Reference must be made to the existing regulations on secrecy. It must be pointed out especially that the graves of NN prisoners must not be marked with the names of the deceased.
"The bodies must not be used for teaching or research purposes.
"Legacies of NN prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served."
Later, in some instances the right to spiritual assistance was denied and a later directive authorized the turning over of bodies of NN persons to institute for experimental purposes.
A letter dated 3 June 1943, from the Reich Ministry of Justice to the People's Court Justices and the Chief Public Prosecutors, initialed by defendant Mettgenberg, deals with the subject of trials under the NN decree of foreigners who were nationals of other countries than those occupied by the Nazi forces. The difficulty obviously involved a violation of international law as to such nationals of other countries. In particular, the difficulty arose as to the regulation for the maintenance of secrecy of such trials and whether the secrecy with regard to NN cases should apply. The reply was that they were to be tried in accordance with the circular decrees of 6 February 1942 and 14 October 1942, and the regulations issued for the amendment of these circular decrees to be entitled "NN Prisoners Taken By Mistake". This decree provides that if the trial of such foreigners could not be carried out separately from the trial of the nationals of the occupied countries for reasons pertaining to the presentation of evidence, then the trials were to be strictly in accordance with the provisions of NN procedure; otherwise said foreign nationals would obtain knowledge of the course of the trial against their accomplices.
A note signed by the defendant von Ammon, dated 2 October 1947, states that NN prisoners were often ignorant of charges against them until a few moments before the trial. He further states that Chief Reich Public Prosecutor Lautz asked him whether there were any objections to the translation of the indictment into the language of the defendant, which would then be handed to him.
Defendant von Ammon replied that there would be no objection to the proceeding and states:
"It proved rather awkward that defendants learned the details of their charges only during trial. Also, the interpretation by defense counsel is not always sufficient because their French mostly is not good enough and defendants were brought to the place of trial only shortly before it was held."
The same difficulty arose as to Czech defendants.
A report on a conference with respect to new procedure in treatment of Night and Fog cases originating in The Netherlands, signed "von Ammon" and "Mettgenberg, 9 November 1943", addressed to Ministerial Director Engert and others, states that while returning from The Hague to Berlin the undersigned representative of the Reich Ministry of Justice held on 5 November as scheduled, a conference with the head officials of the Court of Appeals at Hamm and that defendant Joel thought the housing of NN prisoners, also such of Dutch nationality at Papenburg, would be possible and unobjectionable. This was later carried out.
A Secret letter dated 29 December 1943, addressed to defendant von Ammon from the Presiding Judge and Chief Prosecutor of Hamm Court of Appeals notified von Ammon of an imminent conference concerning transfer of the NN trials to the NN Special Courts.
A letter from Breslau dated 10 January 1944, signed by Dr. Sturm, asks that Ministerial Director defendant von Ammon be available for a meeting at Breslau between the 15th and 31st of January 1944 to discuss routine proceedings for handling NN cases.
A Letter addressed to the German Commander of the French Occupied Zone states that effective from 15 November 1943 all cases of crimes committed against the Reich or the occupation forces in occupied French zones hitherto submitted to the ordinary legal authorities were to be taken over by the Special Court and Attorney General in Breslau.
The defendant von Ammon attended conferences with Public Prosecutors in Breslau and Kattowice (Poland) on 18 and 19 February 1944, concerning housing of NN prisoners and possibility of transferring NN cases from The Netherlands, Belgium, and Northern France to special courts in Poland for trial; von Ammon reported the results of these conferences in detail to, among others, the defendant Klemm (Under-Secretary) and personally wrote on his report that he had secured appropriate Gauleiters' concurrence to the proposed transfer. Shortly thereafter the Ministry of Justice issued a decree endorsed to the defendant Mettgenberg for signature, and submitted twice to von Ammon for information and cosignature, whereby these Dutch, Belgian, and Northern French NN cases were to be transferred to Silesia for trial. In response to this decree, von Ammon was personally notified that the defendant Joel (then General Public Prosecutor at Hamm) feared objections from the Wehrmacht because of the longer transportation involved in the transfer.
