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."
In all other cases the punishment is applied only to the commanding superior.
Similarly to most military tribunals of other armies, the jurisdiction founded on paragraph 47 of the German Military Penal Code discloses the tendency of a far-reaching reduction in the penal liability of the subordinate. The fact as such remains unalterable though this tendency proceeds from the aim of "securing, in the interest of discipline and constant readiness, the obedient performance of duties incumbent on the subordinate". Here, the point in question is to estimate correctly the legal position at the time of the action.
Paragraph 47 of the German Military Penal Code establishes penal responsibility of the subordinate only if he was "cognizant of the fact" that the order concerned an action "purposing" a crime or the violation of the law.
For this, German jurisdiction demands "positive knowledge" on the part of the acting subordinate; this specially excludes cases of mere doubt (limited purpose or design) or mere acquaintance (negligence). Insufficient, in this connection, is also the supposition that obedience in complying with an order of its own accord resulted in the perpetration of a crime or violation of the law. This must, on the contrary, have been intended by the superior and the subordinate must have been cognizant of the fact.
In applying these principles there can be no doubt that these prerequisites were not fulfilled with regard to the defendant Oswald POHL. He considered the order which has been issued to him to direct the labor-allocation of prisoners centrally and from uniform points of view at the ministerial level, as a war-time measure, indispensable because of the war and of conditions created by the war. The same applies to the other commands given directly to the defendant Oswald POHL, some of which are to be found among the documents submitted by the Prosecution.
It is true, in answer to this, reference will be made to Article 8 of the Statute for the International Military Tribunal, ruling that: The fact that a defendant has acted by command of his Government or his superior does not imply exemption from punishment but may be regarded as extenuating if in the opinion of the Court this appears justified."
Similarly Article II No. 4 of the Control Council law No. 10 reads as follows:
"b) The fact of somebody having acted on the order of his government or his superior does not exempt him from responsibility for a crime but may be considered as an extenuating circumstance."
In answer to this objection the following must be pointed out:
The defendants were, at the time of their action, under the jurisdiction of German law; according to it the measure of their responsibility was assessed and, in fairness, even today, reference must be made to that period. The following should, however, be emphasized if the Court decides that the legal regulations in force at the time of perpetration are not applicable, basing its judgment on law No. 10 of the Control Council in spite of the fact that this represents an open violation of the rule against the retrospective force of penal laws.
Even from the above-mentioned provision of the law established by the Control Council the statement cannot be derived that every order of a superior is in any case legally without significance. This holds good also for the question whether punishment is excluded, and, subsequently, penal exemption. The provision merely states that the fact of such an order in itself does not exempt from responsibility for a crime but, by no means, does it preclude the possibility of this fact, together with other facts, being of importance in this question.
The guiding legal point of view for those considerations is con tained in the idea of the so-called conflicting obligations.
According to it, in order to arrive at a just valuation of the case, the personal position of the perpetrator at the moment of his action will also have to be weighed. This applies, above all, to the personal position in which the perpetrator has been placed by a higher order binding and influencing him. The "order" may, according to the actual position, further modify to his advantage the extent of his culpability.
The great German jurist, Reinhardt FRANK, in referring to conflicting obligations has established the following: "Inasmuch as conflicting obligations have not been specially classified the pronouncement must be in force that the higher, weightier, more important obligations must be fulfilled at the price of the lesser and that non-fulfillment of the latter is therefore not illegal."
It has rightly and repeatedly been emphasized in this connection that the decision, in such circumstances, on the conflict of obligations varying in nature is ultimately not a question of law but of ethics. Therefore a certain latitude must be allowed to the conscience of the individual in such a position; here it is not possible to achieve everything with the rough measures of a penal regulation. This specifically "personal" character of genuine ethical conflicts has also found full expression and complete acknowledgment in the standard philosophical works. Nicolai HARTMANN, for instance, Ethics (2 edition, 1935, page 421/22) says the following about genuine conflicts of values:
"It is a fatal error to believe that such questions can be solved on principle and theoretically. There are borderline cases where the conflict of conscience is very difficult, demanding varying solutions according to the particular ethics of the individual. For the juxtaposition of values is one essential factor in these conflicts, making it impossible to solve them without committing a wrong. Accordingly, the human being placed in this situation cannot avoid making a decision; what he should do in the face of serious, responsible conflicts is this:
Make a decision to the best of his conscience, i.e. following his own strong sense of values and bear the consequences." There should be no need for further proof of the impossibility, above all from an ethical point of view, of measuring such personal decisions from the point of view of penal law.
