Evidence was introduced that while defendant Fanslau was in command of the Supply Battalion of the Viking Division, which was engaged in the campaign against Russia in the Ukraine, a number of atrocities were perpetrated against the Jews in the vicinity of Tarnapol by the troops under Fanslau's command. The character of this proof has made the Tribunal reluctant to accept it as true beyond a reasonable doubt. The evidence as to Fanslau's participation in these events was almost entirely hearsay and rumor, sprinkled with conclusions. Only the witness Otto claimed to have personal knowledge upon which to base his testimony. In view of the history of this witness, medical and otherwise, the Tribunal is unwilling to accept his testimony as true, especially when related to such a serious accusation. The number of military units which were present on the occasion - SS Einsatzgruppen, SD troops, Wehrmacht members, Ukrainian Police, and others - make identification of the actual perpetrators unreliable.
The Tribunal therefore finds that no criminal responsibility attaches to defendant Fanslau's conduct as an officer of the Viking Division.
The Tribunal finds that the defendant Fanslau was a member of a criminal organization, that is, the SS, under the conditions defined by the judgment of the International Military Tribunal, and is therefore guilty under Count IV of the Indictment.
HANS LOERNER Defendant Hans Loerner joined the National Socialist Party on January 1, 1932, and the Allgemeine-SS on April 1, 1933.
He served as an administrative officer of the Allgemeine-SS until he was transferred to the Waffen-SS in October 1939, being later transferred to the Central Administration Office at Berlin, where he became a subordinate of Pohl as a personnel officer. He ultimately attained the rank of Obersturmbannfuehrer (lieutenant Colonel) in the SS. Upon the organization of WVHA in 1942, he was appointed Chief of Amt A I, the Office of Budgets. In April 1944, when Gustav Eggert, Chief of Amt A II, was transferred to a field unit, Amts A I and A II were combined, and Loerner became Chief of both Amts.
Amt A II was concerned with finance and payroll matters. In the summer of 1944 he became Deputy Chief of Amtsgruppe A.
It is Loerner's contention that, with the adoption of the open budget at the beginning of the war, his duties greatly diminished and subsequently all but disappeared, and that the only substantial task left for him to perform was the simplification of the Todt Organization, to which most of his time was devoted. The fact remains, however, that Loerner continued to perform important administrative duties in connection with his amt all through the war. It is hardly conceivable that he would have been retained as head of an office which had entirely lost its usefulness. On May 11, 1942, Loerner and Frank conducted negotiations for six days with the Reich Minister of Finance on the SS budget, involving the number, rank and salaries of personnel. In September 1942 Loerner rendered a report to the Reich Court of Accounts, stating that seven collecting camps for "undesirable Polish elements" near Danzig had already been established. He further reports that construction of a much larger camp, Stutthof, was begun at the end of 1939.
In October 1942, Loerner wrote that Himmler had ordered the Ahnenerbe to establish an Institute for Scientific Military Research, the expenses of which were to be met from funds of the Waffen-SS, and instructed that "bills due were to be handed in to this office for payment." In November 1942, Sievers, who was one of the principals in the Ahnenerbe program, notes that he had discussed in detail with Loerner the plan to have the expenses of the Institute for Scientific Military Research met by the SS. The Institute referred to was a part of the over-all plan for using concentration camp inmates for medical experiments, but there is no evidence that, either through Sievers or otherwise, Loerner became aware of the criminal purposes of the Institute.
During 1942 and 1943 Loerner was greatly concerned with the fixing of wage scales for the Waffen-SS.
In connection with the concentration camps, Kaindl, and later Berger of Amt D IV, Concentration Camp Administration, assembled the budget items for the concentration camps and passed them on as part of the entire budget of the Waffen SS to Loerner in Amtsgruppe A, who reviewed it and put it in shape to be transmitted to the Main Department of Finance in Berlin.
After Loerner took over the control of Amt A II, his connection with the administration of the concentration camps became even more intimate, for here he was confronted by problems of financing and meeting payrolls. Eichele, who was Paymaster of the Waffen-SS, with an office in Dachau, states (Ex. 514):
"In my work in the pay office I was subordinate to Amts A I and A II of the WVHA, of which Hans Loerner was the head."
