Now, I ask you, Dr. Mettgenberg to your knowledge -- If Dr. Schilf is going to point out that I have omitted a word or two in reading this section, I admit I have, but I didn't affect the sense.
DR. SCHILF: May it please the court, I do not wish to make any objection, but in respect of the fact that the text was not translated in the version that I have before me -- because of that, I would like to read to the witness Article 16 of the Hague Landwar Convention.
THE PRESIDENT: You needn't interrupt the examination.
MR. WOOLEYHAN: If your Honor please, he is at liberty to put it in front of the witness, is he not?
Q Now, with respect to that phrase in Article 34, Dr. Mettgenberg, which says -- while respecting unless absolutely prevented the law enforced in the occupied country" -- I ask you if, in your experiences with the Nacht und Nebel program, you ever were aware, saw or heard tell of a situation in any occupied country affected by the Nacht und Nebel program wherein Germany was ever absolutely prevented from enforcing the criminal laws of the country they occupied.
A I should like to make the following reply: The occupying power, whether it is the German occupying power or any other occupying authority, that authority is forced to issue a number of decrees. For example, concerning the possession of arms.
Q Dr. Mettgenberg, one moment please. I am not asking about the well known right of an occupier -- whether it lawfully or unlawfully issues basic decrees to keep the public peace, and I grant you that. Please answer my question about whether or not Germany was ever absolutely prevented from enforcing the laws of the country that it occupied, rather than imposing its own.
A Mr. Prosecutor, you have just stated that we agree on the starting point of this. I believe we shall very quickly be able to reach further agreement. Under Article 161 such offenses are liable to punishment which were committed against the occupying troops and the occupying authority. Therefore, we are concerned here with acts which under the local laws inside the occupied territories are not punishable at all, or, at least there they are offenses which are not punishable in the way in which the occupying power has to insist on. Therefore, the occupying power can do nothing else but to introduce its own penal laws. That is net only done where German occupation authorities have to carry out the administration in occupied territories, but it is done everywhere where a foreign country is under military occupation. If believe that you will agree with me that that is correct.
Q Do you know of any crime punishable by German criminal law that goes to basic public peace of nation, such as theft, largency, murder, kidnapping, or what have you, that is not provided for and suitably by the laws of either France, the Netherlands, or Norway?
A Mr. Prosecutor, life is not as primitive as you are describing it to us. In the occupied territories are, as most of us who played a part in it knows today, in those territories there are resistance gangs, there is sabotage, there is espionage, and do you really believe that espionage directed against the occupying power would be liable to punishment to the local laws? I have to put this kind of a question to you.
Q Then, Dr. Mettgenberg, it is very clear from what you say that the crimes against the German occupying forces in the western countries were only those crimes directed against the occupying forces itself, such as sabotage, espionage, or something similar?
A Sabotage, espionage, or actions committed in contravention of the orders issued by the occupying power.
Q Then the Nacht und Nebel, program both enforced by the military and those cases which were transferred to you, was to keep the peace in those western countries, but was to make sure that the occupation succeeded, is that correct?
A These regulations had been issued to maintain order in the occupied territories. It is part of that system of order to allow the occupying power to do its work in peace.
Q I believe you just granted me a moment ago, Dr. Mettgenberg, that criminal laws of occupied territories were quite well equipped to take care of any offenses except those less primitive offenses direct solely against the military occupation, isn't that correct?
A Mr. Prosecutor, may I point out to you that all documents which were written by us in connection with these NN matters, showed the reference:
"punishable actions committed against the occupying power and the occupation troops."
Q I don't believe I got a completed sentence.
A I took the liberty of pointing out that the documents which the Ministry issued on these matters also bear the reference, " punishable acts committed against the occupying troops, or the occupying power."
Q Yes, I understand that. That, I suppose, is a corrollary, Dr. Mettgenberg, of your statement both yesterday and this morning that military interest came first in every consideration and enforcement of Nacht und Nebel, and that the Ministry of Justice was only enforcing what the Military felt was necessary, is that correct?
A Yes, that is correct.
