I do not know what rank he had, but he was not a high leader. This SA leader saw that these two prisoners of war were brought over, and without further ado he pulled his pistol and approached the two prisoners of war; he shot one of them to death, and right after that shot the other one.
This case was brought to the attention of the Prosecuting authorities and by the General Public Prosecutor of Duesseldorf was reported to the Reich Ministry of Justice and since the area Duesseldorf belonged to my subdivision, it was also called to my attention. I considered the facts so outrageous that I got in touch with the General Public Prosecutor Hagemann in Duesseldorf by telephone in order to assure myself that this matter would be followed up with all emphasis. To my joy General Public Prosecutor Hagemann had a full understanding for my conception that such a cowardly act was not excuseable. General Public Prosecutor Hagemann, who immediately suspected that difficulties would be put in the way of the Prosecution decided to have one of his Duesseldorf referants sent to Kleve because he assumed already at that time that the local public prosecuting authorities of Kleve would not be able to succeed. In fact, the referent from Duesseldorf went to the place of action where he encountered the greatest difficulty in the prosecution. The following interfered in the Prosecution: The Local Kreisleiter and also the Higher offices of the SA, both of these authorities stated that they had the fullest understanding for the action of the offender. The result was that the police was not at the disposal of the Public Prosecutor as is the case usually. The result was further that the offender was transferred from Kleve to quite a different district, and contrary to all efforts it was not possible, as long as I could follow up the case to put the offender before a Court. The events of war buried this affair.
Q. Will you now tell the Tribunal from your memory approximately when this event occurred?
A. It must have been before Minister Thierack assumed office. This is the only memory I have of the time when it might have occured because I know -
Q. Excuse me if I interrupt you. You are speaking about Thierack assuming office?
A. Thierack, yes.
Q. That would have been before August 1942?
A. Yes, August , 1942. Thus it must have been before August, 1942, because I do know that the referent and I informed Minister Thierack about this case as a special incident which we would have prosecuted especially.
DR. SCHILF: May it please the Tribunal I have no further questions on behalf of the defendant Klemm.
DR. KUBOSCHOK: I have one question as defense counsel for the defendant, Schlegelberger.
Q. The defendant, Lautz, testified on the witness stand that all indictments filed before the People's Court were submitted to the Ministry of Justice. How were these indictments handled in the Ministry of Justice?
A. In the Ministry of Justice I was not competent for the People's Court, but, of course, I know the official channels in the Ministry. Therefore, I know that the indictment and sentences which were submitted to the Ministry by the Chief Reich Public Prosecutor to the People's Court went via the official channel in the Ministry to the Referent. If the Referent had to discuss any special factor in regard to these things he received he had to report this to the division chief and the division chief then decided what had to be done in this case. Those documents did not occupy any special position.
Q. Thank you.
DR. ORTH: (For the Defendant, Altstoetter):
Q. Witness, did you ever officially or unofficially speak about NN cases with the defendant Altstoetter?
A. No, I do not recall any conversation with Altstoetter about NN cases, neither during the course of my official duties nor outside of it.
Q. Did you ever inform Altstoetter about NN cases officially in writing?
A. I writing I did not give Altstoetter any information either.
Q. During your examination, witness, you repeatedly speak about civil courts or civil administration of Justice. By these terms do you mean those civil courts and civil legal institutions which deal with civil legal cases?
A. May I make an explanation? I used the terms "Civil administration of justice " and "civil courts " in order to point out the difference in the military administration of justice and the military courts, the courts martial. Our technical expression is a different one. We speak of general courts, courts martial. If I was speaking of civil courts and civil administration of Justice I was referring to those criminal courts of the general administration of justice which took over the NN cases from the military courts martial. Those courts which had to deal with civilian cases are not those understood by the term civil counts in that connection.
DR. ORTH: I have no further questions.
THE PRESIDENT: Does counsel for any other defendant desire to conduct direct examination of this witness? It appears that there is no other. You may cross examine.
CROSS EXAMINATION BY MR. WOOLEYHAN:
Q. Dr. Mettgenberg, you joined the National Socialist Lawyers League on the 14th September, 1933, didn't you?
A. Whether the date is correct, I do not know, but the fact is true in any case.
Q. Is the fact of 1933 true in your memory?
A. It is possible, yes.
Q. Was Hans Frank head of the National Socialist Lawyers League at the time?
A. Yes.
Q. Tell me, Dr. Mettgenberg why was it that not being a Nazi party member you joined the affiliated Nazi party organization of the National Socialist Lawyers League three years before you joined the Association of Civil Servants, which was also a Reich Association, why was that?
