The outstanding cases are those of the case against Lopata 44, Kassing 45, and the two Polish girls Durka and Struss, described in the Kern affidavit and upon which Kern was extensively cross-examined.46 In addition to these cases are the cases set out in the affidavit of Hoffmann 47 introduced during the cross-examination of Rothaug.
The Hoffmann affidavit gives the case Salisch decided 14 September 1942; the case of Sarafin decided 20 May 1942; the Durka and Struss cases above referred to were decided on 19 September 1942. The court will recall that these were the two girls who were brought to Nurnbarg from Bayreuth one night, triad lass than twenty-four hours later and sentenced to death for alleged sabotage. There is also the case of Skalka, decided on 26 June 1942, sat out in the Situation Report from Bems to Schlegelberger.48 The record shows the guilt of the defendant on this charge.
We cannot recall a defense offered by the Defendant sufficiently adequate to justify our spending any time on it here.
POLES AND JEWS - Barnickel The defendant Barnickel did not held office under the Nazis with any illusions as to their immorality, purposes or aims.
In his diary on 6 August 1934, he wrote:
"Hitler's entire system of government is based on lies, violence, terror and a dangerous gamble with the masses." (Tr. 7666) As an able lawyer he must be held to have had knowledge of the unlawful nature of the Decree of 4 December 1941.
Yet ha remained 44.
Ex. 186, NG 337, III E 99 45.
Ex. 477, NG 663, III Sup. 67 46.
Ex. 232, NG 563, III J 129 47.
Ex. 556, NG 982, Tr. 7551.
48. Ex. 478, NG 688, III A Sup.
Court No. III, Case No. 3.
as Lautz's deputy knowingly enforcing this law until he left in 1944. He had knowledge of the Lautz device to give the People's Court jurisdiction to enforce the decree, by incorporating it as a count or as a violated law in all cases for high treason brought against Poles 49 so that if the high treason charge based on the "Polish Legion" fiction failed the other fiction of "owing the German people and the German Reich his labor as a Pole" based upon the Decree of 4 December 194-1 would guarantee success -- a murder or an imprisonment of a Pole by judicial fraud. He used this device himself. 50 He also used to full advantage the provisions for serving sentences in severe penalty camps51 (given to Poles as a special dispensation, possibly so as to base a duty of allegiance to a benevolent Nazi Germany). In the case in Ex. 267, the Pole, Johann Kubiak, was sentenced to six years.
Barnickel directed him to be sent to an aggravated prison camp in May 1942. He died in Auschwitz in February, 1943.
Barnickel's defense seems to be his good intentions, confided to his diary and confined to it also as far as action is concerned. At least two Poles, Bratek and Kubiak are dead.
This defendant is guilty under the law for these war crimes.
POLES AND JEWS - Petersen The defendant Petersen's guilt under this crime, with the permission of the Court, will be covered under our discussion of his guilt for applying the laws of treason, high treason and attempted high treason.
POLES AND JEWS - Nebelung The defendant Nebelung's guilt under this crime, with the permission of the Court, will be covered under our discussion of his guilt for applying the laws of treason, high treason and attempted high treason.
49. Ex. 133, EG 642, III A 114; Ex. 124, NG 597, III A 125; Ex. 137, NG 596, III B 50.
50. Case of Bratek, Ex. 136, NG 595, III B 28.
51. Ex. 266, NG 598, IV A 48; Ex. 267, NG 614, BK IV A 50.
Court No. III, Case No. 3.
POLES AND JEWS - Cuhorst The defendant Cuhorst, according to the testimony of Eberhard Schwarz - whose credibility has never beep shaken in this court, sentenced a Pole, Stanislaus Pitra, to death under the Law against Poles and Jews.
Pitra was a young Pole, possibly 19 years old, who succumbed to the advances of a German woman who had had a criminal record under German authorities for associating with men. Upon these facts, using the Law against Poles and Jews, Cuhorst sentenced Pitra to death (Tr. 2261).