Requisitions for wages for SS personnel were made to Loerner in Office A I. In the establishment of wage scales for concentration camps, Pohl ordered that Loerner be consulted.
From this proof it becomes quite apparent that the defendant Hans Loerner was anything but a figurehead in the WVHA. In spite of the diminishing importance of his office, he continued until the end to exercise vital and important functions within the structure of the WVHA in connection with its administration of the concentration camps. He was more than a mere bookkeeper. He exercised discretion and judgment and made important decisions, many of which related directly to the procurement and operation of concentration camps. To say the least, he took a consenting part in and was connected with the operation and administration of the concentration camps, which, as has been already pointed out, operated with a program of slave labor throughout the war.
By reason of his direct and intimate association with this program, defendant Hans Loerner must be deemed to be guilty of war crimes and crimes against humanity.
The evidence upon which it is sought to criminally implicate the defendant Hans Loerner in Action Reinhardt is in the opinion of the Tribunal insufficient to justify a conclusion of guilt on this specification.
The Tribunal finds that the defendant Hans Loerner was a member of a criminal organization, that is, the SS, under the conditions defined by the judgment of the International Military Tribunal, and is therefore guilty under Count IV of the Indictment.
JOSEPH VOGT The date at which Vogt joined the National Socialist Party is uncertain due to contradictions in the proof, but it was either in 1920 or 1937 or 1938.
The date of his entry into the SS is also indefinite. In his affidavit he states that he was never a member of the Allgemeine-SS, but his official service record contains the entry, "Oct.
1, 1936, entry into Allgemeine-SS." In any event, it is clear that he was a member of the Party and of the SS before the war. In the SS he attained the rank of Standartenfuehrer, or Colonel. Between 1936 and 1942, he served as an auditor, or in some related capacity, in various SS offices, and when WVHA. was organized in the spring of 1942, he became Chief of Amt A IV, the Office of Audits, under the defendants Frank and Fanslau, in which office he continued until the surrender. Certain departments of the SS were excluded from the auditing functions of Vogt's amt. Amtsgruppe C, the main construction office, had its own separate auditing service under defendant Eirenschmalz in Amt C VI; Amtsgruppe W, the economic enterprises, was independently audited; expenses for medical and welfare service were not audited by Vogt's amt, as was also true of the SS paymaster's office in Dachau. Only the stationary units of the Waffen-SS were subject to audit by Amt A IV; all mobile units were subject to audit by the Army Administration, and all SS offices in the occupied territories were independently audited on the spot. Amt A IV did audit the receipts and disbursements of about 300 garrison cashiers, together with the records of Amtsgruppen A, B and D of the WVHA. Vogt's duties were transcended those of an auditor. He was never a financial director; he did not authorize purchases, requisition material, direct distribution, order payment, or in any other way control fiscal policy. His sole task was to inspect and analyze the records (which others had made) of past transactions.
The prosecution seeks to inculpate Vogt on two grounds - that he took a consenting part in was connected (1) with the mistreatment of concentration camp inmates, or at least in the employment of slave labor in the camps, and (2) with the atrocities incident to Action Reinhardt.
As to the first specification, there is no claim that Vogt was either a principal in or an accessory to the actual mistreatment or enslavement of the concentration camp inmates.
The most that is claimed is that because of his position he must have known about them and therefore took a consenting part in and was connected with them. His consent is not objectively shown. He nowhere expresses or implies consent. The only consent claimed arises from imputed knowledge - nothing more. But the phrase "being connected with" a crime means something more than having knowledge of it. It means something more than being in the same building or even being in the same organization with the principals or accessories. The International Military Tribunal recognized this fact when they placed definite limitations on criminality arising from membership in certain organizations. There is an element of positive conduct implicit in the word "consent". Certainly, as used in the ordinance, it means something more than "not dissenting". Perhaps in the case of a person who had power or authority to either start or stop a criminal act, knowledge of the fact coupled with silence could be interpreted as consent. But Vogt was not such a person. His office in WVHA carried no such authority, even by the most strained implication. He did not furnish men, money, materials or victims for the concentration camps. He had no part in determining what the inmates should oat or wear, how hard they should work or how they should be treated. Nor is there any proof that he know what they did eat or wear, or how hard they did work or how they were treated. The most that can be said is that he know that there were concentration camps and that there were inmates. His work cannot be considered any more criminal than that of the bookkeeper who made up the reports which he audited, the typist who transcribed the audit report or the nail clerk who forwarded the audit to the Supreme Audit in Court.