And now I have reached Point No. 12, which is the last point of my final plea in connection with the evidence introduced against the defendant OSWALD POHL.
(12) The limits of the criminal responsibility of the defendant Oswald POHL in his capacity as Chief of the Economic and Administrative Main Office.
As Chief of the Economic and Administrative Main Office the defendant Oswald POHL was head of one of the supreme Reich authorities which in Berlin alone at times employed up to 2,000 officers, noncommissioned officers, soldiers, officials, and employees. Its main task was the material well-being of almost 1 million men of the Waffen-SS. With regard to the details of the organization and its task, I refer to the statements of the defendants in the witness box and the organization charts submitted by the prosecution. The most pressing of these tasks were the provision of clothing, food and pay for these troops, the settlement of all budget matters and the building of barracks, administration building and hospitals.
Apart from this the defendant Oswald POHL was in charge of 5 Building Inspectorates and 7 main warehouses.
In his capacity as chief of Office Group W he was director of the DWB Konzern (Deutsche Wirtschaftsbetriebe GmbH) and had to supervise and manage no less than 60 sometimes very large plants of this Office Group.
By order of the Reichsfuehrer-SS HIMMLER, issued on 3 March 1942, he was put in charge of the uniform direction of the allocation of concentration camp labor.
Although the formal incorporation of the Inspectorate of Concentration Camps into the Administrative and economic Main Office did not involve a change in the organization and functions of either the Administrative and Economic Main Office of the Inspectorate of Concentration camps, but it did mean the personal subordination of the inspector, whose tasks consisted of the administration of 13 concentration camps and about 500 labor camps, to the Chief of the Administrative and Economic Main Office.
These independent offices were distributed all over the Reich and parts of the occupied territories. This fact alone proves the impossibility of constant personal supervision. It is evident and requires no special proof that the extent of the defendant Oswald Pohl's criminal, responsibility must be considered as much smaller than the extent of his work. The ordinance of the SS Main Legal Office of 1 July 1942 dealing with the competency of the Higher SS and Police Leaders as Highest Court authority for the members of the branch offices of the Main Office and which were submitted as part of Document Book I HL may give an indication of this. In this ordinance it is expressively ordered "that the Chiefs of the individual Main Offices are only competent as Highest Court Authority for proceedings concerning members of their staff at the permanent headquarters of the Main Office. On the other hand and according to the express wish of the Reichsfuehrer-SS, the Branch Offices of the Main Offices come under the jurisdiction of the respective Higher SSand Police Leaders in charge of the area in which those offices are situated. For details concerning these facts I refer to the statement of the witness Dr. Schmidt-Klevenow.
This decree of the SS Main Legal Office was evidently based on the correct idea that the supervisory powers of the Highest Court authority cannot exceed his local powers of command. The result of the regulations laid down by this ordinance were that commandants, concentration camp officers and concentration camp guards came under the jurisdiction of the SS-and Police Court of the district in which the camp was situated and competent for the confirmation of the sentences was the Higher SS-and Police Leader as Highest Court Author ity in whose administrative district or section the camp was situated.
The limits of criminal responsibility can also be established directly from the Control Council Law No. 10.
1.) The "crimes" which are relevant in the proceedings before these military tribunals, are enumerated in the Control Council Law No. 10, Article II, paragraph 1 a to d and comprise 4 groups: (a) crimes against peace; (b) war crimes; (c) crimes against humanity; (d) membership of a criminal group or organization declared criminal by the IMT. The following elaborations are restricted to groups (b) and (c), i.e. war crimes and crimes against humanity.
