The Night and Fog decree

On 7 December 1941, the same day that Japanese carrier aircraft attacked the American fleet in Hawaii, the Chief of the High Command of the Wehrmacht (OKW), Field Marshal Wilhelm Keitel, signed the secret “Guidelines for the Prosecution of Offences against the Reich or the Occupying Power in the Occupied Territories” (Richtlinien für die Verfolgung von Straftaten gegen das Reich oder die Besatzungsmacht in den besetzten Gebieten). The document expressed, as its preamble noted, “the long-considered will of the Führer”. After the war it went down in history as the “Nacht und Nebel” (“Night and Fog”) decree, and the people it affected came to be known as “NN” prisoners.

Many tallies state that the decree ordered “the liquidation of anti-Nazi resistance activity in Western Europe”. This is a simplification. The guidelines were not a general order to fight the resistance, since there was no shortage of such orders without them. Their essence lay in how those detained were to be dealt with: people suspected of acts against the occupier who could not quickly be sentenced to death on the spot were to be secretly deported to Germany, and their families and those around them were to be given no information about their fate. The instrument of intimidation was to be not only prison or execution, but the very disappearance of a person without trace.

Background: assassinations and hostages

During the first year of the occupation of France, Belgium, the Netherlands and Norway the Germans met no armed resistance there. The population showed its hostility symbolically: with leaflets, slogans on walls and, in the summer of 1941, the letter “V”, which the BBC urged people to paint up. There were also mass protests, such as the strike in Belgium in May 1941. The situation changed after Germany attacked the Soviet Union. The communist parties, until then bound by the Comintern line, called for armed struggle. In August the first German serviceman was shot dead in the Paris Métro, and on 20 October in Nantes the field commandant, Lieutenant Colonel Karl Hotz, was killed. The Germans responded with mass executions of hostages: after the assassinations in Nantes and Bordeaux almost a hundred people were shot. As early as 16 September Keitel had issued an order under which the life of every German soldier killed was to be paid for with the deaths of 50 to 100 communists.

The shooting of hostages, however, raised doubts even among some German commanders in the West, because it alienated the population on whose labour the German war economy depended. At the same time the ordinary military courts, which in the Western countries dealt with cases of sabotage and attacks on the Wehrmacht until August 1944, acted in Hitler’s eyes too slowly and too leniently. He regarded prison sentences, even life imprisonment, as a sign of weakness: the convicted man could count on walking free as a hero after a war won by his country.

According to historians’ findings, the immediate impulse was the case of a Frenchwoman sentenced to death by a German military court in the summer of 1941. Hitler, who reserved to himself the confirmation of death sentences on women, pardoned her, but ordered that she be secretly taken to Germany and held in complete isolation. In September 1941 he decided to apply this method generally. Keitel instructed the head of the OKW’s legal department, Rudolf Lehmann, to draft the regulations. Lehmann tried to preserve at least the appearance of judicial control and won over to this Keitel, the head of the Abwehr, Admiral Wilhelm Canaris, and the State Secretary in the Reich Ministry of Justice, Roland Freisler, who was anxious that the cases should not slip out of his ministry’s control. Hitler himself would gladly have handed them straight to the Security Police.

The content of the guidelines

The preamble to the guidelines of 7 December stated that since the beginning of the “Russian campaign” communist elements and other circles hostile to Germany had intensified their efforts against the Reich and the occupying power, and that the scale and danger of these activities called for severe deterrent measures. The rule in the occupied territories was to be the death penalty for offences against the Reich or the occupying forces that endangered their security. Such cases were to be tried in the occupied country only if it was probable that the offender, or at least the principal offender, would be sentenced to death and that trial and execution could take place within a very short time. In all other cases the offenders were to be taken to Germany. Enquiries from German or foreign authorities about such prisoners were to be answered only with the statement that they had been arrested and that the state of the proceedings did not permit any further information.

The first implementing decree, dated 12 December, listed the acts punishable by death: attacks on life and limb, espionage, sabotage, communist activity, illegal possession of weapons, aiding the enemy and acts likely to cause unrest. On the same day Keitel sent out a covering letter that spelled out Hitler’s intention without any ambiguity: “Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. This aim is achieved when the criminal is transferred to Germany.” For the time being the regulations were to apply in Norway, Belgium, the Netherlands and occupied France; Luxembourg was also brought under them. They did not apply to occupied Poland or the Soviet territories, where the occupier’s terror was open and needed no such procedures.

In February 1942 the rules were tightened. Proceedings on the spot were permitted only if a death sentence could be passed within eight days of arrest. The remaining prisoners were handed over to the Gestapo or the Secret Field Police, who secretly transported them to the Reich. Keitel explained that these measures acted as a deterrent because the prisoners would “vanish without trace” and no information could be given about where they were held or what had become of them. The implementation of the decree was overseen by the Security Police and the SD, both subordinate to Reinhard Heydrich.

