Therefore, the dentist had to work harder; however, the treatment of the patients did not suffer.
The witness Dr. Reutter, who was camp dentist in Dachau during 1940 and 1941, stated the following on the witness stand before the Court, about the dental treatment of prisoners: All dental work on patients, no matter whether on prisoners or SS men, was carried out exclusively according to purely dental standards and, certainly, carried out according to the dentists, medical conscience. It was a matter of course for him to work technically unobjectionably on every patient without exception, whether he was a prisoner or a member of the SS - just as natural was it for him to treat every patient indiscriminately with the necessary dental consideration and readiness to help.
In the same vein the witness Dr. Abraham, local dentist in Buchenwald in 1944 to 1945, testified in his affidavit of 13 May 1947-
I shall skip a page, and continue-
THE PRESIDENT: Your time is up now. If there is something especially that you want to read, and it is not too long.-- How much more have you?
DR. RATZ: About ten minutes, your Honor. About ten minutes.
THE PRESIDENT: You have had your hour.
DR. RATZ: I shall come to my final paragraph, then.
THE PRESIDENT: All right.
DR. RATZ: As far as the rest is concerned, I will draw attention to the written part of my plea. I particularly refer to the lack of veracity of witness Dr. Reutter and I should like to say in conclusion:
May it please the Court, one of the prosecutors in the trial of the IMT declared in his final plea that that trial was nothing but a continuation of the war. I say these trials shall not serve as a continuation of the war, but serve the reorganization of the peace the organization of a new peace.
The trials are, so to speak, a seem between war and peace, and, as such, admittedly present a danger - the danger of political arguments. Political arguments have no place on the scale of justice. They are children of the war - while justice is the mother of peace.
As is well known, the Greek philosopher Plato failed, in his attempt to create a community which could exist before the criterion of the righteous. Human communities - that is, the sovereign states - have always claimed for themselves a special set of morals -- morals which are not determined, by the conception of humanity or law, but by the idea of enforcing interests and power. If thus the states, particularly in times of distress and war, act unscrupulously as far as one's own country is concerned, that is considered permissible always if considered from the point of view of reasons of state. That attitude certainly is not an invention of the Third Reich. If that attitude is not overcome, then there is no end to wars in sight. Therefore, I do not say: The institution of the concentration camps was a political measure, therefore its judgment does not fall under the jurisdiction of the goddess Justitia. But I do say: In judging the guilt of the defendants, their political background, must not be overlooked. They acted as officials and soldiers, and, by themselves, were not able to raise the policies of the Third Reich to the proper moral and intellectual level. Thus they can be charged only with those crimes which, after the deduction of all political factors, still constitute actual crimes.
In his essay, "On War" - the American philosopher Ralph Waldo Emerson seventy years ago stated the following:
"The last hour of the war will not be far off and the well of human blood will soon dry up, if the new generation will arrive at the conclusion that it is unworthy of them to settle down among the horrors of the past, and if it can produce the magnanimous courage of fearlessness and virtue, to adjust their thoughts and acts exclusively to the noble precepts of morality."
Emerson concludes his essay as follows:
"Not in this remote corner, not in venerable Europe, not under a thousand clear-cut standards, where every step forward means revolution, is this holy seed of peace sown in the field; not in this great America, which belongs to God and man, where we only recently have begun to clear the primeaval forest and to open the green earth to a flood of immigrants which stream from all countries where suppression and guilt rules; here, where not few -- nay, humanity can decide what shall happen here -let us deliberate: Whet shall rule on earth, war, or peace?"
May it please the tribunal, suppression and guilt has been created in this venerable Germany with its thousands of clear-cut standards. The great United States of America is appointed, to fulfill the general longing for the changing of so many deeply rooted improper conditions. A just verdict in this case certainly will represent a step forward towards peace also - i.e., a verdict which - and I would like to quote Emerson's words - has been arrived at with the magnanimous courage of fearlessness and virtue.
