AFTERNOON SESSION (The hearing reconvened at 1355 hours, 14 May 1947.)
THE MARSHAL: All persons in court will find seats. The Tribunal is again in session.
MR. ROBBINS: May it please the Tribunal, this morning the Tribunal requested that I investigate and report on the question raised by Dr. Heim for the defendant Hohberg, namely, the whereabouts of the witness Graf Schwerin von Krosigk. Dr. Heim said he was released from Nuernberg just before he was about to sign an affidavit for him. I have found that von Krosigk was brought to Nuernberg at the request of counsel for Karl Brandt, was brought here through the Defense Information Center, and was released from Nuernberg at the request of the counsel for Dr. Karl Brandt by the Defense Information Center. The prosecution has nothing whatever to do with his being brought to Nuernberg or his release. As far as I know, the prosecution did not even know that he was here, and I would point out to the defense counsel that this is an organization under the Tribunal and not under the prosecution, namely, the Defense Information Center.
The second matter is the matter of Dr. Paul Reuther. The defense counsel for the defendant Pook stated this morning that he had been interrogated by the prosecution without permission from him. I have determined that Reuther was brought here to Nuernberg at the request of the prosecution and at a later date the defendant requested him and requested permission to interrogate Reuther. I take it under those circumstances it is not necessary for us to clear through the defense counsel before we interrogate such a witness. In this case he was brought here first by the prosecution before he was requested by the defense counsel.
THE PRESIDENT: Well, it is a rather fine point. Was he used as a witness by the prosecution?
MR. ROBBINS: No, he was not.
THE PRESIDENT: Well, what is his status, is he a prosecution witness or a defense witness?
MR. ROBBINS: I take it he is a prosecution witness.
THE PRESIDENT: He wasn't used as such and he was ordered as a defense witness. I think as soon as he was approved as a witness for the defense and the defense interrogated him that thereafter he should have been interrogated only upon notice to the defense counsel. I get your point, that he was brought here by the prosecution, but nevertheless he was a defense witness. I think it would be better in any future cases where a witness has been approved as a defense witness that the defense attorney be notified of any proposed interrogatory.
Where is the witness von Krosigk now?
MR. ROBBINS: I am told that he is in Dachau. Mr. Waltena of the Defense Information Center, I believe, has all of the information as to his present whereabouts.
THE PRESIDENT: Well, the affidavit could be sent to him at Dachau to be executed there and returned to the defense counsel.
Dr. Heim, are you ready to proceed?
DR. HEIM (Counsel for the defendant Hohberg): Your Honors. An examination of the indictment against the defendant Dr. Hohberg shows that the indictment is not substantiated, as the legal basis and the basic facts are partly missing.
I propose therefore to declare the indictment against the defendant Dr. Hohberg as inadequate.
1) on legal grounds with regard to count I of the indictment, a conspiracy for the perpetration of war crimes and crimes against humanity.
2) On factual grounds with regard to counts II and III of the indictment, war crimes and crimes against humanity.
In order to justify my proposal I make the following statement: Count I. of the indictment charges the defendant Dr. Hohberg with participation in a common plan or a joint execution for the perpetration of war crimes against humanity, without any legal grounds for this being contained in the indictment. Nor does the Control Council Law No. 10, which forms the basis for the trial provide a legal support for the crime claimed by the prosecution.
This law does not contain any regulation, which qualifies a conspiracy for the perpetration of war crimes or crimes against humanity as punishable as a particular independent kind of crime. According to this regulation such a conspiracy is only punishable when its aim is the perpetration of a crime against peace. No charge of such a crime has been made however.
Article II 1a shows that the law only recognizes a crime against the peace. It states:
"Participation in a common plan or a joint conspiracy for the purpose of carrying out one of the above mentioned crimes".
These above mentioned crimes are only crimes against the peace contained in paragraph 1a.
No corresponding regulation with regard to a conspiracy for the perpetration of war crimes and crimes against humanity can be found in the law.
The International Military Tribunal, in its verdict, definitely rejected the indictment which went beyond this, with the following words (End of paragraph 6 of the verdict):"Not only conspiracy for the purpose of waging aggressive wars but also the conspiracy for the perpetration of war crimes and crimes against humanity come under count I of the indictment.
However, apart from the conspiracy of waging aggressive wars, the statute does not qualify and conspiracy as a particular crime."
