At that point of time he would no longer have the possibility to leave the SS. This was, of course, the Waffen-SS, an organization of the Wehrmacht. He could not do that nor could any other soldier. Himmler's attitude, which became clear from his Posen speech and is well known to this Court, made this leaving particularly impossible for so high an SS officer unless he wanted to bring about his own destruction and that of his whole family.
When Frank knew about the crimes within the SS system, he became a military chief of the Regular Police and no longer had the opportunity to support the activity of the SS and perhaps take part with the criminal intention to take part in the crimes. The same applies to his knowledge of the seizure of property of inmates. He did not take any part in this and learned about it only after the seizure had already been effected. He thereupon availed himself of the first opportunity of leaving the WVHA.
I shall skip the next paragraph and continue at the bottom. On direct examination Frank testified that when he was a member of the SS it was his opinion that the Reich had been justified to defend itself against its enemies by locking them up. Thereupon there was an extremely interesting and valuable discussion between the Presiding Judge and the defendant August Frank. From this it becomes clear that at that time Frank thought it obvious that anybody who was in a concentration camp had the right, and was given the right, to be told why he had been locked up and for how long he had been locked up. Frank pointed out that even in other countries still today there were concentration camps, and that Germany at that time, when it was fighting a war for its survival, the State could not have survived without concentration camps. These conditions must not be measured with American terms.
Frank then admitted openly that he knew today that nevertheless this German system had its faults.
I am quite aware of the fact that it is extremely difficult to imagine that an SS Obergruppenfuehrer can be defended against Article II 1 d because if not even an Obergruppenfuehrer had any knowledge of the criminal purposes of that organization, who on earth could then fall under that category and that circle of people which was to be included by the I.M.T. in its judgment?
It was not my intention at first to attack Count IV in the case of Frank at all. However, from my knowledge of his character now and the result of the evidence, and, last but not least, the comments published meanwhile on Control Council Law No. 10, make it appear doubtful to me whether or not Frank can be declared guilty prima facie, as it were, under Article 11-ld without all prerequisites being carefull examined first. Examining these things carefully, I arrived at the result that not even of Count IV is Frank guilty. It is not the case that even knowledge of criminal acts or the will to commit criminal acts from the outset is proved, -- this could not even be assumed by reviewing the evidence, simply because the defendant was a high SS officer. The Denazification trials and the trials under Regulation No. 69 in the British zone for sentencing members of criminal organizations have repeatedly arrived at the fact that there are many officers, high ranking officers, the relations of which to the SS, and above all their activity with that organization, was such that they could not either have been provided with the will of forming a criminal group nor having had any knowledge of criminal purposes and activities of the organization. Experiences with the Control Council Law No. 10, since its issue, have resulted in the statement that there are circumstances when an SS member of a lower rank could know much more about conditions in concentration camps and have a much greater participation in them than a higher leader who was used in a position and in a manner where he could not have that knowledge or that will. That latter applies particularly to such leaders who were merely officers in the Waffen SS or experts of certain technical fields, who, therefore, as any other soldier, or any other expert were limited to a certain field.
The latter was the case with Frank. From the beginning of his activity with the Allgemeine SS and later on with the Waffen-SS, Frank specialized completely in the field of troop administration, which is usual in any army of the world. I believe he proved that sufficiently.
To continue on page 68 -- to conclude my final plea with the last chapter, I shall speak about Frank's character and veracity. Trials which last as long as this have many disadvantages, but on the other hand they have one big advantage. They give every opportunity to make a precise study of the character of the defendant. Particularly, the defense counsel can do so, but so can the court. The most important period of time here for were the days when the Defendant August Frank was on the witness stand. At that time, although I tried to think as objectively as possibly, I got the impression that on the whole Frank had made a good impression on the court. His replies to questions put by the Tribunal were swift and short. He did not delay, and he did not hesitate to admit that he regarded the confiscation of inmate property as an unclean business, of which he wanted to be rid of as quickly as possible and he succeeded in doing so. He frankly admitted and with good reasons that he thinks the system of concentration camps was wrong. If he was asked about matters in which his participation could not have been proved, for instance, his position in the clothes depot in Lublin, and with the Reich Construction Office, Office Group C, he immediately admitted that he was connected with these things, it appeared that his explanations right be absolutely credible. On cross-examination by the prosecution and when the Bench put questions to him, it would appear as though he was the most important expert in that trial for the technical questions of administration, particularly troop administration and that immediately presupposes a certain amount of confidence in his veracity.