Q And you further said that you or any other official in the Ministry that was engaged in Nacht und Nobel business could even inform yourself about whether or not this Nacht und Nebel affair was militarily necessary, but you just took the word of the military on that, and that your duty was to carry out the order as it was stated. You say then -- and this is a question -- that so far as you were concerned, you and the other Ministry of Justice officials in arranging for the trial and execution of Nacht und Nebel prisoners by the regular courts in the Reich were aiding the military to make their occupations of the western countries secure, is that how you understood your duty?
A We interpreted cur duty to be to see to it that Right and Orders were given a fair run. Furthermore our task in this way. Within the framework of the possible taking our measures we paid to the rights of the foreigners concerned. I have stated that here repeatedly. As concerns military interests in this context, I have stressed that in the final analysis, the question as to whether the question as to whether the military interest required secrecy for NN matters as it was applied in fact, that the answer to that question had to be left with the military authorities.
I furthermore stated that I attached the greatest importance to the fact that all the men who participated in this should maintain close contact with the military authorities and in that, should form a picture for themselves on the question as to whether the measures which the military authorities were not arbitrary but served a purpose, but we did not have the final decision.
Q Dr. Mettgenberg, I ask you to assume that if the OKW had not insisted that Nacht und Nebel measures of secrecy was necessary in the military interest, would you then have thought them justified under international law?
A Do I understand you to mean to say that the Reich Ministry of Justice, if the soldiers had said that secrecy is not necessary not for its own part to carried cut such secrecy measures?
Q I didn't ask you that, Dr. Mettgenberg.
A That wasn't it?
Q No, that wasn't it. I said that if the military had not insisted that secrecy was necessary, would you then have considered enforcement of Nacht und Nobel program as we know it to be justified or lawful under international law?
I think yes or no would do it.
A If the soldiers had not declared secrecy necessary, we ourselves would never have applied secrecy.
Q That doesn't answer my question. Would it or would it not have been within international law, if, in your opinion, it had not been in the military interest?
A Well, Mr. Prosecutor, I am not a soldier. I have been saying all along that we were civilians, and that concerning the question of military interests or not, in the final analysis, we had to give way to the judgment of the soldiers.
Q Dr. Mettgenberg, one moment please. I am not asking you as a soldier, I am asking you in your capacity as the expert international lawyer which you have professed to be here on the stand if there was no military necessity, in your opinion, then would the Nacht und Nebel program, as we know it, be lawful under international law?
A It is a very doubtful question, which one cannot simply answer either yes or no. I should be inclined to say that that doesn't matter very much because we are only talking from a theoretical point of view. I should be inclined to answer that question with no.
Q Then if your answer to that question is no, Dr. Mettgenberg namely that absence of the military requirement of secrecy, Nacht und Nebel would be illegal or unlawful under international law; then the only question that faces us is, was that decree of military security or any military security at all lawful under international law. That is the only question which remains, and in answer to that question, are you familiar with the ruling of the International Military Tribunal in finding that everyone of those occupations which you have described violated international law at the time? Are you aware of that?
A I did not understand all you said in that translation. I didn't get your whole question, Mr. Prosecutor; but I did make out that you asked me whether I was familiar with the findings of the IMT.
Q One moment before your answer, Dr. Mettgenberg. You were correct up to that point, and then I said that that ruling of IMT found that every occupation which you have just described as necessary in the military interest to have the Nacht und Nebel program help it, was unlawful at the time under international law and that therefore any consideration of military necessity is completely immaterial?
Are you aware of that?
A I am not aware of that. So far as my information goes, the questions which arc connected with the NN decree were only treated by the IMT in passing. I suppose there was no necessity to go into them in such detail there as has been done here, and as has become necessary to do here. I am convinced that the IMT, had it known about the things which have been discussed here, would have arrived at a different conclusion.
Q. Dr. Mettgenberg, how can you say that in the face of the fact that whether or not the occupations in western Europe, namely, of France, Norway, and the Low Countries which gave rise to the Nacht and Nebel measures, were declared unlawful occupations pursuant to aggressive wars about which no evidence has been introduced here?
