Bulletins describing the Jewish extermination were in his office." (Tr. Justice p. 82; IMT p. 17038).
The ruling in the case of Streicher is predicated upon the same construction.
It follows that the foregoing logical and therefore valid construction which we have given to clause (d) is further buttressed by supporting judicial precedent.
We also point out that the provision Law 10, Article II, Par. 4 (b):
"The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation."
should be construed in light of our discussion in this appendix of the element of "consent". Certainly if, at the time any of the defendants obeyed an order, the opportunity to resign without fear of serious consequences to his person, then no factual situation, warranting a finding of mitigating circumstances, is presented to the Tribunal. Furthermore evidence in mitigation is clearly affirmative matter which should be brought forward by the defense. In the absence of any evidence of probative value, showing the existence of coercion sufficient to justify obedience to the order, no grounds for mitigation under Par. 4 (b) have been established Finally, we point out that Par.
3 of Article II of Law 10 which fixes the punishment, does not make the degree of punishment to be assessed upon any defendant, dependent upon conviction of any defendant of any one of the guilty relationships sot out in Par. 2 of Article II of Law 10. Consequently under the rules of construction of criminal statutes the defendants are all guilty in an equal degree, no matter which of the criminal relationships to the crime 9798-M they may be found guilty of committing.
They are, therefore, all principals under the statute. However, this does not make this discussion academic or detract from its value. Its purpose has boon to show the accepted legal definitions of the relationships, set out, without definitions, in this paragraph of the law.
Respectfully submitted CHARLES M. LaFOLLETTE ROBERT D. KING For Brig.
Gen. Telford Taylor, Chief of Counsel for War Crimes.
of Counsel:
ALFRED M. WOOLEYHAN
SADIE B. ARBUTHNOT
ARNOLD BUCHTHAL
RUDOLF AUERBACH
On the Brief PETER BEAUVAIS HENRY EINSTEIN Expert Assistants.
9798-N
MILITARY TRIBUNAL III
Case No. 3 THE UNITED STATES OF AMERICA - against JOSEF ALTSTOTTER, et al.
DEFINITIONS OF THE CRIMES WHICH ARE PUNISHABLE UNDER LAW 10.
APPENDIX 3.
To Prosecution Final Argument In this appendix the Prosecution is not concerned with the crime defined in Par.
1 (a) of Article II of Control Council Law No. 10 because the Indictment does not charge a violation of that subparagraph. We are concerned with the crimes defined in sub-paragraph (b), (c) and (d) of Par. 1 of Article II of Law 10.
Solely to enable the Court to have before it in this appendix, the exact language of the foregoing sub-paragraph 1 (b) as we discuss it here, we herein set it out verbatim.
"Article II" 1. (b) War Crimes, Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, town or villages, or devastation not justified by military necessity.
A cursory reading leads one to believe that two classes of crimes appear to be defined -- international and national Actually only one class of basic crimes is defined.
-- "atrocities er offenses -- against persons or property ..... constituting violations of the laws and customs of war". This is the criminal act or agency which the court must find before it can take further steps. As we 9798-O point out in Appendix 4, it is the murderer's lethal weapon, the arsonist's torch and the enslaver and false imprisoner's chain and padlock.
The international crime is fully proven where the actual commission of any of the "atrocities or offenses" through the agency of the above set out violations of the laws and customs of war, are also proven. These atrocities or offenses, namely:
"murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity."
are the wrongs committed through the act which is prohibited, that is an act which is "in violation of the laws and customs of war.1 When thus understood we then find, by a study of the subparagraph under consideration, that only one of the acts, which are defined as the "atrocities or offenses", that is to say, the injuries, resulting from the act or agency, criminal at international law, requires a criminal law definition by national standards, to wit:
Murder. All of the others have definitions capable of being ascertained by resort to accepted lay meanings of the words used.2 It follows that a discussion of the legal meaning of the term murder is essential to a clear understanding of the issues here presented.
1. We point out, in Appendix 3, that one of the guilty relationships to the crime, defined in Par. 1 of Article 2 of Law 10, must also be established as apart of the Prosecution's case.
