Chapter XLV: Part VI: Final Regulations (8)

A way of escape would be the following, viz, that suspect enemy airmen should not be allowed at all to have the legal status of prisoner of war; that means that one should tell them immediately on capture, that they were not to be considered as prisoners of war _but as criminals_, that they be handed over, not to authorities competent for prisoners of war such as a prisoner of war camp, but to the authorities competent for the prosecution of criminal acts, and that they then be sentenced in special summary judicial proceedings. If, during the interrogation under these proceedings, the circumstances prove that this special procedure is not applicable to the case on hand, then in individual cases the concerned airmen could _afterwards_ be given the legal status of prisoners of war, by transfer to the airmen reception camp at Oberursel. Of course, even this opening would not prevent Germany from being blamed for infractions against valid agreements, and perhaps not even the taking of reprisal measures against German prisoners of war. Anyway, such an opening would enable us to keep to a clear viewpoint and free us of the necessity of either openly repudiating valid agreements or of making use, on publication of every single case, of excuses which nobody will believe. Of the facts mentioned under 2–4 of the letter of 13 June, the facts mentioned under 1 and 4 are legally unobjectionable. The facts under 2 and 3 are legally not unobjectionable. However, the Foreign Office is prepared to disregard that.

[Handwritten marginal note] yes, this too is possible.

It would perhaps be advisable to summarize the facts under 1, 3, and 4 by saying that any attack of an airman on civilian population committed with machine guns is to be treated as a criminal act. The individual acts listed under 1, 3, and 4 would then merely form particularly remarkable instances. Nor does the Foreign Office see any reason why such attacks should not be punished, when committed upon civilian population in ordinary dwellings, in motor cars, in river vessels, etc.

The Foreign Office proceeds from the fact that German airmen are, as a general rule, forbidden, when attacking England, to make use of machine guns against the civilian population. As far as the Foreign Office is informed, such a prohibition was issued some time ago by the Commander in Chief of the Air Force. A general publication could point out the fact that such a prohibition is in force.

III. The above considerations warrant the general conclusion that the cases of lynching ought to be stressed in the course of this action. If the action is carried out to such an extent that its purpose, viz, the deterring of enemy airmen, is actually achieved which the Foreign Office approves of, then the machine gun attacks of enemy airmen upon the civilian population ought to be given publicity in quite another manner than has been the practice up to now, if not in home propaganda, then at any rate in foreign propaganda. The competent local German authorities, probably the police stations, should be instructed to send at once, in every case of such an attack, a short and true report mentioning details concerning place, time, number of killed and wounded, to a central office in Berlin. This central office ought then to transmit these reports at once to the Foreign Office for use.

As such machine gun attacks on the civilian population also have taken place in other countries, e.g., in France, Belgium, Croatia, Rumania, the competent German offices or the governments of those countries ought to be asked to collect in the same way news about attacks on the civilian population and to make propagandistic use of these in foreign countries in cooperation with the German authorities.

IV. In the letter of 15 June the intention has been mentioned that any publication should, until further notice, be proceeded by an agreement, i.e., with the Foreign Office. The Foreign Office attaches special importance to this and insists also that such an agreement take place not only until further notice, but during the entire duration of the action.

BY ORDER

[typed and crossed out] Signed: RITTER

5. Notes of General Warlimont, 30 June 1944

Operations Staff of Armed Forces No. 006988/44 secret command matter

30 June 1944

Top Secret

3 copies--copy No. 1

Subject: Treatment of enemy terrorist airmen

[Pencil note] We must, at least, act. What more do we need?

_Notes on a Report_

I. Enclosed _draft_ of a reply letter of the Reich Minister of Foreign Affairs to the Chief of the High Command of the Armed Forces, which has been transmitted to the Operations Staff of the Armed Forces through Ambassador Ritter, is submitted.

On 29 of this month Ambassador Ritter states by phone, that the Reich Minister for Foreign Affairs has approved this draft but has instructed Minister Sonnleitner to report to _the Fuehrer_ the point of view of the Foreign Office prior to the sending of the letter to the Chief of the High Command of the Armed Forces. Only if the Fuehrer approves of the principles established by the Foreign Office, is the letter to be sent to the Chief of the High Command of the Armed Forces.

II. The Reich Marshal agrees with the formulation transmitted from the High Command of the Armed Forces concerning the concept of terrorist airmen and with the proposed procedure.

[Signed] WARLIMONT

Distribution:
Chief High Command Armed Forces
through Deputy Chief Operations Staff Armed Forces, copy
No. 1
Ktb. (files), copy No. 2
Qu. (adm. 1) copy No. 3

6. Notes of General Warlimont’s Office, 5 July 1944

Operations Staff Armed Forces Qu. (Adm. 1)

5 July 1944

Top Secret

_Notes_

Concerning “Terrorist Airmen”

In the noon situation conference of 4 July, the Fuehrer decreed as follows:

According to press reports, the Anglo-Americans intend for the future, as a reprisal action against “V 1,” to attack from the air also small places without any economic or military importance. If this information is true, the Fuehrer desires publication through radio and press that any enemy airman who participates in such an attack and is shot down during it cannot claim to be treated as a prisoner of war, but will be killed as soon as he falls into German hands. This measure is to apply to all attacks on smaller places, which are not military, communications, nor armament objectives, etc., and which accordingly have no significance from the point of view of the war.

For the time being, no measures are to be taken, but only to be discussed between the armed forces and the Foreign Office.

