III. Opening Statements of the Prosecution and Defense:
A. Extracts From the Opening Statement of the Prosecution:
MR. MCHANEY: May it please the Tribunal, today marks the opening of the first proceeding in Nuernberg devoted exclusively to the trial of persons active in the SS. On 30 September 1946, the International Military Tribunal found the SS to have been a criminal organization. Since that date, four indictments, other than the one in this case, have been filed with the Military Tribunals by the Chief of Counsel for War Crimes acting on behalf of the United States of America. The defendants range from doctors and officials in the German medical services to a field marshal in the Luftwaffe, from officials of the judicial system of the Third Reich to the directors of an industrial combine. Yet without exception each of these cases deal in large measure with crimes to which the SS was a party. In all but one of these cases, the SS is represented among the defendants. Indeed, in the trial before the International Military Tribunal no less than eleven of the defendants were members of the SS.
This points up the tremendous power and influence wielded by the SS in the Third Reich. Even now, nearly two years after the termination of hostilities, the SS is too often regarded as a mere collection of racial fanatics, well-drilled fighting men, or concentration camp thugs. Let there be no mistake about that Himmler was eminently successful in making the SS an all-powerful elite. Its members were represented in the personal entourage of Hitler in the Reich ministries, in the Wehrmacht, in the provincial and municipal governments, in industry and finance, in the press, in occupied territories, and in the spheres of education and culture. It has been said with considerable truth that the SS was a state within a state.
It is therefore a matter of importance to investigate the workings of this SS state and to fix the responsibility for its manifold crimes on those men in high positions who kept the monstrous machinery running. Justice could not tolerate the trial of sadistic concentration camp commanders and guards, or even industrialists who ran their factories with slave labor, without bringing to account those men of the SS who made such things possible. In this dock sit the principal surviving leaders of the SS Economic and Administrative Main Office (SS Wirtschafts- und Verwaltungshauptamt), commonly called the WVHA. It was they who procured the material, money, and slaves to support the SS state. It was they who supervised the lawless jungles which were concentration camps. It was they who were the greatest users of slave labor. As Eugen Kogon has said, "No super-Jew of Streicher's ever accomplished what SS Obergruppenfuehrer Pohl succeeded in doing the rationalization of turning corpses into money on a mass basis."
The crimes which are the subject of this trial run the gamut of "man's inhumanity to man" the systematic commission of atrocities in concentration camps; the utilization of slave labor under brutal and inhumane conditions; the extermination of the Jews, and so-called "useless eaters"; criminal medical experimentation on concentration camp inmates; the destruction of the Warsaw ghetto; and the confiscation of property on a gigantic scale. The defendant Pohl and his collaborators in the WVHA were parties to all of these crimes and many more.
Since this case is concerned with the criminal activities of one of the Main Offices of the SS, it is necessary to understand something of the history and organization of the SS in general and the WVHA in particular. To assist the Tribunal in this regard, the prosecution has prepared and delivered to the Tribunal a brief containing basic information on the SS and the WVHA. This has also been made available to defense counsel in both German and English. It includes a glossary of German words and expressions which will be used frequently in the course of the trial, a table of equivalent ranks of the American Army and the German Wehrmacht and the SS, and two charts showing the organization of the SS and the WVHA.
The Schutzstaffeln or SS was the protective guard of the National Socialist Party (NSDAP). It was formed in 1925 to protect leaders and speakers at Party meetings and above all to protect the person of the Fuehrer. As the "Fuehrer" or leader of the Nazi Party, Hitler was the "Oberst Fuehrer" or Supreme Leader of the SS.
In January 1929 Heinrich Himmler was appointed Reich Leader SS. As such, he was the commander of the SS and subordinated directly to Hitler as head of the Nazi Party. At that time, the SS numbered only about 280 men and was much less important than the Sturmabteilung or SA, which was a Nazi pari-military unit under the ambitious Captain Ernst Roehm. Patiently and unobtrusively, Himmler set about creating out of the SS an aristocracy within the Nazi Party. He called this aristocracy the German Order of Men (Deutscher Maennerorden). Selection for membership in the SS was based on the doctrine of "race and blood. Himmler once said:
At the time of the seizure of power by the Nazi Party in January 1933, this self-proclaimed "racial elite" was 52,000 strong. Not, however, until the Roehm purge of 30 June 1934 did the SS become the ruling caste within the Party. On that bloody "Night of the Long Knives," it was the brutalized and ever obedient SS which murdered Roehm and his important collaborators in the SA who were said to be dissident elements in the Party. Thenceforth, the SS assumed the duty of ensuring the continued power of the Nazi regime or, as it was officially stated, of "protecting the internal security of the Reich."
The subsequent development of the SS was based primarily upon the tremendous increase in power of Himmler. Wherever Himmler went, the SS went with him. In June 1936, he was appointed chief of the German police in the Ministry of Interior with authority over the regular uniformed police as well as the Security Police, which was defined to include both the criminal police and the notorious Gestapo or Secret State Police. In this connection, mention should also be made of the Sicherheitsdienst of Reich Leader SS or SD which worked closely with the Gestapo. The SD was the espionage agency, first of the SS, and after June 1934 of the whole Nazi Party. Reinhard, or as he was known abroad, Hangman" Heydrich, was the chief of the SD. Himmler, in his capacity as Reich Leader SS and Chief of the German Police, appointed Heydrich as chief of the Security Police on 26 June 1936. This amalgamated the Security Police, a State organization with the SD, a Party organization.
By a decree of 27 September 1939, the various State and Party offices under Heydrich as chief of the Security Police and SD were united into one administrative unit, the Reich Security Main Office or RSHA, which was at the same time both one of the Main Offices of the SS Supreme Command under Himmler as Reich Leader SS and an office in the Ministry of Interior under Himmler as chief of the German police.
On a regional level, Himmler appointed a Higher SS and Police Leader for each Wehrkreis [SS Oberabschnitt SS Main Sector] who coordinated the activities of the Security Police and SD, Order Police, and Allgemeine SS within their jurisdictions. In 1939 the SS and police systems were amalgamated by taking into the SS all police officials at equivalent ranks.
This unification of the SS and police greatly enhanced the power of the SS. Its power and influence was further increased by the appointment of Himmler in August 1943 as Reich Minister of the Interior, a position which controlled the greater part of the vast German bureaucracy. Finally, in July 1944, he succeeded General Fromm as Commander in Chief of the Replacement Army and Chief of Military Armament [army equipment]. He then controlled all forces on the home front.
Parallel with this development of the SS its influence was increased by the practice of appointing important State officials and other public figures to high rank in the SS. Industrialists, bankers, and business men were prevailed upon to contribute substantial sums of money to the SS in order to stand in well with the Party aristocracy. Through infiltration the SS gained influence in every branch of German life.
By 1939, the Allgemeine SS, the original formation of the SS, numbered approximately 240,000 men. In addition, there were two other SS formations the Special Service Troops and the Death Head Formations which together had a strength of about 40,000 men. The Special Service Troops constituted a force of SS men who volunteered for four years' military service in lieu of compulsory service with the army. It was organized as an armed unit to be employed with the army in the event of mobilization. The Death Head Formations were selected from SS volunteers and were used to guard concentration camps.
After the outbreak of war, units from both the Special Service Troops and the Death Head Formations were used in the Polish campaign. These troops came to be known as the Waffen or armed [Combat] SS. By 1940 the Waffen SS contained 100,000 men, 56,000 coming from the Special Service Troops and the rest from the Allgemeine SS and the Death Head Troops. Concentration camp guard duties came to be performed primarily by members of the Allgemeine SS. The Waffen SS fought in every campaign with the exception of those in Norway and Africa By the end of the war it is estimated to have comprised about 580,000 men. Thus, it was numerically by far the larger branch of the SS, the Allgemeine SS having declined in strength to less
The Waffen SS, including the Death Head Formations, was in effect a part of the Wehrmacht and its expenses were a charge on the State. The Allgemeine SS, on the other hand, was an independent branch of the Party and its finances were ultimately controlled by the Party treasurer.
Subject to the controlling authority of the Reich Leader SS, the work of directing, organizing, and administering the whole body of the SS was carried out by what may be loosely called the Supreme Command of the SS. This Supreme Command consisted of twelve Main Offices. The most important of the Main Offices were the Reich Security Main Office or RSHA; the Operational Headquarters; and the Economic and Administrative Main Office, the WVHA.
I have already described the amalgamation of the SD and the Gestapo and criminal police under Heydrich as chief of the RSHA. After the assassination of Heydrich in 1942, Kaltenbrunner was made chief of the RSHA. For his criminal activities in that position, he was tried, convicted, and sentenced to death by the International Military Tribunal. The Gestapo, among other things, was responsible for the commitment of political prisoners to concentration camps. Our proof in this case will show the close cooperation between the Security Police and SD and the WVHA not only in matters concerning concentration camps, but also in the extermination of the Jews, the spoliation of property on a gigantic scale, and the utilization of slave labor under inhumane conditions.
The SS operational headquarters was the main office of the SS which was responsible for the training, organization and, to a certain extent, the operational employment of the Waffen SS and the Allgemeine SS.
Other important Main Offices were the SS Central Office which handled recruiting for the Waffen SS, propaganda, education, physical training, and so-called Germanic affairs; the SS Race and Settlement Office which was concerned with matters of "race", genealogy, and marriage permits within the SS, and the settlement of SS men in occupied territory bounding on the Reich; and the Personal Staff of the Reich Leader SS which was an advisory and coordinating body responsible for all matters not within the province of the other Main Offices and for liaison with Government and Party officials.
I turn now to a description of the SS Economic and Administrative Main Office and to the position of these defendants in that organization.
Prior to the end of the war, little was known of the activities of the WVHA. In order to appreciate the organization and influence of this office, it is necessary to consider the three original offices which were later united to form the WVHA. These were the administrative department (Verwaltungsamt) in the SS central office, the Department of Budget and Buildings and the office of the Inspector of Concentration Camps.
The administrative department was for many years located in Munich. The defendant Pohl became chief of that department in February, 1934. He was at the same time, Plenipotentiary of the treasurer of the Nazi Party. The administrative department handled the financial and administrative matters of the Special Service Troops, the Death Head units, the concentration camps and the Allgemeine SS. The defendants Frank, Georg and Hans Loerner, Vogt, Tschentscher, Eirenschmalz, and Baier were early collaborators of Pohl in various phases of this work.
In addition to administrative tasks, the administrative department soon concerned itself with business and industrial undertakings on behalf of the SS and Party. Prominent among these economic enterprises was the German Earth and Stone Works with granite quarries in the concentration camps of Flossenbuerg, Mauthausen, Gross-Rosen, and Natzweiler. In 1940 the German Economic Enterprises [Deutsche Wirtschafts-Betriebe] was formed by Pohl and Georg Loerner as a holding company. It was commonly known as the DWB Combine, and it controlled many of the business enterprises run by the administrative department, or as it was then known, the Administrative and Economic Main Office [Main Office Administration and Economy]. It had a capitalization in excess of 46 million Reichsmarks. The defendants Hohberg, Volk, Mummenthey, Bobermin, and Klein were active in developing and managing these economic enterprises. Concentration camp inmates were used as laborers on a vast scale.
By an order of 20 April 1939, Himmler raised the administrative office of Pohl to the rank of a Main Office of the SS. It was called the Administrative and Economic Main Office and abbreviated "WVHA". At the same time Pohl was appointed chief of the newly created Budget and Buildings Main Office. Thus, after this reorganization, there were three departments under Pohl's Jurisdiction, Amt I-Budget, Amt II-Buildings, and Amt III-Economic Enterprises. Amt I and II were said to be identical with the Department for Budget and Buildings in the Ministry of Interior, of which Pohl was a Ministerialdirektor
All three of these departments had a very substantial relationship to the concentration camps. Amt I (budget) was in charge of the allocation and control of prison labor; Amt II (buildings) was in charge of actual building and construction work; and Amt III (economic enterprises) controlled various plants using prisoners. All of these Aemter had representatives in every concentration camp.
The third precursor of the WVHA which I have mentioned was the office of the Inspector of Concentration Camps, first under Eicke and then Gluecks. This office was responsible for the control of the SS Death Head guards and the entire internal administration of the camps. I have already briefly indicated the strong interest of Pohl's organization in the concentration camps. In December 1939, Himmler said that: "The supervision of the economic matters of these institutions (concentration camps) and their application to work is the responsibility of SS Gruppenfuehrer Pohl". This problem of divided authority was finally resolved in March 1942 and the office of the Inspector of Concentration Camps was subordinated to Pohl. At about the same time, a final reorganization took place which created the WVHA with the defendant Pohl as its chief. The WVHA was divided into five branches, Amtsgruppen A, B, C, D, and W.
Amtsgruppe A was the supreme authority for the finance and administration of the whole of the SS. This department negotiated with the Reich Ministry of Finance for funds to support the Waffen SS and other SS activities carried out for the State. It handled the budgets, payments, and audits for all the SS, including the concentration camps. It was responsible for the general supervision and coordination of all SS administration, and for the training and appointment of administrative personnel. The defendant Frank was chief of Amtsgruppe A and deputy chief of the WVHA until September 1943. He was succeeded as chief of Amtsgruppe A by the defendant Fanslau who had previously been in charge of the personnel office. The defendant Hans Loerner was in charge of the office for budgets while the defendant Vogt was head of the auditing office.
Amtsgruppe B controlled food supply, uniforms, billeting, raw materials, and equipment for the SS. As far as the Waffen SS was concerned, responsibility for supply was divided between the SS Operational Headquarters and the WVHA. Broadly speaking, the operational headquarters supplied arms, ammunition, and other technical equipment, while the WVHA was responsible for rations, clothing, fuel, and personal items of equipment. Among other things, Amtsgruppe B was responsible for the supply of food and clothing to concentration camps. The defendant Georg Loerner was chief of Amtsgruppe B and after 1 September 1943, was deputy chief of the WVHA. The defendant Tschentscher was deputy to Loerner and head of the office for food supplies. The defendant Scheide was in charge of the office for supply of transport, machinery, and weapons.
Amtsgruppe C was charged with construction tasks of the SS and Police. This included the building and maintenance of barracks, camps and training grounds, field works, and fortifications, and roadmaking. All construction work in connection with concentration camps, such as gas chambers and crematoriums, was handled by this department. Amtsgruppe C was the greatest user of concentration camp labor in all of Germany, far outstripping such industries as I.G. Farben and the Hermann Goering Works. For the year 1942 alone, over forty-four thousand concentration camp inmates were requested for a total of sixty-one building projects. Two such projects were the installation and extension of crematoriums in the Buchenwald and Mauthausen concentration camps. Later in the war, Amtsgruppe C undertook such large-scale construction as the erection of V-2 plants and the movement of the aircraft and other war industries underground. This work was carried out under such atrocious conditions that literally tens of thousands of human beings were sacrificed. Chief of this department was the fabulous SS Obergruppenfuehrer Kammler, rumored as the successor to Speer (1). His chief deputy was the defendant Eirenschmalz and the office for special construction tasks was under the defendant
Amtsgruppe D was in direct charge of the administration of concentration camps, including the infamous Auschwitz extermination camp. Apart from the actual imprisonment of prisoners, which was a function of the Reich Security Main Office, the WVHA and Amtsgruppe D were entirely responsible for this branch of SS activity. There are only two defendants in this dock who were members of Amtsgruppe D, Sommer and Pook. The defendant Sommer was deputy chief of Amt D II which handled the commitment of inmates for labor. The defendant Pook was chief dentist in Amt D III and had supervisory control over all dentists in concentration camps. It was their task, among others, to remove gold teeth from deceased inmates. However, substantially all of Amtsgruppe D has been accounted for. Gluecks, chief of the department, is dead as is Dr. Lolling, chief of the medical office. Liebehenschel, Hoess, and Kaindl were surrendered by the United States for trial by other countries. The notorious Hoess was camp commander of Auschwitz until December 1943. He confessed to having supervised the extermination in Auschwitz of two and one half million persons, while at least an additional half million succumbed to starvation and disease. Pohl was impressed with his ability that he was recalled to become chief of Amt D I. Gerhard Maurer, chief of Amt D II and the immediate superior of the defendant Sommer, is now in custody but his apprehension came after the indictment in this case had been filed. The same is true of Wilhelm Burger who was chief of Amt D IV.