2. We point out that we are referring now to the precise language of the sub-paragraph. In this case the prosecution also contends that the crimes of "kidnapping and false imprisonment" are included within the words "deportation.... for any other purpose, of civilian population from occupied territory" and that the language last quoted describes the injurious or prohibited act resulting from the international crime identified as the NN (Nacht und Nebel) Decree of 7 Dec. 1941. Therefore the prosecution will also give the legal definition of those crimes. Of course the prosecution likewise contends that those NN prisoners who were sentenced to death by reason of RJM participation in the carrying out of that decree were "murdered."
9798-P We first point out that the law presumes all homicides to be committed with malice aforethought and to constitute murder and that the burden is on the accused to show circumstances of alleviation, excuse or justification.
We new conclude that the drafters of Control Council Law 10, like their predecessors the drafters of the Charter, had in mind a common law definition of murder since they did not see fit to expressly define it. This being true, we repeat here the definition of the term as Mr. Justice Stephens found it to exist in the common law of England in 1877, which we offered in our opening statement.
We stated, at that time that an unlawful homicide without adequate provocation was murder, if it followed from an act accompanied by one of the following states of mind: (1) an intention to cause the death of, or grievous bodily harm to any person; (2) knowledge that the act will probably cause either of these results, even though the actor hopes that they might not occur or is indifferent about them; or (3) an intention to commit a felony or to resist a peace officer in the executions of his duty.
This definition is a fair statement of the law and therefore in the executions of his duty.
This definition is a fair statement of the law and therefore a proper one for this court to follow.
The prosecution also contends as pointed out in footnote (2), supra, that the following language of sub-paragraph (b) of Paragraph 1, "deportation .... for any other purpose, of civilian population from occupied territory" defines the injurious and wrongful act resulting from the "violations of the laws and customs of war", inherent in the NN (Nacht unt Nebel) Decree of 7 December 1941 and the participation of the RJM in the conduct of that decree. If these prisoners were not deported also for "slave labor", which we do not admit, they certainly were deported for an "other purpose", namely, wrongful removal without their consent by force from occupied countries, therefore, kidnapping, unlawful trials resulting in wrongful and therefore false imprisonment 9798-Q and death sentences, therefore murder, as her in above defined.
It is helpful, if not absolutely necessary, to define "kidnapping" and "false imprisonment".
"Sec. 773. Kidnapping at common law was defined as the forcible abduction or stealing away of a man, woman or child, from their native country and sending them to another. It was treated as an aggravated false imprisonment, all ingredients in the definition of the latter offense being necessarily comprehended in the former, with the additional ingredient of carrying the imprisoned person out of his own country and beyond the protection of its laws."
False imprisonment in its broadest sense is defined as an unlawful physical restriction of corporal liberty. 4 This definition is adequate, but its application to the facts in this case, particularly to those arising from the NN program, is pointed up, when we observe that arrest and detention by an officer, real or pretended, acting without authority has been held to support a charge of false imprisonment -- unlawful physical restriction of We proceed to a discussion of Control Council Law 10, Article II, Par.
1 (c) which defines Crimes against Humanity, as follows:
"(c) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic lab's of the country where perpetrated."
The gravamen of the crime defined in this sub-paragraph is the following -- "Atrocities or offenses ...... on political; racial or religious grounds -- whether or not in violation of the domestic laws of the country where perpetrated." The balance of the subparagraph reading from "murder" through "persecutions", both inclusive, constitutes the description or definition of the "Atrocities and offenses" which are made unlawful. Therefore, any act of these defendants done on political, racial or religious grounds, which is 3. Wharton, CRIMINAL LAW, (12.
ED.) 1932, 4. Wharton, CRIMINAL LAW, (12 Ed.) 1932, Sec.
779.
9798-R at the same time, for example, a murder, or an act of extermination, provided that it is also an act which places the defendant in any of the relationships, defined in Law 10, Article II, Par.
2, (discussed in Appendix 2), to the murder or extermination, is a crime as so defined. The legal affect of the last phrase, "whether or not in violation of the domestic laws of the country where perpetrated", is merely to eliminate obedience to or reliance on domestic laws condoning, authorizing or affirmatively ordering" murders, exterminations......... or persecutions", on the prohibited grounds, as a defense. Which is but another way of saying legally that at international law, such domestic laws are unlawful.
