This is part 1 of 6.
UNITED STATES MILITARY TRIBUNALS SITTING IN THE PALACE OF JUSTICE, NUERNBERG, GERMANY AT A SESSION OF MILITARY TRIBUNAL II HELD 3 NOVEMBER 1947
The United States of America
Oswald Pohl, August Frank, Georg Loerner, Heinz Karl Fanslau, Hans Loerner, Josef Vogt, Erwin Tschentscher, Rudolf Scheide, Max Kiefer, Franz Eirenschmalz, Karl Sommer, Hermann Pook, Hans Baier, Hans Hohberg, Leo Volk, Karl Mummenthey, Hans Bobermin, and Horst Klein, Defendants.
OPINION AND JUDGMENT
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, Nuernberg, 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 13 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 13 January 1947, except for the defendant Georg Loerner, who was served on 14 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, Nuernberg, Germany, on 10 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 8 April 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 20 September 1947. The personal statements of all of the defendants were heard on 22 September 1947.
During the trial of the case, the Tribunal sat for 101 sessions, (on 101 different dates, including date of arraignment; also, including one-half day joint session with all Tribunals in bank).
During the trial the prosecution offered 21 witnesses, the Tribunal itself called one witness, and the defendants offered 45 witnesses, including the 18 defendants themselves, a total of 67 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:
"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, wanton 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 persecutions 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 One - 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.
"Count one 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 one from the indictment, but, insofar as count one charges the commission of the alleged crimes of conspiracy as a separate substantive offense, distinct 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 II, 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 one are repeated in substance in counts two and three, the entire first count may for purposes of this judgment be disregarded without detracting from the contents of the indictment as a whole.
Counts Two and Three -- 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 two 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 three 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 two and three 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 Economic and Administrative Main Office, 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 [office groups or divisions], which were interrelated 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 subdivided 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 subdivided 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 subdivided into six [four] 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 subdivided 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, 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, ill-treatment 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 two and three 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 Four -- Membership in Criminal Organization
The fourth count of the indictment avers that all of the defendants herein except defendant Hohberg were members subsequent to 1 September 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 Verbaende, 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 two or three 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 four 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 1 September 1939, declared to be criminal by the International Military Tribunal, as contained in the judgment of said Tribunal.
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 known as the SS). The whole sordid history of the SS and its criminal activities has been told in detail in the judgment of the International Military Tribunal (pp. 268-273, Official Edition), and need not be repeated here. In this ease, the Tribunal is concerned only with the members of the WVHA, or Economie Administrative Main Office, and its predecessors, the Hauptamt Verwaltung und Wirtschaft, or Main Office Administration and Economy, and the Hauptamt Haushalt und Bauten, or Main Office Budget and Buildings.
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 Buildings 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 [office groups or divisions], 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 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, Lvov, and Bialystok.
(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. Enforced 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 kidnaping 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, 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, Quote:
"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 complaisantly justified because a swollen tyrant in Berlin had scribbled "HH" on a piece of paper. And these are the men who now keep repeating, ''nulla poena sine lege."
This Tribunal, in its judgment in the case of United States vs. Erhard Milch [Trials of War Criminals before the Nuernberg Military Tribunals, Vol. II, pp. 789-790.], 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, Major General von Guendell, 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 im Landkriege, Edition 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 national political policy, frankly announced by Himmler. We can hardly be expected to believe that the thousands of Eastern women in Ravensbrueck 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 en 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 13 October 1942, Thierack, Reich Minister of Justice, wrote to Martin Bormann, stating (NO-558, Pros. Ex. 335):
"* * * I intend to turn over criminal proceedings against Poles, Russians, Jews and gypsies to the Reichsfuehrer 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 8,000 Jewish laborers for this enterprise." They planned and started pretentious monument 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 to 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 concomitant 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, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery -- compulsory uncompensated labor would still remain. There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery.
