The task of the defense as opposed to this is summarized in a brief sentence: It must not attempt only to justify these horrible events as such, but merely to discuss to what extent the consciously responsible guilty behaviour of the defendants contributed to these events.
The extent and the number of the victims is of decisive importance for the historical method of approach. On closer and more penetrating consideration the following apparently strange result ensues for the individual whose particular share in the guilt is to be determined here. The individual guilt does not increase in any mathematical progression with the number of victims mentioned in this trial. One murder suffices to have a person's life legally delivered to the executioner. But if one speaks of the murder of millions of people, forces are set in motion, and conceptions are aroused in us, which suddenly overshadow the individual guilt, and remind us that evil forces and a destiny exist which surpass the power of the individual, and into which we are all forced.
In the opening speech on 8 April 1947, one of the prosecution cried, (page 55 of the German record) "It is literally impossible to comprehend the enormity of the crimes committed in Auschwitz, Treblinka and Maidenek etc." Certainly this is correct, but the prosecutor failed to see that in doing so he had wandered from the prosecution's sphere of arguments to that of the defense. These events can no longer be understood, by any of us. But did the defendants understand them? Did the defendant whom I represent understand them or could he understand them? Could he have been so involved as to be made personally corresponsible?
Posterity working on a psychological basis will confirm with great interest that the prosecutor did not add any legal argument to the phrase just quoted by me, for one cannot add to it, but continued, "We will show a film in this respect in support of the tribunal which shows the warehouses of these death camps filled with clothes, shoes, spectacles and bales of human hair." The logic is simply disconnected. The ratio, the power of consideration fails, and we can only have recourse to this series of apocalyptical pictures which were burnt into our memory.
I shall never forget the shorn human hair mentioned above, and the individual features of the victims, who in the suffering they have overcome, already attain what we imagine to be transcendental sublime greatness, completely raised above this valley of misery. But I was never far distant from the bridge which led from the hell of these events to that, may I say, bourgeouis narrow-mindedness of my client the defendant, who went to his work in the morning, to lunch at noon, and in the evening to his family, to wife and children, and who was absolutely incapable of having such a vision or the idea of such a vision.
I am, however, fortunate to be able to refer not only to the judgments of eminent former Courts, but from the reasons for the verdict in the MILCH-case (case II) we know the principles upon which the High Tribunal, which will pass judgment in this case, based its decision in the MILCH-case and will, therefore, presumably do the same in the present case.
It take it from this judgment that for us it is a matter of proving that the defendant did not give orders to commit crimes against the laws of war, against humanity, that he did not originate these crimes, that he had no knowledge of such acts, knowledge by which he failed to prevent these acts having the power to do so. This is my aim.
If you want to make the acquaintance of the personality of Georg Loerner then you will enter the simple, bourgeois, German atmosphere. Georg Loerner was nineteen years old when he fought in the First World War. He was severely injured, and it took a few years in order to learn how to walk again. He had a severe injury in the joint of his knees. His father was a locksmith. The business, however, turned into a small factory. That is the picture of his German life at that time, suddenly again slowed down through the time after the war, the inflation. Georg Loerner and his brother, Hans, were unable to carry on their business, as a result of the inflation and the deflation, and they became bankrupt. Then they had certain bourgeois demands, and it was impossible for them to carry on in their business, and there was only thing left for them: the SS. The SS which was increasing its membership at that time, and which tried to obtain organizers in its ranks. It used people who appeared reliable and efficient, and it tried to get such people into its administrative organization in order to put them to a good use.
That is how Georg Loerner began, and he went along, and he grew along, and he rose along in the ever increasing Waffen SS, and finally an organizational genius like Pohl gave him a position and a future in the newly created WVHA as office head.
(Amtschef) We shall have to explain that a man like Loerner did not know anything about the things which took place within the inflationally built up structure of the WVHA this main office which had been newly organized, and that he only knew of the things that happened to a very small extent.
The organization which had been established was organized in such a way that no one could see further than the particular task he was assigned to.