This then must be the Conclusion of the four great powers, which wrote Control Council Law 10 as an international enactment, and the powers which adhered to it. As the Government pointed out in the opening statement in the Case Number V. the Flick case, the fact that this International Tribunal was given jurisdiction to try the crimes, in the absence of any existing duly qualified tribunal, does not affect the validity of the decision, set out in Control Council Law No. 10, that the crimes therin defined were crimes under existing international law when committed.
Sub-paragraph (d) of Par..1 of Article II of Law 10 reads as follows:
"(d)* Membership in categories of a criminal group or organization declared criminal by the International Tribunal."
This sub-paragraph must be read in connection with the judgment of IMT as to each organization and then applied separately to the facts in this case, as they affect each defendant charged with a violation of this sub--paragraph. Consequently no purpose is served by a further discussion of this sub--paragraph.
9798-S Respectfully submitted.
CHARLES M LaFOLLETE ROBERT D. KING For Brig.
Gen. Telford Taylor Chief of Counsel for War Crimes of Counsel:
ALFRED M. WOOLLHAN SADIE B. ARBUTHNOT ARNOLD BUCHTHAL RUDOLPH AULRBACH
On the Brief PETER BEAUVAIS HENRY EINSTEIN Export Assistants 9798-T M I L I T A R Y T R I B U N A L III Case No. 3 THE UNITED STATES OF AMERICA - AGAINST JOSEF ALSTOETTER, et al.
THE RULES OF INTERPRETATION OF CRIMINAL STATUTES AND THE RULES OF PROCEDURE WHICH APPLY HERE.
APPENDIX 4 To Prosecution Final Argument We are concerned here with the rules of interpretation of criminal statutes and of substantive criminal law which in turn determines the procedural rules by which the law fixes the duty to go ahead with the proof and the court decides questions involving failure of proof, The rules of interpretation of criminal statutes come first and.
will be discussed first.
It is a law that where a criminal statute defines unlawful conduct end also defines an exception which has the effect of relieving from guilt under certain definite circumstances, then the exception so stated is an affirmative defense. Under such a statute the rules of procedure logically require that in a trial under an indictment based upon such a statute it is not the obligation of the prosecution to disprove the existence of the exception in order to make a prima facie case.
On the contrary under such a statute it is the obligation of the defendant to go ahead and present some evidence of the factual existence of the exception if he intends to rely upon the exception stated as a defense.
This is true also of crimes which do not include in their definition an affirmative defense, but to which there is nevertheless a defense which the law has recognized as an affirmative one or to those cases where the law provides varying degrees of punishment as in the case of homocide under varying factual situations. As an example, the law presumes all homocides to be committed with malice afore-thought and 9798-U to constitute murder, the burden is on the accused to show circumstances of excuse or justification, such as self-defense, or of allevia(1) tion , such as hot blood produced by adequate cause, sufficient to change the homocide from murder to voluntary manslaughter.
In such cases also, it is incumbent upon the defendant to offer proof of the facts constituting the justification or alleviation if he is to defend against the charges of murder. This is of course subject to the rule that where the prosecutions evidence includes facts from which the justification or alleviation may be inferred, the defendant may, at his option, rely on that proof rather than to introduce proof affirmatively after the prosecution has rested its case.
The fundamental rule is this, that the prosecution does not have to negative affirmative defenses by proof beyond a reasonable doubt in order to make a prima facie case. The prosecution in murder, for instance, must prove a premeditated malicious killing by the defendant beyond a reasonable doubt. If the defendant offers proof that he acted, in self--defense it is sufficient if the evidence on self-defense raises a reasonable doubt that under all the evidence the homocide was murder. The defendant does not have to produce evidence which proves self-defense beyond a reasonable doubt, but if he relies on selfdefense, he must be able to point to some evidence in the case which tends to prove self-defense, it is then still the duty of the prosecution to convince the jury that the evidence on the issue of selfdefense is so inconclusive, when considered, with all the evidence in the case, that no reasonable doubt exists to affect their convictions that the homocide was murder.