Amtsgruppe W managed the economic enterprises run by the WVHA. At the top was the DWB Combine, a holding company through which the various industries were controlled. The defendants Pohl and Georg Loerner were the managing directors of the DWB, assisted by the defendants Baier, Volk, and Hohberg, who were members of the so-called staff W. The offices or Aemter of Amtsgruppe W managed the industries controlled by the DWVB. Amt W I under the defendant Mummenthey supervised primarily the German Earth and Stone Works, Ltd. which was abbreviated DEST. It controlled granite quarries at Flossenberg, Gross-Rosen, Mauthausen, and Natzweiler; brick factories at Neuengamme, Stutthof, and Buchenwald; and two porcelain manufacturing plants. The commander Franz Ziereiss of Mauthausen has related how 1,000 Dutch Jews were worked and tortured into committing suicide in the quarry there.
In 1943, it was decided to employ more prison labor in armament work by the German Equipment Works Ltd. which was under the supervision of Amt W IV. However, since Amt W IV was not represented in all camps, Amt W I took over payment and accounts and put large underground stone quarries at the disposal of armament factories where the prisoners could carry out work without danger from air attacks. In this way, Amt W IV, using the facilities of Amt W I, worked as subcontractors to the armament factories. For example, aircraft assembly of the Messerschmitt 109 [Me-109] and Messerschmitt 262 for Messerschmitt was carried out at Mauthausen.
After the defeat of Poland in 1939, spoliation of property, especially that of Jews, occurred on a large scale. Under the direction of staff W and particularly of the defendants Pohl, Georg Loerner, Baier, Hohberg, and Volk a company called Eastern Industry Ltd., or Osti, was used to exploit Jewish property and manpower in Poland. A report states that this concern had to be liquidated because in November 1943 it was "deprived" of the Jewish workers. Of course, the truth of the matter is that these Jews were exterminated in the gas chambers of Auschwitz or Treblinka. In addition to the Osti action, Pohl took over in 1940 some 292 brick and tile factories which were managed by the East German Building Materials Works Ltd. under the defendant Bobermin in Amt W II. Bobermin also controlled a cement factory using inmates from Auschwitz.
The defendant Klein was chief of Amt W VIII, an office with the anomalous title "Special Tasks". There were several sections in Amt W VIII, one of which was called "Society for the Improvement and Upkeep of German Monuments". But even this high sounding society involved itself in concentration camp crimes with the assistance of Klein. He supervised the financing and construction of an SS school at Wewelsburg near the Buchenwald concentration camp [sic]. Approximately 500 prisoners were detained in a small camp at Wewelsburg to assist in the construction of the school. A number of these prisoners died due to under nourishment and overwork.
The WVHA controlled many other economic enterprises which used concentration camp labor as well as supplied slave labor to such private industries as I.G. Farben and the Hermann Goering Works. These matters will be dealt with somewhat more fully at a later point.
MR. HART: Substantially all of the crimes charged in the indictment against these defendants were committed in concentration camps upon inmates forcibly detained there. Therefore, it will perhaps be helpful to consider this institution of terror, mass crime, and human degradation.
According to German law, a concentration camp provided protective custody for persons who were not legally sentenced to imprisonment by a court of law, and those who, having served a term of imprisonment, were then committed for further detention by the Security Police and SD. Protective custody orders were issued by the Reich Security Main Office. There were two general categories of protective custody, namely, political custody and police custody. Persons placed in political custody were those considered to be enemies of the Nazi State or otherwise undesirable, but who could not be convicted of any crime. This type of custody was theoretically not enforced as a punitive measure Included among political custody prisoners were members of parties opposed to National Socialism as well as non-Party individuals of the same mind; Nazis guilty of some party crime; persons who listened to foreign broadcasts or expressed a "defeatist attitude"; and those whose general outlook on life was considered undesirable, such as church opponents of the regime and Jehovah's Witnesses.
Habitual criminals who had served their term of imprisonment could be placed in preventive custody as well as less serious offenders such as drunkards, vagrants, and persons who changed positions without consent of the Labor Office all of whom were regarded as ''asocials."
Another large group of inmates were the Nazi described "racial inferiors" which included Jews, Poles, Slavs, and gypsies. The extermination policies of the SS were particularly directed against this group. Prisoners of war were also committed to concentration camps in great numbers, especially the Russians.
A special category of prisoners were "Nacht und Nebel" or night and fog inmates (2). These were persons alleged to have committed offenses against the Reich or the German forces in occupied countries. The offenders were punished in the occupied territory only if the death penalty could be executed without delay. If this could not be done within one week of apprehension, the accused were taken secretly to Germany and handed over to the Security Police and SD for punishment. No word of the prisoners was permitted to reach their relatives or the country from which they came.
In 1941, concentration camps were graded according to the type of prisoners to be committed there. Grade I was for persons who had committed minor offenses. Grade II for persons who had committed major offenses but were thought subject to correction, while those beyond the pale were sent to grade III camps, the "bone mills" which one rarely left alive. This classification was of course, a relative concept; a former inmate of Dachau would regard it a gruesome joke to be told he had resided in a grade I concentration camp. The best that can be said is that his catastrophe might have been worse in Mauthausen, which was for grade III prisoners. In any event, later developments apparently necessitated deviations from the classification plan. Inmates were transferred from one camp to another solely according to their working capabilities and the needs of the economic enterprises run by the WVHA.
As to the number of concentration camps and inmates during the war period, it is only possible to give approximate figures. In April 1944 the defendant Pohl informed Himmler that there were 20 concentration camps and 165 labor camps in the Reich and German occupied territory. A postscript to this letter in Pohl's handwriting boastfully states that: "In Eicke's time there were altogether six camps. Now: 185!" But even those figures are apt to be misleading as there were dozens of outside camps surrounding the so-called "mother camp". In the case of Mauthausen, for example, Camp Commander Ziereiss estimated that there were 45 outside camps. Among the large camps centrally administered by the WVHA were Auschwitz, Bergen-Belsen, Lublin, Mauthausen, Natzweiler, Neuengamme, Ravensbrueck, and Stutthof. It is interesting to note that war crimes trials have been held with respect to most of those camps.
Figures on the number of concentration camp inmates are even more difficult. Here one must distinguish between the total number of prisoners present in the camps at a given date and the total number delivered to the camps during the Nazi regime. It is known that in August 1944 there were approximately 524,000 inmates of whom 145,000 were women. But the same document shows that an additional 610,000 persons were on their way to concentration camps. Some 400,000 of these were Poles from Warsaw, which shortly before had risen in arms against the German occupation force. Another 150,000 were Jews from Hungary and the Lodz ghetto, and 15,000 Poles from the Government General, 10,000 "convicts" from the Eastern territories, 17,000 Polish officers, and 20,000 Frenchmen.
As to the total number of prisoners delivered to the camps, only a reasonable estimate can be made. If the number of dead at Auschwitz alone is considered, amounting to at least 3.5 million, it is safe to assume that no less than 10 million human beings were at one time or another incarcerated in a concentration camp.
Much could be said about the horrible living conditions of concentration camps and the proof of the prosecution will leave no doubt that the prisoners were subjected to systematic cruelty. One former inmate has stated that there stood invisible over the camp gate, the inscription from Dante's inferno:
The cold statistics of death rates in concentration camps show an utter lack of hygienic conditions. In September 1943 the defendant Pohl reported to Himmler that the natural death rate for the last 6 months of 1942 averaged 9.89 percent per month. Such figures of course, in no way reflect the agonies of slow death through starvation and overwork.
In April 1945, a committee of the Congress of the United States made an official investigation of the conditions in concentration camps of Buchenwald, Nordhausen, and Dachau shortly after they had been overrun by the American armies. The report submitted by the committee contained the following conclusions:
I come now to a very special group of crimes committed in concentration camps under the guise of medical science. Throughout the whole period of the war, medical experiments were performed on thousands of inmates with a wanton disregard for human life. It is an impossible task for the prosecution adequately to portray the tortures to which those helpless human beings were subjected.
In these crimes, the WVHA was an essential party of the conspiracy, a conspiracy which embraced leaders of the military and civilian medical services of the German Reich. It was only through the SS, the WVHA with its control over concentration camps, that the human experimental material could be obtained. A number of the doctors who performed these criminal experiments are now on trial before Military Tribunal I, but in this dock sits the man and his confederates who made the human guinea pigs available, to be kept naked for 14 hours in freezing weather, infected with typhus, and the like. (4)
Euthanasia (Action "14 f 13")
I pass now to a phase of mass extermination implemented by the concentration camp structure, the so-called euthanasia program. On the opening day of the invasion of Poland, 1 September 1939, Adolf Hitler charged Professor Karl Brandt, at that time his escort physician, and Philipp Bouhler, the chief of the Private Chancellery of the Fuehrer, with the task of organizing and executing a program for the extermination of persons considered incurably ill.
The timing of the program with the initiation of a war of aggression was, of course, not a coincidence. By the elimination of insane, aged, and incurable persons, as well as deformed children, it was hoped to make more medical personnel and hospital facilities available for war casualties. It is equally clear that this program implemented the basic Nazi doctrines of race, blood, and State; only those persons who could strengthen the Nordic race and the Third Reich were considered worthy of life. Hence, those who were weak in mind or body, who were unable to work, who were "useless eaters" were systematically and ruthlessly killed.
As a result of the Fuehrer order, a large and somewhat complicated organization was established to carry out the euthanasia program. Since we are here concerned with euthanasia only insofar as it touches the concentration camps and the jurisdiction of the WVHA, the over-all operation of the program can be sketched in broad strokes. Questionnaires were sent to the Ministry of Interior purporting to report the condition of each patient in the various mental institutions. These questionnaires were submitted to socalled experts in the euthanasia organization who (without so much as having seen the patient) passed sentence on life or death. Then a list was made up of the patients who were judged as "positive" cases and these patients were removed from the asylum to collecting centers and from there were transferred to euthanasia stations and killed. The executions were carried out without the consent of the relatives and, of course, without the consent of the victim. Falsified death notices with stereotype wording were sent to the relatives.
The entire procedure was carried out under elaborate code names in an effort to insure secrecy. However, this proved to be quite impossible and the program was common knowledge throughout Germany. Indeed, public opinion and particularly that of the church was effective enough to bring about a temporary stop in the general program in the autumn of 1941. The heartful protest by thousands of decent Germans against this wholesale murder is exemplified in a letter written by the Bishop of Limburg to the Ministry of Justice in 1941, when he said:
This case is concerned with the euthanasia program because thousands of prisoners of all nationalities were transported from the concentration camps to euthanasia stations and murdered there. It is also true that camp doctors systematically killed inmates who were no longer able to work under the pretense that they were insane. These killings were usually accomplished by injections of phenol or gasoline. The executions were carried out under the code name "14 f 13" which apparently was derived from a file number in Amtsgruppe D of the WVHA. That office played an essential role in the operation of the program.
Thus, on 10 December 1941, the Inspectorate of Concentration Camps sent a letter to the camps of Dachau, Sachsenhausen, Buchenwald, Mauthausen, Auschwitz, Flossenberg, Gross-Rosen, Neuengamme and Niederhagen advising them that the doctors' commission would visit the concentration camps in the near future to select prisoners for "special treatment 14 f 13" and enclosing the usual form of questionnaire used in the euthanasia program. The camp doctors were directed to complete questionaires on eligible prisoners in order to shorten the work of the doctors commission. Exactly five days later, the camp doctors at Gross-Rosen had selected 293 inmates as eligible for screening by the doctors' commission. These unfortunate people were carefully listed under such headings as "Poles or Czechs in Protective Custody," "Shirkers," "Jews in Protective Custody," "Jews who were Habitual Criminals," "Jews who were shirkers," "Jews who Defiled the Race." A Jew who defiled the race was one who had married or had sexual intercourse with an Aryan.
This list was sent to the Inspectorate of Concentration Camps, which in turn wrote Gross-Rosen to expect a Dr. Mennecke on 16 January 1942 who would make the final selection. Dr. Mennecke was one of the so-called experts in the euthanasia program who was commissioned to visit concentration camps. He was recently tried, convicted, and sentenced to death by a German court for his part in the program. He was brought to Nuernberg and testified for the prosecution in the case against Karl Brandt et al. Of the 293 inmates listed as eligible by the camp management at Gross-Rosen, 214 were selected for extermination by Dr. Mennecke and no less than 51 of those were of Polish or Czech nationality. A further substantial number were Jews of non-German nationality. Our proof will show that 127 of those prisoners were sent to the Bernburg euthanasia station and exterminated, 36 died before the transport left Gross-Posen, and of the remainder, 42 were not transported because as a result of a thirty-day rest, they were again able to work.
This speedy recovery of the 42 inmates selected for extermination brought forth a reprimand from the WVHA. On 26 March 1942, Liebehenschel, chief of Amt D I, wrote to the camp commanders as follows:
It is thus apparent that the euthanasia program had as its main purpose the execution of those no longer able to work. However, it was also used as a means for the extermination of Jews. This is clearly shown in the method of selecting Jews. The physical examination of Aryan inmates was certainly no more than perfunctory but as to Jewish inmates there was no examination whatever. In November 1941, Dr. Mennecke wrote to his wife concerning the euthanasia examinations in Buchenwald as follows:
The reasons for arrest which were considered as sufficient to justify exterminating Jews are also illuminating. We will present to the Tribunal a series of pictures of 63 Jews who were selected in Buchenwald. Dr. Mennecke wrote the reasons for arrest on the back of each of these pictures. One Jewess was noted as having a "derogatory attitude toward the Reich; continuous race defilement by keeping her Jewish descent a secret and rendering the Hitler salute." Another had made "incredibly impudent and spiteful remarks toward Germans; on the train made acquaintance of soldiers coming from the front, introducing herself as Jewess, gave them bread for coffee and cocoa, then insulted the soldiers in the meanest possible way." A third was said to be an "anti-German eastern Jew agitator; in the camp, lazy, impudent, recalcitrant."
This murderous program continued long after the WVHA had assumed jurisdiction over the concentration camps. From the middle of 1943 the selections were supposed to be limited to insane inmates unable to work. On 27 April 1943 Gluecks, chief of Amtsgruppe D, sent the following order to the concentration camps:
The prosecution will present evidence on the operation of the euthanasia program in the Buchenwald, Dachau, Gross-Rosen, Mauthausen and Natzweiler concentration camps. These invalid transports were a thing of terror to all inmates as they were frequently used by the camp management as a means of disposing of prisoners considered to be undesirable. It appears that the extermination stations of Bernburg and Hartheim were the principle centers for killing prisoners. Frank Ziereiss, former commander of Mauthausen, estimated that at least 20,000 prisoners were executed at Hartheim over a period of one and one-half years.
The criminality of the euthanasia program as it operated in the Third Reich presents no novel question of law. The International Military Tribunal found that it involved the commission of war crimes and crimes against humanity and I quote from the judgment, pages 169117 of the English transcript (5):
MR. ROBBINS: A primary phase of National Socialist policy which permeated every level of Party and government, from the highest to the lowest, was that of enslaving peoples and exploiting their labors and energies. This policy of labor exploitation was emphasized in many of Hitler's speeches. His declaration on 9 November 1941 - quoted in the judgment of the International Military Tribunal - is typical. There he boasted that 250 million men lived in the territory which worked solely for Germany, and that the territory which worked indirectly for Germany contained 350 million men. "It is not doubtful," Hitler said, "that we shall succeed in harnessing the very last man to our work." In Himmler's now infamous Poznan speech on 4 October 1943 the attitude of the SS toward Germany's slave laborers was strikingly related, and I quote:
It was appropriate that the most unmerciful and satanic part of the slave labor program that carried out in the concentration camps should have been entrusted to Oswald Pohl and the members of the WVHA. The various precursors of the WVHA, with the help of Pohl and others of the defendants, had proved their ability to exploit the inmates of concentration camps. As early as 1939 Himmler ordered that supervision over economic matters and use of inmate labor should be under Pohl, although administration of camps at that time was still under the Concentration Camp Inspectorate. In 1939 also, the defendant Mummenthey was made business manager of the DEST industry which was one of the most lethal employers of concentration camp inmates. In 1940 he argued vigorously, on the basis of his experience, that the DEST industry should remain an enterprise operated with inmate labor only. Volk, too, as well as others of the defendants, had thoroughly mastered the economics of slave labor. By the time Pohl's group was reorganized in February 1942, they had developed a science of exhausting the last effort of those whose productive capacity was so pitifully small from malnutrition and mistreatment. When the WVHA assumed complete jurisdiction over the concentration camps, Pohl wrote to Himmler explaining his plans for the utilization of inmate labor:
The order by Pohl referred to in the letter to Himmler, was addressed to all concentration camp commanders and work managers and contained the following provisions:
Every means, except humane treatment, was employed by the defendants to extract every effort to the last gasp of the workers before they died, as they did by the thousands, from overwork; "employment must be in the true sense of the word exhaustive," "there is no limit to working hours," "sentries on horseback and watchdogs are to be used." In the SS industries, in stone quarries gravel pits, coal mines, underground armament plants, construction brigades, and camp workshops the laborers weltered in their bloody misery.
