In doing so, we shall outline the broad legal principles which establish the relevancy of our evidence to the crimes charged. We shall not at this time, except perhaps for the purpose of illustration, relate it to each of these defendants. That will be done adequately enough to satisfy the court and disconcert the defendants when we sum up.
in Count 2 of this indictment, we charge these defendants with the commission of War Crimes as defined in Article II paragraph 1 (b) of Law 10, and in Count 3 we charge them with the commission of Crimes against Humanity as defined in Law 10, Article II, paragraph 1(c). We have demonstrated that as we have charged these crimes in this indictment, we only ask for convictions for the same crimes for which the defendants before the I.M.T. were tried; therefore, we adopt basically the following statements from the decision of the I.M.T.:
"With respect to war crimes, I quote:" however, as has already been pointed out, the crimes defined by Art. 6, Section (b) of the Charter which are the same crimes defined by Law 10, Sec. 1 (b) were already recognized as war crimes under international law." There's a parenthetical statement in there your Honors will note.
"But it is argued that the Hague Convention does not apply in this case, because of the 'general participation' clause of Article 2 of the Hague Convention of 1907."
"In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt "to revise the general laws and customs of war", which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter."
"A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were a part of Germany."
" * * * The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after the 1st September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that those territories were never added to the Reich, but a mere protectorate was established over them."
" * * * but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity."
It is proper to point out also, that in order to establish the guilt of any of these defendants for Crimes against Humanity, it is not necessary that they themselves shall be indicted for or convicted of a Crime against Peace; that is, the waging of aggressive war, which the I.M.T. hold began on September 1, 1939.
In the trial before the I.M.T. the record discloses that seven defendants were convicted of Crimes against Humanity, who either were not indicted for or were found not guilty of participation in a Conspiracy to commit Crimes against Peace or of the commission of a Crime against Peace.
We want to discuss briefly the substantive law under which we try this case.
Law 10, Article II, paragraph 2 is part of the substantive law under which this indictment is brought. An effective presentation of the meaning and effect of this paragraph is aided by presenting those parts of it which are relevant to this case, verbatim at this time:
"And person without regard to nationality or the capacity in which he acted is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal, or (b) was an accessory to the commission of any such crime or ordered or abetted the same, or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission, or (e) was a member of any organization or group connected with the commission of any such crime, or * * *" Clause (f) of the above paragraph applies only to Crimes against Peace, for which none of these defendants are indicted.
We are not concerned in this opening statement with discussing niceties of legal draftsmanship nor shall we now use American legal terminology to describe the ultimate relationship of defendants, whose guilt is fixed by paragraph (2) of Article II to the overt act, namely, any crime as defined in paragraph (l) of Article II. But we are concerned with offering to this court our observation upon its legal effect.
We do not concern ourselves now with principals or accessories. We do discuss the relationships arising out of the words "abetted" and the relationships set out in clauses (c), (d) and (e) to the overt act. At the threshold we point out that the crime which defendants who occupy any of the last referred to relationship, are guilty of committing is any crime as defined in paragraph 1 of Article II. The proof must show that a crime as defined in Law 10, Article II paragraph (1), that is, a crime within the jurisdiction of this Tribunal, was committed, but if it was committed by any of the defendants or a person other than the defendants in the dock or any of them, and any of these defendants abetted the doing of that act, was connected with a plan or enterprise to commit it, consented to its commission, or was a member of any organization or group connected with the commission of any crime within the jurisdiction of the Tribunal, he is guilty of committing that crime.
The I.M.T. has given two persuasive interpretations of the meaning of the words "being connected with" which we cite.
In the case of the defendant, Streicher, who was found Guilty of committing Crimes against Humanity, the I.M.T. said:
"Streicher's incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes, as defined in the Charter and constitutes a crime against humanity."
The case of Von Schirach is also most enlightening, Anschluss with Austria took place on March 12, 1938. Von Schirach was appointed Gauleiter of Vienna in July 1940. Von Schirach was found Guilty of Commiting Crimes against Humanity:
The I.M.T. said:
"As has already been seen, Austria was occupied pursuant to a common plan of aggression. Its occupation is, therefore, a "crime within the jurisdiction of the Tribunal", as that term is used in Article 6(c) of the Charter. As a result, "murder, extermination, enslavement, deportation and other inhumane acts, and persecutions on political, racial or religious grounds" in connection with this occupation constitute a Crime against Humanity under that Article."
