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The defendant Pohl is still unaware to-day by whose order the Jews in Globocnik's labor camps were withdrawn on 3 November 1943.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?
Code and "subsequent assistance" (Leipzig Commentary on Reich Penal Law Code at the place indicated on pages 322.340 quoting references). Such "participation" of the defendant Pohl as an accessory or assistant in the so-called Reinhardt Operation actually never took place, either on 4 October 1943 or later.
The defendant Pohl's acts took place under the German law: he should benefit by this fact and for this if not for any other reason punishment is out of the question, after what has been said. But even quite apart from this and from the point of view of English law the term "accessory after the fact" cannot be applied in this case, for here the necessary "assistance" is lacking, as has been explained before. The latter is interpreted by Stephen to the effect that: "active (!) assistance must be given to escape, or conceal him from the police, or even destroy incriminating evidence in order to avoid conviction. A mere omission (!) to prevent the felon's escape or to inform the police of his movements will not render a person an accessory, though it may amount to the technical offence of misprison of Felony".
From these elaborations follows in the first place the important fact that only "active assistance" can constitute a crime and that therefore a prior no attempt should be made to formulate any offence for neglect. But still further facts emerge; the term "accessory after the fact" applies to the abetting of the principal personally. Only this, if anything, can come under Article II, paragraph 2b. In other words, a so-called objective abetting, which Article 257 of the Reich Penal Law Code places beside personal abetting, is not "participation after the fact" as viewed from the angle of German law and not even an instance of "accessory after the fact" from the point of view of AngloSaxon law. Therefore, Article II paragraph 2b of the Control Council Law No. 10 can in no way be considered as applicable in this case.
Other relevant literature also agrees with this restriction to so-called personal abetting of the principal, the promises for which are not given in this case.
Welsher on page 23 says even more distinctly than has been quoted so far: "Receives, harbors, or maintains the felon that is to say, gives him any assistance whatever in order to hinder his apprehension, trial or punishment (I).
I beg the Tribunal to take judicial notice of what is coming now; and I shall turn to Number V, which is on page 122, at the bottom of the page:
Here Control Council Law No. 10, Article II, paragraphs 2c and d is to be discussed. According to it he is responsible who" (c) took a consenting part therein" or "(d) was connected with plans or enterprises involving its commission."
1.) As for paragraph 2c "took a consenting part therein", the translation at hand reads: durch seine Zustimung daran teilgonommen hat".
The version as used here is apt to be applied wrongly, especially as the translation cited is also misleading; "Zustimmung" (this is how "consenting part" is translated here) is a generic term as defined by Articles No. 183/184 of the German Civil Law Code and as such comprises "previous consent or agreement" (Article 183 of the Civil Law Code) and consent after the fact or approval (Article 184 Civil Law Code). It is, however, evident that here (in Art. II, paragrach 2c) only former, previous consent, that is agreement, can be meant; in this respect the wrong translation of that passus must be corrected. For it is absolutely impossible that anybody should share in the responsibility for a crime that has already been committed and completed, by giving his "subsequent consent or approval." This would run counter to all established principles in penal law. But above all it would be inconsistent with the meaning of the English text and with the usual meaning of the words "consenting" and "consent": whenever "consent" occurs in Anglo-Saxon penal law then it means the so-called agreement of the injured party.
Such previous consent on the part of the defendant Pohl to the so-called Reinhardt Operation, which would render him personally responsible for the latter cannot be proved.
Until 4 October 1943 he had no knowledge whatsoever of the aims of this operation, he only learned of them through the speech which the Reichsfuehrer-SS delivered in Poznan. As the operation had been concluded by that time, "agreement" to further and future measures of extermination must of necessity be out of the question. On the other hand "approval" of past measures could no longer form the basis for criminal responsibility. But even if we would, unjustifiably, ante-date Pohl's knowledge of the matter to 6 February 1943, that would not alter the result, for even then every proof would be absent as regards "agreement" to future extermination measures (knowledge itself does not suffice, just as little as remaining in a position which had nothing to do with the measures as such) and this could not be replaced by any "approval", which one might possibly (and as a matter of fact wrongly) think could be discovered in the subsequent utilization of the various parts of the property. Therefore paragraph 2c also fails to establish responsibility on the part of the defendant Pohl under Penal Law.
