A double concept results therefrom: 1. He was not in a position to give orders for the removal of gold teeth from deceased prisoners (it is a fact that he actually never gave such an order); 2. The order issued to the camp dentists which reached them either through medical service or official channels, went actually beyond the professional sphere of influence of the defendant.
3) Defendant Hermann Pook does not know to this day what kind of orders have been given for the removal of gold teeth from deceased prisoners, especially not which office issued them and when. He himself never has given such an order, nor has he supervised the removal. What he does know and already knew during his activity in Office D III is, that by way of the Camp Administration such gold came from the camps and was passed on by administrative channels viz. not by Office D III. He learned about it through the monthly reports of the camp dentists which he forwarded to Office XIV (Dental Service). However, the quantities of gold mentioned therein were so small that it seems out of the question and never occurred to him that the gold did not come of such inmates only who died a natural death. In the further course of proceedings I will have to state that the removal of gold teeth of prisoners who died a natural death, does not constitute a criminal action at all. As early as in 1925 for instance there were lively debates in German dental publications with regard to the necessity and suitability of such a measure. Already then distinguished German dentists gave lively support to such a measure.
4) The evidence concerning the activity of the defendant in Office D III will show that Pook in fact was just an intermediate office of the dental administration and nothing else. The following were his principal official duties: to review the monthly work- and personnel reports, which the camp dentists submitted, and to pass them on to Office XIV; to direct to Office XIV the monthly requests for supplies and medicines, which were sent in by the Chiefs of the dental clinics, to examine the applications for artificial teeth for prisoners submitted by the camp dentists and finally to forward the so-called gold-books to office XIV for examination. This will give us an insight at the same time of the principles governing dental treatment of prisoners; in the monthly requests for material and medical supplies there, no difference whatsoever was made between prisoners and members of the SS.
Every dental clinic had to keep a separate gold-account on the gold for dental purposes received from office XIV for teeth repairs and used by the dentists, which was carefully examined by office XIV and later on by Pook himself. The result of this examination was recorded in the personal file of the dentists. An additional important task of Dr. Pook was the examination of bills of civilian dentists for the dental treatment of prisoners who worked in out-stations and who, having no dental clinic in their camp, could not be treated by a camp dentist.
What purport would have had all these activities of Dr. Pook if the point of view would have been, that for the dentist the inmate in the concentration camp is merely a subject for cruel tormenting and lucrative gold production?
5) Dr. Pook was Leading Dental Surgeon in the office D III with Dr. Lolling, the Head of the Medical Service for Concentration Camps. I do not think that it can be seriously asserted that Dr. Pook, who was a dental surgeon and not a doctor, had been Lolling's deputy and therefore, or for any other reason, was responsible in the eyes of criminal law, for this man's actions. I shall, however, state and prove that Dr. Pook was not Lolling's deputy but that Lolling was represented by a doctor, if unable to attend or act himself, furthermore that Dr. Pook stood neither in any official nor personal relations to Lolling, which exceeded the essential official contact in dental matters, and that in the summer of 1944 Pook applied for a transfer from office D III on account of his strained relations with Lolling.
To complete the picture it will have to be proved what else Dr. Pook's work entailed. It will be seen that his activity in the office with Dr. Lolling only took up the lesser part of the day and that, for the rest as first dental surgeon of the Station Dental Post Oranienburg, he had to cope with a considerable dental practice every day, and that he devoted the rest of the day and the remainder of his strength to his own private practice in BerlinLichterfelde.
6) Over and above his responsibility for his own actions and for his department, the indictment attempts to hold the defendant responsible for collective actions perpetrated by other persons or with other persons. This is done on two assumptions: 1. because all defendants were essentially connected with Concentration Camps, whose existence and working in itself meant murders, atrocities, tortures, enslavement and other inhuman acts. (Indictment, page 45 of the German text), 2. because all defendants in agreement with each other intentionally and deliberately, for a common purpose, have committed war crimes and crimes against humanity, so that they are personally responsible for their own actions and for all actions perpetrated by persons in pursuance of the common purpose. (Indictment, Page 6 of the German text).
