The prosecution itself apparently does not wish to assert that the Economic and Administrative Main Office and its Chief participated directly in carrying out these measures. At all events, the documents submitted by the prosecution do not permit of such a conclusion. Considering that the Economic and Administrative Main Office itself did not possess any executive instruments such a direct participation would have been impossible. For the rest the evidence in the trial of Hermann Goering and associates before the International Military Tribunal has made it abundantly clear that the so-called "Final Solution of the Jewish Problem" had been carried into effect on direct orders from Hitler and Reichsfuehrer-SS Himmler, by the SS-Sturmbannfuehrer Rudolf Hoess at Auschwitz respectively Birkenau and the SS-Gruppenfuehrer Globocnik in the neighborhood of Lublin.
In this connection I would refer to the statement of Rudolf Hoess, made on 15 April 1946 before the International Military Tribunal (page 7797 of the German transcript), which I submitted in this trial as exhibit Oswald Pohl No. 1.
It is apparent from this statement, which the prosecution did not contest, that Rudolf Hoess, in the summer of 1941, had been ordered to Berlin to take personal orders from the Reichsfuehrer SS Himmler and that the latter gave him orders to make preparations for the so-called "Final Solution of the Jewish Problem". Hoess, in addition, stated that Himmler had enjoined the strictest secrecy upon him, that the planned operation was to be treated as a "Top Secret" matter and that he had even not been permitted to give his immediate superior, the Inspector of the Concentration Camps, SS-Gruppenfuehrer Gluecks, any information.
The evidence given before the International Military Tribunal furthermore proved also that the camps established by the SS and Police leader Globocnik in the district Lublin, had nothing directly to do with the Economic and Administrative Main Office and that the measures put into effect in these camps in the course of the so-called "Final Solution of the Jewish problem" were exclusively the concern of the Security Police, the Security Service and the instruments of the Kriminalkommissar Wirth.
For details I refer to the statement of the witness Dr. Georg Konrad Morgen, made on 7 August 1946 before the International Military Tribunal (page 14846 of the German transcript-) copy of which I submitted as exhibit Oswald Pohl No. 2. This was repeatedly mentioned in this Tribunal.
The evidence before the International Military Tribunal has further clearly shown that the deportation of the Jews to Auschwitz-Birkenau and to the Lublin District was exclusively carried out by officials of the department IV B 4 A of the Reich Security Main Office. This was the department of the Secret State Police which was in charge of Jewish affairs. Chief of this department was SS-Obersturmbannfuehrer Eichmann who had been assigned this task by a direct order from Reichsfuehrer-SS Himmler. The evidence has therefore unequivocally shown that the circle of persons charged with the so-called "Final Solution of the Jewish Problem" was strictly limited and very small, and that the Economic and Administrative Main Office had nothing to do with the actual execution of these tasks at any time.
The documents submitted by the Prosecution at this trial confirm the evidence before the International Military Tribunal. Together with the statements of the defendant Oswald Pohl and of several other defendants, the following facts can be regarded as the outcome of the evidence at this trial:
1.) As exhibit 459 the Prosecution has submitted a letter from Reich Marshal Goering to the Chief of the Security Police and the Security Service Gruppenfuehrer Heydrich, dated 31 July 1941. (document No. 710-PS). The text of this letter reads as follows:
"In addition to the task already assigned to you in the decree of 24 January 1939, to find the best possible solution of the Jewish problem in the form of emigration or evacuation in accordance with the actual situation, I herewith commission you to make all the necessary organizational, practical and technical arrangements for a total solution of the Jewish problem in the German sphere of influence in Europe....."
The Prosecution has not submitted the decree of 24 January 1939 which is referred to in Goering's letter of 31 July 1941. In view of the fact that this decree was issued before the war, it is practically certain that its contents had nothing to do with the measures which were later known under the name "Final Solution of the Jewish Problem". This is also shown by the contents of the urgent letter addressed on 21 September 1939 by the Chief of the Security Police to the chiefs of all "Einsatzgruppen" of the Security Police, which deals with the Jewish problem in the occupied territories, (Document No. 3363-PS, Prosecution Exhibit 458). In Paragraph III of this urgent letter it is stated among other things: "All necessary measures are on principle always to be taken in closest contact and collaboration with the German civil administration and the local military authorities...."