"The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated in this deportation after he had become Gauleiter of Vienna. He knew that the best the Jews could hope for was a miserable existence in the Ghettos of the East. Bulletins describing the Jewish extermination were in his office."
It seems clear from these cases that there need be no prearrangement with or subsequent request by the person or persons who actually commits the crime and a defendant to make him guilty as the I.M.T. interpreted the words "being connected with". It would appear to be sufficient that the defendant knew that a crime was being committed, and with that knowledge acted in relation to it in any of the relationships set out in paragraph 2 of Article II which we have heretofore been discussing.
We think it is also helpful to call to the attention of this court one rule of evidence by which the existence of a conspiracy, that is, the relationship of individuals to the doing of the overt act, is held to be established.
The case from which we quote arose out of the activities of the Ku Klux Klan during the heighth of its power in Indiana. The people of the United States, on that occasion, at least, had enough courage and foresight not to let that organization acquire the control of all of its judicial system, the way the people of Germany let these defendants and their fellow Nazis acquire control of and pervert theirs. Consequently, our incipient Nazis were tried. The court in the cited case held that the proof of the doing of the overt act, was in itself evidence of the intent of the conspirators to commit the act so as to establish their intent to conspire. I quote from the decision:
"True it is, that if the evidence is as consistent with the innocence of the appellant as with his guilt no conviction can be had. It is equally true that overt acts of the parties may be considered with other evidence and attending circumstances in determining whether a conspiracy exists, and where the overt acts are of the character which are usually, if not necessarily, done pursuant to a previous scheme and plan, proof of the acts has a tendency to show such pre-existing conspiracy, so that when proved they may be considered as evidence of the conspiracy charged."
We point out that proof of murders, enslavement, kidnapping and mayhem, which are a few of the crimes committed through the device of a so-called legal and judicial process, are competent evidence that the preceding acts which perverted a judicial system into a means for committing such crimes were part of a plan and enterprise to make the commission of those crimes possible."
THE PRESIDENT: You are not giving the citation of the Indiana case?
MR. LAFOLLETTE: I beg your pardon, your Honor. It's a CCA case.
U.S. v. Holt, 1939, CCA, 7, 108 Federal 2nd, 365.
THE PRESIDENT: What was the page of the Federal second?
MR. LAFOLLETTE: 365. This mimeograph may not be completely correct. I am sure that's right. Otherwise, if that should not be correct I will advise the Court.
"The overt acts are evidence under the Counts 2 and 3 of this indictment not only of the intent with which the preceding acts were done, but also of the fact that each of those defendants who knew that the preceding acts were being performed - and it is legally inconceivable to believe that they did not know - had knowledge of the fact that there was probable danger that the preceding acts would result in the overt crimes or that the preceding acts being unlawful eo ipso and therefore felonious, would result in the overt acts as the natural consequence of proceeding felonious acts. This is murder - whenever a homicide resulted from the foregoing act. And the murder, being "an act usually done pursuant to" the "previous scheme and plans", establishes the guilty intent of each and all of the defendants to commit that murder who stood in any of the relationships to the murder defined in paragraph 2, Article II of Law 10.
We have also said that it is an inevitable result of the murder of hundreds of thousands and millions of humans, that such mass murder dulls our realization that the basic simple principles of the law which define the crime of murder of a single human, furnish the standard by which were determined the guilt of those who have murdered those millions.
A review of these basic rules is therefore proper.
In 1877, Mr. Justice Stephen undertook to restate the English common law of homicide as he then found it. He states that an unlawful homicide, without adequate provocation was murder, if it followed from an act accompanied by one of the following states of mind: an intention to cause the death of or grevious bodily harm to any person; (2) knowledge that the act will probably cause either of the results, even though the actor hopes that they night not occur or is indifferent about them; or (3) an intention to commit a felony or to resist a peace officer in the execution of his duty.
As to the first category, no one can quarrel and there is evidence to support the commission of such murders by individual defendants.
As to the second category, Mr. Justice Holmes thought that the actor's awareness of the danger was immaterial, that the standard was completely objective. In comm. v. Pierce (1884) 138 Mass. 165, at page 178, he stated his view succintly.
"When the jury are asked whether a stick of a certain size was a deadly weapon they are not further asked whether the defendant knew it was so."
In any event, in this case before this Tribunal, we shall ask the Court to bear in mind that lawyer, by the very nature of their legal training and experience, knew that the enactment of ex post facto laws, specially designed racial legislation and other legislation directly designed to restrict and destroy the right to make an adequate defense to a criminal charge; the handpicking of judges and their control by state and party; the submergence of the courts and prosecutors to the superior authority of the police; pretrial agreement of judges and prosecutor on judgment and penalty; unlawful extra-territorial extension of German law and the issuance of the Nacht und Nebel decree contrary to the laws of war, would probably cause death of human beings, subjected to such a perverted judicial system. These defendants are not farmers or factory workers.
