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.
THE PRESIDENT: We will take a short break at this time, about ten minutes.
THE MARSHAL: The Tribunal will recess for ten minutes.
(recess)
THE MARSHAL: Take your seats, please. The Tribunal is again in session.
DR. RAUSCHENBACH: To continue on page 27 in the middle, from these replies of Frank's, which have not been refuted, it becomes quite clear that Frank never conceived the idea in his formal capacity as deputy for Pohl to work on tasks of other office groups of the WVHA. Even if he had conceived the idea, he could not have carried out in a sensible manner such activity, because he did not have the sufficient insight into and necessary familiarity with the other office groups.
But even if the Tribunal should take into consideration the possibility of Frank's responsibility in the capacity of other office groups it would apply here what the Tribunal has found in its sentence in the case against Gerhardt Milch. It says there that Milch's sphere of duties was concerned mainly with aircraft production with the Luftwaffe and that his actual acts for the criminal experiments of the doctors was far removed from Milch's immediate supervision. On the basis of that statement Milch was acquitted on the count of participation in criminal experiments. I would like it to be taken into consideration that Frank's interest and activities and his sphere of duties was mainly concerned with the administration for troops and all other matters, such as concentration camps, were far removed from his supervision. In the case of Frank, circumstances are different inasmuch as, and more favorable for Frank than they were in the case of Milch because Milch was no doubt on the highest level the superior officer of the doctors, which in the case of Frank, does not apply to the concentration camps and the Prosecution themselves have not alleged that. I believe I have proved sufficiently so far that on the basis of his former position as Pohl's deputy in the WVHA he could not be charged with criminal acts charged by the Prosecution in connection with the concentration camp system, and that he cannot be charged with criminal omissions, wherefore, he should be punished. I can, therefore, forego the discussion of the problem of his responsibility for war crimes and crimes against humanity committed by his subordinates, a problem which was of importance in the verdict of the Military Tribunal I against Karl Brandt, and also was important in the Yamashita case, because the basis of a punishment for omission in the sense of influencing the subordinates, the criminals, in this sense, is that these were under the orders of the accused officer. The latter the prosecution were unable to prove in the case of Frank without any doubt.
I shall skip the next pages, to page 32. There reference is made to Frank's deputizing for Pohl before the war. As this is not so important I shall omit it.
Franks Responsibility for Certain Special Incidents.
a) Seizure of Jewish and Foreign Property and Reinhardt Action.
I shall not repeat before this Tribunal the details of this matter and I refer to the transcript of Frank's examination and the final plea by Dr. Seidl.
Then I have briefly summed up in the next paragraph the whole complex of seizure of Jewish and foreign property under the Reinhardt Action, and I emphasize Frank's personal activity.
I shall continue on page 33. I is, roughly, the tenth line from below. Here we are concerned with the beginning of the Reinhardt Action the various measures of confiscation. Here we have three orders by the Chief of the WVHA, of 26 September 1942, 9 December 1943, and 4 July 1944. Only the order under "1", which was Exhibit 472, was signed by defendant Frank on behalf of Office Chief Pohl. At the time when the orders 2 and 3 were issued Frank was no longer working with the WVHA.
The second paragraph on page 34, Exhibit 472 of the Prosecution, is the main incriminating point, it is the most essential weapon of the Prosecution against Frank. I shall, therefore, have to deal with that document in greater detail but I shall not do so now but I shall recommend this paragraph to the special attention of the Court.
To quote from page 40, bottom, the summation of this chapter concerning Exhibit 472 -- I believe that this proves sufficiently that when order Exhibit 472 was issued Frank did not know, nor could he know that the confiscated items came from killed people. It should still be examined whether that suspicion was not brought over to him when the report of 13 May 1943 was made to Himmler concerning the watches, fountain pens and other personal items was made out. But even the figures mentioned in this document Frank was in a position to understand without becoming aware that here an extermination action was concerned.
Referring to Office Group D, Frank heard that these were mainly items which were quite newly manufactured, such as razor blades and shaving apparatus, that they had not been used as personal objects by the inmates. This was described as so-called "Warehouse articles", as were stamp collections which, surely, a man who has been committed to a concentration camp would not carry on his person. Even the confiscation of watches of inmates did not seem so unusual to Frank because that happened anywhere, where a large number of people are being imprisoned.
