Chapter LIX: Section 60: , Penal Code. Costs: Section 465, Code of Criminal Procedure (5)

MR. KING: Dr. Rothenberger, the document which has been placed before you is NG-1656 [Pros. Ex. 535].[429] It is an information for the Fuehrer report. I would like to, with your concurrence, read it. You say--“After the birth of her child a full-blooded Jewess sold her mother milk to a pediatrician and concealed the fact that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents who were unaware of the true facts need not subsequently be worried.”

Do you recall the origin of this particular document?

DEFENDANT ROTHENBERGER: I do not remember the facts. It is quite impossible that I wrote this, because I never drafted the Fuehrer Information. I do not even remember whether it ever came to my attention later. I ask to be shown the original of that Fuehrer Information.

Q. I will be very happy to do that, Dr. Rothenberger. Is that your initial?

A. That shows that I have seen it later, but not at all that I was the author. It can be seen from the original, naturally, that the Fuehrer Information had neither a date nor a signature and the Fuehrer Information also shows that there is a notation on it “to the Under Secretary”--for information, that means. As I can see from the initial, it apparently came to my attention without, however, identifying myself in any manner with the contents of that Fuehrer Information.

Q. Have you finished, Dr. Rothenberger?

A. Yes.

Q. Your feeling, of the moment, is that you had nothing to do with the authorship of this document?

A. I consider it quite impossible that I would have identified myself even at that time with such an opinion.

PRESIDING JUDGE BRAND: I have a question of information. Would your initials have been placed on it before or after the distribution of the document?

DEFENDANT ROTHENBERGER: Whenever such Fuehrer Informations were sent out--and I cannot see that that was the case--then they were afterward brought to my attention.[430]

* * * * * * *

EXTRACT FROM THE TESTIMONY OF DEFENDANT OESCHEY[431]

_DIRECT EXAMINATION_

* * * * * * *

DR. SCHUBERT (counsel for defendant Oeschey): I am now coming to the subject of violent criminals and the first case I want to refer to is the case of Kaminska and Wdowen. The prosecution introduced Exhibit 201, which included extracts from the official files.[432] The prosecution also introduced affidavits, Prosecution Exhibits 229, 235, and 635.[433] Finally there is the witness Gros[434] who was heard on those cases (_Tr. p. 2828_). Please comment on it.

DEFENDANT OESCHEY: The account given of that case by the witnesses who were heard on it gives the impression as if Kaminska had been convicted merely for having thrown that stone, but that was not the case.

What was of great significance were the events which had preceded that attack which are not mentioned by the witnesses, but which were the factors which made that case so grave that led to its being evaluated as the crime of a violent criminal.

The witness, in giving an account of that case, omitted to mention that the offense began with an act of blackmail committed by the two defendants for they approached their employer, whose name was Gundel. He was an old weak man. They asked Gundel for money to which they were either not entitled at all or to which their title was extremely doubtful. And when Gundel asked that they should give him some more time, they tried to force him to give them the money by attacking Gundel, that is to say, the defendant Wdowen attacked Gundel and slapped his face. That explains why Private Wanner appeared on the spot and intervened. That factor, too, was omitted by the witnesses and that is why it was not made clear that Wanner came to the aid of Gundel and in doing so Wanner limited himself to asking the two defendants to leave Gundel’s room. But the witnesses omitted to mention that the two defendants now assaulted Wanner who after all had behaved absolutely correctly, and Kaminska when Wanner had been able to ward off the first attack took up a hoe and tried to attack Wanner with that hoe, and Wanner was only able to evade that blow by showing presence of mind and closing the door which happened to be between him and Kaminska. Shortly after Kaminska threw a stone--

PRESIDING JUDGE BRAND: Wait a minute. If I remember correctly, you are merely reviewing now the findings which are contained in the transcript of the case and which is in evidence. We have examined that.

DEFENDANT OESCHEY: I merely wanted to explain that the whole of that action did not consist of isolated facts but that it is necessary to evaluate all those facts together in order to comprehend the legal evaluation of the offense as a whole.

DR. SCHUBERT: Witness, I now ask you to tell us what was the nationality of those two defendants.

DEFENDANT OESCHEY: Wdowen’s nationality I am afraid I can’t remember. The Kaminska woman was a Pole. Anyway, I don’t think Wdowen was a Pole.

Q. Well, what was he?

A. He was a Ukrainian.

Q. On the basis of what provision did the prosecution file its indictment?

A. The prosecution filed an indictment on the basis of part I, section 4, Number 1 of the law against Poles.[435]

Q. Against whom?

A. Against both defendants. If I am right--well, I am not quite sure whether my memory serves me well--(document handed to witness). Against Kaminska the indictment was based on part I, article 4 of the law against Poles and with Wdowen it was based on a crime of having aided in somebody else’s crime, articles 4 to 7 of the law against Poles. Also she was convicted on the basis of having offended against article 4 of the public enemies law.

