For example, there is one case I remember--I had tried very hard to have the jurisdiction in heredity farm courts independent of party agencies. For that purpose, after many difficult conferences, I got the heredity farm court several from the Union with the Reich Peasant leader and that is to say until that time the Reich Peasant leader had been the president of that court and now the former vicepresident who was not a party member was to become the president of the Reich heredity court and I also attempted at that occasion that the present presiding minister of Bavaria, Dr. Erhard, was to become the vice-president of that Court. He was highly qualified for that position. We knew of him too that he was not a party member, but in view of the developments of total war, those plans were never put into effect.
Q I am now passing on to another matter. The prosecution assumes that the execution of the so-called NN decree by the authority of the administration of justice was disreputable and you were charged with having played a part in the NN affair. Wouldn't you comment on that charge, please?
AAs for my playing a part in executing the NN decree, that was not part of the duties of my department. The so-called NN matters, were, after all, penal cases and for those the civil department had nothing to do on principle. As these were secret matters, I never heard of the decree. It was only when it was announced in the press together with the Goering trial that I heard of the NN decree.
As for the part played by the administration of justice, I heard only here from the documents which were introduced at this trial and from the testimony of the witnesses at this trial.
Q The prosecution has introduced Exhibit 319 NG 269 which is a decree by the Reich Ministry of Justice concerning NN prisoners. This decree also deals with questions of personnel status and last wills. That is to say, it deals with subjects which, according to the plan of distribution of work, would belong to the scope of your department.
Please comment on this document and please tell us something about the part your department played.
A It is right that my department did play a part. The decree is dated 6 March. That is to say, it was just after I had assumed office, but the department had to deal only with two questions, questions which fell within their competency and it only dealt with two questions. The draft which has been put to me was insofar in accordance with the laws up to that point, and I could not gather from that there was anything wrong with these NM matters.
From that draft, one could not see that it was concerned with foreign prisoners and that for their conviction actually the courts of the armed forces would have been competent. The reason for the secrecy of NN matters, I supposed to be found with security reasons and therefore looking at it from extraordinary wartime conditions, that secret didn't strike me as anything particularly unusual.
Further more as the matters which were related to Department 6 considered quite by themselves were entirely in accordance with the law, I therefore had no particular reason to go into the matter of secrecy. I would only have to investigate that matter if those instructions as such had been contrary to the law, because in that case, but only in that case, I would have had to investigate whether a legal basis could be found for it.
THE PRESIDENT: You are talking about certain instructions being in conformity with the law. Would you specify definitely what instructions you refer to and what law they were in conformity with? I didn't understand what you meant.
MR. ALSTOETTER: I was referring to these two points. One I think is number 2, in that decree, and numeral two contained instructions to the effect that notifications of deaths and births had to be made to the registrar in accordance with law. That is in accordance with Articles 17 and 18 -- I am now quoting from memory -- that is in accordance with Article 17 and 18 of the Census Law, and that was the way it had to be handled in all circumstances.
Now that numeral two had an attached instruction by which the registrar was informed about keeping matters secret, and the registrar was instructed that in case inquiries were made or certificates were to be made out from registries the competent Reich Minister of the Interior has made certain regulations concerning cases where such information was not to be given. Now under numeral three, it says that taking into custody of so-called public testament of NN prisoners, are made in accordance with the provisions of the ordinary law, that is provisions of Articles 5 to 20 of the testament law, which is still valid today.
THE PRESIDENT: Just a question. Did this instrument concerning which you have testified mention NN cases as such?
MR. ALSTOETTER: NN prisoners are mentioned, unless I am wrong.
THE PRESIDENT: As such?
MR. ALSTOETTER: NN prisoners, yes. There are only two possibilities which were striking.
THE PRESIDENT: Then you know something about what NN meant, didn't you?
MR. ALSTOETTER: No. I never heard the word nacht and Nebel, night and fog. We didn't know anything about it. The whole department didn't know about it. My experts, my referents didn't know about it, nor Herr Hesse.
THE PRESIDENT: When you found a document with NN in it, your curiosity was not aroused in the slightest?
MR. ALSTOETTER: I am afraid I didn't get that.