A directive by the Reich Minister of Justice with respect to treatment of NN prisoners, dated Berlin, 21 January 1944, initialed by defendant von Ammon, to the President of the People's Court, to the Reichsfuehrer SS, Reich Prosecutor of the People's Court (defendant Lautz), to the Chief Public Prosecutor at Hamm (defendant Joel), and others, states that when an NN prisoner had been acquitted by a general court if it appears that the accused is innocent or if his guilt has not been established sufficiently, then he has to be handed over to the secret police. The directive further states:
"If in the main trial of an NN proceeding it appears that the accused is innocent or if his guilt has not been sufficiently established, then he is to be handed over to the Secret State Police; the Public Prosecutor informs the Secret State Police about his opinion whether the accused can be released and return into the occupied territories, or whether he is to be kept under detention. The secret State Police decide which further actions are to be taken.
"Accused who were acquitted or whose proceedings were closed in the main trial, or who served a sentence during the war, are to be handed over to the Secret State Police for detention for the duration of the war."
A letter dated 21 January 1944, Berlin, to the OKW and the Judge Advocate General Department, dispatched 22 January 1944 (copy to Ministerial Director Mattgenberg with request for approval) complains of lack of coordination in NN cases between military courts and justice officials. This complaint relates primarily to transfer of NN cases.
In answer to the objections to the transfer of NN cases arising in France from Cologne to Breslau, dated 18 January 1944, the defendants Mettgenberg and von Ammon insisted that the transfer is necessary and directed its accomplishment. Three days later a letter endorsed by Mettgenberg informed Himmler that this transfer of NN cases had taken place.
On 24 April 1944 von Ammon reported in detail on a trip he made to Paris previously referred to. This official visit served particularly to obtain information of the security situation in France and to determine whether the NN procedures of the Breslau Special Court were approved by the Army. This meeting occurred in the office of the Chief Justice of the German Military Governor of Paris, General von Stulpnagel. Von Ammon submitted this report both to Klemm and Mettgenberg who initialed it.
A letter from Hamm (Westphalia), 26 January 1944, to the Reich Minister Thierack, signed by defendant Joel, suggests the speeding up of proceedings to avoid delays in NN cases, and suggests that:
"The Chief of Public Prosecutor submits record to the Chief Reich Prosecutor only if, according to previous experience or according to directives laid down by the Chief Reich Prosecutor, it is to be expected that he will take over, or partly take over the case.
"As a rule, even now when the draft of the indictment is submitted for approval to the Reich Minister of Justice, the records are not enclosed. The decision rests with me, to whom the documents are brought by courier."
A note signed by Dr. Reicholt, 20 April 1944, to defendant von Ammon, expresses the same difficulty experienced by defendant Joel and asks that Chief Public Prosecutor at the People's Court decide quickly which of the accused persons he wanted to keep so that they may be transferred as quickly as possible.
The foregoing requests for speed in handling NN cases were due to disturbances caused by air raids.
The Reich Minister of Justice replied, 26 April 1944, that in the main "the delay in the proceedings is unavoidable".
Defendant von Ammon reported on a conference with German occupying forces of Belgium and Northern France, held in Oppeln on 29 and 30 June 1944. Von Ammon stated that since the Allied invasion had not caused undue tension as yet, it was unnecessary at that time to make penalties in NN cases more severe. This report was initialed by defendant Mettgenberg.
Disposition of NN Cases A statistical survey of NN cases as of 1 November 1943 made to Ministerial Director Dr. Vollmer, Berlin, 22 November 1943, shows cases and sentences passed on NN prisoners as follows:
1. Turned over by the Wehrmacht authorities to Senior Public Prosecutors at Kiel, 12 cases with 442 defendants; at Essen, 474 cases with 2,613 defendants; at Cologne, 1,169 cases with 2,185 defendants.
2. Charges filed by Senior Public Prosecutors as follows: At Kiel, nine cases with 175 defendants; at Essen, 254 cases with 860 defendants; at Cologne, 173 cases with 257 defendants; by Chief Public Prosecutor at the People's Court (Lautz), 111 cases with 494 defendants.
3. Sentences passed by Special Courts at Kiel, eight on 168 defendants; at Essen, 221 cases with 475 defendants; at Cologne, 128 cases with 183 defendants; at People's Court, 84 cases with 304 defendants.
The defendant von Ammon testified that about one-half of all defendants tried by the People's Court were given the death penalty and were executed. The foregoing document shows that defendant Lautz was Chief Public Prosecutor at the People's Court at the time the 304 sentences were pronounced in the Night and Fog cases.
