Circular message to military and security offices announcing the use of military executions for serious crimes in occupied territories, and the Night and Fog prosecutions for less serious crimes

SECRET
High Command of the Armed Forces Berlin, 2 February 1942 Foreign offi.ce/lntelligence/Intell. Dept. Ill No. 570/1.42 g (ZR/
III C 2
Subject: Prosecution of crimes against the Reich or the occupying forces in the occupied territories
Wehrm. High Command 7 Feb. 1942 No. 221 / 42 g
further: to: 149/10 10
Reference: None Inclosures: 3
In the enclosure are transmitted
1. a decree of the Fuehrer and Commander in Chief of the Armed Forces of 7.12.41
2. an executory decree of the same day
3. a circular of the Chief of the Armed Forces High Command of 12.12.41
The decree carries a basic innovation. The Fuehrer and commander in chief of the armed forces commands that crimes of the specified sort committed by civilians of the occupied territories are to be punished by the pertinent courts martial in the occupied territories only when
(a) The sentence calls for the death penalty and (b) the sentence is pronounced within 8 days after the arrest.
Only when both conditions are met does the Fuehrer and commander in chief of the armed forces hope for the desired deterrent effect from the conduct of punitive proceedings in the occupied territories.
In other cases in the future the accused are to be secretly brought to Germany and the further conduct of the trial carried on here. The deterrent effect of these measures lies
(a) in allowing the disappearance of the accused without a trace,
(b) therein, that no information whatsoever may be given about their whereabouts and their fate.
This decree brings only insignificant changes of their activity to the intelligence [Abwehr] agencies. Now as before the intelligence agencies determine the time for the arrest of the espionage and sabotage suspect. However, in conjunction with es-
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tablishment of the time it must however be considered now that previous to the arrest evidence fully sufficient for the conviction of the perpetrator must if possible be on hand, for further investigation hardly comes into question after the seizure, since a sentence must take place within 8 days, or on the other hand further investigation on the spot by confrontation is made impossible by the evacuation of the prisoners to Germany. Therefore contact should be made with the pertinent military court previous to the arrest in order to check on the question as to whether or not the collected evidence suffices.
When in the opinion of the pertinent court martial and/or the military commander an immediate conviction on the spot is not possible, and the perpetrators are therefore to be evacuated to Germany, the intelligence agencies will inform Reich security headquarters [Reichssicherheitshauptamt] in Berlin SW 11, Prinz Albrecht-Str. 8, attention of Herr Kriminaldirektor Fischer, directly, with a statement of the exact number of prisoners and the groups that belong together according to the circumstances of the individual case. Insofar as in individual cases the superior commander has an urgent interest in the conviction by a Wehrmacht court, this will be brought to the attention of Reich security headquarters. A copy of the whole report to Reich security headquarters is to be sent to the Foreign Offiee/Intelligenee, Intelligence Department III.
The Reich security headquarters will determine a state police office, depending on accommodation possibilities, which will take over the prisoners. This state police office makes contact with the proper intelligence office and arranges the details of the evacuation, particularly if it will be handled by the secret military police, military police, or by the Gestapo itself, as well as manner and place of transfer of subjects.
The decree of the Fuehrer is to be applied, to begin with, only in the occupied western territories (Norway, Netherlands, Belgium, and Northern France, France).
The intelligence agencies must make report to the chief of staff on the above regulations decreed by the foreign office intelligencer.
For the Chief of the Wehrmacht High Command
Signature: CANARIS
Distribution:
To (Intelligence III) For information:
127
West (Armed Forces Operational staff.)
1
15
WR
601
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Foreign Office Intelligence Z, ZR Foreign Department Intelligence III W, H, M, Air
FPdW, F, C, Cl, C2, each 1
Wi
U
Reich Security Headquarters, Department IV E,
attention of Kriminaldirektor Fischer
Original
Supply
1
1
40
2
1
9
1
2
200