As to the third category, that of homicide resulting from the intention to commit a felony or while resisting arrest, it is not amiss to point out that those who are connected with a plan to extend, or who consent to or abet the unlawful extension of German law and German Courts into overrun countries contrary to the laws of war, are doing acts which amount to larceny while armed or robbery; and that those individuals who commit acts which abet or are connected with the waging of an aggresive war or a plan to do so, or who consent thereto, are resisting the efforts of the peace-enforcing nations of the world to arrest the criminal.
The evidence in this case will establish the unprovocated homicide of countless numbers as the result of the doing of such acts by these defendants which are clearly felony murders.
These are but the most apparent applications of the three categories of murder to the evidence in this case. Time will not permit our further exemplifying them now. They will be presented adequately when we summarize the evidence. We do not wish to be understood by furnishing these few examples as having exhausted the cases, where the application of the principles so readily understood when one life is taken by murderous homicide, to the evidence of this case, will establish murders and mass murders by these defendants. Furthermore, other crimes common to the criminal laws of civilized nations, such as enslavement, kidnapping, or mayhem, have been committed by these defendants, which can be established by the application of similar basic principles to the evidence, which should make the task more simple and at the same time, by reducing the seeming complexities of mass criminality under international law to concepts with which the average citizen of a nation is acquainted, seen to serve the salutary purpose of increasing the hatred of the average man for war and to warn him of the dangers inherent in the totalitarian police state, dominated by the philosophy that the end justifies the means used to attain it.
The crimes charged in Count 2 and in Count 3 fall generally into several categories.
Substantively, there are first those war crimes which arise out of the violation of the laws and customs of war, including Section I, Articles 4, 5, 6, and 7; Section II, Article 23; Section III, Articles 43, 45, 46 and 50 of the Hague Regulations of 1907; and Chapter 6, Title I, Articles 2, 3 and 4 of the Prisoners of War Convention (Geneva 1929); and the decision and judgment of the IMT of September 30 and October 1, 1946.
These defendants, in one or more of the relationships set out in paragraph 2 of Article II of Law 10, committed numerous criminal acts as defined in Law 10, Article II.
These include, as the first substantive group of crimes, the wrongful extension of German law and German courts into and over the Eastern territories and other overrun nations and of the Protectorate, each of which, we contend, was not only an act done by these defendants in connection with and in furtherance of aggressive war, but also done by them for purely political, reasons which made no pretense of being based upon military necessity, so that it was ipso facto unlawful or malum in se and made every act initiated thereafter under such wrongful extension, as against any of the defendants who are responsible under Law 10, Article II, for that wrongful extension of German law, fall into the category of a felony murder or a criminal enslavement, mayhem or atrocity; or a larceny while armed, or a robbery as to the plunder of public or private property.
The other large group in this category of War Crimes is the acts done in connection with the promulgation of the Nacht and Nebel decree of December 7, 1941, and the acts thereafter done in carrying out that program.
The second substantive group consists of the crimes arising out of the activities cf the defendants in connection with the Gestapo, SIPO, SS, and other police groups in which either under the facade of judicial proceedings or by open violation of the meager protection afforded the individuals under Nazi law, Germans and non-Germans were turned over to enslavement and in many cases to demonstrable certain deaths in concentration camps, or in prisons where no pretense was made to operate them other than as concentration camps or human slaughterhouses.
The third group is the cases where, under alleged trials, in the Peoples Court, Special Courts, and civilian courts martial, certain of these defendants, by the use of the prescribed procedures or those actually practiced, the fixing of penalties which outrage the universal moral judgment of mankind, and through convictions based, only upon the subjective conclusions of the prosecutor or judge, which we describe now only as examples, give rise to the legal conclusion that the defendants thus convicted were murdered or unlawfully enslaved under the guise of exercising a judicial process.
The court will get a better understanding of these basic categories of substantive crimes by the following illustrations from the evidence, which I will now ask Mr. Douglas King to first present at this time.