We next apply these rules to the Law 10 and the pertinent provisions of international law which are controlling in this case.
Law 10, Article II, par. 1 (b) defines War Crimes. The provisions which are pertinent to this Appendix are the following:
1. Wharton, Criminal Law (12 Ed.) 1932, Sec, 419.
9798-V "Atrocities of offenses against persons or property constituting violations of the laws or customs of war, including but not limited, to murder, ill-treatment or deportation, to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity."
It is clear then that "offenses constituting violations of the laws and customs of war" are the acts which are made unlawful. This is (2) the unlawful agency, element two of the corpus delicti of the crimes here defined - It is the murderer's gun, the arsonists torch, the enslaver's chains used by him "against persons or property" to commit "murder, ill-treatment" and the other results which are enumerated in the balance of sub-paragraph (b) of Paragraph 1. When persons are killed, houses burned, or persons imprisoned or enslaved by an "offense .... constituting a violation of the laws and customs of war" then the crime and its corpus delicti has been established. But this statute also names an exception, that devastation is not a violation of the customs and laws of war" when "justified by military necessity". No more apt language could be used to indicate that "military necessity" is a "justification" of a course of conduct otherwise prohibited, as unlawful. No rule of law is clearer that facts so stated as matter in justification constitutes an affirmative defense, upon which issue the defendant is bound to "joint to some evidence in support of the defense introduced by the prosecution or to introduce some evidence in support of the issue in his own case, if the court is to entertain the defense.
It is further true that the laws and customs of war, violation of which constitutes War Crimes as defined by Law 10 in this case, are (3) those alleged in the Indictment and included, in the proof. Since the proper application of the same rules of construction and procedure is also presented as a legal issue by the language of certain articles of the Hague Conventions, it is fitting and proper to review those also 2. See Pros.
Closing Statement pp. 3 and 4.
3. Justice Case, (Fra. 2585 and 2762) 9798-W in this Appendix.
Articles 23 (h) of Sec. II of Hague Convention of 1907, IV, reads as follows:
"Article 23 In addition to the prohibitions provided by special Conventions, it is especially forbidden --(h) To declare abolished, suspended or inadmissable in a Court of Law the rights and actions of the nationals of the hostile party."
This language is equivalent to the "It is unlawful" usually found in criminal statutes and since it also declares no affirmative defenses it requires no special discussion here.
Article 45 of Sec. III of Hague Convention of 1907, IV, also requires no special discussion for precisely the same reason, however, it will be helpful to set it out in this Appendix.
"Article 45 It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power."
Article 43 and 46 of Sec. III of Hague Convention of 1907, IV present special questions which require special presentation. Both define unlawful acts violation of which is criminal under International Law. But the language used is not that which we customarily find in criminal statutes, consequently the prosecution believes that it is not only permissible but helpful to restate the meaning of ee.ch of these articles, particularly Article 43, in language which will clearly disclose the applicability of the rules of construction and procedure which we have been discussing.
Article 43 in its present form reads as follows:
"Article 43 The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented the laws in force in the country."
The Prosecution submits that the exact legal equivalent of the above language is the following:
"The authority of the legitimate power having in fact passed, into the hands or the occupant, the latter shall take all the measures 9798-X in his power to restore and ensure, so far as possible, public order and safety.
It is unlawful for the occupant to refuse to respect the laws in force in the occupied country, unless it is absolutely prevented from doings We thus see that when the meaning of Article 43 is stated in the form customarily used in criminal statutes, that the "refusal"of the occupant "to respect the laws in force in the occupied country" is the unlawful act.
This unlawful act may be excused or justified if the occupant is "absolutely prevented" from respecting those laws. It is obvious therefore that the language of Article 43 in its original form makes the defense, available to the occupying power, of being "absolutely prevented" from following the lawful conduct enjoined upon it, an affirmative defense. As such, the Prosecution is not obliged to negative this defense in order to make out a prima facie case. If there is no evidence upon that issue then this defense is not before the count. If there is some evidence then the court is obliged to consider it, along with all of the evidence in the case in determining whether the guilt of any defendant has been established beyond a reasonable doubt.