A. I believe that the latter part you made an error.
Q. One moment please, Dr. Mettgenberg.
A. Please, as far at least as I know the joining of the National Socialist Lawyers' League automatically also resulted in membership in the German Civil Servants Association, so that, therefore, if in September 1933, which presumably is correct, I joined the National Socialist Lawyers' League I automatically at the same time became a member of the German Civil Servants Association.
Q. Well, Dr. Mettenberg, if that is true, why it is on your official personnel file from the ministry of Justice, a copy of which I now hand you, the date of your membership in the National Socialist Lawyers' league is as we said, September, 1933, and the date of your entry into the Civil Servants Association of the Reich is 1936. You will find that on the first page of your personnel file.
Q. The explanation for this may be that the agreements made between the National Socialist Lawyers' League and the Civil Servants' Association were not concluded as early as 1933, but only later on .
In any case it was like this: That membership in the National Socialist Lawyers' League automatically without any special application, therefore, brought about the membership in the German Civil Servants Association.
Q.- But so far as the personnel file which you hold in your hand is concerned, on the face of it and as it appeared in that same form in the official personnel files of the Ministry of Justice you joined the National Socialist Lawyers' League three years before the Civil Servants League, isn't that correct on the face of it?
A.- That the time of the entry into the NS Lawyers' League and the date -- from the date from which on I was carried as a member of the Civil Servants League are different dates, that cannot be denied.
Q.- And the NS National Socialist Lawyers' League is an affiliated Nazi Party organization, and the Civil Servants' League is not, is that correct?
A.- I think that is impossible. They were both of the same nature. During the time of the National Socialists there were no organizations or associations of that nature who were not affiliated with the Nazis.
Q.- With the Party. Now you also were a member of the National Socialist Leaders Corps since 1937. What sort of an organization was that?
A.- May I ask what was supposed to be the name of this organization?
Q.- You will find it under the notation 8-b in the first page of your personnel file.
A.- Oh, I can explain that. That is an error. This is not the National Socialist Leader Corps, Fuehrer Corps, but the thing was that I was a supporting member of the NS Flieger Corps, that is, the Flier Corps.
Q.- What did you do there? You are a flier, are you?
A.- I paid one mark a month.
Q.- What for?
A.- In order to support flying in Germany.
Q.- That was in the period 1937-1939 before the war?
A.- Yes, I believe it extended into the war also.
Q.- Now on page 4 of the original there, under Item 24, there is the heading "Support and emergency relief." And your personnel file credits you with contributions of 220 RM in 1927 and 259 RM in 1934.
To what causes did you contribute that money?
A.- May I ask you to repeat where this is written?
Q.- Item No. 24 which is page 6 of the English, page 4 of the original.
A.- Under Item 24 there is a space entitled "Support and Emergency Relief" Under this there is a notation that on 19 April, 1927, 220; and on the 15th of September 1934, 250, apparently Reichmarks, had been handed out. Mr. Prosecutor, these amounts I did not pay, but I received them.
Q.- You say you received them?
A.- That is what I said.
Q.- Was the Party supporting you after 1933?
A.- The Reich supported me.
Q.- After 1933 was the Reich the Party, or wasn't it, in that context?
A.- Not at all. That was an emergency which existed in my family which was supposed to be relieved by this amount, which was paid to me by the Reich. I never was a wealthy man.
Q.- And so even after 1933, and even though you were not a Party Member you continued to receive financial benefits in the form of charity from the government, is that correct?
A.- These two amounts that were paid out here I received without doubt. I don't know anything about any other amounts.
MR. WOOLEYHAN: That is enough on that, I think. If it please the Court, the Prosecution offers as Exhibit 538 the official personnel file of the defendant Mettgenberg, from which we have just been reading.
THE PRESIDENT: We have already had marked for identification an Exhibit 538, I believe.
MR. WOOLEYHAN: Very well, Your Honor. We will make that 539.
THE PRESIDENT: 539. NG-602 is marked for identification 539.
BY MR. WOOLEYHAN:
Q.- Dr. Mettgenberg, you and your counsel discussed Document NG-1066. That document was not heretofore in evidence, but since you bring up the matter, let's discuss it a little further. The essence of that document was that far from denoting any anti-Semitic activity on your part you merely requested that that document be shown to you unofficially for your personal interest so that you could give legal advice to private Jewish friends of yours, in particular a Jewish couple who wanted to know their rights. Tell me, on Page 3 of that document, which I assume you have before you -- do you?