ACTION REINHARDT In June 1943 there arose some suspicion of financial irregularities in the SS garrison treasury at Lublin, whereupon Frank ordered Vogt to proceed to Lublin to audit the treasury books.
During his audit, Vogt came across an "account R," containing the record of a very large amount of money on hand.
Vogt asked Wippern, Globocnik's deputy, what the account represented and was told that it was a secret which could not be disclosed. Vogt was told later, however, that the money had been confiscated from the Jews and then was shown a trunk full of jewelry and rare coins which was kept in a safe. The next day Wippern shewed him a house stored with clothing which Wippern said had come from the confiscation. Before leaving Lublin, Vogt complained to Globocnik that the record of this account was not properly kept and that Globocnik did not have proper certificates identifying the owners of the property. He also commented that the Supreme Auditing Court had no notice of the fund and had no opportunity to audit it, as was their right and duty. After some controversy, Vogt and his assistant, Hahnefeld, returned to Berlin and reported to Frank and Pohl, and also to Knebel, a representative of the Supreme Auditing Court.
No further audit of the Reinhardt Fund was made by Vogt, nor does it appear that he ever did anything further in connection with it except to write a letter on March 15, 1944, to all WVHA advisors asking whether they had any receipts or expenditures in connection with the evacuation of the Jews which had not been settled. This letter was written in pursuance of Pohl's order of December 9, 1943, directing that upon completion of the resettlement operation vouchers were to be presented for audit to Vogt's Amt A IV. Vogt's letter of March 15, 1944, was merely a final check on compliance with Pohl's order.
Except for the audit of June 1943, above referred to, Vogt made no further audit of the proceeds of Action Reinhardt, but subsequent audits were made by Melmer, who had no connection with Vogt or his amt.
It will be observed that this audit by Vogt of the garrison treasury at Lublin was not in performance of his regular duties. It was a special assignment by Frank, impelled by unusual and urgent circumstances which called Vogt aside from his usual duties. It constitutes a single isolated instance in which Vogt came in contact with Action Reinhardt.
The question naturally arises, what should Vogt have done under the circumstances to avoid implication in Action Reinhardt? If his single experience amounted to taking a consenting part in or being connected with the felonious project, at least it can be said that he avoided all future experiences. At the time of his audit in Lublin. Action Reinhardt had been in progress for nearly two years and was near the point of conclusion. It was far too late to attempt to stop the launching of the cicious program even if Vogt had the power to do so. The harm had been done and he could not prevent it. He promptly reported his discoveries to his superiors and severed whatever slight connection he may have had with the project. He had inadvertently stumbled upon evidence of a crime which had already been committed. Instead of trying to conceal it, he openly uncovered it and had no further connection with it, Again, the Tribunal is impelled to ask, what should he have done? Unless we are willing to resort to the principle of group responsibility and to charge the whole German nation with these war crimes and crimes against humanity, there is a line somewhere at which indictable criminality must stop. In the opinion of the Tribunal, Vogt stands beyond that line.
The Tribunal therefore finds the defendant Vogt not guilty of war crimes and crimes against humanity, as charged in the Indictment.
The Tribunal finds the defendant Vogt not guilty under Count IV of the Indictment.
GEORG LOERNER Defendant Georg Loerner joined the National Socialist Party in November 1931 and became a member of the SS the following year.
His highest rank in the SS was Gruppenfuehrer, or Major General. In May 1935 he was employed in the administrative office of the SS at Munich, and in the fall of that year he was given the assignment of organizing a department for clothing supply. In May 1939 he was transferred to Berlin, where he carried on the same task of supplying clothing and personal equipment to the SS troops upon requisition of the various units.
Until April 1936, clothing for concentration camp inmates was supplied by the several local governmental units. After that date the task of supplying clothing for camp inmates as well as the SS armed units was taken over by the SS Administrative Office, of which the defendant Pohl was the head. This was Georg Loerner's initiation into concentration camp administration.