Q. You saw that in the official court files?

A. Yes, I saw that from the original files of the Nuernberg Special Court, SG 256/43.[436]

Q. Both the witnesses Pfaff and Gros today draw back from this judgment.[437] Gros said that he voted against it. Pfaff wasn’t clear in what he said about it. My first question to you is this. Did you in any other case announce a judgment without having had at least one associate agree with your view, as provided by law?

A. No, I never did that.

Q. Did you force Gros and Pfaff to agree with you in passing the death sentence on these defendants?

A. In this case they were as free in their decision and in their opinion as I left them in every other case.

Q. What did the court say of the offense against the woman, Kaminska? Was the decision in accordance with the indictment?

A. No. The court did not convict Kaminska under article 1, section 4, No. 1 of the law against Poles and among us judges there was a fairly long discussion on that point. That is to say, we debated the question as to whether the offense of Kaminska could be sentenced under the provision of the law against Poles which I have just mentioned. As far as I remember the associate judge, Pfaff, was inclined to answer that question in the affirmative. Gros, as well as myself, however, had doubts about that. That legal provision assumes that the violent crime was directed against a member of the armed forces in which case the death sentence becomes mandatory. But in view of the entire facts of the case it appeared doubtful whether Kaminska, in committing her offense, had realized at all that the person she was attacking was a member of the armed forces. According to the facts, that element did not play a part. In the view of Gros and myself, therefore, the elements needed for convicting a defendant under part I, section 4 of the law against Poles were lacking. The further examination had to discover whether the offense was to be sentenced under article I of the decree against violent criminals of 5 December 1939.[438] That question, too, we debated at great length and that is a point which I remember. We scrutinized quite a number of decisions made by the Reich Supreme Court and studied a number of commentaries. As far as I recollect, neither of the associate judges had any doubts about that view.

With these Reich Supreme Court decisions the legal questions had been clarified beyond all doubt.

Q. Witness, is it correct that Kaminska was not convicted under the law against Poles?

A. Kaminska, as the law against Poles prescribes in paragraphs II and III, was convicted under the decree of 1939, the decree against violent criminals, which applied to all violent criminals in Germany, and she was convicted under that law as concerns the question of her guilt as such and as concerns the sentence.

Q. The witness Gros testified that she had been convicted for racial and political reasons. What do you have to say to that?

A. That is altogether untrue. The decision was based solely on the logical application and interpretation of the law in accordance with the decisions of the Reich Supreme Court while taking into consideration the particularly difficult and dangerous conditions prevailing in the rural districts in wartime. Such points of view as those of race and biology and whatever else you may call them, as I pointed out yesterday, played no part whatsoever in any of my decisions and judgments.

Q. And you will now tell us something about the Wdowen case. The witnesses Gros and Pfaff evidently tried to minimize that offense. What do you have to say to that?

A. The facts of the case can be seen from the judgment which is available to the Tribunal, and I therefore need not to go into any detail. Apart from the fighting and the aid given by Kaminska, this was a very violent and altogether unusual attack against the policemen; it was a kind of attack on the policeman who had arrested the Kaminska woman, and Wdowen was trying to get the policeman to release his grip on Kaminska. Gros and Pfaff as witnesses disputed that fact; one can only refer to the fact that Wdowen himself never disputed his own intentions and his motives.

Q. What was the legal evaluation of the Wdowen offense?

A. That offense by Wdowen was considered by the court as a crime under article IV of the decree against public enemies[439] and the indictment had given the same evaluation. I should like to point out that assaults of that nature against police officials ever since the beginning of the war, and that is by all courts who tried such crimes, had been sentenced under the same provisions, that is to say under article IV of the decree against public enemies. As a rule, the Wdowen case is by no means an exception. The need to protect particularly rural districts and the need which became greatly increased due to the wartime conditions, and such need for protection was due to the fact that the police was very short of staff, and, because of all that, an attack of that kind on the police--who worked under very difficult conditions--always resulted in a very severe penalty.

Q. Was the law against Poles applied in the Wdowen case?

A. No, it wasn’t. Only article IV of the law against public enemies.

Q. Was the Wdowen case the subject of differences of opinion at the consultations?

A. As far as I remember, it wasn’t.

Q. Did the prosecution consider both defendants as meriting the death sentence?

A. The prosecution from the very beginning considered that the death sentence should be asked for both defendants, and accordingly, it informed the Reich Ministry of Justice before the indictment was filed. The Reich Ministry of Justice concurred with the view of the prosecution and approved it.

DR. SCHUBERT: I am now passing on to the next case of violent criminals.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ALTSTOETTER[440]

_DIRECT EXAMINATION_

* * * * * * *

DR. ORTH (counsel for defendant Altstoetter): Do you remember Prosecution Exhibit 204, Document NG-151?[441] That document is concerned with the events which lead up to the 13th decree concerning the Reich Citizenship Law.[442]

DEFENDANT ALTSTOETTER: 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, 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.[443] 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 amendment 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 State [Fiskus][444] which is provided there for special cases. I am referring to article 1936 in the civil code, which has always existed. Furthermore, the provision under article II shows that hereditary rights of Jews and non-Jews, [benefiting from the will] of a deceased Jew as such were 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. Section II also mentioned non-Jewish persons entitled to receive support from the deceased, although generally in the case of death any obligation to look after the maintenance of third persons comes 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 Ministerialdirigent Dr. Stagel would have dealt with it in that case.