The extent of the deportation of Eastern civilian laborers and the ruthless manner in which they were seized and abducted has been related in detail in the judgment of the International Military Tribunal (pp. 243-247, Official Edition), To repeat the shocking story in the judgment in this case would serve no useful purpose. It is sufficient simply to state that it has been repeatedly and conclusively proved before this and other Tribunals that about 5,000,000 men, women, and children were violently seized and forcibly deported as slaves. As to the systematic extermination of the Jews, the International Military Tribunal has found (pp. 247-252, Official Edition) that, in pursuance of a fanatical public policy, it was deliberately decided to exterminate an entire race of human beings. There is no way to determine the total number of Jews who were killed, but in testimony before the International Military Tribunal it was stated that one military group operating in the East killed 90,000 people in one year, and another group killed 135,000 Jews and Communists in the first four months of the program. With these findings of fact by the International Military Tribunal this Court is in full accord and adopts them as found facts in the present case.
The fact that criminal medical experiments were performed upon the involuntary inmates of concentration camps has been repeatedly proved and determined before these Tribunals, in the case of United States v. Karl Brandt, et al. (Tribunal I), in the case of United States vs. Erhard Milch, tried before this Tribunal, and by ample and convincing proof in the instant case. To completely document this finding of fact would result in unduly prolonging this judgment. It is sufficient to state that the performance of such criminal medical experiments has not been seriously denied. Defendants have unanimously denied knowledge of or participation in such experiments, but the proof of their performance stands substantially uncontradicted. The names of Dr. Rascher, Dr. Grawitz, and Dr. Beiglboeck have become infamous. The concentration camps furnished an unlimited supply of human subjects for these barbarous experiments, and inmates in large numbers were compelled to submit to so-called scientific tests which invariably involved torture and in thousands of cases maiming, disfigurement, and death. Inmates were placed in tanks, where the air pressure was decreased in simulation of high altitudes. A careful chart was kept of their violent reactions, which indicated intense pain and suffering. The chart not infrequently ended with, "Subject died at 9:18." Others were exposed, naked to freezing temperatures for hours, aided by ice-water immersion. As was to be expected, many subjects froze to death. Others were compelled to drink sea water until they went mad from thirst. Inmates were exposed to artificial inoculation of yellow fever, cholera, malaria, typhus, and spotted fever, and hundreds died as a result. Incisions were made in the legs of subjects and the development of gangrene accelerated by the introduction of septic foreign matter. Poison gas, mustard gas, phosphorous, and sulphur were used on inmates in order to prove that these chemicals are dangerous and often fatalby no means a novel scientific finding. This is but a part of the horrible inventory. As one means toward "a final solution of the Jewish problem," a program of wholesale sterilization of the Jews was instituted and various methods by which sterility could be accomplished without the knowledge of the victim were devised. Even deliberate castration was resorted to.
The wholesale extermination of those inmates who for any reason had become economically valueless to the Reich was accomplished by the euthanasia program. This plan was originally adopted to dispose of the insane, but it was expanded to include the incurables, the aged, the "idle eaters", the habitual criminals, and finally the political irreconcilables. It was a national Reich-approved plan for deliberate and premeditated murder on a large scale. Elaborate case histories of inmates were prepared and screened at the camps by travelling physicians, who by a process of snap judgment determined whether men and women should live or die. Those whose records happened to fall in the extermination file were shipped, like cattle to market, to an institution at Bernburg where "Action 14 f 13" was applied. This often was done by the injection of phenol or gasoline into the bloodstream, causing immediate death. After the extermination, the victim's personal effects, including the gold in his teeth, were shipped back to the concentration camp, and a report of "death from natural causes" was made out. This program was also extensively carried out directly in the concentration camps by the camp physicians.
Treatment of Concentration Camp Prisoners
The only interest which the SS and the Reich had in concentration camp inmates was as productive units. They were regarded as so many machines, not as human beings. The only concern with the collapse or death of an inmate was with the loss of a productive laborer. Their arrogant attitude that all non-Germans were subhumans made them wholly indifferent to the fate of those whose right to live out their lives was as sacred as that of any German. This attitude was epitomized by Himmler when he said: "Whether ten thousand Russian females fall down from exhaustion while digging an antitank ditch interests me only in so far as the antitank ditch for Germany is finished."
