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?
DR. RAUSCHENBACH: Yes, your Honor, I would agree to do that, but may I make a counter-proposal?
THE PRESIDENT: Yes, of course.
DR. RAUSCHENBACH: Namely that I should only read a few excerpts from the final plea which will be translated now so that the Tribunal just doesn't sit there for nothing, you see. Then possibly it should be seen to that the entire final plea when it has been translated should be submitted to the Tribunal before the Tribunal retires for the judgment.
THE PRESIDENT: Of course.
DR. RAUSCHENBACH: Then I believe it will be all right.
THE PRESIDENT: You will have to take our promise that we will read it and read all of it and read it carefully.
DR. RAUSCHENBACH: Thank you very much, your Honor. Very well, then, I shall start.
May it please your Honors, my final plea for the Defendant Frank will show in the brief time allowed, give a picture of his character as far as this will be necessary for judging his character in this trial and describe his activity in the various administrative agencies of the SS. It will go into and answer the statements made by the Prosecution, and finally it will evaluate the total result seen from the point of view of the Defense.
I will have to interpolate a few indispensable legal interpretations. There as well as in the valuation of the evidence I shall specially stress a sort of a collective guilt of persons who have in some way or other been connected with the concentration camps, on the one hand, and the immediate responsibility of certain people who participated in specific criminal actions, on the other hand. The center of my deliberation will be the problem of the participation to be punished under penal law which will have to be examined very carefully in each one of those trials in Nurnberg and for each one of the defendants if it is to be avoided that the penal judge slide into a more or less vague activity of political revenge.
I will skip the following pages. This will be paragraph Roman Numeral 1" Personality, Professional and Political developments, Cirriculum Vitae until Joining the SS, Activity in the Administrative Office SS. 3. Chief Army Corps Administrative and Administrative Office Waffen SS, then Chief of Amtsgruppe A, Page 4 of the German.
On the 1st of February, 1942, Frank, together with the Administrative Office of the Waffen-SS into which the Korpsintendantur had developed, was taken over by the WVHA, and apart from the Army administration tasks he held he was intrusted with budget tasks, personnel matters of the Main Office Budget and Building of the dissolved office Budget and Construction. In the foreground there continued to be for him the requirements of the troops both in the respect of finance, and also the training of the Army administrative officers. The budget matters had in the meantime been considerably simplified because since the beginning of the war a so-called open budget which had been introduced, there the lower agencies were permitted to independently dispose of their funds, and did not depend upon the granting of funds from the WVHA.
The concentration camps were, without exception financed by the Reich Finance Ministry, and it was simply the procuring of the moneys that were under Amtsgruppe A of the WVHA. The concentration camps in this procedure did not have to show or to state for what purpose they were using the amounts applied for.
Apart from the financing tasks, the budget and the personnel matters, the Defendant August Frank was also in charge of auditing. This auditing also was restricted to the financial point of view. That is to say, in order to use an example, it was not part of Frank's tasks to check whether the moneys requested for the Army and the con centration camps were actually used for their clothing, feeding, and lodging, etc.
, in the proper manner.
No. 5, Administrative Chief of Regular Police and Chief of the Army Administrative Office. From Page 12 of Exhibit No. 711, Document 1592 of the Prosecution, it results in agreement with Frank's statement without doubt that on the 16th of September, 1943, he withdrew from all his agencies in the WVHA and became the Chief of the Regular Police.
Then I shall skip to Page 6 of the German document. There we have the Paragraph, Political Attitude and Activity. I refer there to a few affidavits which I am introducing in evidence and shall go on to Page 9, Paragraph g which I shall read. "Frank's attitude becomes especially clear from Speer's affidavit which is Frank Exhibit No. 10. Here we have the evidence that Frank sabotaged a Hitler order, concerning scorched earth tactics, and thus saved a lot of valuable consumers' goods for use for after the war. The importance of this affidavit is stressed by Frank Exhibit No. 4 an excerpt from the I.M.T. judgment, Page 16614 of the German record, because there Speer's opposition to Hitler's policy of the scorched earth has expressly been recognized.
