Chapter LXXVIII: Section VII: of the secret decree declares that the directives will (5)

The connection of the defendant Lautz with the illegal Nacht und Nebel procedure is established beyond question. The People’s Court acquired jurisdiction of NN cases under the decree of the Reich Minister of Justice of 14 October 1942. Lautz estimated that the total number of NN cases examined by his department was approximately one thousand, of which about two hundred were assigned to the People’s Court for trial, but he added that each case could concern several defendants. No good purpose will be served by a second review of the testimony concerning the Nacht und Nebel decree. In harmony with the decision in the case of the United States [et al.] _vs._ Goering, et al., this Tribunal finds that the secret procedure which was instituted and enforced through the Ministry of Justice constituted a war crime and a crime against humanity. The Chief Public Prosecutor of the People’s Court zealously enforced the provisions of this decree, and his conduct in so doing violated the laws and customs of war and the provisions of C. C. Law 10.

_Treason Cases Involving Border Crossings by Poles_

Lautz estimated that from 150 to 200 persons were prosecuted for leaving their places of work and attempting to escape from Germany by crossing the border into Switzerland. These cases were prosecuted under the provisions of penal code concerning treason and high treason.

On 24 February 1942 an indictment against the Pole Ledwon was filed by Parrisius as deputy for the defendant Lautz. The indictment was marked “Secret Treason Case”, and bore the stamp of the Chief Public Prosecutor at the People’s Court. A letter signed by Lautz bearing the same date was addressed to the presidents of the Second Senate of the People’s Court and advises them that he is sending to the court the indictment in the case Ledwon. The indictment alleges that on 28 July 1941 the accused left his place of work in Bavaria and attempted to escape by crossing the Reich border, and that he was stopped by a customs official whom he struck with his fist while evading the arrest. The indictment states that the reason given by the defendant Ledwon for his attempt to escape from Germany “does not deserve credence; it may rather be assumed that he intended to join the Polish Legion organized on the side of the hostile powers”. The indictment states that the defendant knew that the aim of the Polish Legion was to restore a Polish state. On the basis of the foregoing specific allegations, the indictment charges that the defendant prepared within Germany “(1) the highly treasonable enterprise to separate from the Reich by force a territory belonging to the Reich; (2) to have aided and abetted the enemy inside Germany during a war against the Reich, and thus, as a Pole, not to have behaved according to the German laws and to the directives of the German authorities; and (3) to have committed a violent attempt on a German official. * * *.” The indictment was brought under the provisions of sections 80, 83, and 91b of the penal code, and under the provisions of the law against Poles and Jews. Section 80 provides for the imposition of the death penalty upon anyone attempting by violence or threat of violence to detach from the Reich territory belonging to the Reich. Section 83 provides for the punishment of any person who solicits and incites an undertaking of high treason. Section 91b provides for imprisonment or death for any person who undertakes acts in favor of the enemy powers or causes a detriment against the armed forces of the Reich. On 10 August 1942 the case was tried. The court found the following facts: defendant was a Pole who lived in Poland on 1 September 1939. (See: Law against Poles and Jews.) After the Polish campaign the defendant reported “voluntarily” for work in Germany and then tried to leave the country. The court states further that “the prosecution charges the defendant with the intention of going to Switzerland in order to join the Polish Legion there.” It adds that the Polish Legion was interned in Switzerland and that many Poles had been caught at the frontier, some of whom could be convicted of planning to join the Polish Legion in Switzerland. The court, with unwanted candor, states that “the trial did not show any concrete evidence that the defendant * * * had any knowledge of a Polish Legion in Switzerland.” It held that due to lack of evidence “the defendant could not be convicted of the crime of preparation for treason and of treasonably aiding the enemy.” The opinion of the People’s Court continues (_NG-355, Pros. Ex. 128_):

“The defendant is, however, guilty according to the result of
the trial, of an offense under the ordinance relating to the
administration of penal law for Poles, of 4 December 1941. The
general conditions of this ordinance are fulfilled, as the
defendant is, by origin, education, and sentiment, a racial Pole
and was on 1 September 1939 resident in the former Polish State.
In leaving his place of work as an agricultural laborer, of
his own accord, at the end of July, i. e., during the harvest,
he disturbed the orderly procedure of the harvest work of his
employer to the detriment of the harvest. His action moreover
was detrimental to the whole of the German people, for in
leaving his place of work in order to go abroad he deprived the
German people forever of his labor. Germany, in order to cover
her war needs and to ensure food supplies for the front as well
as for home, however, needs all persons employed, including
foreigners. Every worker who by escape abroad deprives the
German war economy for good of his labor, reduces the number of
badly needed manpower, and thus endangers the interest of the
German people.”

The court held that it was irrelevant whether the Pole knocked the customs official down, because in any event he used force sufficient to prevent his arrest at the time. It observed that under the law against Poles and Jews “the only possible penalty is the death sentence, unless a less serious case can be made out in the defendant’s favor. The senate was not able to recognize such case.”

The opinion concludes as follows:

“But by using violence against the customs officer who was going
to arrest him and thus resisting the legal German authority,
he has proved himself such a fanatical and violent Pole that
he has forfeited any right for leniency. In view of the heavy
responsibility of the Polish nation for the bloodshed caused
during the weeks of August and September 1939, it is the duty of
every member of this nation to obey willingly the rules of the
German authorities. A Pole who, on the contrary, uses violence
against a German official can only be punished sufficiently by
the highest degree of punishment. Accordingly, this has been
imposed on the defendant.”

