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.
31 August 1942 and that the first death sentence was passed on that day Exhibit 313 (NG 226) Freisler, then President of the People's Court, wrote Thierack in October 1942 that, in view of proposed expansion of People's Court jurisdiction over NN cases, Thierack should realize this was done in first place because of the necessity in NN cases that sentences demanded by the Prosecution and passed by the Court should under no circumstances diverge.
A subsequent letter to defendant Lautz and other prosecutors, from Thierack, information copy to defendant von Ammon, established an expanded jurisdiction of People's Court over certain NN cases.
Exhibit 314 (NG 255) In response to several inquiries from Prosecutors at Special Courts in Hamm, Kiel and Cologne, citing specific cases, defendants Mettgenberg and von Ammon replied that in view of regulations for keeping NN trials absolutely secret, defense counsel choses by NN defendants could not be permitted.
Exhibit 315 (NG 271) Foreign Countries Department of the Wehrmacht High Command reported to defendant von Ammon, in October 1942, a list of 224 allaged French "spies" arrested in France in execution of the socalled "Action Porto"; 220 of these had already been transferred to Germany.
A later directive (Exhibit 316 NG 272) initialled by defendant Mettgenberg and sent to the SS Chief, Himmler revealed that such "Action Porto" prisoners were to be treated the same as NN prisoners; detailed orders were given concerning secret measures to be taken after the death of these prisoners.
Exhibit 309 (NG 708) The office of defendant Lautz, Reich Chief Prosecutor at the People's Court, in December 1942 indicted 2 Poles from Paris pursuant 9798-GG Court No. III, Case No. III to the NN order for having cached communistic pamphlets and arranged for their transfer to Germany for trial.
The trial was discontinued when it was discovered that one defendant, a woman student, already had "died" in auschwitz concentration camp while in pretrial detention, and the other defendant already had been shot by the SS without trial in a temporary "special detention camp". Before learning this, however, Lautz' office instructed prison officials as follows:
"The accused is not to be allowed to write or to receive letters, parcels or visitors. Care mast also be taken not to give any information in reply to inquiries by relatives which may reach the Prison concerning the accused."
Exhibit 318 (NG 267) The Attorney General of the Special Court at Essen, on 20 February 1943, notified the Ministry of Justice that NN defendants were being turned over to the Gestapo after either acquittal or service of sentence.
Exhibit 319 (NG 269) In an order initialled by members of Ministry Divisions III and IV (the defendants Mettgenberg and von Ammon), Division V (headed by defendant Engert), and Division VI (headed by defendant Altstoetter), all so concerned were directed to take further measures "in order not to endanger necessary top secrecy of the NN procedure," Separate copies of this order, dated 8 March 1943) were sent to the Chief Reich Prosecutor at the People's Court (defendant Lautz) and to defendant von Ammon.
These further measures included cessation of proper registration of births and deaths, impounding of any legacies or willed property, prohibition of farewell letters or any information to relatives or the press of deaths or executions, and transfer of corpses to the Gestapo for secret burial in unmarked graves.
Exhibit 317 (NG 253) On 9 February 1943, Department IV of the Ministry of Justice proposed a procedural change in NN trials whereby NN defendants could be deprived of defense counsel at the discretion of the presiding judge;9798-HH Court No. III, Case No. III.
defendants Mettgenberg and von Ammon, both of Department IV, approved this measure after which it was sent to various Special Courts trying NN cases, for comment. The President of the Special Court at Essen observed, in this connection, viz:
"The interests of foreign defendants can hardly be considered sufficiently important to justify continuous demands of this kind on staff and public funds." (See transcript p. 2460) Exhibit 320 (NG 256) In May 1943 Thierack informs Freisler that the Chief Prosecutor at the People's Court (defendant Lautz) has not been treating German nationals as NN prisoners, and consequently authorizes German nationals to have self-chosen defense counsel although NN defendants can not.
The directive is indorsed by defendant von Ammon.