TRANSLATION OF DOCUMENT NG-364
PROSECUTION EXHIBIT 108

SECRET CIRCULAR FROM MARTIN BORMANN TO NAZI PARTY LEADERS,
30 MAY 1944, CONCERNING “PEOPLE’S JUSTICE
AGAINST ANGLO-AMERICAN MURDERERS”

German National Socialist Workers’ Party

Party Chancellery

The Chief of the Party Chancellery

Fuehrer’s Headquarters, 30 May 1944
[Stamp] 9 June 1944

[Stamp] _Secret_

[Initial] TH [Thierack]

Circular 125/44 Secret
(not for publication)

Subject: People’s justice against Anglo-American murderers

During the past weeks English and North American fliers have repeatedly been strafing children playing on playgrounds, women and children working in the fields, ploughing peasants, vehicles on the highway, trains, etc., from a low height, thus murdering in the most despicable manner defenseless civilians--especially women and children.

It has happened several times that members of the crew of such aircraft who had bailed out or made a forced landing, were lynched on the spot by the highly indignant population immediately after their arrest.

No police or criminal proceedings have been taken against citizens who have taken part herein.

[typed] [signed] M. BORMANN

Distribution: Reichsleiter
Gauleiter
Verbaendefuehrer
Kreisleiter[300]

Certified [Signed] FRIEDRICHS

30 May 1944

To all Gauleiter and Kreisleiter!

[Initial] TH [Thierack]

Subject: Circular 125/44 Secret

The Chief of the Party Chancellery requests that the Kreisleiter inform the Ortsgruppenleiter only verbally of the contents of this circular.

[typed] signed FRIEDRICHS[301]
Certified [Signature illegible]

TRANSLATION OF DOCUMENT 635-PS
PROSECUTION EXHIBIT 109

LETTER FROM LAMMERS TO REICH MINISTER OF JUSTICE THIERACK, 4 JUNE 1944, CONCERNING “PEOPLE’S JUSTICE AGAINST ANGLO-AMERICAN MURDERERS,” AND ENCLOSING BORMANN’S CIRCULAR TO NAZI PARTY LEADERS ON THIS SUBJECT

The Reich Minister and Chief of the Reich Chancellery Reich Chancellery 681 E secret

[Stamp] Secret

Berlin W 8, 4 June 1944
Vosstrasse 6
[Stamp] at present at Field Headquarters

To the Reich Minister of Justice, Dr. Thierack Subject: People’s justice against Anglo-American murderers

[Initial] KL [Klemm]

[Handwritten note] Department IV. Circular Decree with the
addition that such cases are to be submitted to me, when
they arise, for an examination of the question of quashing
proceedings.

[Initial] TH [Thierack]

Dear Dr. Thierack,

The Chief of the Party Chancellery informed me about his secret circular letter,[302] a copy of which is enclosed, and requested me to inform you as well. I herewith comply with this and beg you to consider how far you want to inform the Courts and the prosecuting authorities of it. The Reich Leader SS and Chief of the German Police has, as I was further told by Reichsleiter Bormann, so instructed his police leaders.

Heil Hitler!

Yours very devoted
[Signed] DR. LAMMERS

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
HANS HAGEMANN[303]

_DIRECT EXAMINATION_

DR. SCHILF (counsel for defendant Klemm): What was the last position you held in the administration of justice?

* * * * * * *

WITNESS HAGEMANN: I was attorney general [Generalstaatsanwalt] at Duesseldorf.

Q. Since when had you been attorney general at Duesseldorf?

A. Since 1937.

Q. Herr Hagemann, can you remember that in 1944, the Reich Minister of Justice, Thierack, had issued a so-called circular directive[304] to all attorneys general which contained an instruction to the effect that in cases where the German population had exercised lynch justice the prosecution had been instructed to report to the Ministry about such cases?

A. Yes, I remember such a decree.

Q. Can you tell the Tribunal what the text was?

A. No, I cannot tell you that. I can tell you the contents and what it said was that in such cases a report had to be made to the Minister.

Q. Did that decree say anything to the effect that the Minister intended to quash all such cases?

A. I don’t remember that passage, but it is possible that it did contain such a passage. Generally speaking, all I remember is the fact that a report had to be made on such cases, and if such a case had been pending with me I would have had a look at the decree, and I would have read it through. However, as no such case ever occurred with me, I don’t exactly remember the text because it never became topical for me.

Q. Witness, would you kindly make a little longer pause after I finish my question?

A. Yes, I will.

Q. Was that circular decree a so-called secret decree?

A. Yes, it was.

Q. And how did you keep it? Where did you keep it?

A. Secret decrees were entered in the register by my senior clerk who was in charge of the registry. After that, they were put in the safe.

Q. Witness, in your district--that is to say, within the area of the court of appeals of Duesseldorf--in the fall of 1944, a case is supposed to have occurred where an SA leader shot down two or three Canadian fliers who had been taken prisoners.

A. Yes, I remember that case perfectly well.

Q. Would you please give the Tribunal an account of that case?

A. In September of 1944 parachutists made an attack near Arnhem. In the course of that attack some paratroopers drifted away, and came down near the border between Holland and Germany. There, two Canadian soldiers were taken prisoner, and an SA leader shot and killed them. That is the general outline of the case. I did not hear it from the Chief Public Prosecutor at Cleve who had taken charge of the case, but I heard it from a judge at the court of appeals who informed me of the matter. Thereupon, I told the Chief Public Prosecutor in Duesseldorf to investigate the matter and immediately make a report to me. He returned; I ordered some additional investigations, and I myself made investigations, too. I interrogated witnesses, for example. I believe the best thing would be for me to tell the Tribunal what the results of all those investigations were.