THE PRESIDENT: Well, I think we can answer it ourselves.
The further interrogation of this witness will continue tomorrow morning.
It has been observed that the defendant Klemm since the recess has been absent from the courtroom.
His absence is pursuant to a request on the part of his counsel by reason of the fact that he was not feeling well and he was excused. That is correct, is it not, Dr. Schilf?
DR. SCHILF: Yes.
THE PRESIDENT: Yes, we will recess now until tomorrow morning at nine-thirty.
(The Tribunal adjourbed until 16 September 1947, at 0930 hours.)
Case III 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 16 September 1947, 0930, the Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: Let proper notation be made. You may proceed.
JOSEF ALSTOETTER -Resumed DIRECT EXAMINATION -Continued BY DR. ORTH: (Attorney for the defendant Alstoetter)
Q Witness, yesterday we stopped when we had come to the questions concerning the participation of Department VI in the circular decree of the 6th March, 1943. I am now going to hand you this decree, Exhibit 319. Please then answer some questions I am going to put to you bylooking at this document. In what parts of this decree had your department taken a hand?
A Department VI had had something to do with numerals two and three of this decree.
Q Did you yourself work on those sections?
A No, I didn't. My referents dealt with them.
Q Who were those referents?
A Ministerial Dirigent Dr. Hesse, Ministerial Counselor Rexroth, and Oberregierungsrat Dr. Vogel, senior government counselor.
Q How did you come to hear about that decree?
A It was through routine channels that I heard of it and saw it.
I was not informed about the matter and could not even be informed about it because I had only been at the Reich Ministry of Justice for a very short time. In connection with some other matters, when Dr. Hesse came to talk to me, I discussed the NN matters with him briefly. I merely asked him what the whole thing was about. Dr. Hesse told me that the matters concerned mainly the penal department, and as far as we were concerned, it was all right.
Q Could you rely on Herr Hesse not submitting anything for signature which might have caused misgivings of my kind?
A Herr Dr. Hesse had been in the service since before 1933, and since 1935 he had been at the Ministry and he had boon in the civil department since that time. In view of his attitude as a whole, it is entirely out of the question that ho would have submitted anything to mo for my signature which caused him any misgivings whatsoever.
QQuite apart from the decree, did you have any documents?
A No.
Q Why not?
A Well, above all, this was a secret matter which concerned another department. There was the Fuehrer Order which has been discussed hero a great many times, according to which every person who dealt with such a matter only should hoar as much as concerned himself personally and his work. That was so whenever secret matters were being dealt with, but even if this had not been a secret matter, it would not have been necessary to inform us about the nature of this matter because it was not necessary for the work which had to be done by Department VI.
Q Did Department VI deviate from legal provisions in dealing with Section UU?
A No. I think I explained that yesterday. I should like to refer again to the provisions in the census law, Article 18 and Article 34.
Q Did the department deviate from the legal provisions in dealing with Section III?
A No. I told you yesterday that under Section III the establishment of so-called public testaments was safeguarded for the prisoners concerned. The official custody of a public testament is regulated under Article 20 of the Testament Law, concerning testaments of the kind. The question, where a voucher was to be kept; vouchers which normally would have gone to the heirs - is a question of entirely secondary importance, and it was the penal department who should have decided on that matter.
Q Witness, would you please road the first paragraph of the decree?
A "In penal proceedings for offenses against the Reich or the occupying powers in tho occupied territories, (the so-called NN matters) I request everybody, in order not to endanger the secrecy of the matter, to proceed according to tho following directives."
Q Did that sentence not give you cause for doubts?
A No, it didn't. All I could gather from that sentence was that the so-called NN matter concerned criminal offenses against tho Reich or the occupying power in tho occupied territories. Such offenses could be committed by Germans or by foreigners. The special secrecy concerning the proceedings was bound up with the nature of the matter, as in my view these proceedings could only concern espionage, high treason and similar things. I could not possibly have gathered that these were proceedings which were contrary to international law. The mere idea didn't occur to me, and in my opinion that idea couldn't have occurred to anybody who saw nothing but that decree.
