Those who take part in the production and earn a living through it and who need the products, have a claim to them.
Through my work, I have given work and bread to more than 10,000 people who worked as free men in their home countries and I have satisfied the needs of hundreds of thousands of people and I cannot recognize a crime in that.
Where confiscations of plants presented difficulties for the owners of the plants, I showed human understanding for the social safeguarding. It was not my fault that in one of the 400 plants which I supervised, some concentration camp inmates worked beside several hundred free workers, this was done against my suggestion, nor could I prevent it. The powers which I had to improve the living conditions and the feeding so that it was more like that of the free workers, those I used. During the last year of the war I did my duty as a soldier in service at the front. Without reason the prosecution has raised the charge against me that during that time I had participated in crimes against humanity. They failed to supply the proof, since that assertion did not concur with the truth.
I acted towards enemies and allies, against soldiers and civilians in a manner as is compatible with the laws of war and customs of war, with the moral and the Prussian tradition for soldiers and for officers.
In one of the finest books Franz Werfel holds that no cam can separate himself from the fate of his people, even if he wishes to be a world citizen.
In this book Werfel describes in a moving manner the fate of the Armenian people. The knowledge which is to be drawn from that experience is a generally human one.
I am a German and Germany's fate is my fate. During 2½ years of a prisoner's life, I have seriously examined my conscience to see if I was guilty.
I did not do this narrowly, adopting a national point of view, but I adopted the point of view of a decent human being, as I have always considered myself to be. I consider myself as innocent today as I did on the day of the arraignment.
The decision as to whether I am guilty according to the laws valid today is in the hands of this High Tribunal.
THE PRESIDENT: The Defendant Klain.
DEFENDANT KLAiN: May it please Your Honors, generally speaking, I have nothing to add to the arguments of my defense counsel, Dr. Bergold. I would simply like to deliver a personal statement, namely that I never did want to commit crimes and that I never did commit crimes. I had nothing to do with those horrible things uncovered before this Tribunal and I had nothing in common with them. The fate which has befallen my family under the past regime was horrible. I should like to remind you here that my sister and her husband were amongst the victims of the regime and that my father out of shame and worries suffered an early death. Furthermore, that the proceedings against my person did not come to an end, is only due to the fact that the system was already beginning to disintegrate, I knew my family's attitude very well. Please be convinced that this explains well enough why I never participated in crimes which were committed against concentration camp inmates because considering the threat of persecution by the State regarding my family, I would not have but helped to prepare the fate of my relatives.
During all these years when I had been imprisoned, namely since 12 April 1942, I have again and again examined this question. However, I could not find myself guilty, not even towards my relatives, though my conscience is still more sensitive as to my family.
This, Your Honors, please bear in mind when judging my case.
THE PRESIDENT: This concludes the statements which the law provides the defendants may make at the conclusion of the proofs. The Tribunal wishes to take this occasion to comment all defense counsel who have appeared in this case for their high professional conduct throughout the trial.
Each attorney has been zealous in protecting the interests of his client and in spite of the handicaps, of which the Tribunal is fully aware, has skillfully and adequately presented his evidence. Moreover, each attorney has shown to the Tribunal an attitude of respect and cooperation, which has been extremely helpful in our difficult task. We shall take away with us a high opinion of the lawyers in Germany.
The court will stand adjourned without day to be reconvened upon notice.
(The Tribunal adjourned until further notice).
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Oswald Pohl, et al, defendants, sitting at Nurnberg, Germany, on 3 November 1947, 0900-1630, Justice Robert M. Toms, presiding.
THE MARSHAL: Persons in the Courtroom will please take their seats.
The Honorable, the Judges of Military Tribunal No. II.
Military Tribunal II is now in session.
God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Case No. 4, the United States of America against Oswald Pohl and others, the case is before the Tribunal this morning for the reading and entry of the final judgment in the case.