Also, Berthold Schwarz, whom the court will recall was no willing witness for the Prosecution, testified to the same effect. (Tr. 1950) We also have in the record the Fuehrer Information Sheet #6652 which Information Sheet advised Hitler with great glee that now the acme of judicial reasoning had been reached.
A Pole had been sentenced to death for merely having intercourse with a German woman with her consent. This decision was further than any court had gone in determining what was meant by the words "Prejudicial to the German people". The defendant Cuhorst insists that this Pole got a prison term of 6-8 years, and there is evidence in the record that he was tried in August 1942, or a month after the Fuehrer Information Sheet was issued. There is also some evidence that this Pole was tried twice. Be that as it may, there can be no question on the face of this record that the defendant Cuhorst knowingly and willingly used the law against Poles and Jews to sentence this Pole on these facts. In the face of this, the defendant was willing to testify that he had never used the law against Poles and Jews. However, we call to the Court's attention the testimony of the witness Foetsch (Tr. 9363), that the entries which she made in her employer's record showed that this Pole was indicted under the Law against Poles and Jews.
52. Ex. 197, 632 PS, Bk III H 14.
Court No. III, Case No. 3.
We further call the court's attention to the testimony of the witness Hegele, who, upon being asked a hypothetical question, fairly and adequately covering the facts in this case, then testified that there was no law under which a defendant Pole could have been found guilty except the Law against Poles and Jews (Tr. 8383).
There is further corroborating evidence in the shifting defense which the defendant Cuhorst made in the Pitra case. He spent a great deal of time in attempting to prove that because the Fuehrer Information Sheet was not signed it had never had validity. Finally, after the witness Gramm's testimony (Tr. 9070) which cleared this issue up once and for all, he then shifted his ground and stresses evidence on the fact that Pitra was not sentenced to death.
It is certain that Cuhorst tried, convicted and sentenced Pitra. If he sentenced him to death, he committed a War Crime resulting in murder; if he sentenced him to a term of years, he committed a War Crime resulting in unlawful imprisonment.
In addition, the record of the witness Eberhard Schwarz shows that the defendant Cuhorst in May 1942 sentenced the Pole, Leczinski to death under the Law against Poles and Jews, for urging Polish workers to sabotage the farm machines they were working on, and for offending the dignity of the German Reich and the German people by wiping the seat of his pants with Hitler's picture. The defense to this case is unique. We are asked to believe that so ardent a National Socialist as Cuhorst, who sentenced people to death for stealing a bicycle or cigarettes from a post office because they were not supporting the war effort sufficiently, would be so lax in his support of his Fuehrer's war that he would take Saturday afternoons off to visit with his family in the mountains. This defense is so contrary to the fact that it cannot rise to the dignity.
of raising a reasonable doubt in the mind of any man who has read the defendant Cuhorst's record, and who saw him testify on the stand. We are not trying the defendant Cuhorst for being the most ardent Nazi in the Deck, but we are entitled to have his credibility, and the credibility of a defense based upon lax support f his Fuehrer's was measured and and estimated in the light of the fact that support of Hitler, the Nazi Party and the war permeated his whole being throughout the time he was on the Bench, and still permeates it as his conduct in the witness stand evidenced.
The Prosecution very frankly believes that only those with a degree of credulity which is saint-like in its naivity would believe such a defense. Leczinski, beyond a reasonable doubt, was tried by Cuhorst and sentenced to death.
On the 19 September 1942, Cuhorst sentenced a Pole, Krupa to death (Tr.2261) under the Law against Poles and Jews under the fallowing facts. Krupa had an affair with the farmer's daughter. The farmer turned her out in the cold night; Krupa, the lover, came back to burn the barn. Krupa is now dead because this was an act prejudicial to the dignity of the German Reich and the German people. Indeed a tragic twist to time told tales. The defendant Cuhorst never denied trying this case, but first said it was a murder case. When confronted with a newspaper account, appearing in the Naze Stuttgart journal, the N.S. Courier, the official paper for the Gau of Wuerttenberg, whose reports of judicial matters were approved by the Justice press section 53, he admitted that even he, Cuhorst, might have, for once in his life, made a mistake.