Q Did the term NN matters not strike you in any way?
A No, that term didn't strike me either. In tho administration of justice initials were used both as concerned matters and concerned persons. We called it the so-called registry language.
Q Witness, will you assume for the moment that at that time you actually had available further documents concerning these NN matters.
Would you in that case, too, have signed the decree or not?
A I believe I must say that I would have signed them, or rather that I would have co-signed them because an examination, a scrutiny of the documents on which the decree was based, from the point of view whether it was contrary to international law, that was not my business. The examination by the department -- and that moans my examination -had to refer only to the two sections with which we have dealt here. Those sections were in order from the legal point of view, and I would have relied on, that further examination from the point of view of international law had long been made and that it was all right.
Q We shall now conclude this matter and pass on to something else. The Prosecution has introduced in evidence the Prosecution document, Exhibit 460. The document relates to illegitimate children born of foreign female workers. I am handing the document to you. The document consists of two parts, one, the decree by the Reich Minister of Interior, dated 5th June, 1944; and, two, the letter signed by you from the Reich Ministry of Justice, dated 15th November, 1944, with which your department dealt, and which notifies the guardianship court of the decree of the Minister of Interior. Please comment on the decree by the Minister of the Interior.
This deals with the guardianship of illegitimate children, children borne by women workers who were not of German nationality; women who had come to the Reich to work there, and who had there given birth to a child. Pregnancy in this case was not a reason to dissolve the contract, but formerly, as is evident from the decree by the Minister of Interior, pregnant women of non-German nationality had been returned to their homeland on account of their pregnancy; in the future, they were no longer to be returned home. Anybody who knows conditions as they were in Germany at that time will also immediately understand the reasons: we were dependent upon every worker, On the other hand, the increasing air raids which hit above all the transport installations, and the transport difficulties were not designed to allow such repatriation. Therefore, a new problem arose, and that was the problem of taking care of those illegitimate children born to foreign women workers. For the solution of this problem the Minister of the Interior alone was competent, and the official agencies to which the decree of the Minister of the Interior was addressed were only official agencies from the sphere of the Interior's administration. In principle, the questions of so-called public assistance to juveniles, with which we are concerned here, are dealt with in the Reich Juvenile Welfare Law of 9th July, 1922, Reich Gazette Blatt, I, page 633. What law according to Article I, however, in principle deals only with German children. Cars for foreign children and stateless children was admissible under law, but there was no legal obligation to undertake such welfare measures, The measures taken by the Minister of the Interior in this decree were within the framework of the Juvenile Welfare Law.
I should like to refer to the provisions of articles 28 and 29 of the Juvenile Welfare Law. I should like to add the following: The preferential treatment of children born to foreign women workers, who had been fathered by German, or men of so-called equal race, in my opinion cannot be criticized either from a legal or theoretical point of view. Quite apart from the fact that all this could only be done if the mother approved. By the nature of this thing, from the very beginning all these measures could only be considered provisional; they could only exist as long as the foreign or stateless mother remained under contract. When that contract had terminated, the mother, as a rule, took her child back home with her. For the rest, every mother, as a rule, took her child back home with her. For the rest, every mother could look after her own child, if that was possible for her. She was even entitled legally to enforce accommodation of her own child where and how she wished, for the legal position of the illegitimate mother and the legal position of her child were not affected by the decree of the Reich Minister of interior. After the decree, that position remained the same as it had before, that is to say the same as it was before 1933, that is to say, it remained the same as it would have been if the same conditions had existed at the time prior to 1933; and even foreign illegitimate mothers at any time could approach the competent guardianship court if she disagreed with any arrangement that had been made for her child.
THE PRESIDENT: May I ask you a question, please. You referred to the foreign or stateless mother. I don't know just what you meant by a stateless mother. Will you define that term for us - stateless.
A. Under the law of German citizenship, under certain conditions a citizen loses his or her citizenship; in that case he or she becomes stateless.
THE PRESIDENT: And what were those conditions by reason of which they became stateless?
A. Such cases existed in particular after the first World War, and there were a great many such cases; for example, all Russians who had emigrated into the Reich were stateless. A stateless person is a person who loses his own citizenship and fails to acquire German citizenship.
