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.
It will be considered as equal to the knowledge of the use for criminal purposes, if somebody, in his capacity as a member, was involved in the objective characteristics of an offense, without realizing this, but if the circumstances were likely to make the purposes for which the organization was used, appear as criminal, in short, if somebody was constrained to know the criminality of the organization on account of all circumstances.
In the meaning of the verdict of the International Military Tribunal anybody acted voluntarily who would have been able to take any decision, without being afraid that the state would be seriously prejudiced against him as a result.
Not affected by the above stipulation is anybody who has made himself guilty of the objective characteristic of the offense in any other way than by membership. Thus, the great number of guilty members of the SS who are in such manner still to be found out is declared to be a criminal group of persons.
The Defendant Scheide had no direct knowledge of the purposes of the SS, as far as the above-mentioned objective characteristic of the offense is concerned. It must be examined, however, whether he had to know such a purpose according to the above-mentioned extension of the definition of knowledge.
We have heard a great number of witnesses here with regard to the question of presumption of knowledge of crimes according to Count II and II of the Indictment.
I have never made a secret of it that I think this question of presumption of knowledge, in particular about crimes in the concentration camps - as this is nearest - to be the decisive point of the trial for the defendant Scheide, represented by me, with regard to Count IV of the Indictment.
I therefore have interrogated each of the witnesses on this question. Among the witnesses interrogated there were witnesses for the prosecution and witnesses for the defense, and some of the defendants themselves have to a certain extent stated their point of view on the question of presumption of knowledge.
The following turned out to be the essential result.
Among the witnesses who gave their point of view as former inmates of a concentration camp as far as the question of presumption of knowledge is concerned, there is first of all the witness Kogon.
Kogon was an inmate of the concentration camp Buchenwald from 1937 to 1945; he is the author of the book "Der SS-Staat" ("The SS-State").
Answering my question whether an administrative officer of the SS within a concentration camp for instance had to know exactly about individual crimes, the witness stated as follows:
"An administrative officer who was employed in the camp or outside the camp in the administration office, well, that depended upon the circumstances, upon his own will. This was just like with the inmates themselves. You should be in a camp as an inmate for years and years, and not bother about anything as far as you were not directly concerned yourself, and if then you were among the survivors, of course you knew only fragments and small details, more or less nothing at all, compared with the whole."
Well, Kogon speaks about an administrative officer who was employed in the camp or outside the camp in the administration. At any rate, this is somebody who was in direct contact with the concentration camp. The defendants who are in the dock here, in general were even further removed from these things.
At any rate, the defendant Scheide never entered any concentration camp.
In order to have to know the objective facts, he depended upon external impressions which he got. Without seeing and hearing anything that would have had to attract his attention to things, one cannot say that he must have known about the real conditions in the concentration camps.
If he did not see those conditions, he still might hear of them.
In this connection it is important to mention that drive for secrecy Hitler was so particular about.
This pervaded all branches of public life, to start with. In all places the secrecy order of 11 January 1940 was exhibited. This order decreed that secret matters should be disclosed to nobody unless it could not be avoided in the interest of official duties.
Conditions in the concentration camps were a matter to be kept most secret. Significant is the fact that no person was supposed to enter a concentration camp without permission, that the highest dignitaries of the Third Reich, as for instance the Minister of Justice, Thierack, could not visit a concentration camp without the personal permission of Himmler;that to all extermination camps, as e.g. Auschwitz and Treblinka a special system of concealment was applied, by way of camouflage, cordons, great distance of the plants from the centres of the Reich and special selection of the guards, that the Reich Security Main Office itself declared in answer to an official question by the Reich Ministry of Justice about the fate of the Jews in the years 1942/43 that all that was nothing but lies, that nothing was allowed to leak out from the concentration camps themselves about the true conditions there through the prisoners.
To prove the above statements I offer the following evidence:
1. That the former representative of the personal referent of the Reichsfuehrer SS, August Meine, declared:
"The Reich Minister of Justice did not have the right to enter a concentration camp on his own initiative. He and his officials needed express personal permission from the Reichsfuehrer SS, because camp commanders and other office chiefs could *** give the necessary permission. Therefore the Reich Minister of Justice directed such a request to the Reichsfuehrer SS.