Q. Did Department VI have anything to do with the handling or carrying out the 13th decree?

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 objected to this request from the Reich Ministry of the Interior, although the Minister of Justice was of different opinion.

Q. Do you know how that matter developed further?

A. As for the 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 have anything to do with this matter. The Ministry of the Interior then withdrew its 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 1 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.

PRESIDING JUDGE BRAND: May I ask you concerning that. I am wondering if I have the correct understanding of your 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?

DEFENDANT ALTSTOETTER: 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 its 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 mean it vanished in the air? You mean it was--

A. No, that is to say, it had now gone to the police or to the finance office, they had now taken into their hands the property left by the Jew.

Q. Then I take it in practice the courts did not enforce what you have stated would be the valid law of inheritance?

A. I assume that such cases did not come before the courts.

Q. Well, didn’t matters of inheritance in general as to the Germans come before the courts?

A. Yes, yes they did.

DR. ORTH: I think that is all.

* * * * * * *

DR. ORTH: Please explain briefly to the Tribunal what one understands under German law by “matters of descent.”

DEFENDANT ALTSTOETTER: The fact that from the biological point of view a certain man has fathered a certain child is under the German civil code, the decisive criterion for the status and the legal position of the child, and therefore, also for the rights and claims of such a child. However, as we know, it is frequently difficult to establish the true biological descent of a child, and it was particularly difficult at the time of the promulgation of the civil code. Pursuant to the achievements of biological science, the German legislator had established certain legal suppositions concerning the legal descent. On the basis of those provisions the biological descent and the legal descent not infrequently appeared to be different. As science progressed, in particular in the field of biochemistry, hereditary biology, and anthropology, after the civil code had come into force, more and more reliable methods of science were discovered in order to prove or at least exclude biological descent of a child from a certain father. As a result, litigations between father and child became more and more frequent concerning the true biological descent, that is to say, concerning the question as to whether the legal father was also, biologically speaking, the child’s father.

Under German law, all those cases of litigation are described as matters of descent. A partial complex is formed by those cases where Jews and persons of mixed descent, in the majority already adults, wanted the matter clarified in a court for themselves or their progeny, that contrary to the legal supposition, biologically and consequently also legally, they were not--or, at any rate, not to the extent that had been assumed--the children of a Jew or a person of mixed descent.

* * * * * * *

PRESIDING JUDGE BRAND: Could you tell us in a few words what, if anything, your Department VI had to do with matters pertaining to descent cases such as you have described them?

DEFENDANT ALTSTOETTER: Those descent cases played a great part from the point of view of my department exercising supervision. I shall revert to that matter quite briefly.

Q. Over whom or over what did you exercise supervision?

A. The Ministry of Justice, because of the treatment to be accorded to such descent cases constantly received complaints, in particular, complaints stating that these proceedings never made any progress. Furthermore, and I shall revert to this, too, we received complaints--

Q. That doesn’t answer my question. I am sorry to interrupt you. Your department exercised supervision in matters pertaining to descent. Over whom did you exercise supervision?

A. We had that supervision over the courts and over the public prosecutors.

* * * * * * *

DR. ORTH: Witness, will you please comment again on Exhibit 453?[445]

DEFENDANT ALTSTOETTER: Here I have to say first, briefly, that the descent cases which I have just mentioned, especially the right of the prosecution to raise charges in descent cases, since the so-called laws concerning Jews were issued, were used as a means for Aryanization as we called it. In cases, that is to say, where a man who according to the law was considered to be a Jew was of the opinion that he was not to be considered a Jew, he himself filed a claim for the establishment of the fact that he was not a Jew, that is, that he was not a descendant of a Jew. Or if his right to file that claim or the right of his father to do so no longer existed because the term to do so had expired, he went to the public prosecutor to make the public prosecutor file this claim. The latter was the case when a suit was filed in order to challenge the legality of a marriage. Now in cases where these claims were filed in the course of the war, particularly during the last years of the war, considerable difficulties arose. I only want to mention two, but there were more of those. One was the lack of experts in the field of genetics which was caused by the war. The other reason was the thing that had occurred with the courts in Vienna. In other courts it did not occur, as far as I know. There in Vienna a particular difficulty arose owing to the fact that the police, as far as Jewish witnesses for these descent trials were concerned--in most cases it was a question of so-called witnesses for the investigation or witnesses for the purpose of comparison--that the police, as I said, for reasons of security had removed these witnesses and now refused to produce them or to release them. That can be seen from the letter of the police of 3 May 1944, which is in this exhibit. Objections against the attitude of the police which were raised by the subdepartment chief, Ministerialrat Rexroth, in the course of a conference with a Referent, were only successful to the extent that the police consented in exceptional cases to produce witnesses if the Reich Minister of Justice expressly demanded that. Moreover, the police referred to the lack of means of transportation and escort personnel caused by the war. With matters as they stood, the Reich Ministry of Justice could do nothing else but to bring them to the attention of the courts in Vienna through the president of the district court of appeals. For the people concerned who desired to carry out by that suit, as I have called it, an Aryanization, the fact that these witnesses were not produced as a rule did not amount to any disadvantage. The persons concerned on their part, either if they had instituted the proceedings themselves in their own interest or if they had requested of the public prosecutor to institute proceedings, had themselves presented to the public prosecutor evidence for their assertion that they were not descendants of a Jew or a person of mixed Jewish descent. And if the court could not produce the expert opinions of geneticists which officially had to be produced and for which these witnesses for the purpose of comparison were needed, then the court could do nothing else but on the basis of the evidence which the Jews concerned had submitted, to decide, and that this evidence was in favor of the person filing the claim is obvious. And to that the remarks in Exhibit 453 refer, that one had to put up with it if in this manner the intentions to cover up for the true descent could not be prevented.

