They were no longer submitted to the Under-Secretary as were all such reports in general, but by the proper department; in this case the department IV. They were examined and controlled, I believe; I have never seen any.
Q. Did you ever have to decide a case which concerned a death sentence against a Pole, that is to say, which would have fit into the scope of these lists of reports, Poles, who, outside of Germany in the so-called incorporated Eastern territories, had been sentenced?
A. No, because just about the death sentences, executions and pardons, the Reichs Governor and Chief President, in the incorporated Eastern territories had to decide.
Q. Then, in this connection concerning Poles, Jews, and members of the Protectorate, exhibit 343 was submitted, that is 664 PS, in document book V-C; that is a circular letter from Himmler with the classification of secret, and was sent to all Reich authorities. Your initial is on that letter because it was received in the Ministry and apparently came to your attention. In this letter it is stated that posters such as "no Jews permitted to enter public places and stores" should disappear. It was no longer necessary to show such practice to the public because the people concerned by evacuating and isolating them were no longer there. I ask you did that lead you to the conclusion that the Jews were to be exterminated or already at that time of this circular had been exterminated?
A. I would never have gotten a thought of that kind. I know nothing about the places in the East. I knew that Jews lived in a city for themselves in Theresienstadt near Leitmeritz. On the contrary, I remember having seen series of pictures in magazines, I believe pictures from Theresienstadt were shown of the Jewish mayor, of the Jewish police, also of the baths and restaurants, and similar things. Also, I believe from Warsaw, such pictures were shown in German illustrated magazines. One could not gather any more from that circular letter than that or conceive the thought that it had anything to do with the extermination or anything similar to it.
Q. In this connection concerning Poles and Jews, I once more want to refer to exhibit 441, that is the affidavit Altmeyer; Altmeyer says that you had shared the severe point of view of Thierack in cases of Poles and Jews. You have already told the Tribunal in clemency matters of Poles you had no decision to make. What can you say about that?
A. What Altmeyer says is not accurate. I did not have any possibility or opportunity to decide the cases of Poles. On the whole, individual cases were only submitted to the Minister or to the Undersecretary when they were concerned with death sentences, and they were brought before me only, and they were clear cases or acts committed wit in the boundaries of the Reich; but, as can be seen from exhibits 350 to 352 and 354 to 356, the right for clemency for Poles in the incorporated Eastern territories was reserved for the Reich Governor or the Chief President, and death sentences against Poles was so rare that I cannot remember any harsh sentences or severe decisions at all. It is certain, however, that the general tendency did not become more severe after I entered the Ministry of Justice.
Q. I should like to interrupt you here. Altmeyer, apparently did not only intend to mention death sentences against Poles, but he also wanted to mention that on the whole, penal procedures against Poles were very harsh and very severe with the consequence that the sentences became more and more severe; what can you say about that?
A. First I have to emphasize that by a decree of 20 December 1944, it was also in the Reichsgesetzblatt of 1944, page 353, that by that decree the minimum sentence on the basis of the decree concerning Poles, that is three months, penal camp was reduced to one month penal camp. Apart from that some advantages were granted to the Poles in the administration of penitentiaries, and I do not want to refer to these details now.
But, I do have to refer to exhibit 507, from that can be seen it is concerned with the statistics of penal jurisdiction, that a penal decree concerning Poles was applied in a manner as it would have been applied in any civilized country; that statistical list shows that of one hundred cases of Poles and Jews sentenced on the basis of decrees against Poles and Jews, 1.5 percent was sentenced to death; 67.7 percent to a normal penal camp; and 26.6 percent to fines. Of the normal penal camp sentences, 75 percent were to less than a year.
DR. SCHILF: May I tell the Tribunal that Exhibit 507 just mentioned by the witness is NG-787, to be found in Document Book I Supplement.
Q: Herr Klemm, this brings us to the end of this subject which we discussed on your influence as Under Secretary on sentences according to the penal decree concerning Poles and Jews. I should like to ask you now -
JUDGE BRAND: It was called to our attention that Exhibit 507 is in Book III-B Supplement. I think counsel inadvertently erred.