The Pole was sentenced to death.

We are not here to retry the case. We may, therefore, ignore the ridiculous charge that the defendant desired to join an interned legion and the allegation that he came to the Reich “voluntarily” after the invasion of Poland. We have already discussed the essential evil in the practice of prosecutors whereby they charged that Poles were guilty of high treason by attempting to separate from the Reich territory which had never been legally annexed to the Reich. In the Ledwon case the sinister subtlety of the Nazi procedure is laid bare. If the case had been brought only under the law against Poles and Jews, the People’s Court would not have had jurisdiction, so the defendant was charged with high treason for attempting to separate from the Reich, territory which did not belong to it. The proof of high treason failed. There remained only the charge that in attempting to escape from Germany and from forced labor there, the defendant assaulted a customs officer with his fist and that what he did was done as a Pole in violation of the law against Poles and Jews. It was under that discriminatory law that Ledwon was sentenced to death and executed. The defendant Lautz is guilty of participating in the national program of racial extermination of Poles by means of the perversion of the law of high treason.

In a similar case, upon an indictment signed by Parrisius and filed by authority of the defendant Lautz, the People’s Court sentenced three Poles to death upon a charge of preparation of high treason “because they, as Poles, harmed the welfare of the German people, and because in a treasonable way they helped the enemy and also prepared for high treason.” The specific facts found by the court were that the defendant Mazur and others attempted to cross the border into Switzerland for the purpose of joining the Polish Legion. By such conduct and by depriving the German Reich of the benefit of their labor, it was held that the efforts of the defendants aimed “at forcibly detaching the eastern regions incorporated in the Reich * * * from the German Reich.” The opinion contains an illuminating passage concerning treason committed by attempting to join an interned legion. We quote (_NG-352, Pros. Ex. 129_):

“After the defeat of France in the present war, as is known
to the senate (court) from other proceedings, detachments of
the Polish Legion crossed the border into Switzerland and were
interned in camps. The legion continues under the command of
Polish officers and is kept in readiness for military action
against the Reich on the side of the enemy in the event of
German troops invading Switzerland.”

The evidence of intent to join the interned legion is paltry, but as before we will not attempt to retry the case on the facts. The court held that according to the law against Poles, the death sentence must be imposed. We quote:

“They wanted to deprive the German nation forever of their
labor. Thus, they have damaged the welfare of the German nation.
This is an offense under the ordinance on the administration of
penal law against Poles. * * *

“The precept of the Regulation of Penal law against Poles
applies to the defendant’s offense, although it was committed
before the regulation came into force for, according to article
I of the Supplementary Regulation of 31 January 1942, the
Regulation of Penal Law against Poles can be applied to offenses
committed before the regulation was in force with the approval
of the prosecutor. This approval has been given by the Reich
Chief Prosecutor.”

In another, the Kalicki case, the record of which is marked “Secret,” three Poles were sentenced to death for preparation of high treason upon the same grounds as in the previous case. The court held that “the sentence to be pronounced has to be based on the ordinance concerning the administration of penal law against Poles, since this ordinance provides the heaviest penalty of all laws applicable to the case.” The evidence does not disclose that the defendant Lautz personally signed the indictment, but it was certainly filed under his authority. The question of clemency in the Kalicki case was presented to the defendant Rothenberger. On 28 July 1943 he wrote:

“ * * * I have decided upon authorization by the Fuehrer not to
exercise my right of pardon but to let justice take its course.”

The defendant Lautz filed an indictment against the Pole, Bratek. The specific charge was leaving his work in Germany and attempting to cross the border into Switzerland to join the Polish Legion. The general charge was the treasonable attempt to separate from the Reich an area belonging to the Reich and the violation of the law against Poles and Jews. The court said (_NG-595, Pros. Ex. 136_):

“At the same time he has made himself guilty of a crime
according to Article I, paragraph 3, last half sentence, of
the Ordinance on the Administration of Penal Law Against
Poles, issued 4 December 1941. Because, being a Pole, he has
intentionally inflicted damage to the interests of the German
people by malevolently leaving his important agricultural
job, above all during harvest time, in September 1942, and by
planning to rob the German people forever of his own labor by
escaping abroad. * * *

“According to article 73, Penal Code, the penalty must be based
on the ordinance concerning the administration of penal law
against Poles which _loc. cit._ demands exclusively the
death penalty as a rule, this being the most severe penal law
applicable here.”