The two Canadian soldiers had been taken prisoner close to the frontier. Two customs officials took them back. The Canadian soldiers were unarmed and, as I think is the custom with prisoners of war, they held up their hands as they walked along. The two customs officials took them back like that, until they got to Kranenburg, a little place on the German-Dutch frontier. At Kranenburg that SA leader was standing in the street--his name was Kluettgen; next to him stood the Kreisleiter of Cleve, whose name was Hartmann. When Kluettgen saw those two prisoners coming along he told them to halt; he drew his pistol from his pocket and shot at the two Canadian soldiers. Kluettgen was so cold-blooded that when at first his revolver was jammed he put it right, and then shot those two soldiers down. As I found out later, at that time or soon after, he said, “Now I have got two; I now only need another two or three.” I can’t vouch for the latter figure, I don’t know exactly what he meant. However when he said, “Now I need another two or three,” he meant this: In an air raid, I believe, Kluettgen had lost five close relatives, and it became evident that that killing was just vengeance for his relatives whom he had lost in that air raid. That is to say, if I may put it that way, he acted in a modification of the old saying “An eye for an eye and a tooth for a tooth.” He just changed it and made the “eye for eye” into “number for number.”

That clarified the SA Leader Kluettgen’s position, but the part played by the Kreisleiter who had been standing next to Kluettgen, remained unclear. I believe I can remember that the Kreisleiter had said something that wasn’t quite above-board, something like, “That’s right,” or “just do away with them,” or something like that. However, it was possible to interpret the words in various ways. It is just possible that he had meant to say, “Kluettgen should shoot them,” or “Take those two away,” because somebody said afterwards that after those two people had been killed, the Kreisleiter had said that that was not what he had intended to happen.

That was the outcome of the investigations.

Now, as to the proceedings that were instituted.

The Chief Public Prosecutor had ordered the police to arrest Kluettgen, but the police refused to carry out the order. Later on, when I was interned, I heard from a Gestapo official that there had been general instructions issued to the police to the effect that men from the Ortsgruppenleiter upward were to be arrested and proceedings instituted against them only if the Party Chancellery approved, and similar instructions had been issued for people in the SA and the SS. Generally speaking, I did not encounter any difficulties when making investigations. The SA gave its consent for me to interrogate several people. The Kreisleiter, however, refused to make a statement until we obtained the approval, and it was the Party Chancellery which had to give that approval; that is to say, it was Bormann. Although an application was made for such consent, it never arrived.

I made a report to the Ministry about the case. Naturally, I had to make a report because it was an important case, and reports had to be made to the Ministry about all important cases.

I told the Ministry, over the telephone, about the fact that proceedings had been instituted, and I believe it was Dr. Mettgenberg to whom I spoke over the telephone. I told him as much as I knew at that time. Afterwards I made a written report, that I intended to clear up the matter, and I eventually managed to clear it up. I also told the Ministry that I needed its support in order to obtain permission for the Kreisleiter to make a statement.

The Ministry was altogether in agreement with the way I had handled the case. I received written instructions. I understood them to want me to clear up the case completely.

There was no question of quashing the proceedings. Not one word was said of that.

PRESIDING JUDGE BRAND: One moment please, Witness. Tell us, please, what did you mean by clearing up the case? Did you mean prosecute and convict? Or what did you mean?

WITNESS HAGEMANN: What I meant first, was to establish the facts and once they were established to suggest to the Ministry that an indictment should be filed against Kluettgen and, if necessary, also against the Kreisleiter. I could not make a final suggestion at that stage because I did not yet know what part the Kreisleiter had played. That is to say, the Ministry agreed that I should carry out my plan to clear up the case, but because no approval was received from the Party Chancellery to interrogate the Kreisleiter, we could not close the proceedings.

There were, of course, also great difficulties of transportation. The further the war was brought into the country, the more difficult it was to have any correspondence with Berlin.

Q. What was the date of this case?

A. I am afraid I cannot tell you the exact date. I think one should be able to find out from the history of the war. It was that parachute attack near Arnhem. I think I am pretty certain it was in September. May I say that is the way I remember the case now. The files are in existence.

Q. It was in 1944?

A. Yes, 1944. I did something which, as far as I know, I never did in any other case. I had two copies made of that file, one original file and a copy of it. I gave the original to my senior clerk, and I told him to keep it, not to leave it in the courthouse at night but to take it home with him, and to take it with him to the air-raid shelter in case of an alert. I kept the duplicate myself, and whenever the alert came I took it with me to the air-raid shelter to make sure that if anything happened to either my senior clerk or to myself, one file would always be available, so that there should be no difficulty in prosecuting the case. I was convinced that this was an important case not only from the point of view of guilt and expiation in the individual concrete case, but also that was bound to be of importance for the German armed forces, for, although I was not a soldier, I could well imagine that if the Allied forces should come to hear that the German administration of justice had not prosecuted that case, they would take retaliation measures against German soldiers, or at least might do so. In that event, soldiers who were innocent in this connection might have suffered for what Kluettgen, and possibly also the Kreisleiter Hartmann, had done.

What may be of interest, is the reaction of the German population in Kranenburg. There were some German civilians standing in the street when this happened, who quite openly showed their indignation.

Q. Was any indictment filed against the one who actually did the shooting?

A. No, that was not done, because we had to wait. The role the Kreisleiter played--

Q. Please answer this question. Did you have any difficulty with the securing of the evidence concerning the actual shooting? As you have told us you apparently had plenty of evidence as to that one person.

