The Armored Grenadier Division, Viking, never wore SS insignia, nor armlets nor gray steel helmets. The steel helmets had camouflage color, and they were not wearing field--gray uniforms but camouflage jackets. Here it is important to remember Fanslau's own testimony and affidavits Steiner and Schaefer which I have offered as Defense Exhibits Fanslau 28 and 29.
It must, therefore, be assumed that Witness Dr. Jollek regarded the Viking Division as part of the Wehrmacht because of their camouflaged uniforms. This is also borne out by this, the unit described by Dr. Jollek distributed food, but the Viking Supply Battalion did not. Dr. Jollek observed a medical officer with golden insignia, but golden insignia were worn only by medical officers of general rank, but no such officer was with the Viking Division. Dr. Jollek did, on 3 July 1941, see one member of the Army in Zloczow, but at the time when the Viking Supply Battalion marched through the town there were, according to Sauer's testimony, mountain troops still in the town. From these statements it can be seen on 3 July 1941 the Supply Battalion Viking and the whole Viking Division was at a distance of at least one or two days. marches from Zloczow and were advancing on Tarnopol. Jollek's memory of the technical insignia of the Viking Division on the trucks can come only from the days prior to July 3, 1941.Defendant Fanslau at that time was not with the Supply Battalion when it marched through Zloczow. He had passed through Zloczow at an earlier date. What happened on 3 July 1941 In Zloczow cannot be charged to the Viking Division and its members.
Any concrete representations against Fanslau have not been made. 2a. Witness Sauer has described that Oberscharfuehrer Suerth of the Bakers' Company had shot down six Jews with his own hand. Any responsibility of the Defendant Fanslau for this crime would only exist if he had. ordered this shooting, he had taken part in it, or not interfered although it was reported to him. A charge of participation of Defendant Fanslau has not been alleged by anybody.
Witness Sauer even stated that no report had been made about the incident. Defendant Fanslau himself has testified that he had never received any information about the incident, either officially or privately. Moreover, it seems highly doubtful whether the crime reported by Sauer was committed. What he said about incidental circumstances has been refuted and his whole testimony cannot be believed as it stands. Sauer, for instance, said that the Supply Battalion Bakery and Butcher Companies had been accommodated in one barracks in Zhitomir together. On the other hand, Defendant Fanslau said with the utmost certainty and by quoting details that the Supply Battalion had been accommodated outside Zhitomir. The some is maintained by Schaefer, Mueller and Stamminger, Sauer also alleged that the Defendant Tschentscher had also been in the barracks at a distance of about 400 meters from the spot of perpetration. As a matter of fact Tschentscher at that period of time was ill and in bed outside Zhitomir. Finally,Sauer alleged that he had seen Haupt-sturmfuehrer Braunagel in Zhitomir, but at that time Braunagel was bedridden and was in the hospital of Lublin and later on of Ulm. Sauer alleged that the crime committed by Suerth had been known through the Supply Battalion, but the witnesses Schaefer and Mueller and Stamminger dispute any such knowledge in the most convincing manner. I believe, therefore, that it cannot be proved with any certainty, beyond a reasonable doubt, that Suerth had really committed the crime which he was charged with. It is quite certain that Defendant Fanslau, as he had no knowledge of this alleged crime, cannot be held responsible.
b. While according to Sauer's testimony Jews were mistreated in the slaughterhouse of Tarnopol by members of the Butchers' Company, Sauer has made contradictory statements about an alleged employment of Jews. On direct examination by Mr. Fulkerson, he said, I quote:
"Q Well now, in Tarnopol did you see any signs of mistreatment of Jews, any signs that the civilian population was herded together in the manner which you have described?
"A No, I did not see that in Tarnopol.
"Q You saw no signs at all?
"A No, I saw no such signs in Tarnopol.
"Q Very well, what was the first place where you again saw such things?
"A That was in Zhitomir."
And a little later I quote again:
"A No, in our company we did not employ Jews because we had enough men and our Battalion was not big enough."
Questions on cross-examination about Tarnopol, I quote:
"Q Tell me, what about the next place, Tarnopol, were you working in the slaughterhouse there?
