I shall prove my point by cross-examining the accused Oswald POHL and the other accused, by examining the accused FRANK as a witness in the witness box, and by producing other witnesses and sworn statements to testify, among other things, to the character of the prisoner August FRANK, and to his general behavior, and to establish whether he, in accordance with his whole character, can be considered to have committed war crimes and crimes against humanity.
Apart from the three above-mentioned documents of the prosecution, FRANK is mentioned in none of the Document-Volumes in such a way that he personally could be suspected of having committed a crime. Therefore, only the charge of general conspiracy and participation remains which cannot, according to my conception which I have laid before you, lead to a sentence. The sole fact that the prisoner August FRANK mentioned only a few times altogether in a very large number of documents for the Prosecution contained in 20 document-volumes, and that none of the witnesses produced by the prosecution has made a statement damaging to him, proves prima facie that he was not connected with the crimes -- crimes which were certainly committed -in any way which could lead to his conviction for participation in those crimes. A different opinion would only be conceivable if the Anglo-American definition of "conspiracy" in its widest form were applied. This, however, would be contrary not only to article 6 of the Statute of the International Military Tribunal and to the opinion expressed in the reasons for the verdict of the IMT, but also to the axion of "nullum crimen sine lege", because no one could be punished in Germany even before 1933 for a crime which had been committed by another and which he himself had neither visualized nor desired to be committed.
For the defendant Hans Loerner, I will first refer to the statements which I have just made in defense of the defendant August Frank, insofar as conspiracy and participation are concerned.
These statements are even more applicable to the defendant Hans Loerner, as his rank and function in the WVHA was sub-ordinate to that of Frank. I shall prove that the defendant Hans Loerner first came into contact with the economy of the Waffen SS when the WVHA was set up. The Waffen SS had, however, a so-called open economy during the war, without restriction from above. The individual offices received their money either directly from the Reich Finance Minister or drew it directly from the Reichsbank Offices, Field Cashiers and later the Wehrmacht Head Finance Office. All Office Heads in the WVHA and all Administrative Heads of the Main Offices were their own economy experts. They were able to cover all expenses caused by the War to their full extent and were fully responsible for them. Therefore Hans Loerner, as Head of Office A-I, had no influence on the expenditure of money. The expenditures were checked by the Supreme Auditing Court of the German Reich. All this shows that the defendant Hans Loerner had a really unimportant position when he administered the economy of the Waffen SS.
The economy of the Waffen SS had nothing to do with the industrial plants. Office A-I had no influence on the amount paid to prisoners employed in industry. It was interested only in so far as these payments, in accordance with the Reich Economy Regulations, had to be paid directly into the National Treasury by the Banks which received them.
In answer to the individual charges which were made against the defendant, Hans Loerner in the Opening Statement of the Prosecution, I shall prove the following:
1.) When working in the financing of the Ahnenerbe -Wehrwissenschaftliches - Institute Hans Loerner had no knowledge of the criminal activity of this Institute.
In this purely economic-technical activity in this financing, with means provided by the Waffen SS, Hans Loerner had no opportunity in the course of his duty through which he could have gained knowledge of the criminal activities of the Institute.
2.) He had no connection whatsoever with the socalled Reinhardt-Action and the Reinhardt-Fund. in discussions which he had with the Supreme Auditing Court and with the National Ministry of Finance, this subject was never mentioned to him.
I will provide proof for this in the cross-examination of the defendant Oswald Pohl, through the direct examination of the defendants August Frank and Hans Loerner in the witness stand, and in the examination of other co-defendants in the cross-examination. I will also bring witnesses and affidavits which will show the following:
1) That the defendant Hans Loerner, through his whole personality, does not come into question as a perpetrator or a participant in War Crimes or Crimes against Humanity;
2) that he carried out purely administrative activities in the WVHA, which had no connection with the treatment of Concentration Camp Inmates; that, in fact, he was limited to purely tropp administration activities for the Waffen SS and the Allgemeine SS. Insofar as the prosecution believes it has found a connection between him and the Concentration Camp-Complex, it is concerned with the fact that he took certain economic measures which could not possibly be called participation in War Crimes or in Crimes against Humanity.