A. Yes, against this one man I had the evidence, but as it was possible that another man was involved--the Kreisleiter--it was important that we should not just indict one man and deal with him alone, but to indict them together. We always did that in principle.

Q. Well, let me ask you this. Was that a matter of German law, that when you knew one man had committed a crime you didn’t prosecute him because perhaps someone else might have helped him?

A. But we did intend to indict him. We only wanted to await the result of the investigations concerning the other person, so that we could indict them both, because if we only indicted one, the proceedings against the other one would have been confronted with a great many difficulties. That was the way in which we proceeded, I should say, almost regularly.

PRESIDING JUDGE BRAND: Very interesting.

DR. SCHILF: Herr Hagemann, I would like to ask one more question. The President has asked you whether you were confronted with any difficulties in prosecuting one person. I am referring to Kluettgen now.

WITNESS HAGEMANN: Yes.

Q. May I ask you to tell us whether you had an opportunity to talk to Kluettgen yourself, or to interrogate him?

A. I asked the legal adviser of the SA, if possible, to make Kluettgen come to see me. At first, Kluettgen had worked near Kranenburg, but afterwards the SA had sent him to the district of Aix-la-Chapelle [Aachen]. He had some special transport mission there, and when he came to Duesseldorf on one of those transportation errands, he came to see me in my apartment one Saturday evening. I was ill; that is why I was at home. I had a short talk with him, and I was not favorably impressed with him. He told me that he had killed those two Canadians because he had been afraid that foreign civilian workers who were loafing around in that district might have set those Canadians free. I wanted to refute that statement, and I did refute it by the testimony obtained from witnesses. However, that motive would have been quite indifferent for the legal evaluation of the case.

As regards the clearing up of the case, it seemed important to me to convict the man and prove to him that that motive could not have been true.

Q. Witness, you have said that the order from the Chief Public Prosecutor at Duesseldorf to the police, to arrest Kluettgen, had not been complied with, and now you say Kluettgen came to see you. Did you, as attorney general, not have the possibility to arrest Kluettgen immediately?

A. No, I did not have that possibility. It was a Saturday evening, I was alone in my apartment, and I had no weapons.

Q. You said that Kluettgen had been transferred to the Aix-la-Chapelle district, and you said that the agency for which Kluettgen worked had done that. In carrying out your investigations, did you find any indications that that was done intentionally in order to remove Kluettgen from your jurisdiction?

A. I did not find indications, and I certainly did not find any proof, but the possibility exists. However, it is also quite possible that Kluettgen was transferred from the Kranenburg district because the population was excited.

Q. Could you just tell the Tribunal approximately when the Allied troops arrived in Duesseldorf or Aix-la-Chapelle, the district where Kluettgen was staying at the time.

A. Yes. I can’t tell you exactly when the Allied troops arrived in Aix-la-Chapelle, but they arrived in Oberkassel, on the left bank of the Rhine, at the beginning of March, and as far as I remember, they got to Duesseldorf in April.

Q. Up to that time proceedings were continued, were they?

A. Yes.

Q. And later on, after you had received the support from the Ministry, no instructions to the contrary were issued to you?

A. No contrary instructions were issued to me. The matter was concluded. All that was missing was an interrogation of the Kreisleiter.

Q. And, in accordance with your suggestion, they would then have been indicted?

A. Well, I couldn’t make a suggestion because I didn’t really know what was the matter with Hartmann yet, but if I had found out, I would then have suggested the indictment of Kluettgen and possibly of the Kreisleiter too. However, as far as the Kreisleiter was concerned, that depended upon those investigations which had not yet been made.

Q. I suppose these facts which you have described to the Tribunal can be gathered from the files which you have mentioned?

A. Yes.

Q. May I ask you when you saw the files for the last time?

A. In the spring of this year.

Q. What has been done with the files?

A. I gave them to the attorney general, Dr. Junker, in Duesseldorf in person.

Q. And presumably they are still there?

A. Yes, I am quite sure they must be.

PRESIDING JUDGE BRAND: I would like to ask a question. The case was pending for investigation from September 1944 until March 1945? Is that what you meant to say?

WITNESS HAGEMANN: Yes.

PRESIDING JUDGE BRAND: Thank you.

DR. SCHILF: Mr. Hagemann, did you ever hear--

PRESIDING JUDGE BRAND: Just a moment. One question.

JUDGE HARDING: What else did the Ministry do about it?

WITNESS HAGEMANN: Well, naturally I don’t know what steps the Ministry took, but I assume that the Ministry tried to get the Party Chancellery to give its consent for the Kreisleiter to be interrogated; again and again I suggested to the Ministry to take such a step.

Q. But you heard nothing further from the Ministry, is that right?

A. No, no, I heard no more later on, because--well, I don’t really know why they didn’t write again. I have already told you that transportation difficulties were great, and that it became more and more difficult to keep in touch by letter or by telegram. For example, since the middle of March--or anyway I think it must have been since the middle of March--we were still in a sort of cauldron, we in Duesseldorf were cut off on all sides from the outside world.

PRESIDING JUDGE BRAND: In March 1945?

WITNESS HAGEMANN: Excuse me. What is it you mean? What happened in March 1945? You mean it was then that Duesseldorf became a cauldron? You mean it was then that we became cut off in Duesseldorf?

Q. Yes.

A. Yes, I think it must have been in March 1945, but naturally the difficulties had been great before that time, I mean the transportation difficulties, and they grew worse and worse.

