“The Gauleiter, the Kreisleiter, and the Ortsgruppenleiter participated, to one degree or another, in these criminal programs. The Reichsleitung as the staff organization of the Party is also responsible for these criminal programs as well as the heads of the various staff organizations of the Gauleiter and Kreisleiter. The decision of the Tribunal on these staff organizations includes only the Amtsleiter who were heads of offices on the staffs of the Reichsleitung, Gauleitung, and Kreisleitung. With respect to other staff officers and Party organizations attached to the Leadership Corps other than the Amtsleiter referred to above, the Tribunal will follow the suggestion of the prosecution in excluding them from the declaration.”[650]

In like manner certain categories of the SD were defined as criminal organizations. Again, we quote:

“In dealing with the SD the Tribunal includes Aemter III, VI, and VII of the RSHA, and all other members of the SD, including all local representatives and agents, honorary or otherwise, whether they were technically members of the SS or not, but not including honorary informers who were not members of the SS and members of the Abwehr who were transferred to the SD.”[651]

In like manner certain categories of the SS were declared to constitute criminal organizations:

“In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf-Verbaende, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called SS riding units.”[652]

C. C. Law 10 provides that we are bound by the findings as to the criminal nature of these groups or organizations. However, it should be added that the criminality of these groups and organizations is also established by the evidence which has been received in the pending case. Certain of the defendants are charged in the indictment with membership in the following groups or organizations which have been declared and are now found to be criminal, to wit: The Leadership Corps, the SD, and the SS. In passing upon these charges against the respective defendants, the Tribunal will apply the tests of criminality set forth above.

CRIMES UNDER THE NIGHT AND FOG DECREE
[NACHT UND NEBEL ERLASS]

Paragraph 13 of count two of the indictment charges in substance that the Ministry of Justice participated with the OKW and the Gestapo in the execution of the Hitler decree of Night and Fog whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts of the Ministry of Justice within the Reich; that the victim’s whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victim’s relatives and associates and barring recourse to evidence, witnesses, or counsel for defense. If the accused was acquitted, or if convicted, after serving his sentence, he was handed over to the Gestapo for “protective custody” for the duration of the war. These proceedings resulted in the torture, ill treatment, and murder of thousands of persons. These crimes and offenses are alleged to be war crimes in violation of certain established international rules and customs of warfare and as recognized in C. C. Law 10.

Paragraph 25 of count three of the indictment incorporates by reference paragraph 13 of count two of the indictment and alleges that the same acts, offenses, and crimes are crimes against humanity as defined by C. C. Law 10. The same facts were introduced to prove both the war crimes and crimes against humanity and the evidence will be so considered by us.

Paragraph 13 of count two of the indictment which particularly describes the Hitler NN plan or scheme, charges the defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger with “special responsibility for and participation in these crimes”, which are alleged to be war crimes.