It seems to me that the charges of the Prosecution that behind every fountain pen, every watch, and every pair of spectacles there must have been a dead man recognizable for Frank, I have refuted. But if the documents do not show sufficiently that Frank must have known, or should have known these things, then it should have been proved that before he signed the above mentioned document he must have had knowledge of the Jewish Action of the Third Reich which would have enabled him to know all about the exterminations. The Prosecution did not succeed, - not on cross examination nor through any other means - to prove that Frank knew these things before Himmler made his speech in Posen in October 1943. The suspicion which became clear by the many question put by the Tribunal, namely, that Frank as a high SS officer must have known before October 1943 that Jews were being killed must seem obvious. But suspicion alone should never be sufficient in sentencing Frank - as becomes clear from the quoted passages of the opinion in the case against Milch and against Karl Brandt and others. Frank has admitted openly that he knew about the persecution of Jews and that they were being committed to concentration camps prior to October 1943, but he disputes emphatically, and nobody could prove the contrary, that he knew anything of inhumane treatment or even killing of Jews in con centration camps prior to Himmler's Posen speech -- that is to say, before he left the WVHA.
The second paragraph on page 43 reads as follows:
Now, in order to conclude my statement on the question of seizures of foreign and Jewish property I must once again point to the statement made by my learned friend Dr. Seidl about the giving of comfort to the perpetrator after the act. It seems unthinkable to me that one could take part in a murder by having any part in the utilization of the property of the murdered person. Nor do we have any participation in offenses against property here, if, as in the case against Frank we only have the evaluation of seized - even illegally seized property - the fact of dealing in stolen property does not apply here.
Under German penal law, which must be noted here in view of the fact that these acts were committed in Germany and Frank is a German national, the fact of dealing in stolen property presupposes that the criminal in question must have acted for his own advantage. The prosecution has neither asserted nor proved that by seizing property Frank enriched himself, but even an indirect enriching of his own, by the fact that the SS by confiscating property increased its own fortunes, is completely impossible in view of the evidence submitted here. Apart from the fact that Exhibit Hans Loerner No. 8 shows clearly that the SS was not a property owner of an independent status, it has been made quite clear by Frank's unrefuted testimony and the plan about financing within the Waffen-SS, Frank's Exhibit No. 22, that all seized property went to the Reich Treasury either directly or through the WVHA.
THE PRESIDENT: May I ask a question, please? Isn't just as criminal to receive property unlawfully for the benefit of another as for the benefit of oneself? For example, if I receive stolen property, and I don't keep it, but I give it to a friend, am I none the less guilty?
DR. RAUSCHENBACH: In this case under the German laws we only know the case of receiving stolen property, and if I myself do not have any advantage therefrom, I cannot have committed that crime. It might be said, of course, that I, by receiving stolen property, would have the obligation in a sort of trusteeship sense to return the property to the person it has been stolen from, and in that case I would perhaps commit embezzlement if I passed the thing on, but that presupposes that under any circumstances it was clear to me that the property had been stolen, that even then it is highly debatable, and I do not dare to formulate as an expert my answer in so brief a moment.
THE PRESIDENT: Well, suppose that I steal an Apfelkuchen for my wife or a friend who is hungry. I don't touch it at all. I steal it and give it to him or to her. Can I say in my own defense that I got no benefit from it and therefore I am not guilty?
DR. RAUSCHENBACH: No, Your Honor, here the German law about theft states:
"Whoever takes away from anybody a movable object with the intent to appropriate it or to give it to somebody else...."
TEE PRESIDENT: I must eat my Apfelkuchen and not give it away? Well, suppose I don't steal it, but the thief brings the Apfelkuchen to me and I know that he stole it and I say, "Thank you," and I give it to my wife. I get no benefit from it.
DR. RAUSCHENBACH: That would be the same. Well, then--
THE PRESIDENT: Would you defend me?
DR. RAUSCHENBACH: Certainly, but under German law I would have to deal with the question whether I would not become guilty of abetting crime. I would commit this offense if I would prevent the legal owner of the Apfelkuchen from regaining his property. This is the question of being an accessory after the fact, in giving an object to another than its lawful owner (Sachbeguenstigung), and I shall talk about that point immediately.
THE PRESIDENT: Well, am I not guilty of receiving stolen property then, the minute that I take hold of it, knowing it is stolen, no matter what I do with it, whether I eat it or give it away? Am I not guilty immediately when it comes into my hand under German law?
DR. RAUSCHENBACH: It all depends how Mr. President has received the property. If I get it by chance--
THE PRESIDENT: If I got it from the person who stole it; I got it from the thief and I know that he stole it.
DR. RAUSCHENBACH: In that case Your Honor would probably hide the Apfelkuchen and thereby prevent the legitimate owner from regaining his property, which would be abetting the criminal, a punishable offense.
THE PRESIDENT: No, I am not going to hide it. I am either going to eat it or give it to my wife, probably eat it.
DR. RAUSCHENBACH: Then it is receiving stolen property.
THE PRESIDENT: But if I get no benefit from it and give it away, I am innocent?
DR. RAUSCHENBACH: It might be that a court from the evidence which would be relevant would conclude that you had some advantage from it because by giving it to your wife this might be possible.