The labor economics of the defendants was not, however, designed simply to produce work, for had it been, far more could have been achieved by decent treatment of the workers. But an equally important purpose of the SS, as a criminal organization, and of the WVHA, as an essential element of the SS, was the annihilation of so-called inferior peoples. Thousands were marked as subhuman and thereby slated for death for being Jews and poles. But before they were to die they were to be driven, degraded, and damnified until death was a merciful delivery. Under the WVHA the typical concentration camp was not actually an extermination camp nor a labor camp, for either purposes could have been carried out quicker and much more efficiently. But they were the cruelest and most fiendish combination both of which could be devised by these defendants. Impossible physical exertion extracted under the whip of a mounted guard provided torture and ultimately death. This dichotomy in purpose of the slave labor program is also shown by the fact that senseless and useless labor, without any constructive purpose, was carried out continuously in the camps. Walls and even entire buildings were erected only to be torn down the following day, again to be rebuilt on the next. Prisoners were forced to carry huge rocks from one place to another, and on the following day to carry them back again. Contradictory purposes - profit and production, on the one hand, and torture and murder, on the other - made the search for manpower one of the most important parts of the concentration camp labor program.
In the work details both inside and outside the concentration camps, every inmate was utilized political and criminal prisoners, the sick, the lame, those who had already been exhausted from overwork, clergymen, prisoners of war, women, and children. As an illustration, the fact that one-third of the workers in the SS industries were sick was put forward by one of the WVHA officials as an objection to a proposed increase in the charges for concentration camp labor. A file memorandum of 24 April 1944 on this subject stated:
Priests of Polish and Lithuanian nationality were worked and used on all kinds of labor pursuant to an order of Himmler. However, the order mercifully provided that German, Dutch, and Norwegian priests were to be employed only in gardening work. But, even gardening work in the concentration camps was deadly and consisted primarily of carrying stone and earth. Workers were forced to carry tremendous loads, on the double, under the constant scrutiny of guards. Dogs were set upon those who fell behind. Many were shot while working; many others died from beatings and attacks by the dogs. Nevertheless, gardening was considered one of the better assignments.
Simply to obtain another source of slave labor, prisoners of war were placed in concentration camps upon the slightest pretext. An order of Mueller of 30 March 1943 provided that escaped Russian prisoners of war were to be sent to concentration camps if they stole bread at night while making their escape. By 1944 no reason whatever was given in many cases for transferring prisoners of war into the custody of the WVHA other than that workers were needed. As an example, Himmler sent the following telegram to SS Gruppenfuehrer Fegelein on 6 August 1944:
Under the most inhumane conditions prisoners of war were used in munitions factories, coal mines, and stone quarries. On 30 September 1944, Himmler officially recognized the extensive use of prisoners of war by the WVHA and ordered that their mobilization would be coordinated with Pohl and Berger in joint action with the then existing labor mobilization offices.
The work of women and children was also a part of the labor program of the WVHA. On 6 January 1943, Himmler wrote to Pohl as follows:
Women were used in the most exacting labor, and even in the deadly construction commandos, pursuant to Pohl's request. On 4 May 1944 Pohl sent the following telegram to Himmler:
The ever-present problem for the WVHA was to obtain replacements as fast as the inmates were killed or disabled in the work program. It is an almost unbelievable fact that workers were killed by overwork, mistreatment, and malnutrition at such a rate that it was impossible for the apprehension agencies to replenish the workers as fast as they died. Rudolf Hoess, chief of Amt D I, has estimated that in the industries with particularly severe working conditions, as in the mines, 20 percent of the workers each month either died at their work or were sent back for extermination because of inability to work. The dilemma became so acute that the chief of the Security Police and SD made the following complaint to Pohl in December 1942:
Similarly, in the same month, the medical office of the WVHA, Amt D III, complained in a letter to the camp doctors of all the concentration camps:
On 20 August 1942, the camp physician at Buchenwald made the following request in the interest of saving paper:
One source of concentration camp inmates was the Reich Ministry of Justice. On 18 September 1942 Himmler and the Minister of Justice conferred at Himmler's field command post. A captured file memorandum by the minister records that one of the items of agreement was that certain prisoners should be delivered by the Ministry of Justice to the SS to be worked to death. On this point, the memorandum reads:
Shortly after this conference the minister wrote to Reichsleiter Bormann:
Theoretically, the RSHA had jurisdiction over internment of inmates, length of sentence, and release from the camp. In practice, however, the economic purposes of the WVHA prevailed over the punitive objectives of the RSHA. Release of workers who were employed at so-called "important work locations" was first cleared with the WVHA. SS victims were sent to the camps by the thousands without any regard for penal consideration and for no other purpose than increasing the number of slave laborers. Socalled inferior races were herded into the camps by the thousands without any pretext of charges. As an example, Himmler wrote to Gluecks, in January 1942, as follows:
In the summer of 1942, Russian workers were transferred to concentration camps in such numbers that the WVHA, with all of its bookkeeping facilities, was unable to keep a record even by serial number of their arrival or transfer. On 1 August 1942, the chief of Amtsgruppe D sent the following order to the commanders of concentration camps:
It is obvious that the absence of individual records of the prisoners made administration of any penal policy impossible whether the end be reformation, deterrence, or even incapacitation.
* * * * * * *
The WVHA was connected intimately in a variety of ways with the cruelty, torture, and murders which particularly characterized the slave labor program in the building of armaments Both Amtsgruppe C, in charge of construction, and Amtsgruppe W, in charge of the SS industries, were engaged in the actual construction of armaments, and each had its own munitions program, using inmate labor supplied by Amtsgruppe D on a gigantic scale. In addition, the WVHA supplied thousands of workers to private industries engaged in the manufacturing of armaments Finally, the WVHA worked in close cooperation with the highest Reich officials in the armament program Goering, Speer, Sauckel, (6) Saur, and Waeger. I shall briefly refer to each of these phases of armament construction.
Amtsgruppe C, under Kammler and his deputies, Eirenschmalz, Kiefer and Busching, not only constructed plants for other agencies on a gigantic scale but in addition Kammler was given overall authority for producing V-1 and V-2 weapons at concentration camp Nordhausen-Dora. The giant munitions plant was constructed underground to escape allied bombings and was located on the outskirts of Nordhausen, 125 miles southwest of Berlin Approximately 80,000 slave laborers were used at Dora and they were forced to work, eat, and sleep in the darkness of the subterranean tunnels, and were driven 14 hours a day along the 31 miles of railroad track in the underground factories. The tempo of work was deadly and the living conditions unbearable. Literally thousands of inmates were murdered on this project. One transport of unfortunates after another left Buchenwald and nearby camps for Dora never to return. The V weapons were a specialty of the SS and of the WVHA and were constructed upon the lives of those foreigners whose countries were to be destroyed by them.
Amtsgruppe W, under the supervision of the defendants Pohl, Georg Loerner, Baier, Volk, and Mummenthey, also used inmate labor on a wide scale and under the most inhumane conditions in manufacturing armaments in its Amt IV plants, which were located in almost every camp under the WVHA, including Auschwitz, Buchenwald, Dachau, Lublin, Ravensbrueck, Sachsenhausen, and Stutthof. As an example, in plants of the DEST industry, directly managed by the defendant Mummenthey of Amt W II, airplane parts were manufactured by inmates at Flossenberg and Mauthausen, planes were assembled by inmates at Hertogenbosch, and air torpedoes were welded by inmates at Natzweiler.
More detailed reference will be made to these firms in the discussion of the SS industries.
Private armament firms, as well as many other types of industries, were supplied with laborers from concentration camps by Amtsgruppe D. One of the largest private employers was the I.G. Farbenindustrie, which was given priority on prisoners for its Buna plant over all other armament plants. At Goering's request eight to ten thousand inmates were used in constructing the Buna plant in 1941. The largest labor camp in Auschwitz, containing 7,000 inmates, was attached to the Farben plant. Numerous other Farben plants were also supplied with inmate labor by Amtsgruppe [Amt] D II. Hermann Goering Works, Krupp, Siemens-Schuckert, and Flick were also among the large employers of inmates
Close liaison was maintained by order of Speer among the highest officials in the Reich Ministry for Armament and War Production, the Office of the Plenipotentiary General for Allocation of Labor, Sauckel, and the WVHA. The policy of the WVHA was to allocate concentration camp labor through the former agencies in groups of not less than 1,000 male inmates or 5,000 female inmates. If one concern was not able to use an entire lot of inmates, several collectively applied for the allocation. The WVHA also worked in close cooperation with Saur, the head of the technical office of armament production in the Speer Ministry, in building tank engines for the Jaeger program, and with members of the Central Planning Board in building armament plants. Fifteen extensive plans for the construction of subterranean plants for the airplane industry were carried out by Amtsgruppe C with concentration camp prisoners in cooperation with the Armament Commission and the Plenipotentiary General for Construction in the Reich Aviation Ministry. In March 1944, in a top secret letter to Reich Marshal Goering, Himmler summarized the activities of the WVHA in the aviation industry. Himmler's letter read as follows:
Continuing the quotation from Himmler's letter to Goering:
Still reading from Himmler's letter to Goering:
In addition to the double role which Amtsgruppe C played in the armament industry, it was responsible for two other model achievements in construction; the construction of concentration camps and crematoriums cold, damp, vermin-infected huts, and well-constructed murder chambers which extended for blocks. The existence of the crematoriums was a closely-guarded secret and the camp commander of Mauthausen concentration camp has related that an order existed to the effect that every 3 weeks the detail of inmates working in the crematorium was to be shot. Another project under Amtsgruppe C was the construction of a secret Fuehrer headquarters near Ohrdruf. The project was known by the code name S III. The defendant Sommer himself went to Buchenwald to select the inmates for this important work. The strength of the project, which was commenced in November 1944, reached 13,000 by 27 March 1945 and hundreds of inmates were killed by overwork and mistreatment.
Various other construction projects were carried out by Amtsgruppe C. The so-called "A" projects were underground work detachments, designated A-1, A-2, A-3, etc. Construction of these projects included the enormous undertaking of moving the munitions industries underground and cost the lives of thousands of inmates. The "B" projects were surface work details. "S" projects were secret building detachments, such as the one at Ohrdruf, and the "V" projects already described, involved production of secret weapons.
Amtsgruppe C was the largest user of concentration camp inmates. Kammler was constantly on the search for new manpower for his construction brigades. On 10 February 1942 he wrote to Gluecks, chief of Amtsgruppe D:
The evidence will show that the defendants Eirenschmalz and Kiefer, as members of the Amtsgruppe C, played a vital part in this construction program and are responsible for the mistreatment, torture, and murder of untold hundreds of concentration camps inmates
The SS Industries
One of Himmler's principal ambitions for the WVHA was that it would eventually make the SS economically independent, both from the State and from the Party. The SS was to become a "state within a state" industrially and commercially, as well as politically and militarily. Here again as in other aspects of German life, the basis of industrial organization was to be the National Socialist philosophy. The economic system of this elite group was to be based upon racial and political selection, reinforced by military organization, and individually motivated by a characteristically corrupted conscience and a desire for personal enrichment. The cornerstone of the new economic order was to be slave labor and spoliation exploitation, and even extermination through work of so-called inferior people; and expropriation of valuable industries in the occupied countries.
The development of the SS industries was entrusted to Amtsgruppe W of the WVHA. The Amtsgruppe was designated "W" from "Wirtschaft" which means economy. The importance of Amtsgruppe W was emphasized by the fact that Pohl and his deputy, Georg Loerner, were themselves directly in charge of the Amtsgruppe and were principal managers of the parent holding company, German Economic Enterprises, Ltd., commonly known as DWB. However, the operation of the SS industries was both too intensive and too extensive to be supervised to any substantial degree by Pohl and Loerner. The bulk of the supervising work was carried on by members of staff W including Hohberg, Baier, and Volk, and the chiefs of the Aemter, including Mummenthey Bobermin, and Klein.
These were the men of commerce of the new order the elite industrialists. It was their goal to carry the economics of business efficiency to the Nazi terminus. Fanatical Nazis turned into fanatical businessmen, and their business was profit for the SS state and for themselves through the fraudulent income of the SS industries. In order that German economic life could be recast and rebuilt on the SS pattern, entrepreneurs were trained in the WVHA industries, and schools for business administration were established where SS principles of commerce were taught. The defendant Baier, later to become the chief of staff W, was in charge of such a school, known as the "Junkerschule Toelz" and as the "SS Fuehrerschule-Verwaltung". Indeed, one of the most enlightening of the captured WVHA documents is a memorandum which was to be used by the defendant Fanslau as material for a lecture in the SS training schools and which explains the political and economic rationale of the SS industries. The memorandum was submitted to Fanslau on behalf of the defendant Volk, legal advisor to Pohl and member of staff W. It explains that the purpose of the SS industries was "to get hold of all anti-social elements, which no longer had a right to live within the National Socialist state, and to turn their working strength to the benefit of the whole nation. This was effected in the concentration camps. The Reich Leader SS, therefore, delegated SS Obergruppenfuehrer Pohl to set up concentration camp enterprises, in addition he gave orders to establish companies on a private economy basis for the purpose of employing the prisoners.
"National Socialism maintains this point of view: The State gives orders to the benefit of economy, economy. The State does not exist for the but economy exists for the benefit of the State."
* * * * * * *
Brief examination of the organization of Amtsgruppe W and of its several Aemter will illustrate how closely connected were each of the industries with the administration of the concentration camps and the slave labor program, and how closely their purposes coincided with those of the SS state.
The structure of Amtsgruppe W was based upon Pohl's conception of military organization and the Fuehrerprinzip. The individual economic enterprises maintained by the SS were headed by the Offices W I to W VIII. They in turn, were subordinate to staff W, which was responsible to the chief and deputy chief of the Amtsgruppe.
Viewing Amtsgruppe W from the standpoint of private economy, into which the SS industries had to be fitted for purposes of commercial law, registration, and taxation, the parent holding company, the German Economic Enterprises, Ltd., commonly known as DWB, stood at the head of the various W industries Within the DWB, Pohl was managing director and Georg Loerner was second managing director. The defendant Volk was executive manager. The chief of staff W held the position of economic adviser to the managing director. He had immediate supervision over the directors of the DWB, the auditing and legal departments, tax affairs, and questions concerning plant management. All communications to the highest Party offices, ministries, and central authorities had to go through the chief of staff W. This position was occupied by the defendant Hohberg until August 1943, thereafter by the defendant Baier. The chief of each of the eight Aemter occupied the position of assistant to the managing director and was the principal member of the board of directors of the companies under the control of his particular Amt. Pohl, as the managing director of the DWB, had the power of appointment and dismissal of the chiefs and deputy chiefs of the Aemter, and had exclusive power to establish, acquire, sell, and dissolve subsidiaries; and to appoint and dismiss managers and members of the boards of directors of the subsidiary companies. The code of procedure, or bylaws, of the DWB was binding upon each of its subsidiaries in which it had a direct or indirect share of 50 percent of the capital and upon all enterprises under the administration of the WVHA. The organization of this giant combine and of its subsidiaries was designed to achieve a synthesis of the theories of industrial management with the principles of Party, State, and military organization.