A.- No, I don't.
Q.- On Page 3 of that document 1066 at the bottom the distribution under your name -- your name being No. 2 on the list with the request for attention, we find five other -- I mean three other people on that list, Senior Government Counsellor Mielke, Ministerial Counsellor Ruppert, judge of the District Court of Appeal Massfeller, and another judge of a District Court of Appeal whose name we cannot read, and State Secretary Freisler, all in there in the same form with the official request for their attention. Now I ask you, Dr. Mettgenberg, if all these other addresses on this document, including Freisler, also merely wanted to know unofficially the contents thereof so they could advise their friends privately? Is that the situation, or are you in a special case?
A.- It seems to me that you are referring to Page 4 and not Page 3 of the document, is that not correct?
Q.- I am referring to the enumeration 2, 3, 4, and 5, of which your name is No. 2.
A.- Yes. Mr. Prosecutor, the matter lies as follows: you can see already that I am listed under No. 2, while the other gentlemen whom you mentioned are listed under No. 3. Thus if the submission to me and to the other gentlemen would have the same purpose, it would not be clear why I am listed under No. 2 and the other gentlemen under No. 3 separately.
I believe that this in particular proves that my name being listed in this connection was something special, and why the document was shown to me, especially, that I explained under oath.
Q.- That being so, Dr. Mettgenberg, why does the official notation state the same directive in each case, namely with the request for attention? It is official attention, is it not?
A.- No, that is just what it is not. I have told you that in my case it was not official attention but personal attention.
Q.- Is there any doubt in your mind, Dr. Mettgenberg, that Dr. Freisler under No. 4 saw this document officially?
A.- No doubt.
Q.- Then why is there any doubt in your case? It appears the same.
A.- No, Mr. Prosecutor, it is not the same, because I belong to the same level as -
THE PRESIDENT: Now just a moment. The Tribunal suggests that you should not go any further with that inquiry. It is not meriting attention sufficiently.
MR. WOOLEYHAN: I don't intend to, Your Honor. I don't intend to. The Prosecution offers for identification only Document 1066 as Exhibit 540. We will make former offer at a later time when the exhibit is available, if that please the Court.
THE PRESIDENT: Let it be marked for identification 540.
BY MR. WOOLEYHAN:
Q.- Now, Dr. Mettgenberg, with regard to these execution orders which passed from Division 4, Department 4, of the Ministry to the Public Prosecution directing the execution of defendants condemned to death, of which a number now in evidence were signed by you, you stated yesterday that those execution orders were only a form of passing on to the Public Prosecution decisions as to execution already made by the Ministry of Justice and/or the State Secretary, as the case might be.
Now by your saying that those execution orders which went from division II to the Prosecution and which were frequently signed by you were only a form. You don't mean that those orders weren't necessary, do you?
A.- Mr. Prosecutor, do you want me to repeat what I have already said about this extensively? If you do want me to, I am ready to do so.
Q.- Dr. Mettgenberg, I don't want you to repeat anything. All I want you to do is say yes or no. Were these necessary or weren't they?
A.- They were absolutely necessary because the appendix which I described yesterday, the solemn completion of the clemency report had to be sent to that office which had to initiate the further steps. Therefore, the accompanying letters were, of course, absolutely essential.
Q.- Now, at various times you participated, in the Minister's office or the State Secretary's office, as the case might be, on the voting or decising what death sentences should be executed. You testified to that yesterday. Now, when you did participate in these discussions and your advice or vote agreed with that of the Minister's, you have testified the order was sent out often signed by you ordering the execution; but when it happened, Dr. Mettgenberg, that you disagreed and you thought, in your opinion, that the death sentence should not be executed, did you ever send out an execution order signed by you anyway, if the Minister desired it?
A.- Whether that ever happened, Mr. Prosecutor, in the way you just described it, I don't know, but I do know that if such a situation would have arisen I, of course,would have issued the order because not I was the authority which had to decide about the clemency question, but the Minister. It was my duty to advise the Minister. It was the duty of the Minister to decide and then in turn it was my duty to carry out the decision of the Minister.
Q.- And whether or not this execution order, going from your office to the Prosecution, was in the shape of a form or a personally disctated letter or an oral communication or by any means, it really made no difference, did it?
A.- No.