Copied of this urgent letter were sent to the Army High Command, the Commissioner for the Four Year Plan (attention State Secretary Neumann), the Ministry of the Interior (attention State Secretary Stuckart), the Reich Ministry of Economies (attention State Secretary Landfried), and to the chiefs of the civil administration of the occupied territory. Neither the Economic and Administrative Main Office nor its Chief, Obergruppenfuehrer Pohl, were informed of these instructions.
2.) At the end of July 1942 the defendant Oswald POHL was informed by Reichsfuehrer SS HIMMLER that he had come to an agreement with the Reich Minister of Economics and President of the Reichsbank, FUNK, and with the Reich Minister of Finance, Graf SCHWERIN-KROSIGK, whereby "all the assets which in the course of measures taken by the police were obtained in the occupied Eastern territory, should be delivered to the Reich by way of the Reichsbank. He - the defendant POHL - should make the necessary arrangements in agreement with the Reichsbank." The Reichsfuehrer-SS, however, gave no explanation or details of the assets involved, nor did he say from which group of people they were obtained. Some days after receiving this order, the defendant Oswald POHL rank up the Vice President of the Reichsbank, Emil PUHL, to ask him whether he had already been informed by his President, FUNK. He affirmed this and asked POHL to come to see him for a verbal discussion. On one of the next days POHL actually went to the Reichsbank. The conversation with Vice President PUHL lasted only a short time. The result was that each one was to nominate a commissioner from his colleagues, who in turn was to discuss all further details and supervise the execution. PUHL, too, was no better informed of the origin and the amount of the incoming assets than the defendant Oswald POHL himself.
After his conversation with the Vice President of the Reichsbank, PUHL, the defendant Oswald POHL discussed the matter with his deputy in office and Chief of Office A, Obergruppenfuehrer August FRANK. Both of them agreed to commission the specialist of Office A II, Hauptsturmfuehrer MELLMER, with the execution of this task. He received the order from the defendant POHL that each delivery arriving at the Economic and Administrative Main Office should be forwarded immediately to the Reichsbank.
POHL expressly forbade him to bring those deliveries or part of them into the Economic and Administrative Main Office, to open them or concern himself with them in any other way. His activity was to be limited to personally forwarding each incoming delivery to the specialist nominated by the Vice President of the Reichsbank, PUHL. This instruction, issued by the Defendant POHL, was necessary because the order of the Reichsfuehrer-SS expressly restricted the participation of the Economic and Administrative Main Office to the forwarding of the incoming assets to the Reichsbank, and also because the Economic and Administrative Main Office did not dispose in its offices of adequate safe installations.
For these reasons the actual value was never assessed at the Economic and Administrative Main Office. The defendant Oswald POHL never saw such a delivery, neither closed nor open. The number of the consignments received also remained unknown to him to the last.
In the course of time he learned about the composition of the consignment as regards coined and uncoined foregin exchange, as Hauptsturmfuehrer MELLMER came to see him from time to time, at irregular intervals of 6 - 8 weeks, and reported to him on what the Reichsbank had paid into the account "Max Heiliger" in favor of the General Cash Department of the Reich Treasury (Reichshauptkasse). MELLMER had received these figures from the Reichsbank. He only made a note of them with the object of having figures at his disposal for a possible report to Reichsfuehrer-SS HIMMLER. A bookkeeping record, i.e. a ledger entry of the assets, was not kept by the Economic and Administrative Main Office. The defendant Oswald POHL was only informed of the actual total amount which the deliveries to the Reichsbank had reached, as far as the monetary value had been fixed by realization of these deliveries and had been paid-in at the General Cash Department of the Reich Treasury in favor of the Reich.
In other words: Hauptsturmfuehrer MELLER informed the Defendant POHL from time to time of the balance of the account "Max Heiliger". This name for the account must have been agreed upon by Hauptsturmfuehrer MELLMER and the Reichsbank or the General Cash Department of the Reich Treasury, and it was obviously a cover name.
The delivery to the Reichsbank was a final one. There was neither a settling of accounts with the Economic and Administrative Main Office, nor any entry or deposit in its favor. With the arrival and the delivery of the consignment to the Reichsbank, the Economic and Administrative Main Office and its chief Oswald POHL considered the collection by the Reich - represented by the Reich Minister of Finance as complete.