"A No, I was working in the sausage department."
Contrary to these clear statements were made on 20 August 1947 where Sauer admits that he had not seen Jews being employed, let alone being mistreated, in Tarnopol, he says on the first time, on the 21st of August, 1947, concerning the alleged employment of Jews in the slaughterhouse in Tarnopol, and I quote:
"Q Herr Sauer, you did not find any signs in Tarnopol that Jews were being herded together?
"A I did not see that civilians herded Jews together, but I might mention that there in our unit Jews and Ukrainians were employed in the slaughterhouse. I should like to add this."
When his attention was drawn to this contradiction Sauer said that he had not been asked that question before. That, of course, is again incorrect.
It has become clear from the just quoted extract of the record quite obviously that Sauer's memory extended somewhat overnight, very probably under Otto's influence. As Stamminger has said here on the witness stand concerning the employment of Jews alleged by Sauer, this is contradicted by the regulation issued for reasons of security and hygiene to employ outside forces in the supply units. This is borne out by Schaefer, Mueller and Tschentscher himself. So therefore his testimony is doubtful already, and there must be misgivings now that the observations reported by Sauer, even if one should assume them to be true, cannot be charged to the Viking Battalion.
The slaughterhouse in Tarnopol was under the orders of an outside unit which was the Army Butchers' Unit. As was confirmed by Defendant Fanslau, the Butchers' Company of the Viking Division only transferred a few butchers to help out, whereas their own establishment was outside Tarnopol.
The atrocities described by Witness Goldstein cannot be charged the Viking Division. Goldstein, it is true, speaks of SS units which he alleged committed the crimes, but he admitted himself that he was not in a position to differentiate between the Wehrmacht and SS. The Bakers' and Butchers' units which he has incriminated are not identical with those of the Viking Division. The units to which Goldstein referred were in the slaughterhouse and in the synagogues. The slaughter company of the Viking Division was outside the town. The pictures submitted by Goldstein have no probative value for this trial. They could only be identified by the witness because he had experienced similar scenes at different times. Whereas he stated at first they came from the first days of the invasion of Galicia he shortly afterwards admitted that the snaps were taken at Kielce and Radon, that is to say Western Poland, which had ceased to be a combat area since 1939. The only shapshot which shows an SS man in peacetime uniform was identified by him as a photograph taken at Lodz which at that time was part of the occupied area under the name of Litzmannstadt.
Any incrimination of Defendant Fanslau I cannot find at all in this respect.
3. Finally the Prosecution have attempted to charge the members of the Viking Division with responsibility or co--responsibility in the crimes committed by the Einsatzgruppen in the backwoods area of the Army. This was not a success. Defendant Fanslau, as was confirmed by Witness Steiner, described the swiftness of the advance which frequently created an empty space between the advancing combat unit and the occupying forces in the rear. No communications were kept up in that vacuum. This makes it plausible Defendant Fanslau, at a distance of some 100 kilometers, could not hear anything of the crimes committed by the SD.
Court No. II, Case No. 4.
Moreover, he took part only for three months in the Eastern campaign. It is a fact that has been described in detail by Steiner that the combat unit was committed only to the task of reaching its objective and when it had been reached, territorial tasks, such as the keeping of law and order, were not up to a combat unit. A troop advancing is always highly exhausted in the end so that need rest when they have stopped somewhere and it is not in a position to appreciate any news. Any responsibility as to what happened hundreds of kilometers in the rear, behind the advancing combat unit, was done by the units of an entirely different command, and therefore cannot apply, in my opinion, to the members of the combat unit. The SD was part of the troops in the rear, which becomes clear from the fact that the advancing combat unit did not know SD units. This was said by defendants Fanslau and Tschentscher and Sauer, and Stamminger.
Now, under III, I an dealing with Fanslau's membership in the WVHA: 1. The prosecution hold the view that in the scope of Fanslau's office Group of the WVHA, war crimes and crimes against humanity had be in committed. The participation of Defendant Fanslau as a perpetrator accomplice, or instigator has neither been asserted nor proved. No proof, no responsibility under article II, Section 2c of law 10, for participation and consent would apply to Defendant Fanslau. However, in accordance with the principle established by the Tribunal in Case No. 11; a. He had known of the intended crimes. b. He obtained that knowledge in good time in order to be able to take steps to prevent them. c. He had the power to prevent these crimes. The evidence has established that Defendant Fanslau did not even know of the crises mentioned in the indictment and proved by the prosecution and that his official position and official work was not such as would submit such knowledge to him.