Q.- The man was still executed?
THE PRESIDENT: Ask your next question.
BY MR. WOOLEYHAN:
Q.- Dr. Mettgenberg, with regard to this Ploetzensee matter, while Vollmer was away, your boss Vollmer, and this new arrangement was decided upon after your persuasion with Minister Thierack whereby the defendant Rothenberger was to pass on these condemned persons then in prison, did you continue or did your office continue to send execution orders on these people to the Prosecution during the period of time involved in the Ploetzensee matter you discussed yesterday?
A.- Do I understand you correctly, Mr. Prosecutor? Are you interested in finding out how the decisions of Under-Secretary Rothenberger technically were handed on to the prison at Ploetzensee? Is that the question?
Q.- No, Dr. Mettgenberg. I am only interested in knowing if, during that time, you continued the normal practice, after the decision that a person was to be executed, by sending your execution orders to the prosecution for carrying them out?
A.- In the Ploetzensee case the instructions first were given directly to the carrying-out authority, that is, the executing authority, the prison director of the Penitentiary at Ploetzensee. Independent of this action the decisions on the clemency plea were completed, as in every other case, and were forwarded to the competent public prosecution.
Q.- I take it then that your answer to my question is no, you did not sent execution orders in that case but they went directly from defendant Rothenberger to the prison. Is that the case?
A.- I asked you before whether you wanted to know what was the technical way in which this information was sent and I am willing to describe this technical channel to you but if I understand you correctly, you said you were not interested in the technical procedure which was followed.
Q.- Dr. Mettgenberg, please answer if you can, this question, by merely saying yes or no.
During the time in question did you or your office continue the normal practice of sending execution orders to Ploetzensee Prison?
A.- While Under-Secretary Rothenberger was hearing the reports in the Ploetzensee cases one of the higher officials of Department IV was present. I refer to the affidavit of Dernedde, which the Court has. This higher official, Dernedde, whom I just mentioned, was the one who, in the Ploetzensee affair, carried out the mediation; that is to say, he was the one who forwarded the decision of the Under-Secretary to the prison director of the Ploetzensee Penitentiary by telephone.
Q.- I take it then your answer to my question is no?
A.- (No response.)
Q.- With regard to these unpardonable mistakes in Ploetzensee, with regard to the unwarranted executions that you mentioned yesterday, were you familiar or aware of investigations that were carried out to correct those conditions in the prison?
A.- I was in no way competent for these questions. The events that occurred within the Ploetzensee Penitentiary were exclusively under Department V of the Ministry. However, I do recall for certain that in this case I was personally very much interested in having this incident clarified in Ploetzensee. Therefore, I asked the competent gentlemen in Division 5 to inform me what the result of the investigation had been. What the result was can be seen from the documents that were submitted here.
Q.- If what went on in Ploetzensee Prison was solely the responsibility of Division V of the Ministry, how do you explain your presence there rearranging the execution methods from beheading to hanging pursuant to the military authority, as you described yesterday?
A.- I don't know whether the question came over the system in the same way as you put it. May I ask you, therefore, to repeat the question again?
Q.- In response to my question as to what had gone on in Ploetzensee with regard to investigating the mistakes which you described as unpardonable, I ask you, if your statement is correct that only Division V of the Ministry would know about conditions in Ploetzensee, how do you explain your official presence there rearranging the execution machinery?
A.- For the supervision over the employee and civil servants in the prisons only Department V was responsible. If an official or an employee of the Ploetzensee Prison thus committed an error in the carrying out of his official duty or committed an offense, the clarification or the measures which resulted from this offense committed in the carrying out of an official duty was exclusively up to Department V. The further question put by the prosecutor as to what competence I could have within the prison has to be answered as follows:
Without the agreement of Department V I could not issue any instructions of any kind in the prisons. Therefore, at the outset, it was regularly handled as follows; that when I visited the prisons the competent referent or even the Chief of Division V accompanied me. Only later on Division V refrained from sending somebody to accompany me but at no time did it refrain from wanting to get information, and If it did not agree with me, to object to the steps which I took.
Q.- Did you or did you not rearrange the execution facilities in Ploetzensee Prison pursuant to requests from the military in conversion from beheading to hanging.
A.- I believe that I already gave conclusive information about that yesterday.
Q.- I merely said Would you please answer that question yes or no? Did you or didn't you?
A.- I have already answered that question with yes/
Q.- And I also take it that that was in the normal course of your official duty in Department IV?