When we think quietly about all these things, we shall always think of the criminal concepts of Hitler's with horror. However, his organizational ability cannot be doubted. This art of organizing had its effects on the men who were working under him, of whom Pohl is one. We have to discuss a number of detailed points on the subject. My colleagues have already, for their individual clients given a resume of the various 521 documents which have been submitted by the Prosecution with reference to those defendants. Now, I, on my part also, want to make another statement. That is, I want to give an approximate idea of the monstrous amount of work which was being carried out within this giant complex of the WVHA. We would not only have to present the twenty-one volumes which we have here, but one thousand volumes in order to give an average of the working time there; we could see then, that the conditions which prevailed in the concentration camps could not come to the knowledge of an active office head like Georg Loerner because he had so much work to do within his own field of work that he could not possibly see into these things which he was not directly concerned with.
Therefore, on the one hand, I shall try to describe to you just what the field of work of such a man included and then I shall have to show just how he tried to perform this work, and furthermore if he had any time left at all to look beyond his small field of responsibility.
I shall not deal with the subjects which my colleagues have discussed in detail, above all with the Action Reinhardt, and with the surprising lack of knowledge about these incidents. Above all I shall have one subject which perhaps will concern us most intensely, and that is the question of the extent of Georg Loerner activity as of Oswald Pohl's deputy. We believe we will be able to assume that he was only a formal deputy, and I believe that we shall be able to put before the Tribunal decisive material to that effect. In the verdict of the Tribunal in the Erhard Milch case the old proverb was applied, "Mitgegangen, mitgefangen, mitgehangen" which means in English, "Once you're in it, you can't slip out of it with impunity". Georg Loerner was "in it" However, he did not go along with them.
In order to remain informed he was perhaps located very far in the background. However, from his position in the background he was not able to overlook the things which took place within the huge field of task of the WVHA. He was completely in the shadow of Oswald Pohl, and even if the shadow may somewhat darken the picture of this man, then it will be our duty to show in our evidence that we can put Georg Loerner into the proper light so that we can again recognize him as he is. The basis of this character is that of a simple, honest man yes, one could even say that of a "petit bourgeois" whom fate threw into a time which he could not tackle.
THE PRESIDENT: I think perhaps we had better recess at this time and let whoever is to follow, Dr. Bergold, begin tomorrow morning without interruption. We may have some translations in the morning which will ease the burden somewhat too.
We will recess until nine-thirty tomorrow morning.
THE MARSHAL: The Tribunal is in recess until 0930 o'clock tomorrow morning.
(The Tribunal adjourned until 5 May 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Oswald Pohl, et al, defendants, sitting at Nuernberg, Germany, on 15 May 1947, 0930-1630, Justice Toms presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal II. Military Tribunal II is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Marshal, you will please ascertain if all of the defendants are present in the court.
THE MARSHAL: May it please Your Honors, all the defendants are present in the court.
THE PRESIDENT: It has been represented to the Tribunal that there are no more translations of opening statements ready, but the translators are working on them as quickly as they can and we hope to have a number of them ready so that we can proceed at two o'clock. Our experience yesterday made it very difficult for the translators and I think it would be better if we waited until we got the actual translations. It is more accurate and we can do it faster if we have the translated copy, so the Tribunal will be in recess until two o'clock this afternoon.
(Discussion ensued between the President and defense counsel.)
Everything is changed now. The procedure is different. Don't go away, and I shall call the other judges, as I find out now we have three opening statements which are ready.
MR. ROBBINS: I should like to announce that two additional documents have not been distributed in English or German, simply because they have been lost by the Document Room, and unless they can be found shortly they will be withdrawn; that is, Exhibit 108 in Book IV, and Exhibit 446-A in Book XVII.
THE PRESIDENT: Is one of the defendants absent this morning?
DR. HOFMANN: Yes.
THE PRESIDENT: Why?
JUDGE PHILLIPS: He was excused yesterday.
THE PRESIDENT: Let the record show that the defendant Frank is not present in Court this morning, having been previously excused by the Tribunal.
DR. HOFFMANN: If the Tribunal pleases, I should like to interrogate the witness, Dr. Karoly.