DR. SCHILF: Thank you very much, Mr. President.
Q: The decrees which were passed in 1944 -- we have just discussed the decree of 20 December 1944 -- did you, as for decrees which were published in the Reichgesetzblatt, if they were signed by Thierack - did you co-sign these decrees and consider yourself responsible for their contents? In 1944 and 1945 you were Under Secretary. Therefore, there are decrees and regulations in the Reichgesetzblatt, the Reich Legal Gazette, which are signed by you as Deputy to the Minister. Would you explain to us what the relation was between the work and the task of Thierack to yours as Under Secretary?
A: In 1944 Thierack issued altogether thirty-four laws and decrees over his signature which were published in the Reich Legal Gazette. My name appears in the Reich Legal Gazette only eleven times. That shows that Thierack rarely had to be represented by me. Of the eleven times, eleven cases where I signed for publication in the Reich Legal Gazette, with one exception they were unimportant matters. I would sign formal decisions, extensions of deadlines ... At least six of these decrees contain only two paragraphs, of which the second paragraph only mentions the date when that particular decree was to be in force.
An exception, however, is made by the decree of 25 August 1944, for the assurance of the total war effort - but that is a decree which the Minister had signed. However, at that time he was not present when he was supposed to sign the final draft, and to meet the deadline for the Reich Legal Gazette for the next issue that final draft had to be sent immediately to the printing offices, and that was the reason why I signed it at all. Thierack permitted me to sign decrees which were to appear in the Reich Legal Gazette when he happened to be present, but when that decree was only co-signed by the Ministry and when the leading party in bringing about that decree had it signed by an Under Secretary. That explains, for instance, why there are decrees in the Reich Legal Gazette, of which one has the signature of Thierack and the other my signature, and just the same they are of the same date. These are matters which Thierack had me sign because they were of minor importance, and too unimportant for him to sign them with his name.
JUDGE BRAND: May I ask you a question. The eleven occasions when you signed a decree, did they include the cases where you were a cosigner, or were they only the cases where you had signed alone?
A: At the moment I could not tell that. There are some which I signed by myself, but there are a few decrees which were also signed by other Ministries.
JUDGE BRAND: When you said eleven cases, did you mean to include all of the cases in which you were merely a co-signer?
A: They are included. Eleven times altogether my Case III, Court III name appears in the Legal Gazette.
Sometimes alone as signature under a decree; some times together with other names.
DR. SCHILF: May it please the Tribunal, in my Document Book I shall submit these decrees in the full text as exhibits and then one can see both their contents and their signature.
BY DR. SCHILF:
Q: Herr Klemm, I no longer want to ask you about the relations between the Administration of Justice and the Gestapo during the period when you were Under Secretary. That will be done by another defense counsel who will have to elucidate conditions during that period. The prosecution in connection with that relation between Gestapo and administration of Justice, submitted two exhibits from the time beginning with 1944 to 1945. Exhibit 43, NG-440Document Book I-B, German text page 100. And the second Exhibit 270, that is NG-372, Document Book IV-C. In the first case we are concerned with a speech by Himmler at a meeting at Kochem; in the second case it is a correspondence between two lawyers concerning the case Hense. Will you comment on these two documents?
A: Exhibit 43 is an announcement that Himmler, upon invitation of Thierack, had made a speech before general prosecutors and district court counsellors: The question of the development and the aims of the SS were discussed particularly the importance of the race question, biological questions of the race selection, aid so on. And that announcement states in the end that the judges and the prosecution, through the District Court of Appeals counsellors who had listened to that speech were to be instructed about the speech. And the last sentence is "You are requested to report about the impression of that speech among judges and prosecutors and to report in detail."