A Concentration camps. What Fanslau knew about these concentration camps was their existence, but not their operation and the atrocities committed therein. To operate concentration camps was not among Court No. II, Case No. 4.his tasks.
The field of task of A-V/4, was not part of Office A-4, but of Office Group D, which had a personnel department of its own. The sphere of tasks, and it is described as A-V/4, was only there for formal reasons because A-V always stood for personnel matters in the files. According to the orders of Main Office Chief Pohl, the Chief of Office Group D, even after its incorporation into the WVHA, should maintain his own Personnel Department and remain independent in the way he processed his personnel. The personnel expert with Office Group D was Adjutant Harbaum, who also held other positions. This is the reason why in Document NO-1923, Prosecution Exhibit 552, matters pertaining to the adjutant and personnel are being treated within the area of Office Group D, jointly under the File Note A-V/4.
Fanslau had no official contact with Harbaum, and, in particular, he did not have the authority to issue orders. This description has not been shaken by the orders for transfer of concentration camp commandants, Pauly, Suhren, and Koegel, Prosecution Exhibits 716, 718, and 719.
From Document NO-1944, Prosecution Exhibit 88, it becomes clear that this transfer of the commandants had been requested of Pohl by Himmler. An intermediary agency, and I mean, such as Himmler's position and the relevant order by the SS Personnel Main Office, were not submitted, but it becomes clear therefrom that the orders for transfer signed by Defendant Fanslau referred to the SS Personnel Office. It may therefore be assumed that the SS Personnel Office, after Himmler's permission, issued a collective order, in accordance with Pohl's request and that the orders signed by Defendant Fanslau are only excerpts from this collective order.
Within the scope of work of Office Group D, from among the 2,800 to 3,000 administrative officers of the Waffen-SS, only 25 or 30 administrative officers had been transferred. These transfers were not the consequence of the incorporation of employees of concentration camps into the WVHA. Most of these officers were, at the time of the incorpora Court.
No. II, Case No. 4.
tion, already working with the Inspectorate. I have reference here to Document NO-2147, Prosecution Exhibit No. 30, which is a file note of 9 or 17 September, 1941, which contains the following sentences. I quote:
"The administrative officer is SS-Untersturmfuhrer Von Bonin. He has been appointed by SS-Obersturmbannfuhrer Kaindl."
Kaindl had joined the Inspectorate in 1936 as the Administrative Officer and was there in charge of the administration. After the transfer to Office Group D, Defendant Fanslau had no longer any influence on the activities of the Administrative Office. Thus he did not come into any closer contact with the concentration camps. The transfer of personnel and the files of personnel did not relate to any procedure concerning incidents within office Group D. As far as concentration camps were concerned, Defendant Fanslau regarded them as a protective measure against enemies of the State and those whom he took as being an asocial element. Personally, he only knew Stutthof Camp and when he inspected it, he never noticed anything negative. He never heard one word about atrocities in the concentration camps. His ignorance went so far that even after the capitulation, we thought the descriptions of conditions were enemy propaganda. I shall recall here Affidavit Herbert Fanslau, which is Defense Exhibit Fanslau No. 8. He felt so free of guilt that he volunteered to become an American prisoner of war, and gave his name and rank.
Knowledge of the existence of concentration camps is not incriminating to Defendant Fanslau. The principle of internment of enemies of the State for reasons of security has been recognized as legitimate, which becomes clear from the institution of internment camps of today. The knowledge as such of atrocities committed in concentration camps would be incriminating to Fanslau. That knowledge did not exist.
b. Extermination of the Jews. The prosecution have submitted great moving proofs for the execution of the program of extermination of the Jews by a small group of criminal men in high positions in the state.
Court No. II, Case No. 4.