Your Honor, in connection with this, I would like to suggest the following with reference to the defendant August Frank. With reference to a decision which was decided upon the International Military Tribunal and this Tribunal, I would appreciate it if the defendant August Frank could be dismissed from the Tribunal tomorrow morning so that I can carry out his personal examination. That is, if he could be excused, we could proceed with further opening speeches. Tribunal Number I has agreed to such an application made by Dr. Servatius for Karl Brandt.
THE PRESIDENT: Is it suggested that the defendant Frank appear as a witness in Tribunal I tomorrow morning?
DR. RAUSCHENBACH: No, Your Honor, that is misunderunderstanding. The defendant August Frank is not to appear as a witness before Tribunal No. I, but I want to put him in the witness stand here, and I wish to use tomorrow morning in order to prepare myself for my examination. That was agreed upon in Tribunal Number I with Karl Brandt.
THE PRESIDENT: You are merely asking leave that the be not present, that he be excused, and yourself also?
DR. RAUSCHENBACH: Yes, tomorrow morning.
THE PRESIDENT: Leave is granted.
Is anyone else ready to submit his opening statement?
DR. PRIBILLA: (Counsel for defendant Tschentsch): Your Honor, I do not know if my opening speech is already here in the translation. I have only three pages and a half, however which deal only with facts and evidence questions. If this Tribunal would be ready to listen to this translation, I would appreciate it very much, because at the time I am quite busy in Military Tribunal No. I, and I still have something to take care of up there.
THE PRESIDENT: We do not have your translation, but you may proceed, if you will speak slowly please for the assistance of the translators.
DR. PRIBILLA: "The German Police consisted of about 650,000 men including the fire and air raide police. The Waffen SS stationed in home territory comprised about 330,000 men. This part of the German Armed Forces, consisting of over 1,000,000 men, had an administration of its own which dealt with the entire victualling of these troops. Food, clothing and billets were the task of Office B of the WVHA. In this office, the defendant Tschentscher was in charge of the victualling department. The evidence of the defense will show that this responsible task was the exclusive competence of the defendant Tschentscher and demanded all his working capacity. The defense objects to the impression created by the prosecution before this court, i.e. that all offices of the WVHA were concerned mainly with the organization of concentration camps. As a matter of fact the troops and their administration were originally completely independent from the top organization "Verwaltungsamt SS" (Administrative Office of the SS) later "WVHA". The concentration camp organization already existed for a long time independently from other offices, with an administration of its own and the central office "Inspection of the Concentration Camps." The later incorporation of this central office as Amtsgruppe D into the WVHA did not change anything in the administrative organization and competence and meant - apart from some exceptions - that administrative tasks were not transferred to other offices already in existence. It is not contended that the figure mentioned of more than 1,000,000 soldiers whom Tschentscher supplied with victuals, also included about 20,000 concentration camp guards. This 2% of the total number of troops, however, did not mean a special unit for the man who was in charge of the central food supply, but they were part of the entire Waffen SS which had to be provided for. The defense will show that Tschentscher's activity comprised only in securing and preparing food supplies for the approximately 30 troop victualling depots (Truppenwirtschaftslager) all over Germany which were under him. The defendant Tschantscher did not have anything further to do with procuring, distributing and preparing food. With regard to the inmates of the concentration camps, the defense will prove that procuring their food was not Tschentscher's duty but that his tasks were restricted to the above mentioned troops.
This fact has already been shown by the statements of several witnesses in the previous course of the trial and further proof will be submitted. As securing food for the concentration camp inmates was not among Tschentscher's duties this meant that, in this field, he had no supervisory function with regard to procuring, distributing and preparing the food. The defense will show that the only case where Tschentscher - at Pohl's orders - checked the food situation in a certain concentration camp, he got this assignment for the very reason that he as an outsider not concerned, in any way, had nothing to do with the existing bad conditions and disputes. It will be clarified that Tschentscher, in this single case he dealt with, gave an opinion in favor of the inmates and saw to it that a large additional supply of food from troop stores was turned over to the respective concentration camp, as the solely competent offices had refused it.