DR. SCHILF: Mr. Hagemann, did you ever hear that that man Kluettgen was recently sentenced to death by an American Military Tribunal?[305]

WITNESS HAGEMANN: Yes, Dr. Haensel told me that a few days ago. He told me that he had read in the paper that Kluettgen had been sentenced to death in Dachau by an American Military Tribunal.

* * * * * * *

_CROSS-EXAMINATION_

MR. LAFOLLETTE: After you communicated with Dr. Mettgenberg about your trouble with the case, did you ever get an answer back from him?

WITNESS HAGEMANN: You’re now referring to the first case, are you? You’re referring to the Kluettgen case, are you?

Q. Yes, I’m referring to the Kluettgen case.

A. Yes, I talked to him over the telephone and then I received an order from the Ministry to the effect that they agreed with my plan to clear up the matter and that in particular the Kreisleiter was to be interrogated. I was also instructed that I should make a further report and that probably further directives would be issued to me. Naturally, I had to wait for the instructions from the Minister. Whether it was Dr. Mettgenberg who had signed that order or whether it was Dr. Vollmer who was then ministerial director, I naturally can’t tell you, for of course I was interested in the case as such but not in the man who signed it.

Q. And before you could do any more, you had to wait for instructions from the Ministry in all cases where Allied fliers had been shot; is that right?

A. Well, that is the way I remember that circular decree but that is the only case that occurred in my area, and the instructions were to the effect to clear up the matter.

DR. SCHILF: I have no further questions.

PRESIDING JUDGE BRAND: The witness is excused.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[306]

_DIRECT EXAMINATION_

* * * * * * *

DR. SCHILF (counsel for defendant Klemm): We now come to the next charge of the indictment. You are personally made responsible in the indictment for having assisted in the so-called lynch justice on the part of the German population exercised on bailed-out Allied fliers during the war. May it please the Tribunal, the documents which were introduced against the witness in that connection are NG-364, Prosecution Exhibit 108; 635-PS, Prosecution Exhibit 109; and NG-149, Prosecution Exhibit 110.[307] According to Exhibit 108 which we already discussed a few days ago, Bormann had sent a secret letter from the Fuehrer Headquarters to the Nazi Party which was addressed to Gau and Kreisleiter. He spoke about lynch actions which had already been taken by the people and it says further, and I quote: “no police or criminal proceedings have been taken against citizens who have taken part herein.” He is speaking in the past tense. Exhibit 109 shows correspondence between Lammers and Thierack. Lammers informs Thierack about this circular letter sent out by Bormann. First, I want to ask you, in what relationship did you see these statements of Bormann to the Kreisleiter and Gauleiter to Thierack at the time?

DEFENDANT KLEMM: According to the text of Lammers’ letter, Exhibit 109, there must have been an enclosure in this letter.

Q. At the time[308] did you obtain knowledge of Exhibit 109 and the enclosure, as you call it, Exhibit 108?

A. Yes, I saw Lammers’ letter and I must have seen this circular letter of Bormann’s together with it.

Q. Bormann spoke about three of those cases which had occurred in the past. Bormann stated that penal prosecution did not take place. When you saw these two letters--when these Exhibits 108 and 109 were submitted to you--did you know anything about it, that is that in the past the administration of justice, that is the courts abstained from penal prosecution against members of the German population?

A. I consider that that is absolutely impossible. If penal prosecution would have been abstained from, this could have been done only by quashing the trial, and for such a quashing Hitler was competent exclusively or the Minister of Justice to the extent to which this right had been delegated to him by Hitler. This can be seen from the clemency regulations which have already been introduced as a document here, in part. I cannot remember such a case being discussed, and I cannot find anything in these reports about it either. I looked at them with that in mind.

Q. If you say that at the time when you received this letter you did not know any past cases, how should one understand Bormann’s letter? He is speaking of the past and says that penal prosecutions did not take place.

A. This can only be explained as follows: According to the letter, before it was sent out, such cases must have occurred. Himmler had already in 1943 instructed his police not to interfere in disputes between the German population and terror fliers which had been shot down.[309] This was already brought out in the IMT trial. This sentence which Bormann used in his circular letter can be explained in my opinion only as follows, namely: that the police did not forward denunciations to the administration of justice and that in this way a penal prosecution did not take place, but only because the administration of justice did not hear anything about these matters. From the hint that Lammers gives in this letter that Himmler had already informed his police also on the basis of Bormann’s circular letter, it is quite clear to me that such denunciations to the administration of justice were also not to be made in the future. But, of course it could happen that the administration of justice found out about such cases on its own and took them up, but incidentally, that Hitler backed this action himself is in my opinion shown in Exhibit 110.

Q. Mr. Klemm, Exhibit 108 and 109 bear your initials. I now want to ask you, were these statements submitted to you before they were submitted to Thierack or after that?

A. I received these documents after Thierack had seen them and after he had already made his notation on them.

Q. This notation by Thierack reads as follows: “IV R-V with the addition that such cases for the purpose of examination in regard to quashing shall be submitted to me,” that is “to me” Thierack, that is Thierack’s notation. What do you have to say about that? How did you understand that notation?

A. The prosecution submitted this document with a supplementary sheet and this says, at least in the German edition of the document, handwritten note on the right upper corner, signed “Klemm.” That is not right. There isn’t any handwritten notice in the upper right hand corner at all but merely a “Kl,” my initials. Below the initials, that is, about the upper one third of the page, there is the notation which has just been quoted which was written by Thierack. The handwritten note is without doubt in Thierack’s handwriting. If the original were available and not merely a photostat, one would be able to see that this note was written with a green pencil. That was the color in which ministers had to sign, according to the business regulations for the highest Reich authorities. Whereas in a purple pencil only my initials are on this document.