2.) According to Article II, paragraph 2d the defendant has already committed a crime, as defined under paragraph 1, if he "was connected with plans or enterprises involving its commission." The translation at hand of that passage reads as follows: "Mit seiner (d.h. eines solchen Verbrechens) Planung oder Ausfuehrung in Zusammenhang gestanden hat."
"Connected" quite generally means: be associated with (verbunden sein). Beside the plans, the enterprise itself is mentioned. Both must involve the commission of the crime. Despite this loose linguistic wording the actual meaning of the provision can only be that the person charged must actively have participated in plans for and the commission of the crime; this is indicated by the last phrase "involving its commission" and eliminates every doubt in this respect. This "commission" of the crime is in contrast to the more utilization of what has been gained by the crime. The provision therefore does not apply to the defendant Pohl.
VI Here Central Council Law No. 10, Article II, paragraph 2e is to be discussed, according to which everyone is responsible who "was a member of any organization or group connected with the commission of any such crime."
Paragraph 2f refers exclusively to crimes against peace within the meaning of Article II, paragraph 1a and therefore does not arise here. The most important point to be decided is contained in the question, whether the defendant Pohl as Chief of the Economic and Administrative Main Office belongs to one of the "organizations or groups" named; as for the restriction imposed by the words "connected with the commission" reference should be made to the explanation given at the end of the foregoing section. There is actually no difference of any importance between "organization" and "group", as the term "group" does not simply imply an agglomeration of any number of persons, but premises presuppose that an inner unity exists. The fundamental idea of such a coming together is always the "purpose" which is aimed at and followed: without it an "organization" or "group" of the kind mentioned is unthinkable; and this purpose, which is known to each number and denied by him, must, according to the wording of the provision, be directed towards the "commission of any such crime."
For the correct understanding of this passage, too, reference should be made to the general remarks previously advanced: the defendant acted under German law, therefore the interpreting rules and terms provided by the latter must be taken into consideration in detail. Useful guides for what constitutes such a criminal "organization or group" are given in the first place by the literary discussions concerning Article 128 of the Reich Penal Law Code, which are based on the conception of the prohibited participation in certain "associations". The literature authoritative in this respect unanimously considers the guiding "purpose" in particular as significant of the fundamental idea of such an association. Differences of opinion which may occur on details are irrelevant in this connection. This "purpose" of the organization or group, which, of course, applies only in as much as he who shares the responsibility know of it, and which, in addition, he made his own purpose, must refer in particular to the commission of a crime according to Article II, paragraph 1. For this there is no proof of any kind in this case.
The defendant Pohl was Chief of the Economic and Administrative Main Office. The purpose of this office - if one can talk of an "organization or group" in this respect at all, which may justifiably be doubted at first - were exclusively of an economic nature, whilst the "purpose of exterminating the Jews in Europe" - as was established and explained above in more detail - actually was not carried into effect by such an "organization", but "on the direct orders of Hitler and the Reichsfuehrer-SS Himmler" that is to say that it was conceived by Hitler and Reichsfuehrer-SS Himmler and on their direct orders was carried into effect by their immediate subordinates. This was a "top secret" (not the aim of an organization or an independent group!) and was concealed from the defendant Pohl and his assistants. The defendant Pohl did not know at all where the valuables came from and even when it came to his knowledge namely, 4 October 1943 or 6 February 1943 respectively he did not join any "organization or group" which on its part would have pursued that "purpose". No he has tried to maintain or prove this, quite apart from the fact that at that time the crimes in question had already been committed and were not just being contemplated. Consequently in this respect (Article II, Paragraph 2a) as in every other criminal responsibility on the part of the defendant Pohl cannot be substantiated.