Article 46 presents no issue of affirmative defense, but it would seem proper to present it also in language which will clearly show the criminal character of the article. In its present form the article reads as follows:
"Article 46 Family honor and rights, and the lives of persons, and private property, as well as religious convictions and practices, must be respected.
Private property cannot be confiscated."
In a form which will expressly set out the criminal liability inherent in this article it can be properly restated as follows:
"It is unlawful for the occupant to refuse to respect family honor and rights, the lives of persons and property, the religious convictions and practices of the inhabitants of the occupied country. It is further unlawful to confiscate private property."
We also point out that the alleged presence of coercion, either as a defense or as matter in mitigation, under clause (c) of Paragraph 2 9798-Y (4) of Article II of Law 10 , is an affirmative defense or evidence in mitigation of punishment which the prosecution is not required to negative as part of its case in chief.
Paragraph 1 (c) of Article II of Law 10, defining Crimes against Humanity, states no affirmative defenses. Consequently it presents no problems of construction or procedure which need to be discussed in this Appendix.
Respectfully Submitted CHARLES H. LAFOLLETTE ROBERT D. KING FOR BRIG.
GENERAL TELFORD TAYLOR, CHIEF OF COUNSEL NOR WAR CRIMES.
ALFRED I. WOOLEYHAN SADIE B. ARBUTHNOT ARNOLD BUCHTHAL RUDOLPH AUERBACH On the Brief PETER BEAUVAIS HENRY EINSTEIN Expert Assistants 1. See Appensix 2, to Prosecution Closing Statement 9798-Z Court No. III, Case No. III.
MILITARY TRIBUNAL III
Case No. 3.
THE UNITED STATES OF AMERICA - against JOSEF ALTSTOETTER, at al.
CHRONOLOGICAL SUMMARY OF DOCUMENTARY PROOF RECEIVED IN EVIDENCE ON THE ISSUE OF "NACHT UND NEBEL" during Prosecution Case-in-Chief APPENDIX 5.To Prosecution Final Argument The evidance on the issue of the guilt of the defendants for participation in the initiation of and the enforcement and administration of the Nacht und Nebel decree occupies so substantial a part of the evidance in this cause, that the Prosecution has felt it proper to incorporate a chronological summary of the documentary proof on this subject by the Prosecution in its case-in-chief.
We point out that this does not include the oral testimony introduced on behalf of the Prosecution nor any of the testimony of the defendants or any of their witnesses, nor any of the documentary proof introduced by any of the defendants. It also does not include any matters testified to by any defendants on cross-examination or any testimony of any witness or any documentary proof received in evidence during the presentation of the Prosecution's rebuttal testimony CHARLES M. LaFOLLETTE ROBERT D. KING For Brig.
Gen. Telford Taylor, Chief of Counsel for War Crimes ALFRED M. WOOLEYHAN SADIE B. ARBUTHNOT ARNOLD BUCHTHAL RUDOLPH AUERBACH On the Brief 9798-AA Court No. III, Case No. III.
PETER BEAUVAIS HENRY EINSTEIN Expert Assistants Chronological Summary of Documentary Proof Received in Evidence on the Issue of "Nacht und Nebel" during Prosecution Case-in-Chief Exhibit 303 (1733 PS) In Hitler's name, coincident with Pearl Harbor (7 Dec.
1941), Field Marshal Keitel secretly ordered "the most severe measures" against anti-German activists in the occupied countries in order to intimidate them". The death penalty was declared applicable generally. Norway, Holland, France, Bohemia, Moravia, and the Ukraine were expressly affected. The Reich Minister of Justice was held personally responsible for executing this order as to all foreigners brought into the Reich for trial; and empowered to issue all necessary directives to that end. All proceedings were to be conducted with absolute secrecy.
Exhibit 304 (671 PS) The above secret order was personally sent to the Reich Minister of Justice five days later, and was endorsed to defendant Schlegelberger for his attention.
Exhibit 305 (669 PS) On the same day (12 Dec.