2.) These crimes must be committed "intentionally". In this connection the following is to be taken into consideration:
a) as a guiding, and in this case also authoritative, principle Donnedieu de Vabres in his "Modern Principles of International Penal Law (1929) page 409 states: "If there exists one principle of International Penal Law which is above discussion, consecrated as it is by a venerable tradition and by advantages beyond doubt, it is that of the priority of the local law."
b) Control Council Law No. 10 Article II, paragraph I defines only the outward extent of offenses. Anglo-Saxon law in principle also recognizes the mental aspect of the deed, the "mens rea" as a requisite for the punishment: "the deed alone does not constitute guilt unless the mind be likewise guilty." (taken from Stephen, Crim. Law 19th ed. 1928 page 11). But "it is impossible now to apply the maxim with regard to mens rea generally to all statutes, and it is necessary to look at the object and terms of each act to see whether and how far knowledge or particular intent is the essence of the offense created" (Archbell's Pleading, 31st edition, 1943, page 20/21). But in each and every case it must first be ascertained what is meant by "mens rea".
c) The Control Council Law No. 10 does not discuss the question of mens rea in the article mentioned.
For this reason alone it is indispensable to revert to the principle formulated by Donnedieu de Vabres (a). Therefore to define "mens rea" more clearly, the law in force at the place of the deed must be decisive, the "loi territoriale".
d) "La loi territoriale", the local law under which the defendant Pohl acted is German law. But this in principle - if there are no special reasons (of which there are none in this case) - recognizes only intentional crimes.
e) This is not a requirement specified by a National Socialist law, the value of which for this reason could be doubted, but by old established international law. Therefore it is also applicable in this case.
3.) The application in each individual case must be based on the generally known legal rules of the doctrine (Delus).
The position which the defendant Oswald Pohl held in the German state carried with it, of course, the duty to intervene if he received information that crimes were being committed within his sphere of responsibility. If, however, such information did not reach him, he cannot have acted intentionally and as a consequence criminally.
On the other hand he cannot be made responsible for everything which happened as a result of the order he gave, as if this had been intentionally planned by him; here again it is possible that the defendant, when issuing the order, had not considered the evil consequences it might have, and if this was so it is impossible to a speak of intent. A similar argument applies to the appointment of executives which the defendant made. In this case, too, he can only be called guilty, if, when choosing these executive officers, head of office groups, heads of offices, nomination of camp commandants, etc. he had neglected to take the necessary care which could be expected of him. For such a supposition no actual evidence has been produced by the hearing of the evidence.
On the contrary, it revealed the fact that immediately after the Inspectorate of Concentration Camps was combined with the Administrative and Economic Main Office, he proposed to the Reichsfuehrer-SS the exchange and the replacement of camp commandants in quite a number of cases.
Furthermore the hearing of the evidence did not produce any proof that the defendant Oswald Pohl neglected his obligations of supervision within his sphere, i.e. to the extent it could be expected of him. In order to arrive at a correct judgment of the attitude of the defendant, the fact must not be overlooked that he held a difficult office during a war, in which the vital foundations of his people were at stake.
DR. RAUSCHENBACH: Dr. Rauschenbach for the Defendant August Frank.
Your Honor, I just hear that we do not have the English translation of the German text. I shall try to speak slowly so that the interpreter can follow.
THE PRESIDENT: Is the translation not completed?
DR. RAUSCHENBACH: No, your Honor.
THE PRESIDENT: Is any part of it completed?
DR. RAUSCHENBACH: I inquired this afternoon at the Defense Information Center. We ourselves are not permitted to go to Room 104, the Translation Department, and I was told the translation was being worked on since the 13th of September, and I was assured that the translation would be finished in time, but this did not happen.
THE PRESIDENT: Well, of course, it goes very much more slowly without having the translation. You have to speak slowly and the interpreters are at a disadvantage.
DR. RAUSCHENBACH: I am afraid so too, your Honor.
DR. HOFFMANN: With the exception of Dr. Seidl nobody else has a translation.
THE PRESIDENT: No other translation? Well, that is a very serious situation and will slow us up immeasurably, and I am afraid that the schedule that we set for ourselves can't be maintained without a translation. Well, let's do the best we can tonight, and tomorrow morning I will try to find out why this intolerable situation exists.
Go ahead, Dr. Rauschenbach.
DR. RAUSCHENBACH: Your Honor, may it please your Honors -
THE PRESIDENT: Dr. Rauschenbach, I am making this suggestion to you, but I am not compelling you to agree to it. As you know, we are trying to expedite this conclusion of the case. Would it be agreeable to you to read your German closing tonight and have it recorded, and then when the English translation comes through the interpreter will put that on the recording tape and give us a copy of it, a written copy of it?