A.- Yes.
Court No. III, Case No. 3.
Q Now, are you acquainted with the manner in which the defendants, on the 20th of July plot against Hitler's life, who were sentenced to death, were hanged?
A No, I do not know that.
Q Then, why is it Dr. Mettgenberg that you arranged for the hangings and yet you do not know the manner in which they were carried out?
A I believe that I explained clearly yesterday that it was our task in division IV to make the general arrangements so that death sentences could be carried out in an orderly manner and I also explained...
THE PRESIDENT: The Tribunal does not care to hear any more from this witness about the technique of reducing people from life to death.
BY MR. WILLEYHAN:
Q Yes, your Honor.
With respect to your subjective opinions about the death penalty, Dr. Mettgenberg, in a general way yesterday you stated you were opposed to it in principle.
A Yes.
Q But that in time of war it was necessary?
A The execution of death sentences? Yes.
Q May I finish please? ... But that in time of war it should not be used so often as to have a blunting effect. In voting on death sentences, together With the minister and the secretary, you said you usually or often opposed the imposition of death sentenced. Now, in connection with that, I am going to show you a letter that you wrote on the 10th of September, 1943, now in that letter you address a number of criticisms to the President of the Court of Appeals and the General Public Prosecutor in Hamburg, in which you review a number of criminal cases tried by that court and in which you enter, what I quote from the documents, your serious objections to the leniency of these sentences and I ask you how you reconcile your humanitarian approach to the death sentence, which you described yesterday to these apparently notorious objections sent to all parts of the Reich criticizing criminal sentences as being too lenient.
Court No. III, Case No. 3.
A Mr. Prosecutor, you are here submitting to me a bundle of documents, and as far as I can recognize by looking through them, they refer to varying trials. It is self evident that these individual cases, which are dealt with here, I can no longer remember and it also appears to me that even if I looked through them carefully, I would not be able to find out why objections were raised and what sentences were concerned.
Q Dr. Mettgenberg, excuse me, now on page 2 of my copy, which is English, referring to your letter of 12 November 1943, you are addressing the President of the Court of Appeals and the Prosecution at Hamburg in the case against Richard Bauer, your letter concludes by saying: "I refrain from having the sentence annulled by filing an extraordinary appeal." Am I to understand that in your work in division IV you had the power to enter an extraordinary appeal against sentences which you reviewed from the lower courts?
A This letter, Mr. Prosecutor, which you refer to and which I signed, refers first of all to a field of work with which the division chief was directly in charge of and not I myself. This is purely a case of undermining fighting moral, thus a field of competence of Ministerial Counsel Franke, who has been also mentioned here.
Q Dr. Mettgenberg, one moment please. In this sentence you state: "I refrain from having the sentence annulled by filing a special protest or extraordinary appeal," now by "T" don't you mean yourself?
A Mr. Prosecutor, do I have to instruct you about the style of writing official letters in a ministry? If that is necessary, I have to point out to you that the letterhead is the Reich Minister of Justice and that every letter of this kind that is sent out is sent out on order or as deputy in the name of the Reich Minister of Justice and never in the personal name of the person who happens to sign the letter. If it says "I" this is the style in which the Reich Minister of Justice speaks to the authorities which are subordinate to him, that is not Mettgenberg speaking, but the Reich Minister of Justice who is speaking.
Q It was Mettgenberg who signed it, wasn't it?
Court No. III, Case No. 3.
THE PRESIDENT: That's obvious, don't let's argue about this.
BY MR. WILLEYHAN:
Q I take it from your answer that these letters that are collected in document NG-588, which criticizes various sentences are merely your carrying out of someone elses opinions and decisions; is that correct?
A Whether this is true in all cases in these document here, I cannot confirm nor deny so quickly, because there is such a large number of these documents here.
Q Then so far as you know there might have been some that were not only the opinion and decision of your superiors, but were also your opinion and decision; is that correct?
A That is absolutely possible.
Q And if it had been your opinion and your decision, according to your statements a moment ago, the rules of the Ministry in regard to letterwriting, the request would then go out to the recipient in the same form as here; is that correct?
A Yes, in exactly the same form independent of my personal opinion.
Q May it please the Court, the Prosecution offers the Document presently under discussion as Exhibit 541.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: Will you distribute these please, English and German. The Prosecution also offers into evidence Document NG-591, which is a collection of letters signed by the defendant Mettgenberg on the precise same subject which we have just discussed but covering an additional number of different cases on different dates. We offer this as Exhibit 542 without further discussion.