THE PRESIDENT: If the Counsel wishes, Judge Speight will act as the Commissioner to take the testimony of Dr. Karoly at 4:30 this afternoon.
DR. HOFFMANN: Very well, Your Honor; I thank you very much.
THE PRESIDENT: Marshal, is there one more copy of this document?
THE MARSHAL: Those were distributed to me through the proper channels, and those are the only copies I have, Your Honor.
DR. HOFFMANN: May it please the Tribunal, I have only four copies; three for the Tribunal and one for the interpreters. Those are the only copies I was able to obtain.
THE PRESIDENT: Proceed.
Your Honors, None of the 600 documents, submitted by the Prosecution, contain anything that could be interpreted as unfavorable for the defendant Rudolf Scheide, whose Defense Counsel I am.
These documents do not even contain his name, much less any order or ordinance which he might have issued, within the sphere of concentration camp matters, with which the Prosecution is charging him here. In none of the statements of the witnesses which we have heard here, has anything been said, which might connect his name or person with any one of the concentration camps.
On the other hand, I gather from the indictment, that the prosecution considers the Economic and Administrative Main Office, in its entirety, as a criminal organization.
Hereby, the Prosecution refers to the decision of the International Military Tribunal by which the SS was declared a criminal organization and to the fact, that for all cruelties, which were committed in concentration camps, the SS in general and the Economic and Administrative Main Office in particular were made responsible.
However, the Prosecution was not forced by the judgment of the International Military Court to take proceedings before this Court against the defendant Rudolf Scheide. Every Allied Power can prosecute a member of an organization, which has been declared criminal, but not every member can be charged with all, with which the organization has been reproached in general. A member of the SS, picked at random, would not be indicted in this way before this Court. The defendant Rudolf Scheide would not have been indicted in this manner either, if he had been SS-Fuehrer in a different official department.
Of course, in this connection it has to be considered that the International Military Tribunal in Nurnberg pronounced guilty only those, who officially became members of the SS, such members of the organization who became or remained members, knowing that they were used for actions which have been declared criminal by article 6 of the law (Statut), or such members of the organization who were involved in the committing of such crimes, with the exclusion, however, of people, who were put into the ranks of the SS by the Government, so that they had no choice in the matter and who did not commit any such crimes.
Nevertheless, in the case before us, the Prosecution considers all members of the Economic and Administrative Main Office, who are here as defendants, as a collective and thus, deduces from this the common responsibility for anything, with which the Economic and Administrative Main Office, as a whole, has been charged, without consideration for the individual defendant.
Therefore, the Prosecution believes, that it needs no documents or statements of witnesses for a special charge against each individual defendant.
(page 3 of original)
In this, the Prosecution no doubt relies on the fact, that the impression made by the documents and in particular by the statements of the witnesses, is so deep that one would be easily inclined to reject and condemn everything, connected with these concentration camps matters, perhaps including the defendant, Rudolf Scheide, even if he is not been mentioned in the documents and statements by witnesses.
I object, however, to this conception of the Prosecution, which, without consideration of actual evidence of an individual guilt, desires to see the defendant Rudolf Scheide sentenced, simply because, for a time, he belonged to the Economic and Administrative Main Office. I hope to obtain an individual critical examination for the defendant Rudolf Scheide, of his field of activity, which he had in this Economic and Administrative Main Office, without consideration of the Prosecution's opinion of the Economic and Administrative Main Office as a whole.
In this, I am supported by the statements of the witness Kogon, who as keenest opponent of the SS has, in the witness-box, answered my questions to the effect, that in his opinion each case ought to be dealt with individually and that not everyone, who was connected with concentration camps, knew also, what was happening inside.
I quote page 882 and 883 of the German record of the proceedings.
Q.: In your opinion, was the knowledge of the cruelties inside the concentration camps different from the one among SS people?
A.: Yes, there was a difference in the knowledge.
(Page 4 of original)
Q.: Did this knowledge logically decrease with the increasing distance from the concentration camps and did it finally cease altogether?