When the WVHA was organized in February 1942, Loerner became Chief of Amtsgruppe B, which, among other duties, was charged with the supply of food and clothing to all stationary armed units of the SS (excluding armed forces in the field) and to the concentration camp inmates. In addition, Loerner was Deputy Chief of Amtsgruppe W: which administered the economic enterprises owned or controlled by WVHA. After the defendant Frank left the WVHA in September 1943, he was succeeded by Loerner as Deputy Chief of the WVHA under Pohl.
From these three responsible positions hold by Loerner, it will be seen that he was not an obscure subordinate in the WVHA organization. Each of the positions which he held required a broad measure of responsibility, which the documents in the case indicate he exercised in full.
CONNECTION WITH W ENTERPRISES With Pohl, defendant Georg Loerner was one of the incorporating partners in the German Economic Enterprises, known as "DWB", which was the holding company having control of nearly all of the W Enterprises.
He was an original incorporator with the defendant Frank of the leather and textile enterprise at Ravensbruck, and with Pohl was one of the organizers of OSTI, with an initial contribution of 25,000 Reichsmarks. He was also Vice-Chairman of the Board of Supervisors of the Golleschauer Portland Cement Company, of which Pohl was the Chairman. In addition, he was a director of the Cooperative House and Home Building Company at Dachau. All of these companies were units of Amtsgruppe W, of which Loerner was Deputy Chief under Pohl.
His connection with these concerns was much more than formal. He took an active and interested part in the management of their affairs and his voice was heard in the policy making.
For example, in a conference with reference to the affairs of OSTI held on February 13, 1943 (Ex.61), at which Pohl, Loerner, Volk and Hohberg were present, a series of questions was propounded which Loerner helped answer. The questions were preceded by the statement that the Jewish manpower in the Government General was to be used for armament production. Then the question is asked:
"bust this mandate be regarded primarily from a policitalpolice or from an economical point of view?"
Other questions follow:
"How many Jews live in the Government-General, how are they split up as to sex and professional groups?"
"Who can give information a bout the nature, extent and location of the existing Jewish movable property?"
"Who is the possessor of the Jewish movable property?"
"How is the Jewish property to be taken over? Under a trusteeship or directly?"
"When are the Jewish enterprises not under the charge of the SS to be taken over, immediately or gradually?"
"Are concentration camps to be established according to the German pattern, which assigns the prisoners to the OSTI and other trustworthy firms?"
These questions were either answered or by-passed at the conference, but the significant point is that Loerner participated in the discussion and know of the underlying program of OSTI to fully utilise Jewish slave labor in its enterprises. When it was determined to liquidate OSTI in March 1944 because of the withdrawal of its labor supply, Loerner attended the final meeting and signed the minutes with Pohl.
A report by Pohl, dated December 7, 1943 (Ex. 63), of a conference at which Loerner was present, shows that it was agreed that 10 labor camps in the Lublin district should be taken over by the WVHA as branch concentration camps, as a result of which "the inmates of these labor camps will become concentration camp prisoners." It was further agreed that all other labor camps in the Government General should be taken over by WVHA "in the interest of a general clearing up."
As a further measure of control, it was agreed that the police guards acting in the labor camps should be subordinated to the WVHA and taken over by that office "as far as they are members or possible candidates for the SS."
A significant document (Ex. 30) is found in the report of Loerner and others to Pohl, dated January 9, 1942, concerning the proposed acquisition of property for the enlargement of the concentration camp Stutthoff. Pohl had collaborated with others in a detailed study of the proposed plan, which contemplated the housing of "25,000 prisoners, including prisoners of war." Although this plan was never consummated, Loerner participated in it up to the time of its abandonment. A few days later, Maurer reported to Loerner that Pohl had made him responsible for concluding the details and outlined at length his plans for acquiring the property for the concentration camp. If Loerner was only a straw man or a figurehead, it is difficult to understand why Maurer felt impelled to report to him.
Exhibit 414 discloses that on March 3, 1944, Loerner participated in a conference for the preparation of a new wage scale for prisoners, at which it was decided that their wages be fixed at about 75% of the wages paid in private industry. It will be observed again that this has no reference to wages to be paid the workers but only to the amounts to be paid by the industries to the concentration camps. Loerner participated in the conference to the extent of pointing out that it might be advisable to inquire whether these rates could be paid by the individual plants without loss and suggested that the plant cost sheets be checked.