Then the defense shifted, and the witness Atzesdorfer, an associate judge of Cuhorst's, came up as a witness and testified that on the day Krupa was sentence by the Special Court, Stuttgart, Cuhorst was, on that Saturday, up in Laupheim trying a murder case (Tr. 8453). This story, of course, conflicts with the story in the Leczinski case that Cuhorst 53.
Berthold Schwarz testimony, Tr. 1929-30.
never worked on Saturdays and is also subject to some inquiry as to its credibility for the reason that Atzesdorfer produced no note or written record from which to refresh his memory. Experience shows that it is quite a feat of memory to place any man in any one town on any one specific Saturday out of fifty-two, five years prior to date of testifying.
The Pole Skowrow was sentenced to death in September 1943 under the Law against Poles and Jews for robbery; also the Pole Mrovice was sentenced to five years' imprisonment, date unknown but admittedly after 4 December 1941 (Tr. 8021-2); and the Pole, Wociniak was sentenced to five years and the penalty was admittedly given under the Law against Poles and Jews (Tr. 8083).
Certainly there can be no reasonable doubt that Cuhorst knew that the Law against Poles and Jews was unlawful under international law. He did not at any time in his testimony deny this fact, or offer any explanation for his use of this law based upon his belief that it was lawful.
The defendant Cuhorst is guilty of war crimes as alleged in Count II of the indictment.
Poles and Jews --Oeschey The defendant Oeschey, like the other Nurnberg Special Court defendant, Rothaug, was a specialist on crimes against humanity.
But he, too, could not turn down the opportunity to use this Decree as an opportunity to commit murder under the guise of legality. It would be contrary to all reason to assume that he would not know that the Decree was a violation of international law and he must be held responsible to have used the Decree as a weapon for death sentences with this knowledge before him. This is sufficient to establish malicious intent. On the 29 October 1943, he sentenced a Polish woman, Kaminska, to death under the Decree against Poles and Jews, at the same time that he used the Public Enemy Decree to judiciously murder Kaminska's associate, a Ukrainian named Wooden.
54 Oeschey was versatile in using weapons. He could use the broad ax Decree against Poles and Jews with his right hand while he 54.
Pros. Exh. 201, NG-457, II 25, Exhibit 201A, NG-457, III H, following page 25.
9653 a stabbed to death a Ukrainian with the Public Enemy stiletto.
The facts in this case cannot be rationalized in such a way that a reasonable doubt could exist that the purpose of the decision was extermination on the basis of race. This is undoubtedly a crime against humanity. By the use of the Decree of 4 December 1941, it was also a war crime.
No evidence of greeter probative value can be found than the quotation from Ocschey on reason in his judgment which reads as follows:
"The German nation which is engaged in a hand defensive struggle, rightly expects the most severe methods against such alien elements.... The fact that the criminal is a Pole is of particular significance."
The Polish woman is dead. In normal times in all civilized countries, one woman murdered by a man, is sufficient to find the man guilty of murder. The defendant is guilty of a war crime, to wit, murder. We should not lose track of the enormity of his guilt in the saturnalia of killing which has been revealed by the record in this case and the record in the other cases being tried here of which this court takes judicial notice.
MR. KING: I call to the Court's attention that on page 32, the foot note reference a.t the top of the page, foot note No. 42 is mission. That should be Exhibit 377, Transcript page 2564.
JUDGE HARING: What page?
THE PRESIDENT: Transcript what page?
MR. KING: 2564.
Criminal Responsibility for "Night and Peg" (Nacht und Nebel) Trials The corpus delicti of this crime lies in two principal uncontraverted facts.