In addition to the duties of staff W, which have already been mentioned, control and management of five subsidiary industries was the direct responsibility of this group. These were, in addition to the Ostindustry, which will be dealt with in connection with the part it played in the Jewish extermination program the Public Utility Dwelling and Homestead Ltd., Dachau (Gemeinnuetzige Wohnungs- und Heimstaetten GmbH), House and Real Estate Ltd., Berlin (Haus- und Grundbesitz GmbH), and German Medicines Ltd., Prague (Deutsche Heilmittel GmbH). A fifth company, the Sales Office of Berlin Furniture Factory Ltd. (Verkaufsstelle Berliner Moebelwerkstaetten GmbH), was liquidated in 1943. Additionally, it was the function of staff W to collaborate with Amtsgruppe D in negotiating for, appraising and acquiring sites for concentration camps in which DAW plants were to be located. Typical of this function of staff W was the negotiation by the defendant Volk for the site for concentration camp Stutthof. Also typical was an arrangement by the defendant Hohberg, as chief of staff W, for participation by the WVHA with the Hermann Goering Works in establishing a klinker factory at Linz. Hohberg, in this instance, arranged for the raw material to be supplied by the Hermann Goering Works and for the WVHA to build the factory and supply the inmates from the concentration camp Mauthausen; the profits were to be divided equally between the Goering Works and the WVHA. Participation by Mummenthey, as chief of Amt W I, and representatives from Amtsgruppe C and D in these particular negotiations illustrate the close cooperation among all the officials of the WVHA.
Staff W also assisted Pohl in determining the amount which each of the SS industries was to set aside for payment for the use of concentration camp labor. Each SS industry put aside an amount ranging from 30 pfennigs to 5 Reichsmarks per day, ostensibly to be used as prisoner's wages. However, it was never even considered that the inmate should receive any part of the sum. "Legally" such "wages" belonged to the Reich treasury. Various schemes, however, were utilized by staff W to enable the WVHA illegally to retain a substantial part of the funds. A file memorandum dated 23 March 1944 by the defendant Baier, at that time chief of staff W, states Pohl's attitude on this matter:
"The Hauptamtschef emphasized that he doesn't aim at letting the entire amount paid by the employer for the prisoner go to the Reich, but that part of it could serve other purposes." Amtsgruppe D employed the same fraudulent methods in charging private firms for the use of inmate labor. Up to 8 RM was collected, but only a fraction turned over to the Reich.
One of the bookkeeping methods adopted by some of the SS industries for the purpose of evading their obligation to surrender their excess profits to the Reich was to increase the charge to themselves for inmate labor, to pay approximately half this amount to the Reich, and to set up the balance in an account called "Reserve for Prisoners' Wages". By this device the industries increased their apparent expenses for wages, thereby reducing their excess profits and the amount which they transmitted to the Reich. In a confidential profit analysis of the W industries, Dr. Wenner, an executive manager of the DWB, rationalized this system of bookkeeping as follows:
"In case the Reich or the corresponding Reich offices do not intend to realize this claim, a trustee of the DWB will take over the administration of these amounts in the trustee section. The control of these amounts rests with SS Obergruppenfuehrer Pohl in his capacity of representative of the Reich. * * * The only difference is that payment of taxes and surrender of profits will fall to the tax collector's office, while a payment of the amounts to the trustee account will leave the control of the amounts in the hands of the SS WVHA." These were the elite economists and plant managers who were chosen on the basis of race and blood and their readiness to give their lives for the Reich.
Instances of sordid practices could be multiplied from looting the inmates of their money, watches, blankets, and clothing, to the spoliation of great industries in the occupied countries. As an instance, the camp commander at Mauthausen has explained how in one of the camps, approximately a thousand inmates who had been engravers and lithographers by profession were used in the manufacturing of counterfeit foreign bank notes and identification papers and seals from all over the world.
At Dachau and Mauthausen, human skin of dead prisoners was used to make lamp shades, saddles, riding britches, gloves, house slippers, and ladies' hand bags. Tattooed skin was particularly valued by the SS men.
The WVHA even illegally appropriated laborers who were consigned to the Plenipotentiary General for Labor Allocation [Sauckel] and who had been recruited through "Action Sauckel" in the East as so-called free laborers. This occurred when transports from the East were sent by mistake to the concentration camps. Needless to say, the entire transport in almost every instance was kept in the concentration camp. What was the gain of the WVHA was Sauckel's loss, and that of the new emigre.
Even the execution and cremation of their victims became a matter of marks and pfennigs. A typical bill rendered by the commander of the concentration camp Natzweiler to the Security Police and SD reads as follows:
But perhaps the most sordid income of the WVHA was derived from the house of prostitution operated in the camps. An order by Pohl, dated 13 April 1943, provided that visitors to the brothels would be charged 2 RM, and that from this amount, the woman would receive 45 pfennigs and the matron 5 pfennigs. The remainder of 1.50 RM, or 75 percent of the proceeds, went to the WVHA. These were the businessmen of the SS.
I now turn to a brief description of the industries under the individual Aemter.
Amt W I, under the defendant Mummenthey, was in charge of stone and earthworks within the Reich. The largest industry under this Amt was the German Earth and Stone Works, Ltd. commonly known as DEST. The DEST concern operated granite quarries in Mauthausen, Flossenberg, Gross-Rosen, and Natzweiler, a stone preparation plant at Oranienburg, a gravel dredging pit at Auschwitz, and brick factories at various camps. The DEST industry was organized in 1938 and was under the control of Mummenthey after September 1939. The preamble to its table of organization stated that it was to employ inmates from the concentration camps in the production of building material. The importance of this enterprise was emphasized by an order of Hitler in 1941 that the DEST industry, by the end of the war, should supply an amount of granite in excess of that supplied before the war by all German stone quarries combined; and by order of Himmler to Pohl to train 5,000 stonemasons and 10,000 bricklayers.
Assignment to work in the DEST stone quarries was one of the most dreaded of the details. Prisoners were forced to attempt impossible tasks, such as pulling heavy carts up steep hills and carrying heavy stone. Every evening many invalid and severely injured workers were brought into the camp on stretchers. Thousands were killed by overwork, falling stones, beatings, shootings, deliberate pushing into the abyss, and other sports of the guards
Also under the defendant Mummenthey were the Bohemia Ceramic Works, Ltd., and the Porcelain Factory Allach-Munich, Ltd., both using concentration camp labor on a large scale. The extent to which the latter industry relied upon prison labor is illustrated by a novel request which it made to staff W. In a letter of 22 December 1943, an official of the porcelain factory stated that the company had suffered a loss of 10,500 RM because, for a period of five weeks, it had been unable to obtain inmates from the Dachau concentration camp due to a typhus epidemic in that camp. Advancing a unique theory of contract liability, the official claimed that because the porcelain company relied exclusively upon concentration camp labor, staff W should reimburse the company for its loss.
Amt W II, under the defendant Bobermin, was established to operate the confiscated stone and earthworks in the East. As early as May 1940 Bobermin, as chief of what was then office III A II of the WVHA, was in charge of stone industries in the East. The defendant Volk was Bobermin's deputy at that time. In a report for the year 1940, Volk described the early activities of the WVHA in the East:
The Golleschauer Portland-Zement AG, under Amt W II was the first of the cement factories in the hands of the SS. It produced 200,000 tons yearly, and used inmates from the concentration camp Auschwitz. The cement company, together with two other large firms operating earth and stoneworks, glazed tile factories, lime and chalk factories in the East, were subsidiaries of Clinker Cement Ltd., which was in turn a subsidiary of DWB. Bobermin well described his activities in a letter to Himmler which he drafted in July 1941 for Pohl's signature. It read in part:
Bobermin's methods in acquiring Eastern earthworks are illustrated in a letter to Pohl on 2 April 1944, advocating that Amt W II take over the tileworks of Bonarka: [NO-1006, Pros. Ex. 449.]
The evidence will also show in addition that part of the funds obtained from the infamous "Action Reinhardt," to be described at a later point, were placed at Bobermin's disposal. Office W III comprised the so-called nutrition firms and supplied provisions for concentration camps and troops. They too, used inmate labor and had operating branches in Oranienburg, Dachau, Auschwitz, Lublin, and in other camps.
Office W IV, under May and Opperbeck, controlled one of the largest SS enterprises, the German Equipment Works, commonly known as DAW. This firm originated in the concentration camp workshops and was placed under Pohl's administration as early as 1936. During the war it was engaged principally in armament production and had branches in Auschwitz, Buchenwald, Dachau, Lublin, Ravensbrueck, Sachsenhausen, Stutthof, and other camps. Also included in office W IV were other large industries using inmate labor in the production of armaments.
Office W V was engaged in the utilization of concentration camp labor in agriculture, forestries, and fisheries. The scope of its activities was greatly enlarged by the acquisition of large fertile territories in the East. Farming, lumbering, and fisheries in Russia, farming and stock breeding in Poland, all became a part of SS economics under office W V.
The principal task of office W VI was the operation of textile and leather plants in the concentration camp Ravensbrueck. Clothing for inmates and troops was manufactured there. An adequate explanation of the activities of Amt W VII is found in Fanslau's lecture material quoted earlier:
The activities of the defendant Klein and his special tasks office (W VIII) have been dealt with earlier when it was pointed out that his enterprises used concentration camp labor under the most cruel and inhuman conditions. The evidence will show that in spite of the ostensibly cultural purpose and nature of hi projects, the defendant Klein, as well as the other defendants, was responsible for the death of numerous inmates.
In the SS industries, production and profit were valued far more highly than human life. To the SS man by training the concentration camp slave was mere human debris. He was worth less than the mechanical tools of production. A hoe, or a hod, or a hammer was more highly valued. They were not expendable, but human beings were
Extermination of the Jews
MR. MCHANEY: The systematic and relentless annihilation of the Jewish people by the Nazis constitutes one of the blackest pages in the history of the civilized world. This mad program of wholesale slaughter also included other groups considered racially inferior, such as the Poles, but the Jew was especially marked for destruction. This crime of genocide was part of the Nazi doctrine of total warfare, war waged against populations rather than against states and armed forces. One must search as far back as the massacres by Genghis Khan and by Tamerlane to find anything remotely comparable to the extermination of the Jews by the Nazis. Hans Frank, former Governor General of the occupied Polish territories and a defendant before the International Military Tribunal, spoke the truth when he testified: "A thousand years will pass and this guilt of Germany will still not be erased".
An introduction to this crime of mass murder and the part played in it by the WVHA and these defendants can perhaps best be given in the words of Reich Leader SS Himmler. On 4 October 1943, he said to a meeting of SS Gruppenfuehrers at Poznan:
And so the arm of destruction was the SS. On 31 July 1941 Heydrich, chief of the Security Police and SD, was charged with the "final solution" of the Jewish question in the German sphere of influence in Europe. With the advance of the German armies in Russia, Einsatzgruppen of the Security Police and SD murdered Jews and Communist intellectuals by the hundreds of thousands. The slaughter was so wanton and sadistic that one administrative official of the Reich Minister for the occupied territories was prompted to write:
The answer came back that "economic considerations should fundamentally remain unconsidered in the settlement of the problem" and that "questions arising (should) be settled directly with the Higher SS and Police Leaders". Cases were reported where persons who had been shot worked themselves out of their graves some time after they had been covered.
The extermination of the Jews was not limited to the Einsatzgruppen. Indeed, the slaughter in the charnel houses of Auschwitz, Treblinka, Majdanek, Belsec, and Sobibor was on a vaster scale. These extermination camps were all located in Poland. After the invasion of Poland, all Jews were forced to register, live in ghettos, and wear the yellow star. The "final solution" of the Jewish problem could be resolved, therefore, with almost assembly line precision. Train loads of Jews were evacuated from the ghettos to such camps as Auschwitz where the test of life or death was physical ability to work. Hoess, the commandant of Auschwitz until 1 Decmeber 1943, described the screening process in the following language:
From 3 March 1942 until the end, Auschwitz was one of the many concentration camps under the jurisdiction of the WVHA. The great influx of Jews in 1942 apparently so overtaxed the facilities at Auschwitz that the defendant Pohl, in November of that year, wrote to the Reich Minister of Finance in an effort to have the camp enlarged.
Extermination centers similar to Auschwitz existed at Treblinka, Majdanek, Belsec, and Sobibor in the vicinity of Lublin. There the procedure was the same. The victims were stripped of their clothes, money, and valuables. The hair of the women was cut off, later to be manufactured into mattresses. Then, herded like so many cattle, the naked men, women, and children were driven to their death in the gas chambers. Gold teeth were pulled from the mouths of the corpses. An attempt was even made to manufacture soap from the fatty parts of the bodies, while the ashes remaining after cremation were used for fertilizer. This was indeed a gruesomely commercial exploitation of death on a mass basis.
In this compounded crime of genocide, the WVHA played a very essential part. This extermination of peoples, this mass deportation of slave labor in concentration camps, gave rise to the confiscation, or to put it more precisely, the theft of property on a gigantic scale. To the defendant Pohl and his collaborators in the WVHA fell the task of collecting that property and mustering those slaves for use by the Third Reich.
As to Auschwitz, no problem existed as it was already under the control of the WVHA. As to the operations of the Einsatzgruppen and the Higher SS and Police Leaders in occupied Europe, however, new administrative machinery had to be created by Pohl. In August 1942, with the approval of Himmler, he appointed SS economic administrators to be attached to the staffs of the Higher SS and Police Leaders. Among other things, it was the duty of the SS economic administrator to hold all booty and raw material for disposal by the WVHA. He had supervisory rights over all concentration and labor camps under the jurisdiction of the Higher SS and Police Leader. Allocations of labor were directed by him and economic enterprises were under his supervision. Executions in concentration camps had to be reported to him and then to the WVHA.
The extermination camps in the vicinity of Lublin, such as Treblinka and Majdanek, gave rise to special problems because of the magnitude of their operations. These camps were, until the latter part of 1943, under the jurisdiction of one Odilo Globocnik, the Higher SS and Police Leader, Lublin. In order to coordinate the undertaking, a special staff "G" was created within the framework of the WVHA. The head of this staff was Globocnik while the administrative and accounting personnel was supplied by the WVHA. It was the task of special staff "G" to seize and account for all property in the Government General of occupied Poland derived from the extermination and enslavement of Jews. This ghoulish program was called "Action Reinhardt" presumably in honor of Reinhard Heydrich who was assassinated in the summer of 1942.
In order to appreciate the extent of Action Reinhardt and the criminal participation of the WVHA in carrying it out, it will be convenient to consider the action in three steps; first, the deportation of Jews; second, the exploitation of personal property; and third, the exploitation of Jewish manpower and industrial equipment.
The removal of Jews from the Warsaw ghetto for extermination or enslavement in the camps of Lublin is a typical example of the deportation phase of Action Reinhardt. The final destruction of the Warsaw ghetto in April and May 1943 was one of the most horrible chapters in Jewish persecution.
The ghetto was established in Warsaw in November 1940. It was separated from the rest of the city by the walling up of streets, windows, doors, open spaces, and the like. Approximately 400,000 Jews were forced to live within its confines. Conditions were such that there was only one room for every six persons.
The first large evacuation of Jews from Warsaw to the extermination centers took place between 22 July 1942 and 3 October 1942. In this action over 300,000 were removed.
In a secret memorandum dated 9 October 1942, Himmler ordered Pohl and SS Obergruppenfuehrer Krueger, the Higher SS and Police Leader East, to assemble in concentration camps in Warsaw and Lublin all Jews working in shoe, fur, and tailor shops. Jews working in actual armament firms were to be replaced gradually and segregated in a few concentration camp factories in the eastern part of the Government General. Himmler concluded with the statement that: "Of course, there too, the Jews shall one day disappear, in accordance with the Fuehrer's wishes." in January 1943, Himmler made a visit to Warsaw and to his great amazement discovered that 40,000 Jews were still in the ghetto. Many of them were working in textile and fur plants contrary to his order of 9 October 1942. He instructed Krueger and Pohl to transfer them immediately to Lublin. On 16 February this order was amplified to include all Jews and all private enterprises in the Warsaw ghetto. Himmler was angry because private employers in the ghetto were profiteering from cheap Jewish labor and he wanted this benefit to accrue to the SS. As I shall explain a little later, Pohl immediately took steps to form a company for the purpose of employing the Jewish manpower and exploiting the industries in Lublin.
Himmler further ordered Krueger to submit plans for the complete destruction of the ghetto. He said:
"For the razing of the ghetto, a master plan is to be submitted me. It must be achieved, in any case, that the existing living pace for 500,000 subhumans, which will never be suitable for Germans, disappears from the picture, and that the metropolis of Warsaw, which is always a dangerous focal point of disintegration and mutiny, be reduced in size.