To 1) it will have to be stated that the establishment of Concentration Camps as such is to be attributed neither to the defendants nor to the National Socialist regime, furthermore, that one can not get away from the fact that the Concentration Camps of the Hitler regime had a legal foundation, moreover, that it would be going far from historical truth to maintain that these Concentration Camps from the very beginning, fundamentally and in general were conducted on criminal and bestial lines; furthermore it will have to be stated that not everything, caused by the growing hardships and necessities of war in the Concentration Camps, can be considered today as individual criminal guilt, and finally that the insane mass crimes, which then actually happened in the Concentration Camps, can not be summarily attributed to each defendant.
Insofar as the conditions in the Concentration Camps developed into crime, they were carefully and cunningly kept secret from everyone not directly concerned. It would mean underrating the intelligence of the system to believe, that at least in the WVHA everyone working there must have had an insight into all or part of what the accusation consists of today. Nothing would be more unjust than to assume without positive evidence a knowledge of the committed crimes in the case of each defendant, thus too of the defendant Hermann Pook, and to declare him guilty and to sentence him on the basis of such hypothetical knowledge.
The defendant Hermann Pook although he worked in office D III, knew as little and as much of the criminal conditions and actions in the Concentration Camps as every average German at the time. Perhaps that seems incredible, but it will be proved just as the further fact that the defendant Hermann Pook never took part in conferences of the Office Chiefs or in other conferences of the Office Group D III, furthermore, that from the men sitting in the prisoner's dock with him, he knew only two personally, and even these only slightly, others he knew only from seeing them occasionally. However, most of them he did not even know by name, so for this reason alone the assumption of a conspiracy must be dropped with regard to the defendant Hermann Pook, that very defendant who only towards the end of 1943 was transferred to the Office D III.
II.
In view of the enormous quantity and seriousness of the committed crimes the prosecution has the perhaps comprehensible desire to prove as simply as possible the responsibility of the accused men, by saying: The defendant who held a post in the central administration of the Concentration Camps know about this and that; at least his knowledge can be assumed or, at any rate he should have known about it, consequently he is to be held responsible and therefore, he is to be considered guilty of the committed crimes. The same tendency can be found in the Control Council Law No. 10, which not only, in a manner as general as possible, established summaries of facts in regard to criminal law, but which in various points also seems to think in terms of a kind of automatic responsibility in the eyes of criminal law. Here looms the serious danger that, by a too generous treatment of the question of guilt, the general principles of penal law, as they are envisaged in the penal codes of all cultured nations (page 13 of the indictment, German text) are violated. On account of this danger, I may be permitted now to make in short some legal expositions, which will indicate which fundamental lines are followed by me in my defense, also their legal aspect.
1) The Control Council Law No. 10, which bears the heading: Punishment of persons who are guilty of war crimes, crimes against the peace and crimes against humanity, constitutes a big synthesis of political power and of Law. It is an authoritative decision pronounced by the victors, whereby the facts for what is considered to be a crime against international law are established, furthermore, whereby the individual responsibility of statesmen, of officials and of soldiers is established and which finally establishes the competence of the allied tribunals.
By that, many of the customary conceptions about international law, are done away with and something new is created against which it would be entirely senseless to fight in the present trials. But at the same time, the victors submitted to the law, by granting legal proceedings to the persons accused of such crimes. Now this is done with a double aim: One wishes to treat those accused of crimes against the international rules of law, humanity and ethics, according to these very rules and not according to political power and political interest, but also: the war crimes trials and also this trial have a much bigger task to fulfill than to mete out legal retribution in the individual case; the verdict should be a convincing contribution to a revival of the feeling of legal responsibility and the legal conscience of all nations.
2) The carrying through of legal proceedings, however, would be entirely meaningless if on the one hand factual evidence were admitted for the defendants, but on the other hand they were deprived of the possibilities to make legal depositions based upon the so far customary conception of penal law. Obviously it is not the purpose of the Control Council Law No. 10 to create something new with respect to the examination of individual responsibility of each defendant in the eyes of criminal law, it does not aim at breaking with the principles of the past in this respect, but it aims at decisions about the guilt of each defendant based on the generally applied legal principles, existent already before the Control Council Law No. 10.
A criminal culpability according to these principles can only be affirmed if the circumstance of knowledge and the circumstance of will are existent; ignorance and error therefore exclude an intentional criminal culpability in the same way as does involuntary action.