Article 6 of the statute provides:
"Leaders, organisers, instigators and abettors participating in, conceiving or carrying out a common plan or combined conspiracy for the perpetration of of the above mentioned crimes, are responsible for actions which have been committed by any person in the perpetration of such a plan".
In the opinion of the Tribunal, these words do not add a particular new crime to those crimes already mentioned. These words are meant to establish the responsibility of such persons who take part in a common plan. The Tribunal will therefore disregard the accusations contained in count I of the indictment, that the defendants participated in a conspiracy to commit war crimes and crimes against humanity, and will only take into consideration the common plan of preparing and carrying out aggressive wars".
This legal interpretation is confirmed in the same way under figure 8 of the verdict of the International Military Tribunal.
"As already mentioned, the statute does not qualify every conspiracy as a particular crime but, only those connected with crimes against the peace and conspiracy as under article 6 (a)".
In this way the International Military Tribunal has made an unequivocal decision on the unclear composition of the statute. A similar regulation which may lead to doubt is no longer contained in the Control Council Law No. 10. The text of the law is clear and unmistakable. Under the main types of crimes mentioned in article II paragraph 1 crimes against peace, crimes against humanity, war crimes and crimes of membership of a criminal organization, the participation in a common plan on conspiracy is considered as a further independent crime only in connection with a crime against the peace under 1a. As already shown by the clear and systematic structure of the law, only certain forms of participation are collected in Article II, paragraph 2, which, however, exceed the conception of participation known hitherto.
The fact that no independent crime of conspiracy can be derived from the regulation in Article II paragraph 2d, which considers as punishable "The connection with the planning and the execution" of the crime contained in paragraph 1 is shown by the following remarks: "If the legislation had this intention, it would certainly have used the same wording as was used in paragraph 1 a, it would have used the far more clear and unmistakable terms "Common Design and Conspiracy" in this connection also. Moreover, we can see no sufficient reason for substituting the already established conception of conspiracy by another conception of the same substance and meaning. Besides, there is no basis for the assumption that the law, systematically and carefully prepared as it is, would fail in its logic by throwing in among the forms of "Participation" a now and especially important "Criminal Act" as such.
It is therefore to be concluded that Count I - Conspiracy to Commit War Crimes and Crimes against Humanity - has no legal basis in Control Council Law No. 10. The indictment must therefore be regarded as inadequate in this respect, without a re-examination in factual respect becoming necessary.
The second group of Counts of the indictment against the defendant Hohberg is inadequate for factual reasons.
These are Counts II and III of the indictment. Therein Dr. Hohberg is charged with having wilfully and knowingly committed War Crimes and Crimes against Humanity by being a principal in, an accomplice to, an instigator of and an abettor in, plans and interprises the object of which were War Crimes and Crimes against Humanity; also to have consented to, and having been connected with, such plans and enterprises.
In his opening statement the prosecutor declared that it was the meaning and purpose of this trial to call to account for the crimes as charged in the indictment, all those men who held leading positions within the SS or the SS-WVHA and who thereby organized and kept running the machinery by which the perpetration of said crimes only became possible. The prosecution has facilitated its task by simply proclaiming the opinion that every person who held a leading position in the SS or WVHA, is prima facie responsible for the crimes as charged in the indictment or at least must have been connected with them in a responsible position.
In accordance with this opinion, the prosecution has tried to ascribe to Dr. Hohberg all sorts of positions within the WVHA; it has called him an "executive assistant", a "member of Staff W" and last not least "Staff Office Chief W" an appointment which for the defendant Hohberg who has never been a member of the Party or the SS comes rather as a surprise, especially at the present time.
In spite of the abundance of documents offered by the prosecution, it still owes us the proof for its allegation that Hohberg has been active in a leading position within the WVHA, that as "Staff Office Chief W" he had "direct supervision over the directors of the German Economic Enterprises Ltd. (DWB)", that "all dealings - with the highest Party offices, Ministry departments and central authorities" were done through Dr. Hohberg. This must be mentioned, for the prosecution concludes from the alleged leading position of the defendant Dr. Hohberg in the WVHA, that this activity, too, was a contributory factor to the criminal effect, since the aims and policy of the organization are said to have had as its object War Crimes and Crimes against Humanity.