And later, at Posen [Poznan], in October 1943, he said:
"At that time we did not value the mass of humanity as we value it today, as raw material, as labor. What, after all, thinking in terms of generations, is not to be regretted, but is now deplorable by reason of the loss of labor, is that the prisoners died in tens and hundreds of thousands of exhaustion and hunger."
When grinders or lathes broke down under hard use, they were scrapped; when inmates collapsed from exhaustion or hunger, they were shot or gassed. There was nothing incongruous in this to the twisted Nazi psychology. They talked and wrote frankly and volubly about it. True, there were some who professed a humanitarian interest in the welfare and comfort of the inmates, and who made some effort to alleviate their intolerable condition, but they still kept them hard at work. Tasks were found even for the bedridden, while they awaited their turn at the gas chambers. The ghastly story of Germany's mistreatment of the millions of slaves who filled her concentration camps to bursting -- the endless hours of exhausting labor, the beatings and killings, the starvation, the degradation -- this has become stale from retelling. That's the pity of it. It can be so soon forgotten. But let it be recorded here once more, for generations unborn to read and ponder, that millions of human beings between 1939 and 1945 were cast into slavery and treated with inhuman cruelty by a nation whose only excuse was economic need -- the Nazi creed of "the state above humanity."
The story has come to the Tribunal from the lips of witnesses who personally experienced the horrors of the concentration camps
Victor Abend -- Polish inmate of three camps.
Bernhard Lauber -- Polish inmate of two camps.
Jerzy Bielski -- Polish inmate of two camps.
Albert Kruse -- German inmate at Neuengamme.
Chaim Balizki -- Polish inmate of two camps.
Herbert Engler -- German inmate of Sachsenhausen.
Eugen Kogon -- Austrian inmate of Buchenwald.
Josef Ackerman -- German inmate of two camps.
Wolfgang Sanner -- German inmate of Mauthausen.
Franz Mis -- Yugoslav inmate of Dachau.
Helmut Bickel -- German inmate of two camps.
We have had proof from camp commanders and physicians
Karl Kahr -- doctor at Dachau, Buchenwald, and Nordhausen.
Otto Barnewald -- administrative chief at Mauthausen, Neuengamme, and Buchenwald.
Hermann Pister -- commandant at Buchenwald
Gerhard Schiedlausky -- doctor at Mauthausen, Natzweiler, and Buchenwald.
Max Pauly -- commandant at Neuengamme.
Rudolf Hoess -- commandant at Auschwitz
Philipp Grimm -- commandant at Buchenwald.
We have seen the motion pictures of the frightful conditions in some of the camps when they were captured by the Allies -- conditions so ghastly that they defy description. The proof is overwhelming that in the administration of the concentration camps the German war machine, and first and foremost the SS, resorted to practices which would shame the most primitive race of savage barbarians. All the instincts of human decency which distinguished men from beasts were forgotten, and the law of the Jungle took command. If there is such a thing as a crime against humanity, here we have it repeated a million times over.
Treatment of the Jews
This disgraceful chapter in the history of Germany has been vividly portrayed in the judgment of the International Military Tribunal (pp. 247-253 and 303, Official Edition). Nothing can be added to that comprehensive finding of facts, in which this Tribunal completely concurs. From it we see the unholy spectacle of six million human beings deliberately exterminated by a civilized state whose only indictment was that its victims had been born in the wrong part of the world of forbears whom the murderers detested. Never before in history has man's inhumanity to man reached such depths. Had Germany rested content with the exclusion of Jews from her own territory, with denying them German citizenship, with excluding them from public office, or any like domestic regulation, no other nation could have been heard to complain. But such prejudice and hatred, once fanned into flame, is difficult to control. And so, when the Nuernberg decrees against the Jews were pronounced, the fuse was lighted and soon the program of world-wide extermination of Jews was launched. Had Germany not been checked, one wonders what race, or creed, or nation would next have been branded as subhuman and marked for extermination.
In his own affidavit of 1 April 1947 (NO-2616, Pros. Ex. 523), Pohl states:
"The liquidation of Jews in the Auschwitz concentration camp in the years 1942 and 1943, when Rudolf Hoess was commander, was known to me through Himmler's speech, and I myself also saw the gas chambers and the crematorium in Auschwitz in the summer of 1944."
