to a very limited measure, because Hitler was very impatient and put pressure on Keitel, and through Keitel; by that delay I had another purpose in mind. I wanted to see that the commanders in chief of the branches of the armed forces should speak up against the decree. The position of Keitel with regard to Hitler was very weak, as far as Keitel was concerned, and I always hoped that one of the commanders in chief would interfere. I did not hear that that ever happened. Of considerable importance was the activity of Canaris, which has already been described, and as far as the practical consequences were concerned, the decree was applied against its own meaning. In the direct examination I had explained that only those cases were to remain in France, where immediate execution of death sentence was possible. This expression "immediate" was interpreted by the judges in France in a modified way, in practice. They applied the work "immediate" to mean immediately after the investigation was concluded regardless how long that may have lasted; whereas, the sense, the real meaning, was "immediately" - that is, immediately after an act had been committed, or after the culprit had been seized. In that way it came about that many more cases remained in France than Hitler had intended. Our main struggle was directed against the fact that these cases were to be kept secret. Later on applications were made by the families and by the Red Cross, which cut deep into our hearts. These requests and inquiries I protected again and again.
THE PRESIDENT: I think the answers are going beyond the question. We will recess at this time for fifteen minutes.
(A 15-minute recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF:
Q Witness, I would like to ask you to complete your interrupted answer.
A Before I was interrupted, I had stated that, above all, we made the attempt, again and again, as to the exclusion of the public, which was the main idea of Hitler, to fight against it, and, later on, to have it modified. That was again and again refused, and refused by Keitel. I do not know to what extent he discussed the matter with Hitler.
However, that goes over into the later time of the decree, while the defense counsel probably wants to know what we did during the beginning of the decree. I have described that briefly, and without any doubt the Referenten, the men in charge of the matter in both offices, discussed this. In any case-
THE PRESIDENT (Interposing): One moment. It isn't on that subject that he wanted to supply details during the direct examination. He got beyond the point where he desired, apparently, to give details.
BY DR. SCHILF:
Q Witness, you understand my question correctly, as such. For the time being I wanted to hear only what resistance you and other circles offered before the decree was promulgated. Do you have anything to add to that matter?
A No, I have stated the essential things.
Q During your explanation you repeatedly spoke about the chief jurists of the Wehrmacht Division who shared your opinion. I would like to ask you to name these chief jurists and the offices they held at the time.
A In the Army there was Ministerial Director Herr Neumann. In the Air Force, Ministerial Director Freiherr von Hammerstein. In the Navy, Ministerial Director Rudolphi.
Q May I ask you to state what expert worked with the Chief of the Auslandsabwehr, the Counter Intelligence?