Q. Witness--

PRESIDING JUDGE BRAND: Let me ask you this. Concerning these claimants suspected of being Jews but claiming to be Aryans, how far back did they have to trace their ancestry to prove that they were Aryans?

DEFENDANT ALTSTOETTER: They were not compelled to go far back. It sufficed to prove that either one of the parents was not Jewish, and if that could not be proved, they also could refer to the fact that other ancestors of theirs were not Jewish. The question as to whether a person was a Jew or was not a Jew was laid down in the meaning of the Nuernberg laws, these laws and the decrees to carry out these laws. But the suits themselves were not concerned with that, but subsequently the main thing was whether--

Q. Did they have to prove that their grandparents were not Jewish?

A. Mr. President, we have to distinguish here--

Q. Just tell me yes or no first, and then you may distinguish. Here is a man who claims he is an Aryan. He wants to prove it. What of his ancestors must he prove were not Jews? Can you answer?

A. Framed in this way, as far as these suits were concerned, I cannot answer the question because as far as these suits were concerned that question was of no importance.

Q. Was he an Aryan if his grandfather was a Jew?

A. He had two grandfathers and two grandmothers.

Q. Yes.

A. And there the distinction was made, but according to the Nuernberg laws, which were only of interest before the administrative authorities and not for these trials, the distinction was made whether he was one-eighth, one-fourth, or one-half Jew, that is to say, a person of mixed descent of that degree, or whether he was a full Aryan. But I say that that is a question which for carrying out these descent cases was of no importance.

Q. Will you tell me then, and do it briefly, because I know you can, what did the person have to prove in order to establish in a descent case that he was an Aryan?

A. It was established, Mr. President, that contrary to the legal assumptions, he was not the descendant of that and that father. Nothing else.

Q. That is, that he was not the descendant of his purported father.

A. Of the purported father according to the legal assumption.

Q. That is, if the father was a Jew.

A. If the father was a Jew.

Q. Then he had to prove he was a bastard. Is that what you mean?

A. Yes. If it was at all a question of legitimacy. There were such cases of descent also outside of marriage, illegitimate. These descent cases were not restricted to Jews. There were not at all any special regulations for Jews.

* * * * * * *

3. NATIONALS OF THE WESTERN OCCUPIED COUNTRIES--
THE NIGHT AND FOG DECREE

TRANSLATION OF DOCUMENT 671-PS
PROSECUTION EXHIBIT 304

LETTER FROM KEITEL, CHIEF OF ARMED FORCES HIGH COMMAND, TO MINISTRY OF JUSTICE, 12 DECEMBER 1941, TRANSMITTING HITLER’S NIGHT AND FOG DECREE AND ITS FIRST IMPLEMENTATION ORDER; INTEROFFICE MEMORANDUM REQUESTING TRANSMITTAL OF THE LETTER TO DEFENDANT SCHLEGELBERGER

Chief of the Supreme Command of the Armed Forces 14 n 16 WR (I3/4) No. 165/41 g

(When answering, please refer to above file number, date and
subject.)

Berlin W 35
12 December 1941
Tirpitzufer 72–76
Telephone: Local: 218191
Long distance: 218091
12/Hz

[Stamp] Secret

To the Reich Minister of Justice

Attention: Under Secretary Dr. Freisler

Subject: Prosecution of criminal offenses
against the Reich or the occupying
power in the occupied zones

3 enclosures

With regard to the oral conversation between Under Secretary Dr. Freisler and the chief of my legal section,[446] I enclose herewith a decree of the Fuehrer and Supreme Commander of the Wehrmacht of 7 December 1941[447] and an order for its execution of the same day.[448] I agree with the opinion of the State Secretary that the execution of the Fuehrer decree necessitates a close cooperation between the Reich Ministry of Justice and the Supreme Command of the Wehrmacht.