The most lurid descriptions of the Jewish extermination program are found in the reports of German officers themselves, in which, it can be assumed, the cruelties and atrocities are not exaggerated. Major General of Police Katzmann, reporting with evident pride in June 1943 on progress in murder in Galicia, writes:
"I report that the District of Galicia with the exception of those Jews in the camps under the control of the SS and Police is free from Jews. Jews still caught in small numbers are given special treatment by the competent detachments of police.
"Up to June 1943, 434,329 Jews have been evacuated. 21,156 are still in concentration camps. This number is being reduced 'currently.'
"Since we received more and more alarming reports on the Jews becoming armed in an ever increasing manner, we started during the last fortnight in June 1943 an action throughout the whole of the district of Galicia with the intent to use strongest measures to destroy the Jewish gangsterdom. Special measures were found necessary during the action to dissolve the ghetto in Lwow [Lvov] where the dugouts mentioned above had been established. Here we had to act brutally from the beginning, in order to avoid losses on our side; we had to blow up or to burn down several houses. On this occasion the surprising fact arose that we were able to catch about 20,000 Jews instead of 12,000 Jews who had registered. We had to pull at least 3,000 Jewish corpses out of every kind of hiding place; they had committed suicide by taking poison."
The "special treatment" referred to, means slaughter on the spot. The periodic reports of Stroop, SS Brigadefuehrer and brigadier general of police, who was charged with the destruction of the Warsaw ghetto, portrayed an astounding adventure in wholesale murder and robbery, ending with the terse statement, "There is no Jewish ghetto in Warsaw any more." The action terminated, he says, by blowing up the Warsaw synagogue. He then submits an inventory of his victims: 56,065 Jews exterminated plus an estimated 5,000 to 6,000 destroyed by being blown up or dying in burning buildings, 4,400,000 Zlotys (Polish units of currency) seized and counted, with five to six million more uncounted. Also gold and paper money and large amounts of jewelry are listed. What strange mental twist induces this man to constantly refer to the inmates of the ghetto as "bandits" ? The German inspector of armament in the Ukraine reports in December 1941:
"* * * later specially detached formations of the police executed a planned shooting of Jews. It was done entirely in public * * * and in many instances with members of the armed forces taking part voluntarily. The way these actions, which included men, old men, women, and children of all ages, were carried out was horrible. So far about fifteen to twenty thousand Jews have been executed in the part of the Ukraine belonging to the Reich."
In October 1941, Reich Commissioner Carl for the territory of Slutsk, reports:
"The town itself offered a picture of horror during the action. With indescribable brutality * * * the Jewish people were taken out of their dwellings and herded together. Everywhere in the town, shots were to be heard, and in different streets the corpses of shot Jews accumulated. * * The police battalion has looted during the action in an unheard of manner * * *. Everything of use such as boots, leather, cloth, gold, and other valuables has been taken away."
The Tribunal is quite willing to accept these statements of these high-ranking German officers, who were eye-witnesses, as conclusive proof of the facts related.
Looting of Public and Private Property
The story of systematic pillage of occupied countries is related in the judgment of the International Military Tribunal (pp. 23824, Official Edition), which this Tribunal adopts as findings of fact in this case. It is a tale of ruthless depravity unequalled in history. It was not confined to looting by individuals or isolated detachments. It was the carrying out of a general military policy, announced by the top command at the outset of the war. As early as October 1939, Goering issued the following directive:
"The task for the economic treatment of the various administrative regions is different, depending on whether the country which is involved will be incorporated politically into the German Reich, or whether we will deal with the Government General, which in all probability will not be made a part of Germany. In the first mentioned territories, the * * * safeguarding of all their productive facilities and supplies must be aimed at, as well as a complete incorporation into the greater German economic system, at the earliest possible time. On the other hand, there must be removed from the territories of the Government General all raw materials, scrap materials, machines, etc., which are of use for the German war economy. Enterprises which are not absolutely necessary for the meager maintenance of the naked existence of the population must be transferred to Germany. * * *"
In pursuance of this policy of deliberate plunder, Poland, the Ukraine, and the occupied parts of Russia were stripped of agricultural supplies, food, raw materials, manufactured articles and such machinery as could not be used for German purposes where it stood. Obviously, this left large numbers of the population of these countries to starve, a fact which did not concern the German forces in the least. Alfred Rosenberg, Reich Minister for the occupied Eastern territories, bluntly stated in 1941 that the produce of Southern Russian and the Northern Caucasus should be taken to the Reich to feed the German people. He said:
"We see absolutely no reason for any obligation on our part to feed also the Russian people with the products of that surplus territory. We know that this is a harsh necessity, bare of any feelings."
