which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization."
Article 10 is as follows:
"In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military, or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not he questioned." (IMT Charter, Articles 9 and 10).
Concerning the effect of the last quoted section, we quote from the opinion of the IMT in the case of United States, et al., vs. Goering, et al., as follows:
"Article 10 of the Charter makes claim that the declaration of criminality against an accused organization is final and cannot be challenged in any subsequent criminal proceeding against a member of the organization." (IMT Trial of the Major War Criminals, Volume I, page 255).
We quote further from the opinion in that case:
"In effect, therefore, a member of an organization which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that crime by death. This is not to assume that international or military courts which will try these individuals will not exercise appropriate standards of justice. This is a far reaching and novel procedure. Its application, unless properly safeguarded, may produce great injustice. * * * "A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes.
There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with Court No. III, Case No. III.
the commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations." (IMT Judgment, Volume I, pages 255-256.)
The Tribunal in that case recommended uniformity of treatment so far as practicable in the administration of this law, recognizing, however, that discretion in sentencing is vested in the courts. Certain groups of the Leadership Corps, the SS, the Gestapo, the SD, were declared to be criminal organizations by the Judgment of the first International Military Tribunal. The test to be applied in determining the guilt of individual members of a criminal organization is repeatedly stated in the opinion of the first International Military Tribunal. The test is as follows: those members of an organization which has been declared criminal "who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes" are declared punishable.
Certain categories of the Leadership Corps are defined in the first International Military Tribunal Judgment as criminal organizations. We quote:
"The Gauleiters, the Kreisleiters, and the Ortsgruppenleiters participated, to one degree or another, in these criminal programs. The Reichsleitung as the staff organization of the Party is also responsible for these Court No. III, Case No. III.
criminal programs as well as the heads of the various staff organizations of the Gauleiters and Kreisleiters. The decision of the Tribunal on these staff organizations includes only the Amtsleiters who were heads of offices on the staffs of the Reichsleitung, Gauleitung, and Kreisleitung. With respect to other staff officers and Party organizations attached to the leadership Corps other than the Amtsleiters referred to above, the Tribunal will follow the suggestion of the Prosecution in excluding them from the declaration." (Trial of the Major War Criminals, Volume I, page 261).
In like manner certain categories of the SD were defined as criminal organizations. Again, we quote:
"In dealing with the SD the Tribunal includes Amter III, VI, and VII of the RSHA, and all other members of the SD, including all local representatives and agents, honorary or otherwise, whether they were technically members of the SS or not, but not including honorary informers who were not members of the SS, and members of the Abwehr who were transferred to the SD." (Trial of the Major War Criminals, Volume I, pages 267-268).
In like manner certain categories of the SS were declared to constitute criminal organizations:
"In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf Verbaende, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called SS riding units." (Trial of the Major War Criminals, Volume I, page 273).
Court No. III, Case No. III.
C. C. Law 10 provides that we are bound by the findings as to the criminal nature of these groups or organizations. However, it should be added that the criminality of these groups and organizations is also established by the evidence which has been received in the pending case. Certain of the defendants are charged in the indictment with membership in the following groups or organizations which have been declared and are now found to be criminal, to wit: The Leadership Corps, the SD, and the SS. In passing upon these charges against the respective defendants, the Tribunal will apply the tests of criminality set forth above.
JUDGE BLAIR: Judge Blair continuing with the reading of the Opinion:
Court No. III, Case No. III.
Crimes Under the Night and Fog Decree Paragraph 13 of Chunt II of the indictment charges in substance that the Ministry of Justice participated with the OKW and the Gestapo in the execution of the Hitler decree of "Night and Fog" (Nacht und Nebel) whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts of the Ministry of Justice within the Reich; that the victim's whereabouts, trials, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victim's relatives and associates and barring recourse to evidence, witnesses, or counsel for defense.
If the accused was acquitted, or if convicted, after serving his sentence, he was handed over to the Gestapo for "protective custody" for the duration of the war. These proceedings resulted in the torture, ill treatment, and murder of thousands of persons. These crimes and offenses are alleged to be war crimes in violation of certain established international rules and customs of warfare and as recognized in Control Council Law No. 10.
Paragraph 25 of Count III of the indictment incorporates by reference paragraph 13 of Count II of the indictment and alleges that the same acts, offenses, and crimes are crimes against humanity as defined by Allied Control Council Law No. 10. The same facts were introduced to prove both the war crimes and crimes against humanity and the evidence will be so considered by us.