Exhibit 381 (NG 204) A memorandum of 26 May 1943, addressed among others to defendant Mettgenberg, advised that a recent lecture by a RSHA official characterized the NN program viz:
"Nacht und Nebel' measures constitute in effect a renunciation.of regular procedures of criminal lawin the interest of a mere effective fight against anti-German activities in occupied territories."
Exhibit 321(NG 243)
A Ministry of Justice directive of 3 June 1943 states that foreign nationals of countries other than the occupied countries, are also being transferred into Germany and tried as collaborators with NN defendants from occupied countries. Separate copies of this directive were sent to defendants Lautz and von Ammon, and the original was initialled by several officials in Departments III, IV and V of the Ministry.
Exhibit 322 (NG 257) Thierack wrote to Kaltenbrunner, Chief of the SD in July 1943, confirming arrangements whereby corpses of executed NN defendants would 9798-II Court No. III, Case No. III.
continue to be transferred to the Gestapo for secret burial unless an anatomical institute wanted them for experimentation.
Exhibit 323 (NG 281) Defendant von Ammon, in Berlin 2 October 1943, wrote a memorandum to the Ministry files concerning a discussion he had with the defendant Lautz.
The question discussed was whether < r not NN defendants should have indictments translated into a language such foreigners could understand. As von Ammon wrote:
"It proved rather awkward that defendants learned the details of their charges only during trial. Also the interpretation by defense counsel is not always sufficient because their French mostly is not good enough and defendants were brought to the place of trial only shortly before it was held." (p. 99, Doc. Book VI).
Exhibit 325 (NG 282) A file copy of a Ministry of Justice survey, as of 1 November 1943, showed the following disposition of NN defendants:
a) Turned over by Wehrmacht tion to Special at Kiel, Court Essen, Prosecu- and Cologne:-----------5240 defendants
b) Indicted by Prosecution at above Special Courts and People's Court: ----- --1786 defendants
c) Sentenced by Courts enumerated in (b): ------------ 1230 defendants Exhibit 324.
(NG 216) In minutes signed by both of them, defendants Mettgenberg and von Ammon recount details of a conference they attended at The Hague on 2 November 1943, the purpose of which was to settle the method dealing with future Dutch NN defendants.
Mettgenberg spoke at the conference concerning the necessity of enforcing Hitler's NN decree strictly, and as to how Dutch defendants could be transferred to the Essen Special Court for trial. Both Mettgenberg and von Ammon emphasized the need for close liaison with Wehrmacht occupation forces on these Dutch cages, as was already being carried out concerning French and 9798-JJ Court No. III, Case No. III.
Belgian cases. En route back to Berlin, they consulted the defendant Joel at Hamm; he favored housing additional Dutch NN prisoners in his area (Papenburg). Copies of the entire minutes regarding the above were submitted, among others, to the State Secretary (then the defendant Rothenberger) and to defendant Engert.
Exhibit 448 (NG 294) A secret letter of 29 December 1943 to defendant von Ammon from the Presiding Judge and Chief Prosecutor of the Hamm Court of Appeals, notified von Ammon of an imminent conference concerning transfer of NN trials from the Netherlands to the Essen Special Court.
Exhibit 447 (NG 237) In answer to objections by the Chief of the SD that a transfer of NN cases arising in France from Cologne to Breslau for trial would cause insuperable transportation difficulties, a letter of 18 January 1944 indorsed by defendants Mettgenberg and von Ammon insists that the transfer is necessary and directs its accomplishment.
Three days later a letter indorsed by Mettgenberg (Exhibit 446, NC 222) informed Himmler that this transfer of French NN cases had taken place.
Exhibit 329 (NG 233) The Minister of Justice, on 21 January 1944, wrote to the Chief of the OKA Legal Department (the witness Lehmann) requesting clarification of why the OKA Courts Martial in Belgium and France (who had jurisdiction over NN cases if a death sentence were immediately possible - see Lehmann testimony, transcript p. 2859) were at variance with the Special Courts in Germany on certain technical legal points in NN cases.