That remark and that request, did not emanate from the Administration of Justice by any means. It is a confidential directive on the part of the Security Service, the SD, to its confidential contact men within the Administration of Justice. The so-called "V" men -- Vertrauensmaenner -whose identity was not known to the Administration of Justice. They were to report what the impression and the reaction of that speech by Himmler had been. By a fortunate coincidence I came into possession of that SD announcement. From the outset it was clear to me that that request would result in an absolutely negative answer. And that, for the reason that Himmler's speech was a great disappointment. Thierack had invited Himmler to speak before the presidents of the District Courts of appeals and the general prosecutors. The subject was up to his discretion. He had asked for that. But one expected, and Himmler had been told about that by Thierack, that for that group Himmler should speak also about the problem of police and the Administration of Justice. Himmler failed to do so. He spoke for a long time, but exclusively about the SS which he had created, why he had created it, how he intended to develop it, and its individual tasks. Not a word was said about the police. Not a word about concentration camps. Not a word about the Administration of Justice. Nor about the relation between the Administration of Justice and the police. He only spoke about the SS. But not about its identity with the police, and about that which would have interested that group of listeners.
Case 3, Court 3 Of course, these were facts, which the Presidents of the Courts of Appeals and the General Prosecutors did not tell the offices and officials which were subordinate to them because that was not interesting from their official point of view.
The only thing that was interesting remained a fact that Himmler in spite of the nature of the group he had before him, failed to speak about the relationship between the Police and the Administration of Justice. Therefore, I called a friend of mine who was a member of the SS. He was in the RSHA and told him that it had absolutely no purpose to make that inquiry because the result of it would have to be a negative one. I gave as a reason that there was no opportunity to make notes and similar things and then I offered and it was arranged with me that I should receive the speech of Himmler in print. That was actually carried out. I was sent 100 copies of that speech and it was forwarded to the Presidents of the District Courts of Appeal so that they could give them away to others. That is the entire story of that document, which is purely an SD document.
Q. Would you please comment on the case of Hensel. That is the second document submitted to show that there were relations between the administration of justice and the Gestapo.
A. That case I do not know at all. It is as I said correspondence between two lawyers, first a proof to show how the police became more and more independent and more independent and about the undermining of the administration of justice and its possibilities to award punishment by the police. The police department id not subordinate itself to the Prosecution as had been the case previously and it created it's own means for execution in the concentration camps. It spied on the administration of justice by the SD. Frequently the attempt had been made to remove Case3,Court 3 such difficulties add at times that was successful but it did not succeed in cases where tho police pretended preventive measures.
There was no longer any possibility for the administration of justice to control that.
Q. No come now to your participation in NN cases, Nacht und Nebel. As far as such cases came to the attention of the ministry during such time as you were under-secretary, will you first toll tho Tribunal what you found-out at the time about the EN cases when you were under-secretary?
A. When I returned to the Reich Ministry of Justice as under-secretary, a Fuehrer decree and the circular directive by the Reich Ministry of Justice concerning NN cases had long been issued. The manner in which they had to be handled and dealt with had become routine in the department. Many problems which might have been decided by the minister or by myself no longer occurred. Apart from individual reports which did not take into account the special nature of the NN cases, I had nothing at all to do with the EN cases. I only in fact found out that NN cases existed from the death sentences: and these reports differed from other reports on death sentences in no manner at all, because in particular the notification of the Prosecution by the Court in special cases had been eliminated before my time. Therefore, I had really no cause to get more acquainted with the matter. Whatever I did know about NN cases was based on the reports on death sentences. From these reports I knew there existed such things as NN cases, and that they were concerned with offenses against the occupying power. I also remember a report where the dealing with NN cases was to be transferred from Essen to Silesia. That was done under the influence of aerial warfare. How NN cases as such came about, the Fuehrer decree, the circular decree of the ministry of justice, about that I was neither informed nor interested.
I was not present with the minister when any matters of principle of the NN cases were discussed.
Q. Herr Klemm, the Prosecution submitted over 40 documents concerned with NN cases. I looked through them and found out that of the above 40 documents, 14 emanated from the time when you were under-secretary. Therefore, I ask you to tell us which ones of the documents you may have seen at the time or which were actually sent and where you put your signature or your initials on them.
A. According to the evidence submitted by the Prosecution, I must have seen two of these documents, Exhibits 327 and 332.