THE PRESIDENT: We will take just a few minutes now to give the interpreter a chance to rest his voice. Not more than ten minutes. Possibly less.
THE MARSHAL: The Tribunal will recess for about ten minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. KARL HAENSEL (for the defendant Georg Loerner): On the 5th of September I submitted a trial brief to the Tribunal in which I put forward legal arguments regarding the prerequisites of regarding membership in criminal groups duel red as criminal by the IMT. I tried to argue extensively that knowledge of criminal aims demanded by the judgment of IMT does not mean a belonging to or having to have knowledge of but that such knowledge must be transmitted into the momentum of will in order to be legally relevant. That's the will to collaborate in a criminal organization.
The problem of which is legal knowledge and relevant knowledge according to Law Number 10 is decisive at present, not only for many defendants in the trials in Nurnberg but also all those who, as members of the organization, will have to appear before other judges.
In my final plea submitted in writing I deal with points dealing with the Law Number 10 and which must supplement it. Furthermore, with regard to article II I have dealt with the complexes in which Georg Loerner has been accused of having participated. I am grateful for the consent of the Tribunal to read my arguments.
Now, I should like merely to come to a few viewpoints the discussion of which has become necessary due to pleas put forward before me. The problem has been discussed many times whether this High Tribunal when giving judgment should take German law into consideration, a parently due to the assumption that German law would lead to a more favorable judgment than the application of some other legal system. The danger was apparently that this High Tribunal might not be convinced of the necessity of the application of German Law.
As long as wars continue and as long as enemy territory is occupied by victorious troops, the victors have claimed the right to use their own military courts and military commissions, to use the American language, to try members of enemy states which have fallen into their hands because of war crimes, and to apply their own jurisdiction. I should like to draw your attention to the last arguments in the American Journal of international Law, Volume 41, Page 45, and literature which is quoted therein.
The Hague Convention for Land Warfare prescribes in Article 43 with regard to the exercising of legal authority by an occupying state that the land warfare laws should be observed. However, it is not convincingly contradicted that the law laid down in the London Statute of Control Council Law Number 10 in its sphere is trying to establish norms which are to drown the legal law of the countries concerned, doing away with all local legal conception which does not comply with its rulings. What I am saying now is said from a point of view which is not mine but which I am adopting in order to elucidate the problem.
The victorious powers since Yalta, Potsdam, and London have decided upon punishment of German war criminals by their courts on the basis of law derived from international law. They state that no objections on the basis of German Law should be permissible. The aggressive wars are to be dealt with on the basis of international law. If you adopt this point of view, then you may be inclined to decide upon the question of guilt not according to the picture which German legal science has with regard to collaboration, participation, intention, or realization of the criminal situation. Please understand me correctly. I am not arguing against this German point of view. I am merely trying to find a point of view comparable under international law in order to find a just judgment for German defendants; and I'm trying to give reasons for my conclusions, entirely on the basis of international law.
If Law Number 10 were to have one thousand paragraphs end if apart from special cases a general part were in existence, then the task of this High Tribunal would be confined to its application. Since, however, the law has only five articles, it is to be interpreted and supplemented, if not with the use of German, then with the use of international law.
The Chief Prosecutor, General Taylor, in his speech of 9 July has dealt with supplementation by means of using the many sources of law and the systems of every nation; but he has warned that when ascertaining penal responsibility one should not be caught up by the details of American or British interpretation of law, for instance, with regard to participation in a crime. In an eclectical method arising from various national penal codes and choosing various individual rulings, there is the objection that controversies are unavoidable. Law Number 10 has not been created by one nation on the basis of its legal code but is the outcome of an agreement which was concluded on the international level by four nations. It is impossible to supplement it by using systems which contradict themselves. There can only be a unanimous interpretation, and that is an interpretation as international law.
But up to now there isn't any general part to international law which can deal with participation or attempt. In international law there are only a few large principles. There is, therefore, no other way, when you are not to compare Law Number 10, using part norms from various national legal systems, but to interpret it from the point of view of international law alone, using recognized rules for this purpose.