That Loerner was not regarded as insignificant by Pohl is evidenced by Pohl's letter (Ex. 404) directing that all matters of importance concerning DWB should go to Loerner for his comment and signature before being sent to Pohl and directing Loerner to keep informed on all important developments in the DWB industries. The fact that this order was rescinded a short time later is of no consequence.
The exhibit indicates that when Pohl wrote it he considered Loerner a responsible person of considerable consequence in the WVHA organization, especially with reference to the W enterprises.
In view of all this proof, Loerner's claim that he was a mere figurehead in the field of the concentration camps and the enterprises which were dependent upon them, falls flat. Whether or not he know of the mistreatment and extermination of the prisoners has not been conclusively proved, although there is substantial ground for suspecting that he could not have avoided knowing it. It is undoubtedly true that he knew of the Reich policy of furnishing slave labor from the concentration camps to the vast area of industrial enterprises which were, at least in part, under Loerner's supervision. When Berger, of Office D IV, reported to Loerner on August 15, 1944 (Ex. 73), that there were then over 500,000 prisoners in concentration camps and that over 600,000 more were expected immediately, Loerner must have know, and the Tribunal finds that he did know, that these inmates were slaves who had been snatched from their homelands and herded into concentration camps to further the German war effort. Loerner must have gleaned some knowledge from the list of expected new arrivals which Berger furnished him, as follows:
"1) from the Hungary Program (Jewish Campaign) 90,000
2) from Litzmannstadt (Police prison and Ghetto) 60,000
3) Roles from the General Government 15,000
4) Convicts from the Eastern Territories 10,000
5) former Polish officers 17,000
6) from Warsaw (Roles) 400,000
7) current arrivals from France approximately 15,000 to 20,000 612,000" Assuming that mere knowledge is not sufficient to inculpate Loerner, it nevertheless appears conclusively that, in addition to knowing of the slave labor program, he helped administer it in an active and responsible fashion.
His connection with the program was not remote or intangible; it was direct and vital. The fact that he knew that prisoners of war were also being enslaved and compelled to perform labor on war munitions in violation of the Hague and Geneva Conventions, only adds to his guilt.
As an old veteran of World War I, he more than others, should have realized that there are certain rules of warfare which should be observed by all civilized nations and that one of the foremost of these rules was being violated under his very nose and with his help and connivance.
Supply of Food and Clothing to Concentration Camps The first duty which a slave owner owes to his serfs is to feed, shelter and clothe them properly.
His own self-interest in maintaining their working capacity would seem to dictate no less. The story of the starvation and suffering of the concentration camp inmates, of their being beaten and abused and worked to death, is an old one and it would be idle to repeat it here. That they were under-fed and illclothed has been repeatedly proved before these Tribunals. The immediate question confronting this Tribunal is whether or not Loerner was responsible for these appalling conditions. It is to be observed that the supplying of concentration camp inmates was not his only duty. In addition he was required to supply the garrisons, guards and other stationary units of the Waffen-SS. It is obvious, we think, that no one had the right to provide for one group at the expense of the other, especially when such deprivation was carried to the extent of freezing and starvation. The Tribunal is well aware of the fact that the blockade of Germany and the military reverses which followed the surrender of Stalingrad made the problem of procurement of food and clothing an increasingly acute one, but we are also aware that even before Stalingrad it was the policy of the Reich to feed and clothe concentration camp inmates only to an extent which would permit them to keep on working.
WVHA was the top agency for the administration of the concentration camps and the task of administration was a comprehensive one. If WVHA was concerned with the last details of prisoners' wages, production and allocation, it was also concerned with furnishing food and clothing for prisoners, and this obligation carried down to the final step of distribution - actually seeing to it that the prisoners got the necessary supplies.
The duty of administration goes that far. Clothing which is ordered or requisitioned but not delivered does not keep men from freezing. Loerner's office was not charged with labor allocation; but that did not prevent his going to Dachau in April 1941 to address a conference of labor allocation officers. In August 1944, Loerner was advised by Berger that with an immediate prospective camp population of over a million, he did not have sufficient clothing to supply their needs, in spite of having seized large amounts of civilian clothing in Hungary and Poland. Loerner was more than a mere purchasing agent or requisition clerk. He was a top-level administrative officer in charge of clothing supply, with all that that term implies. Pohl in an affidavit filed in the case (Ex. 523) states:
"It was the responsibility of Loerner to assure the provision of clothing to the concentration camp inmates."