First, several thousands of persons from France, Belgium, the Netherlands and other occupied countries were abducted from their homelands to Germany by the Wehrmacht and turned over for secret trial to the Public Prosecutors at certain Special Courts and the People's Court.
As a sreult of this action hundreds of death sentences were executed and other hundreds of persons were held completely incommunicado until September 1944, when the entire Nacht und Nobel program and all prisoners were transferred by the Reich Justice Ministry to the Gestapo. Secondly, by the fact, likewise uncontraverted, that the accused who were high officials in the Reich Justice Ministry accepted the responsibility for trying Nacht und Nebel cases with full knowledge at the outset that the decree of 7 December 1941 and the requirement of secrecy under which the trials were to be held was in violation of the Hague Conventions and other principles of international law accepted by all civilized nations.55 To these two uncontraverted facts may be added a valid presumption; namely, that each of these defendants being skilled lawyers by their own proud admission, must be presumed to have known that trials of Nacht und Nebel prisoners conducted in the manner ordered by the Reich Justice Ministry, assuming for argument that they never saw the decree itself, were in violation of the Hague Conventions.
The actual number of Nacht und Nebel prisoners removed to Germany from the occupied countries is undoubtedly higher than stated 56 in Pros. Exhibit 333 which shows a total of 6639 as of 30 April 1944.
55. See Appendix 4, particularly pp. 4, 5 and 6; and Pros. Ex. 380, Tr.p. 2584 56.
See Von Ammon testimony, Tr.p. 6462.
The original program continued under the jurisdiction of the Reich Justice Ministry for four months after 30 April 1944 and we can only approximate the additional victims during this later period. Similarly, the number of victims against whom indictments were filed before the Special Court and by the People's Court, are definitely known only as of 30 April 1944, also from Ex. 333, which shows the total for Special Courts to be 3036 and 588 for the People's Court. We know from the same exhibit that on this date the Special Courts had sentenced 1366 and the People's Court 427. The record is replete with testimony that a very high percentage of these sentences carried death penalties which were executed in the spirit of the program in complete secrecy.
For present purposes and without attempting here to approximate the total number of victims, it is abundantly clear that hundreds of foreign nationals were executed in Germany pursuant to the Nacht und Nebel Decree.
Initial negotiations for the OKW- with the Reich Justice Ministry concerning the Nacht und Nebel program were carried out by General Rudolph Lehmann, Chief of the Legal Division of the Armed Forces, and Freisler for the Justice Ministry. Even before the first discussion with Freisler, it was Lehmann's view, as he stated on cross-examination that:
"I attempted to persuade Field Marshal Keitel that the plan had to be rejected for manifold reasons for reasons of international law, for reasons of justice, and policy of justice, and primarily, because I said the administration of Justice should never do anything secretly. I put to him: What kind of suspicion would have to arise against our Administration of Justice if these people, inhabitants of other countries, brought to Germany, would disappear without a trace? In my mind, and in the minds of all others concerned, everything revolted against this particular part of the plan, which seemed to us to have much more grave consequence than the question who should, in the end, deal with it. That was also the opinion of the leading jurists of the Armed Forces in France......" 57 57 Tr.pp.
2601-2.
In the fact of such firm conviction on the part of General Lehmann, which as he was testified was discussed from every angle, first with Freisler and later with the defendant Schlogelberger, the Reich Justice Ministry voluntarily assumed the responsibility for trying the Nacht and Nebel cases with all the hideous conditions which Hitler insisted upon in the original decree.
Throughout hundreds of pages of testimony on this matter in this cause there is not one iota of proof, or even an assertion, that any member of the Reich Justice Ministry, or the Chief Prosecutor of the Peopled Court, who were charged with the responsibility for carrying out the program, over inquired into the question whether the abductions were in fact required by "military necessity" in the occupied countries. The fact is, as we shall show in discussing the individual responsibility of the accused, either that they had serious misgivings that the program was in violation of international law, or, as stated by the defendant Lautz on direct examination, that it was no concern of his whether the Hague Conventions or the Geneva Convention were observed once the Nacht und Nebel prisoners wore inside Germany and had been delivered into his jurisdiction.58 The evidence shows that the defendant Schlegelberger, as the Acting Minister of Justice, was the only person who could consent to the taking over of Nacht und Nebel cases by the Ministry of Justice.