The Reichsfuehrer SS gave the permission in an accommodating way, but at the same time he ordered by inter-office communication through the Reich Security Main Office that the shelters for Jews and other politically important places (meaning especially the area with extermination installations) should unobstrusively be kept out of the sight of the Reich Minister of Justice and his officials. After the visit had taken place he wished to receive an immediate report that the secrecy had been kept according to instructions.
The visit took place as arranged and the Reichsfuehrer SS received the report as requested."
2. The former judge at a Court of Appeal (Oberlandesgerichtsrat in the Reich Ministry of Justice), Dr. Rudolf Kuhn, declared:
" In 1942 or 1943, at rate at a time when Jews were being evacuated from Berlin to the East, a man was reported for spreading the rumor that Jews were to be killed by gassing in the East. I considered this allegation to be monstrous and untrue. Nevertheless I inquired at the Gestapo whether these allegations were based on some actual occurrences which would make the execution of proceedings seem risky. I had made the experience that such inquiries brought out facts which explained the origin of such rumors, which is important for the judgement of the matter. My inquiries received a negative reply from the office of the Secret State Police, confirming that this rumor had been invented without factual proof."
3. The former SS-Judge Dr. Konrad Morgen stated with regard to the camouflaging of the extermination camp:
"The cooperation of members of the SS was therefore restricted to the Commander, the physician, the driver, the exterminator and the guards. Germans in this operation were only the commander, the physician and the exterminator. Thus it was again assured that secrecy was maintained not only by compulsory discretion under oath, but also by the difficulties with regard to a linguistic understanding, between the majority of those informed about the events and the German population or the German members of the SS."
4. The witness Engler, who from 1941 to 1945 was a prisoner in the concentration camp Sachsenhausen, confirms that it was impossible 1. to write letters in which the true conditions were described, 2. to approach visitors coming to the camps and to describe the conditions prevailing there.
Engler says here literally: "This was possible only for one resolved to bid farewell to his life."
3. that every prisoners on being released had to sign an undertaking to the effect that he would disclose nothing of what he had seen or experienced in the concentration camp, that means that he would say nothing to any third person.
Asked, whether in his opinion did keep this undertaking, he said literally:
Since the entire German people did not dare, or rather, the major part of the German people had not the courage to say anything surely those who knew that to disclose the facts would mean to them to be returned to the camp and consequently to be removed from life, could still less be expected to do so".
Another important question this witness dealt with was the differ ence in the treatment and conditions in the various concentration camps according to time and place.
Replying to a question about this matter the witness said literally:
"My opinion is that conditions in camps which were in connection with quarries, were notably worse than for instance those in a camp where there was no opportunity for such a work."
Asked, whether this possibly also depended on the camp commandant, witness stated:
"My opinion is that the treatment of the prisoners varied according to the individuality, mentality and character of the camp commander, so that it depended on the judgment of the commander, as we found out from our own experience at Sachsenhausen."
This shows that conditions were not the same in each camp so that it should have been possible to know more of one camp and less of another one.
But what could lead out from a concentration camp, were rumors.
About these Hans Fritsche, the radio commentator of the Third Reich said:
"Rumors never prove anything. But rumors may contain a grain of truth. They have often been very troublesome in the Third Reich, so that sull-scale campaigns against the rumors were started and it was tried to discredit the rumor-mongers."
But that was it. Not only that the truth about the concentration camps would never have been admitted in the press and the radio, rumors about these things were opposed in the most resolute manner, so that they could never spread. Some people in Germany knew them, a great many did not. The truth was known only after the war.
In as far as it was known before, it appeared so enormous that it was generally disbelieved.
A fitting example for this is the statement of the defendant Hohberg. Hohberg stated that he had been informed that at the end of 1942 by an administration leader who was devoted to him about the extermination of the Jews.
Hohberg says that he forwarded this information to about 25 trustworthy people. About the results he says:
"By some people whom I told these things, I was simply considered not normal. There was a number of people who thought I was telling them tales.
This, in spite of the fact that my information was authentic."
Soo even there where the truth became known, it still remained restricted to the person in question and a few other people. The majority got to know only rumors.