A It seems to me, hut I am not informed about the details, that the IMT did have to deal with entirely different questions than those which are occupying us here. As concerns the NN decree, and the execution of the NN decree by the Reich Ministry of Justice and its officials, I believe that there is no previous decision or ruling from the IMT, but I cannot possibly argue the point, because I do not know the details.
Q Dr. Mettgenberg, once again before we leave this point I will put it to you very briefly so that no details are necessary with regard to your memory of the IMT opinion. You have admitted here that if military measures of necessity, namely the measures of secrecy, were not required by the military, then the Nacht und Nebel program, in your opinion, would have been unlawful under international law. Now I ask you, do you know that whether or not those measures of secrecy were in the military interest is quite immaterial, because the very occupations themselves were held to be unlawful at the time they were committed?
THE PRESIDENT: May I attempt, Dr. Mettgenberg, to phrase a question on this very point, and I think the same question that counsel is driving at. In your opinion can a belligerent state acquire rights under international law in occupied territory if the occupation itself is a crime against the peace and a violation of International Law?
THE WITNESS: Mr. President, I am of the opinion that in respect of the questions with which we are dealing here, it cannot matter whether an occupation of foreign territory was compatible with International Law or not. In the discussion here I must base my argument on the fact that the occupation took place, and I have to ask myself the question whether basing myself on that fact, and furthermore, basing myself on the fact that the military stated that secrecy had to prevail in regard of the NN procedures, that in the carrying out -- that is the question I have to put to myself -- whether then there is anything against International Law in carrying out the procedure in that way, and my answer is no.
THE PRESIDENT: May I ask you one more question, and then I will not interfere further. Suppose that we assume, without deciding, that you in the Ministry of Justice were bound by the decision of the military as to what constituted military necessity. Is it your opinion that an International Tribunal, in determining that question, is also bound by the decision of the German military authorities as to what was required by military necessity?
THE WITNESS: I believe, Mr. President, an international court is completely free in forming its judgment of the facts, but I believe that in one point even an international court is not free, and that is consideration for the opinion and for the good faith of those who acted in view of or on the basis of a different legal opinion.
THE PRESIDENT: On the questions relative to the materiality of good faith I have no Question to direct to you at all at this time. Go ahead.
BY MR. WOOLEYHAN:
Q By the way, Dr. Mettgenberg, with regard to Exh. 319 that you were describing this morning which was a summarization of all the secrecy measures to be enforced by the Ministry, you described that document as having been approved and widely circulated and carefully considered by some fifteen officials of various departments, that included Department 6 as can be seen from the document. To your knowledge, did the defendant Altstoetter initial or sign that document?
JUDGE HARDING: What was the exhibit number?
MR. WOOLEYHAN: Exhibit 319, Your Honor.
A Will you permit me to take the time and find my page?
BY MR. WOOLEYHAN:
Q Certainly
A In the document I have before me, that is the German version, those signatures are not even contained. I assume that I discovered that figure in the original, in the photostat, and that, unfortunately, I haven't available now.
Q Absent the photostat, which we don't happen to have at the moment, I will ask you a hypothetical question. From your knowledge of ministerial functions, of which you have displayed a broad one, in your opinion would you say that Exh. 319 which you described as a very important summary of regulations, which was seriously considered by all the departments concerned, could have been seen and circulated in Department 6 without the defendant Altstoetter knowing about it?
A In itself that is possible, Mr. Prosecutor. It is possible that a deputy signed for Herr Altstoetter just as I in Department IV had to sign quite a few things when I was deputizing for the department chief. Therefore I cannot tell you that for certain.
Q I realize that, Dr. Mettgenberg, and I realize that possibility, and I realize your inability to say for certain. I am merely asking you from your knowledge of ministerial procedure, if Altstoetter as chief of Department VI and responsible for the carrying out of any decrees that affected his department -- officially responsible, mind you -- is it probable that he did neither sign nor know of this decree, in your opinion?
A If he was there at the time, he certainly would have signed that document himself.
Q And supposing he was out of town for a few days and then returned, would he then probably have been informed of the contents, even though it had been signed by his deputy? He was officially responsible for it.