A similar survey, five months later (30 April 1944), shows that a total of 8,639 NN defendants transferred to the various Special Courts and the People's Court in Germany, 3,624 were indicted and 1,793 were sentenced. Defendant von Ammon initialed this survey.
The foregoing statistical reports are obviously incomplete. They do not show the number of NN cases tried at Hamm, Breslau, Kattowice, and other places. The foregoing documents show that at these places great difficulty was experienced because of lack of prisons for the large number of NN prisoners who were sent to these areas. Nor do they show the number of NN prisoners committed to concentration camps without trial. They do not show the number of residue NN prisoners who were at the end of the control of NN matters by the Minister of Justice committed to concentration camps and never heard from thereafter.
THE PRESIDENT: The electrical transcription is temporarily out of commission. We will recess for ten minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
JUDGE BLAIR: Judge Blair continuing reading:
Use of NN Prisoners in Armament Industry In file of reports for the years 1943 and 1944 of NN cases still pending in the Ministry of Justice, the Attorney General at Kattowice (Poland) stated to the Ministry of Justice the following:
"NN -- (Nacht und Nebel) prisoners held within the jurisdiction of the Court of Appeal of Kattowice are already employed to a large extent in the armament industry, regardless of whether they are being held for questioning or punishment. They are quartered there in special camps at or near the place of the respective industrial enterprise. In this way it is intended, if possible, to place all NN prisoners at the disposal of the armament industry.
"It has been disclosed that the NN prisoners already employed in the armament industry, as for instance the 400-odd prisoners working in Laband, have done a very good job and excel in particular as skilled workers. The armament industry therefore, wants to retain the employed NN prisoners also after their acquittal or after they have served their sentence.
"I ask for a decision on whether and, if soo how that demand can be complied with. Considerable doubts arise from the fact that there is no legal right to confine them further and that the judicial authorities would thus take preventive police measures. There is the question, however, whether the situation of the Reich does not justify even such extraordinary measures."
This request was handled by defendant von Ammon, who endorsed it as follows:
"Submitted ******first to Department V (headed by defendant Engert) with the request for an opinion. If you have no objections I intend to contact the RSHA in accordance with the report of the Attorney General at Kattowice."
CLEMENCY IN THE NN CASES As Under-Secretary, defendant Klemm was required to pass upon clemency matters either while acting with or in the absence of the Minister of Justice.
He admits passing upon clemency pleas in NN death cases and refusing all of them. Fourteen documents concerning NN matters passed through defendant Klemm after he became Under-Secretary of State. He knew of the transfer of NN cases from Essen to Silesia and knew of "routine" NN procedures which passed through his department.
As Under-Secretary, defendant Rothenberger also passed upon clemency matters in NN cases along with other clemency pleas. Defendant Mettgenberg testified that the Minister of Justice instructed him with special clemency proceedings in 1944 because of the escape of prisoners under death sentence during air raids.
He states:
"He called up Under-State Secretary Rothenberger by telephone and ordered him to receive reports concerning persons under death sentence in the ordinary manner, and to make the decisions concerning their execution. This was done. Individual cases were presented in reports lasting hours, to Under-State Secretary Rothenberger who then made the decisions."
In the fall of 1944 Hitler ordered the discontinuance of the NN proceedings by the justice and the OKW courts and transferred the entire problem to the Gestapo the NN prisoners being handed over to the Gestapo at the same time. In later conferences attended by defendants von Ammon, the Ministry of Justice agreed to and later actually carried out the transfer by committing them from the Ministry's prisons to the Gestapo's custody. Defendant Lautz was ordered to suspend People's Court proceedings against NN prisoners and transfer them to the Gestapo. The witness Hocker stated that those NN prisoners of the Berlin District, of which he had knowledge, were sent to Oranienburg.
The final order of the Ministry of Justice committing all NN prisoners on hand to the Gestapo and the concentration camps was one of extreme cruelty.
The foregoing documents and the undisputed facts show that Hitler and the high-ranking officials of the armed forces and of the Nazi Party, including several Reich Ministers of Justice and other high officials in the Ministry of Justice, judges of the Nazi regime's courts, the public prosecutors at such courts, either agreed upon, consented to, took a consenting part in, ordered or abetted, were connected with the Hitler NN plan, scheme, or enterprise involving the commission of war crimes and crimes against humanity during the waging of the recent war against the Allied nations and other neighboring nations of Germany.