Every one of the defendants here, if he has been in the ministry, would be able to testify whether that was my handwriting or not.

PRESIDING JUDGE BRAND: What is the exhibit number on that again?

DR. SCHILF: Exhibit 109, Your Honor, 109; 635-PS. But may I remark it is a later sheet. The prosecution submitted Exhibit [108 and Exhibit] 109 at two different times in two parts.

Now, Mr. Klemm, I want to ask you--

DEFENDANT KLEMM: I want to make an additional explanation. The figure “IV” means department IV. “R-V” means “Rundverfuegung”, circular order, with the addition that such cases are to be submitted to me, that is Thierack, and are to be submitted not for quashing but for the purpose of examining the question of quashing if they were pending. Thus, a quashing was not considered from the very beginning.

Q. Did this instruction issued by Thierack have any possibility of inciting the population to lynch Allied fliers, or how did you look at it at the time?

A. After the Minister had issued this instruction to Department IV and thus had arrogated the decision in regard to this to himself, I no longer had a possibility to undertake anything in the matter. This circular order was issued with the stamp “secret” on it if it was sent out at all, and I don’t know that. And one cannot talk about inciting the population for the reason that the population did not hear about it at all. However, after Bormann had informed the Party in this manner and after Himmler had issued his instructions to the police, it was the duty of Thierack to take some measures in regard to the prosecutions in the country. I have already stated that the administration of justice was unwilling, and Thierack was unwilling too, to grant freedom from prosecution without any conditions like that. Thus, if the administration of justice wanted to carry out a trial, the Minister had to assert his authority and to protect the local prosecutors against any elements of the Party or the police who would like to prevent such a penal prosecution. If a proceeding was to be quashed, however, only the Minister himself could do that, because of the regulations by law. What were the consequences of this circular order in the administration of justice, I can no longer remember. It may be one or two very special cases were quashed. I do not know whether there were more such cases.

Q. You said that the administration of justice and Thierack, too, turned against Bormann’s methods. Can you cite examples for this?

A. The Party did not only require that those people who participated in lynchings should not be punished, but on the contrary, it wanted to have severely punished those people who treated fliers who had been shot down in a humane manner; and they wanted to have them punished with the aid of the regulations regarding the forbidden contact with prisoners of war. We did not concur with either of those measures. In a case which took place in Magdeburg, the Party attempted to achieve the most severe punishment of a couple which had given food to an enemy flier who had been shot down and who had received a piece of candy from him. This was stopped. We had received a report according to which a couple was arrested because they had allowed an Allied flier who had been shot down, into their apartment. The Canadian--I believe he was a Canadian flier--had been taken prisoner during the air raid, that is, before the all clear signal, by a civilian, and the civilian took him into his apartment. In this apartment the flier received something to drink and the Canadian offered the wife a piece of candy. At first the woman refused it. When he offered it the second time, however, she accepted it. She then put the piece of candy away and said, “That is for the children.” The Party had achieved it with the local administration of justice that the married couple was arrested and that an indictment would be filed for illicit contact with prisoners of war in a very serious case. When I heard about this report--I shall shorten this description somewhat--I reported this case very emphatically to Dr. Thierack, and during the very same night he called up the Chief Public Prosecutor in Magdeburg and instructed him to have the married couple released immediately the next morning.

Q. Mr. Klemm, that is sufficient. I shall submit an affidavit about this incident. I only want to ask you now, those were cases in which Germans were prosecuted because they were supposed to have treated Allied prisoners of war too leniently. Can you also cite the opposite cases where the Reich administration of justice prosecuted Germans who participated in lynchings?

A. Around the turn of the year 1944–1945 in Kranenburg that is the district of the district court of appeals, Duesseldorf, the following case occurred. An SA leader had, during the course of the air war, lost three very close relatives of his due to bombing. One noon he passed the town hall in Kranenburg. There was a guard standing, and with him he had two captured paratroopers. This SA leader went over to him and shot the two captured paratroopers. We prosecuted that case and even though the police as well as the Party offices offered considerable resistance, these discussions were advanced energetically. I do not know the final outcome, because later on due to the events of the war this territory was occupied by the Allied troops.

Q. May it please the Tribunal, may I say briefly I have the approval of the Court already to submit these files of the General Public Prosecutor of Duesseldorf. I do not have them here as yet. When I receive them, I shall then submit them in evidence.

Mr. Klemm, briefly in regard to Exhibit 110, which you have already mentioned, “terror fliers,” secret military matter, that is how it is called; and a note. Did you find out anything about that?

A. These are Wehrmacht files and a correspondence with the Foreign Office, and the problem was to not let terror fliers obtain the status of prisoners of war.

Q. Let me interrupt you; you do not have to discuss it. Did you find out about the matter at the time?

A. The administration of justice neither took part in this case nor did we know anything about it.

Q. The prosecution, furthermore, submitted document 1676-PS, Prosecution Exhibit 417.[310] It is an article which appeared in the Voelkischer Beobachter on 28–29 May 1944. The prosecution asserts that from this article of Goebbels’ in the German press, one can read an indictment of the population to administer lynch justice. Did you find out about this article at the time?

A. I did not have knowledge of this article at the time. It was not the cause for Thierack’s circular letter, which was issued for quite different reasons; as I just described, it was issued for legal considerations. Moreover, according to the affidavit in Document NG-1306, Prosecution Exhibit 440, the issuance of this circular letter must have occurred at a time which shows that it could have had no connection with this article in the newspaper.

* * * * * * *

_CROSS-EXAMINATION_

* * * * * * *

MR. LAFOLLETTE: * * * Now we will consider the matter of the Allied fliers. That document is Exhibit 108 and 109.[311] NG-364, Prosecution Exhibit 108 was the circular letter from Bormann dated 8 June [30 May] 1944, and Exhibit 109 is Document 635-PS. You testified yesterday--I mean Friday morning--that the notation by Thierack was on Exhibit 108 [Exhibit 109] reading, “IV circular with the addition that such cases are to be submitted to me when they arrive for an examination of the question in quashing.” That was on there when the document reached you. We are in agreement on that, are we not?

A. It was an instruction to Division IV to draft such a circular decree with these contents for the purpose of examining whether the case should be quashed.

Q. Yes. Now then, you also said, “From the hint that Lammers gives in this letter--that is Exhibit 109--that Himmler had already informed his police also on the basis of Bormann’s circular letter, it is quite clear to me that such denunciations to the administration of justice were also not to be made in the future but of course it could happen that the administration of justice found out about these on its own and took them up, but incidentally Hitler backed that action itself.” Do you recall, did you do anything after 4 June 1944 when you received this notation from Thierack about this subject of quashing sentences or did you let the matter drop?

A. I was not able to do anything, since the minister had ordered that this circular decree would be drafted and these cases had to be reported too, because according to the circular letter by Bormann to the Party and according to the information by Lammers that Hitler had instructed the police, the public prosecution had to get into difficulties if it found out about such a case, and if it started an investigation.

Q. Did you personally take any steps to see that there would be no prosecutions against anyone who followed Bormann’s instructions?

A. I know for sure, and I have already described, that we did carry out a proceeding against the party and the police. We continued investigations, and furthermore, I testified that I cannot recall with certainty any more whether, on the other hand, one or two cases in which there was a special situation was quashed. I cannot recall that any more with certainty.

Q. But you yourself gave no instructions to prosecutors on this line because that was Thierack’s order, wasn’t that right?

A. Yes, that was Thierack’s order that the public prosecutors were supposed to report on these matters; after they had reported, the Minister had to decide whether the investigation and the case were to be continued or whether the proceedings should be quashed. This means that the instructions for the purpose of examination were for the purpose of examining whether the proceedings should be quashed.

* * * * *

D. The Making and Application of Special Measures Concerning Nationals of Occupied Territories, Minority Groups and Races, and Alleged “Asocials”

1. INTRODUCTION

Under National Socialist ideology and practice a large number of German nationals were considered inferior or objectionable on racial and political grounds. After Hitler came to power in January 1933, German nationals were subjected to various discriminatory laws and practices, including protective custody in the hands of the police (usually the Gestapo or Secret State Police) or confinement in concentration camps. After Germany occupied the territory of neighboring countries, these practices were extended to non-German nationals. As the war progressed, the intensity of discrimination and persecution increased.

In the Justice case, one of the most important issues was the manner in which German criminal law was extended to the occupied countries. German penal legislation and special legislation applicable to Poles, Jews, and others was introduced in that part of western Poland usually referred to as the “Incorporated Eastern Territories.” Evidence concerning this aspect of the case appears below in section D2. (A similar type of question arose in cases where persons who were not Germans were compelled to work in Germany and accused of treason, of undermining Germany’s defensive strength, or of being public enemies. See section E, below.) In the occupied western areas the application of the Night and Fog decree was the principal measure involving the judicial process which affected the life and liberty of non-German nationals. Evidence concerning this matter appears below in section D3.

2. JEWS, POLES, GYPSIES, AND OTHERS

PARTIAL TRANSLATION OF DOCUMENT NG-629
PROSECUTION EXHIBIT 28
[Also Rothenberger Document 3
Rothenberger Defense Exhibit 3]

EXTRACTS FROM A REPORT[312] ON A CONFERENCE OF DEFENDANT ROTHENBERGER AND VARIOUS COURT PRESIDENTS, 1 FEBRUARY 1939, CONCERNING “RACE POLLUTION,” EXCLUSIONS OF JEWS FROM EMPLOYMENT, AND “THE LEGAL TREATMENT OF JEWS”

Report on the conference of [court] presidents on 1 February 1939

Present:
Senator Dr. Rothenberger,
Attorney General Dr. Drescher,
Vice President Letz,
District Court Presidents Korn and Dr. Ruether, Bremen,
Local Court President Dr. Blunk,
Local Court Directors Schwarz, Boehmer, Hansen, and von Lehe,
Senior Judges of Local Court Gersdorf and Stender,
Chief Public Prosecutor Lohse, Bremen,
Oberlandesgerichtsrat Dr. Segelken
and the undersigned.[313]

Senator Dr. Rothenberger and the attorney general reported on the discussions at the meeting of the presidents of the courts of appeal and attorneys general with the Reich Minister of Justice.

* * * * * * *

II a. The Chief Public Prosecutor then spoke again on the treatment of women in cases of race defilement. The Fuehrer refuses an extension of culpability according to the blood protection law [Blutschutzgesetz].

Concerning complicity he pointed out the contradictory opinions of police and justice. The public prosecutors are to work according to the following directives:

If a woman merely denies the intercourse she will not be prosecuted. On the other hand, if the woman was an active accomplice--if she concealed the race defiler for instance--she will be prosecuted. If, at the same time, there are other offenses (perjury) complicity is to be omitted from the indictment. In such cases, however, a report is to be made to the Reich Minister of Justice.

Senator Dr. Rothenberger pointed out once more that it is the Fuehrer’s desire that the woman should not be punished. If, by mistake however, any person should be indicted or if according to the results of the main proceedings punishment because of complicity may be expected, the proceedings are to be quashed in all circumstances. He urged that the judges be instructed accordingly.

II b. The Chief Public Prosecutor then discussed the problem of prosecuting women for failing to register illegitimate births. In this case the Fuehrer is against punishment according to article 169 for mere concealment of the identity of the father; because he considers that in most cases the woman’s motive should be respected. The woman will be prosecuted, however, if she gives false information concerning the father’s identity.

Senator Dr. Rothenberger completed this statement by saying that it was the Fuehrer’s express wish that the woman be exempted from punishment; the Fuehrer had not yet made a final decision in the matter of false statements. It should therefore be arranged that in such cases the indictment be temporarily postponed according to article 169. If necessary, a legal regulation may be expected in the near future.

III. Concerning the extent of the cases tried in accordance with the gangster decree, the Chief Public Prosecutor reports that up to now 15 cases have been tried by special court in the Reich territory, most of them in Hamburg. Care must be taken that accomplices do not escape punishment through the carrying out of the trial before a Special Court. The complete verdict must, on principle, be submitted before the death sentence is carried out.

Senator Dr. Rothenberger declared that it would be advisable to make the fullest possible use of the possibilities of the gangster decree. The Hamburg cases were considered suitable in Berlin. The Ministry had now realized that summary courts of the Hamburg type offer the only proper solution; they will therefore be maintained.

Insofar as Berlin exerts pressure concerning the speed with which the verdicts are delivered, this pressure must not go beyond the field of the administration of justice and affect the judges. The verdict must be submitted before the death sentence is carried out. In his opinion a typewritten report on the oral verdict, as prescribed for Hamburg, is sufficient.

He considers that the publication of sensational reports in the press on such trials is extremely undesirable; there was general agreement on this. Senator Dr. Rothenberger promised that he would personally contact the competent authorities in order to stop such reports in the future.

* * * * * * *

V. The Chief Public Prosecutor then reported briefly that civil servants with Jewish blood are on principle excluded from employment and that it is necessary to make a report on exceptions.

No pressure is to be put on civil servants to induce them to subscribe to the Party newspapers.

VI. Senator Dr. Rothenberger then stated the ministry’s opinion on various special questions concerning the legal treatment of Jews.

(1) In cases where a Jew asks a bailiff to execute a sentence against an Aryan, the bailiff is not authorized to refuse to do so.

(2) Aryan tenants of a Jewish landlord are obliged to pay rent.

(3) Jews enjoy protection against eviction and tenant’s protection to the same extent as Aryans.

(4) The order suspending execution also applies to Jews in accordance with the laws in effect. There may be exceptions in individual cases, when it is purely a matter of opinion, for example when a radio is seized.[314]

(6) The fact that a debtor is a Jew should as a rule be a reason for arresting him. However, it depends upon the individual case.

(7) Security for the costs of litigation must not be demanded from a Jew to a larger extent than from anybody else.

(8) Naturally, a Jew may be heard as a witness, but extreme caution is to be exercised in weighing this testimony. Senator Dr. Rothenberger requested that no verdict should be passed in Hamburg, when a sentence would exclusively be based on the testimony of a Jew.

Senator Dr. Rothenberger then requested the presiding and supervising judges to accordingly and urgently call the attention of the judges concerned to the questions dealt with.

TRANSLATION OF DOCUMENT NG-590
PROSECUTION EXHIBIT 198

LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY DEFENDANT METTGENBERG, TO THE PRESIDENT OF THE DISTRICT COURT AND THE CHIEF PUBLIC PROSECUTOR IN HAMBURG, 1 APRIL 1939, CONCERNING THE REDESIGNATION OF JEWISH NAMES IN CRIMINAL PROCEEDINGS

_Carbon Copy_

The Reich Minister of Justice III g^9 93/39

Berlin, 1 April 1939

[Stamp]

Hanseatic Court of Appeal
Received: 15 April 1939

Through the President of the Court of Appeal and the Attorney General, to 1412 Bls 1938--

To the President of the District Court and the Chief Public Prosecutor Hamburg

Document reference made for: 400 1a

Subject: Criminal Case against the former physician Albert Israel
Leopold for race defilement
11 K Ls 108/38

In the indictment of 17 October 1938 as well as in the verdict of 14 December 1938, Leopold’s profession is given as a physician, although his permit expired on 30 September 1938 pursuant to article 1 of the fourth ordinance of the Reich Citizenship Law of 25 July 1938 (Reichsgesetzblatt I, p. 969). This applies also to the report of the Chief Public Prosecutor to the Reich Minister of the Interior of 6 February 1939. In this connection also the given name Israel should have been added to the first name Albert pursuant to article 2, section 1 of the second ordinance of 17 August 1938 for the implementation of the law concerning changes of family names and first names.[315]

I ask you to take the necessary steps and especially to take care that in criminal cases against Jews which were filed prior to 1 January 1939 the names given will be rectified as far as this has not already been done.

BY ORDER

[typed] Signed: DR. METTGENBERG

1. 1 copy to the president of the district court with the
request to make further use of it.