Judge Musmanno is filing a concurring opinion which the SecretaryGeneral will file.
(Judge Musmanno handed his opinion to the Secretary-General.)
Judge Phillips will read the first part of the opinion.
UNITED STATES MILITARY TRIBUNALS SITTING IN THE PALACE OF JUSTICE, NURNBERG, GERMANY AT A SESSION OF MILITARY TRIBUNAL II HELD NOVEMBER 3, 1947
THE UNITED STATES OF AMERICA : : - vs - : : OSWALD POHL, AUGUST FRANK, GEORG LOERNER,: HEINZ KARL FANSLAU, HANS LOERNER, JOSEPH : OPINION AND JUDGMENT VOGT, ERWIN TSHENTSCHER, RUDOLF SCHEIDE, : MAX KIEFER, FRANZ EIRENSCHMALZ, KARL : Case No. 4 SOMMER, HERMANN POOK, HANS BAIER, HANS : HOHBERG, LEO VOLK, KARL MUMMENTHEY, HANS : BOBERMIN, AND HORST KLEIN, :
Defendants.
United States Military Tribunal II was established on the 14th day of December 1946 by General Order No. 85 of the United States Military Governor for Germany. It was the second of several Military Tribunals constituted in the United States Zone of Occupation pursuant to Military Government Ordinance No. 7, for the trial of offenses defined as crimes by Law No. 10 of the Control Council for Germany.
Under the Order which established the Tribunals and designated the undersigned as members thereof, Military Tribunal II was ordered to convene at the Palace of Justice, Nurnberg, Germany, and to hear and determine such cases as might be filed by the Chief of Counsel for War Crimes.
Telford Taylor, Brigadier General, U. S. Army, Chief of Counsel for War Crimes, on the 13th day of January, 1947, filed an indictment against the defendants herein named, in the Office of the Secretary General of Military Tribunals.
A copy of said indictment in the German language was served on each defendant on the 13th day of January 1947, except for the defendant Georg Loerner, who was served on the 14th day of January 1947. More than thirty days after said indictment was served on each defendant, Military Tribunal II arraigned the defendants in the Palace of Justice, Nurnberg, Germany, on the 10th day of March 1947. Upon arraignment, each defendant entered a plea of "Not Guilty" to all the charges preferred against him. Prior to the arraignment, each defendant was assigned German counsel of his own selection and each defendant was represented by his counsel during the arraignment.
On April 8, 1947, the prosecution began its presentation of evidence. At the conclusion of the prosecution's case in chief the defendants began the presentation of their evidence. The submission of evidence and the arguments of counsel were concluded on the 20th day of September, 1947. The personal statements of all of the defendants were heard on September 22, 1947.
During the trial of the case, the Tribunal sat for 101 sessions, (on 101 different dates, including date of arraignment; also, including a one-half day joint session with all Tribunals in bank.)
During the trial the prosecution offered twenty-one witnesses, the Tribunal itself called one witness, and the defendants offered forty-five witnesses, including the eighteen defendants themselves, a total of sixtyseven witnesses.
In addition, the prosecution put in evidence as exhibits, a total of 742 documents; the defendants put in evidence as exhibits a total of 614 documents, making a grand total of 1356 documents received in evidence. The entire record of the case consists of more than 9,000 pages.
Copies of all exhibits offered in evidence by the prosecution in its case in chief were furnished in the German language to the defendants before the same were offered in evidence.
During the entire proceedings each defendant was present in Court, except when a defendant was absent for a short time upon his own motion, owing to illness, or other reasons.
Counsel for the defendants made numerous applications to the Tribunal for the purpose of procuring the personal attendance of persons who had made affidavits on behalf of the prosecution. If at all possible, the Tribunal granted such applications and procured the personal attendance of such persons in order that they could be interrogated or cross-examined by defense counsel.