In all cases he made the impression of a clear unambiguous man. He only seemed a little uncertain when he was dragged into discussing things which he could not have known from his own experience, such as when my colleague, Dr. Haensel questioned him and when the proceedings of the IMT Trial concerning the incident of 9 November 1938 were discussed.
To sum up the impression he made, I would say that the record concerning the examination Frank both on direct and cross examination constitutes an extremely extensive evidence of high probative value. In any case, there seems to be no cause to turn down his testimony as untrue from the outset, because, in the final analysis, he gave it in his own interest. Were this so, there would be no point in asking any defendant to take the witness stand on his own behalf.
The facts however are the following; As, far as Frank!s testimony is concerned it has not been refuted by the prosecution beyond any reasonable doubt. His statements, at least, according to the principle of in dubio pro reo have to be based on the facts and evaluated and then one must arrive at the conclusion which I have developed in the previous chapter of my speech. There are only two points in the crossexamination -- and there is one document submitted by the prosecution -- which might cause one to have serious doubts Frank's veracity; on page 2438 of the German record, it would appear as though the prosecution had convicted Frank of having kept silent about the visit to a concentration camp. The prosecution asked, "Why did you not tell me about your visit to the labot camp of Lublin, when I asked you for the first time." Reading that portion of the record with regard to that exception, it becomes quite clear that Frank was asked about concentration camps and not about labor camps. When he was asked about the labor camp of Lublin, he immediately admitted that he had been there.
The second exception can be found on page 2458 of the German record. The prosecution asked Frank whether he wished to maintain his statement that he had never seen any figures which could have informed him of the quantities which came from the Reinhardt Action. Frank answered, "I cannot remember." Thereupon he was shown Exhibit 550, a letter from Frank to Himmler of the 8th of October, 1942. This was the letter in which the 50 Kilos of gold was referred to, but that was cleared up, as I said before, in a sense which was entirely favorable to Frank. That case of the 50 kilos of gold I have dealt with in a paragraph which I have not read today.
In Document Book XXXI, the prosecution have submitted a correspondence as rebuttal on pages 3 and 4 of Exhibit 711, from which it becomes clear that SS man Frank, since 25 March 1933 had orders to look after the administration business of the Dachau concentration camp. However, that letter cannot be regarded as proof, quite apart from its factual contents, proof against Frank's veracity. In the whole record I could not find one page where he had been asked to testify about his work in the Dachau concentration camp. I believe when one expects a witness to give testimony, who at the same time is a defendant, one should not expect him to report these incidents spontaneously. If he does not do so, he must not be declared to be untruthful. When he was re-examined on the witness stand the next time, Frank explained this incident quite adequately. His activity at that time -- mind you. This was in 1933 -- was a temporary order by the Administrative Office of the SS to work in Dachau Concentration Camp so that he could look after the books and accounts of the camp expenses to the Economic office of the State of Bavaria. That did not make him a member of the staff of the Commandant or administration of Dachau Concentration Camp. Had this been the case, this would have become clear on pages 2 or 6 of Exhibit 711. I should also like to have it taken into consideration that this incident happened 14 years ago and that it was entirely possible that Frank simply could not remember this matter without being specifically asked about it.
As far as Frank's character is concerned otherwise, I cannot say any more. Everything necessary has been done in the first paragraph of my final plea.
In summation, I should only like to say that Frank was body and soul an expert of troop administration, such as is usual in any army of the world, and any other incidents on the fringes of the performance of his duties, such as supply of concentration camps with money, they were so far removed from his ken that he could not have been made a criminal responsible for the system of concentration camps.