A closer investigation of the procedure by which the Reichsbank "realized" the assets received, as far as they did not consist of coins, is therefore not necessary.
According to the evidence submitted, these "MELLMER consignments" reached the Reichsbank from August 1942 onwards at quite irregular intervals which did not become known to the defendant Oswald POHL. The participation of the Economic and Administrative Main Office in the forwarding of these consignments was limited to the actions which I have described.
3.) About the middle of September 1942 the Economic and Administrative Main Office received a letter from SS- and Police Leader, Gruppenfuehrer GLOBOCNIK, attached to which was the draft of an order by Reichsfuehrer-SS HIMMLER. GLOBOCNIK wrote something like this: in consequence of the evacuation of the Jewish population from the towns of the Generalgouvernement, ordered by the Reichsfuehrer-SS, considerable amounts of valuables are being obtained (foreign currency, jewels, coins, precious stones and other things). The Reichsfuehrer has ordered that the Economic and Administrative Main Office should issue this draft as an economic order.
The draft of HIMMLER's order which included the principles of and the directions for the whole procedure, had the handwritten remark by HIMMLER: "To be issued by the Economic and Administrative Main Office and to be extended to Auschwitz. Property of thieves, hoarders and receivers of stolen goods."
This draft of HIMMLER's order served as basis for working out the instructions issued by the Economic and Administrative Main Office on 26 September 1942 regarding the "realization of property in connection with the resettlement and the evacuation of Jews" which was submitted by the Prosecution as Exhibit 472 (document No. 724). It was discussed by the defendant POHL and August FRANK, SS-Brigadefuehrer at that time, and then worked out and signed by FRANK. Those instructions were sent to the chief of the Lublin SS headquarters and to the administration chief of the Auschwitz concentration camp, but not to any military offices not to any offices of the Security Police or the Security Service, in particular not to the SS- and Police Leader for Lublin or to the commandant of a particular concentration camp. This fact proves that it was a question of the economic realization of already existing valuables, and not of obtaining these valuables, possibly by seizure.
4.) By teletype of 20 or 21 October 1942, addressed to Ooergruppenfuehrer POHL and to the Lublin concentration camp, the Reichsfuehrer SS ordered that shoes and working clothes had to be surrendered for 10,000 Volksdeutsche (document NO-606, Prosecution exhibit 151). A further directive issued by HIMMLER, on October 1942 to Obergruppenfuehrer POHL and to Obergruppenfuehrer LORENZ in his capacity as chief of the Main Office "Volksdeutsche Mittelstelle" ordered the delivery of "Household articles and clothing from the stores at Lublin and Auschwitz" to a series of groups of Volksdeutsche at Christmas 1942.
5.) A written report was submitted to Reichsfuehrer-SS HIMMLER on 6 February 1943 on the execution of those directives. This report "on eht use made up to date of second-hand textile goods obtained owing to the resettlement of Jews" was submitted by the Prosecution as exhibit 479 (document NO-1257). It was drafted by the chief of Office B, SS-Gruppenfuehrer LOERNER, and the copy submitted by the Prosecution bears the typewritten signature of the defendant Oswald POHL. The defendant Oswald POHL has no doubt that he saw this report at that time.
The appendix to this report contains the allocation, according to quantity, to the individual consignees named by HIMMLER. It was a question of 825 freight cars, 405 of which contained rags and second-hand materials which had been sent to the Reich Ministry of Economies. One freight car of woman's hair (3000 kilos) apparently came, according to the explanation given by the defendant POHL, from the Lublin concentration camp, because generally the hair of women from the Eastern territories, in particular that of gypsies, was cut off upon their delivery to the camps.
6.) In June 1943 the SS-auditor of Cracow, Standartenfuehrer SCHOLLIN, reported to the defendant POHL in Berlin. He complained that the SS- and Police Leader for Lublin, SSGruppenfuehrer GLOBOCNIK, prevented him from making the due examination of the payment department of the SS Lublin headquarters, which was one of the duties of the Cracow SS-auditor. The payment department was an independent office of the Waffen-SS and was not I say not subordinated to the SS- and Police Leader for Lublin, but to the SSauditor at Cracow.