Even if we were to accept the allegation of the prosecution, -namely that Dr. Hohberg held a leading position within the WVHA, - the evidence offered in documents and statements of witnesses still would be far from proving that the defendant Hohberg can be held criminally responsible on account of this position of his.
For nobody will seriously deny that in the WVHA, and even in a leading position, there must have been activities other than those subject to criminal law even if one accepts the premise that the policy and the aims of this organization were criminal. An assumption of the contrary would lead to the conclusion that in the end every person who worked in the organization, - i.e. even the minor employee, even the typist of the chief and finally even the doorman, - were also to be held criminally responsible. Such a conclusion, however will not find a support in the law on which this trial is based, as it would mean a breach of the principle of individual guilt which governs all existing legal systems. Such a conclusion furthermore, would be bound to lead to mass convictions as its consequence. The Tribunal which wishes to pass a judgment based on justice, law and law codes, will therefore not be able to acquiesce in an argumentation based on purely formal and superficial characteristics, but is bound to demand that the argumentation should follow the principle that guilt under penal law is individual guilt and that each individual act is criminally answerable for itself.
The prosecution in its opening statement, although it has enumerated in detail the crimes for which Hohberg is indicted, has failed to show in the course of its argumentation which of the submitted documents it considers as proof of the criminal acts themselves.
It therefore appears useful to mention briefly the legal problems involved, with reference to the evidence offered by the prosecution:
1) Has the defendant Hohberg participated in the War Crimes alleged by the prosecution?
2) Were they committed in accordance with his directive or by his order?
3) If having knowledge of the alleged crimes, did he have the power or the possibility to prevent them or to stop them?
4) If so, did he omit to act and did he therefore become particeps criminis and accomplice?
Court No. II, Case No. 4.
It cannot and shall not be denied that cruelties and atrocities, experiments with humans and executions took place in the concentration camps; that a number of people were exterminated by the so-called Euthanasia; that Jews were dragged from the occupied territories and gassed in the concentration camps.
(1) With reference to the prosecution does not maintain (and there is also no proof of it) that the defendant himself took any active part in the perpetration of these crimes. The prosecution in the course of its evidence has both failed to show which documents it considers as proof of the participation of Dr. HOHBERG in those crimes, and failed to state which forms of participation in pursuance of Article II, Section 2, of the Control Council Law, it considers applicable. The self-denial of the prosecution in this respect is not just a coincidence, but it shows the opinion of the prosecution that the submitted documents regarding the defendant HOHBERG, and his activity in a leading position of the WVHA, - as proved by these documents in the opinion of the prosecution, - suppositions of the penalty clause of Article II, paragraph 2 d, of the Control Council Law. In the opinion of the prosecution, the connection with the plans for the crimes and their actual perpetration is established hereby. With this assumption, however, the prosecution transgresses by far the limits, even of the provisions of section 2, much as they extend the domain of the conception of participation. If used literally, the general term "to be connected with" gives an almost unlimited scope for the subsumption of the actual facts. In this respect, however, there must be certain limits unless one wants to carry the law ad absurdum. Just like any other form of participation, it is limited by the principle of the individual guilt and instrumentality; i.e. an action or activity can be considered as participation in a criminal effect only if, from an objective viewpoint, it is causal for this result and if subjectively and by his own determination the perpetration intended to bring about or help to cause this criminal effect by his action. The Court No. II, Case No. 4.prosecution has completely disregarded these two further requisites for participation, and consequently has furnished no pertinent evidence.
The prosecution has also produced no evidence to show that the defendant HOHBERG, be approving of the crimes with which he is charged, actually participated in them (Article II Count 2 c of Control Council Law No. 10) for a general consent does not always constitute an approval within the meaning of the law, but can only be considered as participation in a crime if such approval supports and furthers the chief perpetrators in their criminal intent. None of the documents submitted has proved that this is the case with the defendant HOHBERG. Even if one imputes that from a certain date onwards HOHBERG knew about the individual crimes, no conclusion can be drawn from this that he approved of them, and even less that he intended to help perpetrate them. The fact, as asserted by the prosecution, of his high-ranking position in the WVHA and the resultants activity constitute quite inappropriate proof of approval and intent to help perpetrate the crimes, because HOHBERG - a fact undisputed by the prosecution - was not only neither a member of the SS nor of the party, but he also successfully refused to acquire this membership.