2. Evaluation of Proof. In over 700 documents, Frank has been mentioned only very infrequently. So has his sphere of activities. No witness has ever mentioned his name. No one among the many thousand former inmates of concentration camps volunteered to become a prosecution witness against Frank, although as it is known, and has become clear from Otto's testimony, through the papers, radio and photographs exhibitions, they frequently asked for witnesses of that sort. That is most remarkable, in view of Frank's high rank and position in the SS. That, it seems to me, is most convincing for the fact that there cannot be any prima facie case against Frank. If, therefore, the prosecution could not prove Frank's case beyond any doubt -- and I believe I have given many reasons why they could not do so -- his own testimony and the evidence submitted by his defense must be given full credence.
Concerning the affidavits, it is particularly remarkable that the prosecution could have always cross-examined those persons who gave the affidavits. As far as I have referred to the record of the examination of Pohl on the witness stand, there should be no misgivings against the probative value, because Pohl contributed in no sense of the word to Frank's exoneration here and there is no reason to assume that he -- I believe there is a mistake here in the translation -- because it was clear here that Pohl did not in testifying contribute anything to his own exoneration and there is no reason to assume that Pohl wanted to protect Frank by a wrong testimony.
In weighing carefully all evidence I arrived at the result that the Defendant August Frank is not guilty and, even if one is inclined to think his guilt probable from the outset, there is still the factor that his guilt could not be proved with any certainty beyond any reasonable doubt.
3. Extenuating circumstances in the case of sentence. Only to be on the safe side, because I am quite sure that the Defendant August Frank is not guilty, I wish to draw the Court's attention to the reasons why there are extenuating circumstances in the case of Frank. In some case, that becomes clear from the affidavits submitted in connection with his decent personal attitude. In other cases they come from the indisputable facts. Even if he is criminally guilty in the conditions prevailing in concentration camps he was so far removed from the actual focal point of these crimes that he could not be punished for murder or abetting murder. The IMT did not sentence Reichswirtschafts Minister Funk as a murderer, Although they felt that Funk must have either known where the gold teeth came from or shut his eyes deliberately to these facts. In connection with the extenuating circumstances, which became clear from Speer and Ruff affidavits prevention of crimes under the National Socialistic System and the saving of a number of people and valuables material - I beg to point out the sentence of the IMT in the case of Speer where the prevention of senseless destruction of place of production has been found to be an extenuating circumstance. This must apply in the case of Frank all the more, because, according to the affidavit of Ruff, who was an inmate of a concentration camp for many years, he saved the life of many thousands of inmates by his courageous intervention.
At the end I beg a brief rebuttal to the speech made today by the prosecution. It also made on behalf of Defendant Hans Loerner. The final speech by the prosecution did not rebut any of my statements. It deals almost exclusively with what is known as prima facie proof, that is to say, it contends that all defendants on the basis of their position in the WVHA must have been familiar with murder, mistreatments, with looting, as well as slave labor in the concentration camps. Once again, the prosecution has remained the court of all the horros of concentration camps and then described what position the defendants held within the SS.
From the beginning it connected the facts to the assumption of guilt. Thus the prosecution has once again settled down on the term of independent conspiracy, according to the ruling of the Nuernberg Tribunals, need no longer be debated. What remains is the same vague accusation participation on which the indictment was based and with which I have dealt with such details, inasmuch as the prosecution has attempted by certain documents to prove guilt. I can refer back to what I have said in my final plea. I only wish to comment on a few points briefly.
The prosecution wants to prove the lack of veracity of the defendants saying they had denied in a ridiculous fashion facts which had been known all over the world, namely, that numerous crimes had been committed in concentration camps. Without dealing with the question whether that general accusation is justified I merely point out that the defendant August Frank has made frank statements in this respect and admitted openly that since Himmler's Posen speech, that is to say, after he, Frank left the WVHA, he knew very well about the policy of extermination of the Jews.