The trial was conducted generally along the lines usually followed by the trial courts of the various States of the United States, except as to the rules of evidence. In compliance with the provisions of Article VII of Ordinance No. 7, great latitude in presenting evidence was allowed prosecution and defense counsel, even to the extent at times of receiving in evidence certain matters of but scant probative value.
The trial was conducted in English and German with an adequate sound system for conveying either language to all participants and listeners. All proceedings on the trial were reduced to writing in English and German, and an electrical recording of all proceedings was also made.
The tribunal was most diligent in its efforts to allow each defendant to present his defense completely, in accordance with the spirit and intent of Military Government Ordinance No. 7. Counsel for each defendant was permitted to cross-examine witnesses of the prosecution and other defense witnesses and to offer in evidence all matters deemed of probative value.
THE JURISDICTION OF THE TRIBUNAL The jurisdiction of Military Tribunal II is determined by Law No. 10 of the Control Council for Germany.
The pertinent parts of this Law with which we are concerned provide as follows:
Article II "1. Each of the following acts is recognized as a crime:
"(b) War Crimes: Atrocities or offenses against persons or property constituting violation of the laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, vanton destruction of cities, towns or villages, or devastation not justified by military necessity.
"(c) Crimes Against Humanity: Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecution on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
"(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.
"2. Any person without regard to nationality or capacity in which he acted, is deemed to have committed a crime as defined in .... this article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime..."
The indictment in this case contains four counts and is filed pursuant to these provisions.
Count I - The Common Design or Conspiracy The first count of the indictment charges that the defendants, between January 1933 and April 1945, acting pursuant to a common design, unlawfully, wilfully, and knowingly did conspire and agree together, and with each other, and with divers other persons, to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, Article II.
During the trial each of the defendants challenged this count of the indictment, and moved that the same be quashed and stricken from the indictment. The defendants alleged in their motions that under the basic law the Tribunal did not have jurisdiction to try the charge of conspiracy as a separate substantive offense. The motion to quash was argued by counsel for the prosecution and defense and thereafter the Tribunal granted the motion. In order that this judgment may be complete, the ruling of the Tribunal is incorporated in this judgment:
"It is the ruling of this Tribunal that neither the charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.
Court No. II, Case No. IV.
"Count I of the indictment, in addition to the separate charge of conspiracy, also alleges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of Count I from the indictment, but, insofar as Count I charges the commission of the alleged crime of conspiracy as a separate substantive offense, distance from any war crime or crime against humanity, the Tribunal will disregard that charge.
"This ruling must not be construed as limiting the force or effect of Article 2, paragraph 2 of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September, 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10."
Inasmuch as the offenses charged in the unstricken part of Count I are repeated in substance in Counts II and III, the entire first count may for purposes of this judgment be disregarded without detracting from the contents of the indictment as a whole.
Counts II and III - War Crimes and Crimes Against Humanity The second and third counts of the indictment charge the commission of war crimes and crimes against humanity.
The counts are identical in content, except that in Count II the acts which are made the basis for the charges are alleged to have been "committed against the civilian populations of occupied territories and prisoners of war", whereas in Count III the criminal acts are alleged to have been "committed against German civilians and nationals of other countries."
With this distinction observed, both counts will be treated as one and discussed together.
Counts II and III allege, in substance, that between September 1939 and April 1945 all of the defendants herein named "were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of atrocities and offenses, including but not limited to plunder of public property, murder, torture, illegal imprisonment and enslavement, and deportation to slave labor of, and brutalities, atrocities and other inhumane and criminal acts against thousands of persons."
The indictment further avers that all of the defendants were associated with the Main Economic and Administrative Department, commonly known as the "WVHA" which was one of the twelve main departments of the SS.
The indictment more specifically charges the defendants with war crimes and crimes against humanity, as follows:
The defendant Oswald Pohl was the head of the WVHA and the defendants August Frank and Georg Loerner were his deputies. The WVHA was divided into Amtsgruppen, which were inter-related in their operations, purposes, and functions.