The foregoing documents and facts show without dispute that several of the defendants participated to one degree or another either as a principal, or ordered or abetted, took a consenting part in, or were connected with the execution or carrying out of the Hitler NN scheme or plan. The defendants so participating will be later discussed in the summation of the evidence.
The Night and Fog decree originated with Hitler as a plan or scheme to combat alleged resistance movements against the German occupation forces but it was early extended by the Ministry of Justice to include offenses against the German Reich. Often the offenses had nothing to do with the security of the armed forces in the occupied territories. May of them occurred after military operations had ceased and in areas where there were no military operations. The first secret decree of the Ministry of Justice for the execution or carrying out of the NN decree provided for:
"(1) the prosecution of criminal offenses against the Reich; or "(2) the occupation troops in occupied areas."
THE PRESIDENT: The Tribunal will recess until 8 o'clock this evening when we will reconvene and continue with the reading of the Opinion.
EVENING SESSION (The Tribunal reconvened at 2000 hours)
THE MARSHAL: The Tribunal is again in session.
BY JUDGE BLAIR: Judge Blair continuing to read: "It declared that the directive will be as a rule applicable to the seven above listed general types of offenses or crimes, including "Communist activity". The term "Communist activity" is general and political in nature. The evidence shows that political prisoners in occupied territories were tried and sentenced to death under the NN proceedings. Pertinent here with respect to the so-called resistance activities is the finding of the IMT that "The local units of the Security Police and SD continued their work in the occupied territories after they had ceased to be an area of operations.
The Security Police and SD engaged in widespread arrests of the civilian population of these occupied countries, imprisoned many of them under inhumane conditions, subjected them to brutal third degree methods, and sent many of them to concentration camps. Local units of the Security Police and SD were also involved in the shooting of hostages, the imprisonment of relatives, the execution of persons charged as terrorists, and the enforcement of the 'Nacht and Nebel' decrees under which persons charged with a type of offense believed to endanger the security of the occupying forces were either executed within a week or secretly removed to Germany without being permitted to communicate with their family and friends."
Defendant Schlegelberger explained the fundamental purpose of the NN decree to be a deterrent "through cutting off of the prisoners from every contact with the outside world". He further explained "That the NN prisoners were expected, and were, to be tried materially according to the same regulations which would have been applied to then by the courts martial in the occupied territories" and that accordingly, "the rules of procedure had been curtailed to the utmost extent."
The enforcement of the directives under the Hitler NN plan or scheme became a means of instrumentality by which the most complete control and coercion of a lot of the people of occupied territories were effected and under which thousands of the civilian population of occupied areas were imprisoned, terrorized, and murdered. The enforcement and administration of the NN directives resulted in the commission of war crimes and crimes against humanity in violation of the international law of war and internation common law relating to recognized human rights, and of Article II, 1b and c of Control Council Law No. 10.
During the war, in addition to deporting millions of inhabitants of occupied territories for slave labor and other purposes, Hitler's Night and Fog program was instituted for the deportation to Germany of many thousands of inhabitants of occupied territories for the purpose of making them disappear without trace and so that their subsequent fate remain secret. This practice created an atmosphere of constant fear and anxiety amongst their relatives, friends, and the population of the occupied territories.
The report of the Paris Conference of 1919, above referred to, listed 32 crimes as constituting "the most striking list of crimes as has ever been drawn up, to the eternal shame of those who committed them." This list of crimes was considered and recognized by the Versailles Treaty and was later recognized as international law in the manner hereinabove indicated. Among the crimes so listed was the "deportation of civilians" from enemy-occupied territories.
Control Council Law No. 10, in illustrating acts constituting violations of laws or customs of war, recognizes as war crimes the "deportation to slave labor or for any other purpose of civilian population from occupied territory". (Article II, 1b). Law 10, (1c) also recognizes as crimes against humanity the "enslavement, deportation, imprisonment of any civilian population".
The IMT held that the deportation of inhabitants from occupied territories for the purpose of "efficient and enduring intimidation" constituted a violation of the laws and customs of war. The deportation for the purpose of "efficient and enduring intimidation" is likewise condemned by Control Council Law No. 10, under the provision inhibiting "deportation*** for any other purpose, of civilian population from occupied territory".