(2) With reference to the prosecution was also unable to prove that the defendant was the author of these crimes, or that they were committed under his special direction or on his orders.
(3) With reference to the prosecution, moreover, could not prove that HOHBERG had any knowledge of the dreadful crimes. But even if he had known about all these crimes, he would have had neither the power nor the possibility to prevent or to check them. Dr. HOHBERG was neither a member of the party nor of the SS and he had no power of authority or command over members of the WVHA.
(4) With reference to, in view of this statement it is obvious that the defendant was never particeps criminis and participant in the crimes listed in counts II and III of the indictment.
For these reasons the charges in counts II and III cannot be Court No. II, Case No. 4.regarded as logically founded in the case of the defendant Dr. Hohberg.
If after the presentation of charges the Tribunal is not absolutely morally convinced of his guilt, then the protection of legal presumption of his innocence is of necessity guaranteed for the defendant. Even if the presentation of evidence by the prosecution results in an equal intimation of guilt and innocence, these results are to be interpreted in the sense of the innocence of the defendant. If the guilt of the defendant Dr. Hohberg has not effectively been proven conclusive, he cannot be sentenced, and the charges should be dismissed as inconclusive.
In accordance with my above statements, the aim of the defendant Dr. Hohberg's defense is now clearly defined. After all the prosecution documents with regard to the defendant Dr. Hohberg have proved inconclusive; it is then my task to deal with each document which the Prosecution considers evidence against the defendant Hohberg. By calling the defendant as witness in his own defense, with the help of witnesses and documents, I will prove, that
1) Dr. Hohberg did not occupy a leading position within the WVHA, but was employed as an economic inspector on the basis of a work contract and not a service contract,
2) his activities were not the cause of the criminal result,
3) the activities perpetrated and those arising from the documents in no way transgressed against an existing criminal regulation,
4) the defendant participated neither as a perpetrator nor as an accomplice in the crimes alleged and actually committed,
5) Dr. Hohberg also did not participate by consent in any crimes.
DR. RAUSCHENBACH (Attorney for the Defendants August Frank and Hans Loerner):
Mr. President, Your Honors, the indictment charges the defend Court No. II, Case No. 4.ant August FRANK with having participated in a mutual agreement or conspiracy for the commission of war crimes and crimes against humanity, according to Control Council Law No. 10, and with having committed such crimes himself.
The crimes cited by the Indictment include among others: financial support of the SS, establishment of concentration camps, slave labor, torture and murder of the prisoners, exploitation of concentration-camp prisoners for industry, provision of human guinea pigs for medical experiments, sterilization and castration, liquidation of Jews, illegal treatment of prisoners of war, etc. The Indictment charges all the accused with equal responsibility for the crimes, since it assumes that a conspiracy existed between the accused for the commission of these crimes, and regards the entire Economic and Administrative Main Office as one criminal body, within which each member bears as much responsibility for all the crimes of all the others as if he had committed them himself. Each sub-division of the Economic and Administrative Main Office is said to have made a definite contribution towards the commission of the crimes; in particular the Amtsgruppe A, which was directed for a certain period by the defendant August FRANK, is held responsible for the financial administration of the SS including the concentration camps, and was thus engaged in war crimes and crimes against humanity.
The prosecuting authority stated in its opening speech (page 95 of the German text): "The defendants all had considerable connections with the concentration camps, the very existence and function of which gave rise of necessity to murders, atrocities, torture, slavery and other inhuman practices," and on page 96: "The responsibility for the crimes committed in the concentration camps cannot be limited only to Amtsgruppe D or to those who are dead, any more than to the sadistic camp-guards. The concentration camps were rather the very core of the whole Economic and Administrative Main Office. The Amtsgruppen were all bound up with each other in their aims and activities. Each one was more or less dependent on the other. The administrative staff and accountants Court No. II, Case No. 4.of Amtsgruppe A cannot escape from the accusation of murder, inasmuch as they controlled the disposal of the valuables of inmates."
On page 51 and the subsequent pages of the German translation of the opening statement, the prosecuting authority describes the socalled "REINHARD" action, and divides it into three stages:
1) Deportation of Jews,
2) Spoliation of personal property,
3) Exploitation of Jewish labor.
In connection with this "REINHARDT" operation, - and in particular with its second phase, the spoliation of personal property - the defendant August FRANK is mentioned as having taken an active part in it. He is charged, among other things, with having set up the administration of the so-called "REINHARDT Fund" with foreign exchange and gold taken from the Jews.