Q. I want to mention the NG numbers. Exhibit 327, document book VI, German page 105, and Exhibit 332 is NG 321, also in document book VI, where all NN documents are to be found. Will you please comment on the first one.
A. In Exhibit 327 you are concerned with the draft of a letter from Thierack to Bormann, where the Fuehrer was to decide as supreme authority in matters of pardons, that women among the NN prisoners could be informed that no death sentences against them would be executed. Through that procedure itself I was first informed that up to that time those who were pardoned were not informed of the fact that they were not to be executed. I approved the draft of that letter because it intended to provide psychological relief for these women, but I have never found out that Thierack afterwards did not sign it and did not send that letter out.
Q. The second exhibit submitted against you is 332. That deals with the trip to Paris by the defendant Herrn Von Ammon, and from the document it can be seen that this trip had to do with NN masters. You approved that trip or at least you knew about his Report on the trip. Would you comment on that please?
A. It was the responsibility of the under-secretary to ap prove official trips of department chiefs and officials trips abroad.
That was done on a form and lost it's importance to a large extent as far as the occupied territories were concerned. On these forms there was only a due which explained the purpose of the trip, such as "NN cases" and was approved without my further difficulty when the initial, of the department chief was on it. The report on that duty trip itself which was submitted here as a document neither gave any explanation of the matter of the NN cases nor did it contain anything which would have given cause to have further reports made on the subject.
Q. These are the only documents which the Prosecution has submitted against you as far as the NN cases are concerned. Concerning Exhibit 252, however, we found a report made by Herrn Von Ammon concerning NN cases. Would you comment on this for the benefit of the Tribunal? I ask you to give us the page number also in the English document book.
Q. On the list of the reports to be made, the schedule of the reports, page 77, Exhibit 252, that is in the English book on pages 87 to 88, as a subject for a report I have listed "spiritual care for NN-prisoners", with the hand-written remark "refusal". I remember that matter quite well.
The problem was that foreign clergymen-- I can no longer say whether they were French, Belgian, or Luxembourgers, but they were foreigners, I remember that quite well--these foreign clergymen had offered to take charge of the spiritual care of NN prisoners. Without making any further inquiries into the nature of the NN cases, purely for reasons of keeping these natters secret, I refused, because these tasks of spiritual care could have been taken care of by German clergymen.
DR. SCHILF: May it please the Tribunal, that concludes the subject of the NN cases.
THE PRESIDENT: We will recess until tomorrow morning at 9:30.
( At 1630 hours, 10 July 1947, a recess was taken until 0930 hours, 11 July 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America; against Josef Alstoetter, et al., Defendants, sitting at Nurnberg, Germany, on 11 July 1947; 0930-1630, Justice Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Marshal, will you ascertain if all the defendants are present?
THE MARSHAL: May it please Your Honors, all the defendants arc present in the courtroom with the exception of Defendant Engert, who is absent due to illness.
THE PRESIDENT: Let the notation be made the defendant Engert has been excused. The Tribunal is about to rule upon the motion directed against Count I of the indictment. Count I of the indictment in this case changes that the defendants acting pursuant to a common design unlawfully, willfully, and knowingly did conspire and agree together to commit war crimes and crimes against humanity as defined in Control Council Law. No. 10, Article 2. It is charged that the alleged crime was committed between January, 1933, and April, 1945.
It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has difined conspiracy to commit a war crime or crime against humanity as a separate substantive crime. Therefore this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense. Count I of the Indictment, in addition to the separate charge of conspiracy, also a lieges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We therefore cannot properly strike the whole of Court I from the indictment, but insofar as Count 1 charges the commission of the alleged crime of conspiracy as a separate substantive offense distinct from any war crime or crime against humanity, the Tribunal will disregard the charge.
This ruling must not be construed as limiting the force or effect of Article 2, Paragraph 2 of Central Council Law No. 10 or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939 if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10.
We have only one further suggestion. The learned counsel who presented the defendants' case before the joint session promised us some very interesting citations. Notwithstanding the fact that we have decided the case we should still welcome the citations. You may proceed with the examination.