A That is not certain.
Q Dr. Mettgenberg, one moment, please. I wasn't asking you if it were certain. I was merely asking you if in your professional opinion it was probable in a matter of this importance.
A Well, naturally, you will understand me if I say it is very difficult to answer that.
Q Naturally, naturally. I don't want to pursue it any further. That is all right. In the fall of 1944, Dr. Mettgenberg, you were describing yesterday how you were taken by surprise when the Nacht und Nebel prisoners in the Reich prisons and who had cases pending before the regular courts were ordered to be transferred from your jurisdiction to the Gestapo, you further mentioned that although there had been no agreement between you and the defendant von Ammon and the army, that that decree nevertheless came out ordering the transfer and stated on its face that there had been an agreement.
A Yes.
Q Now why was it really now, in addition to what you said yesterday, that you who in your official capacity spent over half your time on Nacht und Nebel matters and the defendant von Ammon who worked for you, who spent all of his time on Nacht und Nebel matters were taken so by surprise? How was that?
A You didn't listen properly, Mr. Prosecutor. I said that I spent about 5 % of my time on NN cases.
Q Dr. Mettgenberg, if you will pardon me -
A I beg your pardon -- whereas Dr. von Ammon spent 50% of his time on NN matters.
Q Excuse me one moment. Assuming that I incorrectly heard the percentages, tell me a little more any way why you were so surprised.
A I was surprised because our point of view not to return the prisoners to the Gestapo was known to the OKW from former negotiations# The former negotiations had also revealed that the OKW was inclined to share our view on this matter.
Q. One moment, please, Dr. Mettgenberg. One moment. Dr. Mettgenberg, may I interrupt?
THE PRESIDENT: Let him finish his answer. Go head. Go ahead and finish your answer.
A (Continuing) Now, quite suddenly, after the discussion which Dr. von Ammon had attended, there arrived a written decree by the OKW in which -- and that was quite incomprehensible -- our agreement was stressed. Naturally that came as a surprise to me.
Q And as I understood yesterday you at least, and the defendant von Ammon probably, were reluctant to turn these nacht und nebel prisoners over to the police, to the Gestapo because you felt that the fate that awaited them was probably worse than they would get at the hands of the court if they were duly tried; is that correct?
A Yes, that is correct.
Q Yet after that military decree to transfer these nacht und nebel prisoners to the Gestapo came out, the transfer of them from the Ministry was carried out; wasn't it?
A Yes. I said here yesterday that my department chief, after he had discussed the matter with the Minister, decided that we would have to give way to this decree from the OKW because the OKW had to make the last decision and not we.
Q Realizing that you had to obey, as you say, the wishes of the OKW on this matter, to obey them what actual measures did you and others take to arrange for the desired transfer of the nacht und nebel prisoners to the Gestapo? What actually did you do?
A First the departments went to work: Department 5, which was competent for the prisoners, and Department 4, which was competent for the pending proceedings: but I also said yesterday that the instructions to return the prisoners were carried out on only a very limited scale because there were no means of transport, et cetera.
Q Dr. Mettgenberg, incident to this transfer that you have just described, yesterday several times you stated that the treatment before the courts under your jurisdiction of the nacht und nebel defendants was substantially the same as any other defendants, even German defendants, except for the requirements of secrecy?
A Yes.
Q Now I ask you, Dr. Mettgenberg, apart from the Jews as a race and the Poles as a race, whom we know were dealt why by the Gestapo eventually, do you know of any Germans that, as a class, were transferred by the courts to the Gestapo without trial or even with trial for that matter, similar to the way the nacht und nebel prisoners were treated as a class and in similar numbers?
A If we, as you put it, speak of the same treatment for NN prisoners and German defendants during the proceedings, we are referring to the court proceedings. We first refer to the penal provisions which were applied. We refer to the scope of the sentence that was applied. It was an entirely different question as to whether the NN prisoners, after their trial under the judiciary, were to be kept further in our custody or not. And so far I never said that the German prisoners and NN prisoners were treated in the same way.