A graphic description of the end of the ghetto is in the report of Juergen Stroop (7), Higher SS and Police Leader in Warsaw, who supervised the final deportation action under Krueger. The original plan was to transfer to Lublin the armament factories and other enterprises of military importance which were situated within the ghetto, together with the personnel and machines, in three days. The hapless Jews, well aware of the fate in store for them, put up such a heavy resistance that, instead of three days, the action lasted from 19 April 1943 to 16 May 1943. Stroop said:
The loot from this action included about five million Reichsmarks in Polish currency, large sums of foreign currency, and great quantities of valuables such as rings, watches, and jewels. As we shall see later this property was transferred to the WVHA. On 2 June 1943 Krueger transmitted to Himmler, Stroop's final report on the liquidation of the Warsaw ghetto. On 11 June 1943 Himmler directed Pohl to establish a concentration camp in Warsaw, the prisoners of which were to be used in salvaging the debris and scrap iron. In addition, the ghetto was to be absolutely leveled, with a view to creating a large park.
By 23 July 1943, Pohl was able to report the establishment of a concentration camp at Warsaw. The actual demolition of the ghetto was carried out by Amtsgruppe C and several reports on this matter will be submitted to the Tribunal. These reports indicate the employment of over two thousand concentration camp prisoners and reflect the use of large amounts of machinery and funds. On 29 July 1944 Kammler, chief of Amtsgruppe C, sent a telegram to Rudolf Brandt (8), Himmler's adjutant, stating that the razing of the Warsaw ghetto had been completed according to schedule, but that the subsequent work had not been carried out. In short, the only portion of the whole plan which was not carried out was the establishment of a park.
The second phase of Action Reinhardt which I have mentioned is the confiscation of personal property. This involved the murder and corpse desecration of countless Jews. Every watch, every gold fountain pen, every pair of shoes represented a dead man, woman, or child. It is literally impossible to comprehend the enormity of the crimes committed in Auschwitz, Treblinka, Majdanek, and the rest. To assist the Tribunal in that regard, we shall exhibit a motion picture which shows the warehouses of those death camps full of clothes, shoes, spectacles, and bales of human hair. The WVHA accounted for and controlled the disposition of those proceeds of mass murder.
On 26 September 1942, the defendant Frank issued basic instructions to the agents of the WVHA in Auschwitz and Lublin on what he termed the "utilization of property on the occasion of settlement and evacuation of Jews." He stated that the Jewish property, and I am quoting, "will in all orders of the future be called goods originating from thefts, receipt of stolen goods, and hoarded goods." Excerpts from this order read as follows:
The proceeds go to the Reich in all cases.
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The order concluded:
On 28 December 1943, the defendant Pohl issued the second basic order on the "administration of Jewish property." He admonished all SS economic administrators to keep their accounts as low as possible and to transfer all amounts above monthly requirements to Amtsgruppe A of the WVHA, which would handle the final accounting with the Reich. The order further stated that: "Upon completion of the resettlement operation the vouchers will have to be presented for auditing to the SS Economic and Administrative Main Office, section A- IV." The defendant Vogt was chief of that office.
What was the extent of this bloody loot received by the WVHA and what was done with it? Fortunately, the prosecution is in possession of rather complete reports in that regard. Prior to December 1943 the WVHA accounted for personal property in excess of 180,000,000 Reichsmarks of murdered and enslaved Jews in the Lublin area alone. This included foreign currency from 48 different countries, not the least of which was $1,300,000 in United States banknotes and gold coin. Also carefully listed and evaluated were 262,711 articles of considerable value, among them jewelry, watches, and gold spectacle frames. Nearly 2,000 freight carloads of clothes, linens, and rags were disposed of on orders of the WVHA.
This material began flowing into the coffers of the WVHA at least as early as August 1942. The defendant Pohl made arrangements with Walther Funk, the president of the Reich Bank and a defendant before the International Military Tribunal, for the deposit of the currency, jewelry, dental gold, and other valuables. A revolving fund was established, which reached 10 to 12 million Reichsmarks, for use primarily by Amtsgruppe W in financing economic enterprises controlled by the WVHA. This was known as the "Reinhardt Fund". In June of 1943, outstanding debts of various industries of Amtsgruppe W in the amount of approximately 8 million Reichsmarks were satisfied out of the Reinhardt Fund. This noxious deal was known to and participated in by the defendants Pohl, Frank, Fanslau, Georg and Hans Loerner, Hohberg, Baier, Volk, Bobermin, and Mummenthey, among others.
The source of the blood-stained loot from the extermination camps was also known to others in the WVHA. The defendant Vogt went to Lublin and personally audited the accounts of Globocnik. The defendant Georg Loerner, in agreement with the Reich Ministry of Economics, allocated for disposition hundreds of carloads of clothing from Auschwitz and Lublin. His own factory in the Ravensbrueck concentration camp reprocessed confiscated furs and rags. The defendant Sommer was familiar with the repair of thousands of watches of exterminated Jews in the workshops of the Sachsenhausen concentration camps. The defendant Pook was chief of the dentists who supervised the extraction of gold teeth from corpses in all concentration camps under the jurisdiction of the WVHA.
The third part of Action Reinhardt was the employment of the working ability of those Jews not initially marked for execution together with the utilization of the confiscated industrial facilities. The WVHA was active in this phase of the program. In order to coordinate these economic enterprises, the Eastern Industries Limited Liability Company (Ostindustrie GmbH), commonly called "Osti," was formed in March 1943. Its purposes were stated to have been: (1) to utilize the working capacity of the Jews by erecting industrial plants in connection with Jewish labor camps; (2) to take over commercial enterprises which had been maintained by the Higher SS and Police Leaders in the Government General; (3) to confiscate all Jewish machinery and raw materials; and (4) to utilize all former Jewish machines, tools, and merchandise which had been transferred to non-Jewish ownership.
The sole partners of Osti were the defendants Pohl and Georg Loerner. They also served on the board of directors with the notorious Wilhelm Krueger. The business managers were Globocnik and a Dr. Max Horn, an SS economic administrator appointed to Krueger's staff at Krakow by Pohl. Part of the capital for Osti was furnished by the defendant Frank out of the Reinhardt fund.
One of the more immediate reasons for the organization of Osti was to establish iron foundries in the vicinity of Lublin. The WVHA expected to derive the machinery and other equipment for this enterprise from the Warsaw action. Thus on 26 February 1943, Dr. Horn wrote to the defendant Hohberg:
The unexpected resistance put up by the Jews in the Warsaw ghetto, which has already been described, largely frustrated the plans for an iron industry in Lublin since substantial quantities of machinery were destroyed.
There were some 18 manufacturing establishments controlled by Osti, employing altogether about 52,000 slave laborers. These plants included a glass works, a textile mill, a peat cutting plant, an iron foundry, a brush manufacturing plant, a stone quarry, and finally, a pharmaceutical laboratory.
In November 1943, the remaining Jews in the Lublin area were exterminated. This deprived Osti of its principal source of labor and, except for the glassworks which was operated by Polish slave labor, it was liquidated and the assets taken over by the German Equipment Works under the management of Amt W IV of the WVHA. The defendants Pohl, Georg Loerner, Baier, and Volk made an effort in January 1944 to secure the Lodz ghetto with its industrial equipment and 80,000 Jews for Osti, but the Reich Leader held that the ghetto should be left under the jurisdiction of the Gauleiter after the Jews had been reduced to a minimum by action of a "Sonderkommando".
This then, was Action Reinhardt a coldly premeditated program of mass murder and gigantic theft visited upon a people whose only crime was that of failure to be born an Aryan. In scope and brutality the crime is without parallel
The prosecution has charged in the first three counts of the indictment that all of the defendants are responsible for the crimes alleged therein. This charge is based not only on the theory of conspiracy or participation in a common plan, but also on well-recognized principles of criminal liability. One need not be the trigger man to be guilty of murder. The criteria of criminality are clearly stated in Control Council Law No. 10, Article II, section 2. Any person is deemed to have committed a crime, if he was (a) a principal or (b) was connected with plans or enterprises involving its commission or (c) was a member of any organization or group connected with the commission of any such crime.
And so in the case of the general and systematic commission of crimes in concentration camps all of the defendants are guilty. All of the defendants had substantial connections with the concentration camps, the very existence and operation of which necessarily involved murder, atrocities, torture, enslavement, and other inhumane acts. But, we shall no doubt have to listen to long and tedious lectures by each of the defendants to the effect that Amtsgruppe A, or B, or C, or W had nothing to do with the conditions in concentration campsthat such conditions were the responsibility of Amtsgruppe D, the Inspectorate of Concentration Camps. And when we come to the two defendants unfortunate enough to have worked in Amtsgruppe D, that is Sommer and Pook, they will tell us that they did everything in their power to improve conditions, that it was the dead Gluecks and Lolling who were responsible.* * *
No, the responsibility for the crimes committed in concentration camps can no more be limited to Amtsgruppe D or to dead men than to the sadistic camp guards who found it amusing to subject their helpless victims to degrading tortures. The concentration camps were the very life blood of the whole of the WVHA. The Amtsgruppen were all interrelated in their purposes and activities. Each depended on the other to a greater or lesser degree. The administrators and accountants of Amtsgruppe A cannot escape the charge of murder when they controlled the disposition of valuables of inmates killed by the millions in the camps of Auschwitz, Lublin, and Mauthausen; nor can the supply officers of Amtsgruppe B who ultimately controlled the food, clothing, and billeting for concentration camps and who were the recipients of train loads of clothing of exterminated Jews; nor can the construction engineers of Amtsgruppe C who used inmates to construct crematoriums, gas chambers, and underground factories; nor can the "business men" of Amtsgruppe W who worked inmates to death by the thousands in the granite quarries of Mauthausen and the brick factories in Poland and who used the labor of Jews until the moment they were driven away to gas chambers.
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The vastness of the crimes committed and the nature of the organization involved forcefully poses the question: Why was the SS permitted to become a state within a state? It is our deep obligation to the German people and to the peoples of the world not to avoid or to evade that question. For the sake of these nameless millions who perished under the heel of the SS Germans and non-Germans let us not speak too softly or too late of the responsibility of every member of the community for its political weal! Let us not too soon lose sight of a collective civic responsibility to prevent the growth of such malignant organizations. Before the memory of these crimes die away let us speak of the duty of all patriotic and responsible men, in all walks of life, to protect the nations against such loathsome doctrines as these defendants preached and practiced. Here let the consequences be indelibly recorded of an organization based upon the execrable theories of racism. If there are those who doubt, let them come here and examine the documents which Himmler's vial of cyanide could not destroy, showing the world-wide carnage wrought by that organization; and all peoples may learn that a nation may not be built upon persecution; that industry, no more than medicine or law may not be built upon death, destruction, and desecration; and that production may not be based upon pogroms, nor profits upon pillage. Today's misery exists the world over because these lessons were not sooner learned.
B. Extracts From the Opening Statement for Defendant Pohl (9)
In count one of the indictment he is charged with having participated in a common plan with the intent of perpetrating war crimes and crimes against humanity. In counts two and three of the indictment he is charged with personal responsibility in the perpetration of war crimes and crimes against humanity, while in count four of the indictment he is charged with having been a member of an organization which was found to be felonious by the International Military Tribunal.
Count One - The Common Plan or Conspiracy
In count one of the indictment the defendant Oswald Pohl is charged between January 1933 and April 1945, together with the other defendants and several other persons following a common plan, with having participated in an illegal manner and with malice aforethought, in an agreement to perpetrate war crimes and crimes against humanity, as they are defined in the Control Council Law No. 10, Article II.
The indictment contains no statements which are based on facts and which reveal in detail the existence of such a scheme with regard to its period of initiation and its purpose. The indictment is restricted essentially to legal arguments in general the center of which is the Economic and Administrative Main Office under the defendant Oswald Pohl.
The indictment itself contains no reference to the legal provisions on which, in count one of the indictment, the maintained common plan has its legal basis. Therefore, the question as to whether the Control Council Law No. 10 can provide legal reasoning for this count of the indictment must be examined. In consideration of the fact that in Control Council Law No. 10 of 20 Decmeber 1945, paragraph 1, the London Agreement, dated 8 August 1945, relating to the prosecution and punishment of major war criminals of the European Axis powers, has been incorporated as an inseparable part of this law, the statute for the International Military Tribunal must also be referred to when examining this question, since this statute on the other hand, represents an essential part of the London Agreement of 8 August 1945.
Just as in the present trial, the prosecutors of the four signatory powers of the London Agreement, in the trial against Hermann Goering and others, have regarded the "common plan or the conspiracy" as an independent count of the indictment and as a major count in the center of the indictment. The indictment described the purpose of this common plan as not only a preparation for a war of aggression but also the planning of war crimes against humanity. The prosecution is opposed to this, and the International Military Tribunal also has decided in its verdict of 20 September 1946, that the statute does not warrant an extension of the common plan of committing war crimes and crimes against humanity. The International Military Tribunal, in its verdict has stated the following:
"Count one of the indictment covers not only the conspiracy for the purpose of conducting aggressive warfare, but also the conspiracy for committing war crimes and crimes against humanity. Apart from the conspiracy of conducting aggressive warfare, the statute does not describe any kind of conspiracy as an especial crime. Article 6 of the statute provides for:
"Leaders, organizers, instigators, and accomplices who have taken part in the execution of the common plan or common conspiracy for perpetrating one of the above crimes are responsible for all deeds which have been perpetrated by any persons in carrying out such a scheme.
"According to the opinion of the Court, these words do not add a particular new crime to the crimes already enumerated. The words serve to establish the responsibility of those persons who are associated with a common plan. The Tribunal will therefore disregard the charges contained in count one of the indictment, that the defendant took part in a conspiracy for perpetrating war crimes and crimes against humanity, and consider solely the common plan to prepare, start, and carry out wars of aggression."
Thus there can be no doubt that, according to the Charter of the International Military Tribunal at any rate, this does not constitute a common conspiracy for the commission of war crimes or crimes against humanity.
Moreover, the question should be examined whether the Control Council Law No. 10 of 20 Decmeber 1945 provides sufficient legal basis for count one of the indictment. This question must be answered in the negative for the following reasons.
The Charter of the International Military Tribunal of 8 August 1945 has become, by Article I of the Control Council Law, an integral part of this law. As a law of the four signatory powers of the London Agreement of 8 August 1945 it is without doubt a legal source of special importance. For this reason, therefore, it must be considered improbable that a law of the Control Council could contradict the regulations of the Charter of the International Military Tribunal or the interpretation which the Charter had acquired through the International Military Tribunal. Moreover, it should be added here that every law should be considered as a complete unity in itself. Considering the regulation placed at the head of this Control Council law that the Charter of the International Military Tribunal was an essential and inseparable part of this law, it must be regarded as out of the question for this law to make statements which contradict the Charter.
We may, therefore, consider that the Control Council law does not present sufficient reasons for count one of the indictment from a legal point of view. And indeed this law mentions only in a single place a common plan or conspiracy, namely, in Article II, paragraph 1 (a) when defining the concept of crime against peace. On the other hand, the characteristics of a war crime or crime against humanity, as defined from the point of view of criminal law in Article II, paragraph 1 (b) and (c) contain no adequate further explanation of the concept in the sense of a common plan or conspiracy. Article II, paragraph 2 of the Control Council Law No. 10, which describes in detail the characteristic symptoms for determining participation, also gives no indication that the common plan for the commission of a war crime or a crime against humanity constitutes an independent criminal offense. This refers especially to paragraph 2 (d). Here anyone connected with the planning or perpetration of any of the crimes mentioned under paragraph 1 is threatened with punishment. From the working of the law and especially of the English text it is clear that this cannot mean the legal institution of the "common plan or conspiracy" in the technical sense. The wording of the Control Council Law No. 10 and its connection with the Charter of the International Military Tribunal, as well as with the interpretation which the Charter has acquired through the verdict of this Military Tribunal, allow us to conclude with certainty that this law at any rate cannot present a legal basis for count one of the indictment.