Let me give you a few examples. 1. Minima no curat proba. International law due to its nature is a far-reaching and large-scale type of legal concept. Only such crimes are to come before its judges which are recognizable and the prosecution of which is necessary for the family of nations. The question put by the president to a colleague yesterday regarding punishing certain perpetrations must be answered is follows. From the point of view of international law such evidence does not lead to punishment at all. A German Reich court would consider it a case of fraud by stating that the removal of goods by a third for the purpose of acquisition can be defined as theft by the person in question. The decision of the Reich Court, Volume 12, Page 114. But this, of course, is not thought out from the point of view of international law. On this high level such a perpetration is quite irrelevant because of its minor importance.
Secondly, sovereignty. Everyone will sweep his own doorstep. A state has jurisdiction within its borders, and the only jurisdiction as long as it is not at war with its neighbors whereby was crimes become possible because of which neighboring states are bringing foreign nationals before its courts. Courts with an international task only have jurisdiction for such crimes as are connected with war, either due to space or due to time, and which infringe on the interests of foreign states. That is why Law Number 10 states that crimes committed by Germans against Germans or stateless persons should be left to German tribunals to judge. (Article 31 (d). This clear-cut separation is essential since international legislation is based on a completely different level than national jurisdiction.
The generosity of the international judge cannot be granted to a national judge. The international judge can judge only such crimes where international interests have been violated.
Applied to the case of Georg Learner, this means the question of labor allocation in concentration camps remains an internal German affair, not infringing upon international courts as long as no foreigners were used in concentration camps and as long as there were no violations of the laws of warfare. Until the beginning of the Russian campaign according to the evidence submitted to this Tribunal, this was not the case. There is one important argument which is in favor of this concept which to the best of my knowledge has not yet been called into any one of these proceedings; and that is the fact that the amicable relations between the United States of America and Germany continued until 1941. Surely, considering the large area involved and the clumsiness of the international apparatus due to these conditions, any violation of international law by one state can not produce a belligerent reaction of another state immediately. There is the international law for one's own protection; but a temporary nonintervention cannot allow the conclusion of agreement. A protest will have to take place first.
Let me draw your attention to Page 300 of Finnegan. It was only on the 25th of October 1941 that President Roosevelt protested the treatment of hostages on behalf of the United States and confessed to the principle that nobody could be punished for crimes committed by someone else. This was the first warning he issued. This announcement was repeated by him on 9 December 1941; on 21 August 1942; and several times later. Let me draw your attention to President Roosevelt's speeches, America and Germany, 1936 to 1945, various pages.
There is no objection from the point of view of international law if high tribunals of the United States deal with war crimes which were committed after the beginning of the war and in connection with the war and which can be proved as such; but it seems to me to be most dangerous for such tribunals to me to out punishments for crimes which were committed by Germans merely against Germans and within Germany's sovereign territory due to Germany's orders and without direct violation of American interests and before the first warning of the American President who only then claimed international jurisdiction for crimes which so far had not been subject to international prosecution.
In dubio pro reo. Of the few rules which have been recognized internationally, this is the most important one. "We commence our considerations with the basic rule that the defendant must be considered innocent," so it is said in Michael Musmanno's opinion in the Milch trial. According to Judge Phillips' statement, "The defendant has a claim to be considered innocent as long as guilt has not been proved beyond a reasonable doubt." It is part of the nature of international law that acts which have delayed effects are to be repaid and that the least doubt excludes their prosecution under international law. The rules of evidence and proceedings are subject to the severest measures. When examining the probative value of evidence, it must be taken into consideration that passion which arised during a war is bad for the proof. There is a margin of error in evidence which must be taken into consideration, and the judge must decide whether he has understood the arguments of a stranger.
The completely different attitude of the Americans and the Germans towards the state also must be mentioned in this connection.