JUDGE MUSMANNO: Dr. Rauschenbach, I don't remember just where August Frank was stationed in 1943. He had left the WVHA; what was he doing at that time?
DR. RAUSCHENBACH: At that time he was the Chief of Administration of Regular Police. The prosecution have said themselves that on 16 September he left the WVHA.
JUDGE MUSMANNO: Yes, what had been the occasion of his attending the Himmler speech in Posen?
DR. RAUSCHENBACH: In the case of Himmler's speech in Posen, all SS Obergruppenfuehrer were to be present.
JUDGE MUSMANNO: I remember now. Thank you.
DR. RAUSCHENBACH: The prosecution have asserted without proving the truth of this assertion that on the witness stand, August Frank had lied, as he had testified he had left the WVHA, because he had come into conflict with his conscience in connection with the administration of troops in concentration camps; particularly, I am referring to the Reinhardt Action. The persecution have asserted that Frank had left the WVHA because of an appointment as Administration Chief of Police and later on his only aims had been a new rise in his career. I point out that this is merely an assumption on the part of the prosecution, which is irrelevant, if one regards the rules of evidence and principle of in dubio pro reo; the prosecution have also attempted to shake the affidavit given by Pister on behalf of the defendants. They have asserted that the original Pister affidavit, where he reports that several of the defendants took part in the regular concentration camp commandants conferences, was more truthful. There seem to be good and valid reasons where he gives the difference between commandants meetings and the joint dinners. In this case I am sire that I can point to the principle of in dubio pro reo. Participation in the conferences of commandants has not been proved.
Finally, the prosecution, in order to point out that they have difficulties with their evidence, in some asserted that all former SS members who had appeared as defense witnesses, or as affiants, did not tell the truth, because they were still connected with one another. It is my opinion that the prosecution are not having too easy a time in this case. They have made up for lack of evidence by substituting the assumption that the evidence submitted by the defense has not proved anything.
My final impression of the final speech of the prosecution is to the effect that insofar as August Frank and Hans Loerner are concerned, by skillfully linking facts which were not originally connected at all, supported also by assumptions and propaganda, and painting skillful pictures of atmosphere, they have bridged over the gaps in their evidence without anybody noticing it.
That attempt must be futile in the case is being gone into with legally and factually exact methods. In this case, the results of this tribunal will be, at least in some cases, a bit of a disappointment to the prosecution, because it will become quite clear that the defendants were -- and after all it is my task to clear this for the Defendants August Frank and Hans Loerner -- were not the creators and leading of the system of concentration camps. August Frank and Hans Loerner were among the leading men of the troop administration of the Waffen SS, but with the affairs of concentration camps they were concerned only casually and as a side line. That applies also to the assertions of the prosecution that the Reinhardt Action Action had been one of the main tasks of the WVHA. That seertion had been proved by nothing, but the evidence had been rebutted clearly, as I have explained in my final plea.
If the Tribunal please, I could now start on Hans Loerner's final plea, but unhappily, the interpreting branch does not even have the German copies.
THE PRESIDENT: Well, you won't be more prepared in the morning to go on with the summation of Hans Loerner.
DR. RAUSCHENBACH: I don't know, of course, whether the first thing in the morning, I shall have the copy, at least in the German language, but in about twenty minutes I could sum up what I wanted to say, and, if I am not too swift, the interpreter might follow and that would be that. It's a very brief plea of 20 pages, which I can shorten a bit. I have only one copy, one typewritten copy.
THE PRESIDENT: That is a double burden. The interpreter hasn't the German copy nor the English translation. I think we have done a fair evening's work and we will probably return with this German translation at least.
We will recess until nine o'clock tomorrow morning. Sleep well.
THE MARSHAL: The Tribunal will recess until 0900 tomorrow morning.
(The Tribunal adjourned until 18 September 1947, at 0900 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Oswald Pohl, et al., defendants, sitting at Nurnberg, Germany, on 18 September 1947, 0930-1730, Justice Robert M. Toms, presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal No. II.