To call such inhuman policy, "a harsh necessity," is the acme of understatement. It was deliberate murder by starvation, nothing less. To show that the policy of plunder was not prompted b economic needs alone or the necessity of supplying the German Army and population with necessities, we find that churches, libraries, art galleries, and museums, not only in the East but in France, Belgium, and Holland, were systematically looted of their treasures- This thievery was ordered, as the decree of Himmler put it, "for the strengthening of Germanism." The connection between the avowed purpose and the crime is not entirely clear. The experience of Prince Max Lobkowicz of Bohemia is typical. In his affidavit (NO-4942, Pros. Ex. 73) he states:
"I am the owner of landed property, situated in several districts of Bohemia. * * * Over two-thirds of this property came under German rule in October 1938 as a result of the occupation by the Germans after Munich.
"The rest of my property, including my chief residence at Rondnice and my house at Prague, came under German rule in March 1939, just after I had escaped with my family (wife and three sons) to London.
"I remained in the Czechoslovak diplomatic service, which I had entered in 1920 in London and during the war was appointed first Minister and later Ambassador to the Court of St. James. In February 1947, I was transferred from London to the Ministry of Foreign Affairs at Prague, to which I am attached now.
"The whole of my property was confiscated by the Germans.
"This confiscation included farm land, forests, vineyards, etc., as well as natural mineral spring, breweries, saw mills and several large houses, with old family collections (over 1,000 pictures, furniture, a library of over 100,000 volumes, historical archives, etc.)."
The extermination and deportation of the Jews in the East produced a vast amount of valuable property, both real and personal, which the Reich was quick to recognize and seize. To marshal these resources, the Action Reinhardt was instituted, named approximately enough, for Reinhard Heydrich, formerly chief of the Security Police and SD, who met his death -- and this, too, appropriately enough -- in Czechoslovakia in 1942. The purpose of the action was to gather into the Reich all the Jewish manpower and wealth which could be reached. It was an ambitious and profitable undertaking for Germany. The Jews themselves were herded into concentration camps as slaves and their entire worldly possessions confiscated. The real property, where possible, was put to German use (largely through the WVHA agency of OSTI) and the movable property was shipped to WVHA, where it was inventoried appraised, and distributed through prescribed channels. The thoroughness of this program of looting is evidenced by the articles listed: featherbeds, quilts, blankets, woolen yardage, shawls, umbrellas, canes, thermos bottles, flasks, baby carriages, combs, handbags, belts, pipes, sun glasses, mirrors, table silver, luggage, linens, pillows, eye glasses, furs, watches, clocks, and jewelry. Everything that could be lifted was moved. The defendant Frank listed as received up to 30 April 1943, 94,000 men's watches, 33,000 women's watches, and 25,000 fountain pens. Currency and precious metals seized reached a total value of 60,000,000 Reichsmarks. About 2,000 carloads of textiles reached Germany as a result of this plunder, and in all a grand total of over 100 million Reichsmarks in personal property was thus acquired. When Jews died in concentration camps, additional loot became available. The clothing was stripped from their bodies and, after being carefully searched for hidden valuables and the distinguishing Jewish Star removed, was distributed to still living inmates or to German civilians. Camp commandants were cautioned not to ship clothing which was stained with blood or showed bullet holes. To complete the desecration, the hair was shorn from the heads of the dead (one report showed a carload of 3,000 kilograms) and all the dental gold was extracted and deposited through WVHA in the vaults of the Reich Bank. It was ordered by the defendant Frank that all property originating from Action Reinhardt be called, Quote:
"goods originating from thefts, receiving of stolen goods, and hoarded goods."