Let me draw to your attention the excellent book written by Markel, American letters 1946. In the historic conscience of the American, this order follows: the individual, society, and the state, whereas the to the Continental European the state occupies the first position. Then follows society and much later the rights of the individual take their place, even the British only achieved a petition of rights in 1688, whereas in the state of Virginia on the 12 of June 1776 a bill of rights was resolved. The Germans were taught Luther's saying that everybody be subject to the jurisdiction of the state which has part of him whereas the Puritans taught that you must obey God more than man. The order from Above has a much more binding value to the German citizen than to the American where each individual examines the value of an order before God.
May I just tell you a tale before I finish. This construction reminds me of an incident at which I was present during school when we were reading Homer. The chapter was read about the same when Odyssey fled from Grotto of Polipheum, and came to the sea; there he found a beautiful ship, which he boarded and went into the bright shiny sea; thereupon Polipheum arose and tore rocks from the mountain to throw at this beautiful boat without, however, hitting it. Now the professor stressed the problem why Polipheum was not hitting the ship, he told us that it was an optical law, according to which you can only use two eyes to estimate correctly a certain distance. The Cyclops, such as Polipheum, had only one eye, therefore, they could, not possibly have hit correctly the target. Then one of our boys stood up, one who always made the professor feel awkward, and he said, Professor, Polipheum did not have an eye any more because that one eye, too, had been burned away by Odyssey, whereupon the professor replied to that, "You got to add that to it, too." That is science which in theory deals with such things, and fails to hit upon the center of the natural and simple solution which is overlooked.
THE PRESIDENT: We will take just five minutes for recess; that will leave just one hour before the noon recess.
(Recess)
But let us return to the principle: In dubio pro reo. This is more than just a rule of evidence. The theory of colliding statutes has developed in almost every country. The principle applies that in case the law changes during the time of the commission of the crime until the case comes up for trial the least severe law is to be applied. (See Art. 2, Par. 2 of the German Penal Code). It my give rise to misgivings if one finds that the sentence provided for by Article II, Sec. 3 of Control Council Law No. 10 starts with the death sentence for all crimes mentioned in the preceding Sections 1 and 2, and ranges down to more fines. Even if one admits that for instance the crimes listed as crimes against humanity have been punishable in all civilized countries it is to be noted that not all of these individual crimes have been threatened with the death sentence, as for instance illegal restriction of liberty or persecution for political or religious reasons.
However, I would like to conclude from the liberal application of International Criminal Law that such crimes are only prosecuted by an International Tribunal if under the law of the respective country they called for the mostsevere punishment. I would like to bring out something else in this connection; namely, another application of the principle In dubio pro reo, the general application of which I wanted to show in its effects on the application of the loss severe law in case of conflicting statutes.
Everywhere in the Penal Codes of the Continent the rule can be found that a person who is called before the courts of his native country is only then punished under the laws of his country if the laws of the place where the crime was committed also call for its punishment. (Art. 4, Sec. 3 of the German Penal Code). The issue is being discussed in connection with the laws of extradiction in international legal literature. Most states do not extradict their citizens if they have committed a crime while abiding abroad, but punish them in their own country. However, they only punish them if the crime was punishable at the place of commission. (I refer to Paul Fauchille, Droit International Public, 1922, Volume I, Page 1004). Again we find the principle In dubio pro reo; The defendant is to be tried according to the more lenient law, that is to say, he is not punished if one of the two laws does not recognize the elements constituting the crime. I do not overlook here that this principle is not generally recognized in America and England. Common law holds that the criminal should be punished wherever he committed his crime. Thus, criminals who have committed a crime abroad would not be punished by the courts of their own country (See Velvick, International Law, 1924, Page 213), However, the treaty between the United States and France of 1909 set forth that the citizens of both countries should not be extradicted even if they had committed a crime on the territory of one of the signatory powers.
(Article 5). A strict application of the exclusive jurisdiction of the forum delicti would leave crimes committed abroad unpunished, applying also the principle In dubio pro reo, that is to say, if one wants to be logical to this exaggerated point.