The defendant Fanslau knew nothing about the extended extermination or the carrying out of the extermination; the Reinhardt Action, he did not even know by name; Gruppenfuahrer Globocnik, charged with this problem was a stranger to Fanslau. He knew nothing of Operation G, or Administration G, nor did his collaborators. The garrison administration of lublin was not even under the orders of the WVHA. The man in charge of the garrison administration of Lublin, Sturmbannfuehrer Wippern, was in his position before the WVHA was established. Unterfuehrers and NCOs were appointed by the Main Office, Operational Office, and not by the WVHA. This becomes clear from Fanslau's testimony and that of his colleagues Stein and Borsum. Within Office Group A, there was Hauptsturmfuehrer Melmer working for the Field A-II/3 and he was in charge of the Reinhardt Action. For this he had been given a special secret order by Pohl and as such was immediately under Pohl and was not allowed to discuss the matter with anybody else. When Defendant Fanslau, in May or June 1944, was charged with taking over Office Group A, Melmer and his field of tasks, A-II/3 were no longer part of Office Group A, but he was part of the staff as the man in charge of the question and as such was immediately under Pohl. Melmer, it is true, used the file note REINH A/11.3, with all incidents concerning themselves with the Reinhardt Action, which becomes clear from the letter of July, 1944, but Fanslau did not know this letter, nor was it addressed to A-V or the Chief of Office Group A. The auditing activity of co-defendant Vogt remained unknown to Fanslau. All the incidents with the extermination of the Jews were carried out under the utmost secrecy, top secret, most secret. Secrecy was observed in a very strong manner.
Defendant Sommer reports in his affidavit submitted by the prosecution, Document NO-2739, in Document Book XXVI, under paragraph 15, on a communication made by Gluecks concerning the extermination of the Jews. I quote:
"What I tell you now is secret. You must not talk to anybody Court No. II, Case No. 4.about it.
If you mention it to anybody at all, you will lose your head."
This explains how it was possible that Fanslau remained in total ignorance of these saddest chapters of German history, despite his high rank in the Waffen-SS. None of these crimes had anything to do with his rank, but was quite independent of rank and limited to that small circle of men who by their official position and their orders were implicated in the execution of this criminal enterprise.
c. Forced labor. I need not debate the question of how much about labor allocation of inmates is admissible. This will be left to my colleagues defending defendants who were directly concerned with the allocation of inmates, All I have to analyst is how much Fanslau knew about the allocation of inmates, labor allocation of inmates was not part of Fanslau's duties. He knew very well that inmates were being used but he did not know all the various types of work nor did he know anything about the fact that those concerned worked under very hard hours, to say nothing of inhumane conditions, and they were not paid for their work. In the contribution given by Office Group W for the public lecture, given before administration officers, it was said that only asocial elements are being referred to and it is found that work will educate them and make them useful members of human society. That type of sentence has been described as examplery and perhaps of far reaching influence so that an innocent reader cannot even detect the idea that here we were concerned with criminal elements. The term of asocial elements was a very familiar one to Fanslau. He thought they were men who did not work regularly, but were involved in sinister dealings, drunkards who did not give money to their families, and people of that type. He did not think that this term included Jews of members of the Eastern nations, such as the prosecution seem to have assumed at first. He did not take any part in conferences, or orders concerning compensation for or money paid to the inmates. When in May and June 1944, he was charged with taking over Office Group A Court No. II, Case No. 4.there was already an open budget in existence without restrictions.
Requests for money or transfer of money by the Reich Treasury by Office Group A was not longer affected. The payment and transfers for the garrison treasury and other Reich treasuries on the one hand, and the Reichsbank Agencies or German Main Treasury on the other, was done directly at that time; as far as the transfer of the members of the Waffen SS to Office Group W was concerned, Fanslau did not have any closer knowledge or what W did within Office Group W. Every personnel question was dealt with by the office group within itself. It becomes clear, also from the letter of Osti to Co-Defendant Baier, Document NO-1264 in Document Book XXIV, where Dr. Horn on page 3 reports about the possibility of release to two SS officers, 6 NCO's, 3 enlisted men, one male and one female civilian employee.