THE PRESIDENT: We will recess until seven o'clock.
THE MARSHAL: The Tribunal will recess until 1900 hours.
(The Tribunal recessed until 1900 hours.)
EVENING SESSION
THE MARSHAL: The Tribunal is again in session.
DR. SEIDL: I had stopped at the investigation of the legal status of the Reinhardt action and the defendant Oswald Pohl's responsibility into penal law in this connection and I start now with page 128, paragraph VII.
Thus the legal valuation of the foregoing facts has been carried through in every direction relevant to the case. Further crimes, for instance "Genocide" within the meaning of the Resolution of the General Assembly of the UN on 11 December 1946 or the like, are not under discussion. The Economic and Administrative Main Office had no right of seizure of its own, so that from the aspect too there is no need for further examination. The defendant POHL had no possibility whatsoever of preventing HIMMLER's extermination program by taking measures himself; even had he resigned from office, when he received knowledge of it (4 October 1943 or 6 February 1943), the carrying into effect of the measures that had been planned by others would have continued in exactly the same way. His remaining in office had therefore no causative influence on the criminal occurrences; it is legally irrelevant.
Therefore, the defendant POHL must be considered as "not guilty" within the meaning of the Indictment (II) preferred against him.
On page 129, under No. 10 starts the legal valuation of the facts concerning the Warsaw Ghetto and the documents introduced by the prosecution in Document 20. I would appreciate it if the Tribunal would take judician notice of these remarks. There are 11 now 11 pages altogether. In my final plea I will now turn to No. 12, which begins on page 140. It is No. 11.
(11) Acting on orders.
The defendant Oswald POHL in uniformly directing the labor -allocation of concentration camp-prisoners acted on the direct orders of his military superior, the Reichsfuehrer-SS and Chief of the German Police.
As shown by the evidence, the order given by HIMMLER to the defendant POHL, which was closely connected with the simultaneous incorporation in matters of organization of the Concentration Camps' Inspectorate into Economic and Administrative Main Office can be traced back to a directive issued by the Head of the State and the Chief Commander of the Wehrmacht, providing, at the same time, for the nomination of a Plenipotentiary General for Labor Allocation.
The Prosecution has, within the preliminary proceedings, submitted a number of documents which also unequivocally prove that the defendant POHL acted by direct command of his military superior.
In these cases the defendant Oswald Pohl was no less bound by this order given to him than any soldier in any other army. A refusal to carry out the orders issued to him could all the less be considered by the defendant Oswald POHL as, at least from the year 1942 onwards, Germany was involved in a war imperiling the vital foundations of the entire nation. POHL was bound to obey the orders imparted to him and could not be expected to investigate the legality of these orders. Nor was this feasible for him. This could no more be expected from him than, for example, from the Commander in Chief of the American Air Force, having received the order to attack the Japanese towns Nagasaki and Hiroshima with atom bombs. The legal evaluation of the facts, of this case leads to the following result:
Obedience to a binding, even if illegal, order by the subordinate constitutes for him an exculpatory cause, therefore rendering him exempt from punishment. This is questionable only in as much as some do not only excuse the subordinate's action but, over and above, pronounce it as "justified". A further examination of this controversial question within these proceedings does not seem necessary, the result being identical in both cases, i.e., the perpetrator's examination from punishment.
THE PRESIDENT: Let me ask you a question, Dr. Seidl. Suppose Himmler had commanded Pohl in writing, and as his superior military officer, to cut the throat of every five-year-old child in Poland, and Pohl had done so, would that be a legal excuse if he were charged with murder?
DR. SEIDL: Indubitably, your Honor, it would not be a legal excuse for the very simple reason that this would be a crime. I shall come back to this point in my further deliberations.