MR. DOUGLAS KING: The extension of German law and German courts into conquered and occupied countries followed as a matter of course after the victorious German armies had done their work. In Poland and the Eastern territories decrees of October 4, 1939 and June 6, 1940 introduced and extended the German jurisprudence into these countries. It was, however, unthinkable to the Nazi mind that a Pole should be able to appeal to German law - that he should have the right to sue a German before a German court in the capacity of a plaintiff, or to appear against a German in a case, or even to serve a wit of execution with the assistance of a bailiff.
To remedy this intolerable situation, the defendant Schlegelberger drafted a decree which, by its terms, placed, beyond the reach of the Roles and Jews in the Eastern territories the last vestige of protection of even the German law. This decree was made effective on December 4, 1941, and from time to time was later amended as the need arose. For instance, approximately a year later, it was amended and made retroactive for crimes committed prior to December 4, 1941. We think it will be of interest to the court to have in Schlegelberger's own words some of the background of this special treatment for the Poles and Jews in the Eastern territories and his own statement as to the purposes which the decree was intended to accomplish. This letter was addressed to the Reich Minister and Chief of the Reich Chancellery (Lammers) and refers to Schlegelberger's draft of the decree which a few months later was made effective on Hitler's order:
"On being informed of the Fuehrer's intention to discriminate in the sphere of the 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 Attorney Generals of the Eastern terri tories, the attached draft concerning the administration of penal laws against Poles and Jews in the annexed Eastern territories and in the territory of the former free city of Danzig.
"This draft amounts to special legislation both in the sphere of actual law end in that of criminal procedure. In this connection the suggestions made by the Fuehrer's deputy have been taken into consideration to a great extent."
In referring to the various provisions of the ordinance, Schlegelberger has this to say?
"I have been in agreement with the opinion hald by the Fuehrer's deputy that a Pole is less sensitive to the imposition of an ordinary prison sentence; therefore, I have taken administrative measures to assure that Poles and Jews will be separated from other prisoners and that their imprisonment will be rendered more severe.
"For these new kinds of punishment the prisoners are to be lodged in camps and in prisons and are to be employed with hard and very hard labor. There are also administrative measures which provide for special disciplinary punishment; that is, imprisonment in an unlighted cell, transfer from a prison camp to a more rigorous prison camp, etc.
"A Pole or 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 the 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.
"In this sphere of criminal procedure the draft clearly shows the difference in the political status of Germans on one side and Poles and Jews on the other.
"Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of sentence and will, therefore, in no way be inferior to summary court proceedings.
The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer's political aims in the Eastern territories."
One of the amendments to this decree on December 3, 1942, states that no German attorney is to undertake the defense of Polish persons before tribunals in the incorporated Eastern territories. This, in effect, prevented any accused person before these courts from having defense counsel since Polish lawyers were prohibited from engaging in any legal practice. That this prevision was received favorably by Ministry officials is indicated by a letter from the President of the Court of Appeals in Koenigsberg addressed to the Reich Minister of Justice shortly after this supplementary decree became effective. The judge, in the course of his letter, says this:
"It is in the German interest to continue to prohibit the defense of Poles by German jurists.
"I see no cause to lift or even to modify the present ban on defense of Poles by attorneys. On the contrary, the ban placed on the principle of rendering legal assistance to Poles by attorneys should be still further stressed and made more extensive."
To put to rest any fear that the ban of German attorneys would result in a competitive hardship on them, this judge has the following to say:
"The fear that, in the future, former Polish attorneys or counselors may be called in to act as legal advisers to Poles and may gain influence over then (i.e. German counsel) seems to me improbable. In the incorporated Eastern territories of my district, where, although the population numbers about one million, only three attorneys are established, it has not been observed that former Polish attorneys or counselors are engaging in activities connected with natters of law.
"It is, of course, much easier for the tribunal to have the case of a person charged put before them by a lawyer nicely arranged and in the German language. But the judge must dispense with these facilities when such great issues ere at stake for the German people."
The court will, in due course, have an opportunity to examine all of these documents and an opportunity to observe the ruthless manner in which this "special legislation" was administered. It is perhaps superfluous to quote a statement by the President of the Court of Appeals of Danzig summarizing the "situation" in his district for a two-month period in 1942 following the effective date of the decree of December 4, 1941. "There were", he says, "no complaints about too lenient decisions during the period reported on."
The defendant Schlegelberger, shortly after the decree became effective, conferred with the Reich Governor of Eastern territories and worked cut a system of administration pursuant to the decree of December 4, 1941, which (1) provided for summary court martials, (2) delegated to the Reich Governor the sole right to grant amnesty, and (3) agreed to the holding of civilian prisoners as hostages.