I instructed my officials to assist your agencies in every respect. I ask you to settle the question regarding the manner of imprisonment in your provision for the execution of decree.

[Signed] KEITEL

Action taken by II a 118 and 119/42 g

II a 116/42 g 3 enclosures

12
received 26/1
SCH [Schlegelberger]

Ministerialrat Dr. Gramm, State Secretary Dr. Freisler asks to transmit the enclosed letter to State Secretary Dr. Schlegelberger for his information

[Signed] VON HACKWITZ
19 January 1942

PARTIAL TRANSLATION OF DOCUMENT 1733-PS
PROSECUTION EXHIBIT 303

SECRET NIGHT AND FOG DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEMBER 1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS OFFERING RESISTANCE TO GERMAN OCCUPATION

Secret

The Fuehrer and Supreme Commander of the Armed Forces

Directives for the Prosecution of Criminal Acts against the Reich or
the Occupying Power in the Occupied Territories of
7 December 1941

Since the beginning of the Russian campaign, Communist elements and other anti-German circles have increased their assaults against the Reich and the occupation force in the occupied territories. The extent and the danger of these activities necessitate the most severe measures against the malefactors in order to intimidate them. To begin with, the following directives should be observed:

I

In case of criminal acts committed by non-German civilians and which are directed against the Reich or the occupation force, endangering their safety or striking force, the death penalty is indicated in principle.

II

Criminal acts contained in paragraph I, will on principle, be tried in the occupied territories only when it appears probable that death sentences are going to be passed on the offenders, or, at least, the main offenders, and if the trial and the execution of the death sentence can be carried out without delay. In other cases the offenders, or, at least, the main offenders, are to be taken to Germany.

III

Offenders who are being taken to Germany are subject to court martial procedure there only if particular military interests should require this. German and foreign agencies will be told upon inquiries on such offenders that they were arrested and that the state of the proceeding does not allow further information.

IV

The commanders in the occupied territories and the judicial authorities, within their jurisdiction, will be personally held responsible for the execution of this decree.

V

The Chief of the High Command of the Armed Forces will decide in which of the occupied territories this decree shall be applied. He is authorized to furnish explanations, to issue supplements, and implementation directives. The Reich Minister of Justice will issue implementation directives within his jurisdiction.

BY ORDER:
The Chief of the High Command of the Armed Forces

[Signed] KEITEL

Distribution:
Foreign Office
Reich Minister and Chief of the Reich Chancellery

Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior

Army High Command (Chief, Army Armament and Commander of the
Replacement Army, Army Legal Department) with 7 numbered copies

Navy High Command (Navy Legal Department) with 1 numbered copy

Reich Air Minister and Commander in Chief of the Air Force with
1 numbered copy

President of the Reich Military Court

Commander Armed Forces Southeast with 4 numbered copies
Norway
Netherlands
Ostland
Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector
for Bohemia and Moravia

Armistice Commission Wiesbaden

OKW:
Chief of the Armed Forces Operational Staff with 8 numbered
copies
Division L
Armed Forces Propaganda
Division Foreign Affairs, Foreign Counter Intelligence
Division Foreign Affairs
Counterintelligence III
General Armed Forces Office

TRANSLATION OF DOCUMENT 669-PS
PROSECUTION EXHIBIT 305

KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST
IMPLEMENTATION DECREE TO THE NIGHT AND FOG DECREE

[Stamp] SECRET

The Commander in Chief of the Armed Forces
14 n 16 WR (I 3/4) [Stamp] L. 15 Dec. 1941
No. 165/41 g Az. 14g po 10
No. 37787 41

12 December 1941

Subject: Prosecution of criminal acts against the Reich or
against the occupying power in occupied territories

1 enclosure

It is the long considered will of the Fuehrer that in case of attacks against the Reich or the occupation force in the occupied territories, other measures than those in present use should be taken. The Fuehrer is of the following opinion: in connection with such activities imprisonment, even life imprisonment, is considered as a sign of weakness. An effective and lasting deterrent can only be achieved by death sentences or by measures which will keep the relatives of the perpetrator and the population in suspense concerning the fate of the perpetrator. This purpose is served by deportation to Germany.

The attached directives for the prosecution of crimes correspond to this conception of the Fuehrer. They were examined and approved by him.

[Signed] KEITEL

Distribution[449]

[Handwritten notes] Clarify as soon as possible.

1. Are the provisions concerning shooting of hostages, etc., annulled by that order?

2. Is it clear to the Army High Command, especially to the Quartermaster General, who has been omitted in the distribution?