Also among the list of 32 crimes contained in the Conference Report of 1919 are "murder and Massacre, and systematic terrorism". Control Council Law No. 10 makes deportation of civilian population "for any purpose" a crime recognized as coming within the jurisdiction of the law. The admitted purpose of the Night and Fog decree was to provide an "efficient and enduring intimidation" of the population of occupied territories. The IMT held that the Hitler NN decree was "a systematic rule of violence, brutality, and terror", and was therefore in violation of the laws of war as a terroristic measure.
The evidence shows that many of the Night and Fog prisoners who were deported to Germany were not charged with serious offenses and were given comparatively light sentences or acquitted. This shows that they were not a menace to the occupying forces and were not dangerous in the eyes of the German justices who tried them. But they were kept secretly and not permitted to communicate in any manner with their friends and relative. This is inhumane treatment. It was meted out not only to the prisoners themselves but to their friends and relatives back home who were in constant distress of mind as to their whereabouts and fate. The families were deprived of the support of the husband, thus causing suffering and hunger. The purpose of the spiriting way of persons under the Night and Fog decree was to deliberately create constant fear and anxiety amongst the families, friends, and relatives as to the fate of the deportees. Thus, cruel punishment was meted out to the families and friends without any charge or claim that they actually did anything in violation of any occupation rule of the army or of any crime against the Reich.
It is clear that mental cruelty may be inflicted as well as physical cruelty. Such was the express purpose of the NN decree, and thousands of innocent persons were so penalized by its enforcement.
The foregoing documents show without dispute that the NN victim was held incommunicado and the rest of the population only knew that a relative or citizen had disappeared in the night and fog; hence, the name for the decree. If relatives or friends inquired, they were given no information. If diplomats or lawyers inquired concerning the fate of an NN prisoner, they were told that the state of the record did not admit of any further inquiry or information. The population, relatives, or friends were not informed for what character of offense the victim had been arrested. Thus they had no guide or standard by which to avoid committing the same offense as the unfortunate victims had committed, which necessarily created in their minds terror and dread that a like fate awaited them.
Throughout the whole Night and Fog program ran this clement of utter secrecy. This secrecy of the proceedings was a particularly obnoxious form of terroristic measure and was without parallel in the annals of history.
It could have been promulgated only by the cruel Nazi regime which sought to control and terrorize the civilian population of the countries overrun by its aggressive war. There was no proof that the deportation of the civilian population from the occupied territories was necessary to protect the security of the occupant forces. The NN plan or scheme fit perfectly into the larger plan or scheme of transportation of millions of persons from occupied territories to Germany.
Control Council Law No. 10 makes deportation of the civilian population for any purpose an offense. The international law of war has for a long period of time protected the civilian population of any territory or country occupied by an enemy war force. This law finds its source in the unwritten international law as established by the customs and usages of the civilized nations of the world. Under international law the inhabitants of an occupied area or territory are entitled to certain rights which must be respected by the invader occupant.
This law of military occupation has been in existence for a long period of time. It was officially interpreted and applied nearly a half century ago by the President of the United States of America during the war with Spain in 1898. By General Order No. 101, 18 July 1898 (Foreign relations of the United States, page 783), the President declared that the inhabitants of the occupied territory "are entitled to the security of their person and property and in all their private rights and religions." He further declared that it was the duty of the Commander of the Army of Occupation "to protect them in their homes, in their employment, and in their personal and religious rights", and that "the municipal laws of the conquered territories, such as affect private rights of persons and property and provide for punishment of crime are continued in force" and "are to be administered by the ordinary tribunals substantially as they were before the occupation". The President referred to the fact that these humane standards of warfare had previously been established by the laws and customs of war, which were later codified by the Hague Conventions of 1899 and 1907, and which constituted the effort of the civilized participating nations to diminish the evils of war by the limitation of the power of the invading occupant over the people and by placing the inhabitants of the occupied area or territory "under the protection and rules of principles of law of nations as they result from usage established among the civilized peoples from the laws of humanity and the dictates of public conscience."
A similar order was issued during the first war with Germany by the President of the United States of America when the American Expeditionary Forces entered the Rhineland in November 1918. (General Order 218, 28 November 1918). At the conclusion of this occupancy, the German Government expressed its appreciation of the conduct of the American occupying forces.