The name

The words “Nacht und Nebel” do not appear in the guidelines themselves. The expression, established in German since the seventeenth century, was popularised by Richard Wagner in his opera Das Rheingold, in which the dwarf Alberich, putting on a magic helmet, becomes invisible with the words “Nacht und Nebel, niemand gleich!”. Documents of the Reich Ministry of Justice used the abbreviations “NN case” and “NN prisoner”, and the letters “NN” also found their way into files and camp record cards. The name “Nacht und Nebel decree” only became widespread after the war, during the Nuremberg trials. In the camps the word vernebelt – “shrouded in fog” – was coined for the deported prisoners.

Secret courts and camps

NN prisoners were transported by night, often after being held for several weeks in various prisons, to penal institutions in western Germany. An important assembly point, especially for prisoners from France and Luxembourg, was the SS special camp at Hinzert in the Hunsrück, near Trier. Cases were sent to special courts: in Kiel for Norway, in Cologne (later also in Breslau) for France, in Dortmund (later also in Hamm and Essen) for Belgium and the Netherlands, and in particular cases in Berlin. From September 1942, because of the number of cases, they were also tried by the People’s Court. The hearings were secret. The prosecutor decided whether witnesses from abroad would be summoned and whether a defence counsel would be admitted, and could also halt the proceedings or prevent an acquittal. The courts often did not even know where the Gestapo had held the accused for weeks on end. Anyone who was acquitted or had served a short sentence was sent to a concentration camp for the duration of the war anyway, under “protective custody”.

The prisoners were held first in solitary cells in various prisons. Between May 1943 and April 1944, 66 transports carrying 2,696 NN prisoners arrived at the Esterwegen penal camp in Emsland. In 1944 they were moved to Silesia, among other places to the prison at Groß Strehlitz (Strzelce Opolskie), and in the autumn orders were given to place them in concentration camps. From 1943 the camp designated for NN prisoners from France, Belgium, the Netherlands and Norway was Natzweiler-Struthof in Alsace. At least 1,454 NN prisoners are documented there, and the historian Robert Steegmann considers a figure of more than 2,400 probable. NN prisoners were also recorded at Gross-Rosen, and women were sent to Ravensbrück, among other places. In the last months of the war, after the evacuation of the camps, thousands of NN prisoners ended up in Dachau and Mauthausen, where their special status was lost in the chaos.

The ban on contact with families was enforced without exception. Relatives received no word even of a prisoner’s death or execution; farewell letters and wills were withheld. The graves of those executed were often left unmarked.

How many disappeared

The exact number of victims cannot be established. According to the records of the German judicial system, by 30 April 1944 at least 6,639 people had been handed over to courts in Germany under the decree, and probably about 340 death sentences had been passed. To these must be added the prisoners whom the Gestapo held in camps without reference to the courts. The figure most often given is that some 7,000 people were deported, mainly from France, Belgium and the Netherlands; the German researcher Rainer Huhle estimated their number at “perhaps 10,000”. Over time prisoners of other nationalities were also placed in this category. Many died in the camps of hunger, disease and exhaustion from forced labour, especially at Natzweiler.

Compared with the enormity of the German crimes in Eastern Europe, the decree affected a relatively small number of people. Its significance lies elsewhere: the state made the secret abduction of people, and the deliberate keeping of their families in ignorance, into a method of government.

Reckoning

The decree was discussed at length before the International Military Tribunal at Nuremberg (PL), because, unlike many other crimes, its origins and implementation were well documented. The judgment of 1 October 1946 stated that Hitler had issued it on 7 December 1941 and that the defendant Keitel had signed it, and quoted his letter of 12 December. Keitel admitted at the trial that he had regarded the regulations as unlawful, but had carried them out. The decree was one of the counts on which the tribunal found him guilty of war crimes and crimes against humanity. Keitel was hanged on 16 October 1946. The matter was also dealt with in the later American trials: the Judges’ Trial, in which officials of the Ministry of Justice responsible for NN cases were among those convicted, and the High Command Trial, in which Lehmann was among the defendants.

Place in the war

The Night and Fog decree was the regime’s response to the first signs of armed resistance in the West, which arose after Germany’s attack on the USSR. It did not break that resistance. The resistance movements in France, Belgium, the Netherlands and Norway grew in the following years, and the disappearances deepened hatred of the occupier. In 1944 the decree was in practice superseded by the “Terror and Sabotage” order of 30 July, which took cases away from the courts and handed those detained directly to the Security Police.

The name of the decree became a symbol of the entire camp system. In 1956 Alain Resnais made one of the most important documentary films about the concentration camps under this title. The memory of the NN prisoners also influenced the development of international law: the practice initiated by the guidelines Keitel signed is today termed enforced disappearance and recognised as a crime against humanity.