"The defense will refute the presentation of the prosecution that Tschentscher was one of the oldest collaborators of Pohl, by giving the exact professional career of Tschentscher. It will be seen from this that up to 1 October 1943, Tschentscher was one of the innumerable small troop intendants and administrative officials, which in the sense of the prosecution cannot be called close collaborators of the supreme chief of administration.
Up to the day of joining the WVHA, Tschentscher was employed as an administrative official of military units in different places and the prosecution makes no charges against him during this period or for these activities. He joined the WVHA in the ordinary way under military orders and during the entire period Tschentscher was subject to military laws as a soldier. This refers also to the order for secrecy NO. 1 which will be submitted by defense counsel, prohibiting Tschentscher to look into matters not pertaining to his immediate sphere of work. The fact that Tschentscher nominally was the deputy of the co-defendant Georg Leerner does not affect the position. The defense will prove that he deputized for Georg Loerner merely in the capacity of chief of department B and that this was, in fact, hardly ever carried into effect except on one occasion when the latter was on leave in May 1944. It is not denied that Tschentscher knew that the concentration camps were part of the Organization of WVHA. It will be proved, however, that the execution of the tasks connected with this was restricted to a few other departments of the WVHA. Here secrecy was maintained particularly strictly which prevented a person in Tschentscher's position from gaining a closer insight. There was positively no supervisory duty which would only have been the case had the position been one of competence and subordination. Consequently, Tschentscher cannot be held responsible for the organization of the concentration camps.
The defense will begin with the interrogation of Tschentscher as witness for his own case and will then produce some of his co-workers as his witnessess. In the main, the evidence will be restricted to the above mentioned matters of Tschentscher's official competence and duties. Outside those matters in no single instances has the prosecution accused Tschentscher of any immediate criminal activities or produced any relative document bearing the signature of Tschentscher or addressed to him. As to his belonging to the circle of the SS in general, there was nothing done to show that Tschentscher had taken any part in any kind of planning.
Moreover, the Defense Counsel will prove that neither the position or the opinion of Tschentscher were important enough to have an influence on the Directing Staff of the SS. Tschentscher will be shown as a dutiful administrative official who believed that he was serving his native country by working for the military units. He became member of the SS considering it as nothing else but a soldier troop. His great circle of duties which he understood in this sense filled him to such an extent that he acknowledged no other kind later on.
THE PRESIDENT: Are there other counsel who after recess will be ready to make a statement?
(Assent was indicated by some of the defense counsel.)
THE PRESIDENT: Very well, we will recess for a few minutes.
(A recess was taken.)
THE MARSHAL: All persons in the court will find their seats.
The Tribunal is again in session.
DR. SCHMIDT (Attorney for the defendant Joseph Vogt): May it please the Tribunal, I don't think that the Tribunal has as yet received a copy of the translation of my opening statement. With the permission of the Tribunal, however, I am now ready in any case to start reading my opening speech.
THE PRESIDENT: Did I understand you to say you are ready; you will go ahead.
DR. SCHMIDT: Yes, Your Honor.
THE PRESIDENT: Very well.
May it please the Tribunal.
I In Count I figure 1) of the indictment, the defendant Joseph V o g t is accused of having participated in a common plan or conspiracy for the perpetration of War Crimes against Humanity as specified in the Control Council Law No. 10, Article II.
With reference to this count, I shall establish that the factual evidence of the conspiracy is lacking, both legally and actually.
The charges of the conspiracy finds no support in the law. The Contro. Council Law No. 10 to Article II of which the indictment expressly refers, contains no regulation, according to which a conspiracy for the perpetration of War Crimes or Crimes against Humanity would be punishable as an independent, punishable offense in itself. The conspiracy which is mentioned there is exclusively a conspiracy for the perpetration of Crimes against Peace. This restriction of the conception of the conspiracy is in accordance not only with the text and the purport of the Control Council Law No. 10, but also with the decision of the International Military Tribunal of 30 September and 1 October 1946, in which the charge which overstepped these bounds was expressly rejected.