But Germany soon forgot these humane standards of warfare, as is shown by the undisputed evidence. The general policy of the Nazi regime was to terrorize and in some instances to exterminate the civilian populations of occupied territories.
Pertinent here is the finding of the IMT that:
"In an order issued by the Defendant Keitel on 23 July 1941, and drafted by the defendant Jodl, it was stated that:
'In view of the vast size of the occupied areas in the East, the forces available for establishing security in these areas will be sufficient only if all resistance is punished not by legal prosecution of the guilty, but by the spreading of such terror by the armed forces as is alone appropriate to eradicate every inclination to resist among the population* * *. Commanders must find the means of keeping order by applying suitable Draconian measures,'" Both Keitel and Jodl were sentenced to death by the IMT and later executed.
It was the same Keitel who later issued, over his own signature the Hitler NN decree which provided that:
"An efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany."
Beyond dispute the foregoing decrees were inspired by the same thought and purpose and represent the general policy of the Nazi regime in the prosecution of its aggressive war. This general policy was to terrorize, torture, and in some occupied areas to exterminate the civilian population. The undisputed evidence in this case shows that Germany violated during the recent war every principle of the law of military occupation. Not only under NN proceedings but in all occupations she immediately, upon occupation of invaded areas and territories, set aside the laws and courts of the occupied territories. She abolished the courts of the occupied lands and set up courts manned by members of the Nazi totalitarian regime and system. These laws of occupation were cruel and extreme beyond belief, and were enforced by the Nazi courts in a cruel and ruthless manner against the inhabitants of the occupied territories, resulting in grave outrages against humanity, against human rights and morality and religion, and against international law, and against the law as declared by Control Council Law No. 10, by authority of which this Court exercises its jurisdiction in the instant case. The evidence adduced herein provides undeniable and positive proof of the ill-treatment of the subjugated people by the Nazi Ministry of Justice and prosecutors to such an extent that jurists as well as civilians of civilized nations who respect human rights and human personality and dignity, can hardly believe that the Nazi judicial system could possibly have been so cruel and ruthless in their treatment of the population of occupied areas and territories.
The foregoing procedure under the NN decree was clearly in violation of the following provisions sanctioned by the Hague Regulations:
"Article 5.--Prisoners of war *** cannot be confined except as an indispensable measure of safety, and only while the circumstances which necessitate the measure continue to exist.
"Article 23 (h).--* * *it is expressly forbidden to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the hostile party.
"Article 43.--The authority of the legitimate power having, in fact, passed into the hands of the occupant, the latter shall take all the measures in his power to restore and insure, as far as possible, public order and safety while respecting, unless absolutely prevented, the law enforced in the country.
"Article 46.--Family honor and rights, the lives of persons and private property as well as religious convictions and practice must be respected. Private property cannot be confiscated."
Both the international rules of war and Control Council Law No. 10 inhibit the torture of civilians by the occupying forces. Under the Night and Fog decree civilians were secretly transported to concentration camps and were imprisoned under the most inhumane conditions as was shown by the above statements from captured documents. They were starved and ill treated while in concentration camps and prisons. Thus the Night and Fog decree violated these express inhibitions of international law of war as well as the express provisions of Control Council Law No. 10.
Such imprisonment and ill treatment was also in violation of the rule prescribed by the Conference of Paris of 1919 which prohibits the "internment of civilians under inhumane conditions". The Night and Fog decree was in violation of the international law as recognized by the Paris Conference of 1919 in that the NN prisoners were deported to Germany and forced to labor in the munitions plants of the enemy power.
The foregoing documents establish beyond dispute that they were so employed in munition plants with the sanction and approval of the Reich Ministry of Justice under the approval of the defendant von Ammon.
The extent of activity and the criminality of the defendants who participated in the execution and carrying out of the Night and Fog decree will be discussed under the summation of the evi dence relating to each such defendant.
Each defendant has pleaded in effect as a defense the act of State as well as superior orders in justification or mitigation of any crime he may have committed in the execution of the Night and Fog decree. The basis for individual liability for crimes committed and the law relating thereto was clearly and ably declared by the IMT Judgment which reads as follows:
"It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act cf State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. In the recent case of Ex Parte Quirin (1942 317 U. S. 1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:
'From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals.'
"He went on to give a list of cases tried by the Courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."