The knowledge, moreover, must include the knowledge of the prohibited nature of the action, the perpetrator must also know that his action is against a rule, that it is illegal and prohibited. If the Reich Court in permanent administration of justice declared the error in the eyes of criminal law as irrelevant and, in the question of guilty or not guilty only considers the error outside criminal law, I with my point of view am in no way in contradiction thereto. In my opinion no defendant can use the excuse that he did not know the laws of the German Penal Code, as far as the knowledge of the articles of the German Penal Code is not concerned, but rather the consciousness of the violation of international law, proof of such consciousness can not be waived for the simple reason that no international law code is in existence which defines the summaries of facts of international crimes.
These considerations will undoubtedly apply to every defendant in this trial. In the case of the defendant Hermann Pook, for instance, the following questions must be decided in accordance with these considerations: Can he legally be punished solely on the basis of the facts that he was knowingly employed in the central administration of the concentration camps; or for the reason that he knew that the inmates of the concentration camps had to work, or because he knew, that the gold was removed from the dentures of deceased inmates?
3) The problem of the consciousness of illegality leads to the problem of illegality itself.
Here I represent the following point of view:
Illegal is not only what constitutes the facts of a case in the technical sense, as, say, the facts of a case of the German Penal Code.
The thesis is also rejected that only the state may determine what is right and wrong: what conforms with its purpose and its interests is right, and what is detrimental to the interests of the state is wrong. This view by the way, is no national socialist invention, but is as old as the philosophy of state and law itself. The German jurist Otto Gierke has said already decades ago concerning this subject: "The high name of the Law would in case of such an interpretation right is what the state proclaims to be right - only reserve the purpose of veiling the bare fact that among men there exists no other order than the might of the strong over the weaker." There exists an ethical world order which supersedes every national conception of right and wrong, there is a legal conscience of nations and an unwritten international law (common law of nations) to which every individual and every state is subordinate in peace and in war in their actions.
What is contrary to law in the individual case, that again is decided by the judge according to his estimate and his standards, according not only to the opinion of his time but also of his people; he decides accordingly what his people accept as worthy in their lives and what they recognize as such. One can be so bold as to state then: Right and wrong is, even if one acknowledges the existence of a divine idea of right, nevertheless in its last analysis a political question. This becomes particularly obvious in wartime, when the conceptions of right of the parties waging not diverge hopelessly, wherein not only the reason of state, but also especially the "necessite de la guerre" plays an important part. I do not believe that the defendant Hermann Pook will be seriously held responsible for the medical experiments in the concentration camps and the so-called slave labor, but I wish to point out that just on this point particularly with respect to these two spheres, the distinction between right and wrong is not at all unequivocal and clear, this applies even more so to the setting-up of concentration camps as such.
4) To this must be added that not every illegal act in itself is punishable under criminal law. Whoever violates a distinct law of nations, whether it arises from an international agreement or "out of custom established among civilized nations, out of the laws of humanity and the demands of the public conscience," is only then responsible in the eyes of criminal law if a genuine "jus strictum" (strictly defined law) is involved, in other words not a must-precept or a recommendation which the parties to the agreement have given each other for their national legislation. An infraction of the rules of equity is since time immemorial not criminally punishable, for the rules of equity exist rather in the soul of the people and in the perception of the judge.
The question of the jus strictum leads at the same time right back to the question of criminal responsibility.
The Control Council Law gives fact cases which can be regarded as jus strictum only insofar as they are in conformity with fact cases of the national German penal code. It would be contrary to logic as well as to the generally accepted principles of modern penal law if one were to assume for oneself the right of defining the existence of, say, an "inhumane act", because an "inhumane act" is a word for a moral quality or lack of quality, and not an objective case founded on facts. Furthermore it would again be contrary to ethics and generally accepted legal principles appertaining to criminal law, if today one were to find somebody guilty in retrospect, because he has violated a law which at the time of the perpetration of the act was not even in existence, not to speak of being punishable. On the contrary, perhaps the act which today is unlawful and punishable was at that time explicitly ordered by the state.
5) At this time I must also discuss the question of the legitimate order by a superior.