In summarizing the results of this conference the defendant Schlegelberger assured the Reich Governor that the "interest of the State can best be served by regulating matters along the lines of our unanimous consent."
It is thus clear that the extension of German law and German courts into the Eastern territories, especially insofar as the Poles and the Jews were concerned, eventually deprived them of any legal recourse whatsoever.
What has been said respecting the part played by key officials of the Ministry of Justice in extending German law and the German court system to the occupied territories is equally true of Czechoslovakia and particularly the Protectorate of Bohemia and Moravia. In one sense, by virtue of the fact that Czechoslovakia fell to the Nazis before the war, the experience there served as a proving ground for measures which were later extended to the Eastern territories and other occupied countries.
The decree cf April 14, 1939, and the decrees of November 2, 1942, and of July 1, 1943, the texts of which, among others will be presented in evidence, mark the progress of the Nazis in extending German jurisdiction to Czechoslovakia and are mute evidence of the "legal" justification for the robbery, extortion and atrocities, the knowledge of which have already shocked the world. The Prosecution will show that the Ministry of Justice not only had full knowledge of what was going on in the Protectorate but its "experts" took a leading part in the establishment and administration of the court system in the Protectorate from the very outset to the end of the war as they did in the Eastern territories.
As the evidence unfolds we will see the defendant Schlegelberger active in drafting "legal justification". We shall see the defendant Lautz concerned with even minute matters cf administration of the People's Court in the trial of Czechoslovakian nationals both in Prague and those removed for trial to Berlin, and we shall note that many of the other defendants were called upon from time to time for their assistance in making the court system function 92 to the maximum required by National Socialist policies as they were enforced upon the Czechoslovakian nation.
In refusing citizens of occupied territories protection of the law the defendants abetted and brought about the murder of thousands of persons. The acts of the defendants violated the laws of the countries where committed and were repugnant to the laws of every civilized country. In administering occupied territory, the defendants were bound by the Hague Convention to respect "family Honor and rights". These obligations the defendants ignored, and so squarely placed themselves in the category of common war criminals.
On the 7th of December 1941, the so-called Nacht und Nebel, or Night and Fog decree was issued pursuant to the orders of Hitler and Keitel. Perhaps never in world history has there been a more perverted and daibolical plot for intimidation and repression than this. Its terms provided that in case of continued resistance on the part of the inhabitants of certain of the occupied countries, but largely aimed at France, Belgium and the low countries, the suspected perpetrators should be spirited away without any indication of their whereabouts or eventual fate. The victims were to be tried by the OKI in the occupied territories only when it appeared probable that death sentences would be quickly passed and executed. The others were to be taken to Germany, there to be tried by Special Courts. Whether the death sentence was there imposed, prison sentences given or the individuals "acquitted", the first and foremost purpose -- that of complete secrecy so far as their family and friends were concerned -- was to be preserved. It is thus clear that the cognemen of "Night and Fog" was well chosen since in theory and practice the victims vanished as in the blackness of night and were never heard of again.
In the IMT opinion, the Court observed that:
"The evidence is quite overwhelming of a systematic rule of violence, brutality, and terror."
Continuing with the IMT decision:
"After these civilians arrived in Germany, no word of them was permitted to reach the country from which they care, or even their relatives; even in eases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.
Hitler's purpose in issuing this decree was stated by the defendant Keitel in a covering letter, dated 12 December 1941, to be as follows:"
"Efficient and enduring intimidation an 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."
Preparations for the carrying out of the decree on the part of the Wehrmacht were entrusted to Lt, General Lehman of the Legal Department of the OKW. He conferred with various members of the Ministry of Justice to determine whether the Ministry would be able and willing to assume the trials of the captured individuals shipped to Germany from the occupied countries. It is more than interesting to note from a statement signed by General Lehman that, in his opinion, the defendant Schlegelberger was the only official in the Ministry of Justice at that time who had the authority to assume the trial of these cases.
The total number of victims of "Nacht und Nobel" may never be known but we do know that as of November 1, 1943 the Wehrmacht had delivered a total of more than 5 200 "Nacht und Nobel" prisoners far trial to the several courts throughout Germany designated by the Ministry of Justice far that purpose.
Originally there were four Special Courts assigned to handle the "Nacht und Nebel" cases. The Special Court at Kiel was assigned to the cases arising in Norway, Cologne to the French cases, Essen to Belgium, and Berlin for cases of a special nature. In the latter stages of the "Nacht und Nebel" program the effectiveness of allied bombing made it necessary to shift the location of some of these courts, principally in the transfer cf the Cologne court to Ereslau and the Essen court to Hamm.