Amtsgruppe A, among other things, was responsible for financial matters of the SS, including those relating to its concentration camps. This Amtsgruppe was sub-divided into five offices or Aemter, which were charged with responsibility for certain parts of the entire financial administration. The defendants Frank and Fanslau were, successively, heads of Amtsgruppe A. The defendants Hans Loerner, Frank, Vogt, and Fanslau were heads of offices or Aemter within this Amtsgruppe A.
Amtsgruppe B, among other things, was responsible for the supply of food and clothing for inmates of the concentration camps, and of food, uniforms equipment, billets, and camp quarters for the members of the SS. It was subdivided into five offices or Aemter. The defendant Georg Loerner was the Chief of Amtsgruppe B, and the defendant Tschentscher was his deputy and chief of one of the offices or Aemter within this Amtsgruppe B. The defendant Scheide was head of Amt B-V within Amtsgruppe B.
Amtsgruppe C, among other things, was charged with the construction and maintenance of houses, buildings, and structures of the SS, the German Police, and of the concentration camps and prisoner of war camps. It was sub-divided into six offices or Aemter. The defendants Kiefer and Eirenschmalz were heads of Aemter or offices within this Amtsgruppe C.
Amtsgruppe D, which prior to March 1942 was known as the Inspectorate of Concentration Camps, was responsible, among other things, for the administration of the concentration camps and of the concentration camp inmates. It was responsible for the food, clothing, housing, sanitation, and medical care of the concentration camp inmates, and of the order, discipline, and regulation of the lives of the inmates. It was charged with the supply of the forced services and labor of the concentration camp inmates to public and private employers throughout Germany and the occupied countries. It was sub-divided into six offices or Aemter. The defendant Sommer was the deputy chief of one of the offices or Aemter of Amtsgruppe D, responsible for the supply of the services and labor of concentration camp inmates. The defendant Pook was in charge of matters relating to dentistry affecting the concentration camp inmates.
Amtsgruppe W, among other things, was responsible for the operation and maintenance of various industrial, manufacturing, and service enterprises throughout Germany and the occupied countries. In the operation of the enterprises under its control, this Amtsgruppe employed many concentration camp inmates. It was sub-divided into eight offices or Aemter. The defendant Pohl was the head of Amtsgruppe W, the defendant Georg Loerner was his deputy, and the defendants Hohberg and Baier were his executive assistants. The defendant Volk was personal adviser on the staff of Oswald Pohl and head of the legal section of the Executive Office of Amtsgruppe W, and the defendants Mummenthey, Bobermin, and Klein were heads of offices or Aemter within this Amtsgruppe.
The indictment then goes on to charge that these defendants, acting concertedly within the framework of WVHA and in pursuance of a common criminal design, perpetrated and aided and abetted in the perpetration of atrocities and offenses against persons and property, including plunder of public and private property, murder, extermination, enslavement, deportation, unlawful imprisonment, torture, persecutions on political, racial and religious grounds, illtreatment of, and other inhumane and unlawful acts against thousands of persons, including German civilians, nationals of other countries, and prisoners of war. The indictment then relates in detail the means and methods by which the above criminal acts were accomplished.
Counts II and III of the indictment conclude with the averment that these crimes and atrocities "constitute violations of international conventions.., the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and of Article II of Control Council Law No. 10."
Count IV -- Membership in Criminal Organization The fourth count of the indictment avers that all of the defendants herein named except defendant Hohberg were members subsequent to September 1, 1939, of the SS, declared to be criminal by the International Military Tribunal and Paragraph 1 (d) Article II of Control Council Law No. 10.
The law, as pronounced by the International Military Tribunal with reference to membership in an organization declared criminal, is as follows:
"In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen-SS, members of the SS Totenkopf Verbande, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called riding units....