A secret communication by the defendant Lautz to the Reich Minister of Justice is of especial interest. The proposal under consideration as for the prosecution of certain Poles upon the charge of high treason on account of acts done in Poland before the war. In his discussion Lautz quotes from Himmler, the Foreign Office, and the president of the People’s Court. The facts on the basis of which opinions were expressed may be illustrated thus: Within Poland and before the war, a Pole institutes proceedings against a Polish citizen of German blood, charging the racial German with fifth column activities directed against Poland. During the war the Pole who instituted the prosecution against the racial German is captured. The question was: Can the Pole be prosecuted in a German court on a charge of high treason against the Reich, basing the charge on the fact that he had prosecuted the racial German in Poland? The German penal statute involved was section 91, paragraph 2, which provides that “whoever with the intention of causing a serious detriment to a national of the Reich, enters into relations as described in paragraph I shall be punished,” in especially serious cases by death. Himmler, as quoted by Lautz, discusses the basis for punishment by German courts of “an offender who has caused racial Germans to be punished or otherwise prosecuted by Polish authorities.” Himmler asserts that foreign police used methods against racial Germans which were contrary to international law and “the laws of minorities” and that such offenders deserve heavy punishment, but he also states that as far as racial Germans are concerned, section 91, paragraph 2, of the German Penal Code “is not directly applicable, as racial Germans, according to formal national laws were not German, but Polish, citizens. I can only express my opinion in the form of a suggestion, that in case of the betrayal of a racial German by the foreign Poles * * * section 91, paragraph 2, of the German Penal Code is to be applied * * *.” (Citing decisions of the People’s Court.) Himmler directly states that the provisions of section 91, paragraph 2, are “nonapplicable”. We emphasize the fact that the question under discussion related to the proposed prosecution of a Pole for acts committed before the war while Poland was in the exercise of its sovereign powers throughout its territory. The question could not well have related to acts done after Poland had been overrun and part of it purportedly annexed, for, at that time Polish authorities would have been in no position to prosecute racial Germans. Furthermore, in discussing the problem, Lautz mentions a case against the Pole Golek which had recently come into his hands on preliminary proceedings. He states that Golek in the years 1938 and 1939 in Poland had turned over to the police authorities a racial German of Polish nationality and had accused him of high treason committed in favor of the Reich.

Himmler, as quoted by Lautz, expressed the view that considerations of foreign policy would be opposed to the enactment of any German statute under which a Pole could be prosecuted by German authorities on account of acts of the kind indicated, but he added:

“I see here a task for the courts, an opportunity to fill a
gap in the law, a gap caused by political reasons of state by
creating a law in the appropriate cases.”

Himmler quoted from an opinion by the People’s Court in which it was said that the National Socialist State “feels it incumbent on itself, even in case of a conspiracy by a foreign government against one single Reich citizen, to give the threatened person its protection in accordance with penal law as far as this is possible from the home country.” It will be observed that this quotation relates to the protection of Reich citizens, not Polish citizens, who are only racial Germans. Himmler continued, however:

“The Reich made no secret of the fact that with regard to the
protection of Germans, it does not only claim the right to
protect Reich Germans but also racial Germans living on its
borders.”

The defendant Lautz frankly expressed the view that the German statute defining treason did not cover the case under discussion. In this he was clearly correct. The German statute on treason had been extended to provide that “whoever with the intention of causing * * * any other serious detriment to the Reich, establishes relations with a foreign government, shall be punished by death.” This section was not applicable to the case under discussion because the charge to be preferred against the Pole was one of treason against an individual and not against the Reich. By the law of 24 April 1934 the concept of treason was also expanded to cover certain cases of causing serious detriment to a German national, but that law also was inapplicable to the case under discussion because the serious detriment had not been caused to a German national but only to a racial German. Insofar as the German statutes required punishment of acts done with the intention of causing serious detriment to a national of the Reich, they extended the concept of treason in a manner unknown to the criminal law of any civilized state, and this law was made applicable in occupied and purportedly annexed territory. Notwithstanding the extremes to which the German laws of treason were extended, the defendant Lautz stated that he agreed with the Reich Leader SS and the president of the People’s Court that a direct application of the German law of treason protects only German nationals and does not apply to racial Germans. He then stated:

“Furthermore, I concur with the conception that the general
political development which has meanwhile come about,
particularly during the last years, which has enabled the Reich
largely to protect its racial members of foreign nationality to
a greater extent than it has been possible hitherto, must be
borne in mind in this particular instance. Therefore, I find
it necessary, on principle, to protect by means of the German
penal code those racial Germans who have seriously suffered
through action such as mentioned in paragraph 92, subparagraph
2, of the Penal Code, provided that action deserves punishment
in accordance with sound German sentiment, but where such
punishment, considering the elements of wrongdoing of that
particular case, cannot be brought home on the strength of any
other directly applicable penal regulation.”

In conclusion the defendant Lautz stated that in the majority of cases which have been committed by foreign nationals abroad against racial Germans he would “have to report in each individual case.”

Stated in plain language, Lautz proposed that the courts should try and convict Poles for acts which violated no statute of any kind, if they deserved punishment according to sound German sentiment. This proposal violates every concept of justice and fair play wherever enforced, but when applied against a Pole for an act done in his own country in time of peace, the proposition becomes a monument to Nazi arrogance and criminality. Such a Pole owed no duty of loyalty to any state except Poland and was subject to the criminal jurisdiction of no state but Poland. The prosecution of the Pole Golek would constitute a palpable violation of the laws of war (see: citations to the Hague Convention, _supra_), and any official participating in such a proceeding would be guilty of a war crime under C. C. Law 10. The document discloses that cases similar to that of Golek had been tried by the People’s Court and that more prosecutions were expected in the future. As a witness, the defendant Lautz testified that “in several individual cases a decision had to be obtained from the minister.” We are justified in believing that Lautz’ expectations were fulfilled and that he participated in the prosecution of Golek and in similar cases.

We have cited a few cases which are typical of the activities of the prosecution before the People’s Court in innumerable cases. The captured documents which are in evidence establish that the defendant Lautz was criminally implicated in enforcing the law against Poles and Jews which we deem to be a part of the established governmental plan for the extermination of those races. He was an accessory to, and took a consenting part in, the crime of genocide.