Paragraph 13 of Count II of the indictment which particularly describes the Hitler NN plan or scheme, charges the defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger with "special responsibility for and participation in these crimes", which are alleged to be war crimes.
Paragraph 8 of Count II of the indictment charges all of the defendants with having committed the war crimes set forth in paragraphs 9 to 18 inclusive of Count II, in that they were principals in, Court No. III, Case No. III.
accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of atrocities and offenses against persons, including but not limited to murder, illegal imprisonment, brutalities, atrocities, transportation of civilians, and other inhumane acts which were set out in paragraphs 9 to 18 inclusive of the indictment as war crimes against the civilian population in occupied territories.
Paragraph 20 of Count III of the indictment charges all of the defendants with having committed the same acts as contained in paragraph 8 of Count II as being crimes against humanity. Paragraphs 21 to 30 inclusive of Count III refer to and adopt the facts alleged in paragraphs 9 to 18 inclusive of Count II, and thus all defendants are charged with having committed crimes against humanity upon the same allegations of facts as are contained in paragraphs 9 to 18 inclusive of Count II.
In the foregoing manner all of the defendants are charged with having participated in the execution of carrying out of the Hitler NN decree and procedure either as war crimes or as crimes against humanity, and all defendants are charged with having committed numerous other acts which constitute war crimes and crimes against humanity against the civilian population of occupied countries during the war period between 1 September 1939 and April 1945.
The Night and Fog Decree (Nacht und Nebel Erlass) arose as the plan or scheme of Hitler to combat so-called resistance movements in occupied territories. Its enforcement brought about a systematic rule of violence, brutality, outrage, and terror against the civilian populations of territories overrun and occupied by the Nazi armed forces. The IMT treated the crimes committed under the Night and Fog decree as war crimes and found as follows:
"The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, Court No. III, Case No. III.
brutality, and terror. On 7 December 1941 Hitler issued the directive since known as the "Nacht und Nebel Erlass" (Night and Fog Decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial and punishment in Germany. This decree was signed by the defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases 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 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.'
The brutal suppression of all opposition to the German occupation was not confined to severe measures against suspected members of resistance movements themselves, but was also extended to their families."
The Tribunal also found that:
"One of the most notorious means of terrorizing the people in occupied territories was the use of the concentration camps." 10716 Court No. III, Case No. III.
Reference is here made to the detailed description by the IMT Judgment of the manner of operation of concentration camps and to the appalling cruelties and horrors found to have been committed therein. Such concentration camps were used extensively for the NN prisoners in the execution of the Night and Fog decree as will be later shown.
The IMT further found that the manner of arrest and imprisonment of Night and Fog prisoners before they were transferred to Germany was illegal, as follows:
"The local units of the Security Police and SD continued their work in the occupied territories after they had ceased to be an areas 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, and 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' decree under which persons charged with a type of offense believed to endanger the security of the occupying forces was either executed within a week or secretly removed to Germany without being permitted to communicate with their family and friends."
The foregoing quotations from the IMT Judgment will suffice to show the illegality and cruelty of the entire NN plan or scheme. The transfer of NN prisoners to Germany and the enforcement of the plan or scheme did not cleanse it of its iniquity or render it legal in any respect.
The evidence herein adduced sustains the foregoing findings and conclusions of the IMI. In fact the same documents, or copies thereof, Court No. III, Case No. III.
referred to and quoted from in the IMT Judgment were introduced in evidence in this case. In addition, a large number of captured documents and oral testimony were introduced showing the origin and purpose of the Night and Fog plan or scheme, and showing without dispute that certain of the defendants with full knowledge of the illegality of the plan or scheme under international law of war and with full knowledge of the intended terrorism, cruelty, and other inhumane principles of the plan or scheme became either a principal, or aided and abetted, or took a consenting part in, or were connected with the execution of the illegal, cruel, and inhumane plan or scheme.
Hitler's decree was signed by Keitel on 7 December 1941 and was enclosed in Keitel's covering letter of 12 December 1941, which was referred to and quoted from in the IMT Judgment. The Hitler decree states that since the opening of the Russian campaign Communist and anti German elements have increased their assaults against the Reich and the occupation power in the occupied territories and that the most severe measures should be directed against these malefactors "to intimidate them". The decree further declares in substance:
1. Criminal acts committed by non-German civilians directed against the Reich or occupation forces endangering their safety or striking power should require the application of the death penalty in principle.