1941) as the secret NN order was transmitted to the Ministry of Justice, Keitel informed other Ministries of Hitler's opinion that even life imprisonment was a sign of weakness in punishing attacks on Nazi forces in occupied countries. "An effective and lasting deterrent can only be achieved by death sentences or by measures which will keep the relatives of the culprit and the population in suspense concerning the fate of the culprit. This purpose is served by deportation to Germany."
9798-BB Court No. III, Case No. III.
Exhibit 306 (NG 077 / 655 PS) Four days later (16 Dec.
1941) officials of the Ministry of Justice (Schaeffer and Grau, associates of defendant Mettgenberg in Dep't III) drafted a proposed order for execution of Hitler's NN decree by the courts and Reich prosecutors, and forwarded this draft to General Lehmann, head of Keitel's OKW legal department, for his approval.
Exhibit 307 (NG 484) General Lehmann swore and deposed that, in his opinion, defendant Schlegelberger as the then -.Acting Minister of Justice was the only person who could consent to taking over the NN cases by the Ministry of Justice.
Freisler, after agreeing with Lehmann that it was better for such cases to remain with the courts rather than to be handed over to the Police, promised to speak to Schlegelberger on the matter. Lehmann's advisers discussed "legal" steps for executing the NN program with defendant Mettgenberg; Mettgenberg's subordinates handling these cases were, as Lehmann remembers, the defendants von Ammon and Joel. Even after Joel left the Ministry to become General Public Prosecutor at Hamm in 1943, a Special Court in Hamm continued to try NN cases.
NOTE: Lehmann's oral testimony confirms the foregoing and elaborates certain details (Transcript pp. 2537-2643). Both the defendants Mettgenberg and von Ammon were intimately connected with the origin of the NN program, and were aware of its dubious international complications. As the defendant Mettgenberg deposes in Exhibit 336 (NG 696):
"The 'Night and Fog' Section, within my Sub-Division, was headed by Ministerial Counsellor von AMMON. This matter was added to my Sub-division because of its international character. I knew, of course, that a Fuehrer Decree to the OKW was the basis for this 'Night and Fog' procedure and that an agreement had been reached between the OKW and the Gestapo, that the OKW had also established relations with the Minister of Justice and that the handling of this matter was regulated accordingly.
9798-CC Court No. III, Case No. III.
"I was not present at the original discussion with FREISLER, in which the 'Night and Fog' matters were first discussed on the basis of the Fuehrer Decree. If I had been present at this discussion, and if I had an occasion to present my opinion, I would at any rate, have spoken against the taking over of the 'Night and Fog' matters by the Justice Administration. It want against my training as a public servant to have the administration of justice misused for things which were bound to be incompatible with its basic principles."
As the defendant von Ammon deposes in Exhibit 337 (NG 486):
"When, on the basis of the Fuehrer decree of December 1941, the so-called NN matter--i.e-. the 'Night and Fog' matter-- was initiated, I was entrusted with its treatment in Department IV. On about 7 February 1942, CROHNE, than my department Chief, asked me to appear at a conference at the office of Under State Secretary FREISLER. Present at this conference were the presidents and general public prosecutors, or their representatives, of the Courts of Appeal of Berlin, Cologne, Hamm and Kill; the Ministry of Justice according to my recollection, was represented by the Division chiefs of Divisions III and IV; the specialist in Division III, Ministarialrat GBAU; the Adjutant of Under State Secretary FREISLER, Dr. von HACKWITZ. During this conference, Under State Secretary FREISLER announced HITLER'S decree of December 1941, concerning the treatment of 'Night and Fog' matters and notified us in connection with it of the fact and the manner of the Ministry of Justice's involvement in the treatment of these cases. Then FREISLER read and explained the decree and the announcement which had been signed on that day by SCHLEGELBERGER.
"Tha decree of 7 Fabruary 1942, signed by SCHLEGELBERGER, contained, among others, the following provisions: Foreign witnesses could be heard in these spacial cases only with the approval of the public prosecutor, since it was to be avoided that the fate of NN prisoners bacame know outside of Germany.