It also shows that although Freisler conducted the original discussions, Schlegelberger had knowledge of the original secret order five days after it was made, and that he, in fact, signed the decree.59 The Evidence further discloses that that Schlogelborger issued the original decree covering the procedure to be followed by the Special Courts and the Reich Ministry of Justice, and signed it on the 7 February 1942. Von Ammon and Mettgenberg, in their affidavits, report that they had serious doubts at the time of the legality of this Decree, so that the defendant Schlegelberger must be held to have knowledge that it violated International Law, and the procedure outlined were also in violation, as set out in the statement of this crime herein before.
53. Tr. p. 6042-43.
39. Pros. Exh. 337, NG 486, Book VI 159; Pros. Exh. 338, NG 229, Book V A; and the testimony of the witness Lehmann (Tr. p. 2387, ot. seq.)
But more than that, the defendant Schlegelberger testified on this subject that he know that he had denied defendants in trials rights which they were entitled to receive under International Law, Among these, of course, because of the secrecy invoked, was the denial of an opportunity to have witnesses hoard in their behalf from their own country, the denial of adequate interpreters, and the fact that they could not have defense counsel of their own choosing, and that they wore charged until they were brought to trial. All of this appears by the record and particularly by Appendix It is true that the first sentences under this decree took place at or about the time that the defendant left office, 60 but the indictments wore undoubtedly filed before that time, and in Exhibit 311, dated 20 August 1%2, the defendant von Ammon reported ghoulish-like, that three death sentences out of tho first five to be tried at Kiel were to be inspected. (This is a revealing sentence showing that pretrial conferences between prosecutors and judges were not inoffensive Kaffeeklatsch as all of the defense testimony would lead one to believe.) Tho judges wore men 'who were appointed during the defendant's regime and who had to be reappointed annually if not satisfactory. There can be no reason to argue in law that the defendant was not responsible for these death sentences and executions. We also call the Court's attention to the fact that much was made in the testimony that it was not until the time of Thierack that defendants were turned over to the Gestapo. Tho inference being that they were kept under the custody and control of the Ministry of Justice before and after sentence and time of acquittal until the time of Thierack, but Exhibit 310, 2$21-PS, Bk. VI 31, discloses that on August an effective order was made directing Nacht und Nebel prisoners be sent to certain concentration camps, including Mauthausen, Auschwitz, Flossenbucrg, Dachau and Buchenwald, if for any reason they could not be turned over to Special Courts for trial. This fact must have been known to this defendant. And certainly was done pursuant to the agreement which the defendant had made with the Wehrmacht and other Reich authorities. Ac call the Court's attention to Pros. Exhibits 60.
Pros. Exh. 311, NG-250, Bk. VI 44; Exh. 312, NG-228, Bk. V 48.
412 and 413, given under judicial notice which are an OSS Report on the death rate in these concentration camps and other descriptions of the horrors that took place.
Also during the defendant's regime, arrangements were made to establish the jurisdiction of Special Courts at Cologne, Essen and Kiel.61 Under the evidence so submitted, the law requires a finding beyond a reasonable doubt that the defendant Schlogelberger was a principal, an instigator and took a consenting part in and was connected with a plan and enterprises to commit the war crime here in above defined, knowingly and willingly, and that he must be held responsible in law for the illegal death sentences or murder, and the illegal prison sentences of imprisonment which follow from his actions, and his administration of the Ministry of Justice.