[Initial] W [Warlimont] 17 December

Secret

First Decree for the carrying out of the Fuehrer’s and Supreme
Commander’s directives concerning the Prosecution of
Criminal Acts against the Reich or the Occupying
Power in the Occupied Territories

By virtue of chapter V of the directives of 7 December 1941 of the Fuehrer and Supreme Commander concerning the prosecution of criminal acts against the Reich or the occupying power in the occupied territories, I order the following:

I

The conditions of chapter I of the directives will as a rule be applicable in cases of--

1. Assault with intent to kill.

2. Espionage.

3. Sabotage.

4. Communist activity.

5. Crimes liable to create disorder.

6. Favoring of the enemy by the following means:

a. Smuggling people into a country.

b. The attempt to enlist in an enemy army.

c. Support of members of an enemy army (parachutist, etc.).

7. Illegal possession of arms.

II

(1) The criminal acts described in section I of the directives are to be tried in the occupied territories only under the following conditions:

1. It must be probable that a death sentence will be pronounced against the perpetrators or at least against the principal perpetrator.

2. It must be possible to carry out the trial and the execution of the death sentence at once (on principle a week after the capture of the perpetrator).

3. Special political misgivings against the immediate execution of the death sentence should not exist.

4. Apart from the death sentence for murder or partisan activities no death sentence against a woman is to be expected.

(2) If a sentence which has been pronounced according to section I is annulled, the trial can continue in the occupied territory, if the conditions of section I, No. 1, 3, and 4 still exist.

III

(1) In case of criminal acts mentioned in section I of the directives, the highest judicial authority in agreement with the counter intelligence officer examines whether the conditions for a trial in the occupied territories exist. If he agrees that they are, he orders the session of the court martial. If he denies it, he submits the documents to his superior commanding officer (sec. 89, par. 1 of the decree on criminal procedure during wartime). The latter may reserve the decision to himself.

(2) The superior commanding officer renders the final decision as to whether the conditions for a trial in the occupied territories exist. If he agrees that they do, he orders the highest judicial authority within his command to deal with it. If he denies it, he gives the order to the secret field police to take the perpetrator to Germany.

IV

(1) Perpetrators taken to Germany _will be subjected there to court martial proceedings_ only, if the High Command of the Armed Forces or the superior commanding officer declare in their decision according to chapter III that special military reasons require court martial proceedings. If such a declaration is not made, the order that the perpetrators be taken to Germany means a transfer according to section 3, paragraph 2, sentence 2 of the decree on criminal procedure during wartime.

(2) If the superior commanding officer uses his authority according to paragraph 1, he submits the documents to the High Command of the Armed Forces through official channels. The perpetrators are to be designated “prisoners of the armed forces” when being transferred to the secret field police.

(3) The High Command of the Armed Forces determines the tribunal for those perpetrators who are subjected to court martial proceedings according to paragraph 1. _It may waive the competence of the armed forces tribunals._ Moreover, it can suspend the proceedings for any time it chooses.

V

The trial in Germany will be held under strictest exclusion of the public because of the danger for national security. Foreign witnesses may be questioned during the trial only with the permission of the High Command of the Armed Forces.

VI

The regulations on the procedure before tribunals of the Armed Forces included in the decree of the High Command of 13 September 1941 concerning the situation in Norway (Armed Forces Operational Staff/Department L (IV/Qu) No. 002034/41 top secret) and of 16 September 1941 concerning the Communist revolutionary movements in the occupied territories (Armed Forces Operational Staff/Abt. L (IV/Qu) No. 002060/41 top secret) are superseded by the directives and this executive order.

VII

(1) These directives will become effective 3 weeks after they are signed. _They are to be applied in all occupied territories with the exception of Denmark_ until further notice.

(2) The orders issued for the newly Occupied Eastern Territories are not affected by these directives.

(3) Chapter I of the directives is applicable for pending trials. The highest judicial authority and the superior commanding officer can accordingly apply chapter III of this executive order in case of such trials. If the superior commanding officer orders that a perpetrator be taken to Germany, chapter IV will be applicable. In case of perpetrators who were taken to Germany before these directives became effective, the High Command of the Armed Forces can proceed according to chapter IV, paragraph 3.

The Commander in Chief of the Armed Forces

[Signed] KEITEL

Distribution:

Foreign Office

Reich Minister and Chief of the Reich Chancellery

Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior

High Command Army (Chief Army Armament and Commander of the
Replacement Army, Army Legal Department) with 7 numbered copies

High Command Navy (Navy Legal Department) with 1 numbered copy

Reich Minister for Air and Commander in Chief of the Air Force
with 1 numbered copy

President of the Reich Military Court

Armed Forces Commander Southeast with 1 numbered copy

Norway
Netherlands
Ostland
Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector in
Bohemia and Moravia

Armistice Commission Wiesbaden

High Command Armed Forces:

Chief Armed Forces Operations Staff with 8 numbered
copies
Department L

Armed Forces Propaganda

Office Foreign Counterintelligence

Department Foreign Countries

Branch III

General Armed Forces Office

PARTIAL TRANSLATION OF DOCUMENT NG-077[450]
PROSECUTION EXHIBIT 306

LETTER FROM UNDER SECRETARY FREISLER TO GENERAL LEHMANN, 16 DECEMBER 1941, TRANSMITTING A DRAFT OF A PROPOSED IMPLEMENTATION ORDER TO THE NIGHT AND FOG DECREE, TOGETHER WITH AN INTEROFFICE NOTE OF 25 DECEMBER 1941

Priv. II v. Ha/La

16 December 1941

[Handwritten] Officially dispatched, 16 December

Secret [Handwritten] IIa 117/42 g
Sheet 13
Secret!