A.: It was necessarily so, that the knowledge decreased with the increasing distance from a concentration camp. That depended on the position of the person concerned. This in general, applies equally to the German people, there again it depended on the positions, from which one could estimate the knowledge. If a person was employed inside the SS administration which was dealing with concentration camps or hold a position there, his knowledge could even be greater. But is was no more a direct but an indirect knowledge. But even in this, there were exceptions, because higher SS-officials, who had a general knowledge, could also have a direct knowledge, such as the inspector of the concentration camps, to mention the most striking example or the highest medical officer "KL", thus the highest medical officer in charge of concentration camps.
Q.: But, in your opinion, has this case to be examined on its individual merits?
A.: The establishment of the fact of the individual SS member's extent of knowledge and possibility to interfere has to be individually examined".
End of quotation.
I also object to the conception expressed by the Prosecution, that membership of the SS is already proof for charged cruelties and crimes against humanity.
Here, I refer again......
(page 5 of original)
Statement made by the witness Kogon, who upon my inquiry declared: (I quote pages 877 and 878 of the German minutes) "Question:
I mean, witness, whether you, apart from the fact that your ideology was completely contrary to that view of the SS, could establish special facts which were striking, let us say, which surpassed the limits of the generally human. Or were there only ideological oppositions?
Answer: There were what is called ideological oppositions, and there were strong political oppositions and finally there were partly personal oppositions; but, insofar as it was possible, I wish to say I have tried the typology of the SS in the classes which formed at that time. But possible features of particular barbarism, cruelty, cynicism did not strike me more in the face of those whom I met than with other contemporaries."
(End of quotation)
Proceeding from these viewpoints I do not regard the defendant Rudolf Scheide whom I plead for, guilty because he once had a job in the Economic and Administrative Main Office (Wirtschafts- und Verwaltungshauptamt) and in addition also was a member of the SS, but I investigate his case with regard to what he actually did personally, especially with regard to the administration of the concentration camps mentioned here by the prosecuting authority as a charge.
In this connection I am aware that the prosecuting authority as it did in its opening speech on pages 95 and 96 of the German translation, takes the view that a defendant (page 6 of original) in this trial who demands individual treatment on the basis of his sphere of activity will only quibble.
In my opinion the prosecuting authority is not right in this respect if such explanations of the sphere of activity are based on truth.
The prosecuting authority probably would not take this view if it did not believe that it could with the notion of "conspiracy" legally sustain the assertion already described above of a collective guilt of all defendants here.
We Germans have for the first time here in Nurnberg come to know this Anglo-Saxon way of legal thinking. How now the notion of conspiracy is to us, is best shown by the fact that we have included it as a new word in our judicial terminology and as a rule do not translate it with "Verschwoerung" or a similar word but use it as a loan-word for a fixed notion. The notion of conspiracy as it has appeared to us up to now is not identical with any forms of guilt or complicity used by us Germans. As it has up to now only been applied once viz. in the trial before the International Military Tribunal and there was only limited in a negative sense in the verdict, we are not yet able to recognize its meaning to its full extent.
From the fact that the prosecuting authority uses the notion of conspiracy in the most diverse cases we can only conclude what is understood by it on the part of the prosecuting authority. In the Medical Trial before the Military Tribunal I it has been applied on the part (page 7 of original) of the prosecuting authority to a number of doctors who partly belonged to the Wehrmacht, partly to the SS, - even to a civil doctor who belonged to no organization.
On tho other hand, not even a joint deed united the defendants in the Medical Trial since what they are being charged with has happened at most different times and quite independently of each other. On the other hand, in the Flick Trial before the Military Tribunal IV, the prosecuting authority did not bring a charge of conspiracy although in that case as in this case before this Tribunal the prosecuting authority could have pointed to an activity of the defendants under a joint firm name.