"The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes. The basis of this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; this group declared criminal cannot include, therefore, persons who had ceased to belong to the organizations enumerated in the preceding paragraph prior to 1 September 1939."
Under the American concept of liberty, and under the Anglo-Saxon system of jurisprudence, every defendant in a criminal case is presumed to be innocent until the prosecution by competent and credible proof has shown his guilt to the exclusion of every reasonable doubt. This presumption of innocence follows him throughout the trial until such degree of proof has been adduced. Beyond a reasonable doubt does not mean beyond a vain, imaginary or fanciful doubt, but means that the defendant's guilt must be fully proved to a moral certainty, before he is condemned. Stated differently, it is such a doubt as, after full consideration of all the evidence, would leave an unbiased, reflective person charged with the responsibility of decision, in such a state of mind that he could not say that he felt an abiding conviction amounting to a moral certainty of the truth of the charge.
If any defendant is to be found guilty under Counts II or III of the indictment, it must only be because the evidence in the case has clearly shown beyond a reasonable doubt that such defendant participated as a principal in, accessory to, ordered, abetted, took a consenting part in, or was connected with plans or enterprises involving the commission of at least some of the war crimes and crimes against humanity with which the defendants are charged in the indictment. Only under such circumstances may he be convicted.
If any defendant is to be found guilty under Count IV of the indictment, it must be because the evidence has shown beyond a reasonable doubt that such defendant was a member of an organization or group subsequent to September 1, 1939, declared to be criminal by the International Military Tribunal, as contained in the judgment of said Tribunal.
THE PRESIDENT: The Presiding Judge continues the reading.
The defendants are charged in the indictment as officials of the Wirtschafts und Verwaltungshauptamt (commonly called the WVHA) of the Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (commonly knows as the SS). The whole sordid history of the SS and its criminal activities has been told in detail in the judgement of the International Military Tribunal (pp. 368-273, Official Edition), and need not be repeated here. In this case, the Tribunal is concerned only with the members of the WVHA, or Economic Administration Main Office, and its predecessors, the Hauptamt Verwaltung and Wirtschaft, or Administrative and Economic Main Office, and the Hauptamt Haushalt und Bauten, or Budget and Building Main Office.
Early in 1942, the WVHA was organized under Himmler's order to coordinate and consolidate the administrative work of the SS. The organization of the former Administrative Department and Department of Budget and Building of the SS was taken over intact, and, in addition, another main office of the SS was incorporated into the WVHA, namely, the Inspekteur der Konzentrationslager, or Inspector of Concentration Camps. Of this revamped organization, the defendant Pohl was continued as Chief and was in supreme command. The WVHA was divided into five Amtsgruppen, or departments, namely:
Amtsgruppe A - Budget, Law and Administration Amtsgruppe B - Supply, Billeting and Equipment Amtsgruppe C - Works and Buildings Amtsgruppe D - Concentration Camps Amtsgruppe W -- Economic Enterprises Each amtsgruppe was headed by a Chief and was, in turn, divided into aemter or offices.
For example, Amtsgruppe A was subdivided into Amt A I to Amt A V, Amtsgruppe B was likewise subdivided, while Amtsgruppe W was subdivided into Amts W I to Amt W VIII. Each amt or office was Each amt or office was charged with some specialized phase of the general field covered by its amtsgruppe.
The WVHA, as one of the twelve main offices of the SS Central Organization, was charged with the administrative needs of the entire SS, including supplies of every kind, billeting, transportation, and also the administration of the entire system of concentration camps. This did not involve the commitment to or release of inmates from concentration camps, but it did involve the maintenance and administration of the camps and the use of the inmates as a source of forced labor.