THE PRESIDENT: The exhibit is received.
BY MR. WOOLEYHAN:
Q Dr. Mettgenberg, throughout the discussion of Nacht und Nebel, there were numerous references to what you termed the "police". I am assuming, so that you and I understand one another, that by the police Court No. III, Case No. 3.you meant the Gestapo in most instances unless otherwise specified; did you not?
A Who within the police was competent for a case was decided exclusively by the police authorities themselves. In the affairs with which we are concerned here, it was as a rule always the Gestapo.
Q Yes, thank you. Now in general at the outset of your discussion of Nacht und Nebel with Dr. Schilf, you said that transfer of Nacht und Nebel prisoners from the occupied countries through the military channels and police channels, ultimately to the Ministry of Justice for trial through the regular courts, was the lesser of many evil choices at the time; by that statement I assume that you apparently admit that Nacht und Nebel itself was an evil; do you not?
A I do not know what you base this assumption on.
Q Well, it is not very important, Dr. Mettgenberg, I was merely pointing out to you that logically your statement that the transfer of Nacht und Nebel, to your Ministry for trial was the lesser of many evil choices at the time, as a logical statement that Nacht und Nebel of itself was an evil?
A Possibly so far as the alternative of the sentencing of a court or sentencing not by a court of law, was concerned. I stated that even the sentencing by a court had its negative side. Therefore, I expressed that sentencing by a court in this manner in a certain sense was also an evil, but a lesser evil.
Q Your Honors, may I ask to break at this moment?
THE PRESIDENT: It is not time for our noon recess. At 1:30 this afternoon we will reconvene.
(A recess was taken until 1330 hours.
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 1 August 1947.)
WOLFGANG METTGENBERG - Resumed CROSS EXAMINATION (Continued) BY MR. WOOLEYHAN:
Q Dr. Mettgenberg, yesterday you were describing what to your mind from 1942 until the end of the war were the legal foundations for the Nacht und Nebel program. The first so-called legal foundation that you cited was Article 161 of the German Military Criminal Code. That section you described, in your opinion, as being completely in accord with accepted international law standards in effect at the time you assumed official responsibility for the Nacht und Nebel program in the Ministry of Justice. With respect to that Article 161, in practical operation, it merely provides that foreigners in occupied territories, if they commit an act which would be criminal according to German Law, can be tried in the occupied territories under German law. Is that a fair statement of what Article says in effect?
A No, that is not a correct account of the contents of Article 161.
Q Well perhaps, Dr. Mettgenberg, with respect to foreigners in occupied countries, would you please state your opinion as to what in effect that article accomplishes. Don't read it.
A I believe that one can possibly adhere too closely to the contents of Article 161. Article 161 says that foreigners who have made themselves liable to punishment by their actions against German troops arc to be punished in the same way if they had committed those acts in the Reich. That means that the same penal provisions are to be applied to their offenses which would have be applied in the offense had been committed in Germany.
Q Yes. Now, Dr. Mettgenberg, I assume that you agree with me that Article 161 was designated to apply to foreign civilians, wasn't it.
A Yes.
Q And if the foreign civilian committed an act against German forces in the occupied territory, you have just said he would be tried as if that had been done in Germany, would he not?
A There they are treated in the same way under penal law as if they had committed that offense inside of Germany.
Q Then, Dr. Mettgenberg, that is the same, isn't it, as saying that that foreign civilian is to be tried in his country of residence by German law; is that correct?
AAs to where judgment was to be passed, Article 161 says nothing. That passing of judgment could be transferred to German Reich territory is not evident from article 161, but it is evident from Article 3, Section II of the special war time decree.
Q That is clear to me, Dr. Mettgenberg thank you. However, my question merely went to the point -- not of transfer to the Reich-but that if this foreigner was tried in his country of residence, under this section, the law to be applied would be the law of Germany, would it not, under Article 161?
A Yes.
Q Yes. Now, in view of that, I am going to read a brief excerpt from Exhibit 380, which are the Hague Regulations, Rules of Land Warfare, which were in effect, as you know, at the time that the Nacht und Nebel program was instituted. Article 43 states: "The authority of the legitime power having in fact passed into the hands of the occupant, the latter, "which in this case would be Germany," shall take all the measures in his power to restore and insure public order and safety while -- and I underline the following portion -- respecting unless absolutely prevented the law enforced in the occupied country."