Neither are my statements made devoid of application by the fact that the prosecuting authority in addition to referring to the existence of a conspiracy in general, also in particular refers to the provisions of the Law of the Control Council No. 10, Sec. II, para. 2. The provision of this section of No. 10 of the Law of the Control Council seems to me to be a special kind of the notion of conspiracy although up to the present I am not able to see how it can be applied to this case of the defendant Rudolf Scheide. I must, therefore, defend my client in every respect which according to the view of the prosecuting authority might imply such a conspiracy.
It is therefore most natural to discuss first the point of view of the prosecuting authority which bases the asseumption of a conspiracy on the fact that all defendants, and therefore, also my client Rudolf Scheide, were members of the Economic and Administrative Main Office.
In this connection I am of the opinion that in applying an Anglo-Saxon legal principle to German legal (Page 8 of original) conditions consideration should be had for what all people have in common in their sense and feeling of justice.
Otherwise in my opinion there exists the danger that people who have grown up under different laws are done injustice if they are charged with something they generally do not necessarily regard as a moral law for all men, but which was earlier set up by their State in a different legal form, this other law not being in opposition to the inalienable and unchangeable human rights. Just as little as the assertion is correct that somebody is good or bad because he belongs to a certain nation to which he belongs by birth, education, and other external circumstances - thus it is also just as natural that a person can not be regarded as criminal and responsible for crimes only because he worked in a certain office or had a certain vocation.
In my opinion the prosecuting authority also overlooks that the joining of this Economic and Administrative Main Office could only be regarded as an offense according to common human legal principles if the defendant Rudolf Scheide realized what he did and what he took upon himself when he joined this Economic and Administrative Main Office which according to the opinion of the prosecuting authority was criminal. The prosecuting authority has not in particular asserted, neither could it prove that the defendant Rudolf Scheide had this knowledge upon his joining in October 1942.
Here, the prosecution can only generally state that everybody who belonged to the SS, must have known what was going on in these concentration camps. On the other hand, we have heard the witness Engler before this tribunal, who answered my questions on the secrecy in respect to what happened in the concentration camps, as appears on pages 721 and 722 of the German minutes.
I quote:
Q. Witness, did you ever leave the camp Sachensenhausen in the period from 1941 to 1945?
A. No, I did not leave this camp during the period to which you refer.
Q. Witness, were you able to send letters from the camp, in which you could describe the conditions?
A. This was impossible.
Q. When visitors came to the camp, could you contact them, relate what you experienced there.
A. This was also impossible. It was only possible if you were ready to die.
Q. Do you therefore, believe, witness, that the secrecy of the camp towards the outside world was completely secured?
A. I suppose that people, for instance those living in Oranienburg, certainly were aware of the conditions prevailing in the concentration camp Sachsenhausen.
Q. But this was only a limited circle of persons?
A. I cannot say whether larger circles knew about these conditions in the concentration camps, whether in this instance the German people knew about them as far as they did not listen to foreign broadcasts or were informed by former inmates of the concentration camps on the conditions there, which, of course, could only be done under danger of life.
Q. Thus, if a person was already released, he was prohibited by threat of the death penalty to speak about it?
A. Every released internee had to sign a paper, a so-called "Revers" in which he pledged to say nothing about what he had seen and experienced in the concentration camp, in other words, that he would not inform third persons about it.
Q. And do you believe according to your experience in the concentration camp, that this order was respected?
A. Since the whole German people did not dare, or since the greatest part of it did not have the courage, to say anything, those who knew that any information would mean a new confinement or transfer into the camp which would be equal to death will have done so even less".
(End of quotation).
I therefore maintain that the defendant Rudolf Scheid when joining in October 1942, did not know that atrocities were being carried out in the concentration camps which were under the orders of the Economic and Administrative Main Office.
Furthermore, it must be considered that the defendant Rudolf Scheide did not join the Economic and Administrative Main Office voluntarily. He was a member of the Waffen-SS and as such he had to obey an order of his superior authority like a soldier of the Wehrmacht. There was no valid appeal against the order of his transfer. I therefore also hope that this high tribunal will consider the fact that such an order as the defendant Scheide executed and obeyed to, cannot lay to his charge that he already assumed, when joining this Economic and Administrative Main Office, the full responsibility for what the Economic and Administrative Main Office is now being charged with.