In addition to its functions as an administrative agency, WVHA managed and controlled a vast number of economic enterprises which were either owned or controlled by the SS. These enterprises embraced an extensive industrial empire, extending from Holland to Poland and Hungary, and were operated almost entirely by the use of concentration camp labor. The operation and administration of these enterprises was the task of Amtsgruppe W, of which defendant Pohl was the Chief and defendant Georg Loerner the Deputy Chief. Ancillary to Amtsgruppe W was an amorphous organization called Staff W, headed by the Chief of Staff W, or Chief W. This staff exercised general administrative supervision of the W industries, negotiated for and procured new enterprises, arranged financing, floated loans, negotiated financial matters with the Reich Minister of Finance, and in other ways performed broad coordinating functions within the framework of the SS industries. The Chief of Staff W was at one time the defendant Hohberg and later the defendants Volk and Baier.
More than 25 of the SS industries were controlled, through stock ownership, by a parent holding company, known as Deutsche Wirtschaftsbetriebe, or DWB, of which defendant Pohl was the chief officer. These industries included a wide range of projects: Stone quarries, brick manufacturing plants, cement mills, pharmaceutical factories, real estate, housing, building materials, book printing and binding, porcelain and ceramics, mineral water and fruit juices, furniture, foodstuffs, textiles and leather, etc. For the purposes of this case, four of these industries are of particular significance:
(1) The Deutsche Erd-und-Steinwerke, known as DEST, which operated five granite quarries, six brick and tile plants and a stone-cutting plant.
(2) The Klinker Zement, manufacturing brick and cinder block, fireproof products, ceramics, lime and chalk. This company had large subsidiaries at Golleschau, Prague, Lemberg and Bialystock.
(3) Ostindustrie, or OSTI, organized in March 1943 and dissolved a year later, which operated and later liquidated all the confiscated Jewish industries in the Government General, including foundries, textile plants, quarries, glass works, and others. Enforces Jewish labor was employed in these enterprises.
(4) The Deutsche Ausruestungswerke, or DAW, the German Equipment Works, which operated various industries in seven concentration camps, using forced inmate labor.
The freedom of man from enslavement by his fellow men is one of the fundamental concepts of civilization. Any program which violates that concept, whether prompted by a false feeling of superiority or arising from desperate economic needs, is intolerable and criminal. We have been told many times, "Germany was engaged in total war. Our national life was endangered. Everyone had to work." This cannot mean that everyone must work for Germany in her waging of criminal aggressive war. It certainly cannot mean that Russian and Polish and Dutch and Norwegian noncombatants, including women and children, could be forced to work as slaves in the manufacture of war material to be used against their own countrymen and to destroy their own homelands. It certainly cannot mean, in spite of treaties and all rules of civilized warfare (if warfare can ever be said to be civilized), that prisoners taken in battle can be reduced to the status of slaves.
Even Germany prior to 1939 had repudiated any such fallacious position. And yet, under the hypnotism of the Nazi ideology, the German people readily became complaisant to this strange and inhuman system. Under the spell of National Socialism, these defendants today are only mildly conscious of any guilt in the kidnapping and enslavement of millions of civilians. The concept that slavery is criminal per se does not enter into their thinking. Their attitude may be summarized thus: "We fed and clothed and housed these prisoners as best we could. If they were hungry or cold, so were the Germans. If they had to work long hours under trying conditions, so did the Germans. What is wrong in that?" When it is explained that the Germans were free men working in their own homeland for their own country, they fail to see any distinction. The electrically charged wire, the armed guards, the vicious dogs, the sentinel towers - all those are blandly explained by saying, "Why, of course. Otherwise the inmates would have run away." They simply cannot realize that the most precious word in any language is "liberty". The Germans had become so accustomed to regimentation and government by decree that the protection of individual human rights by law was a forgotten idea. The fact that the people of the eastern territories were torn from their homes, families divided, property confiscated, and the able-bodied herded into concentration camps, to work without pay for the perpetrators of these outrages -- all this was complainsantly justified because a swollen tyrant in Berlin had scribbled "H.H." on a piece of paper. And these are the men who now keep repealing, "Nulla poena sine lege."