He is likewise guilty of a violation of the laws and customs of war in connection with prosecutions under the Nacht und Nebel decree, and he participated in the perversion of the laws relating to treason and high treason under which Poles guilty of petty offenses were executed. The proof of his guilt is not, however, dependent solely on captured documents or the testimony of prosecution witnesses. He is convicted on the basis of his own sworn statements. Defendant is entitled to respect for his honesty, but we cannot disregard his incriminating admissions merely because we respect him for making them.

There is much to be said in mitigation of punishment. Lautz was not active in Party matters. He resisted all efforts of Party officials to influence his conduct but yielded to influence and guidance from Hitler through the Reich Ministry of Justice, believing that to be required under German law. He was a stern man and a relentless prosecutor, but it may be said in his favor that if German law were a defense, which it is not, many of his acts would be excusable.

We find the defendant Lautz guilty as charged upon counts two and three of the indictment.

_THE DEFENDANT METTGENBERG_

By his own sworn statement the defendant Wolfgang Mettgenberg frankly and fully admits his connection with the Hitler Night and Fog decree. His statements show that he exercised wide discretion and had extensive authority over the entire plan from the time the Night and Fog prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or imprisonment.

We will not reiterate the statements made by him in his sworn statement and hereinabove quoted. Suffice it to say that Mettgenberg held the position of Ministerialdirigent in Departments III and IV of the Reich Ministry of Justice. In Department III, for penal legislation, he dealt with international law, formulating secret, general, and circular directives. He was regarded as an eminent authority on international law. He handled Night and Fog cases and knew the purpose and procedure in such cases. He knew that the decree was based upon the Fuehrer’s order of 7 December 1941 to the OKW. He knew that an agreement existed between the Gestapo, the Reich Ministry of Justice, the Party Chancellery, and the OKW with respect to the purposes of the Night and Fog decree and the manner in which such matters were to be handled.

The defendant von Ammon was Ministerial Councillor in Mettgenberg’s subdivision and was in charge of the Night and Fog section as shown in this judgment. The two acted together on doubtful matters and referred difficult questions to competent officials in the Reich Ministry of Justice and the Party Chancellery, since both of these offices had to give their “agreement” in cases of malicious attacks upon the Reich or Nazi Party or in the Night and Fog cases. The NN cases came from the Wehrmacht but in some cases directly from the Gestapo. These cases were assigned to Special Courts at several places in Germany and to the People’s Court at Berlin by defendant von Ammon. Mettgenberg and von Ammon were sent to the Netherlands occupied territory because some German courts set up there were receiving Night and Fog cases in violation of the decree that they should be transferred to Germany. They held a conference at The Hague with the highest military justice authority and the heads of the German courts in the Netherlands, which resulted in a reference of the matter to the OKW at Berlin which agreed with Mettgenberg and von Ammon that “the same procedure should be used in the Netherlands as in other occupied territories, that is, that all Night and Fog matters should be transferred to Germany.”

In Department IV for penal administration, Mettgenberg’s work consisted of inspecting execution equipment. He witnessed one execution in 1944. He was entrusted with speeding up clemency applications because prisoners were escaping during air raids. Reich Minister Thierack called the defendant, Rothenberger, Under State Secretary, by telephone at Berlin and instructed him to make decisions concerning the clemency in death sentence cases presented by defendant Mettgenberg who made “reports lasting hours,” and then Rothenberger made the decisions.

The evidence does not positively show that clemency cases presented by Mettgenberg and passed upon by Rothenberger were NN cases. We think, however, that the only conclusion that can be reached from Mettgenberg’s testimony during the trial is that Rothenberger passed upon all clemency matters presented to him by Mettgenberg which included NN cases. Mettgenberg stated that he was appointed to speed up clemency matters due to air raids and that he took the matter up with the Reich Minister of Justice, Thierack, who at the time called Rothenberger on the telephone and told him to receive and pass upon the clemency matters submitted. Mettgenberg testified that he did present clemency matters to Rothenberger by telephone conversations which lasted for several hours and that Rothenberger then made the decisions.

The defendant Mettgenberg assumed the burden of defending the illegality of the Night and Fog proceedings under the Ministry of Justice not only for himself but for all defendants connected therewith. He prefaced this defense with the following statement:

“Today I am still of the view which I expressed in my affidavit.
My view is that it was regrettable because the courts, in these
matters, could not completely do justice to their foremost
task, the finding of the truth. Now that I believe I have heard
everything and believe myself to be able to survey the whole
matter, I have to say that as concerns the various evils between
which one had to choose, a transfer of the NN cases to the
administration of justice was, after all, the lesser evil, so
that this emergency solution which was made was probably the
only possible solution.” (_Tr. pp. 6269–6270._)

With respect to the legal foundation for the NN cases, three laws or decrees are presented as justifying the proceedings. The first is article 161 of the Military Penal Code which dates back to the 1870’s and which, as amended, provides:

“A foreigner or a German who, in a foreign territory occupied
by German troops, acts against German troops or their members
or against an authority established by order of the Fuehrer and
thereby commits an act which is punishable according to the laws
of the Reich, is to be punished, just as if that act would have
been committed by him within the territory of the Reich.”

Whether this law violates international law of war need not be determined here because the defendants did not act under it in the execution and enforcement of the Hitler Night and Fog decree. Nor does this law authorize the execution and enforcement of any such decree.