DR. HAENSEL: I am just compiling the citations. I am just about to compile the most recent citations from literature I have received from Zurich. I think that although the case is decided, it is very interesting and I shall take the liberty to submit that material to the Tribunal.
THE PRESIDENT: The Tribunal has made the decision, but in the course of the final opinion it may become proper to present the reasoning supporting the decision, and for that reason we shall be glad to have your views and your citations.
DR. SCHILF: With the permission of the Tribunal I continue the examination of the witness Klemm.
HERBERT KLEMM - Resumed DIRECT EXAMINATION (Continued) BY DR. SCHILF:
Q Herr Klemm, yesterday afternoon you described your work as Undersecretary as far as NN cases were concerned and concluded that description.
We come now to another field of your activity -- that is concerning Department 5 was Administration of Penalties and Department 13 was a special department. I asked you repeatedly about the conference of chiefs of departments of 6 January 1944. May it please the Tribunal, it is Exhibit 45, NG195; Document Book 1-B. After that Department Chiefs' meeting Division V was put under you. That is penal administration. Please will you tell the Tribunal whether act-ually you worked in Division V and whether you made decisions for that division or department.
A When I started my work as an Undersecretary in the Ministry of Justice Department 7 had already been evacuated from Berlin. Owing to that fact I had almost nothing to do with Division 7. I have thought it over very carefully and I could think only of four reports made which refer to Division 7.
Thus once the division chief Engert came to see me to discuss the question of transfer from one evacuation place to another emergency location. If I remember correctly, the places in question were Zoebenick and Templin in the north of Berlin. The Senate President Hecker who was a witness before this court also came to see me concerning budget questions in two personnel matters. The question of an increase in salary for two positions. The Ministry of Finance opposed that bitterly, whereas I had succeeded in persuading the personnel department of the Party Chancellory to interest inself for those matters, personnel matters of the Adninistration of Justice, and to support them. The Ministerialrat Noerr reported to me once about the card file which listed the professions of the prisoners. The second time a personnel matter from a penal institution in Bavaria. Any other reports where I had to make any decision or preliminary decision I did not receive from Department V Only the witness Eggensberger had seen me repeatedly. He may have reported to me about some details concerning Department V. I do not recall details. Eggensberger had some special tasks in the ministry. One, construction plans on the part of the Ministry, that also was the plan to establish an emergency location, barracks which we wanted to have built ourselves.
Then he was in charge of the motor pool of the Ministry. Especially in these tiro natters Eggensberger came to see no at various times.
Q You mentioned, as Chief of Department v, Ministerial Director Engert. Is that the defendant Engert?
A Yes.
Q Was there another chief of that division before Engert?
A When I became undersecretary, Division v was directed by Ministerial Secretary Marx. Then Engert came on this post, and Engert only went to Thierack, whom he knew from the People's Court.
Q Division V had to supervise penal institutions. Did you ever visit penal institutions, during the period of your activity as Undersecretary ?
A As Undersecreatry I visited only one penal insitution, the female juvenile prison in Rotenfeld on the Ammersee. I did not visit any other institutions.
Q When were you at the prison of Rotenfeld?
A That was in 1944-1945, the end of 1944 and the beginning of 1945, and I was there once, around Easter of 1945.
Q The prosecution has submitted various documents referring to conditions in penal insitutions. Those are: Exhibit 272, NG-553, in document book IV-C; Exhibit 274, NG-566, also in document book IV-C; and Exhibit 275, NG-506, also in document book IV-C. The prosecution, when submitting these documents, stated that conditions in the penal insitutions were the same as in the concentration camps. I ask you, Mr. Klemm, do you happen to know anything about violations of rules in the penal institutions which were under the administration of justice from reports which you received, on the basis of which these things would become clear to you?
A I never received any reports of that kind. However, I know from general conversations with other officials of the Ministry of Justice that, especially as to the questers, the food, and the medical care of the prisoners, everything was done which was at all possible during a time of war.