Your Honor, I believe this question will be clarified in a few minutes.
In view of the fact that, as a matter of principle, the law prevailing at the time of action must be applied, the defendants having lived within its applicability at the given moment and being bound by it, the question must, therefore, be examined within the compass of paragraph 47 of the German Military Penal Code. According to this regulation the obedient subordinate is liable "to punishment as an accomplice if cogniscant of the fact that the order of the superior concerned an action proposing a general or military crime or violation of the law."
However, it is not the case that paragraph 47 of the German Military Penal Code, as has been assumed in isolated cases, in itself rules in how far military orders are binding or not. This is a question of the public and administrative law.
THE PRESIDENT: Let me ask you another question, and you can answer it when you like. Are we trying this case under the provisions of the German military code?
DR. SEIDL: I didn't quite understand your question, your Honor.
THE PRESIDENT: Are we trying this case under the provisions of the German military code?
DR. SEIDL: According to the indictment, your Honor, the acts of those defendants are governed by Control Counsel Law No. 10. I have already discussed this basic question in paragraph I of my final pleas, and I have also pointed out that this Control Council Law is against an important and generally accepted rule of order -- namely, the basic principle of nulla poena sine lege.
Even then, if one is of the opinion that Control Counsel Law No. 10 is to be the basis of this trial; then, I am still of the opinion, your Honor, that when interpreting Control Council Law No. 10 certain legal convictions and certain legal interpretations are to be used which will consider that law under which these defendants were at the times those alleged crimes occurred. Control Council Law No. 10 is a law which is based on general principles, and which does not answer all questions. Therefore, it must be interpreted in all sorts of ways. When interpreting this law I am of the opinion that here, first of all, we have to also use the German law at the same time -- because these defendants lived under the German law, and because at the time of the act that German law was binding for them. I shall deal with this question later on in connection with acting upon orders, your Honor.
THE PRESIDENT: What about alleged crimes committed in the Ukraine, or in Russia? Shall we apply the German Penal Code to those acts?
DR. SEIDL: If those are crimes which were not committed in Germany but, for instance, in the Soviet Union, then I am of the opinion that in such cases there is the possibility of having the criminals tried under the law which was valid at the place where the crime occurred -- for instance, according to Soviet Russian penal law.
THE PRESIDENT: So that whatever you quote from the German Penal Code, or the German Military Code, has no application to alleged offenses committed outside of Germany?
DR. SEIDL: I am not of the opinion that it does not make any difference at all, your Honor. For instance, when discussing the question if, acting upon orders, should be interpreted or evaluated according to German or foreign penal code I am of the opinion that the German legal concepts are to be taken into consideration along with the international one because this is a relation between a German subordinate and a German superior. On the other hand, however, there is no doubt that an act, for instance, -- murder, or if a person has been injured bodily -- which were committed in Poland or Russia are to be judged in accordance with the penal laws of that country. In any case I think it would be possible. Apart from that, however, your Honor, I am of the opinion that there would not ensue too great difficulties for the reason that the term -- term "murder" or "bodily injury" do not very much vary in international penal codes; and, furthermore, an act which is murder according to Policy or French law is murder also according to the German penal law.
THE PRESIDENT: And according to international law.
DR. SEIDL: Yes, indeed.
THE PRESIDENT: Go ahead.
DR. SEIDL: I shall continue on page 145, at the bottom?
However, it is not the case that paragraph 47 of the German Military Penal Code, as has been assumed in isolated cases, in itself rules in how far military orders are binding or not. This is a question of public and administrative law. But, as under other military conditions, there must always be "an official order". This must be taken for granted with the defendant Oswald POHL. It results from the documents submitted by the Prosecution and from his position as General of the Waffen-SS and Chief of a military force and office.
As is evident from its wording, paragraph 47 of the German military Code requires the punishment of the subordinate only when he "has been cognizant of the fact" that the superior's order "concerned an action purposing a general or military crime or violation of the law."