But from a purely factual point of view there can be no question here of a common plan or a conspiracy. As chief of the Audit Department A IV of the WVHA, the authority of the defendant Joseph Vogt in relation to the other offices and departments of the WVHA, was precisely defined, both theoretically and practically. The presentation of the evidence will show that his conferences with the Chief of office A were concerned solely with his official activities in matters of auditing. Vogt was never asked to attend other conferences within the WVHA, on the financial affairs of the SS, concentration camp concerns, labor allocation of the prisoners or other economic matters. His official contacts with the other offices of the WVHA were restricted to the absolutely necessary; otherwise Vogt had no close personal contact with any of the leading functionaries of the WVHA. His office was always rather isolated in accordance with his special sphere of activity. This was shown when his office especially was the only branch of the WVHA to be transferred away from the main office of the WVHA in June 1943. The numerous documents submitted by the prosecution so far which are supposed to prove the crimes in the indictment, were unknown to Vogt until the present time, except for a few which contain nothing against him. The presentation of evidence will show that Vogt neither intentionally nor consciously participated in a common criminal plan. This then dispenses also factually with the conspiracy count of the indictment.
II.
In figure 2 count I of the indictment concerning the establishment of a common plan or a conspiracy, the prosecution had brought in the forms of participation contained in article II paragraph 2 of Control Council Law No. 10. But in contrast to the conception of conspiracy laid down in article II figure 1a of Control Council Law, No. 10, thus is not a question of independent facts of a criminal case, but merely different forms of participation. Therefore in order to establish guilt based upon these legal provisions, it would be necessary to prove the criminal participation of the defendant in a definite case of a particular crime. Such proof has not yet been submitted by the prosecution.
The defense will prove that the sphere of work and the activities of the defendant in office A IV of the WVHA, as well as in his former offices, had nothing to do with the incriminating actions set down in figure 3 count I of the indictment. Office A IV was mainly concerned with the formal and calculatory preliminary auditing of accounts of approximately 400 disbursement offices of the Waffen SS in the home districts. The final checking of the accounts of these finance offices was done by the Supreme Auditing Court of the German Reich. They alone were allowed to give technical directions to the defendant in his activities as a senior examiner and to supervise his activities as such. With the establishment of the WVHA in 1942, the preliminary examination of the accounts of the concentration camps finance offices was added to the task of the preliminary examinations of the accounts for these Armu Finance offices. The former had belonged hitherto to the sphere of activities of the preliminary examination office of the Main office "Budget and Building" (Haushalt und Bauten). As the presentation of evidence will prove, these preliminary examinations were not put into practice, as the representative of the Supreme Auditing Court abandoned them owing to difficulties caused by the war.
The defendant, therefore, has never actually carried out a preliminary examination of the accounts of the concentration camps finance offices. Furthermore, it will be proved that office A IV never had any control over the administration of the concentration camps.
Therefore the defendant can not be connected with the administration of the concentration camps, the allocation of labor, the food and accommodation, still less with the maltreatment and killing of prisoners in the concentration camps. Furthermore, the defendant Vogt has never visited a concentration camp.
III.
The defendant Vogt has been connected with the so-called "Action Reinhardt", because he also checked the account "R", when checking the finance office of the Garrison Administration of the Waffen SS at Lublin. The defense will show that the defendant was left in complete darkness regarding the "Action Reinhardt" when the chief of his office group gave his orders, and that he did not receive any information about this action in Lublin. The defendant only carried out the checking of the account R, because the money transactions made through this account had become a part of this finance office by their entry in the cash book of the garrison finance office Lublin, and he had orders to audit this finance office. In the course of this audit, the defendant was also shown a suit case with precious stones and jewellery as well as a building consisting of three rooms where clothing and shoes were stored. The audit carried out by the defendant was, however, not concerned with these valuables and textiles.