When we call the roll of the defendants before us today who acted in and were principally responsible for the large part which the Ministry of Justice played in the "Nacht und Nebel" program, we find there the names of Schlegelberger, von Ammon, Mettgenberg, Lautz, Engert and Joel, in addition to others who played less conspicuous, if not less important, roles. If we were to select one of these men, who, above all others, should have known the criminal nature of the "Nacht und Nebel" program, such a man might very well have been the defendant von Ammon who was the Ministry of Justice's specialist in international law. Yet the fact is that the name of von Ammon together with that of Mettgenberg recur again and again as the principal negotiators with the OKW in matters concerning the application of law and the administration of the "Nacht und Nebel" program.
The Reich Minister of Justice, in a letter to the public prosecutors charged with trying "Nacht und Nebel" cases, outlined in detail the measures which were to be taken to assure complete secrecy of the trials. This letter, from which we quote extensively as follows was endorsed, among others, by von Ammon:
"With regard to criminal procedures on account of punishable offenses against the Reich or against the Occupying Forces in the occupied territories, I request observance of the following directives, in order not to endanger the necessary top secrecy of the procedure, particularly regarding the execution of death sentences and other cases of death among prisoners:
"1. 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.
"2. In cases cf death, especially in cases of execution of NNprisoners, 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 or birth certificates is admissible only with the consent of the Reich Minister of Justice.'
"3. In case an NN-prisoner sentenced to death desires to draw up a public will, the judge or notary public and, if necessary, other persons whose presence is required, will have access to the prisoner. Only officials of the Ministry of Justice may be called as witnesses. The persons who assist the drawing up of the will are, if necessary, to be sworn to secrecy. The will has to be taken into official custody according to article 2 of the Testaments Law. The disposition receipt has to be kept by the Prosecution until further notice.
"4. 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.
"5. 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.
"6. 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 by public announcement in posters.
"7. 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.
"8. Legacies of NN-prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served."
It is not our purpose here to review all of the gruesome details of carrying out the spirit of the "Nacht und Nebel" program which became the daily routine of these defendants. As the court will see, all of the stipulations regarding the secrecy of the original decree and indeed the addition of other unbelievably harsh and inhuman provisions were systematically executed and improved upon by these men. If, to take one example, the Wehrmacht erroneously arrested in the occupied countries individuals who wore patently innocent of any resistance to the Nazis, these victims, in order to preserve the secrecy of the program, had to be treated in exactly the same way as other individuals who managed to escape with a prison sentence. Never did the families and friends of the convicted or innocent knew their fate. I the alleged trials before the Special Courts none of the accused was, at any time, ever able to introduce evidence from his own country as to his innocence and, in no case, were the accused permitted to choose legal counsel other than that assigned to them by the court.
Again the defendants flagrantly violated rights secured by the Hague Convention of citizens of countries occupied by the German armed forces-the right of family honor, the lives of persons, and the right to be judged under their own laws.
Mr. Wooleyhen will continue the reading of the opening statement.
THE PRESIDENT: The Court will have a recess at this time before you begin your opening statement.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed with your statement.
MR. WOOLEYHEN: Illegal Transfer of Prison Inmates to Concentration Camps.
A Ministry of Justice policy of extermination through calculated denial of all judicial and penal process, in close collaboration with the Gestapo and SS, characterizes the second substantive group of crimes previously mentioned. By 1939, inspections of Reich penitentiaries operated by the Ministry of Justice disclosed that large number of political prisoners in security detention were engaged in paid labor on projects incompatible with the rearmament effort which then was at a climax. At Hitler's order these prison inmates were transferred to concentration camps where their work could be both unpaid and of more use to munition requirements. Thus was initiated a program which was to eventually erase any practical difference between the fates of those victims who were put through the shams of criminal court procedure, and those who were thrown by the police into concentration camps without the formality of a hearing.
Apparently noting that transfers from Reich prisons to concentration camps aroused no immediate public clamor or official opposition, judges saw therein an outlet for increasingly burdensome members of criminal cases, particularly political cases as the defendant Engert has stated:
"In 1940 or 1941 I wrote to Himmler suggestion that he take me into the Gestapo. My idea was to get closer in touch with the Gestapo in order to get an insight into the activities of the Gestapo, and then to reach a better relationship between the Gestapo and the People's Court ....I also wanted to prevent the possibility of insignificant cases being brought up in the People's Court which could be bettor handed over to the Gestapo for a short term internment in a concentration camp."