Q As to the documents which I have just cited, Exhibit 272 is an affidavit by Ludwig Schirler, Superintendent of the Prison at Ebrach, and Exhibits 274 and 275 are also statements by witnesses. These exhibits are concerned with conditions which allegedly arose immediately before the collapse of the German military forces. Would you please tell us whether these three documents are possibly in contradiction with the statement which you have just made?
A In the descriptions by these three witnesses we can find, I believe without doubt, that these are conditions which arose immediately in connection with the catastrophe; that is, immediately before the occupation by alied troops. He never, up to that time, things were always handled correctly in the penal institutions of Justice on its part did everything humanly possible to avoid over-crowding of the insitutions.
In this connection may I refer to the circular decree of the Ministry of Justice of 12 February 1945? In that circular decree reference is also made to three other circular decrees of 20 December 1944, of 7 February 1945, and of 10 February 1945. All those measures are quoted and emphasized which were to be taken to avoid over-crowding of penal institutions, and the circular decree of 12 February 1945; which I have cited, even directs that all prisoners are to be sent on leave who still had to serve only six months. That was done only to avoid over-crowding.
That circular decree was also submitted by the prosecution in this case. It is found in Exhibit 290, and is NG-030-, in document book VII-B, at pagel. Within the document, it is sheet No. 7 which refers to it, but it is at page 1 in document book VII-B.
It has to be considered that when all the conditions of the catastrophe arose, communications with Berlin also broke down, at least for the greater part. Therefore, we were even informed about these circumstances of chaos in the various insitutions.
Q The prosecution has submitted Exhibit 300, NG-455, also in document book VII-B, at page 43 in the German text.
Witness, that document bears your initial. Will you please comment on the statements which are contained therein and, furtermore, since that document is initialed by you, will you tell us whether you had any reason to do anything against the conditions or the facts described in this document?
A As to the circular latter from the food Ministry, in 1944, I saw that with the incoming mail. I was put before an accomplished fact, because that circular letter had already been distributed, and I had no reason to change anything about it because the rations for the prisoners were definitely within the limits of that which was possible at the time. They were so high that, to make a comparison here, they were higher than the rations which are available today to the free German population. I only want to mention one example. For a ration period of four weeks, the prisoners receive 10,400 grams of bread. I happened to find out from the newspapers that the free population in Germany today, also for a ration period of four weeks, received only 4,000 grams in April of 1947.
Q Grams of what bread? Will you state that, please?
A Bread, dry bread, yes. But that is just an example. The question of food for the Jews was not acute, because, by the 13th decree concerning Reich citizens, the Jews were no longer subordinated to the Administration of Justice.
I would like to say one more word concerning the feeding of Eastern workers and Poles. As far as the prisoners within the boundaries of the Reich were concerned, according to section 1 of figure 7 of that decree, they received the same food as other prisoners did. Section 2 is only a ruling concerning the feeding of Poles within the Incorporated Eastern Territories and not the feeding of Poles who came from the Incorporated Easters Territories. That provision states that the Poles within the Incorporated Eastern Territories should receive 80 percent of the food that the free population in the Incorporated Eastern Territories received; that is, in addition to the extra rations for heavy workers.
The reason was the following: The newly Incorporated Estern Territories received more food than the rest of Germany and in order to assure that these prisoners in the Incorporated Eastern Territories should not be in a worse position than those in the Reich their nutrition and feeding was based on the figures for the free population. Therefore, in this manner, the prisoners employed in the Incorporated Eastern Territories had at least the same amount of food as the prisoners within the Reich.
Q The witness Hecker, a few days ago, described two cases in which the Ministry of Justice took disciplinary steps against official of penal institutions. That was supposed to have occur in 1944. One was the case of a penal institution in Southern Germany where a Wachtmeister, a Chief Warden, maltreated prisoners. The other case concerned the penal institution of Schiratz in the then incorporated Eastern Territories. That involved a superintendent of a penal institution who was punished for incorrect actions. Was a report made to you at the time, as Undersecretary?
A I was informed about these cases just because they were extraordinary and surprising. In the Division for the Administration of Penalties, such cases were extremely rare, and just because they were sorare, those two cases were reported.