Military Tribunal II is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Marshal, you will please ascertain if all of the defendants arc present in the Court.
THE MARSHAL: May it please your Honors, all the defendants are present in the Court.
DR. von STAKELBERG: Dr. Stakelberg for the defendant Fanslau. May it please the Tribunal. With the permission of the Tribunal I shall now begin with my final speech on behalf of the defendant Fanslau. May it please the Tribunal, this is with a heavy heart that I comply with my duty to conclude my defense of the defendant Fanslau with submission. It is the same heavy heart which I feel in the case of every defendant which are taken over for defense, and of which I feel I have a doubt whether I shall succeed in representing the right and in representing it. The task which the American people have taken over since they have occupied German soil, and with which we are faced again today is really a most difficult one as in recorded in the history of nations; the task is to establish the cross of truth and freedom on the site of atrocities and death, and, to establish a precious throne to which the American people may apply with a certain heart, that throne of justice. No throne which has ever been overthrown was more precious than it, and none has been over thrown more profoundly. It is no accident that the idea of greatest Americans, the idea of Lincoln and Jefferson were always concerned with it, and , it is with that point in view that in State and under civilization those were the fundamentals of internal law.
So far as the Germans are concerned, there is yet more at stake, nothing else then to save the German soul. The same German soul, which once through the centuries found expression in our branches of occidental civilization, which felt itself to be in agreement with the nations of the globe in a spirit of humanity, and for which we are searching in vain today; as we step through our destroyed cities, and see in the faces of those we meet only too frequently the expression of hatred and revenge, and face the indignities and denouncements, and with complete lack of pity. The road back has not been found. It can only be found from the spiritual opportunity by establishing those principles on which humane communication is always based, justice and love of ones neighbors, and it is that responsibility on which this trial is based. With that feeling I hope that my defense might be a contribution to a just sentence by the Tribunal.
We shall now come to the main part, (a), the fundamental question of law. Before realizing the proven evidence, I think it is necessary to explain what attitude is taken in the defense of Fanslau, on the fundamental question of law. Under Roman I, I have analyzed what law applies in this section, and I skip this section, but I should be grateful to the Tribunal, if the Tribunal would read it when they receive the written copy. Roman II, deals with the retroactive penal law. First, the fact that retroactive penal law is forbidden has become an invalid stipulation in all civilized penal codes. If one follows the historical development of this one idea, one finds the origin in the American States on the basis of many grave violations of law committed by the British Parliament, particularly when they threw out the Bills of Iniquities, 7759 which was the belief that one had to decide for all times to protect citizens by a bill of attainder forbidden in the law of justice "nullum crimen sine lege."
Maryland was among first of the Federalist which in its Constitution dated November 11, 1776, expressed this as follows: "Article XV. That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty, wherefore, no ex post facto law ought be made." In the Constitution of the United States of America of 17 November 1787, contained two previsions forbidding issuance of retrospective laws. One is concerned with Article I, Section IX, paragraph 3: "No bill of attainder or ex post facto law shall be passed." The other provision concerns legislative power as stated in Article I, Section X, paragraph 1: "That no state shall....pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. "This idea came to France from the United States where the king committed similar acts of criminal and arbitrary disposition as the British Parliament. It is contained in Article VIII, volume 24, of the year of 1789. It is in its original form in the Constitution, 24 June 1793, the law which punishes acts committed before the law existed constitutes felony, and retrospective power means that law will be a crime. Since then the principle of "nullum crimen sine lege" in the constitutions of civilized states has been recognized. I might refer here to Article IX, of the statement which I have submitted as Fanslau's Exhibit No. IX, and to the expert opinion of the International Tribunal of Hague, which is available in an extract submitted in Fanslau's Exhibit No. 15. In "2" of course it still mentions that "nullum crimen sine lege" must be modified; it will not apply to what is known as international crime, "res sua sponte sceleratae ac nefariae" or "mala in se", such as murder, plundering, blackmail, rape, inasmuch as it should be the perpetration of these actions which are regarded as objectively wrong in all civilized States, and can be recognized by the defendant Fanslau as such.