To supplement Control Council Law No. 10 of 20 December 1945, the US Military Government of Germany issued Ordinance No. 7 which is concerned with the constitution and authority of certain military courts. As can be seen from the heading of this decree itself, it is not intended to introduce new legal standards but only to regulate the constitution of these military courts and to make public directions for procedure. Nevertheless, Article I contains the statement that these military courts are to be authorized to judge and punish persons indicted for an act punishable under Article II of Control Council Law No. 10 or of conspiring to commit such a crime. Therefore, the question arises whether Article I of Ordinance No. 7 of the Military Government of Germany can be regarded as a sufficient legal basis for count one of the indictment, since Control Council Law No. 10 excludes this possibility. This question, too, is to be answered in the negative for. the following reasons: The composition and purport of Ordinance No. 7 show clearly that it is only designed to supplement Control Council Law No. 10 as far as questions of legal procedure and organization are concerned. Such a possibility has been envisaged in Control Council Law No. 10 itself. Article III, paragraph 2, of this statute states that provisions of the Control Council Law shall not encroach upon or limit the authority of any court of law already set up or which may in future be set up by the zone commander within their zone. If one proceeds from the assumption and, indeed, any other interpretation could be defended only with difficulty, that it is one of the tasks of the Control Council to issue uniform legal regulations and to guarantee the uniformity of the law for the whole of the territory of the German Reich occupied by the signatory persons of the Potsdam Agreement of 2 August 1945, then one must exclude completely the possibility that individual zone commanders could have the right to change and enlarge penal regulations issued by the Control Council for Germany and obligatory for the whole of the occupied territory. Article III, paragraph 2 of Control Council Law No. 10 can only be interpreted to mean that the zone commanders shall have the right to issue regulations for punishment and for procedure in those cases in which no exhaustive provisions have as yet been made by the Control Council for Germany. From the wording of the Control Council Law it is clear that only the common plan to wage an aggressive war shall be punishable. Had it been the intention of the Control Council to make equally punishable a general intention directed towards the committing of war crimes or of crimes against humanity, then it would have said so and would have admitted a provision similar to that contained in Article II, paragraph 1 (a)-(c), where the legal definitions of war crimes against humanity are given. Argumentum e contrario it must be concluded that this, precisely, was not the intention of the Control Council.
If one admitted the right of the zone commanders to change on their own authority the penal laws of the Control Council, this would constitute a violation of one of the fundamental principles, obviously decisive factors in the establishment of the Control Council, namely the maintenance of the uniformity of the law throughout the whole of the occupied territory. It is one of the principles of any legal system that particular and subsidiary penal law cannot contradict general penal provisions. With regard to this contradiction, the law issued by the Control Council for Germany must, take precedence, and only this law can be recognized as a legal basis for the passing of judgment, inasmuch as one is convinced that a law published after the act has been committed can be quoted as justification for punishment.
And thus, we arrive at another question which arises as much from Control Council Law No. 10 as from Ordinance No. 7 of the Military Government of Germany in as far as these contain regulations governing penalties. It is one of the principles of any legal system and part of our conception of justice that penal law cannot be retrospective. An act can only be judged according to laws which were valid at the time when the act was committed. Control Council Law No. 10 as well as Ordinance No. 7 of the Military Government of Germany were issued long after the act. Both these laws therefore violate the principle that the theoretical and the practical validity of the law must be identical. This principle goes further than the principle "nulla poena sine lege" insofar as it excludes the application of a theoretical penal law even, when in practice it does not contradict the law valid at the time when the act was committed, but the law which contains the threat of punishment and which is intended to stand as the basis for the judgment, was issued only after the act was committed.
In point of fact, however, the provisions of Control Council Law No. 10 are also in a material respect contradictory to the law applicable to the defendants at the time of the deed. The same applies to the definitions of crimes against peace, war crimes and crimes against humanity contained in Article II, paragraph 1, as well as the forms of participation defined in detail under paragraph 2. Thus Law No. 10 of the Control Council violates the principle: nullum crimen sine lege, nulla poena sine lege, which is contained in all laws of the civilized states, and which means that deed can only be punished of the liability to punishment and the punishment itself were legally determined before the offense was committed. There is no need to enter into the history of this sentence. It is sufficient to point out that it is contained in Article 39 of the Magna Charta of King John dated 1215. From there the sentence passed into the , and in Europe the wording in Article 8 of the French Declaration des Droits de l'Homme et du Citoyen, dated 26 August 1789, is still regarded as a prototype. North American [United States] Bill of Rights
Today the sentence nulla poena sine lege seems to be an internationally acknowledged component of our conception of law. In view of this it can be assumed that the sentence applies not only to individual offenses but also to the general regulations of penal law which concerns the personal responsibility of the offender, the limits of the punishable acts, and the participation in them. There can be no doubt that not only Article II, paragraph 1 of Control Council Law No. 10 contains criminal regulations contradictory to the criminal regulations which were binding for the defendant before 8 May 1945, but that also the limits of the punishable act and the responsibility for the actions of another are considerably more comprehensive in Article II, paragraph 2 of the Control Council Law than in the corresponding regulations -of the German penal code. In our case, the sentence nulla poena sine lege means nothing more than the assumption that the defendants are to be judged fundamentally and in the details of the execution according to German penal law. This was in force at the decisive time, and they were bound by it. The degree of their responsibility was determined by it, and today too, this must be referred back to that time. The Tribunal will have to consider this question in its judgment unless it wishes to run the risk of violating a general principle of justice whose validity was clearly recognized in the verdict of the International Military Tribunal.
It will be the task of the defense to demonstrate in detail the principles according to which the defendant directed the Economic and Administrative Main Office and whether these principles and their actual application can be used at all to form the framework for a common plan as charged against all defendants in the indictment.
With regard to the fact that according to the indictment these defendants were not the only participants in the common plan, but that various other persons were also involved it will also be necessary within the framework of the defense to examine the position of the Economic and Administrative Main Office within the Reichsfuehrung [Reich Leadership] SS, and its relation to other Main Offices of the SS but even now it seems to be necessary to examine the law concerning the common plan (count one of the indictment) and its applicability to this case.
Counts Two and Three-War Crimes and Crimes Against Humanity
The Economic and Administrative Main Office- this office which was directed by the defendant Oswald Pohl, was one of the twelve Main Offices of the Reich Leadership SS, which was directly subordinated to the Reich Leader SS Himmler. As the title of this office shows its tasks were mainly the settlement of administrative affairs. Until 3 March 1942, the day on which the formerly independent Inspectorate of the Concentration Camps was incorporated into the Economic and Administrative Main Office, as department D. The Economic and Administrative Main Office had no more to do with the administration of the concentration camps than with the administration of any other institution of the SS. The Inspector of the Concentration Camps was immediately subordinated to Reich Leader SS Himmler, and for a certain time to the Fuehrungshauptamt [operational headquarters] without influencing the administration of these camps very much. Obviously this subordination was only a formal one and it will be the task of the defense to present the reasons why the Inspectorate of the Concentration Camps was for many years directly subordinated to Reich Leader SS Himmler, and also why subordination to the chief of the Fuehrungshauptamt was only a formal one. These reasons, which will have to be examined individually also prevented the Inspectorate of the Concentration Camps being attached years before the outbreak of war to the office to which according to their nature they should have belonged, namely the Secret State Police Office or the Reich Security Main Office which was formed in 1939.
2. Up to 3 March 1942 the work of the economic main office was to carry out duties, which had to be performed within the framework of the administration of the Waffen SS as a part of the Wehrmacht and as they were performed in the army for example by the army administrative office. To that belonged department A, the economic system of the general SS, the accounts and pay section, personnel and legal section. Department B dealt with matters concerning the food section, the clothing section the accommodation section, the transport system, and similar things. Department C dealt with building, while the department W directed and controlled the economic section. Here too, it may be added that for example, the undertakings which were under the direction and supervision of the high command of the army were considerably larger and more extensive than those which were under the direction of department W. It will be the task of the defense to present in detail the basic principles, which were observed with regard to the direction of the various departments and offices of the Economic and Administrative Main Office, where particular attention will have to be given to certain special tasks as these were carried out, for example, by the chief of department C, SS Obergruppenfuehrer Dr. Kammler within the limits of his special staff. This special staff had, particularly during the last years of the war, to carry out tasks which far exceeded the general sphere of authority of the Economic and Administrative Main Office, and which were carried out partly under the immediate direction and orders of Hitler, Speer, Himmler, and other offices.
3. The main point of the presentation of the evidence by the defense will be the examination of the question: What results had the incorporation of the Inspectorate of Concentration Camps in the Economic and Administrative Main Office as department D on the Economic and Administrative Main Office itself, as well as on its chief, the defendant Oswald Pohl? The starting point of this examination will be the examination of those reasons which really led to the Inspectorate of the Concentration Camps being taken away from the Fuehrungshauptamt, into which it was incorporated for purposes of organization until 3 March 1942, and being subordinated to the defendant Oswald Pohl as chief of the Economic and Administrative Main Office. This will prove that this subordination of the Inspector of Concentration Camps to the defendant Oswald Pohl and the incorporation of the Inspectorate into the Economic and Administrative Main Office was caused exclusively by the unsatisfactory state of the German labor market during that time. It is no accident that at the same time, namely 12 March 1942, Gauleiter Sauckel was promoted Plenipotentiary General for Labor Allocation [Arbeitseinsatz] and that the Plenipotentiary for the Four Year Plan, Goering, transferred to him the authority which was his due in his capacity within the framework of the labor allocation. The incorporation, for purposes of organization, of the Inspectorate of Concentration Camps in the Economic and Administrative Main Office was forced only by the economic necessity of incorporating the labor inside the concentration camps into the general mobilization and of employing them usefully and of excluding every uneconomical utilization of labor as was in many instances the case in the camps up to this time. It will also be the task when presenting the evidence, to set forth in detail those measures which the defendant Oswald Pohl adopted in the performance of his task and also which directives had been given him. But already at this time the attention should be drawn to a fact which to a large part follows from the very evidence offered by the prosecution itself; namely that the tasks of the defendant Oswald Pohl were restricted and that general administrative and executive matters connected with these camps were not within his competence but were still handled directly by the agencies which had been in charge of them before. This applies in particular to the position of the Inspectorate of the Concentration Camps itself. It was by no means so that after 3 March 1942 when the Inspectorate of the Concentration Camps had been incorporated into the WVHA, it had the same standing within this main office as the other subdivisions which for many years had been charged with certain specialized functions and therefore had that standing within the larger body as a matter of course. The fact has to be stressed even now that the administrative incorporation of the Inspectorate of the Concentration Camps into the WVHA was only intended for the duration of the war and that this incorporation did by no means change the independent position of the inspector of the concentration camps, with the exception of labor allocation matters. Also, the Inspectorate of the Concentration Camps did not move its offices to the office building of the WVHA in Berlin, even after 3 March 1942, but they remained at Oranienburg. It is a fact which we shall prove that the Inspectorate of the Concentration Camps, even after its incorporation into the WVHA did not lose any part of its independence and within the WVHA was always looked upon as a foreign body.
Even the very evidence submitted by the prosecution shows clearly that nearly all matters not immediately connected with labor allocation were handled by the offices of the Inspectorate of Concentration Camps without the chief of the WVHA or the other subdivisions or offices of the WVHA being concerned with them.
The defense will consider it as its task to prove in detail the manner and the extent of the operation which developed between the defendant Oswald Pohl and the inspector of the concentration camps with regard to labor allocation.
The evidence of the prosecution shows, moreover, that the administrative incorporation of the Inspectorate into the WVHA, did not effect any changes in the competences still appertaining to the Secret State Police [Gestapo] and the other offices of the Reich Security Main Office. This applies in particular to the commitment to, and the release from, concentration camps, both of which were exclusively a matter of the Reich Security Main Office and upon which the WVHA had no influence at all.
As part of the evidence the prosecution showed several films which were to show the general conditions in these camps after the collapse of Germany in May 1945. The fact, however, that the conditions shown in these films cannot be regarded as typical for the general conditions in these camps before and during the war does not need special emphasis. The heavy air raids of the Allied air forces against the German home front and especially the lines of communication, resulted in a collapse of the communication system and the economic life as such, which heavily aggravated conditions of life in Germany even outside the camps. The conditions in the camps were bound to become more intolerable as more and more concentration camps were evacuated upon the approach of the Allied armies, that more and more concentration camps were evacuated which had the result that in the few remaining camps the prisoners were overcrowded to such an extent that it became impossible to carry out sufficient feeding and even limited hygienic conditions for any length of time.
The defendant Oswald Pohl and the office under him cannot be held responsible for this decline in the living conditions in the camps. Through an order of the Reich Leader SS, the concentration camps came under the jurisdiction of the responsible Higher SS and Police Leader in whose district the camp was located, in the so-called "A-Case" that is when threatened by the enemy. He alone had to decide whether the inmates of the camp were to be evacuated or whether the camp with all prisoners was to be turned over to the advancing Allied troops.
4. The inclusion of the labor strength of the prisoners in the armament economy was the immediate cause and purpose of the organizational coordination of the Inspectorate of the Concentration Camps into the WVHA. The defendant Oswald Pohl does not deny having done everything possible to utilize the labor strength of the prisoners in a manner beneficial to the conduct of the war, and he does not deny that in doing so he made demands, with regard to the hours worked which made considerable demands on the capacity for work. The following has, however, already been pointed out by the evidence of the defense:
The collapse of the offensive of the German armies before the gates of Moscow in the winter 1941-1942 and the entry of the United States into the war had the result that Germany had to make plans for a long war. If, up to spring 1942 any doubts should have existed as to the length of the war and the dangers to the living conditions of the German people caused through this war, these doubts would have to be removed definitely through the political and military developments which have arisen. These developments placed before the Government of the Reich the necessity of drawing all possible labor strength from the German people. Naturally, at a time when all German workers were in the factories daily for 12 hours or more and in which women with four or five children were given home work to do for the armament industry, the prisoners from the concentration camps would be drawn on for carrying out essential war work.
On the other hand, the evidence will show that the defendant Oswald Pohl did everything which could be undertaken by the ministry by issuing appropriate regulations and by improving food and general conditions in the camps to maintain the labor strength. When, despite this the working conditions in the camps and workshops steadily declined, it was due largely to circumstances which were outside the jurisdiction of the defendant Oswald Pohl and which will be examined in detail in the presentation of evidence by the defense.
In these examinations it will also be necessary to examine the conditions and circumstances under which the armament plants of private economy employed the prisoners of the concentration camps and which conditions had to be fulfilled before department D and the commandants of the camps could hand over manpower to these concerns.
It will then be the task of the legal summing up, after presentation of all the evidence, to investigate the real reasons excluding the illegality of the act and the guilt of the defendant which can be offered in defense of the defendant's conduct regarding the question of the allocation of labor in those cases as well in which foreign labor and prisoners of war were assigned, and their final justification in those particular circumstances which were caused by the war and wartime conditions.
5. An extensive part of the prosecution evidence material refers to department W and the economic undertakings of the WVHA. It is difficult to tell from many of the documents put forward by the prosecution as to how far they should be considered as material evidence in the judgment of the conduct of these defendants and with regard to the charges brought against them. It seems all the more necessary that the defense should set forth in detail the reasons which the Reich leadership of the SS set forth, as Opposed to the general economic principles announced by the Staatsfuehrung [State leadership], which amount to the same thing as the support of private enterprise, even in founding economic concerns and in entering into competition with private economy.
In this connection there will also be an opportunity of investigating the property and other law conditions with regard to these concerns, and of examining the question of who owned the business shares of the Deutsche Wirtschaftsbetriebe (German economic plants) GmbH and who financed this holding company and t he other undertakings which it controlled.
At this point it should be mentioned that of the total investments in these concerns, both in money and in kind, 38 millions came from Reich sources and only 7 millions were provided by the National Socialist Party. The defendant Oswald Pohl was not the actual owner of the DWB shares, but was only the trustee.
6. The defendant Oswald Pohl is accused in the indictment of being particularly responsible for carrying out medical experiments in the concentration camps. The evidence in this case and in the proceedings before Military Tribunal No. I has shown that in actual fact experiments were made on prisoners in the concentration camps in the interest of the German Wehrmacht. The evidence has also shown, however, that the defendant Oswald Pohl did not participate directly in carrying out these experiments. It will be the task of the defense to use the evidence to investigate thoroughly of which experiments the defendant Pohl was aware, whether and to what extent he supported the experiments and if, by reason of his position it would have been possible for him to prevent the experiments from being carried out.