We shall show that the defendant was entirely credulous even after making the audit at Lublin. This already follows from the fact that in his audit report which he made his chief of his group after concluding the audit, he expressly objected to the sums being paid into the account "R", merely on the strength of a certificate of the higher SS and police leader Globocnik and not, as laid down in the finance office regulations, on the written authority of the owner from whom the money or the foreign currency had been taken away. That the defendant acted in good faith is proved also by the fact that after completing audit, he informed the commission of the Supreme Audit Court of the German Reich of the matter. Thus Globocnik's intention of completely eliminating the supreme audit court in the administrative handling of the action "Reinhardt" was at least partly defeated. In this connection I would particularly refer to document NO-725, Exhibit No. 481 as presented by the prosecution (Pohl's ordinance of 9 December 1943 on the administration of Jewish assets) and NO-059 Exhibit No. 488 (Globocnik's report of 5 January 1944 on the administrative handling of the action Reinhardt).
The evidence will show that Vogt neither knowingly nor intentionally participated in the action Reinhardt and is therefore not guilty on this count.
IV.
My above statement shows that also counts II and III of the indictment are not proved, which refer to the individual responsibility of all defendants in connection with the individual War Crimes and Crimes against Humanity. The prosecution could not show in their presentation of evidence that Vogt played a responsible part, according to criminal law, in one of the mentioned War Crimes or Crimes against Humanity.
V.
There only remains count IV of the indictment concerning membership of the SS as a criminal organization. In so far the defense will try to prove to the High Tribunal that the defendant Vogt had no knowledge of the criminal aims or actions of the SS, that his was just a mere membership based upon transfer of a civil Reich office to an office in the SS administration, and that therefore he is not covered by the jurisdiction applicable to the SS in the verdict of the International Military Tribunal.
DR. HAENSEL: Dr. Haensel for the defendant Georg Loerner. The translation of my speech has not been completed as yet, and with the permission of the Tribunal, and if Your Honor please, I shall read my speech slowly, i.e. in the same manner in which my colleagues did it.
THE PRESIDENT: Do you have a German copy of your opening?
DR. HAENSEL: The German copy is being translated. I have a few copies here but I think we can do without them.
THE PRESIDENT: The interpreters would like one so as to follow you in translating. Do you have a copy for the interpreters.
DR. HAENSEL: Because my colleagues have already submitted the legal aspects, I will be able to shorten my statement very much.
THE PRESIDENT: I notice it originally contained 23 pages, which frightenes the interpreters somewhat.
DR. HAENSEL: I believe that after we have heard so much here on the legal aspect of conspiracy in the addresses, the Tribunal might assume that we, the defense counsel, here, have also a conspiracy of our own. Therefore, it will not be necessary to refer again to Roman II - A, in detail.
THE PRESIDENT: I think we can remember those numbers now. The Tribunal will assume that the position which has been taken by one counsel as to the conspiracy will apply to all of you. You are all riding in the same boat.
DR. HAENSEL: That is correct, Your Honor, that is, provided that the conspiracy will not be directed against us, although, in this respect, we are actually in the same boat. I would request permission to omit these paragraphs from my speech.
THE PRESIDENT: We not only agree to that, we urge it.
DR. HAENSEL: In that case I would like to try, if the interpreters have enough patience, to start with the remainder of my statement in this way only. However, I am also prepared to begin my opening speech tomorrow morning.
THE PRESIDENT: The interpreters say, shoot. That is, go ahead.
DR. HAENSEL: With respect to the remaining articles which I have to shoot at here, I find myself in the situation of King Leonidas at Thermopylae, where he was threatened with the Persians having so many arrows that the sun would be darkened. Leonidas answered "Then shoot. We'll fight in the shadow." Therefore, I'll fight in the shadow which has been case by the arrows shot by my learned colleagues. I'll try to speak only of a special sector, which I have already treated with a more or less successful hypothesis, and that is the psychological.
A.
Your Honors, Legal Aspects 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 great 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 U.S.A. in his opening speech on *1 September 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 such importance."
As in the case of the I.M.T. trials, 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 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 I.M.T. 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 show case, 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; where as in criminal proceedings, circumstances permitting, such "evil forces" can lessen or even exclude the responsibility.
