. NMT03-T1131
Volume III · Page 1131
"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 |