7. The defendant Oswald Pohl is also accused in the indictment of responsibility for and participation in the so-called final solution of the Jewish question. The evidence in Case No. 1 against Hermann Goering and others before the International Military Tribunal showed that the order for the extermination of the Jews was given as early as the summer of 1941, that is to say, at a time when the WVHA had no connection, administratively or otherwise, with the camps where these measures were carried out. But the evidence before the International Military Tribunal has also shown that there were special agencies and persons who were charged with the execution of this order, as for instance the office IV B of the Reich Security Main Office under SS Obersturmbannfuehrer Eichmann and SS Gruppenfuehrer Globocnik, who had no connection, administratively or otherwise, with the WVHA, and all of whom received their orders immediately from Reich Leader SS Himmler, all necessary measures having been taken to guarantee the greatest possible secrecy. In this connection I refer to the statements of the witnesses Wislizeny, Hoess, and Morgen before the International Military Tribunal. It may be pointed out also, even now that the extermination camps Treblinka, Belsec, Majdanek, and others did not belong into the domain of the Inspectorate of the Concentration Camps, and therefore even after 3 March 1942 were not subordinated to the defendant Oswald Pohl, not even nominally or administratively. I also should like to add that the WVHA, as directed by the defendant Pohl, was only an administrative office which had no executive organs whatsoever, and that an immediate participation in a number of acts which constitute the object of the indictment, would appear impossible if it were for that reason only.
8. Extensive evidence was submitted by the prosecution in connection with the Action Reinhardt. Several agencies were in charge of the execution of this action, among them the Higher SS and Police Leader East and the SS and Police Leader Globocnik.
The WVHA as such had at first nothing to do with this matter. It was brought into it only when the action was approaching its end, and certain enterprises near Lublin had to be taken over by the WVHA and, beside the audit of the received assets, negotiations with several other Supreme Reich Offices as for instance the Reich Finance Ministry and the Reich Bank, had to be conducted for the purpose of assuming title to these assets.
It will be the object of the evidence of the defense to establish in detail the participation of the defendant Oswald Pohl in the wind up of this action and to examine the legal aspects resulting in this connection.
9. The prosecution also submitted extensive evidence in order to prove a participation of the defendant Oswald Pohl in the measures which led to the obliteration of the Warsaw ghetto. The evidence of the prosecution proves that the establishment of the Warsaw ghetto and its transformation into a concentration camp was in the first place the task of the Higher SS and Police Leader East. The documents submitted by the prosecution show, moreover, that the obliteration of the Warsaw ghetto was carried out by the director of the Reich Leader SS Himmler under the military supervision of the Higher SS and Police Leader East by the SS and Police Leader Warsaw, Juergen Stroop, who also submitted an extensive report on it. In this connection it should also be mentioned that in the proceedings before the International Military Tribunal the prosecution made an effort to hold the former Governor General Hans Frank directly responsible for the obliteration of the Warsaw ghetto, although the correspondence submitted now in this trial indisputably shows that neither the administration of the Government General nor the Governor General himself had anything to do with it, but that the obliteration of the Warsaw ghetto was an action which was carried out exclusively by the Security Police and the SD under the military direction of the competent local SS and police leaders, and with which neither the administration of the Government General nor that of the WVHA had anything to do.
The defense will consider it its task to ascertain by questioning the defendant Oswald Pohl himself whether the Reich Leader SS informed him in advance of the existing intentions and plans and whether his position within the organization of the SS would have given him the possibility or power to prevent the obliteration.
10. The defendant Oswald Pohl moreover is accused of being particularly responsible for the execution of the so-called euthanasia program in the concentration camps. This program, which was executed in the concentration camps under designation "14 f 13", was initiated by a decree of Hitler of 1 September 1939. In this decree Reich Leader [Reichsleiter] Bouhler and the 'later Reich Commissioner for Public Health, Dr. Karl Brandt, were ordered "under their responsibility, to extend the authority of physicians to be appointed individually, in a manner that patients who, to the best of human knowledge, are incurable, can be granted the euthanasia, the prerequisite being a most discerning evaluation of their condition." The evidence in the proceedings before Military Tribunal I has shown that this program was discontinued again in autumn 1941, due to numerous letters of protest, above all from dignitaries of the churches.
The rest of evidence submitted by the defense in this trial deals with the period before 3 March 1942, that is, a period in which the concentration camps were not yet included as Amtsgruppe D in the WVHA with a time limit for the duration of the war and with a view to the fulfillment of certain tasks in connection with the labor supply and the conduct of the war. It will be the task of the defense to ascertain in detail whether and what the defendant Oswald Pohl learned about the measures connected with this count of the indictment.
Count Four-Membership in Criminal Organizations
In this count the defendant Oswald Pohl is accused of membership in the SS, which has been declared a criminal organization by verdict of the International Military Tribunal. In the presentation of evidence on this count, opportunity will be given to observe the career of the defendant, and to show the reasons which induced him as a paymaster official in the navy, to become a member of the National Socialist Party, and what circumstances led him to leave the navy in 1934 and to take over a high office for the purpose of building up the SS administration.
Your Honor, I would like to add at this time that the main point of defense in the case of Oswald Pohl is based on the examination of the defendant Oswald Pohl himself at the witness stand. That, furthermore, I would like to start presentation of evidence in the examination of the defendant Oswald Pohl, and I would also like to call a few other witnesses with permission of this Tribunal after his
C. Opening Statement for Defendant Georg Loerner (10)
D. HAENSEL: I consider it my duty to show you in a few brief words the trend to be adhered to in the defense of Georg Loerner.
The greatest essayist, Lord Macaulay was of the opinion that the history of the world was a trial, in which the past is brought to trial before the present. The Nuernberg trials, beginning with the war crimes trial before the International Military Tribunal, are not intended to be trials in this sense, but real criminal proceedings, because they sentence people to punishment. The proceedings and the manner in which the law is applied, should therefore be no different from that of a normal case, where the particular deed of one or several people is to be judged by the laws recognized as legally binding for all.
"Some 20 broken men are sitting in the dock", said Robert H. Jackson, Chief Prosecutor for the United States in his opening speech on 21 November 1945. "Taken individually, their fate is of little account. But as the defendants represent the evil forces which for a long time to come will linger in the world, even when they have become dust, this trial is therefore of much importance."
As in the case of the IMT trial, the following results from the reasons and the evidence submitted by the prosecution: More has been submitted than is perhaps necessary for a direct basis for a verdict of guilt for the individual defendants, because the "evil forces" are behind the defendants, and their ominous actions must be revealed and rendered harmless together with the defendants.
In the IMT trial the prosecution accused Rosenberg, for instance of breeding a false ideology in the people by his kind of philosophy which had psychologically prepared them for aggressive war. Therefore the defense wanted to develop all this pseudo-philosophy and systematically to justify it as neo-romanticism, as a so-called modern sprout on the tree of knowledge. Lord Justice Lawrence rejected these attempts by declaring that Rosenberg was not brought before the court for his ideas, but because of his deeds, not because of his doctrine, but for its practical application.
Thus the judge averted the danger, which was to be found in the reasons for the indictment of the first trial, and which has again become almost more clearly discernible in this trial. This danger lies in the fact that a judgment of history is formed by the prosecution in this particular case versus Pohl and others, a judgment on events which have become historical, pronounced by means of criminal proceeding against individuals. But both trials are on quite a different level and should be kept apart, otherwise the criminal case becomes a showcase, one not in the sense of consciously defeating the ends of the law, but in the sense of a verdict which has jurisdiction over the body and soul of certain persons, but which aims at the impersonal factors, such as the "evil forces", quoted by Robert H. Jackson. The difference between this historical trial and criminal proceedings is the fact that those people thus acting are held responsible to history for the evil forces operating through them; whereas in criminal proceedings, circumstances permitting, such "evil forces" can lessen or even exclude the responsibility.
The prosecution endeavors to prove the enormous guilt of the defendants, by presenting for instance all the horror-evoking events, connected with the concentration camps. The task of the defense as opposed to this is summarized in a brief sentence: It must not attempt only to justify these horrible events as such, but merely to discuss to what extent the consciously responsible guilty behavior of the defendants contributed to these events.
The extent and the number of the victims is of decisive importance for the historical method of approach. On closer and more penetrating consideration the following apparently strange result ensues for the individual whose particular share in the guilt is to be determined here. The individual guilt does not increase in any mathematical progression with the number of victims mentioned in this trial. One murder suffices to have a person's life legally delivered to the executioner. But if one speaks of the murder of millions of people, forces are set in motion, and conceptions are aroused in us, which suddenly overshadow the individual guilt, and remind us that evil forces and a destiny exist which surpass the power of the individual, and into which we are all forced.
In the opening speech on 8 April 1947, one of the prosecution cried (German Tr. p. 55) "It is literally impossible to comprehend the enormity of the crimes committed in Auschwitz, Treblinka, and Majdanek etc." Certainly this is correct, but the prosecutor failed to see that in doing so he had wandered from the prosecution's sphere of arguments to that of the defense. These events can no longer be understood, by any of us. But did the defendants understand them? Did the defendant whom I represent understand them or could he understand them? Could he have been so involved as to be made personally coresponsible?
Posterity working on a psychological basis will confirm with great interest that the prosecutor did not add any legal argument to the phrase just quoted by me, for one cannot add to it, but continued, "We will show a film in this respect in support of the Tribunal which shows the warehouses of these death camps filled with clothes, shoes, spectacles, and bales of human hair." The logic is simply disconnected. The ratio, the power of consideration fails, and we can only have recourse to this series of apocalyptical pictures which were burnt into our memory. I shall never forget the shorn human hair mentioned above, and the individual features of the victims, who in the suffering they have overcome, already attain what we imagine to be transcendental sublime greatness, completely raised above this valley of misery. But I was never far distant from the bridge which led from the hell of these events to that, may I say, bourgeois narrow mindedness of my client the defendant, who went to his work in the morning, to lunch at noon, and in the evening to his family, to wife and children; and who was absolutely incapable of having such a vision or the idea of such a vision.
I am, however, fortunate to be able to refer not only to the judgments of eminent former courts, but from the reasons for the verdict in the Milch Case (case No. 2) we know the principles upon which the High Tribunal, which will pass judgment in this case, based its decision in the Milch case and will, therefore, presumably do the same in the present case.
I take it from this judgment that for us it is a matter of proving that the defendant did not give orders to commit crimes against the laws of war, against humanity, that he did not originate these crimes; that he had no knowledge of such acts, knowledge by which he failed to prevent these acts having the power to do so. This is my aim.
If you want to make the acquaintance of the personality of Georg Loerner then you will enter the simple, bourgeois, German atmosphere. Georg Loerner was nineteen years old when he fought in the First World War. He was severely injured, and it took a few years in order to learn how to walk again. He had a severe injury in the joint of his knees. His father was a locksmith. The business however, turned into a small factory. That is the picture of his German life at that time, suddenly again slowed down through the time after the war, the inflation. Georg Loerner and his brother, Hans, were unable to carry on their business as a result of the inflation and the deflation, and they became bankrupt. Then they had certain bourgeois demands, and it was impossible for them to carry on in their business, and there was one thing left for them: the SS the SS which was increasing its membership at that time, and which tried to obtain organizers in its ranks. It used people who appeared reliable and efficient, and it tried to get such people into its administrative organization in order to put them to a good use.
That is how Georg Loerner began, and he went along, and he grew along, and he rose along in the ever increasing Waffen SS, and finally an organizational genius like Pohl gave him a position and a future in the newly created WVHA as office head (Amtschef).
We shall have to explain that a man like Loerner did not know anything about the things which took place within the inflationally built up structure of the WVHA, this main office which had been newly organized, and that he only knew of the things that happened to a very small extent. The organization which had been established was organized in such a way that no one could see further than the particular task he was assigned to.
When we think quietly about all these things, we hall always think of the criminal concepts of Hitler's with horror. However, his organizational ability cannot be doubted. This art of organizing had its effects on the men who were working under him, of whom Pohl is one. We have to discuss a number of detailed points on the subject. My colleagues have already, for their individual clients, given a resume of the various 521 documents which have been submitted by the prosecution with reference to these defendants. Now, I, on my part also, want to make another statement. That is, I want to give an approximate idea of the monstrous amount of work which was being carried out within this giant complex of the WVHA. We would not only have to present the 21 volumes which we have here, but one thousand volumes in order to give an average of the working time there; we could see then, that the conditions which prevailed in the concentration camps could not come to the knowledge of an active office head like Georg Loerner because he had so much work to do within his own field of work that he could not possibly see into these things which he was not directly concerned with.
Therefore, on the one hand, I shall try to describe to you just what the field of work of such a man included and then I shall have to show just how he tried to perform this work, and furthermore if he had any time left at all to look beyond his small field of responsibility. I shall not deal with the subjects which my colleagues have discussed in detail, above all with the Action Reinhardt, and with surprising lack of knowledge about these incidents. Above all I shall have one subject which perhaps will concern us most intensely, and that is the question of the extent of Georg Loerner's activity as Oswald Pohl's deputy. We believe we will be able to assume that he was only a formal deputy, and I believe that we shall be able to put before the Tribunal decisive material to that effect. In the verdict of the Tribunal in the Erhard Milch Case the old proverb was applied, "Mitgegangen, mitgefangen, mitgehangen" which means in English, "Once you're in it, you can't slip out of it with impunity". Georg Loerner was "in it". However, he did not go along with them.
In order to remain informed he was perhaps located very far in the background; however, from his position in the background he was not able to overlook the things which took place within the huge field of task of the WVHA. He was completely in the shadow of Oswald Pohl, and even if the shadow may somewhat darken the picture of this man, then it will be our duty to show in our evidence that we can put Georg Loerner into the proper light so that we can again recognize him as he is. The basis of this character is that of a simple, honest man, yes, one could even say that of a "petit bourgeois" whom fate threw into a time which he could not tackle.
D. Opening Statement for Defendant Pook (11)
DR. RATZ: 1. Defendant Dr. Hermann Pook is a dentist by profession. He was employed as dentist by the office D III of the WVHA (Economic and Administrative Main Office) and is charged in the indictment in his capacity as dentist. In view of the multitude of serious accusations and incriminating evidence compiled by the prosecution against the defendants, the indictment against defendant Hermann Pook appears to be a trifling matter. The indictment contains only one sentence which involves this defendant who is designated as chief dental surgeon of the WVHA, "Defendant Hermann Pook was entrusted with the dental care of concentration camp inmates" and in the opening statement of the prosecution too he is mentioned only in two sentences "Defendant Pook was chief dental surgeon in office D III, all dental surgeons of concentration camps were subordinate to him. One of their tasks was the removal of gold teeth from deceased prisoners", and, "Defendant Pook was chief of the dentists who were supervising the extractions of gold teeth of corpses in all concentration camps by authority of the WVHA". Notwithstanding, I am far from adhering to an illusion with regard to the severity of the accusation against this defendant too. In clear and concise formulation the standpoint of the prosecuting authority is presumably the following: Defendant Hermann Pook is accused by reason of his responsible position in the field of dental surgery, to have contributed in a criminal manner to the "institution for violence, wholesale crime, and human vileness" as the prosecution describes the system of concentration camps.
2. In order to clarify the responsibility according to criminal law of defendant Hermann Pook it is necessary in the first in stance to define his official position. This will show the following: The subordination for a dental surgeon in the Waffen SS as well as in the army was threefold as far as the health service was concerned, he was subordinate to the physician of the unit; in all matters relating to discipline he was subordinate to the commander of the unit; and professionally he was subordinate to the leading dental surgeon of the superior association.
He could, therefore, receive orders from three different offices, and he was responsible to three different offices. If one of these offices gave an order to the dentist, this same office was, of course, responsible for the order given and not the other two offices.
The leading dental surgeon of the superior association on his part was likewise responsible to three different offices. He had a separate superior on each field: medical, disciplinary, and professional.
Dr. Hermann Pook was the leading dental surgeon of office D III.
What does the position of leading dental surgeon of the Waffen SS entail?
The main office of the entire dental service of the Waffen SS was office XIV (Dental Service) in the office group D of the Operational Main Office (Medical Service of the Waffen SS). This office XIV was competent and responsible for the dental service throughout the SS, not only within the sphere of the Operational Main Office, but also for the action spheres of the other main offices of the SS, therefore also for the sphere of the WVHA. He had to attend to the installation and staffing of dental clinics as well as to the supply of the necessary materials and medical supplies, and besides he had to attend to the professional supervision of dentists and dentists' personnel.
Owing to the expansion of the dental service of the Waffen SS during the war it became necessary to create the position of leading dental surgeons. This was an intermediate instance which in the case of larger units, such as divisions supervised the dentists employed, in order to relieve the central instance, office XIV.