The second legal ground presented is article 3, section 2 of the Code of Penal Procedure of 17 August 1938 which provides for the punishment of criminal acts committed in the areas of military operations in occupied territory by foreigners or Germans and further provides that:

“If a requirement of warfare demands it, * * * they may turn
over the prosecution to the ordinary courts in the rear army
area.”

There can be no criticism of this law. It was not applied in any respect in the Night and Fog cases; hence, it constitutes no defense for the manner in which the Night and Fog decree was carried out.

The third legal foundation for the proceeding is based upon the claim that the Hitler decree of 7 December 1941 was a legal regulation for the handling of offenses against the Reich or against the occupation forces of the German Army in occupied areas. With respect to this decree we are convinced that it has no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations as heretofore set out in this judgment.

The defendant Mettgenberg referred to and approved the testimony of the defendant Schlegelberger which states “that the NN prisoners were expected to be, and were, tried materially according to the same regulations which would have been applied to them by the courts martial in the occupied territories” and that, accordingly, “the rules of procedure had been curtailed to the utmost extent.” This court martial procedure was shown to have been used in the prosecution of NN persons who had been charged with high treason or preparation of treason against the Reich.

Mettgenberg testified as to the troubles the department had with the Gestapo because the Gestapo insisted that they had already investigated the facts as to each NN prisoner and that these facts should be accepted without further trial. This practice was not acceptable to the Ministry of Justice. As to other difficulties in securing proper evidence, Mettgenberg testified:

“Even though investigations were first of all carried out in the
occupied territories before the NN prisoners were transferred to
Germany, yet it was a matter of course that that evidence was
not always without gaps.”

These “gaps” in the evidence were shown by [NG-261 and NG-264] Prosecution Exhibits 334 and 335 in which the public prosecutor at Katowice complained of the difficulty of securing sufficient proof due to the utter secrecy of the proceedings. The Gestapo alone presented the evidence by “rather dubious police transcripts” and “such police records occasionally had been obtained by inadmissible means.” Mettgenberg testified that defendant von Ammon made an official trip to Upper Silesia to discuss these matters with the chief judge in Belgium and northern France “to remedy that state of affairs.” This action did not take place until 30 June 1944, which was only a few months before the Night and Fog matters were taken out of the hands of the Ministry of Justice, and all prisoners then held by the Ministry of Justice were transferred to the Gestapo to be placed in concentration camps.

Mettgenberg also testified to the difficulties experienced with the Gestapo arising out of the fact that the Gestapo transferred many of these prisoners directly to concentration camps and thereby retained control over them. Nothing was done about the fact that the police took the NN prisoners into police custody and retained them in police custody.

We find defendant Mettgenberg to be guilty under counts two and three of the indictment. The evidence shows beyond a reasonable doubt that he acted as a principal, aided, abetted, and was connected with the execution and carrying out of the Hitler Night and Fog decree in violation of numerous principles of international law, as has been heretofore pointed out in this judgment.

_THE DEFENDANT VON AMMON_

From his own sworn statements we gain the following information concerning the defendant von Ammon. He joined the SA in December 1933, in which organization he held the rank of Scharfuehrer. He joined the NSDAP in May 1937. He was called to the Reich Ministry of Justice as of 1 January 1935, became a Landgerichtsrat on 1 February 1935, and Landgerichtsdirektor on 1 July 1937. His main activity in the Ministry during that period concerned “questions of international legal usage in penal matters”

After the Austrian Anschluss he was employed as liaison officer of Department III (penal matters) in connection with Department VIII (Austria), in the Reich Ministry of Justice. He was consultant in the department for the administration of penal law under Ministerialdirektor Crohne. He was transferred to the Munich Court of Appeals as Oberlandesgerichtsrat where he served until June 1940, at which time he was recalled to the Reich Ministry of Justice. As of 1 March 1943 he was appointed Ministerial Counsellor in the Ministry of Justice. He states (_NG-852, Pros. Ex. 55_):

“From 1942 onward I dealt mainly with Nacht und Nebel cases
in the occupied territories. In my capacity as consultant for
Nacht und Nebel cases I made several duty trips to the occupied
territories and took part in discussions in Paris and Holland
which dealt with questions of Nacht und Nebel proceedings.”

The broad scope and the variety of the official activities of von Ammon may be illustrated by reference to reports which he made to officials of the Ministry of Justice during the year 1944. On 14 January 1944 he reported at the Ministry upon “jurisdiction of Denmark”. On 10 February he reported to the minister on “Competence for Prosecution of NN Cases.” On 31 May, under the heading “Submissions to the State Secretary” (Klemm), he reported on “Action Against Stateless Jews, Admission of Legal Procedure.” Under the heading “Reports to the State Secretary” for 21 June 1944, he reported on “Pastoral Service for NN Prisoners”, after which in handwriting appears the word “rejection”. Under the heading “Submissions to the Minister” for 26 July, he reported on “Proceedings of State Police in Lower Styria.” Under the heading “Reports to the Ministers” of 5 October, he reported on “Taking Over of Criminal Proceedings from the Eastern Districts.” Under the heading “Formal Verbal Reports to the Minister” of 3 November 1944, he reported on “Liquidation of Offenses from the Eastern Territories.” On 10 January 1945 it appears that he made a verbal report on the “Taking Over Administration of Penal Justice of the Minister for the East.”