To Ministerialdirektor Dr. Lehmann
Chief of the Armed Forces Legal Division with the High
Command of the Armed Forces

Berlin W
Bendlerstr. 14

Dear Ministerialdirektor,

Dear Party Member Lehmann,

Being in the possession of your letter of the 12th of this month, I send you attached hereto the draft of an executive order. Taking your consent for granted, the Reich Minister of Justice intends to publish it.[451] I should be obliged to you, if we could discuss our views in the beginning of next week. (Prior to that time I shall be on an official trip.) In the meantime, Ministerialdirektor Schaefer is also ready to discuss this matter with you. Ministerialdirektor Schaefer will prepare the necessary administrative regulations on the basis of the provisions issued or proposed.

Heil Hitler!
[Initial] FR [Freisler]

[Illegible stamp] [Italicized text crossed out in original document]

_Before dispatch
submitted to State
Secretary Dr. Schlegelberger
with the request to take note._

_Berlin_, 16 December

[Signed] FREISLER
22. 12. to II a 116/42 g

[Enclosure]

[Executory decree to Hitler’s Night and Fog order
of 7 December 1941]

Regarding the execution of the afore-mentioned decree, I decree:

1. I reserve to myself the decision as to which court is materially and locally competent to deal with a case.

2. The public prosecutor shall prefer charges after earnest reflection according to his duty.

3. The order, application, and termination of the arrest pending trial are at the discretion of the public prosecutor.

4. The trial will be conducted behind closed doors.

5. The admittance of evidence of foreign origin depends on the preceding consent of the public prosecutor.

6. Prior to the verdict the public prosecutor may revoke the indictment or move for a suspension of the proceedings.

The motion of the public prosecutor to suspend proceedings must be granted by the court.

The public prosecutor must be given an opportunity to state his opinion, should the court decide on making an exception to his motion in re.

[Initial] FR [Freisler] 16 December
[Initial] SCH [Schaefer] 16 December

[Entire document handwritten]

_Secret_

1. Note. I had an oral discussion in this matter on 19 December, and on 24 December I had a discussion by telephone with Ministerialdirektor Lehmann. He told me, that the High Command of the Armed Forces had, in principle, agreed to the draft submitted to it with regard to the executive order but that, nevertheless, it would give a reply in writing. The question has not been decided whether the High Command of the Armed Forces within its jurisdiction, will give the right to handle the case to the higher military court or the military courts. There is also the necessity of settling some other questions which presumably will be attempted in a conference of delegates in the beginning of January. It would be advisable for the Reich Ministry of Justice to await further information from the High Command of the Armed Forces. Transfers of the cases to courts should not be expected before the second half of January.

Experts in charge of this matter with the High Command of the Armed Forces are--

Senior Military Court Counsellor Huelle,
Military Court Counsellor Schoelz,
Ministerialrat Sack.

Furthermore with the counterintelligence office of Colonel Bentivegni, Chief of Counterintelligence III.

Ministerialrat Herzlieb,
Senior Military Court Counsellor von Gramatzki.

2. To Ministerialrat Grau, with the request to take note.

[Initial] GR [Grau]
25 December

I beg you to take care of the file and handle it in the future.

[Signed] SCHAEFER
24 December

TRANSLATION OF DOCUMENT NG-232
PROSECUTION EXHIBIT 308

CIRCULAR DECREE OF THE REICH MINISTRY OF JUSTICE, SIGNED BY UNDER SECRETARY FREISLER, 6 FEBRUARY 1942, ASSIGNING PARTICULAR SPECIAL COURTS TO HANDLE NIGHT AND FOG CASES

The Reich Minister of Justice II a 119/42 secret

Berlin W 8, 6 February 1942
Wilhelmstrasse 65
Phone: 110044
Long distance: 11 65 16

[Stamp] Secret

Circular decree on the implementation of the executive decree of 6 February 1942, concerning the directives issued by the Fuehrer and Supreme Commander of the Armed Forces for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories.

For the further execution of the directives mentioned before, I decree:

1

Competent for the handling of the cases transferred to ordinary courts, including their eventual retrial, are, as far as they originate from the occupied French territories, the Special Court and the chief public prosecutor in Cologne; as far as they originate from the occupied Belgian and Dutch territories, the Special Court and the chief public prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the chief prosecutor in Kiel; for the rest, the Special Court and the attorney general at the Berlin district court. In special cases I reserve to myself the decision of competence for each individual case.