I admit that these prerequisites may be applied generally to the war crimes and crimes against humanity as laid down in Control Council Law No. 10. It is not my intention, therefore, to raise legal misgivings from the point of view of retroactive law against those two types of crimes. On the other hand, the principle of "nullum crimen sine lege"must be applied without limitation to those acts where only by the positive law the character of punishable crime can be applied, that is to say with the "delicta mere juris civilis" or with the "mala prohibits". Here we have, as I shall explain in detail later on, the newly established crime of membership in a criminal organization, declared to be a crominal organization, and the forms of participation which go beyond German penal codes by the control council law. In these cases consciousness of illegality, which according to prevailing legal conceptions is part of the intention, must be excluded from the beginning, as these deeds, at the time of their perpetration, did not constitute objective wrong or had been declared to be expressly criminal.
In the next paragraph I am dealing with the other principle of "nulla poona sine lege". I shall skip it, as I will a general analysis of Control Council Law No. 10, its aspect to international and territorial law.
I shall then come back to the crime of membership in an organization declared to be criminal by the International Military Tribunal. The International military Tribunal has declared such groups of persons within the SS as criminal who(a), after 1 September 1939; (b), became members voluntarily or remained members; and (c), had knowledge of the fact that the SS was being used for criminal acts or were entangled themselves in the commission of such crimes. Members of these groups had now been declared criminal by Control Council Law No. 10. That is not based on generally recognized principles of human law or dignity of the individual or international principles of law, but exclusively on the positive decision of Control Council Law No. 10.
The crime of membership is thus described to be "malum prohibitum" and not as a "malum in se." A similar provision did not exist in German penal legislation. Against the crime of membership the objection must be raised most emphatically of nullum crimen sine lege and of nulla poena sine lege. It is my conviction that to punish somebody for this newly created crime would be in violation against the principles named, and as such against the fundamental principles of legal thinking.
Third, the forms of participation should also be closely analyzed, which should under Control Council Law No. 10 explain the cause of crime. article II, Paragraph 2a, mentioned perpetrators, accomplices and instigators. These forms of participation are in accordance with German law. I might refer here to the extract from the German Penal Code which I have submitted as Defense Exhibit Fanslau No. 13. On the other hand, the forms of participation under Article II, 2 c through e, are not based on German penal law. These forms of participation seem to go back to institutions of Anglo-American Law and be based on the theory of conspiracy which prevails therein. According to this anybody who participated in the execution of a common criminal purpose, he is a perpetrator, whereby the important fact is that the punishable success could be anticipated providing that the commission was, or could have been known to be a probable consequence. Under German penal law the theory of conspiracy must be regarded outmoded. It played an important part in German penal legislation of the last century. Under conspiracy at that time, well understood, an arrangement made for common interests and common purposes by several persons for a joint commission of a crime, every conspirator, is whatever manner, showed himself to be prepared to participate in the act or by being present has shown his participation, was to be punished as a cooriginator of the crime. This applied in the penal laws of Bavaria, 1813, Saxony 1838, as well as in penal codes of other provinces. The The theoretic basis was, according to the opinion of Feuerbach, the famous Bavarian attorney, to be formed by the joint conspiracy.
Since the German Penal Code of 1876 came into effect the theory of conspiracy thus no longer exists in Germany. The reintroduction should come to naught because of the above-mentioned principle of nullum crimen, nulla poena sine lege.
I shall skip Paragraph IV, and I shall now turn to Main Part B, Participation in War Crimes or Crimes Against Humanity and Perpetration Thereof.
It seems to me that three questions should be analyzed more closely in the case of the Defendant Fanslau, his membership in the Administrative Office SS in the year 1938, his membership in the Viking Division in 1941, and his membership in WVHA to the 1st February, 1942 until the collapse.