As a result of the complaint made by Staddartenfuehrer SCHOLLIN, the defendant POHL sent the chief of Office A IV, Obersturmbannfuehrer VOGT, to Lublin to make the examination of the payment department as prescribed by the Reich Treasury regulations; he sent the Office Chief VOGT himself and not any subordinated specialist because the personal relations between the defendant Oswald POHL and the SSand Police Leader for Lublin, Gruppenfuehrer GLOBOCNIK, were very strained, and because he was afraid that GLOBOCNIK would again prevent any commissioner of lower rank from making the examination.
VOGT received from the defendant POHL the order to carry out the legally compulsory examination of the paying department of the Lublin headquarters. VOGT returned from Lublin to Berlin after about 8 days. About 2 or 3 days later - it may have been the end of June 1943 - VOGT reported to POHL and submitted to him a brief written report. On account of his findings on the spot, VOGT himself had broken off the examination, returning to Berlin. From this report of VOGT's, the defendant Oswald POHL then learned for the first time that Gruppenfuehrer GLOBOCNIK carried out the order, given him by Reichsfuehrer-SS HIMMLER, for resettling the Jews, under the name of "Operation REINHARDT". Without having previously asked for the approval of the defendant Oswald POHL, he had appointed the Sturmbannfuehrer WIPPERN for the financial side of this action. Now the defendant Oswald POHL became aware why Gruppenfuehrer GLOBOCNIK had refused to release Sturmbannfuehrer WIPPERN for a front-line unit, though WIPPERN was in no way subordinated to him, and why, also without POHL's knowledge, GLOBOCNIK had addressed himself to HIMMLER with the subject of achieving that WIPPERN could remain at Lublin.
7.) On 22 September 1943, Reichsfuehrer-SS HIMMLER sent a letter to the defendant Oswald POHL and to SS-Gruppenfuehrer GLOBOCNIK with the order "that GLOBOCNIK will take charge of the clearing of the account REINHARDT 1 before 31 December 1943 and will then hand over the matter to POHL or to the commissioner of whom I am yet to be informed." (document NO-3034, Prosecution exhibit 485). GLOBOCNIK himself informed HIMMLER by letter on 4 November 1943 (document NO-3034, Prosecution exhibit 485) that on 19 October 1943 he had concluded Operation REINHARDT and dissolved all the camps. However, his statement in this letter that he had handed over the labor camps to SSObergruppenfuehrer POHL, is incorrect. The transfer of these labor camps only took place in January 1944. At that time POHL had not received a copy of this letter of GLOBOCNIK's to HIMMLER, which GLOBOCNIK had already sent from his office as Higher SS and Police Leader in the Zone of Operation Adriatic Coast Territory, neither had he been informed of its contents in any other way.
3. In a letter dated 5 January 1944 Globocnik submitted to the Reichsfuehrer from Triest the report regarding the economic winding up of Operation Reinhardt (document NO064, prosecution exhibit 486), Globocnik complained in this report that "up to now Obergruppenfuehrer POHL had not had time to carry out the transfer". Pohl at that time - that is January 1944 - received a copy of this report.
The defendant Oswald Pohl participated in none of the discussions which must have taken place between Himmler and Globocnik about this operation. Neither of them at any time, either before or after, enlightened him - verbally or in writing - as to the true events.
A veil of deepest secrecy lay over everything, as indeed the whole operation was treated as "Top Secret".
The defendant Oswald Pohl was unable at any time during the course of this operation to realize that it was being directed exclusively against Jews. On the contrary: in the report regarding the economic part of Operation Reinhardt (document NO-057, prosecution exhibit 487) made by Globocnik himself, under paragraph B 7, it is pointed out that about 52,000 workers were available for the construction of plants. That this could only mean Jewish workers can be seen from the purpose of Operation Reinhardt, to which, according to Globocnik's representation, belonged the utilization of Jewish workers by concentrating them in camp plants to which war important production was transferred, It was known to the defendant POHL that in all these plants Jews worked until the evacuation of the occupied area.
The defendant Pohl is still unaware to-day by whose order the Jews in Globocnik's labor camps were withdrawn on 3 November 1943. He himself appears to have been surprised by these measures as can be seen from paragraph D 5 of his report dated 18 January 1944 (document NO-057, prosecution exhibit 487).