But that advantage is precluded here in the case of Frank, and the case of abetting and giving comfort is precluded because Frank did not prevent the legitimate owner from regaining his property. They were owners and they could not regain their property in any case since it had been sequestrated. Therefore Frank was not the man who had caused all this.
THE PRESIDENT: I see. Well, will you send me a bill for your advice?
DR. RAUSCHENBACH: I don't know how I could do that, but I can see that different opinions are applicable here. My colleagues showed in their facial expressions you might dispute that point.
To continue, where were we? This income, as was the income from the economic enterprises which were employing inmates, did not cover the financial transactions of the SS at all because expenses by the SS were, as Frank explained on direct examination, completely independent of its income.
Then I shall briefly comment on the question of abetting or giving comfort, which has been settled by the little conversation we just had. To continue on page 45, the last sentence before the new paragraph: In a certain sense Frank's activity contributed, on the contrary, to the fact that the legitimate owners could regain their property because, inasmuch as the items were to be handed over to the Reichsbank vaults, they were still available at the capitulation and could be returned to the owners in some form or another.
I am then commenting on what is known as the thirty million credit to the DWB, which is a chapter particularly suitable for perusal; I need not read it now.
On page 51, Financing and Processing of the Budget of Concentration Camps and Moneys for the Work Done by Inmates. I shall be able to skip a lot of it, again, as the Tribunal will recall Frank's and Hans Loerner's detailed testimony on the witness stand concerning the processing of the budget, and because in the final plea for the defendant Hans Loerner this subject will be discussed in a briefer form, and I think in an impressive manner; therefore I shall talk about that in the plea on behalf of Loerner.
I shall now skip everything until page 56, the second paragraph:
To look after the clerical side of financing concentration camps is, in my opinion, not at all a crime, or a participation in the war crimes committed in the concentration camps and in crimes against humanity, as would be the supplying of arms and ammunition to the commandos and guard units. In the latter case the Tribunal has ruled on 10 July, I quote:
"The Presiding Judge: There is nothing wrong in supplying ammunition to the guards in concentration camps. They were SS soldiers and they needed arms and ammunition.
"Judge Musmanno: I would like to add the important point is whether the defendant knew that ammunition was used in an improper and inhumane manner and that the guards shot the camp inmates. The mere supplying with ammunition is certainly quite a legal affair, particularly in wartime."
In that case the only thing important in the case of the defendant Frank from the point of view of financing is whether or not he knew that the concentration camp inmates were treated inhumanely and were even killed. That, as I have shown before, has not been proven against him. That by merely handing over money to a concentration camp he made it possible for the inhumane system of concentration camps to exist at all, and so establishing a conditio sine qua non for an illegal custody of human beings, could not be asserted because concentration camps existed before he supplied them with money. To speak more accurately, the proper supplying of concentration camps with money, the more the better, could only contribute to alleviate the suffering and improve the conditions under which inmates were living.
I am then briefly commenting on the money paid out to inmates which I should like to recommend to the Court's attention, and then I am dealing with a few incriminating joints which arose during the trial.
I am doing this simply to be on the safe side.
To continue on page 61, Count 4, Membership in a Criminal Organization. May I point out to the Court an error in the translation here, which I have been informed about, when, in connection with the Reinhardt Action I made reference that it was not only concerned with property of inmates but merchandise from big depots, "depots" was wrongly translated by "camps". It is now all right.
On page 61, Count 4, Membership in a Criminal Organization. At the outset of this important paragraph of my speech I can again refer to the more detailed statements of one of my colleagues which is the trial brief concerning the theory of conspiracy, concerning Control Council Law No. 10, Article II 1 d, which has been submitted by my learned friend, Dr. Haensel. I do not wish to identify myself with the conspiracy theory which has been so profoundly expressed therein, but Chapter V, the Court I am sure recognizes, is completely correct. Many a thing contained in this trial brief is of great importance in the decision of the question whether the defendant August Frank is guilty or not under Article II 1 d of Control Council Law No. 10.
To continue on page 62, Haensel has said convincingly that guilty knowledge of criminal activities of the SS is irrelevant prior to 1 September 1939. I quote: Relevant is only knowledge of acts which had been declared criminal by Article VI of the statutes of the International Military Tribunal." Article VI only enumerates such acts as are connected with the war. The I.M.T. considered itself competent only for those. The conclusion is that only the will to form a criminal consiracy should be punished which existed on 1 September 1939 or which was formed after that period of time.
I shall skip the next paragraph and continue on page 63.
What are the conclusions to form for the defendant August Frank? It has not been proven against him, but it should be proven against him, because the assumption of guilt does not exist under penal law or even under Law No. 10, namely that before the Posen speech of Himmler in October 1943 he was familiar with conditions inside, concentration camps, and particularly the annihilation action.