1. His membership in the Verwaltungsamt, the Administrative Office SS.
The Defendant Fanslau was, from 1 March 1938 until June 1938 in charge of Main Department V 1 in the Administrative Office of the SS. I have reference here to affidavit Moser, Defense Exhibit Fanslau No. 24. This defendant is charged with processing the budgets of the Deathhead Units and concentration camps. Under II, I made legal comments on this. I made the objection here that as far as crimes by Germans before the war are concerned, a Tribunal of the victorious powers cannot be competent from the point of view of national sovereignty.
Under Paragraph 2 I have made a few factual comments. In addition to this there is the fact that at the time when Defendant Fanslau was in charge of Main Department V 1 of the administrative Office of the SS the budget of the Deathhead Units and concentration camps no longer was among the tasks of Main Department V 1. Kaindl, who was then in charge of former department V 1 b, and had been, as early as 1936, joined, together with his staff, the newly established inspectorate of the concentration camps.
I have reference here to Moser's affidavit contained in Document Book Frank No. II. Witness Karl has admitted on cross-examination that Kaindl's joining the inspectorate of the concentration camps had occurred in 1937. As far as the administrative task for the Allgemeine-SS was concerned, a special main department had been formed at that time without result. The Defendant Fanslau, as the man in charge of V 1 had to deal only with the affairs of special task units, the Verfugungstruppe. Again I refer to Affidavit Moser, Defendant Fanslau Exhibit 24. Any contact between the Defendant Fanslau with alleged criminal acts in the period of time when he was in charge of V 1 in the Verwaltungsamt of the SS does not exist.
I shall now refer to his membership in the Viking Division. At first I have not attacked the final statement by the Prosecution. In their final speech the testimony of the Witness Otto has once again been used. I may have reference here to the decision by the Tribunal that further proof against the veracity of Otto should not be submitted any more. For that reason I have regarded Otto as done with, and I am therefore surprised that the Prosecution have once again used his testimony.
Should the Tribunal think Witness Otto is still important, I would have to request that I would have to submit further proof, because I have such proof. Defendant Fanslau was from 1 December 1940 until the end of September 1941 the administrative official in charge of the Armored Grenadier Division Viking, and in the same position he was a commander of the supply battalion. The Viking Division has been charged by the Prosecution with crimes of a number of varieties. Jewish pogrom in Zloczow of 3 July 1941, testimony by witness, Dr. Jollek, excesses within the supply battalions, such as the shooting of Jews by Oberscharfuehrer Suerth in Zhitomir, and labor allocation and mistreatment of Jews testimony of Witness Sauer and Witness Goldstein, and finally the murder of Jews by Einsatzgruppen, allegedly in the area of the Viking Division (documents).First the Jewish pogrom described by Witness Dr. Jollek of 3 July 1941 cannot be laid at the doorstep of the Viking Division.
Dr. Jollek says that the German invasion took place two or three days previous to 3 July 1941. Witness Sauer testifies that when the Viking supply battalion marched through the town, it occurred five or six hours before the occupation of Zloczow. I shall quote.
"We went into billets at 500 meters behind the citadel and put up guards and sentries because the Russians had left the city only five or six hours previously. He also states that the supply battalion Viking had reached Zloczow in the afternoon of the first day of conquest between four and five in the afternoon and left it at dawn of the following day. The same testimony has been made by Mueller. That establishes that the Viking supply battalion left Zloczow in the morning after the day of conquest. As a supply battalion, after military experiences, would be the last to march into a town, it might be regarded as certain that the whole division that passed through Zloczow at that period of time and was then advancing on Tarnapol. That result also coincides with the description given by Witness Dr. Jollek of the troops who marched through the city. He testified at first it was the Wehrmacht which happened on the first and perhaps on the second day. Then only he said troops arrived whom he described as SS, and whose uniform he described to us in the most minute detail, perhaps with deathheads, some of them wearing field-gray steel helmets, fieldgray uniforms with the SS insignia and armlets.