THE PRESIDENT: Were the Jews in Germany included in your term "stateless"?
A. No, no. The Jews who were in the German Reich and who possessed German nationality retained that nationality.
THE PRESIDENT: Will you speak more slowly and tell us that again.
A. The Jews who stayed in Germany end who possessed German nationality retained that nationality. An exceptional case existed only if those Jews emigrated abroad and they were deprived of their nationality.
BY DR. OATH:
Q. Witness, does the decree by the Minister of the Interior not mean that German legislation was extended to foreign or occupied territories?
A. No. It concerned only illegitimate children born to such foreign or stateless women workers who had come to Germany to work there. The purpose of the decree by the Ministry of interior was only to make sure that those children would be looked after in Germany.
THE PRESIDENT: One more question, please. Will you clarify your last answer, and tell us if the decree applied to illegitimate children born in the Altreich; or, in what was called one Greater Germany?
A The decree according to the view that was taken of it at the time related not only to the Altreich but also to the incorporated territories.
THE PRESIDENT: Thank you, Proceed.
BY DR. ORTH:
Q Witness, the Prosecution introduced into evidence the document and stated with reference to section VI of the decree of the Ministry of Interior, that the decree had been secret. Please comment on it.
A This decree was not secret, for if it had been intended to be kept secret, it would have been marked secret, but it was not marked so.
Q What is the significance of the letter dated 15th November, 1944, which you signed?
A The guardianship courts which, so to speak, were competent to exercise supervision over all quardianship matters naturally had to be informed of this decree by the Ministry of the Interior; they had to be told in what way they were to handle the care of those children. One had to expect that there would be applications that youth offices should be appointed official guardians for foreign illegitimate children, and finally the guardianship court also had to know of the fact that in the future they would no longer be informed by the youth office of the birth of stateless or foreign illegitimate children.
Court No. III, Case No. III.
I have already pointed out that the legal positions of the mothers and their illegitimate children had not been affected or curtailed in any way by this decree of the Minister of the Interior. That is true of the status of the mother and child as well as of the question whether and under what conditions a guardian would have to be appointed or other measures to be taken by the guardianship court would be legally admissible and advisable. What was decided was and remained the provision of the international German private law. In provisions 20, 25, 23 and 29 of the Preface to the German Civil Code and of importance were also the special agreements which had been made with certain states concerning guardianship matters. The latter applies only where it had not been cancelled by the war, but, however, the protecting powers resisted end it was, therefore, possible to take up contact with the homeland even if only to a limited extent. Therefore, the decrees by the Minister of the Interior could have been passed without any commentary on to the guardianship court. We did not do that. The order that the guardianship courts were to observe the ruling of international private law we considered necessary and logical so as to avoid any misunderstanding which might have arisen. The guardianship courts might possibly form the opinion that the children fathered by a German or a person of equal race were to be educated in the same manner as German children. From that regulations the Courts might have drawn the conclusion that they were also to be subject to German law. We wanted to counter-act such possible errors. As concerns the notification of the birth through the juvenile offices, that was only perscribed by law for the cases of the so-called official guardianship. I refer you to Articles 35 and 36 of the Reich Juvenile Welfare Law of 1922, but it had become a custom also in the ease of stateless children to pass on notification of birth to the guardianship courts.
In effect that amounted to redundancy. Apart from the fact that at least in some parts of the Reich, anyhow according to my experience as a guardiansnip judge, the official registers in any case made a copy of the notification and sent such copy to the guardianship courts, as well as to the Juvenile office and nothing was done in the first instance when these copies reached the guardianship courts, apart from the fact that regular data was entered into the register. That was in accordance with the law. The guardianship court in such cases waited. That was the way these matters were handled even before 1933, that is to say, the guardianship courts waited until the matter arose by the appointment of a guardian or for any other measures to be taken by the guardianship courts. The guardianship courts could do something but it did not have to do anything nor was that in accordance with the custom of the day. The order to stop handing on the notification of birth therefore on the one hand was entirely in accordance with the law; on the other hand it was in accordance with a war tine exigency which meant one had to avoid all unnecessary work.