Q I assume that these nacht und nebel prisoners that were transferred to the Gestapo by the Ministry of Justice ended up by large, in concentration camps and protective custody. Is that true?
AAs to where they ended up we didn't know. The only thing we did know was that probably they would be treated less well than if they had remained in cur prisons. At any rate, we knew that numerous prisoners in the hands of the police worked in industrial enterprises and were there comparatively content.
Q Now, except for these industrial workers you have just mentioned, when the Gestapo took these people and you knew they didn't end up in any of the Reich prisons, what kind of prison did you think they went to? What other kind of prisons were there other than the Reich prisons and labor camps? There weren't any other kind but concentration camps, were there?
A Oh, yes. The police disposed of a variety of prisons and that quite apart from concentration camps. There was a multitude of prisoners in the hands of the police who were employed in agriculture or in industrial enterprises. Others were in concentration camps.
Q Others were in concentrations camps.
A (Witness nods affirmatively.)
Q Did you ever take the trouble to find out what happened to these people that ended up in concentration camps? Did you ever visit one?
A Those who ended up in concentration camps, no. No, I never inspected a concentration camp.
MR. WOOLEYHAN: At this juncture, may it please the Court, I am going to read a paragraph from Document NG-796, which will be subsequently offered in evidence. This document is a sworn affidavit by Dr. Hugo Schomel who was previously appeared in this court as a witness. In this affidavit Dr. Schomel states in part as follows:
"I felt it also as a personal by-passing when in 1943 or '44 Messrs. Mettgenberg and Vollmer went to Mauthausen to inspect the concentration camp. As sub-section chief for Austrian matters I ought to have come along, but I was not notified. Later on I asked Herr Mettgenberg about his impressions of the camp, and he told me that everything seemed to be in order. He said that he had spoken to a number of prisoners in the absence of guard personnel, and was told that the prisoners had to work very hard but that the food was sufficient, and that when good work was performed they were not beaten. Mettgenberg also said that he was sorry he was not an. Austrian, because all prisoners spoke Austrian dialect and it was rather difficult to make himself understood."
The Prosecution offers this affidavit as Exhibit No. 543.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: That is all.
JUDGE HARDING: Dr. Mettgenberg, I have here NG-264. I am not certain of the Exhibit Number, but it is to the Reich Minister of Justice from Kattowice, and it is dated July 27, 1944, in which it is stated that NN prisoners are already employed to a large extent in the armament industry regardless of whether or not they are held for quest ioning or punishment.
Were you aware of this fact that these NN prisoners were being so used regardless of whether they were merely held for questioning or for punishment?
A.- May I point out to you, Your Honor, that it was our endeavor to keep the NN-prisoners in the custody of the administration of justice as long as it was possible, that was in the interests of the NN-prisoners themselves. For that reason, we had instructed our public prosecutors to see to it that either the sentences, which had been passed on NN prisoners were to last beyond the time in which we supposed the war would end, but in cases where that would have been unjust and it was therefore not possible in those cases, we had instructed our prosecutors to ask the court to have the proceedings suspended, so that the prisoners could remain in custody pending trial. That is to say so they could remain in the hands of the administration of justice. At the moment when we no longer had a legal basis for keeping these people in our prisons we had to return them and that was undesirable in their own interests, That explains that inquiry from Kattowice directed to us.
Q.- You were then aware that these prisoners were being used in the armament industries and that these prisoners were at that time under the Department of Justice?
A.- All prisoners worked after all, either they worked in the prisons or they worked at special barracks and in industry. It was up to department V to give a ruling on individual cases, but I believe for certain that I too came to hear of it.
Q.- Are you aware of the last part of this Exhibit 334, the last paragraph:
"I ask for a decision on whether and, if so, 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. If the demand of the armament industry is to be complied with, I suggest that an agreement be reached with the Reich Main Industry Office that N.N. prisoners employed as skilled workers who, as such, continue to be needed by a certain industrial enterprise, be registered by the Gestapo as prisoners of the Police, after they have been acquitted or have served their sentence, but that they remain in the camp hither to kept by the judicial authorities at the place of the respective armament enterprise."