Fanslau corroborates this statement in his affidavit (Ex. 6):
"Georg Loerner was in the last resort responsible for the procurement of clothing for the prisoners."
Loerner's defense is the typical one: "That was the duty of somebody else." He testified that all he could do was to receive the requisitions for clothing from Amtsgruppe D and process them by sending them to the SS clothing factories at Dachau. But the obligation of his responsible office did not end there. The industries in which he was so active as incorporator, director and supervisor and to which he gave so much time and effort were the principal users of inmate labor. Both as an employer and as a supply officer it was his duty to see to it that the inmates were supplied with adequate clothing. It is not sufficient for him to say, "Well, I've ordered clothing. That's all I'm supposed to do." The lives of thousands of men depended on his doing more than that.
Action Reinhardt The evidence concerning Loerner's connection with Action Rein hardt is not sufficient to convict him on this specification.
There is some proof from which it may be reasonable inferred that he had knowledge of property being confiscated from Jews, but there is nothing which shows with the requisite degree of certainty that he knew that such property had been taken from Jews who had been killed in concentration camps or in pursuance of the extermination policy. Pohl stated in an affidavit that Loerner had prepared for his signature a "report on the realization of textile salvage from the Jewish resettlement" (Ex. 479). An order from Pohl (Ex. 481), which was distributed to Amtsgruppe B among a number of others, refers to "Administration of Jewish Property" and has a file note reading. "Reinhardt Prisoners Journal," but the order refers only to auditing procedure. There are other bits of proof on this subject, but in the aggregate it is insufficient to justify a determination beyond a reasonable doubt that Loerner took a consenting part in or was actually connected with the action itself.
On the grounds herein indicated and for the reasons specified, the Tribunal finds the defendant Georg Loerner guilty of war crimes and crimes against humanity, as charged in Counts II and III of the Indictment.
The Tribunal finds that the defendant Georg Loerner was a member of a criminal organization, that is, the SS, under the conditions defined by the judgment of the International Military Tribunal, and is therefore guilty under Count IV of the Indictment.
THE PRESIDENT: The Tribunal will recess until 13:30 this afternoon.
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 3 November 1947).
THE MARSHAL: Persons in the courtroom please take your seats. The Tribunal is again in session.
THE PRESIDENT: Judge Phillips will continue the reading of the judgment.
ERWIN TSCHENTSCHER Tschentscher was born in Berlin on February 11, 1903.
He attended public and higher schools in Berlin and finished his educational career in 1919. He was a professional soldier, having joined the Allgemeine SS as a private on May 1, 1930, with the SS No. 2447. He joined the Waffen-SS at the beginning of the war on October 1, 1939 with the rank of Standartenfuehrer. He joined the NSDAP on December 1, 1928 with the party No. 102547. After completing a number of assignments with the SS on November 30, 1940, he was transferred to the SS Viking Division, which was then being activated. He was placed in command of the Economic Battalion, consisting of the Supply Office and the Bakers and Butchers Companies, and was directly subordinate to the defendant Fanslau. During the period of activation and training of this unit it was a part of his duties to give lectures to the troops. Among other topics discussed in these lectures. Tschentscher explained the ideology of the SS on the Jewish question, racial theories, the SS marriage program and other military and political subjects. He stated in these lectures that "the Jews were a foreign body within the community of the German people and that the solution of the Jewish question was to be that the Jews should disappear from Germany should permanently settle in other countries or be placed in concentration camps and places like that." Thus, it may be seen that he was thoroughly familiar with the aims of the SS and was willingly participating in planning and carrying out its program.
About the middle of June 1941, the Division having completed its period of training and activation, moved into the area of Lublin in Poland. Tschentscher actively engaged in the first Russian campaign, from about the first of July until the 31st of December 1941, when he was transferred to Obersalzberg.