In my opinion, another very important question is, whether the defendant Rudolf Scheide ever obtained any concrete knowledge about atrocities in concentration camps as time went on. The defendant Scheide states that he was prohibited from entering concentration camps just as well as any other person and that he would have needed a written order of the defendant Pohl, for entering such a concentration camp. Since a visit in a concentration camp was not a part of his duty as head of the office B V, he did not apply for it. He therefore did not know the concentration camps from the inside and no evidence has been submitted by the prosecution which proves that this statement of the defendant Rudolf Scheide was not true.
Justice requires equally to point out that in an office with a military organization, certain differences in rank existed. The defendant Scheide was promoted to Oberst-Ingenieur (Colonel-Engineer) not before February 1945. At that time the war was almost over. Until that time he was Oberstleutnant (Lieutenant Colonel) in an office, where the large number of the chiefs of the offices held ranks of generals and did certainly not give up their superiority in knowledge and power of command within the office.
But also the office of the defendant Rudolf Scheide itself had nothing to do with the concentration camps. I shall demonstrate to this high tribunal the type of this office, its volume and all its actual activities and we shall find out that the concentration camps had their own technical office which belonged to the Amtsgruppe (Office Group) D and that everything the office BV did through the defendant Rudolf Scheide, related only to general matters of supplying the troops and to the internal motor pool of the Economic and Administrative Main Office as such.
Moreover, I must also deal with the fact that the defendant Rudolf Scheide had joined the NSDAP and the SS very early. It is, however, important to consider in this respect that in 1933, he was called into the newly organized Verfuegungstruppe (Special unit of the SS), which became later the Leibstandarte (body guard) "Adolf Hitler", and that he had since that time a military profession as an active soldier, where he worked himself up from a simple soldier to Oberst-Ingenieur (Colonel-Engineer).
In this connection I will also take into consideration the question where and how the Leibstandarte (body guard) "Adolf Hitler" was assigned before and during the war. I shall demonstrate most clearly the activities of the defendant Rudolf Scheide as a soldier, and the directives, according to which, - after 10 years of service - he was accustomed to work also in the Economic and Administrative Main Office.
It must also be pointed out that it was the main task of this Economic and Administrative Main Office to supply the whole Waffen-SS to which more than 40 divisions with approximately half a million men belonged, which had to be supplied on all fronts. In this respect, one may assume that he cared with his office for this other task and had enough to do with that and that he therefore, left the care for the concentration camps in matters of transport to that office which was assigned for these matters within the D II.
In judging the defendant Rudolf Scheide, it must also be taken into consideration, that this defendant did subjectively believe to fulfill a task, of which, he thought before he saw the results here, before this tribunal, that it was a good task and that it served his country.
He, therefore, did not fulfill these tasks with the feeling that they were, perhaps, crimes.
I already discussed above that the defendant Scheide will tell us as a witness in detail what included him to join the NSDAP and the SS. Thus, we will see that his conception of National Socialism and of the aims of the SS was quite different from the interpretation at which one has to arrive now on the basis of our knowledge of the atrocities committed.
It will not be denied in this connection that the defendant Rudolf Scheide certainly did not oppose the general events as they were caused by Hitler. He became a soldier in the Waffen-SS and participated together with his unit - during the war - in the campaigns against Poland, France, Greece and also against Russia.
He also obeyed the orders of his superior office and joined the Economic and Administrative Main Office as an Ingenieur-Offizier (Officer-Engineer). He wore the black uniform and thus contributed his share to the existence of the National Socialist Regime and the carrying through of the war. But this will - after the defense-counsel will have made his statements - in my opinion not justify this indictment which connects the defendant with all these crimes against humanity of which we have heard here. These statements are not a concession to the Prosecution or a request for extenuating circumstances.
They are based on the fact that the Defendant Scheide refuses to call himself a "member of the SS on paper only" or a person who only reluctantly wore the chevron "Leibstandarte Adolf Hitler". He would regard this as too cowardly in face of the fact that thousands of smaller SS men have much more right to use such arguments.