This letter was referred to defendant Mettgenberg for approval.
Exhibit 328 (NG 205) On the same day, the Minister of Justice issued a decree supplementary to that referred to in Exhibit 318 (p. i supra), whereby all 9798-KK Court No. III, Case No. III.
NN defendants who were acquitted or who had served their sentence were to be handed over to the Gestapo; the Gestapo then decided what further treatment was to be given. A copy of this decree was expressly reserved for defendant von Ammon, and the decree was also mailed to, among other recipients, defendant Lautz and defendant Joel (then Chief Public Prosecutor at Hamm) as well as to the Chief Public Prosecutors at Nurnberg and Stuttgart.
Exhibit 326 (NG 203) The attorney General at the Breslau Special Court, in a letter to the Ministry of Justice, requested that defendant von Ammon be made available for a conference in Breslau between 15 and 31 January 1944, concerning methods of handling NN trials.
Von ammon, after permission of defendant Mettgenberg, in fact attended the meeting on 29 January 1944, and reported results including a decision allowing the Prosecution to file NN indictments at once without prior Ministry approval, and an abridgment of reports on pardon requests in NN cases involving death sentences. A final letter from the Ministry to the German military Commander in France requested support in a plan for closer liaison between the addressee and the Breslau Special Court in NN cases, and proposed to appoint defendant von Ammon as a delegate at future meetings in Paris on the subject.
Exhibit 330 (NG 240) Defendant Joel, then attorney General at Hamm (26 January 1944), reports to Thierack suggestions for greater speed in trying NN cases, based on Joel's experience in such matters at the Essen Special Court in his district.
Joel's principle suggestion was that the Chief Reich Prosecutor at the People's Court (defendant Lautz) should turn over NN files for trial by Special Courts immediately unless it was certain that the People's Court would soon try the cases. Subsequent indorsements referred this matter to defendants von Ammon and Mettgenberg indicating they had conferred thereon.
9798-LL Court No. III, Case No. III.
Exhibit 504 (NG 1046) The defendant von Ammon attended conferences with Public Prosecutors in Breslau, and Kattowitz (Poland), on 18-19 February 1944, concerning housing of NN prisoners and possibility of transferring NN cases from the Netherlands, Belgium and Northern France to Special Courts in Poland for trial; von Ammon reported the results of these conferences in detail to, among others, the defendant Klenrn (Under Secretary), and personally wrote on his report that he had secured appropriate Gauleiters' concurrence to the proposed transfer.
Shortly thereafter the Ministry of Justice issued a decree indorsed to the defendant Mettgenberg for signature, and submitted twice to von Ammon for information and co-signature, whereby these Dutch, Belgian and Northern French NN cases were to be transferred to Silesia for trial. In response to this decree, von Ammon was personally notified that the defendant Joel (then General Public Prosecutor at Hamm) feared objections from the Wehrmacht because of the longer transportation involved in the transfer.
Exhibit 331 (NG 230) Dr. Huelle (Gen.
Lehmann's subordinate in the OKW Legal Department (see Transcript pp. 2628-2633, and Exhibit 381, NG 204) sent defendant von Ammon an information copy of his letter to the German Foreign Office, dated 4 April 1944, in which Huelle comments on two notes from the French Ambassador and French Secretary of State. In face of these presumed French complaints, Huelle reiterated the essence of the NN program as enforced to date, and re-affirmed that the death penalty was being inflicted on such foreigners for political reasons on principle.
Exhibit 332 (NG 231) Defendant von Ammon reported, on 24 April 1944 details of his trip to Paris (referred to previously in Exhibit 236, NG 203). This official visit served particularly to obtain information about the German 9798-MM Court No. III, Case No. III.
security position in France and to test whether the criminal NN procedures of the Breslau Special Court (which tried NN defendants from France see Exhibit 326, p. o. supra) were approved by the Army. This meeting occurred in the office of the Chief Justice to the German Military Governor of Paris, General von Stulpnagel. Von Ammon submitted this report both to defendants Klemm and Mettgenberg, who initialled it (see Transcript p. 2489).