Law No. 10 in its wording also shows that it is conscious of this international issue and tries to regulate it in part. Crimes against humanity are punishable under Article II 1c, even if they do not violate the law of the country where they have been committed. This regulation according to its ordinance is only to be applied to crimes against humanity in the sense of Sub. Sec. c. It is not applicable to the remaining crimes of Section 1. It only statutes an exception of the principle; In dubio pro reo which otherwise is confirmed by the very fact that this exception is made. Technically speaking a criminal, according to the legislation of the majority of states, should be punished only if his crime is punishable both in the country where he is supposed to be brought to justice, i.e. his native country and in the country where he committed the crime. This however, is not the case, but for the territory where Law No. 10 is to be applied the fact that the crime is punishable under both national laws is not to be considered by way of this exception. This, however, is only true for this limited and expressly specified case of crimes against humanity. Only the fact whether punishment is to be meted out is discussed, hot the manner of punishment nor the sentence or its range. I would like the Tribunal to keep this point in mind, because I will return to it shortly.
First of all I have to point out that the exceptional character of the regulation just mentioned becomes apparent from the fact that as a rule war criminals should be punished at the scene of their crimes under the treaty which by way of Yalta, Moscow and London led to Control Council Law No. 10.
The Moscow Declaration of 30 October 1943 mentioned in the preamble of Law No. 10 reads in the part from Appendix 4 which is of interest to us as follows: "Those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in the above atrocities, massacres and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein.....without prejudice of the case of the major criminals, whose offenses have not particular geographical localization and who will be punished by the joint decision of the Governments of the Allies".
This Moscow Pact and its minutes are being expressly referred to by the preamble of Law No. 10.
If you add to this the statements of leading statesmen particularly of President Roosevelt you will come to the same results as I did, namely:
1. It was the desire of the signatory powers that those Germans who had committed crimes against humanity during the war should be punished for these crimes 2. They should be punished at the scene of their crimes.
3. In dubio pro reo. If they are not punished at the scene of the crime then following this guiding international principle they cannot be punished more severely within Germany than they would be punished at the scene of the crime. Human experience has shown that a criminal is punished at the scene of the crime. Human experience has shown that a criminal is punished more severely at the scene of his crimes than in another country, because a distance of space, time and psychology has arisen between the crime and its punishment. This experience is certainly one of the reasons why continental states do not extradict their nationals to a foreign state, but want to punish them themselves. You will not see my point until I draw your attention to the fact that capital punishment has been abolished since 20 May of this year in the countries east of the Elbe, in the Russian Zone of Occupation, in Poland and in the Soviet Union.
Consequently, a war criminal or a criminal against humanity would no longer be sentenced to death by a Russian Military Tribunal or by a Polish or a German Court in the Russian Zone for a crime committed in Polish territory. For instance, in the case of my client, Georg Loerner, all those charges of the Indictment would not constitute crimes calling for the capital punishment which are localized in the eastern territories, i.e. Lublin, Action Reinhardt, Osti etc.
4. Furthermore, I want to point out the following: Each Penal Code in the world recognizes alongside with the principle some forms of participation in the crime, such as accessory, instigator, abetter, etc. Criminal justice all over the world makes a distinction between the principle and the participants, and punishes the accessory less severely than the principal. If you look at Law No. 10, Art. II, Sec. 2, you will find there forms of participation described beginning with the principle and extending to other forms of participation which, however, are more loosely connected with the crime itself. The wording of this Sec. 2 in parts is not taken from legal literature but its language refers to diplomacy. The expression "took a consenting part" is found for the first time in the Moscow Declaration of 1 November 1943, and was taken up again by President Roosevelt in his proclamation of 24 March 1944 (Roosevelt, America and Germany, Page 95). There is already a fundamental difference between principal and accessory. In one case, animus auctoris has to be proven, in the other only animus socii. Our Reich Supreme Court mentions action in the perpetrator's own or other interests. The principal creates a cause in the sense of casuality, the accessory furnishes a condition. I refer to the respective text books such as Metzger, 1931, Page 442 or the Reich Supreme Court in the rulings Volume 55, Page 60, Volume 56, Page 329, Volume 57, Page 144, Volume 58, Page 279 and others.