I would like to refer here to the Hohberg letter to NO-1005, Exhibit 380 concerning the transfer of auditors. The prosecution wanted to comment from Document NO-2382B, which was Exhibit 678 that Office A-V transferred personnel to the Osti. This, if one reads the document carefully does not become clear from the document. On the contrary it becomes clear that Osti sent people back to the WVHA who could be spared. Within the scope of Office Group W, mostly civilians worked at Office A-V and had nothing to do with their files. Personnel administration with Staff W was in the hands of civilian imployee Ansorge.
d. Looting of occupied territories. Fanslau did not take any part in the looting of occupied territories nor did he have any knowledge of these activities. The prosecution obviously attempts to use the transfer order for Sturmbannfuehrer Schellin, signed by Fanslau to become SS Economist of the Higher SS and Police leaders, in order to arrive at a connection with the activities of the SS economist.
When he submitted that document I drew attention to Prosecution Exhibit No. 331, on pare 13 of the German. Fanslau too, stated that Himmler reserved the right to appoint the SS Economist himself. On page 14 of the same document, Pohl therefore submits a collective proposal concerning the appointment of the SS economist. Under paragraph 4, it is proposed to appoint Sturmbannfuehrer Schellin. Quite obviously, what is missing here is an intermediary order which must have been Himmler's approval, the relative order by the SS Personnel Main Office. The order signed by Fanslau concerns the appointment made by the Main Personal Office and therefore is purely an extract from the collective order in accordance with Pohl's suggestion.
THE PRESIDENT: Dr. von Stakelberg -
DR. VON STAKELBERG: Yes.
THE PRESIDENT: I've got to readjust our schedule here a little further. This morning we have a convention of American congressmen coming to visit us and we want to have a court in session when they get here and I am just advised that General Taylor would like to have us in session from 10:40 to 11:15.
DR. VON STAKELBERG: 10:40 to 11:15.
THE PRESIDENT: So I think we will suspend now and resume so that we will be on exhibition when they arrive.
Now I have some information about the translations and I think I know some of the answers that you are ready to give. Most of the speeches were receives by the Translation Division of September 15, which was last Monday. I remember very distinctly, at least two or three weeks ago, suggesting to counsel that they get their speeches ready and in to the Translation Division early and then if you wanted to add to them to cover matters that occurred later in the trial, you could do so. Some arguments have still not reached the Translation Division. I don't know which ones they are, but apparently this difficulty that we are in seems to be attributable to the defense counsel not getting their manuscripts and copies into the Translation Division soon enough.
We can hear the arguments on behalf of Sommer, Hohberg, and Pook, and I believe Dr. Rauschenbauch now had the German translation for Hans Loerner ready. Now that will take care of today. But what will happen tomorrow? Is there anyone who has not yet delivered his final argument to the Translation Division is that possible. If there is such a naughty person, he isn't here. Is it true that most of these transcripts were not delivered until last Monday? When did you turn in your manuscript? Did you turn it into the Defense Information Center, I suppose, and then I know there is some delay from the Defense Information Center to the Translation Department, isn't there?
DR. VON STAKELBERG: Yes, there is always a slight delay there. I must admit, Your Honor, that I submitted mine only on the 15th, because I fought here in the Viking matter. I must admit that on my own behalf. I don't know what my colleagues did.
DR. HAENSEL: May I point out one thing to the Tribunal. A final plea can only be written at the end.
THE PRESIDENT: That is just the point.
DR. HAENSEL: Well, what I mean is the final plea is something which must be an immediate expression by defense counsel. The best plea is the one which is held extemporaneously. To commit oneself to a definite plea and put it down in writing a long time in advance is a very difficult thing to do; as the trial proceeds perhaps an argument occurs at the last moment which comes out. The question therefore is always very difficult in these big trials and usually the procedure is to take a short interval after the end so that you can write down your plea. Then we were a bit rushed at the end and I believe it must be expected that many officers, including myself, submitted our pleas very late, on the 15th, for instance, but I don't think for that reason, we should be accused of anything, especially as there was never a time limit fixed when we had to hand over the pleas. Would it not be possible
THE PRESIDENT: I think you ought to be scolded a little bit anyway. I don't know that I want to more than that.