Exhibit 333, (NG 262) Similar to Exhibit 325 (p. (1) supra) but dated 5 months later, another survey of NN proceedings as of 30 April 1944 showed that of a total of 6,639 NN defendants transferred by the OKW to various Special Courts and the people's Court in Germany, 3,624 were indicted and 1,793 were sentenced.
1 Defendant von Ammon initialled this survey (see Transcript p. 2489, 90).
Exhibit 334 (NG 264) In a file of reports for the years 1943-44 of NN cases still pending in the Ministry of Justice, the Attorney General at Kattowice (Poland) stated to the Ministry the following.
"NN - (Nacht und Nebel) Prisoners held within the jurisdiction of the Court of Appeal of Kattowice are already employed to a large extent in the armament industry, regardless of whether they are being held for questioning or punishment, They are quartered there in special camps at or near the place of the respective industrial enterprise. In this way it is intended, if possible, to place all NN-Prisoners at the disposal of the armament industry.
"It has been disclosed that the NN-Prisoners already employed in the armament industry, as for instance the 400--odd prisoners working in Laband, have done a very good job and excel in particular, as skilled workers. The armament industry, therefore, wants to retain the employed NN-Prisoners also after their acquittal or after they have served their sentence.
1- Undisposed cases here are meaningless, because by that time NN defendants were being transferred to the Gestapo after either acquittal or service of sentence (Exhibits 318 and 328, supra; see also von Ammon affidavit, as quoted on p. (d) supra).
9798-NN Court No. III, Case No. III.
"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." ("see p. 148, Doc. Book VI) This request was handled by defendant von Ammon, who indorsed it as follows:
"Submitted...first to Department V (headed by defendant Engert*) with the request for an opinion If you have no objections I intend to contact the RSHS in accordance with the report of the Attorney General at Kattowice." (see p. 149, Doc. Book VI) Exhibit 327 (NG 247) Defendant von Ammon wrote Martin Bormann, Hitler's Deputy, on 14 June 1944 requesting permission to inform NN women defendants under death sentence of their reprieve, if and when a reprieve was granted, since he thought it unnecessarily cruel further to keep condemned woman in suspense for years as to whether their death sentence would be carried out.
Exhibit 335 (NC 261) Defendant von Ammon reported on a conference with German occupying forces of Belgium and Northern France, held in Oppeln 29-30 June 1944.
Von Ammon stated that since the Allied invasion had not caused undue tension as yet, it was unnecessary at that time to make penalties in NN cases more severe. This report was initialled by defendant Mettgenberg.
Exhibit 416 (NG 737) In the fall of 1944 Hitler ordered the discontinuance of NN proceedings by the Justice and OKW courts, and transferred the entire problem to the Gestapo, the NN prisoners being handed over to the Gestapo at the same time.
In subsequent conferences attended by de * Insert added 9798-00 Court No. III, Case No. III.
fendant von Ammon, the Ministry of Justice agreed to and later actually carried out the transfer of its NN prisoners from Reich prisons to Gestapo custody. The defendant lautz was ordered to suspend People's Court proceedings against NN prisoners and transfer them to the Gestapo. The witness Hecker deposed that those NN prisoners in the Berlin district, of which he had knowledge, were sent to Oranienburg Concentration Camp.
From the foregoing evidence it appears that the following defendants were connected with enforcement of the Nacht und Nebel program, listed here in descending order of their degree of participation and/or responsibility:
Schlegelberger von Ammon Mettgenberg Lautz Joel Engert Rothenberger Klemm Altstoetter 9798-PP AFTERNOON SESSION (The hearing reconvened at 1330 hours, 14 October 1947)