2. Such criminal acts will be tried in occupied territories only when it appears probable that the death sentence will be passed and carried out without delay. Otherwise the offenders will be carried to Germany.
3. Offenders taken to Germany are subject to court martial procedures there only in case that particular military concern should require it. German and foreign agencies will declare upon inquiries of such offenders that the state of the proceedings would not allow further information.
4. Commanders-in-chief in occupied territories and the Court No. III, Case No. III.
justiciaries within their jurisdiction will be held personally responsible for the execution of this decree.
5. The Chief of the OKW will decide in which of the occupied territories this decree will be applied. He is authorized to furnish explanations and further information and to issue directives for its execution.
In addition to the Hitler decree there were also enclosed in Keitel's letter of 12 December 1941 the "First Decree" of directives concerning the prosecution of crimes against the Reich of occupation power in occupied territories under the Hitler decree. This First Decree was signed by Keitel and was marked "Secret".
It contains seven sections relating to the crimes intended to he prosecuted under the Hitler decree and the manner and place of trials and execution of sentences. Section I of the First Decree declares that the directive will be as a rule applicable in cases of:
1. Assault with intent to kill 2. Espionage.
3. Sabotage.
4. Communist activity.
5. Crimes likely to disturb the peace.
6. Favoritism toward the enemy, the following means: Smuggling of men and women; the attempt to enlist in an enemy army; and the support of members of the enemy army (parachutists, etc.)
7. Illegal possession of arms.
Section II of the Secret Decree declares that the culprits are not to be tried in occupied territories unless it is probable that a death sentence will be pronounced and it must be possible to carry out the execution of the death sentence at once; in general, a week after the capture of the culprit. It further states:
"Special political scruples against the immediate execution of the death sentence should not exist."
Section III of the First Directive declares that the judge in agreement with the Intelligence Office of the Wehrmacht decides whether or not the condition for a trial in occupied territories exists.
Section IV declares that the culprits who are to be taken to Germany will be subjected there to military court proceedings if the OKW or the superior commanding officer declares decisions according to Section III (above) that special military reasons require the military proceedings. In such instances the culprits are to be designated "prisoners of the Wehrmacht" to the Secret Field Police. If such a declaration is not made, the order that the culprit is to be taken to Germany will be treated as transferring according to the intentions of the decree.
Section V declares that "the judicial proceedings in Germany will be carried out under strictest exclusion of the public because of the danger for the State's security. Foreign witnesses may be questioned at the main proceedings only with the permission of the Wehrmacht."
Section VI of the First Decree declares that former decrees concerning the situation in Norway and concerning Communists and rebel movements in the occupied territories are superseded by these directives and executive order.
Section VII of the Secret Decree declares that the directives will become effective three weeks after they are signed and that the directives will be applied in all occupied territories with the exception of Denmark until further notice. The orders issued for the newly occupied Eastern territories are not affected by these directives. The order was expressly made effective in Norway, Holland, France, Bohemia, Moravia, and the Ukraine occupied areas. In actual operation, Belgium and all other of the Western occupied countries came within the decree.
The Hitler decree was sent to the Reich Minister of Justice on 12 December 1941 endorsed for the attention of defendant Schlegelberger. On the same day (12 December 1941) Keitel informed other ministries of Hitler's decree, directing that all such information proceedings were to be conducted in absolute secrecy.
On 16 December 1941, officials of the Ministry of Justice (Schaeffer and Grau, associates of defendant Mettgenberg in his Department III) drafted a proposed order for the execution of the Hitler NN decree by the Ministry of Justice, the courts, and the Reich prosecution. This was forwarded to General Lehmann, head of the OKW legal department for his approval.
Other correspondence took place between the Reich Ministry of Justice and the OKW relating to the final draft of the Night and Fog order.
This correspondence occurred between 16 December and 25 December 1941. It related to the reservation of the competency of the Ministry of Justice or Under-Secretary of State Freisler in the execution of the Hitler decree. These reservations were incorporated in a circular decree dated 6 February 1942, supplementing NN regulations as follows:
"Circular Decree:
"On the execution of the executive decree of 6 February 1942, relating to the directives issued by the Fuehrer and Supreme Commander of the Wehrmacht for the prosecution of criminal acts against the Reich or the occupation power in the occupied territories.
"For the further execution of the directives mentioned before I ordain:
"1. Competent for the handling of the cases transferred to ordinary courts including their eventual re-trial are: the Special Court and the Chief Prosecutor in Cologne as far as they originate from the occupied Belgian and Netherland territories, the Special Court and the Chief Prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the Chief Prosecutor in Kiel; for the rest, the Special Court and the Attorney General at the County Court, Berlin. In special cases I reserve for myself the decision of competence for each individual case.