In the true sense, this description is more accurate than Frank intended.
In the Southern German Legal Gazette, March 1947, crimes against humanity are defined as acts involving "cruelty against human life, degradation of the dignity of man or destruction of human civilization."
The Tribunal is quite content to use this German concept as a standard in deciding whether or not the facts heretofore found constitute crimes against humanity. Only one conclusion is possible. These facts establish beyond a reasonable doubt the wholesale commission of both war crimes and crimes against humanity. It next becomes necessary to determine to what extent, if any, the several defendants are criminally responsible therefore, by reason of actual perpetration, participation, or taking a consenting part therein.
A defense which has been almost universally advanced is that all the criminal acts of the Reich were conducted under a cloak of secrecy which prevented the defendants from knowing about them. Hitler's famous secrecy order has been offered by nearly every defendant. It has been urged that there was strict censorship of the press, that listening to foreign broadcasts was prohibited, that concentration camp prisoners were required upon their release to be sworn to secrecy as to events which they had observed or experienced, and that the German people generally were kept in complete ignorance of what was going on. All these facts are true. But in the very nature of things, it was impossible to maintain complete secrecy or anything like it. It was impossible to keep hidden from public view the huge transports which carried the slave laborers from the East to the concentration camps. It was impossible to keep secret the public demonstrations against the Jews. Streicher's infamous, "Der Stuermer," had a circulation of 600,000 copies. Himmler spoke openly about "the final solution of the Jewish problem" at Poznan, Krakow [Kharkov], and Metz. When prisoners were liberated from concentration camps, it is impossible to think that they maintained the complete secrecy to which they were bound. Soldiers returning on leave from Poland, Russia, and the Ukraine must have talked to some extent. The pall of smoke from the crematory at Auschwitz could not be kept hidden. In spite of decrees, foreign broadcasts were heard. The systematic murder of millions of human beings, extending over 5 years, could not by reason of its very magnitude be kept secret. It is undoubtedly true that millions of obscure and unimportant German citizens had no way of knowing and did not know of the horrible wrongs which were being perpetrated. But if high-ranking officers of the SS, whose daily tasks for years brought them into immediate contact with the operation of the camps, claim that they had no suspicion of the events occurring within the barbed wire, that defense cannot be believed. Undoubtedly some knew more than others, and some limited few knew nothing. With this conclusion Pohl himself agrees. In his interrogation of 13 June 1946 (NO-728, Pros. E. 693), Pohl was confronted by Kaltenbrunner's testimony before the International Military Tribunal that, "there were only a handful of people in the WVHA who had any control or knew anything about concentration camps,"
to which Pohl commented:
Well, that is complete nonsense. I described to you how these were handled in the WVHA. As for instance, in the case of the use of textiles and turning in of valuables, and also from Gluecks and Loerner right on down to the last little clerk, must have known what went on in the concentration camps, and it is complete nonsense for him to speak of just a handful of men."
In Liebehenschel's letter of 25 February 1943, written as chief of Amtsgruppe D [Amt D I] of the WVHA and addressed to all the concentration camp commanders, he states that the population in the East is beginning to be startled by the frequent casualties in the concentration camps. Apparently, in some areas at least, the secret was beginning to leak out.
The Tribunal is convinced that the ignorance professed by many of the defendants is the ignorance of convenience.
At the outset of the testimony, the Tribunal realized the necessity of guarding against assuming criminality, or even culpable responsibility, solely from the official titles which the several defendants held. It became apparent that, in conformity with the ancient German passion for high-sounding titles, many purely ministerial officers, performing perfunctory or even menial tasks, were designated by sonorous names which did not necessarily connote substantial power or authority. In some instances minor officers, engaged in purely routine tasks, were designated on the elaborate tables of organization by lengthy and awe-inspiring titles, which upon closer inspection were found to cover nothing more than a few desks in a remote corner. The Tribunal has been especially careful to discover and analyze the actual power and authority of the several defendants, and the manner and extent to which they were exercised, without permitting itself to be unduly impressed by the official designations on letterheads or office doors.