9.) It was not known either to Oswald Pohl or to his colleagues that the valuables arriving in Berlin from the East and Lublin originated from Operation Reinhardt. When he saw the report to Himmler written by the head of Amtsgruppe B on 6 February 1943 (document NO-1257, prosecution exhibit 479) he was firmly convinced that it was a matter of textiles and second hand material which had resulted from police confiscation in Ghettos and warehouses as well as articles from the collections of second hand materials which were carried out in the Generalgouvernement exactly in the same way as it had been carried out by the "Reichskommissar for the Collection of Second-hand Material" in the Reich.
Until the final report from Globocnik was submitted in January 1944 he had only seen two statistical documents concerning the valuations from the East, namely:
a) the report dated 6 February 1943, concerning textiles;
b) Mellmer's report from Autumn 1942 concerning the deposits made by the Reichsbank at the Reich Treasury to the "Max Heiliger" account of the Reich Ministry of Finance.
10. At no time was Gruppenfuehrer Globocnik assisted by personnel from the Economic and Administrative Main Office being transferred to him. "Department Reinhardt" and "Special Tasks G" established by him were working groups which he had established in Lublin and supplied with personnel from the Lublin Administrative Offices without having obtained the permission of the Economic and Administrative Main Office. The existance of these working groups became known to the defendant Pohl through the final report of Globocnik. These working groups were directed by Globocnik himself and were only responsible to him. They had nothing to do with the WVHA.
11. The valuables forwarded to Berlin from the East (Lublin) reached three different destinations:
a) cash (amounts in Reichsmark) was remitted to the Economic and Administrative Main Office (Reichsbank account No. 1288 in Berlin-Schoeneberg). Here it was collected and the Reich Ministry of Finance notified so that they might take possession of it. The highest amount was 12 million Reichsmark;
b) gold, jewelry and instruments of foreign exchange went to the Reichsbank in Berlin and through the hands of the already mentioned Hauptsturmfuehrer Mellmer.
The Reichsbank converted the part which they were unable to realize through pawnbrokers and remitted the entire equivalent value to the Reich Treasury to the "Max Heiliger" account on behalf of the Reich;
c) watches and fountain-pens were delivered by Mellmer for repair to the repair shops which had been set up in the Oranienburg concentration camp (Sachsenhausen), There they were put in order and were delivered to certain places requiring them, according to Himmler's instructions. The deliveries were made against payment in favor of the Reich in as far as the articles were not used by Himmler as Christmas presents for the troops.
12. The auditing of the whole operation in which the defendant Vogt became quite unwillingly involved in June 1943, took place later through Hauptsturmfuehrer Mellmer, who used the reference A II/Reinh. in his correspondence in this connection. The auditing took place in Berlin, where Wippern sent in the documents of account and vouchers.
13. The prosecution has submitted as evidence an excerpt from the Reichsfuehrer's SS speech in Poxnan on the occasion of the meeting of the Gruppenfuehrer (SS Group Leaders) on 4 October 1943 (document 1919-PS). On this meeting - as is apparent from the speech itself - the Reichsfuehrer SS spoke for the first time about the extermination program ordered by Hitler against the Jews in front of the Gruppen- and Obergruppenfuehrer. When questioned in the witness box the defendant Oswald Pohl admitted that he had taken part in the meeting on 4 October 1943 and that he had listened to the speech made by the Reichsfuehrer SS. He then heard for the first time of the measures of extermination carried out against the Jews. In Himmler's speech these measures were represented as having been concluded. In fact it is clear from the documents submitted by the prosecution that by this time, namely by 4 October 1943 "Operation Reinhardt" had been completed.
The hearing of the evidence has shown furthermore that not only the defendant Pohl was surprised by Himmler's report but that other Obergruppenfuehrer who took part in the Poznan meeting, also heard on this occasion for the first time of the extermination program.
The defendant Pohl furthermore admitted when questioned in the witness box that after receiving the copy of the letter written on 5 January 1944 by SS-Gruppenfuehrer Globocnik to the Reichsfuehrer SS, he no longer had any doubt that at least a part of the valuables which were listed in the appendix to this letter were connected with these measures of extermination and originated from them.
The legal analysis of the facts brought to light by the hearing of the evidence leads to the following result:
I The provisions of the Control Council Law No. 10 must be used as the starting point.
Of the crimes mentioned there under article II paragraph 1a to d, the war crimes in paragraph 1c are to be discussed here.
War Crimes (paragraph 1b) are crimes violating the laws and customs of war. Reference is made to the examples mentioned in this law.