Already from the Roman law to the modern law of today of all civilized countries, a legitimate order by a superior exempts the perpetrator from guilt. He whose will is bound by a valid order is not legally responsible in the eyes of criminal law, because the will of the one who gives the order supersedes the will of the obeying. If the order is unlawful and criminal and appears so to the obeying party, but only then, responsibility in the eyes of criminal law of the obeying party can be considered. Otherwise as a matter of fairness and humanity the duty of a soldier to obey must be respected. The defendant Hermann Pook, too, was a soldier and was subject to the provisions of the German Military Criminal Code. Of course, one should not and must not attempt to justify every war crime by the fact that it was ordered from above, but on the other hand one cannot disregard the fact that as a general rule the soldier is entirely wrapped up in the army mentality and that with the increasing war hardships the confusion of the soldier also increases and his ability of moral criticism decreases. This is the reasoning of an ancient author.
When the Control Council Law No. 10 prescribes: "The fact that a person acts under orders of his government or his superior does not absolve him of the responsibility for a crime; it can, however, be regarded as a mitigating circumstance," it is thereby unquestionably not intended that the subordinate is automatically responsible in the eyes of criminal law; this would be contrary to all legal principles. Obviously only the burden of proof is thereby put on the subordinate; it is up to him to prove to what extent he is not responsible; for instance, that he was unable to recognize the order as unlawful and criminal. If he cannot exonerate himself in accordance with general principles of law, the order by a superior can still be considered as mitigating circumstance.
The defendant Hermann Pook was drafted into the Waffen-SS in 1940 and was transferred toward the end of 1942 to the office D III as Leading Dental Surgeon. In both cases, therefore, he obeyed military orders. The defendant belonged to the Reiter-SS which was explicitly absolved from criminal guilt by the International Military Tribunal in its verdict. He can only be sentenced if his guilt can be proved in actual and legal respect. It will not be possible for the Tribunal to base a sentence on an assumption, much less on a fiction of criminal culpability.
THE PRESIDENT: This concludes the opening statements of defense counsel. The Tribunal will begin to hear testimony tomorrow morning at 9:30 on behalf of the defendants. Have you arranged among yourselves the order in which the proof will be submitted?
DR. SEIDL: May it please the Court, we suggest that the interrogation of the defendants should be done in the same order as they are named in the indictment. We would like to reserve the possibility that one or the other of the defendants may express the wish during the proceedings to exchange places with another defendant.
THE PRESIDENT: Any arrangement that you wish to make is satisfactory to the Court. You can suit your own convenience and make your own plan in any way that you like.
We'll be in recess until tomorrow morning at 9:30.
THE MARSHAL: The Tribunal will recess until 9:30 tomorrow morning.
(Whereupon at 1530 hours, 15 May 1947, the Tribunal recessed until 0930 hours, 16 May 1947.)
Official Transcript of the American Military Tribunal in the Matter of the United States of America against Oswald Pohl, et al., defendants, sitting at Nurnberg, Germany, 16 May 1947, 0940-1630 hours, Justice Toms presiding.
THE MARSHAL: Military Tribunal 2 is now in session.
God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
DR. SEIDL: (Counsel for defendant Oswald Pohl): May it please the Tribunal, as I said at the end of my opening statement, the center of the defense of Oswald Pohl will be his own testimony on the witness stand. I should, therefore, like to ask the Tribunal to call the defendant Oswald Pohl to the witness stand so that he can testify in his own behalf.
THE PRESIDENT: Very well.
MR. ROBBINS: During the pause I would like to clarify my understanding as to the order in which the defendants will present their case. As I understand it from Dr. Seidl, it will be according to the order in which they are seated in the dock, rather than the way in which they are listed in the Indictment. Is that correct?
DR. SEIDL: If Your Honors please, after the session yesterday, we talked about the order in which we wished to hear the cases of the various defendants. I failed to remember yesterday that the order in which the defendants are sitting in the dock differs in some cases from the order in the Indictment. I should like to state, therefore, that the Defense Counsel wish to hear the cases of the defendants in the same order as they are seated in the dock.
THE PRESIDENT: That is very satisfactory.