Ac see further that again in law the defendant was bound to know that as a result of the Decree which he sot up and the provisions which he established for the trial of Nacht und Nobel prisoners, a foreseeable conclusion therefrom, which any reasonable man would have drawn, was that other Nacht und Nebel prisoners would bo brought to trial and receive death sentences and imprisonment, torture and abuse under this decree long after he left office. Just as we said in discussing the crimes against Poles and Jews, the intervention of Thierack was not an unforeseeable independent cause. He, Schlogelberger, knew that no loss severe administration of these laws would follow his termination of office. We do not contend that Thierack's turning over of Nacht und Nebel prisoners after acquittal to the Gestapo was a foreseeable event beyond a reasonable doubt. But this is a matter of minor consequence and as we have previously pointed out, Exh. 310 discloses that this was not a great innovation which the defendant claimed it to be.
There is no defense in law offered against the commission of this crime. There is an attempt to make a superior order defense, which if valid under any system of law where murder is involved, is expressly eliminated by Law 10.
61. Exh. 308, NG 232, Bk VI 20, and Exh. 312, previously cited, shows that on 1 September 1942, 262 cases wore pending in Kiel from Norway, 863 cases at Essen from Belgium and Franco, and 331 cases at Cologne from France.
But we are entitled to examine his defense in tho light of tho very revealing findings and judgment of Military Tribunal I in the Medical case62 in which it was hold that a doctor who received a human being upon whom ho intended to conduct medical experimentation was under a duty at law to determine tho conditions under which tho human being was delivered to him, in that instance, namely, whether he came voluntarily, whether he know the character and tho nature of tho experiment to be performed upon him, and the conditions generally upon which his alleged consent was given. The underlying principle of law, of course, is based upon classification 2 of tho classification of murder discussed on pages 3 and 4 of Appendix 3, namely, that when a defendant takes tho life of another human being, or acts in a manner in which the death of that human being, or serious bodily injury, is a reasonably inferrable ultimate result, he is liable for murder if ho acts so negligently as to evidence a total disregard of tho result, and with a total disregard of the facts present which reasonable men would know, or arc held to know, would result in death, or serious bodily injury.
Applying this rule to the facts presented by Nacht und Nebel cases, tho defendant Schlegelberger and all of the defendants in this Dock charged with taking a consenting part in or being connected with the Nacht und Nebel program can not bo relieved from responsibility by merely saying that they did not know the circumstances under which these prisoners were taken, and that therefore they relied upon the validity of their arrest by the Wehrmacht under then prevailing international law. But on further analysis, wo point out that this fact is not an element of the gravamen of the offense charged against those defendants. The gravamen of the offense is the assuming tho Nacht und Nebel prisoners could have been originally legally arrested under 62.
Closing Statement, p. 21, Tr. p. 10740. Judgment p. 41-43 Tr. p.
international law, that thereafter all provisions of international law with reference to the circumstances under which they were to be tried, were flagrantly violated. The law,itself, therefore, denies the defense used by the defendant Lautz (hereinafter set out) and others, namely, "once these men were delivered into our hands we were not obliged to concern ourselves with the circumstances under which they were captured." Regardless of how they were captured, being civilians of overrun countries, international low demanded that they received a fair trial under rules definitely laid down. The Nacht und Nebel program of trial not only is unlawful because it denied every semblance of fair trial, but it is unlawful per se because it was contrary to the provisions of international law which were binding on these defendants.
This offense is sufficiently alleged in Count II, paragraphs 8, 9 and 13.
MR. KING: Miss Arbuthnot will continue with the reading.
MISS ARBUTHNOT: Before taking to reading the article, I would like to make a correction on page 33 and page 34. At the bottom '-f page 33 the word or name "Kessing", footnote 45, should be deleted, the sentence appearing on page 34 at the top of the page which reads, "Described in the Kern affidavit, upon which Kern was extensively cross examined as well as in the Kessing affidavit." That footnote which previously appeared on Rage 33, now appearing on page 34. Now continuing with the arguments The defendant Klemm must be held to have knowledge of the illegal character of the Nacht und Nebel order of 7 Dec.