Q. I believe that is sufficient, witness, and I am now going to pass on to another question. Under count 2 and 3, numerals 17 and 19, the indictment charges that by decrees signed by the Reich Minister of Justice and others, all Jews in Bohemia and Moravia lost their citizenship when transferring their residence on account of deportation end their property was confiscated by the Reich. Furthermore, changes in the family and hereditary law are supposed to have been made according to which Jewish property in the case of a death without any compensation to the Jewish heirs were confiscated by the Reich.
You are charged with partial responsibility in these crimes. Now I ask you, did you have anything to do with depriving Jews of their citizenship or supporting, in particular, the legislation concerning those matters and with the confiscation of their property?
A. No, legislation concerning those matters had long been finished when I joined the Reich Ministry of Justice.
BY THY PRESIDENT:
Q. The question is not only whether you had anything to do with the adoption of the law, the question, as I understand it, also includes whether you had anything to do with the administration or carrying out of the law?
DR ORTH: Your Honor, I am going to ask that question later.
THE PRESIDENT: Go ahead then. The answer was rather limited.
BY DR. ORTH:
Q. Did you cause discriminatives, changes in family or hereditary law by which Jewish property, in case of death, was forfeited to the Reich, or did you have anything to do with it?
A. No.
Q. As evidence for these crimes the Prosecution has submitted Exhibit 112, NG 715. That document is the 13th decree concerning the Reich Citizenship law. Did you or Department VI, of which you were in charge, have anything to do with that decree?
A. No, as far as I remember there was no indication why we should have taken part in it.
Q. Do you remember Exhibit 204, NJ 151? That decree is concerned with the events which lead to the 13th decree concerning the Reich citizenship law.
A. Yes.
Q. In Article II of the draft it was provided that when a Jew died his property was forfeited to the Reich and that for non-Jewish heirs and persons who were entitled to alimony, a hardship clause should be added - "haerteklausel" is that correct?
A. Yes.
Q. The treatment of hereditary provisions according to the plan for the distribution of work was to be dealt with by department VI of the Ministry of Justice. In connection with the intended contents of the provisions in Article II of the draft, could that not justify a conclusion that you and your department had something to do with that decree?
A. No, the order that Jewish property was to be forfeited to the Reich in case of death of a Jew was not a hereditary ruling. It was a matter of police confiscation and that concerned only the Ministry of the Interior and only that ministry was responsible. That is evident too from the document itself and that from the final draft, no, not the final draft, the draft before the final draft, which shows that the provision of Article II, Section I, originated with the Ministry of the Interior.
Q. I am now going to show you the text of the 13th decree of the Reich Citizenship Law. Please have a look at Article II of the decree. On the basis of this provision, do you have further indication that department VI did not have anything to do with the promulgation of this decree?
A. Yes, the wording of these provisions, already in Article I, because if Department VI, I mean the section that dealt with hereditary law, had had anything to do with this decree, they would have chosen the version which existed in the civil code for hereditary rights of the which is provided there for special cases.
I am referring to article 1936 in the civil code, which has always existed. Furthermore, the provisions under Article II snows that hereditary rights concerning Jews and non Jews, after a deceased Jew as such was not affected. Otherwise, one could no longer have spoken of persons entitled to inherit. According to that provision, or rather in spite of that provision, for example in the case of a mixed marriage, the Jewish partner of the marriage could be or become heir to the non-Jewish partner. In the case of hereditary settlements provisions would have had to be made concerning the rights of third persons, that is to say, non-Jewish subsequent heirs. Furthermore, we would have had regulations concerning the legal validity of transactions among living people, concerning the part of the estate not comprised by inheritance regulations. Seccion II also mentioned non-Jewish persons entitled to receive aliment from the deceased, although generally in the case of death any obligation to look after the maintenance of third persons came to an end.
Q. If Department VI had had anything to do with the 13th Decree, what referent of the department would have dealt with it?
A. Ministerialdirigent Dr. Hesse, Ministerial Counsellor Rexroth or Ministerial Dirigent Dr. Stagel would have dealt with it in that case.