Crimes against Humanity (paragraph 1c) have already been mentioned in detail elsewhere. Reference should also be made to this.
That was No. I of my final plea and I am referring to that.
II The acts with which the defendant Oswald POHL has been charged as Head of the Economic and Administrative Main Office (WVHA) are, in short, the following:
He is supposed to have taken a responsible part in the extermination of Jews in Europe, as it is summarized under the heeding "Final Solution of the Jewish Problem" (so-called "Operation Reinhardt").In this it may be considered as established that the WVHA and its chief were not directly involved in these measures, because they had no executive bodies for this purpose at their disposal and that the "Final Solution" was carried out on the direct order from Hitler and the Reichsfuehrer SS Himmler by SS-Sturmbannfuehrer Rudolf Hoess in Auschwitz and Birkenau and by SS-Gruppenfuehrer Globocnik in the Lublin area.
The decisive legal question to be answered, therefore, is whether, in spite of immediate participation being thus precluded, any other kind of "participation" in the proceedings described could be ascribed to the defendant Pohl in a legal sense. When dealing with this question it would seem necessary to distinguish between the time when the defendant, as the evidence has shown, still had no knowledge of the extermination measures carried out against the Jews and the time when he had obtained such knowledge - whether he is to be charged with having such knowledge since receiving the report concerning the sale hitherto of second hand textiles obtained through the deportation of the Jews, dated 6 February 1943, or more correctly whether it is to be assumed that he only obtained such knowledge from the speech of the Reichsfuehrer SS given at the meeting of Gruppenfuehrer (Group Leaders SS) in Poznan on 4 October 1943. However, such a destinction should not be made generally but only in individual cases where the occasion demands it.
III.
With regard to such a "participation II" the Control Council Law No. 10 in article II, paragraph 2a to f gives exact directives concerning the question as to who shall be "deemed to have committed a crime as defined in paragraph 1 of this article". In article II, paragraph 4a and b and paragraph 5 it lays down simultaneously that pleading an official position is no defense, that consideration for an order from the Government or from a superior should be limited, as well as declaring that the statutes of limitation possible immunity, pardon and amnesty are not applicable to the time from 30 January 1933 to 1 July 1945.
In applying the provisions of article II, paragraph 2 the following promise must first be made as being basically related to the case: The Control Council Law No. 10, article II, paragraph 2a and b used the two technical expressions of Anglo-American legal terminology "principal" and "accessory". According to Beale this ancient distinction between principal and accessory before the fact has for a long time been abolished in Various States of U.S.A. (Comparative Description of Present Day Criminal Legislation, Vol. II 1288, page 206). It follows from this that the Control Council Law No. 10 does not intend the expressions mentioned to be understood in the sense of a special legislation be it American or English, but in the sense of the English Comman Law which applies to both the U.S.A. and England (Beale, in place quoted on page 198 and von Hippel, German Penal Law, Vol. I, 1925, page 433).
This however is still not exhaustive. In proceedings of the present type the sentence "Nulla Poena sine lege" is unfortunately repeatedly questioned in general, although such an ominent legal expert, at the same time a member of the International Military Tribunal, as Donnedieu de Vabres (Les principes modernes du Droit penal international Vol. II, 1928, page 407) calles that sentence "an essential guarantee of liberty, a fundamental principle of justice, the application of which to international crimes could not be doubted". This questioning is completedly erroneous; as if in Anglo-American Law arbitrary justice took the place of this sentence.
The recent lively reaction towards a conviction in spite of the fact that it was expressly concerned with older convictions, in the case of Schoenke, Reich Penal Code 3, commentary supplement 1946, page 41). However, that may be, no doubt can or may be raised regarding the special application of the law covering the deed which was valid at the time of the deed. The acts committed by the defendant took place and were executed under the jurisdiction of German Law. According to internationally recognized legal rules, therefore, his activities must be judged according to German Penal Law (in any case in as far as this law has nothing whatever to do with National Socialist principles, as is the case here). In other words, when interpreting Control Council Law No. 10, article II, paragraph 2a to f, which is to be examined in detail subsequently, International Justice also demands consideration of German legal opinions. Only in as far as "participation" can be established also in accordance with them, may the defendant be convicted.
IV.