OSWALD POHL; defendant, took the stand and testified as follows:
THE PRESIDENT: Raise your right hand and repeat after me:
I swear by God, the Almighty and the Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
DIRECT EXAMINATION BY DR. SEIDL:
Q. Your name is Oswald Pohl?
A. Yes.
Q. When and where were you born?
A. 13 May 1896 in Duisburg, Rhineland.
Q. Please describe briefly your origin and give the Court a description of your career up to your entry into the navy.
A. My parents came from Lower Silesia. My ancestors can be traced back to 1680. They are a mixed crowd, and some of them are citizens; others are farmers, craftsmen, and all kinds of professions. Both parents were orphaned when they were young. My father therefore migrated from the village where he was a locksmith at an early date. He came to the country between the Rhine and the Ruhr. There he was followed by a girl friend. They had ten children, and I am the fifth.
When, shortly after the First World War, my father died, he had through his industry and efficiency, become a leading craftsman in August-Thyssen-Huette at Hamborn on the Rhine. Shortly before that, my mother had died.
My parents were extremely happily married. We children never heard one evil word between them, and to this day, my youth at home, where I lived up to my 20th year, is a very happy memory-- peace, joy and happiness.
I myself attended, from my sixth to twelfth year, the secondary school of my native town, and from my twelfth to twentieth year, I went to the primary school, which I left Easter, 1912, having graduated in order to enter the navy.
Q. What were your reasons for choosing the career of naval disbursing officer?
A. The reason why I chose that career was the emptiness of my father's purse. I would have liked to study science, but we did not have the means. When I looked around for a suitable career, I happened to come across the fleet calendar, and there I saw the prospect of a career in the Imperial Navy.
I volunteered, without ever having seen a warship or any other ship. I was accepted, and in 1912 I was a naval recruit in Wilhelmshaven.
Q. Tell us briefly of the career which you had in the navy.
A. After I joined, Easter 1912, I took the prescribed training, which lasted four and a half years. In the summer of 1917 I passed the main examination at Kiel and half a year later I was promoted to naval lieutenant and became a navy disbursing officer.
When the First World War ended, I was a disbursing officer in the Flandern Division. When I returned and when the Imperial Navy was dissolved, I first of all -- sometimes on leave, sometimes on duty -studied for one year in Kiel, because I believed that I should choose a new career, but in the beginning of 1920 I was assigned to the new Navy and discontinued my studies. I was then given the order to join the Third Naval Brigade, Loewenfeld, and with Loewenfeld I went to Upper Silesia and to the Ruhr area. When I returned I was aboard torpedo ships at irregular intervals.
In 1925 I was promoted to Naval Chief Disbursing Officer and First Lieutenant at Sea. In 1934 when I left the navy, I was a Naval Staff Disbursing Officer with the rank of a captain.
Q. When did you for the first time contact the National Socialist Movement, and what were your reasons for doing so?
A. This was in the summer of 1923. For five years the German people had been suffering under the chains of the Versailles Treaty. The inflation had reached its climax. Such property as still existed melted away and disappeared. Unemployment, which at that time had not yet reached the frightful figure of seven to eight million people, however cast its dark shadow over everything.
A few months previously, my homeland, the Ruhr area, under a definite violation of the so-called peace -- the dictate of Versailles-had been occupied by the French, and at Easter German workers were shot at by the French occupying forces in Essen before the factory gates.
My chief at the time invited me to accompany him to a meeting which had been advertised in the newspapers. This organization was called the League for the German Right. I said that I would go. In the evening both of us were near the harbor in a deserted street outside an inn which we were not allowed to enter in uniform. In the backroom we met 20 to 30 men. They were workers. You could see from their clothes and their emaciated faces that there were some proletarians among them.
One of them made a speech. At the end of that speech he asked for a discussion. I went up to the speaker's pulpit. Why I spoke and what I said, I do not know. Anyway, I found applause, and I was asked to join the League. These were the same people among whom I had spent my youth, with whom during the last three years at school I had to spend the holidays as a factory worker. I went out to work with them in the morning at six o'clock. I had my meals with them, and I went home at six with them, in order to give private lessons from seven to nine and save the money to finance my career. My heart indeed, would have had to be of stone instead of blood if these people had not fascinated me. That is how I joined this national movement, and through that movement I eventually joined the National Socialist Movement.