1941, and of the Illegal character of the Schlegelberger order of 7 Feb. 1942, which latter order laid down the infamous procedures for trying the cases of NN prisoners. He must also he held to have knowledge, when he came into the ministry, of the fact that Thierack in February 1943 had directed that defendants, when convicted for a term of years and even when acquitted, were to be turned over to the Gestapo. This is true for the reason that, as Thierack's State Secretary, it is reasonable inference that Thierack informed Klemm of the methods of handling Nacht und Nobel cases.
Be that as it be, on the 21 Jan. 1944, within 3 weeks after Klemm came to tho ministry, this method of disposing of NN prisoners was made more extensive in its operation throughout tho Reich. Furthermore on the 18th and 19th of Feb. 1944, the defendant von Ammon attended a conference of the Public Prosecutors in Breslau and Kattowitz, concerning Nacht und Nebel prisoners, their housing and the transferring of those cases from the Netherlands, Belgium and Northern France, and reported tho results of this conference in an extensive report which was called to tho attention among others of tho defendant Klemm.63 Again, the defendant von Ammon, on the 24 April 1944, having made a trip to Paris on Nacht und Nobel matters, reported the details of his trip and tho methods of trying these prisoners from France in the Breslau Special Court, all of which was reported to tho defendant Klemm.
It follows, therefore, that tho document Klemm had full knowledge after he came into tho ministry.....
THE PRESIDENT: Pardon mo, you intended to say "before ho came into the ministry" while the text shows "After he came into tho ministry."
MISS ARBUTHNOT: "After ho came into tho ministry."
THE PRESIDENT: "After" is correct.
MISS ARBUTHNOT: After he came into the ministry of tho illegal character of the so-called judicial processes, made available to Nacht und Nobel prisoners under tho program. He not only took a consenting part in and was connected with this crime and the methods of its operation. But we find also that, in his capacity as State Secretary, with full knowledge of these facts ho denied clemency to NN prisoners and approved death sentences in at least ton cases .64 Wo would only be frank to say that we do not charge tho defendant Rothenberger with being a principal in carrying out the Nacht und 63.
Ex. 504. NG 1046. Bk. VI Suppl.
64. Ex. 252, NG 414, Page 71, 2 Aug 1944 (2 cases) Page 91, 21 Jan 1944 (4 cases) Page 104, 31 May 1944 (4 cases) Nebel program.
We do say, however, that he was informed about intimate details of the program shortly after he assumed the Office of Undersecretary and that he was kept informed thereafter by letters, reports of conferences and by other matters pertaining to the program which went across his desk. Further than that, Rothenberger introduced Joel to his position as General Prosecutor at Hamm in August 1943. It is totally inconceivable that these two, men,one the Under-Secretary in the Reich Justice Ministry and the other, about to assume charge of the courts which u p to that time had tried more Nacht und Nebel cases than any other in Germany, would not have discussed the subject.
The only conclusion which we draw from these facts is that Rothenberger, knowing the international lawlessness being committed by continued operation of the program, did nothing , so far as the record shows, to object to it or to point out to others with authority the unlawful character of the program.
Rothenberger received, in September 1942, a report from von Ammon as to the number of Nacht und Nebel prisoners transported to Germany, and a further breakdown of data as to the status of the cases. Various other memoranda, came to his attention, and in November 1943, he received a report signed by von Ammon and Mettgenberg with a detailed explanation of the operation of the Nacht and Nebel program in the Netherlands, and that Nacht und Nebel prisoners were being held in concentration camps in various places throughout Germany.65 We think these facts show clearly that Rothenberger had knowledge, and we adduce from the further fact that he took no steps to correct the injustices , that he is, at least, guilty of taking a consenting part in the Nacht und Nebel program.
We call the Court's attention to Pros. Ex., 450, which is a list of death sentences approved by Rothenberger, in which appears dozens of Belgium, Dutch and French names.66 It is incumbent upon the defendant to come forward with evidence that these foreign nationals were not Nacht und Nebel victims.