During this campaign, he was batallion commander of the supply column, as wall as company commander, and directly subordinate to the defendant Fanslau. While his command was in the area of Eastern Poland and in the Ukraine, thousands of Jewish civilians and other non-combatants were ruthlessly murdered and exterminated. There is evidence to the effect that members of Tschentscher's command engaged in this program, together with Einsatzkommandos Units. These murders and atrocities took place particularly in the vicinity of the Ukraine. There is hearsay evidence that Tschentscher personally participated in these crimes, but there is no direct evidence to this effect. There is some evidence that he had constructive knowledge of the participation of members of his command, but absolutely no evidence that he had actual knowledge of such facts. He emphatically denies participation in and all knowledge of these matters.
The law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war. The Supreme Court of the United States pointed out in a decision entitled "Application of Yamashita", 66 Supreme Court 340-347, the following:
"It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extant responsible for their subordinates." The reason for the rule is plain and understandable, but what has been said in this decision does not apply to the defendant Tschentscher.
Conceding the evidence of the prosecution to be true as to the participation of subordinates under his command, such participation by them was not of sufficient magnitude or duration to constitute notice to the defendant, and thus give him an opportunity to control their actions. Therefore, the Tribunal finds and adjudges that the defendant Tschentscher is not guilty of participating in the murders and atrocities committed in the Russian campaign as alleged by the prosecution.
Tschentscher's Activities in the WVHA On October 1, 1943, the defendant was transferred to the WVHA and was appointed Chief of Amt B-I of Amtsgruppe B; shortly thereafter he was appointed deputy to Georg Loerner, Chief of Amtsgruppe B. He stated that his duties and responsibilities as Chief of Amt B-I consisted of the following:
all matters pertaining to food concerning the Waffen-SS and the police at home, roughly for about 1,000,000 men. His duties also comprised the negotiations with the Army Administrative Office, in order to fix the food rations for the troops. His office also worked on the planning and the actual delivery of the food, the earmarking of the rations, and their supply to thirty troop storage plants which were scattered over the Reich. His task was to have the food ready so that it could be collected by the troops. About twenty to thirty thousand concentration camp guards were fed by his office. This particular aspect of his feeding program was done by the troop camp stores in the area where the concentration camps were located. He stated that his office did not have anything to do with feeding and supplying food for concentration camp inmates.
It may be seen from his statements that the only contact his office had with concentration camps was the furnishing of food for the concentration camp guards. He further stated that Burger, Chief of Office D-IV came to see him three or four times for the purpose of securing certain food for concentration camps. Burger stated that he wanted to have special diet furnished for sick inmates, such as fruit, canned vegetables, and wine, in small quantities which he could not otherwise obtain.
He stated that he furnished these articles to Burger but realized at the time that he was exceeding his authority. (R. 3169) The defendant stated that he visited the concentration camps in a few cases.
On one occasion, in 1941, he visited concentration camp Dachau. While there he participated in an inspection of the actual concentration camp, and testified that the barracks were extremely clean and quite fit for human habitation. The inmates kitchen, the hospital, the dental station, were very modern and other installations , such as the bakery shop, the carpenter shop, and work shops, were all in excellent condition. The inspection lasted about an hour and a half, and was conducted by five or six SS leaders.
Towards the end of 1944 he visited Buchenwald concentration camp for the purpose of obtaining a storage room for food. He saw some inmates marching past, but saw nothing that would attract attention.
In November 1943, in company with Kammler, Chief of Amtsgruppe C, he made an inspection of concentration camp Dora, where two construction places were visited. Two large tunnels about 3 kilometers long had been built into the mountain. During these inspections, Pister, Commander of Buchenwald, Foerschener, the Commander of Dora, Barnewald, the half administrative officer, and Dr. Schiedlausky, the camp physician of Buchenwald, were present. Tschentscher described the conditions as follows: clothing was insufficient, especially for cold weather, barracks were inadequate, the air was very bad from lack of ventilation. The inmates, approximately 1500 to 2000, were housed in the shafts of tunnels which were eight to twelve motors high. The inmates slept on bunks, four on top of each other, and had insufficient covers. The lighting system was extremely bad and caused the inmates to appear to have dust from the stones covering their faces. The food was insufficient for the work to be performed. Medical care was also insufficient, as the camp did not have its own physician and the personnel consisted of inmates who were only medical assistants. A great many of the inmates were reported sick, and on that day sick call amounted to forty inmates.