The enumeration of Art. II, Sec. 2 can be compared with concentric circles which are laid around the center, namely the principal crime, and which become ever wider circles which however become ever weaker and increasingly more loosely connected with the nucleus of the crime. By its very nature this regulation only instructs the judge in the international law to keep these forms of participation in mind and not to let them go unpunished. The law puts at his disposal a range of sentences for all these crimes and forms of participation ranging from the death sentence down to mere fines. From this wording of the IMT verdict Sec. 9 it can be seen that the IMT had its misgivings with regard to this wide range of sentences that recommended an amendment of Control Council Law No. 10 and that it mentioned judicial freedom within the scope of specified limitations suitable to the nature of the crime. With regard to these limitations suitable to the nature of the crime I think that all judges are wont to punish participations more leniently than the principal crime. In as far as I was able to understand the statements of the Prosecution after having heard them only orally on one occasion, the Prosecution seems to assume an accomplished principal crime only in the case of Pohl, while they want to see the remaining defendants only punished as participants, accessories, and abettors after having dropped the charge of principal criminality against them. According to penal usage all over the world a distinction would have to be drawn in meting out sentences against principals and accessorys. Regardless of whether and how heavy a sentence is meted out by the tribunal against Pohl, this principle would necessitate the sentences of his co-defendants to be increasingly lenient, dependent on their remoteness from the principal crime.
3. All judges furthermore mete out sentences according to the intensity of the criminal intention, the immorality of the crime and the seriousness of the consequences, the endangering of the community by the criminal offense.
Here again we have to remember, that we are facing a tribunal judging according to the rules of international law, deriving its ultimate authorization from all menkind. I would like again to bring up the idea which I touched upon in my final plea and with which I shall deal more extensively later on. The present time can be distinguished easily from earlier phases in the development of mankind by the advance of science, and the connecting ties between mankind and technical development. Until the 18th century man with his immortal should remained a being with the mathematical symbol "infinite", and consequently inaccessible to mathematical calculations, such as addition and multiplication. Statistics in the meaning of our modern economy and state administration culminating in and reaching beyond the planned economy of totalitarian states became possible only when man was reduced to his working capacity and his needs as tangible values and when he could be expressed in terms of statistics. Now organizing began in a modern, administrative way. Sooner than this there were guilds of artisans but working procedure had not been standardized. There were armies but their smallest units were battalions which were kept together by their individual leaders through their own personal initiative and human understanding. The methods of training and clothing of a modern army are based on a totally different principle. Since all human activity can be good as well as bad, there is positive and negative organizing and consequently organized crime. Organized crime can be dealt with on the strength of the descriptions of crimes of criminal jurisprudence as known up to now. This becomes more difficult if one has to advance to criminal organizing and more difficult still if one tries to go one step further and punish somebody who permits himself to be organized under certain given conditions. This would be the case if somebody allows himself to be organized and steered into criminal aims without for the rest to accomplish himself the elements of the crime.
Here now we come back to the basic outline of legislation incepted in London, and becoming jurisdiction in Nuernberg. But I do not develop this broad perspectives in order to lay down a legal philosophical idea before you, which has to be dealt with and reasoned out at some other place but in order to draw your attention to the fact that when judging the actions of these defendants you have also to consider how they fit in the large scope of criminal activity. Whoever does not belong to the big criminal organizers, the organizers of terrible crimes, which are connected in our mind with Auschwitz and Maidenek is, even if one had to assume a punishable connection after long hesitation to be punished much more leniently than the instigator of such a criminal attack upon humanity. This is true if a connection can be established in the individual case which leads to a conviction.
I would furthermore remind you of the exceptional caution with which Tribunal I has approached the issue of connections and of the acquittals which this Tribunal deemed necessary and I would also like to refer to trials at Dachau and to their results and sentences, although I have to assume that the high Tribunal knows more about those things than I do and not only about those things.