We have seen no such proof.
65. Pros. Ex. 312, 324.
66. See also Pros. Ex. 286, P . 4 Nacht und Nebel cases were first brought before the People's Court after its competence to try them was established in October 1942, following by a few months the precedent of certain Special Courts in this matter.
Lautz, as he has testified, was "not very happy with this new task."68 The misery of the victims was all too apparent. He was even touched to the extent that ho went to see General Lehmann about the conditions under which Nacht und Nebel prisoners were held. General Lehmann too was conscience stricken by appeals from the Red Cross and from relatives seeking the slightest word of loved ones which came to him in the course of a day's business. And so Lautz returned to his grim assignment.
The mechanical operation of the Nacht und Nebel program under Lautz ran as smoothly and was not greatly different than under the Special Courts. He picked his best prosecutor and deputy, Parrisius, to be in charge of the Nacht und Nebel action. The defendants were charged, pursuant to section 91b of the Penal Code. All the defendants were foreign nationals. They were held completely incommunicado. They could not select their own defense counsel. The trials were secret. In most of the Nacht und Nebel cases selected for trial; Lautz asked for the death penalty.69 The Reich Justice Minister received a copy of all the indictments. The prisoners, who for any reason were not indicted or upon trial had been acquitted, were turned over by Lautz to the custody of the Gestapo. 70 On the legal level too there were no strikingly unusual facts in the procedure for Nacht und Nebel cases before the People's Court.
Lautz, had nearly a year before; provided an interpretation of the Criminal Code at the request of Himmler that permitted the trial of foreign nationals under German law for crimes committed abroad.
67. Pros. Ex. 313 68.
Tr. P. 5926.
69. Tr. P. 5926, 5930.
70. Pros. Ex. 313.
Further than that, Lautz saw no need to examine the international law of the Geneva Convention or the Hague Conventions. The only test which concerned him was whether the People's Court had jurisdiction of the prisoners.
9664 (A) The defendant Lautz thus took not only a consenting part, but was a principal in the violation of international law by the Nacht und Nebel program.
As such, he was guilty to a high degree of this war crime.
Mettgenberg, the s elf-styled intellectual, studied and dealt in international law for decades71 the better to violate its elementary precepts. Not in the Party but in his every professional act of it72, he has been identified primarily with the Night and Fog ("Nacht und Nebel") program. History's most heinous example for a national policy to kidnap with intent to kill, and the murders and international abuses foreseeably resulting from his enforcement of that policy, have tended to obscure Mettgenberg's role in other Hitler policies that worked as well toward insensate death and persecution throughout Europe. He not only helped promulgate73 and enforce74racial discrimination concerning legal affairs, but also personally reprimanded subordinate Judges and prosecutors throughout the Reich who did not stringently observe the program.75 With advance secret official knowledge that Germany contemplated war,76 he later helped to consolidate 71.
Tr. p. 6236-8; Pros. Ex. No. 4 (IA) 72.
Tr. 6318-20; Pros. Ex. No. 539- For example, from correspondence Thierack, Messner and Lammers in October 1942 it developed that the Party Gauleiters did thrust forth by consulting Division Department IV (i.e. Mettgenberg) on all clemency appeals. Pros. Ex. 359 V B, 153. As this arrangement worked out, clemency was usually rejected by the Gauleiters and the Ministry of Justice did not contest this. Pros. Ex. 441, p. 4, I Sup. 71.
73. Pros. Ex. No. 540.
74. Pros. Ex. 299, VII B 46; On 19 July 1944 Mettgenberg issued a Ministry Directive to all prosecution offices throughout the Altreich stringently limiting execution notifications to relatives, and forbidding any information at all if the condemned persons were not German nationals. See Tr. 6245; also Pros. Ex. 298, VII B 45.
75. Pros. Ex. No. 198, III H 16.
76. Pros. Ex. No. 102, I E 73.