2

The Chief Public Prosecutor will inform me of the indictment, the intended plea and the sentence as well as of his intention to refrain from any accusation in a specific case.

3

The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the prosecutor. The agreement may be withdrawn.

4

Warrants of arrest will be withdrawn only with my consent. If such is intended, the chief public prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to its being used by the Tribunal.

5

Inquiries concerning the accused person or the pending trial from other sources than those armed forces and police agencies dealing with the case will be answered by merely stating that * * * is arrested, and the state of the trial does not allow further information.

Acting:
[Typed] Signed: DR. FREISLER
Certified: [Signed] KERSTEN
Chief Secretary of the Ministerial Chancellery

Circular stamp of the Reich Ministry of Justice

TRANSLATION OF DOCUMENT 2521-PS
PROSECUTION EXHIBIT 310

LETTER FROM THE SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE TO CONCENTRATION CAMP COMMANDERS, 18 AUGUST 1942, TRANSMITTING INSTRUCTIONS FOR TREATMENT OF NIGHT AND FOG PRISONERS

Copy Oranienburg, 18 August 1942

SS Economic and Administrative Main Office[452] Chief of Division D--Concentration Camps D I/Az.: 14 c 2/Ot./U. Secret Diary No. 551/42

Subject: Prisoners who come under the Keitel decree

Reference: Reich Security Main Office--IV C 2 Gen. No. 103/42 of
14 August 42 and attached extract of 4 August 1942

Enclosure: 1

To the Camp Commandants of the Concentration Camps Dachau,
Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuengamme,
Auschwitz, Gross-Rosen, Natzweiler, Niederhagen, Stutthof,
Arbeitsdorf, Ravensbrueck, and Prisoner of War Camp at Lublin

I am sending you, for information and execution, enclosed extract from the Nacht und Nebel [Night and Fog] Decree for official use in concentration camps, in connection with prisoners who come under the “Keitel Decree.”

In the event of the transfer of such prisoners, it is to be pointed out that the prisoners come under the “Keitel Decree” or the Nacht und Nebel Decree.

[Typed] GLUECKS

SS Brigadier General and Brigadier General of the Waffen SS
Certified true copy
Natzweiler, 24 August 1942
[Signed] MELZER
SS-Corporal

Seal

To department III with the request to inform the postal department.

Copy

IV D 4--103/42 g Berlin, 4 August 1942

Extract from the Nacht und Nebel Decree for official use in
concentration camps

By decree of the Commander in Chief of the Armed Forces dated 12 December 1941 regarding the prosecution of punishable offenses against the Reich or the occupation forces in the occupied areas (called in short Nacht und Nebel Decree), it has been directed by virtue of a Fuehrer order, that persons who, in the occupied territories, take action against the Reich or the occupation forces, shall be removed to the Reich for deterrent purposes. Here they are to be transferred to a Special Court. Should this not be possible for any reason, these persons will be placed in a concentration camp under sentence of protective custody. Protective custody as a rule lasts until the end of the war.

As it is the purpose of this decree to leave the relatives, friends, and acquaintances in uncertainty regarding the fate of the prisoners; they are not allowed to have any means of communication with the outside world. They may therefore neither write, nor receive letters, parcels, or visits. Nor will any kind of information regarding the prisoners be given to any agency outside.

In cases of death, the relatives are not to be informed until further notice. There has not yet been a final ruling on this question.

These regulations apply to all prisoners regarding whom it is stated in the detention particulars or in the detention certificates of the Reich Security Main Office that they come under the Nacht und Nebel Decree. Furthermore, all prisoners come under it who are described as “Porto” or “Continent” prisoners.

If it should occur that prisoners who come under the Nacht und Nebel Decree, have, through an error, had the opportunity of informing their relatives, further exchange of correspondence with their relatives should, for tactical reason, be granted them within the framework of the general regulations regarding correspondence for persons under protective custody.

[Typed] Signed: DR. HOFFMANN

Certified true copy.
Natzweiler, 24 August 1942

[Signed] MELZER

[Seal]

SS Corporal

TRANSLATION OF DOCUMENT NG-228
PROSECUTION EXHIBIT 312

MEMORANDUMS OF DEFENDANT VON AMMON TO DEFENDANT ROTHENBERGER, 9 AND 26 SEPTEMBER 1942, CONCERNING PENDING NIGHT AND FOG CASES AND THE HANDLING OF THESE PRISONERS

1. Note. Criminal proceedings according to the directives of the Fuehrer for the prosecution of criminal acts against the Reich or the occupying power in the occupied territories of 7 December 1941[453] (so-called Nacht und Nebel cases) pending on 1 September 1943 are--

_a._ With the Chief Public Prosecutor in _Kiel_ (from the occupied Norwegian territories) _9_ cases with a total of _262_ accused.

_b._ With the Chief Public Prosecutor in _Essen_ (from the occupied Belgian and northern French territories) _180_ cases with a total of _863_ accused.