The prosecution introduced in evidence a captured document of 142 pages in length, containing lists of many hundreds of death sentences which were submitted to the Minister of Justice and at times to State Secretary Klemm for final disposition. The cases were classified as “clear” or as “doubtful.” The former, “clear,” outnumbered the latter. An examination of the document discloses that between 14 January 1944 and 16 November of the same year the defendant von Ammon made twenty-four reports on cases in which persons from the occupied territories had been sentenced to death under the Nacht und Nebel procedure. The death sentences averaged more than one for every 3 days of the entire period.

In a notice addressed to Under Secretary Rothenberger, and to Minister Thierack, von Ammon reported that on 1 September 1942, in Kiel, Essen, and Cologne cases were pending against 1,456 persons charged under the Night and Fog decree.

In view of the fact that von Ammon was in charge of Nacht und Nebel procedure from 1942 until the end of the war, it is clear that we have in evidence only incomplete records of the activities of this defendant in connection with the Night and Fog decree. The fragmentary character of the captured documents which have been submitted renders it impossible to give a complete picture of this criminal activity. The illustrations which we have given and which cover only a portion of the time involved will, however, serve as an indication of the scope of the activities which were under the direction of the defendants Mettgenberg and von Ammon. Von Ammon also participated in a lengthy secret correspondence concerning the transfer of NN cases to the Special Court at Oppeln and the necessity of allocating additional judges and public prosecutors to that court in view of the resultant increase in the volume of work.

The defendant von Ammon held an executive position of responsibility involving the exercise of personal discretion. Within the ministry he was in charge of the section which handled Night and Fog cases. The defendant Mettgenberg stated that the Night and Fog section within his subdivision was headed by von Ammon and that whenever von Ammon had doubts concerning the handling of individual cases joint discussions were held. We quote:

“When he had no doubts he could decide on matters himself.”

We have already set forth at length the statement of von Ammon concerning his knowledge and activities and his misgivings concerning the entire procedure. The defendants von Ammon and Mettgenberg were the representatives of the Reich Ministry of Justice at a conference at The Hague on 2 November 1943 concerning “New Regulations for Dealing with Night and Fog Cases from the Netherlands”. Von Ammon states that assurance was given by Mettgenberg and himself that close connection would be maintained between the judicial authorities at Essen and the German authorities in the Netherlands in the handling of NN cases. We have already quoted a note signed by von Ammon wherein he remarked that it was “rather awkward” that the defendants should learn the details of their charges only during the trial and commented on the insufficiency of the translation facilities in the trial of French NN prisoners. Von Ammon is chargeable with actual knowledge concerning the systematic abuse of the judicial process in these cases.

In respect to his other activities we refer to our general discussion under the heading “Night and Fog.” We find the defendant von Ammon guilty of war crimes and crimes against humanity under counts two and three of the indictment.

_THE DEFENDANT JOEL_

The professional career of the defendant Guenther Joel in the Third Reich proceeded at the same pace as his career as a Party man; in fact, even before the war years his professional career merged with his career in Nazi organizations, and to be more precise, in the SS and the SD--the organization which the IMT judgment has declared to be criminal.

He became a member of the NSDAP on 1 May 1933 and entered the Ministry of Justice as a junior public prosecutor (Gerichtsassessor) on 7 August 1933. In quick succession he became assistant public prosecutor (1 September 1933), public prosecutor (1 January 1934), senior public prosecutor (1 February 1935), and chief public prosecutor (1 November 1936).

Between August 1933 and October 1937, Joel was the chief of a newly created subdepartment of the Reich Ministry of Justice, the Central Public Prosecution (Zentralstaatsanwaltschaft). In October 1937 this subdepartment was dissolved, but the Reich Minister of Justice, Guertner, reserved the right to assign Joel as “Referent” for special cases and subsequently made use of this right. After the dissolution of the Central Public Prosecution, Joel worked as “Referent” in the Ministry’s Penal Department III (later renumbered IV).

By a formal letter of appointment, dated 19 December 1937 and signed by Minister Guertner, Joel was, in addition to his other duties, appointed liaison officer between the Reich Ministry of Justice and the SS, including the SD, as well as the Gestapo. A few months later, namely, in a letter of 2 May 1938, signed by Heydrich, Joel was, effective 30 January 1938, admitted to the SS and, effective the same day, promoted to the rank of SS Untersturmfuehrer and given the position of leader (Fuehrer) in the SD Main Office (Security Service Main Office).

His SS personnel record shows how quickly he climbed to high positions in the SS and the SD: on 11 September 1938 he became SS Obersturmfuehrer; on 30 January 1939, SS Hauptsturmfuehrer; on 26 September 1940, SS Sturmbannfuehrer--holding all these ranks as leader in the SD Main Office.

The record shows that in his capacity as SS officer Joel was, between 2 and 8 May 1939, sent on an official mission for the Security Office (SD). An official letter from the Reich Leader of SS, Chief of the Security Service Main Office, dated 28 April 1939, so notified the Reich Minister of Justice. Again, on 4 July 1940, the Chief of the Security Police and the Security Service informed the Reich Ministry of Justice that Joel had been “put on the list of indispensable persons on behalf of the Reich Leader SS and Chief of the German Police,” thereby reserving to the Security Police and the Security Service the indispensable service of Joel and freeing him from military service.

But in his answer, dated 11 July 1940, to this request, Freisler, Under Secretary of the Ministry of Justice, asked:

“To refrain from calling upon SS Captain Joel, senior public
prosecutor, for taking over duties for the Reich Leader SS and
Chief of the German Police. Dr. Joel, as you know, is entrusted
with extremely important reports at my ministry.”