Here the Control Council Law No. 10, article II, paragraph 2a and b, is to be discussed. "Principal" (paragraph 2a, translated as "Taeter") and "Accessory" (paragraph 2b, translated by "Beihelfer") are technical terms employed by Anglo-American Comman Law. Within the meaning of each of these terms certain more narrow terms are stressed. For the following, reference should be made to Stephen's dommentaries of the Laws of England, Vol. IV Criminal Law 19th edition, London 1928. Archbold's Pleading. Evidence and Practice in Criminal Cases, 31st edition London 1943.
1.) According to Stephen page 28/30, in the case of "felonies" the Anglo-American Law recognizes the two forms of Principal in the first degree" and "Principal in the second degree".
a) "Principal in the first degree" is "the actor or actual perpetrator of the crime" (28), thus the actual and direct principal, and not simply every accessory within the meaning of article 47 of the Reich Penal Code. The defendant Pohl does not come under this heading.
b) a person becomes "principal in the second degree" under two conditions: "he must be present at the scene of the crime and he must assist in its commission" (29). The application of the term is impossible from the outset as the first condition is not fulfilled.
2.) According to Stephen page 30-32 concerning "Accessories"; AngloSaxon law distinguishes between "accessory before the fact" and "accessory after the fact" in the case of felonies.
a) "Accessory before the fact" "is one who, though absent when the felony is actually committed, procures, counsel or commands its commission." These conditions are also not fulfilled here. "Procure" means: To effect, to bring about, or to cause. Before the speech at Poznan given by the Reichsfuehrer-SS on 4 October 1943, or before 6 February 1943, the defendant had not once been informed of the operation much less did he instigate the operation himself. Nor did he do this after being informed. "Counsel" means to advise, to recommend -- "command" means to order, or to bid; in the same way, neither is applicable. Wilsher, the Elements of Criminal Law and Procedure, 4th ed. London (1935) page 22, expressly adds to his definition "actively counsels etc", thereby the rejection becomes even more clear. Reference should also be made to the statements by Archbold, page 1434 and following in the same sense. Thus the term "accessory" can not be applied in this case.
b) "Accessory after the fact" according to Stephan page 31 is "one who, knowing a felony to have been committed, received, relieves, comforts or assist the felon." Three conditions are required (a) the commission of a felony, (b) the knowledge of the accessory, and (c) the assistance which he affords."
It it possible to be "an accessory (to participate) after the fact"? It is appropriate in this connection to refer briefly to the continental development of law as far as this question is concerned and to the German law in force. Even the medieval Italian penal law distinguishes-according to the relation in time of the act to the assistance - between "auxilium ante delictum, in delicto and post delictum". Therefore it recognizes - though with certain modifications - a so-called subsequent assistance as auxilium subsequens.
Viz. Albertus Gandinus, Dartolus, Angelus Aretinus and Clarus. Following the Constitutio Criminalis Carolina of Charles V (OCC) of the year of 1532 and its - as a matter of fact disputed - articles No. 40 and 177 (page 556), the development of the common law also adheres to the idea of "accessory after the fact" as it provides for the auxilium post delictum. Only Pufendorf and in the 18th century Kress and I.S.F Boehmer seem to deviate from this idea: socius delicti in the narrower sense of the term is only he who "antecedenter se ad crimen habuit tamquam concausa." Especially the Austrian Law of the Constitution Criminalis Theresiana of 1768 Art 3, paragraphs 10 and following, considers the aid and assistance, after the act has already been committed, as a "particular crime" and therefore illustrates the effects of the "Verselbstaendigungsgedanke" (i.e. the endeavor to let certain acts appear as punishable offences even after the commission of the main offence) in cases where abetting and receiving are concerned. This development then continues in the 19th century and can be traced in the German Special Law Codes and in the Reich Penal Law Code of today it more or less forms the basis for Article 257 and following of the Reich Penal Law Code: Abetting and receiving - i.e. taking part after the main crime has been committed, are no longer acts of participation within the meaning of Article 47 and following of the Reich Penal Law Code, but independent acts subject to individual punishment. Only the abetting promised before the crime has been committed, is to be dealt with and punished as assistance in accordance with Article 257, Section 3 of the Reich Penal Law Code. The conception of "auxilium post delictum" as such can no longer claim consideration in modern German Law. That is to say, after completion of the deed nobody can afterwards take part in it. Though the German law recognizes the condition of "subsequent accessory", Article 47 of the Reich Penal Law?