"h) The affidavit of Ernst Ruff, Frank Exhibits 23 and 24, which was executed by a concentration-camp inmate who had been in a concentration camp for a long time, shows that Frank stopped one of the so-called death marches of concentration-camp inmates towards the end of the war without actually having any competency over those inmates. Thus the lives of several thousand inmates were saved. I would appreciate it if the Tribunal would take judicial notice of these two affidavits.
I shall now skip Pages 10 and 11, and shall go on to Page 12 under arab. 2. That is under Roman numeral III. No. 2. Further contents of the No. 1. Apart from Conspiracy. I am far from over estimating the importance of the decision of the International Military Tribunal because Point I of the indictment does not only limit itself to the fact of independent conspiracy but also charges the illegal participation in the establishment and execution of plans for the commission of war crimes which then actually resulted in such crimes.
That is the reason why the military tribunals did not cancel the entire Paragraph I of the indictment. However, it is noticeable that the judgment of Military Tribunal No. 1 in the case against Karl Brandt and others does not further deal with Point I of the indictment and does limit the sentences in each case to counts II, III and IV. This restriction was possible without any further consideration because the participation in actually committed war crimes and crimes against humanity are included in the counts II and III. I assume, therefore, that this Tribunal in this case will not further consider either count I of the indictment.
At the same time the act of the independent conspiracy was cancalled, all that remained and that is why the reputing of independent conspiracy must not be overestimated, in the extreme far-reaching forms of participations and with which the Prosecution charges the defendant with under Law No. 10, Article II, Paragraphs 2, c, d, and e. I shall come to this subject later on. But here already I believe that it is important to refer to it on account of the close connection with the conspiracy. The ways of participation mentioned do not only limit themselves to the German penal forms of conspiracy, abetting and assisting in the crimes, but also include the simple agreement to the main crime, and "being in contact with" plans and enterprises which refer to certain and later on actually committed war crimes and crimes against humanity. Here again the concepts overlap, i.e., of the independent conspiracy, on the one hand, and the participation in certain crimes, on the other hand, instead of the fine shades between the term of the independent conspiracy and the participation in another crime, I take the liberty to refer to my opening statement for the Defendant Frank.
I shall continue now on page 15, under Paragraph 1 concerning the question of the punishable participation. I shall first refer to the statements of my colleague, Dr. Seidl on Pages 115 to 128 of the German text of his final plea. There he has deliberated in detail the problems of the abettment after the act has been committed, the participation by consent by the membership connected with these crimes, and with reference to German and foreign literature. I shall only make a few additions as far is the forms of participation, the knowing partnership, the to be in connection with and the membership to a group, etc., are considered.
As I already stated before, the answer to the question depends on the solution of the problem of the punishable participation in the act, whether the Defendant August Frank can be sentenced. When the charges were made, it looked as if Frank's conviction would be absolutely unavoidable, provided, of course, the Tribunal should, agree with the Prosecution concerning the punishable participation. The fact of committing crimes in the concentration-camp system, and the fact of Frank's position as deputy of Pohl's and Chief of Amtsgruppe A in the WVHA seemed if you consider the count No. 1 of the indictment sufficient to make the statement, that Frank was in some sort of connection with the system of the concentration camps and therefore was responsible for all crimes which were committed there.
This result would have been absolutely incompatible with the Continental and particularly with the German concepts of penal guilt, and it scans to me that this could not have been justified by American or English law either. The result would be a mixture between collective quilt, as it is meted by by some as a moral guilt, to the whole of the German people, with a punishable guilt of the person violating the law. In between the two we have the offence of the membership in one of the organizations declared criminal by the I.M.T. Without going herein to the very disputed problem of the criminal facts of the membership in the organization, it can be regarded here as being certain that the ascertaining of a personal participation in certain war crimes and crimes against humanity necessitates a much more exact and limited finding of guilt and the ascertaining of causes or connection, particularly as the sentence for such crimes as much more severe than the sentence for simply being a member of an organization.