DR. HAENSEL: Yes.
THE PRESIDENT: But at any rate, you ought to be scolded and perhaps spanked.
DR. HAENSEL: But every good pupil always has an excuse ready.
THE PRESIDENT: Especially if his name is Haensel.
DR. RACUSCHENBACH (FOR THE DEFENDANT FRANK): I believe, Your Honors, that the technical difficulties are larger always on the side of the Defense only. I believe I am correctly informed when I say that the prosecution delivered the draft of their plea only on the last day, but he has somebody who will bit it down immediately. He need not have it translated, because he speaks in English. That must be taken into consideration.
THE PRESIDENT: Well, I call attention to the eminent example of your confrere Dr. Seidl. He has a reputation of always having his material ready, and he had it here, 152 pages, Now he had it ready? Maybe he is a magician. I don't know.
DR. HAENSEL: Far be it from me to say anything against Dr. Seidl, but after all it is difficult to start a trial by writing down the plea. After all, you can write down the plea only at the end, but perhaps there might be a case where Seidl who started at the beginning and therefore had his facts. But a good plea ought to be hold and read not at the beginning.
THE PRESIDENT: Dr. Haensel, you could write 2/3 of your plea before you hear any evidence. At any rate, two weeks ago, you could write 2/3 of it, and later, at that time, I know you have to wait, but you could get most of it ready long before the end of the evidence.
DR. HANSEL: That is right, but I cannot hand it over to translation before I have finished, of course, but I can't expect the Translation Department to translate 2/3 of it first and then given them 1/3 later on.
The translation can only start when I have completely finished my plea and that is the proper way. I think it is simply a technical difficulty and I am completely aware of its implications. All we can do is try to pass the bottle neck.
THE PRESIDENT: Well, I have got to scold so body. So ****** shake my finger at, so you are here, and so I scold you and shake my finger at you. That's because you are here. Now, it true that there are some arguments that have not yet been completed and turned in? None that you know of? Well, all right. We have enough to go for today, and probably tomorrow.
DR. HAENSEL: Rauschenbach has some here.
THE PRESIDENT: We will take what remains of the recess, and we have enough to finish today and probably tomorrow, and then we will see what happens. Some times these things turn out better than we feared. We will take a short recess now.
(A recess was taken).
THE MARSHAL: Take your seats please.
The Tribunal is again in session.
DR. VON STACKELBERG(for defendant Fanslau): The medical experiments Euthanasia.1.Fanslau had no knowledge at all about the fact that medical experiments were being carried out, or that there was such a thing as a Euthanasia program. The term Euthanasia Became known to defendant about the end of 1945.or 1946. This has conclusively proved that Fanslau had no knowledge of the crimes proved by the Prosecution and, therefore, cannot be hold responsible for participation by consent. 2. Just in case the Tribunal should not share my legal misgivings against an extension of the forms and participation under Law No. 10, I have to analyze the other forms of participation of Sections 2e and d of Law No. 10. These proofs make the fact that whether or not an act can be punished depends on (a) connection with the planning and execution of a crime, (b) to the membership of an organization or group which was connected with the execution of such crimes. Both provisions seem at first only to stipulate objective conditions, connections, or membership. But that interpretation surely is not compatible with the legal concept of all civilized nations. In German law the accessory must have the will that the deed must be done, and the man who aids and abets must have the will to allow the illegal excesses of the deed to continue.
Similarly, Anglo-American law stipulates for the necessary before the fact the principle in the second degree, and the accessory after the fact as a subjective stipulation with Dolus, for the principle in the second degree: "There must be both a participation in the act and the community of purpose." Condition that an act can be punished must always be the knowledge of intended or committed crimes. This is also borne out by the cases decided by Military Tribunal I; and quoted by my learned friend Dr. Rauschenbach in detail. Defendant Fanslau had no knowledge of the criminal plans -- my questions which I put with emphasis in this direction he denied emphatically -- nor of the commission of crimes as I have described in detail.