The nature of these reports will be later discussed.

On 1 May 1941 Joel was promoted to ministerial counsellor. He remained with the Reich Ministry of Justice until 12 May 1943.

The reason for his leaving the Ministry was that on 7 May 1943 he was appointed attorney general to supreme provincial court of appeals in Hamm (Westphalia). By letter dated Fuehrer Headquarters, 12 May 1943, Bormann, Chief of the Party Chancellery (sentenced to death in absentia by the IMT) personally confirmed his appointment. It should be added that a few weeks earlier, by letter of 13 March 1943 to Reich Minister of Justice, Thierack, the Gauleiter of Westphalia, Alfred Meyer, also formally endorsed Joel’s appointment for attorney general at Hamm, in his own name and in the name of deputy Gauleiter Hoffmann, in charge of the administration of the Gau Westphalia-South.

Shortly after this new appointment, namely, as of 9 November 1943, Joel was promoted to the high rank of SS Obersturmbannfuehrer, which appointment was approved by Himmler. His political and Party career went hand in hand with his professional career, and his promotions were made by or approved by such high ranking Nazi officials as Himmler, Bormann, Heydrich, Thierack, and Freisler--whose desperate and despicable characters are known to the world; the record in this case is replete with many atrocities and crimes committed by these leaders and members of organizations which have been declared criminal by the IMT. Thus, Joel continued to the end as the confidant and trusted protegé of these most outstanding and notorious criminals of all time.

It will be remembered that ever since December 1937, Joel in his several capacities at the Ministry of Justice had, in addition to his other duties, acted as liaison officer between the ministry and the SS, the SD, and the Gestapo. To this position a successor, Chief Public Prosecutor Franke, was appointed on 1 August 1943. Joel claims that in fact he had ceased to act as such liaison officer when Thierack assumed office as Reich Minister of Justice in August 1942. However, the record shows that even after that time Joel made numerous reports, some of which are mentioned below, relating to the execution of death penalties imposed under the law against Poles and Jews, and relating to the transfer of Poles who had received mild sentences, or had been acquitted, or had served their term, to the Gestapo. These were the very duties which he had to perform in the Reich Ministry as liaison officer. Even after Thierack’s appointment as minister, Joel was connected with the interests of the Reich Security Office, and his work was productive and satisfactory in the carrying out of the plan or scheme of racial persecution and extermination of Poles and Jews. On 17 August 1943, defendant Rothenberger inducted defendant Joel into his office as general public prosecutor at Hamm, praised him in the highest terms, and referred to him as an SS member and also to his rank of SS Obersturmbannfuehrer. As late as 1945, when the question of military service for Joel again arose, Gauleiter Hoffmann of South Westphalia intervened in a letter to the Reich Ministry of Justice, referring to the fact that Joel was known to be a member of the Waffen SS, and that if he were to go into military service he would undoubtedly be assigned to the SS activities.

Under our discussion of the Night and Fog decree, reference is made to several documents which show Joel as having aided, abetted, participated in, and having been connected with, the Night and Fog scheme or plan.

Rudolf Lehmann, lieutenant general of the legal department of the armed forces, stated under oath:

“These cases were, as I seem to remember, handled by von Ammon,
also of that same division of the Reich Ministry of Justice.
General Public Prosecutor Joel, who was in the Ministry of
Justice until sometime in 1943, would be able to supply further
details on this ‘Nacht und Nebel’ matter. Joel was general
public prosecutor in Hamm, and a court handling ‘Nacht und
Nebel’ cases was located at Hamm. Other courts handling ‘Nacht
und Nebel’ cases were located at Cologne, Breslau, and at one or
two other places unknown to me but which can be named by Joel.”

Joel became chief prosecutor of the court of appeals in Hamm, covering all of Westphalia and the district of Essen, on 17 August 1943, which office he continued to hold until the end of the war. In this position he was in charge of the Night and Fog program for the Special Courts in Hamm and Essen until 15 March 1944 when these courts were transferred farther east to Oppeln in the Katowice district. Reports of Joel show that he attended conferences both in Hamm and in Belgium on Night and Fog matters. The record also shows that the district of which he was the highest, and therefore the most responsible, prosecuting authority was, in area and population, one of the largest in Germany. He had under his supervision the senior public prosecutors and their staffs at the Special Courts at Hamm and in Essen. It was his task to supervise the work of all prosecutors assigned to his office. The Special Courts in Hamm and Essen tried more Night and Fog cases than the combined total of all other Special Courts and the People’s Court. In law, Joel must be held to have had the responsibility of these cases. The record further shows that Joel assumed this responsibility.

A letter addressed to Joel, dated 20 January 1944, stated that in the future all Night and Fog persons who were upon trial acquitted or who had served their sentences, must be turned over for custody to the Gestapo.

A letter dated 26 January 1944 from Joel to the Reich Minister of Justice complained about the delay which the defendant Lautz, chief prosecutor at the People’s Court, caused by his failure to return files in NN cases. Joel pointed out that 84 Night and Fog prisoners who had been held near Hamm since 1941 were still there.