The prosecuting authority has brought before the Court witnesses and documents to prove that crimes against humanity and war crimes were committed in the concentration camps. The prosecuting authority has moreover drawn attention to FRANK's position as head of Amtsgruppe A and as POHL's deputy. It has also produced a small number of documents showing FRANK's personal activities. It has not, however, been able to prove:
1) The connection of the accused August FRANK as a person and as an official with the crimes committed in the concentration camps.
2) The connection between the documents which incriminate him personally (NO. 858 PS - Exhibit 153, NO. 724 - Exhibit 472, and NO. 2003 - Exhibit 480) and the alleged war crimes and crimes against humanity.
The evidence of the prosecuting authority in this trial consists chiefly in conveying to the Court by means of witnesses and documents a comprehensive picture of the conditions in the concentration camps and of the sufferings of their inmates, and in bringing forward Court No. II, Case No. 4.numerous single incidents of an official mature to illustrate the relation between those accused here and the concentration camps.
More than 500 documents have been produced, of which only 3 are signed by the defendant August FRANK. FRANK's name is mentioned in only a very few of the documents. But even in those cases the prosecuting authority did not establish his connection with the alleged crimes. The prosecuting authority has presented the majority of these documents without informing the Court against which of the defendants it wishes the said documents to be used as evidence. None of the witnesses has made any mention whatsoever of the defendant FRANK.
The prosecuting authority is now making use of the idea of the conspiracy and of participation in it in order to fill in this gap in the evidence.
The prosecuting authority's interpretation of the conspiracy idea and of the commission of crimes by common agreement or even by the mere knowledge of them, is of such far-reaching significance, not only for the defendant August FRANK, but also in deciding whether or not entire groups of organizations are guilty, that I must give my opinion on one or two points of law at this point, if the principles and the method of my defense of the defendant August Frank are to be made clear.
In an expert statement given for the prosecuting authorities before the opening of the trials of Goering and others at the International Military Tribunal, Mr. Neil Andrews gave the following summary of the Anglo-American interpretation of conspiracy: "The conspiracy is defined according to common law as an agreement between two or more people, for the carrying out either of an illegal act, or of a legal act in an illegal manner."
In order to make the act punishable by law the following must exist:
a). a conspiracy and b) the undertaking of some act, which facilitates the conspiracy, i.e., an act which realizes the aim or the aims of the conspiracy." Also: "If one or more of them (i.e., the conspirators) makes a public statement and the others associate themselves with it thereafter by word or deed, then their responsibility is complete, and their common guilt is established, for they are ad hoc participators in the crime." Andrews then goes on to deal with the question of how the existence of a conspiracy can be proved, and comes to the conclusion that circumstantial evidence can be admitted. The mutual plan constitutes the punishable act, and this would be apparent if those participating in it pursue the same aim continually, regardless of whether they work independently or together, or with different means, provided that they always have the same unlawful end in view."
"It may be that the participants neither know each other personally, nor are aware of the part they are playing in the plan, nor even of the details of the plan itself. It is sufficient, however, that a person should know the general aim of the plan and should associate himself with it, even if only in the smallest degree."... "Participation in punishable conspiracy must of course be an essential participation."
Andrews comes to the conclusion that the same principles hold good for conspiracy as for the regulations in civil law regarding agents and shareholders and thus puts the same interpretation on responsibility and on guilt, both in civil and in penal law.
Prof. Dr. Exner explained the German attitude towards this interpretation of Andrews' in an expert statement for the defense at the International Military Tribunal. He points out that the idea of the conspiracy given by Andrews constitutes, according to Anglo-American law, not only the offence implied in the conspiracy itself, but responsibility for the individual actions of the other conspirators. Here an idea which has not prevailed in our criminal doctrine since the 18th century enters into the matter: This idea of "versari in re illicita," i.e., if a man commits an illegal act, he is responsible for all the consequences. In other words, if a man aims at a bird with intent to steal, and happens to shoot a man instead, he is guilty of murder.
According to German law, and moreover according to the law in force before 1933, a man is responsible for another's action only when he is a collaborator, an instigator or an accomplice, and in all three cases it is presupposed that the participator should at least have the dolus eventualis, i.e., the stipulated intent.