In addition to this there is no fact that membership in the WVHA alone did not establish close factual connections between the defendants that one could speak of objective connection or the membership to a group. No political plan was at the back of the establishment of the WVHA. Its establishment was due only to the effort to have the confused organization consisting of a large number of independent offices, such as Budget & Buildings, Main Office of Administration and Economy, Troop Administration, simplified. Moreover, WVHA was not a uniform and unified department. At first it consisted purely of military tasks, Office Groups A, B, and in some cases C, and apart from that, quite independently, purely economic tasks (Office Group W, and in some cases C). Later on there was the administration of concentration camps as a purely independent field of task separated both locally and factually (Office Group D located in Oranienburg). The unification of these multiple spheres of tasks did not have any factual reasons because otherwise at least three different government departments had to be established. It had purely one personal reasons: All these tasks were handed over to the defendant Pohl jointly. The formal unification into a department with a uniform name must not deceive us that the various spheres of tasks were separated factually. Cooperation between the various office groups among each other did not take place. There was no conference of the office group chiefs, nor was there any factual collaboration. I shall quote the question put by Judge Phillips to Fanslau:
"I spoke about the work. You had no cooperation within the various offices, but each one was independent of the other and was submitted only to Pohl -- is that what we are to understand?
A.- Yes. Excuse me - these were separated spheres of tasks and distinct from one another."
It would have been quite proper to have three different departments instead of the WVHA.
administrative office of the Waffen-SS and Economic Office, and Office for the concentration camp and to put them, all three under Pohl. This would have described that these spheres of tasks did not have any factual interrelation. The fact that the duties of troop administration economy were locally coordinated and given a uniform designation together with the Inspectorate of concentration camp must not deceive us that there was lack of factual connection and lack of a common purpose. WVHA, internally speaking, did not have any factual connections, was not a group organization with a common purpose. Even under the intensified forms of participation under Law No. 10 any punishable responsibility of Fanslau does not exist.
This brings me to main Part C of my plea -- Crimes of Membership in an Organization Declared to be Criminal by IMT. We should at first look more closely at the crime newly established under No. 10 against which, in my fundamental analysis, I have already raised the objection of nullum crimen, nulla poena sine lege. Justice Jackson said, before the IMT --- this above the fundamental principle for the prosecution against the organization:
"The purpose of declaring criminality of organizations as in every conspiracy charge, is punishment for aiding crimes although the precise perpetrators can never be found or identified."
The essence of a criminal membership in an organization declared to be criminal consists, therefore, of the fact that abetting in crimes as not stated in detail have been declared, an independent crime by depriving it of its nature as an accessory act. For in every interpretation of this provision, particularly as to the question according to subjective conditions, the local principle formed for the accessory must be taken recourse to. 2. The IMT in its sentence declared those people to be criminals among the SS those groups of persons who became members, or remained members of the SS (a) after 1 September 1939, (b) voluntarily, and who (c) either had knowledge of the criminal acts of the SS or were involved in the commission of such crimes.
The term of Groups of Persons, in the sense of this sentence, was described as follows by the IMT:
"A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose."
We will have to examine whether the Prosecution succeeded in proving with any certainty and beyond reasonable doubt that these conditions apply to the defendant Fanslau.
3. The question arises here whether the group declared to be criminal is identical with the SS Special Task Unit (Verfuegungstruppe), the Waffen-SS, or the WVHA.
a.- The Special Task Unit, Verfuegungstruppe, according to the findings of the IMT consisted of SS members who had volunteered for a term of military service of four years, instead of being drafted into the army. It was organized as an armed unit which should be used with the Army in case of mobilization. In the summer of 1939 the Special Task Unit was equipped as a motorized division in order to form a corps of combat units which in 1940 became known as the Waffen-SS. The Waffen-SS were under one technical orders of the army but they were equipped by the administrative agencies of the SS and supplied with everything else and was under the disciplinary charges of the SS. One thing becomes clear therefrom. On 1 September 1939 the SS Special Task Unit, and later as Waffen-SS, was put under the technical orders of the army. Its members became soldiers. Military laws, the duty of the soldier to obey orders, and do service, applied to them as well as to any members of the Wehrmacht. This, it seems to me, removes the stigma of voluntary joining in the case of the members of the SS Special Task Unit and later the Waffen-SS at least as late as 1 September 1939.