In conclusion I would like to ask the High Tribunal to permit me to give vent to my wrath; it will be only a little thunderstorm and as modest as thunderstorms happen to be in this dry summer. My wrath was incurred by muddled thinking, which is apt to lead to fatal fallacies. The day before yesterday one of my esteemed colleagues has made himself the advocate of an opinion which believed to read into Article II i d, which deals with membership in a criminal organization, the activity of an accessory, a sort of independent accessory and which wants to make this regulation clearer by this construction and intends to draw important conclusions from this interpretation. But we are all agreed that this regulation is applicable to membership with knowledge of the criminal aims and this and only this is the crime described. Not included are crimes committed by the organization.
If the individual concerned is a participant in such crimes, then a new crime, running concurrently with the first crime is created. Consequently it would be erroneous to connect this membership as the activity of an accessory with such crimes, but then if one had to admit at the same time that they do not belong there and that such an accessory activity is something independent. Wherever ideas are lacking a term will have to suffice - says Goethe. But here it does not suffice at all but it creates as make screen and leads to wrong conclusions. Hence the struggle. The interpretation of this crime as described in Article II i d as conspiracy and as independent accessory activity does away with the characteristics of this conception, namely its connection with another crime, its dependency. Methods of this sort will spoil logical thinking. It would be the same as to define a motor-car as a horse-cart without a horse. Or to define a cat as a dog that does not bark or the wellknown definition of Lucusa non lucendo. Philologists throughout the centuries used to smile at this definition: Lucus, meaning forest was derived by early philologists from the word lucere, and Lucus would be explained "de non lucendo" -- not shining. When I was a child I used to know a circus-performer who showed his open hand and would ask: "What's in it?" He was not satisfied with the answer: "Nothing". Nothing for him was a knife without a handle, which had no blade. Independent accessory activity would amount to the same thing, it would be an accessory activity without principal activity turned by this erroneous construction into the principal activity, disregarding its essential characteristics.
You cannot deprive a concept of its essential characteristics and then maintain that the concept after this operation which leaves it emasculated would further understanding.
THE MARSHAL: The Tribunal is again in session.
DR. HOFFMAN (For defendant Scheide): May it please Your Honors, after my colleague, Herr Dr. Haensel, finished his deliberations, I would not like to lead you at the present moment to the very dry field of trucks and motor vehicles which my client dealt with, but I believe that you have heard and that you know sufficiently about my client's activities while he testified as a witness in his own behalf. Therefore I want to read the factual part of my final plea. I would only like to read part of my final plea. After I have reached the conclusion that a conviction due to Counts 1 and 2 of the Indictment cannot be considered, I shall now deal with Count 4 of the Indictment.
Up to now we only have the case of the Defendant Poppendick who was sentenced to ten years imprisonment under the fourth count of the indictment under Military Tribunal I. Here Military Tribunal I stated explicitly that the Defendant Poppendick did have a certain knowledge about the human experiments in the concentration camps, which were the most horrible crimes. That is where the fundamental difference exists between that case and the one of the Defendant Scheide, who had no knowledge whatsoever about the crimes in the concentration camps. It will have to be examined quite in detail how his case has to be judged. The International Military Tribunal in its verdict against Goering and others stated what they meant by membership in the SS as a criminal organization. The General-SS, the Death Head Units, and the Waffen-SS are criminal organizations. However, the Reiter-SS and all Police units with the exception of the Gestapo and the SD are not criminal organizations.
The International Military Tribunal stated that he who after the 1st of September 1939 was an official member in the SS organization which in connection with the war worked on the persecution and extermination of Jews, committing atrocities and crimes in the con centration camps and abuses in the administration of foreign occupied territories, the execution of the conscription of labor and also the abuse and extermination of PW's is guilty, if the following subjective characteristics of the offense exist in his case, namely, in spite of the fact that he knew he became voluntarily a member of the organization or remained in the organization.