Concerning the misgivings at the beginning of this trial, namely that Frank, according to the sense of the indictment could be made co-responsible under the penal law, for all the crimes mentioned therein, misgivings which made it very difficult for the defense to build up their case as it was uncertain to which part of the indictment I would have to bring counter-evidence, in other words, rebuttal evidence. There seems to me, I hope, to be no more reason for it, now at the end of this trial. I have already understood the way in which the Tribunal carried on these proceedings, especially in connection with certain questions, and also the admonitions to the Prosecution, especially, to limit the introduction of evidence, to mean that the Tribunal considerably concentrates its findings in opposition to the indictment, and this avoids the danger of an unclear and sort of vague connection of the defendants with the crimes which have been ascertained. In order to show quite clearly what I am trying to say, I would like to quote the words used by one oF the acquitted doctors in the Military Tribunal No. I, in the case against Karl Brandt and others, This doctor who felt not guilty ever since the beginning, but was however afraid, at the beginning of the trial that he might be sentenced, because according to the prosecution he was brought in connection with criminal experiments carried out by others.
I was in a position to set this doctor at east very soon and then immediately after this Tribunal pronounced its judgment against Erhard Milch. Along the same line with the said judgment which showed a very close similarity to the continental and in particular to the German concept of punishable guilt, and which also considerably reduced my fears concerning the defendant August Frank runs the judgment of Military Tribunal No. I in the case against Karl Brandt, and others, from the opinion for is the acquittal of the defendants Rostock, Poppendick, with regard to Count II and III, and of Blome, it can be particularly well demonstrated that Military Court No. I in contrast to the presentation of the Prosecution, did not arrive at finding a criminal activity, if only common, knowledge art being connected with but not on only counsel act of a defendant, assisting in the realization of the committing of a criminal act or the omission of an interference which would have been possible in his position against criminal experiments. The court has thereby also arrived at a remarkably independent position with regard to paragraph 2, d and e, of Article II of Law No. 10, where the "being connection with" without immediate participation, in a deed, is made part of a criminal act due to a sort of too intensive search of interrelations. I shall now quote a few sentences from the verdict, which I wish to skip, but I would like to recommend it to the special attention of the Court. I shall continue on page 20, second, paragraph. By this sentence of the Military Court No. I in connection with the case against Erhard Milch, in my opinion the formal participation of simply "having knowledge of" "being connected with" or "being a member of a group" must also be excluded from this trial, if it has not been found that the defendant has become parxonally guilty as a condition sine qua non, of a criminal deed.
By these facts Article II, paragraph 2, c, d and e, of Law No. 10, which appear strange to the German lawyers, are limited to cases where the personal guilt of the defendant has unequivocally been found. This concluded the circle. I started with the judgment of the IMT, and I shall quote, "among the most important principles is the fact that criminal guilt is a personal one and mass punishment must be avoided." Similarly, Tribunal No. II had expressed itself against Erhard Milch, the high demands put by this court in finding the guilt have been particularly clear, from the opinion of Justice Musmanno, which I do not have to quote here. I shall continue on the same page, paragraph 2, about Frank's responsibility as the deputy chief. Among the seven-hundred documents submitted by the Prosecution, there is not one which shows convincingly clear that Frank ever deputized for Pohl in Office Groups B, C, D and E. There is only an occasional activity on the part of Frank within the scope of the so-called Reinhardt Action, which I shall discuss later. Frank had to deputize for Pohl only for the reason because as a Reich Economic action, the Reinhardt Action was outside the scope of the WVHA; Pohl appointed Frank particularly for that case, as the most senior office group chief. Frank's activity as Pohl's deputy in the latters capacity as Reich Treasury Administrator-SS was insignificant in importance and can not be brought up in any connection with the corresponding count of the indictment, as financial authority for the SS and the NSDAP, wad dependent entirely on the Reich Treasury of the NSDAP, and the SS, which was never a dependent property owner, therefore, didn't have any financial advantages from the system of concentration camps.