Q. When did you become a member of the NSDAP, and what were your reasons, as an active official of the navy, to join a political party?
A. I joined the NSDAP in August of 1926. The reasons I have described before. They were not connected with my professional interests; neither were they connected with my social interests. They were human motives which were based on my attitude toward the social question.
Q. In 1929 you also joined the SA, did you not? What were your reasons for that step?
A. In 1929 I had been ordered to Swinemuende. The whole group of the Party there to which I belonged consisted of about 30 men.
The SA was not at that time - did not have the same strength, just previous to the seizure of power, as immediately following it. The SA did not exist in that form at all at that time. In 1929 we therefore understood the SA to mean those people who had sufficient courage to wear the brown shirt and to be in the front ranks.
Q. In the affidavit which you gave and signed on 17 March 1947, which has been used by the Prosecution as Exhibit No. 3, you said, among other things, that in 1924 in Kiel you were appointed a candidate for the municipal elections in Kiel. What were your reasons at that time for doing active political work in public life?
A The so-called League for German Right did not take part in the elections. The so-called National Movements joined in a so-called National Socialist bloc, and it was under the leadership of the former Admiral Rosenberg at Kiel, who knew me because I served under him during the war, and he knew that I followed those ideas. He asked me to have my name placed on the candidate list -- which I did.
Q Before the National Socialist party came into power in 1933 you were already a leader of a local group of the NSDAP and you were active in the SA. What were your reasons as an active disbursing officer of the navy to work actively in political life?
A These were the same reasons which I described before. During my political activities I did not take any consideration for my professional activities. The human element was much too strong.
Q In 1934 you were a disbursing officer in the German navy. In that year, however, you left the navy and joined the SS. What were your reasons for giving up your career in the navy and devoting yourself to administrative affairs in the SS?
AAfter the First World War -- in 1920 and 1921 -- the organization of the new German navy was based on strong reformist movements in the field of naval administration. At that time I took part in this work. This work consisted of, and aimed at, the reorganization of the whole administration; to give it new life, which was based on experiences which had been gained during the war. Things should be brought up-todate, we felt. This work at that time could not lead to any success because here again in this very small circle -- just as in the whole of the German nation -- everybody just pursued his own interests; everybody fought everybody else, and thus no success seemed possible. When, therefore, in January, 1934, Himmler -- after having asked me since May 1933 to join the Reich leadership -- pointed out that he, by order or Hitler, and within the framework of the SS, wished to form units based on the army model -- they were called special service troops and they followed the example of the army, even in administrative matters -
and that if I should accept he would give me something to do in the building up of this administration; that in fact he would give me a completely free hand. I saw a wonderful opportunity to carry out the ideas which were already expressed in the reformist tendencies which I described before. They were my own ideas. I accepted the offer.
Q On the first of February, 1934, you therefore took over the so-called Administrative Office - SS as the chief, which was an office within the SS-Main Office. Who was your superior at that time? What were your tasks within the SS-Main Office?
A My superior, as the head of the SS-Main Office, was at that time Gruppenfuehrer Seidl-Dittmarsch who, a few weeks after I joined the Office, died, and was replaced by Gruppenfuehrer Ditsche. The administrative office which I had under me was an office within the SS-Main Office. Its tasks at that time were restricted to the field of administration within the General-SS; its center was the FM-Administration. That is, administration of the money of the members who supported the SS with funds. Other tasks were to develop an administrative organization; that is to say, to build up administrative agencies for everything which concerned the units of the General-SS, and to train administrative personnel. These were the main tasks.
Q Now, as the head of the administrative office of the SS, how did your activity develop up to April 1939, and what ranks did you hold during that period within the SS?
AAs early as 1934, when I joined this organization, the first political units were formed. These were men in uniform who were stationed in barracks who came from the General-SS and whose sole task really was to take over guard duties at the various political party agencies in Munich. In 1935, roughly, the first units of the SS Special Troops, who were the predecessors of the Waffen-SS were established. Just after the seizure of power the Leibstandarte Adolf Hitler was formed. But this unit, from the point of view of administration and organization, went its own way for years. The first units of the Special Troops was the Standarte Deutschland (Germany), Germania and, I believe, Reich.