Are you aware of that?
A.- Your Honor, that is exactly the point I stated before. We, in Department IV, took the view that it was right thus to keep those people in custody under the administration of justice and secondly to let them continue to work in whatever industry they were already employed. Department V however no longer was able to state its views on the subject because on account of current developments that was out of date and no final decision on this matter was ever made.
Q.- Are you aware of the signed statement by von Ammon in this exhibit, which goes on to state: "If you have no objection, I intend to contact the Reich Main Office in accordance with the report of the Advocate General at Kattowice."
A.- I was not able to understand everything.
Q.- Supplemental to this report in the same exhibit, it says: Submitted to the Deputy Ministerial Director - name illegible, with the request for opinion. Then it goes on to say: "If you have no objection, I intend to contact the Reich Main Office, in accordance with the report of the Advocate General at Kattowice." It is signed by von Ammon; are you familiar with that?
A.- Did I know that there was an intention to submit that to the R.S.H.A.?
Q.- Yes.
A.- Certainly, that must have been known to me, yes, certainly.
Q.- I want to refer to another matter that is not entirely clear to me. As I understand it, your contention is that Nacht and Nebel was justified because the offenses committed constitute war crimes under the Hague Convention; is that correct?
A.- They were punishable offenses which had been committed against the occupying troops or occupying power if that is what you arc referring to, Your Honor, so far, N.N. Proceedings wore in accordance with international law.
Q.- Because the crimes Nacht and Nobel prisoners committed were contrary to international law, that is your position as I understand it?
A.- Well, you say they wore contrary to international law, I would ask you to put it more concisely. We were concerned with crimes committed against the occupying power. If there in Nurnberg a punishable offense is committed against the American occupation then the American Military courts here would take steps against that punishable offense, that is in accordance with international law.
Q.- Your comment is that the Nacht and Nebel prisoners could be punished by the German authorities because the crimes committed were contrary to international law against the Hague Convention; is that right?
A.- Your Honor, I don't know whether I can explain it that way. It was not the acts, the offenses which were against international law, neither the offenses nor the crimes, but the offenders being sentenced by the occupying power that was in accordance with international law.
Q.- Then these Nacht and Nabel prisoners, according to your statement were punished for crimes that were crimes, according to international law by this Nacht und Nebel procedure; is that right?
A.- Your Honor, the person who has arms in his possession when it is illegal to have such arms in his possession, such a person is not committing a crime against international law, but is committing a crime against the occupying power and the occupying power is entitled to pass judgment on it, that fact of sitting in judgment over him is in accordance with international law.
Q.- Do you consider that the occupying power has authority to punish a person from the occupied territory in its own German courts who has not committed an offense against international law?
A.- Your Honor, it is very difficult for me to answer your question. I don't know what you mean when you say "crimes against international law".
Q.- Well you were supposed to be an international law specialist and I think you would understand what would be a crime against international law, but to make it clear we will put it "contrary to the Hague Convention".
A.- Well an offense contrary to tho Hague Convention can hardly be committed by an individual in occupied territory. Such an offense against the Hague Convention can only be committed by the state or its representatives, it cannot be committed by an individual in occupied territory. Now that is my view as far as I know and when anyone speaks of an offense against international law you are speaking of white slave traffice, contraband of opium, etc., those are crimes of international law.
Q.- I want it to be clear in my mind that whether you consider a person from one of the occupied territories could be punished by the German courts, military or civil as well, if they were in the Nacht und Nobel procedures, who had not committed a crime designated as such under international law or recognized as such under international law?
A.- I would not designate those crimes that were committed by these Nacht und Nebel prisoners as crimes under international law; is that correct?
A.- No, I would not, but one can do it.
Q.- That leaves my state of mind just where it was before.
A.- Well, Your Honor, I think this would lead us to a very lengthly discussion.
Q.- Not necessarily, but I want to find out whether you think that an occupying power or a belligerent can punish persons in an occupied territory before their courts as was done in this Nacht und Nobel procedure, who had not committed a crime that was recognized by such under international law?