Justice Jackson has cited the example of the three conspiring robbers, of whom one kills the victim. In his view they were all responsible for the murder by virtue of their common guilt. According to the German legal view, the conspirators are responsible for the murder only if they had anticipated or had reckoned with the possibility that one or other of them might kill their victim, for what had originally been agreed upon and planned was not murder but only robbery.
The vast difference between the Anglo-American interpretation of the conspiracy as presented by Andrews and illustrated by Justice Jackson's example on the one hand, and the German idea of common guilt on the other hand, is, however, limited again by Article 6 of the Statute of the International Military Tribunal. In the last sentence of paragraph c) of this Article it is stated that ringleaders, organizers, instigators etc.
are responsible "for all acts committed by any person in the execution of such a plan." Therefore, according to this statement, each participator cannot be charged with common guilt for all the actions of the other participators, but only for those which the conspirator commits in the execution of the common plan.
This interpretation must also be based on No. 2 of Article II of Law No. 10 of the Control Council, since such a definition does not in any case put any different construction upon Article 6 of the Statute, with reference to the matter in question.
The legal opinion expressed by the IMT in its sentence makes it inevitable. Under number 9 of this sentence: "The accused organizations" it is stated (page 16503 of the German protocol): "It is one of the most important of these principles that responsibility in a criminal sense is a personal responsibility and that indiscriminate punishment has to be avoided." Thereby, the IMT has stated that a person can be punished for a crime committed by others only if he can be held responsible for that crime. Responsibility implies, however, intent or at least negligence, implies knowledge of the punishability of a crime and desire to bring it about, or at least criminal ignorance and indifference. The legal issue on which this trial stands or falls therefore seems to me to be: Should the responsibility -- in the meaning of the criminal law -- of the participators in the conspiracy for crimes committed by others go so far as to hold all members of the WVHA responsible for all crimes, including those neither planned nor visualized nor intended in the conspiracy, i.e., the conception of the organization as a whole, and the departmental duties of the restricted body of the WVHA? Or: Should the members of this body be held responsible only in as much as the deeds of the others were planned, visualized and intended within the framework of the conception of the whole organization and of the tasks of the special group WVHA, so that the responsibility for so-called "excessive actions" of the others would not have to be borne by the remaining members of this group? I I trust that I have proved that article 6 of the Statute of the International Military Tribunal, and the sentence of the IMT confirm the correctness of the last-mentioned opinion.
There seems to be no possible doubt that the Statute and the verdict of the IMT form basic International Criminal Law which cannot be left unconsidered when interpreting Law No. 10 of the Central Council.
Andrews' opinion with which apparently Justice Jackson with his example, and certainly the prosecution, are in agreement, is in such great contrast to the conception of "criminal responsibility" held by the German Law which is quite different from "responsibility" in the sense of the civil law -- mark you, even before 1933 -- that I cannot omit to mention the problem of "nullum crimen sine lege" -- "nulla peona sine lege".
Furthermore, Andrews and Justice Jackson are digressing, in my opinion, quite considerably from the tenets of article 6 of the Statute and of the verdict of the IMT. I believe it too be extremely important that the attention of the High Military Court No. 2 should be drawn to this divergence which exists between the Anglo-American conception as stated by Andrews, Justice Jackson and the prosecution on one hand, and the International Criminal Law created by the Statute and the verdict of the IMT on the other hand. Article 6 of the Statute and the verdict of the IMT are much closer to the German conception -- even before 1933 -- and to the term "participation" as existing in the criminal law of the majority of the other civilized countries, as they refute the axiom of mere responsibility for the outcome (as laid down in some parts of the civil law) in favor of the principle of the personal culpability of the participant.
The question has recently been frequently debated by German jurists whether Law No. 10 is not generally void insofar as it contravenes the principles "nullum crimen sine lege" and "nulla poena sine lege", the re-institution of which had just been ordered by the Control Council after these principles had been abrogated during the National Socialist regime. I do not intend to examine in this trial the question of the general validity of Law No. 10 of Control Council which is at present of importance especially for the trials in the British Zone against the former members of the organizations declared criminal.
My doubts as counsel defending the prisoner August Frank are inclined in another direction; they are concerned with the legal term, previously discussed, of conspiracy as an independent criminal act and the kinds of "participation" as evolved by the prosecution and taken as a basis for the indictment of the prisoner August Frank.