In November 1943 defendants von Ammon and Mettgenberg came to Hamm enroute back to Berlin from the conferences they had attended in Holland. The purpose of their visit to Joel was to determine whether there was any available space in prison for the keeping of additional Night and Fog prisoners to be transported from the Netherlands. Joel assured them that more prisoners could be accommodated and even opposed the view of his Oberlandesgericht who stated they should not be sent to the Hamm area. They were sent to that area. In December 1943 Joel attended a conference in Brussels which he reported upon after his return to Hamm, pertaining to Night and Fog prisoners who were sent from Belgium.

The categorical denial of Joel of ever having transferred an NN prisoner or of ever having tried an NN prisoner or of ever having issued an order to transfer an NN prisoner who had been acquitted or who had served his sentence, to Gestapo custody is no defense of his activities in connection with the custody, trial, execution, or transfer of NN prisoners after they had served their sentences or had been acquitted to the Gestapo.

The high office which he held required him to supervise and properly handle Night and Fog cases filed in the courts where he was chief prosecutor. He had numerous assistants whom he necessarily had to entrust with the prosecution and carrying out of the Night and Fog program and cases arising thereunder. The fact that Joel did not actually try the Night and Fog cases himself has no significance. He did supervise the men who tried and had executed some of them and imprisoned others and transferred others who were not guilty of any crime or who had served their sentence, to the Gestapo and concentration camps.

The defendant Joel is chargeable with knowledge that the Night and Fog program from its inception to its final conclusion constituted a violation of the laws and customs of war.

We turn now to the other activities here under indictment of the defendant Joel.

We direct attention to a document from the Reich Ministry of Justice which contains the program for conferences among the officials of the Ministry. In each instance the name of the official who is to report is set opposite the subject for discussion. From this we gain some information as to the scope of the work assigned to Joel.

According to this program Joel was scheduled to report upon the following subjects. We quote:

“Nullification plea, Maslanka.

“Nullification plea, Beyer Bosich (Italian) article 4, VVO.

“Matter of clemency Pongratz (70 year old farmer, non-delivery).

“Handing-over of Poles to the State Police (cases Bartosinski
and Marcziniak).

“Lenzinger Zoowoll AG (Lenzinger Artificial Wool, Ltd.).

“Treatment of Jews and Poles, as well as Russians. Internal
order of the Reich Leader SS.

“Bartosinski, Pole, shall be transferred from criminal custody
(3 years’ penal camp on account of sexual intercourse) to State
Police.

“Marasyak, Pole, wanted to marry German maid in France.
Detention pending investigation. State Police demands him turned
in.

“Should there be any reports during the war on the question of
mercy for Poles who have been sentenced to death on account of
the possession of weapons and other offenses and who have been
pardoned to 5 years’ penal servitude with the reserve of an
investigation after 2 to 3 years?

“Extortion of food ration cards, Mrs. Ritter. Chorlow, Russian
from the district of Kursk, article 2, VVO. State Police wants
to punish with police measures.

“Jakubowski, Pole, has raped German woman. He has been executed
by hanging. The criminal police asks for a burial certificate.

“Uschako, workman, from the East, from old Soviet Russian
territory, has stolen a jacket. The Secret State Police sent him
to a labor education camp and requests cancellation of the order
to inflict 1-month imprisonment.”

Another significant incident relates to the case of two “deserving National Socialists.” Our source of knowledge is a brief document signed by the defendant Joel. The facts stated are that a policeman and a temporary mayor “shot two Polish priests for no reason other than hatred for the Catholic clergy.” On 11 June 1940, the two murderers were sentenced to 15 years’ penal servitude for manslaughter. Joel states that more than 2 years of the sentence had been served and that the Reich Leader SS asked for pardon. The document concludes as follows:

“Penal servitude changed to 5 years’ imprisonment each.
Postponement of the serving of the sentence and of the
defamatory consequences for the duration of stay in a Waffen SS
probation unit. Further pardon in the case of the probation.
(Signed) Dr. Joel”

As early as 1937 it is clear that Joel had knowledge of conditions in concentration camps. A document marked “For the time of circulation: Secret! to III-a: After circulation in sealed envelope to the Gestapo general files”, contains the following:

“2. As far as reports concerning executions when escaping from
concentration camps, etc., suicides in K.Z.’s (concentration
camps) arrive, they shall continue to be dealt with by the
specialist competent for the respective subject. The general
consultant for political criminal matters, however, is to be
informed of the reports. They are to be submitted to him [at]
once.”

This order was circulated to all specialists for political criminal matters. Joel was listed as a political specialist.

An official report on a meeting of the presidential board of 1 February 1939 shows that a report was given by the Chief Public Prosecutor on developments in connection with the events of 9 to 11 November 1938 (the Jewish pogrom). We quote:

“The Reich Minister of Justice and Senior Public Prosecutor Joel
pointed out that it was impossible, of course, to handle this
matter in the usual judicial manner; if the top men disregarded
legal principles, it was impossible to prosecute people
concerned with the execution. For instance, the viewpoint of
violation of the public peace should be dropped. This is legally
justified _inter alia_ by the fact that the culprits were
not conscious of any violation, since they were acting under
orders. As far as the criminal offenses committed on that
occasion are concerned, trifles should be dropped. Otherwise,
however, proceedings can only be quashed by the Fuehrer, whereas
serious criminal offenses such as rape and race defilement must
be prosecuted. The order to prosecute is issued in any case by
the minister after the culprits, if they are members of the
Party or of any organization, have been excluded by a special
department of the Supreme Party Tribunal in Berlin.”

It is self-evident that if prosecution was to take place only after a Party tribunal had excluded them, they would live a long and happy life of freedom.