"2. The Chief Prosecutor will inform me of the indictment, the intended plea, and the sentence, as well as of his intention to refrain from any accusation in a specific case.
"3. The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the Prosecutor. The agreement may be withdrawn.
"4. Warrants of arrests will be suspended only with my consent. If such is intended, the Prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to its being used by the Tribunal.
5". Inquiries concerning the accused person or the pending trial from other sources than those Wehrmacht and police agencies dealing with the case will be answered by merely stating that..... is arrested and the state of the trial does not allow further informations."
This supplementary decree was signed for Dr. Freisler by Chief Secretary of the Ministerial Office.
The letter of Under-Secretary of State Freisler to Minister of Justice Thierack, dated 14 October 1942, shows that in accordance with his promise to Thierack he had conducted preliminary proceedings through Reich departmental officials and with Lehmann, Chief of the Legal Division of the OKW, concerning the matter of the Ministry of Justice taking over the Night and Fog proceedings under the Hitler decree. Such top secret negotiations had lasted for several months. The last conference was held on 7 February 1942. On that day the final decree was drafted, approved, and was "the Decree of 7 February 1942, signed by Schlegelberger" as Acting Minister of Justice. Defendant Schlegelberger testified that he signed the decree. He thereby brought about the enforcement by the Ministry of Justice, the courts, and the prosecutors of a systematic rule of violence, brutality, outrage, and terror against the civilian populations of territories overrun by the Nazi armed forces resulting in the ill-treatment, death, or imprisonment of thousands of civilians of occupied territories.
The taking over of the enforcement of the Hitler NN decree was based solely upon the aforementioned secret agreement, plan, or scheme. All of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out knew that its enforcement violated international law of war. They also knew, which was evident from the language of the decree, that it was a hard, cruel, and inhuman plan of scheme and was intended to serve as a terroristic measure in aid of the military operations and the waging of war by the Nazi regime.
We will at this point let some of those who originated the plan or scheme or who took part in its execution relate its history and its illegal, cruel, and inhumane purposes.
Rudolf Lehmann, who was Chief of the Legal Division of the OKW, testified concerning the Nacht and Nebel decree of 7 December 1941. He stated that even before the beginning of the wan and more particularly after the beginning of the war, there was a controversy between Hitler and his generals on the one part and between Hitler and the Gestapo on the other part as to the part which should be performed by the Military Department of Justice. He testified:
"Hitler held 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."
He further testified that Hitler had:
"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."
Lehmann further testified that Keitel had passed on to him a directive which he had received from Hitler in October of 1941. This directive was quite long in which Hitler referred to the resistance movement in France, which he stated was a tremendous danger for the German troops and that new means would have to be found to combat this danger. There was therefore a discussion of the resistance movement. The army was opposed to the plan because it involved them in violations of international law of war. It was then suggested in the discussion that the Gestapo should be given that power. But even in this Hitler's ideas were overruled. It was at this point that he, Lehmann, suggested that the matters:
"should continue to be dealt with by judges, and since the aversion of Hitler against the armed forces' justice was known, it could he assumed that he would still prefer civilian courts than us."
Lehmann further testified that Hitler "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."
At this joint Lehmann discussed the matter with Under-Secretary Freisler because Freisler dealt with the criminal cases in the Ministry.
He was told by Freisler that the matter would have to be taken up with Schlegelberger. Lehmann further testified:
"I discussed with him the proposition that the cases which the military courts in France would not keep should be taken over and dealt with by and tried by the civilian justice administration. I can only say 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. * * * Freisler told me that he had to ask the man who was in charge of the Ministry, the Acting Minister * * * for permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases. * * * As I was informed about the routine in the Ministry, 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."
Lehmann further testified:
"I have stated that * * * the plan had to be rejected for manifold reasons--for reasons of international law, for reasons of justice, and policy of justice, and primarily, because I said the administration of justice should never do anything secretly. I put to him: What kind of suspicion would have to arise against our Administration of Justice if these people, inhabitants of other occupied 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 consequences 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 Divisions III and IV of the Reich Ministry of Justice. In Division 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:
"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 Counsellor in Mettgenberg's subdivision and acted as head of the Night and Fog Section. 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 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:
"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 prosecutors 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 defendants Schlegelberger and 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 pending 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.