There is certainly an easily discernible divergence between the Anglo-American conception of the terms "conspiracy" and "participation" and the German legal opinion in force even before 1933. Therefore, I should like, in particular, to draw the attention of the Court to the question of whether Germans can be punished now for an act of participation not punishable in Germany even before 1933 since it was, according to German Criminal Law, not considered a criminal participation on account of its being much too far removed from the individual crime committed. Should therefore, a person be punished who, in his general behavior, could not even imagine that he was doing something criminal since it was not punishable in Germany even before 1933? That is to clarify the question by two examples: Could a person be punished for rape if, together with other men, he entered a house with intent to steal and if one of the burglars then raped a woman, an event which none of the other participants had intended should take place? Should a person be punished who belonged to an organization or an office with the National Socialist system and executed some administrative function or other whilst some other member of this organization or this office committed a crime which was in no way intended by the other participants?
I shall prove, in contrast to the assertions of the prosecution, that the task of the department A of the WVHA consisted in no way in the administration of the concentration camps and the exploitation of the working capacity of the prisoners, but that it had its center of gravity in the administration of the Waffen-SS, that is to say in the mere administration of military matters, as was customary in the German Forces and in the armies of the Allies.
I am giving to prove in particular that the accused August Frank was working the whole time with special interest on the construction of a military administration which led, in the end, to his being appointed on the 1st September 1943 Administrative Chief of the Ordinary Police, and in autumn 1944, Chief of the Army Administration Office, that is, to his being transferred to duties which had not the slightest connection with concentration camps.
Further, I shall prove that even externally and in matters of organization there was scarcely any connection between Department D of the former "Inspection of Concentration Camps" and Department A, the whole organization of Department D being independent in administrative respects. No internal connection was created when the former "Inspection of Concentration Camps" was placed under the command of the accused Oswald Pohl. I refer in this respect to the diagram of the WVHA with explanations, given as an appendix to my opening speech.
I am going to deal especially with the documents involving Frank personally, i.e. with the documents given in Document-Volumes V and XVIII of the Prosecution NO 858 PS (Exhibit 153 Doc. Vol. V), NO 724 and NO 2003 (Exhibits No. 472 and 480 Doc. Vol. XVIII) which concern Frank's participation in the Reinhardt action and in the disposal of the estate of the concentration camp inmates. I shall prove that the accused August Frank, when issuing the decree of 26 September 1942 (NO 724, Exhibit 472), had no idea that the Jews of whose confiscated belongings he was disposing, had been killed, or what quantities of Jewish property were involved, from which he might have been able to gain some ideas of the mass extermination.
This makes it clear that August Frank had not been informed as to the real reasons for the sudden availability of this property and had no connection whatsoever with Part I - Extermination of Jews - and Part II - Exploitation of their working capacity - of the Reinhardt action. He can only be connected with Part II, i.e. the realization of the confiscated property. And I shall prove, in this respect, that in no instance did he enrich himself or the SS, but that the Jewish property, already confiscated, was merely transferred to the coffers of the German Reich, therefore, in the ultimate analysis, that an asset confiscated by others had merely been removed to a Government office by a departmental transfer.
The issue of this order represents one of the very rare activities of the accused August FRANK as deputy of the accused Oswald POHL which otherwise were confined to military administration and to merely representative functions. In this case, too, it was not by any means he who took the initiative, but the completed draft of the order was sent to him by the SS- and Police-Leader, SS-Brigade General GLOBOCNIK, after HIMMLER had approved and even supplemented it. The words: "thieves-, receiver-, hoarded goods" had been inserted by HIMMLER himself in green pencil. It could not have been assumed from the letter which GLOBOCNIK sent to FRANK with the draft of the order, that the owners of the goods to be confiscated had been or were being killed. According to the letter it was merely a question of seizing the personal belongings of re-settled Jews, which owing to lack of space could be left in their possession only to a restricted degree, and of the disposal of belongings left by people who died in camps. Thus, any personal gain by the people concerned with the confiscation was out of the question, and it was possible to locate the collected valuables later at the Reichsbank. At that time FRANK could not recognize the real origin of the confiscated goods and the whole extent of the operation. Later on, he might perhaps have been able to acquire this knowledge, but by then he had already become Chief of the Administration of the Ordinary Police, and in this capacity, had no further connection with the operation REMHARDT.