Q. Did Department VI have anything to do with the handling or carrying out of the decree 13?
A. No.
Q. Did you or Department VI at a later time have anything to do with the handling of Jewish hereditary law?
A. Yes, in 1944 the Minister of the Interior approached the Reich Ministry of Justice with a request concerning an executory order of the 13th decree, to incorporate in it provisions, which were to change or amend Article II of the Reich Citizenship law.
The Ministry of the Interior had recognized that Article II had certain defects, and, therefore, asked us to find a solution concerning the hereditary law. I contradicted this request from the Reich Ministry of the Interior, although the Minister of Justice was of a different opinion.
Q. Do you know how that matter developed further?
A. As for tne details of the subsequent development I do not remember them, but one thing I remember for certain, Hesse with my consent, when Thierack, the Minister of Justice, had declared himself ready to collaborate in the preparation of this executory order, contacted the competent referent of the Ministry of the Interior, and convinced them that the provision, purely technically, for the Reich Ministry of Interior, amounted to a basic change of the previous decree, that is to say the 13th decree. He also told them that we didn't want to nave anything to do with this matter. The Ministry of the Interior then withdrew it's request and I was told by Hesse that the matter of a Jewish hereditary law would now be dropped. In effect an executory order in connection with the 13th decree concerning the Reich Citizenship Law was promulgated on the 1st of September 1944, and that by the Ministry of the Interior alone without any participation of the Reich Ministry of Justice and without incorporating the provisions concerning Article II of the 13th Decree, which had originally been requested.
Q. In summing up, witness, I should like to ask you, is it correct that Department VI, during your term of office, did not participate in the making and carrying out of laws concerning confiscation of Jewish property and that during that time legal provisions about the exclusion of Jewish hereditary rights were not issued?
A. Yes, that is true.
BY THE PRESIDENT:
A. May I ask you concerning that. I am wondering if I have the correct understanding pf lour testimony. Do you intend to say that this 13th decree did not change the previous law of inheritance, the rights of inheritance, but that the only effect was to provide for police confiscation, is that right?
A. Yes, yes, quite. That is my opinion.
Q. Well, was it your opinion that the provision for police confiscation was invalid?
A. Invalid? Invalid, no, not invalid.
Q. The Courts which had to do with matters of inheritance in general were courts with which your department had dealt, were they not?
A. Yes, Your Honor.
Q. Well, when a question of inheritance under the general law came up in the Courts in which they were confronted with this 13th decree concerning police confiscation, what did the Courts do?
A. I got to know of only one single case which may be connected with this problem and I am thinking of a case of recognition of the right of subsequent inheritance. The District Court of Appeals and the seventh Civil Senate of the Reich Supreme Court at the time decided that the right of subsequent inheritance remained legal and that regardless of the provisions which had been issued in connection with the Jewish problem, the estate, if a case of subsequent inheritance occurred would have to be passed on to the subsequent heir.
Other cases I do not remember.
Q. Was that the equivalent or did it amount to holding that the decree for police confiscation was invalid?
A. I am sorry. I did not understand.
Q. The Supreme Court apparently refused to apply the provisions of the decree for police confiscation, did it not?
A. I can't say for certain. If I remember rightly the Reich Supreme Court, concerning the question of the validity of that decree did not express it's opinion at all.
Q. Well, it didn't enforce the decree, did it?
A. No, the Reich Supreme Court said: The subsequent heir, who comes after the immediate heir, is not affected by that decree, and therefore his rights remain his rights.
Q. And who was the subsequent heir? Was he a Jew?
A. All I remember is his name. Whether he was a Jew I don't know, but I don't think he was. Probably he was non-Jewish.
Q. Well, what was your opinion as to what a Court could do when the law of inheritance provided that one person should receive the Jewish estate and that the decree for police confiscation provided that the property should be confiscated?
A. In practice it was like this: The law of inheritance remained as it was from the point of view of legal theory; but the property left by a Jew which was forfeited to the Reich when the Jew died, however no longer existed.
Q. It existed. You don't moan it vanished in the air? You mean it was --
A. No, that is to say, it had now gone to the police of to the finance office, they had now taken into their hands the property left by the Jew.