"Tha presiding judges of tha courts concerned had to notify tha public prosecutors if they intended to deviate from their motion for a sentence. FREISLER noted in this connection that this constituted tha utmost limit of what could be asked of the courts. Tha spacial nature of this procedure made it necessary to make such provisions.
"Later, when THIERACK entered tha Reich Ministry of Justice, he changed tha decree in such a manner that tha courts no longer had to declare their dissenting views to tha public prosecutor, but that tha acquitted NN prisoners or those who had served their sentences had to be handed over by the court authorities to the Gestapo for protective custody. Under Secretary of State SCHLEGELBERGER himself was not present at tha conference, but Under State Secretary FREISLER left tha conference briefly in order to secure tha signature Of SCHIEGELBERGER."
9798-DD Court No. III, Case No. III.
"I must admit that, in dealing with these matters, I did not particularly feel at ease. It was my intention to get the best out of this thing and to emphasize humanitarian considerations as much as possible in these hard measures. I have seen from the first Nurnberg trials that the court has declared the 'Night and Fog' decree as being against International Law and that KEITEL, too, declared that he had been aware of the illegal nature of this decree."
Exhibit 303 (NG 232) Early in 1942 the Ministry of Justice, in an order signed by Freisler, established jurisdiction for those Special Courts designated to try NN cases as follows:
Origin of case Special Court in Germany design:
ted to try Occupied France ----------- Cologne Occupied Belgium and Netherlands ------ Dortmund Occupied Norway --------- -- Kiel Remainder --------- -- --- Berlin Prosecutors at the above Special Courts were instructed that inquiries concerning the accused or the pending trial from sources other than those Army and Police agencies dealing with the case, were to be answered by merely stating that.
.. " is arrested and the state of the trial does not permit further information."
NOTE: In Exhibit 336 (NG 696) and Exhibit 337 (NG 486) the defendants Mettgenberg and von Ammon depose in detail their official visits to other European countries to enforce NN transfers to Germany (pp. 157. 163, Doc, Book VI); their negotiations with the People's Court and Special Courts to try NN prisoners, involving specific knowledge and consent of the People's Court Chief Reich Prosecutor (Defendant Lautz) (pp. 162-3, Doc. Book VI); that the greater part of those NN prisoners tried by the People's Court were sentenced to death (p. 163, Doc. Book VI); that the housing of NN prisoners required the attention of the defendant Engert as head of Division V in the Ministry (p. 163, Doc. Book VI); that the handing over of corpses of executed NN defendants to the Gestapo belonged either to their Department IV or to Engert's Department V (p. 164, Doc. Bock VI); and that all leading 9798-EE Court No. III, Case No. III.
officials of Departments III, IV, and V of the Ministry should have been familiar with the NN program (P. 164, Doc. Book VI), which in addition to the foregoing includes the defendant Joel.
The defendant von Ammon commented thus (p. 164, Doc. Book VI): "The essential point of the NN procedure, in my estimation, consisted of the fact that the NN prisoners disappeared from the occupied territories and that their subsequent fate remained unknown."
Exhibit 310 (2521 PS) Certain concentration camps including Nauthausen, Auschwitz, Flossenberg, Dachau and Buchenwald, etc.
, were instructed in August 1942, that NN prisoners removed from other countries to Germany were to be transferred to a Special Court; should that, for any reason, be impossible, the accused would be put into one of the above camps. Complete orders 'n absolute secrecy of such persons' detention were given, including prevention of any means of communication with the outside world either before or after trial.
Exhibit 311 (NG 250) Prosecutor at Essen Special Court notified the Ministry of Justice, on 20 August 1942, that of five pending cases against NN prisoners the death penalty was expected in at least three.
Instructions were requested as to whether executions of NN defendants, whose number in future would be "very large", should be by guillotine or shooting.
Exhibit 312 (NG 228) Defendant von Ammon prepared, signed and circulated to defendants Mettgenberg and Rothenberger a report summarizing NN cases pending at the following Special Courts on 1 September 1942:
Kiel - -- ----- 262 defendants from Norway Essen -- ----- 863 defendants from Belgium and France Cologne ------ 331 defendants from France Von Ammon advised that the first main NN trials opened on 9798-FF Court No. III, Case No. III.