After the Inspectorate of the Concentration Camps was incorporated to the WVHA as Office Group D, it became necessary to create also in office D III (medical service of the concentration camps) the position of a leading dental surgeon as intermediate instance for the supervision of the camp dentists and as professional adviser to the superintending physician and chief of office Dr. Lolling. The defendant Hermann Pook held this position since the end of 1943, being professionally subordinate to office XIV (dental service of the Waffen SS) as every other leading dental surgeon, and receiving therefrom his orders and instructions concerning the dental professional field. It is not merely to dispute words if, contrary to the statement of the prosecution, it is emphasized that defendant Hermann Pook was not chief dental surgeon of the WVHA. There was no chief dental surgeon in the whole of the Waffen SS. A chief dental surgeon, i.e., a dentist with independent authority to direct subordinated dentists was not necessary and would have been in contradiction to the idea of a centralized organization of the dental service of the Waffen SS. Details will show that Hermann Pook, as leading dentist of Lolling, had no real authority to act independently, especially that he could not give any independent orders to camp dentists, nor did he ever do so.
It would be foolish on my part if I would expect to be able to exculpate by this evidence alone defendant Hermann Pook for ill-treatments or other atrocities which the camp dentists are alleged to have committed on prisoners, because after all it was Pook's duty as leading dental surgeon to exercise adequate professional supervision over the dentists. However, there is a marked difference whether responsibility arises from the position of chief, who acts independently and is generally responsible for his subordinates, or merely from the position of a supervising officer in the professional-technical field. Furthermore the accusation against Hermann Pook does obviously not stress particularly dental ill-treatment committed on living prisoners, but concerns the removal of gold teeth from corpses of prisoners. In this connection it is of the greatest importance to realize that Pook was merely leading dentist and as such only had to supervise the camp dentists in a professional-technical manner. A double concept results therefrom: (a) He was not in a position to give orders for the removal of gold teeth from deceased prisoners (it is a fact that he actually never gave such an order); and (b) The order issued to the camp dentists which reached them either through medical service or official channels, went actually beyond the professional sphere of influence of the defendant.
3. Defendant Hermann Pook does not know to this day what kind of orders have been given for the removal of gold teeth from deceased prisoners, especially not which office issued them and when. He himself never has given such an order, nor has he supervised the removal. What he does know and already knew during his activity in office D III is, that by way of the camp administration such gold came from the camps and was passed on by administrative channels viz, not by office D III. He learned about it through the monthly reports of the camp dentists which he forwarded to office XIV (dental service). However, the quantities of gold mentioned therein were so small that it seems out of the question and never occurred to him that the gold did not come of such inmates only who died a natural death. In the further course of proceedings I will have to state that the removal of gold teeth of prisoners who died a natural death, does not constitute a criminal action at all. As early as in 1925 for instance there were lively debates in German dental-publications with regard to the necessity and suitability of such a measure. Already then distinguished German dentists gave lively support to such a measure.
4. The evidence concerning the activity of the defendant in office D III will show that Pook in fact was just an intermediate office of the dental administration and nothing else. The following were his principal official duties: to review the monthly work and personnel reports, which the camp dentists submitted, and to pass them on to office XIV; to direct to office XIV the monthly requests for supplies and medicines, which were sent in by the chiefs of the dental clinics, to examine the applications for artificial teeth for prisoners submitted by the camp dentists and finally to forward the so-called gold-books to office XIV for examination. This will give us an insight at the same time of the principles governing dental treatment of prisoners; in the monthly requests for material and medical supplies there, no difference whatsoever was made between prisoners and members of the SS.
Every dental clinic had to keep a separate gold account on the gold for dental purposes received from office XIV for teeth repairs and used by the dentists, which was carefully examined-by office XIV and later on by Pook himself. The result of this examination was recorded in the personal file of the dentists. An additional important task of Dr. Pook was the examination of bills of civilian dentists for the dental treatment of prisoners who worked in out stations and who, having no dental clinic in their camp, could not be treated by a camp dentist.
What purport would have had all these activities of Dr. Pook if the point of view would have been, that for the dentist the inmate in the concentration camp is merely a subject for cruel tormenting and lucrative gold production?
5. Dr. Pook was leading dental surgeon in the office D III with Dr. Lolling, the head of the medical service for concentration camps. I do not think that it can be seriously asserted that Dr. Pook, who was a dental surgeon and not a doctor, had been Lolling's deputy and therefore, or for any other reason, was responsible in the eyes of criminal law, for this man's actions. I shall, however, state and prove that Dr. Pook was not Lolling's deputy but that Lolling was represented by a doctor, if unable to attend or act himself, furthermore that Dr. Pook stood neither in any official nor personal relations to Lolling, which exceeded the essential official contact in dental matters, and that in the summer of 1944 Pook applied for a transfer from office D III on account of his strained relations with Lolling.
To complete the picture it will have to be proved what else Dr. Pook's work entailed. It will be seen that his activity in the office with Dr. Lolling only took up the lesser part of the day and that, for the rest as first dental surgeon of the Station Dental Post Oranienburg, he had to cope with a considerable dental practice every day, and that he devoted the rest of the day and the remainder of his strength to his own private practice in Berlin-Lichterfelde.
6. Over and above his responsibility for his own actions and for his department, the indictment attempts to hold the defendant responsible for collective actions perpetrated by other persons or with other persons. This is done on two assumptions: (a) because all defendants were essentially connected with concentration camps, whose existence and working in itself meant murders, atrocities, tortures, enslavement, and other inhuman acts (indictment), (b) because all defendants in agreement with each other intentionally and deliberately for a common purpose have committed war crimes and crimes against humanity, so that they are personally responsible for their own actions and for all actions perpetrated by persons in pursuance of the common purpose (indictment).
To (a), it will have to be stated that the establishment of concentration camps as such is to be attributed neither to the defendants nor to the National Socialist regime, furthermore, that one cannot get away from the fact that the concentration camps of the Hitler regime had a legal foundation, moreover, that it would be going far from historical truth to maintain that these concentration camps from the very beginning, fundamentally and in general were conducted on criminal and bestial lines; furthermore it will have to be stated that not everything, caused by the growing hardships and necessities of war in the concentration camps, can be considered today as individual criminal guilt, and finally that the insane mass crimes, which actually happened then in the concentration camps, cannot be summarily attributed to each defendant. Insofar as the conditions in the concentration camps developed into crime, they were carefully and cunningly kept secret from everyone not directly concerned. It would mean underrating the intelligence of the system, to believe that at least in the WVHA everyone working there must have had an insight into all or part of what the accusation consists of today. Nothing would be more unjust than to assume without positive evidence a knowledge of the committed crimes in the case of each defendant, thus too of the defendant Hermann Pook, and to declare him guilty and to sentence him on the basis of such hypothetical knowledge.
The defendant Hermann Pook although he worked in office D III, knew as little and as much of the criminal conditions and actions in the concentration camps as every average German at the time. Perhaps that seems incredible, but it will be proved just as the further fact that the defendant Hermann Pook never took part in conferences of the office chiefs or in other conferences of the office group D III, furthermore, that from the men sitting in the prisoners' dock with him, he knew only two personally, and even these only slightly, others he knew only from seeing them occasionally. However, most of them he did not even know by name, so for this reason alone the assumption of a conspiracy must be dropped with regard to the defendant Hermann Pook, that very defendant who only towards the end of 1943 was transferred to the office D
In view of the enormous quantity and seriousness of the committed crimes the prosecution has perhaps the comprehensible desire to prove as simply as possible the responsibility of the accused men, by saying: The defendant who held a post in the central administration of the concentration camps knew about this and that; at least his knowledge can be assumed, or at any rate he should have known about it, consequently he is to be held responsible, and therefore he is to be considered guilty of the committed crimes. The same tendency can be found in the Control Council Law No. 10, which not only in a manner as general as possible established summaries of facts in regard to criminal law, but which in various points also seems to think in terms of a kind of automatic responsibility in the eyes of criminal law. Here looms the serious danger that, by a too generous treatment of the question of guilt, the general principles of penal law as they are envisaged in the penal codes of all cultured nations (indictment) are violated. On account of this danger, I may be permitted now to make in short some legal expositions, which will indicate which fundamental lines are followed by me in my defense, also their legal aspect.
1. The Control Council Law No. 10, which bears the heading "Punishment of persons guilty of war crimes, crimes against peace and against humanity," constitutes a big synthesis of political power and of law. It is an authoritative decision pronounced by the victors, whereby the facts for what is considered to be a crime against international law are established furthermore, whereby the individual responsibility of statesmen, of officials, and of soldiers is established and which finally establishes the competence of the Allied tribunals. By that, many of the customary conceptions about international law, are done away with and something new is created against which it would be entirely senseless to fight in the present trials. But at the same time, the victors submitted to the law, by granting legal proceedings to the persons accused of such crimes. Now this is done with a double aim: One wishes to treat those accused of crimes against the international rules of law, humanity, and ethics, according to these very rules and not according to political power and political interest, but also: The war crimes trials and also this trial have a much bigger task to fulfill than to mete out legal retribution in the individual case; the verdict should be a convincing contribution to a revival of the feeling of legal responsibility and the legal conscience of all nations.
2. The carrying through of legal proceedings, however, would be entirely meaningless if on the one hand factual evidence were admitted for the defendants, but on the other hand they were deprived of the possibilities to make legal depositions based upon the so far customary conception of penal law. Obviously it is not the purpose of the Control Council Law No. 10 to create something new with respect to the examination of individual responsibility of each defendant in the eyes of criminal law, it does not aim at breaking with the principles of the past in this respect but it aims at decisions about the guilt of each defendant bed on the generally applied legal principles, existent already before the Control Council Law No. 10.
A criminal culpability according to these principles can only be affirmed if the circumstance of knowledge and the circumstance of will are existent; ignorance and error therefore exclude an intentional criminal culpability in the same way as does involuntary action. The knowledge, moreover, must include the knowledge of the prohibited nature of the action, the perpetrator must also know that his action is against a rule, that it is illegal and prohibited. If the Reich court in permanent administration of justice declared the error in the eyes of criminal law as irrelevant and, in the question of guilty or not guilty only considers the error outside criminal law, I, with my point of view, am in no way in contradiction thereto. In my opinion no defendant can use the excuse that he did not know the laws of the German penal code, as far as the knowledge of the articles of the German penal code is not concerned, but rather the consciousness of the violation of international law, proof of such consciousness cannot be waived for the simple reason that no international law code is in existence which defines the summaries of facts of international crimes.
These considerations will undoubtedly apply to every defendant in this trial. In the case of the defendant Hermann Pook, for instance, the following questions must be decided in accordance with these considerations: Can he legally be punished solely on the basis of the facts that he was knowingly employed in the central administration of the concentration camps; or for the reason that he knew that the inmates of the concentration camps had to work; or because he knew, that the gold was removed from the dentures of deceased inmates?
3. The problem of the consciousness of illegality leads to the problem of illegality itself.
Here I represent the following point of view: Illegal is not only what constitutes the facts of a case in the technical sense, as say, the facts of a case of the German penal code. The thesis is also rejected that only the state may determine what is right and wrong: what conforms with its purpose and its interests is right, and what is detrimental to the interests of the state is wrong. This view by the way, is no National Socialist invention, but is as old as the philosophy of state and law itself. The German jurist, Otto Gierke, already has said decades ago concerning this subject: "The high name of the law would in case of such an interpretation right is what the state proclaims to be right only reserve the purpose of veiling the bare fact that among men there exists no other order than the might of the strong over the weaker." There exists an ethical world order which supersedes every national conception of right and wrong, there is a legal conscience of nations and an unwritten international law (common law of nations) to which every individual and every state is subordinate in peace and in war in their actions.
What is contrary to law in the individual case, that again is decided by the judge according to his estimate and his standards, according not only to the opinion of his time but also of his people; he decides accordingly what his people accept as worthy in their lives and what they recognize as such. One can be so bold as to state then: Right and wrong is, even if one acknowledges the existence of a divine idea of right, nevertheless in its last analysis a political question. This becomes particularly obvious in wartime when the conceptions of right of the parties waging not diverge hopelessly, wherein not only the reason of state but also especially the "necessite de la guerre" plays an important part. I do not believe that the defendant Hermann Pook will be seriously held responsible for the medical experiments in the concentration camps and the so-called slave labor, but I wish to point out that just on this point particularly with respect to these two spheres, the distinction between right and wrong is not at all unequivocal and clear, this applies even more so to the setting up of concentration camps as such.
4. To this must be added that not every illegal act in itself is punishable under criminal law. Whoever violates a distinct law of nations, whether it arises from an international agreement or "out of custom established among civilized nations, out of the laws of humanity and the demands of the public conscience," is only then responsible in the eyes of criminal law if a genuine "jus strictum" (strictly defined law) is involved. In other words, not a must-precept or a recommendation which the parties to the agreement have given each other for their national legislation. An infraction of the rules of equity is since time immemorial not criminally punishable, for the rules of equity exist rather in the soul of the people and in the perception of the judge.
The question of the jus strictum leads at the same time right back to the question of criminal responsibility. The Control Council Law gives fact cases which can be regarded as jus strictum only insofar as they are in conformity with fact cases of the national German penal code. It would be contrary to logic as well as to the generally accepted principles of modern penal law if one were to assume for oneself the right of defining the existence of say, an "inhumane act," because an "inhumane act" is a word for a moral quality or lack of quality, and not an objective case founded on facts. Furthermore, it would again be contrary to ethics and generally accepted legal principles appertaining to criminal law if today one were to find somebody guilty in retrospect because he has violated a law which at the time of the perpetration of the act was not even in existence, not to speak of being punishable. On the contrary, perhaps the act which today is unlawful and punishable was at that time explicitly ordered by the state.
5. At this time I must also discuss the question of the legitimate order by a superior.
Already from the Roman law to the modern law of today of all civilized countries a legitimate order by a superior exempts the perpetrator from guilt. He whose will is bound by a valid order is not legally responsible in the eyes of criminal law, because the will of the one who gives the order supersedes the will of the obeying. If the order is unlawful, criminal, and appears so to the obeying party, but only then responsibility in the eyes of criminal law of the obeying party can be considered. Otherwise as a matter of fairness and humanity the duty of a soldier to obey must be respected. The defendant Hermann Pook, too, was a soldier and was subject to the provisions of the German Military Criminal Code. Of course, one should not and must not attempt to justify every war crime by the fact that it was ordered from above, but on the other hand one cannot disregard the fact that as a general rule the soldier is entirely wrapped up in the army mentality and that with the increasing war hardships the confusion of the soldier also increases and his ability of moral criticism decreases. This is the reasoning of an ancient author.
When the Control Council Law No. 10 prescribes: The fact that a person acts under orders of his government or his superior does not absolve him of the responsibility for a crime; it can, however, be regarded as a mitigating circumstance, it is thereby unquestionably not intended that the subordinate is automatically responsible in the eyes of criminal law; this would be contrary to all legal principles. Obviously only the burden of proof is thereby put on the subordinate; it is up to him to prove to what extent he is not responsible; for instance, that he was unable to recognize the order as unlawful and criminal. If he cannot exonerate himself in accordance with general principles of law, the order by the superior can still be considered as mitigating circumstance.
The defendant Hermann Pook was drafted into the Waffen SS in 1940 and was transferred toward the end of 1943 to the office D III as leading dental surgeon. In both cases, therefore, he obeyed military orders. The defendant belonged to the Reiter SS [SS cavalry] which was explicitly absolved from criminal guilt by the International Military Tribunal in its verdict. He can only be sentenced if his guilt can be proved in actual and legal respect. It will not be possible for the Tribunal to base a sentence on an assumption, much less on a fiction of criminal culpability.
(2) These Prisoners were sent to Germany pursuant to a decree (Bei Nacht und Nebel by night and fog) which ordered their removal to Germany in greatest secrecy. See cases United State vs. Josef Altstoetter, et al., vol, III and United States vs. Ernst von Weizsaecker, et al., vol. XII, XIII. XIV. Back
(4) A considerable amount of material concerning the utilization of concentration camp inmates for medical experiments is published in the case of United States vs. Karl Brandt. et al., Vols, I and II. No selections from the arguments and evidence concerning medical experiments have been reproduced in this case. Back
Sources: The Avalon Project