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.
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.