The latter becomes quite clear from Exhibit Hans Loerner No. 8, paragraph 4, of the law for the security of unity between Party and State and so on. Frank as the deputy of Pohl did not have arty particular contact with the RSHA and its subordinated agencies.
That becomes quite clear from this unrefuted testimony on the witness stand, and from Pohl's testimony about the charge concerning the organization of the WVHA, which was Frank's Exhibit Nos. 1 and 2. I shall continue on page 23, where I speak about the separation of tasks within the office group, which Dr. Seidl has already touched upon in his plea. The final sentence on page 23 reads, what was left of Frank's deputizing for Pohl was his responsibility for the scope of work of Office Group A, which as the office group chief he was in charge of anywar; representing the office chief at ceremonies, for instance, special task by the Main Office chief, such as the measures mentioned within the scope of Reinhardt Action. I am quite aware of the fact that possibly extremely serious criminal penal consequences could be drawn from the fact should it be found that Frank in actual fact was Pohl's deputy in the latter's whole scope of work when it is brought up in connection with war crimes and crimes against humanity of which Pohl has been charged by the prosecution. I believe, however, that the Court will have gained the conviction from Frank's and Pohl's testimony, and other parts of the evidence, that nobody could possibly think that Frank deputized for Pohl in that sense: the prosecution was unable to prove anything in this respect, as to Frank's participation in the Reinhardt Action, and does for reasons mentioned above not constitute any proof for one general deputizing. In contrast to the allegations in this case alone that Frank is mentioned as Pohl's deputy on the organizational chart of the WVHA was sufficient circumstantial evidence for Frank's responsibility concerning the official scope of the WVHA, I mention and point to the statements made by the Military Court No. I concerning the circumstantial evidence in the sentence in the case of Karl Brandt and others, I quote: Circumstantial evidence must not only agree with the guilt but it must also contradict the innocence. Such evidence is inadequate if, provided that every proof of the evidence should be true, another sensible hypothesis of innocence, may equally be true.
I shall then continue on page 26. There is, however, one passage in the cross, examination of Frank by Mr. Robbins, I want to speak about briefly, when he put the question in how far Frank, as Pohl's deputy could have does anything if he had wanted to. That is to say, in how far he can charge that criminal omission concerning the food and clothing in concentration camps were committed. Mr. Robbins asked Frank in connection with food and clothing of inmates in the concentration camp Auschwitz, "You were Pohl's deputy, and as the deputy of the chief of the WVHA, and the fact that it was Pohl's business, did you ever have even the chance of glancing at this affair once?" Frank replied, "Mr. Prosecutor, if during the whole year I had nothing to do with clothing and food in concentration camps, than, surely, it would be absurd if I happened to come into a camp and should then deal with clothing and food. The fact is that I had no idea what was going on." Mr. Robbins than continued, "If and when you inspected a concentration camp, were you struck by anything in particular. For instance, the food and the clothing were not adequate, would you than have without particular obligation by the camp commandant reported to Pohl about that?" And Frank replied, "That is a highly academic question. This is militarily not usual, and not..." Mr. Robbins than asked "Then this thing was not reported to Pohl," Frank Replied, "No, I don't want to say that. Excuse me. If the administrative leader would have drawn my attention to all of this, and had told me, Gruppenfuehrer, I ask you to tell Gruppenfuehrer Pohl that the food is inadequate, and I would have passed the message on, as would anybody else, not in my capacity as a deputy but the administrative officer asked me to do so." From these replies of Franks, the correctness of which has not been contradicted it becomes quite clear that Frank could never have conceived the idea, because of his formal capacity as Pohl's deputy to work in the field of work of other office groups, and that even if he had conceived the idea, he could not have been in a position to carry it out in a reasonable manner, because he did not have sufficient insight and necessary familiarity with affairs of those groups.