The same picture is shown by the few statements we have from the highest places and which could help to disclose the truth. There are two speeches of Himmler known. These are the speeches made at Metz and at Posen. Both speeches were secret and had been addressed to a small circle of persons only.
How strict concealment was in this case, is shown by the Posen speech by Himmler of which the former SS-Obersturmfuehrer Rudolf Gerhard Schneider, who happened to be present literally says: -
JUDGE MUSMANNO: Dr. Hoffmann, was the speech at Cracow pretty well known-- You mention the speech at Posen and the speech at Metz. There was a speech at Cracow, which seems to have been pretty well known. It appears in our document books.
DR. HOFFMANN (ATTORNEY FOR THE DEFENDANT SCHEIDE): Well, you see, I was only thinking about these speeches, the one in Posen and the speech in Metz. Was there a speech at Cracow?
JUDGE MUSMANNO: Yes, we noticed in our document books there was such a speech.
DR. HOFFMANN: Very well, Your Honor.
Schneider literally said, and I quote:
"Even at a later date nothing could be undertaken by any participant because everyone, including myself, was bound to strictest secrecy even with respect to our supervisors. I had to sign a paper according to which I and my entire family would be exterminated if I were to violate the order for secrecy."
Only the highest SS leaders were, invited to that speech. The above mentioned former deputy of the personnel adviser of the Reichfuhrer SS said literally: I quote, "As former deputy of the personal adviser of the Reichsfuehrer SS I declare that usually only those leaders who held higher posts at one of the main offices within the sphere of command of the Reichsfuehrer SS and Chief of the German Police and who held at least the rank of SS Gruppenfuehrer were invited to these so-called SS Gruppenfuehrer conferences."
But even those who had been invited to those conferences could sometimes not make head or tail of such a speech.
The former General of the Waffen-SS S**** who had listened to part of the Posen speech, and had, among other things, heard Himmler speaking of a march to the Urals, which the whole army was in retreat, declare verbally:
"To me all that appealed so unreal that I was absolutely flabbergasted, nonplussed, telling myself, but this is impossible how can one the situation being what it is, speak of an advance towards the Urals."
Asked, whether he would have been able to forward such a speech to the people under him, provided that he would have been allowed to do so, witness declared literally:
"But certainly on no account, such a madness cannot be forwarded, because, if you say to a unit which is in retreat, that they have got to advance to the Urals, they surely think their commander has become quite mad."
One may as well presume that things were not different with the Metz speech.
Even these two official speeches of Himmler were as I have shown, not able to spread the knowledge about war crimes or crimes against humanity beyond a certain circle of person, so that it would not be possible to say that from them there resulted necessarily a reasonable presumption fora knowledge of these crimes.
It remains to examine the official propaganda of the 3rd Reich in this respect. The prosecution has submitted a booklet with the title "The Subman". It also referred to some SS-manuals and finally to Hitler's book "Mein Kampf."
As far as Hitler's "Mein Kampf" is concerned, the Secretary of State in the Bavarian. Liberation Ministry, Dr. Camillo Sachs declared literally:
"I had read the book "Mein Kampf" which, unfortunately, a great many Germans had not done. Even many members of the NSDAP never read that book."
This proves that the knowledge of this book was far from being wide-spread, as one would be led to infer from **** number of printed copies.
As far as booklets are concerned of the kind of the booklet submitted by the Prosecution, "The Subman", the public was utterly insensitive against compilations of that sort on account of the training received through many centuries.
Hans Fritsche, whom I quoted above, declared, when shown the booklet "The Subman" as a witness that this had been the worst kind of propaganda.
So it was, and there is no reason to assume that the effects of such a propaganda in general resulted in actions and that it led people to the conclusion that war crimes and crims against humanity were to be perpetrated. May I point out, your Honors, the general public did not even then abandon the laws of humanity - apart from very small exceptions - when night after night the bombs were dropped on the German cities, killing thereby women and children. They were even asked to do so, so insensitive was the German people in general against bad propaganda.
The Prosecution will point to the fact that the peculiar ideology of the SS should have imparted the knowledge of war crimes and crimes against humanity.
Certainly, there were SS-manuals, there were the 12 commandments of an SS-man, there was the Engagement and Marriage-Instruction.