This Tribunal, in its judgment in the case of United States vs. Erhard Milch, had occasion to say:
"The German nation, before the ascendancy of the NSDAP, had repeatedly recognized the rights of civilians in occupied countries. At the Hague Peace Conference of 1907, an amendment was submitted by the German delegate, Maj. Gen, von Gundell, which read:
'A belligerent is likewise forbidden to compel the nationals of the adverse party to take part in the operations of war directed against their country, even when they have been in his service before the commencement of the war.'
The German manual for war on land (Kriegsbrauch in Landrecht, ed. 1902) stated:
'The inhabitants of an invaded territory are persons endowed with rights ......subject to certain restrictions .....but who otherwise may live free from vexations and, as in time of peace, under the protection of the laws.'" A faint effort has been made to show that, although no formal judicial proceeding in the nature of an accusation and trial was had in each case, nevertheless each commitment to a concentration camp was preceded by a sort of "cabinet trial" by the Gestapo and that this complied with German law.
To put it bluntly, the Tribunal does not believe a word of it. Commitments to concentration camps did not depend upon individual conduct but were the carrying out of a broad categorical Nazi political policy, frankly announced by Himmler. We can hardly be expected to believe that the thousands of Eastern women in Ravensbruck and the boys and girls who were liberated from the concentration camps by the Allied Armies were accorded even a "cabinet trial". When whole villages were deported, on masse, it is ridiculous to believe that each of the inhabitants was accused of some infraction of German law, given a hearing of even the "cabinet" variety, and then solemnly found guilty and committed. Could any rational person believe that this or any comparable procedure accompanied the annihilation of the ghetto at Warsaw?
Far from making any attempt at formal accusation and determination of guilt, a conscious effort was made to evade embarrassing steps which slowed up the program of extermination. On October 13, 1942, Thierack, Reich Minister of Justice, wrote to Martin Bormann, stating (Ex. 335):
"..... I intend to turn over criminal proceedings against Poles, Russians, Jews and Gypsies to the Reichfuehrer SS. In so doing I base myself on the principle that the administration of justice can only make a small contribution to the extermination of members of these peoples. The Justice Administration undoubtedly pronounces very severe sentences on such persons, but that is not enough to constitute any material contribution towards the realization of the above-mentioned aim.
.... I am ..... of the opinion that considerably better results can be accomplished by surrendering such persons to the police, who can then take the necessary measures unhampered by any legal criminal evidence. ........ The police may prosecute Jews and Gypsies irrespective of these conditions."
This specious and shallow excuse has been offered seriously in justification of a nation-wide policy of deportation and slavery. We have witnessed a strange anomaly in this case. Defendants and their witnesses have bowed their heads in profound shame at the evidence of mass murder and wholesale extermination, but as to the cruel enslavement of whole races, they evidence little or no feeling of guilt or culpability whatsoever. They spoke freely and made voluminous records of "prisoner labor" and "inmate labor". They made elaborate industrial plans and wrote without shame, "We have been promised 8000 Jewish laborers for this enterprise." They planned and started pretentious monuments to the Nazi ideology and wrote, "Sauckel says that Eastern laborers cannot be furnished now, but that there should be no difficulty after the war." The SS economic leaders carried on extended negotiations over what they euphemistically called "prisoners' wages". Elaborate sliding wage scales were drafted and published. But in fact all this had nothing to do with wages Not one mark was paid to the wage earners. The peons who wore the convicts' garb and carried the heavy stones up the hill from the quarry at Mauthausen received only potato soup and a pallet of straw for their work. "Wages" referred to the amount the SS and other industries should pay per hour to the German Reich, the owner of the slaves. It seems to have been taken for granted by the Nazi leaders and the SS that mass deportation to enforced labor was a natural and legitimate concommitant of successful invasion, and that the civilian population was merely a part of the victor's spoils.
Slavery may exist even without torture. Slaves may be well fed and well clothed and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint.