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Volume III · Page 1130
| 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: |
