It will be the task of the Defense to ascertain in detail whether and what the defendant Oswald Pohl learned about the measures connected with this Count of the Indictment.
Membership in Criminal Organizations.
In this Count the defendant Oswald Pohl is accused of membership in the SS, which has been declared a criminal organization by verdict of the International Military Tribunal. In the presentation of evidence on this Count, opportunity will be given to observe the career of the defendant, and to show the reasons which induced him as a pay master official in the Navy, to become a member of the National Socialist Party, and what circumstances led him to leave the Navy in 1934 and to take over a high office for the purpose of building up the SS administration.
Your Honor, I would like to add at this time that the main point of defense in the case of Oswald Pohl is based on the examination of the defendant Oswald Pohl himself at the witness stand. That, furthermore, I would like to start presentation of evidence in the examination of the defendant Oswald Pohl, and I would also like to call a few other witnesses with permission of this Tribunal after his examination.
THE PRESIDENT: You may follow any plan you wish in the presentation of your evidence. The Tribunal will be in short recess.
THE MARSHAL: The Tribunal is in recess for fifteen minutes.
(Recess)
THE MARSHAL: The Tribunal is again in session.
MR. ROBBINS: May it please the Tribunal, during the recess I showed Dr. Seidl the photostat of Exhibit 521 and he has withdrawn his objection to that exhibit. That is the affidavit by Dr. Ding-Schuler.
DR. SEIDL: (For defendant Pohl): May it please the Tribunal, I have convinced myself that on the photo copy of the original of the affidavit by Dr. Ding-Schuler there is contained the proper form of oath, and therefore apparently it was only in the German copy of the document book that the usual form was left out, and therefore I withdraw my objection.
THE PRESIDENT: The next counsel.
DR. RAUSCHENBACH: (For Defendant august Frank and Hans Loerner): May it please the Tribunal, I am not quite sure if the translation of my opening speech has already been completed, that is, the defense of August Frank.
THE PRESIDENT: We have your statement as to the Defendant Hans Loerner but not Frank.
DR. RAUSCHENBACH: The opening speech for Hans Loerner. However, I want to read that after the opening speech for August Frank because it refers to very important places in the defense of Hans Loerner, and cannot keep thou apart in this matter. I, therefore, would like to suggest that one of the other defense counsel whose translation has already been completed should now continue and present his opening speech. In the meantime I shall try to obtain the translation.
THE PRESIDENT: Very well.
DR. VON STACKELBERG (For defendant Karl Fanslau): I assume that the Tribunal has my translation of the opening speech?
THE PRESIDENT: Yes, we have.
The Tribunal once referred to the proverb: "Mitgefangen, Mitgehangen" (page XXIII of the German translation) in sentencing former General Fieldmarshal Erhard M i l c h. This phrase originating in common parlance is based on old conceptions of collective guilt and collective responsibility, which, in the meantime, may be considered as since outgrown in German penal law.
The Tribunal itself applied this principle only to the participation in an active. I may underline this limitation by referring to a positive rule of American Military Law that is the Manual of military Law 1929, Amendments No. 12, Sect.449:
"Charges of war crimes may be dealt with by Military Courts or by such courts as the belligerents concerned may determine. In every case, however, there must be a trial before punishment, and the utmost care must be taken to confine the punishment to the actual offender". I intend to handle the defense of the defendant Fanslau, accepting the limitation of the punishment to individual guilt and in reverence before the holy principles of eternal law.
Main Part A.
I.
The defendant Fanslau has been indicted on 4 points as
1) having participated in an alleged Conspiracy or an alleged Common Plan to commit War Crimes and Crimes against Humanity.
2) having committed or participated in War Crimes,
3) having committed or participated in Crimes against Humanity,
4) having been a member in an organization which has been declared criminal by the International Military Tribunal.
II.
The question as to which points of the indictment are to be considered established by the evidence produced by the prosecution must be examined first. I thereby shall proceed from the principle that every person accused of a crime is originally presumed to be innocent and that he is protected by this presumption until his guilt has been established by proof beyond reasonable doubt, a principle expressly recognized by the Tribunal in its judgment against Erhard Milch (page VIII of the German translation).
The examination of the evidence produced by the prosecution is difficult for the defense.
It is true, the prosecution has produced an extraordinarily large amount of evidence, and with an almost breath-taking pace. But it has failed to show the connection between this evidence and the defendant Fanslau, and also which of the crimes he has been charged with, that must be proven by it in each particular case.
I, myself, have of necessity undertaken this examination which, in my opinion, should have been the task of the prosecution. I thereby arrived at the conclusion that the evidence, producted by the prosecution, is not sufficient to prove points I to III against the defendant Fanslau. The name of the defendant Fanslau appears only in 7 of the 571 documents introduced. An additional one deals with his domain. They do not contain anything incriminating. None of the witnesses has mentioned the defendant Fanslau or even made any incriminating statements as to his field of work.
In particular I want to mention the following:
1) To Count I: No proof whatsoever has been furnished for the actual existence of an alleged conspiracy or an alleged common plan. According to Anglo-American law conspiracy is (I am citing Black, Law Dictionary 1933) and I quote: "A combination or agreement between two or more persons for accomplishing an unlawful end or a lawful end by unlawful means". That is the end of the quotation. Proof has not been furnished, where, when, and by whom such an agreement was allegedly concluded. I must, therefore, assume, that the prosecution considers organizing of and belonging to the WVHA a conspiracy and tries to support this view by circumstantial evidence. The prerequisite for the success of this attempt would require the furnishing of proof that members of the WVHA committed co-ordinated acts, from which a plan or a common purpose underlying these acts can be established. However, this has not been done at least in regard to the defendant Fanslau. The prosecution itself has brought forth that the WVHA has been organized by merging the administrative and Economic Main Office of the SS and the Budget and Building Main Office of the Reich Ministry of the Interior, as well as the Administrative Office in the Operational Main Office with the defendant Pohl as chief.
Only later the defendant Pohl was put in charge of the Office of the Inspectorate of Concentration Camps and it was officially joined with the WVHA as Amtsgruppe D. No evidence has been furnished to the effect that the defendants took over their offices in the WVHA voluntarily, and that their tasks and actions were co-ordinated. Thus it is already evident from the evaluation of the evidence presented by the prosecution:
a) that the WVHA was created because tasks of a most diverse nature were put in the hands of the defendant Pohl on orders of a higher authority.
b) The WVHA was founded in successive stages.
c) The defendants took over their offices on orders and not voluntarily.
d) The tasks of the defendants, and accordingly their actions, were not uniform, but covered the most diverse domains. These points unequivocally speak against the assumption of a conspiracy or a common plan among the defendants.
2) As points II and III of the indictment it has been established, it is true, that War Crimes and Crimes against Humanity have unfortunately, been committed. However, it hasn't been established by the evidence produced by the prosecution, that the defendant Fanslau has taken part in any one of them. The management and administration of concentration camps, the extermination of the Jews, the medical experiments, the Euthanasia program and the directing and supervising of work performed by prisoners was not in his domain. Although the defendant Fanslau knew of the existence of the concentration camps, he did not know of the inner administration and the atrocities committed there. He was not at all familiar with medical experiments and the Euthanasia program.
He knew nothing about the extermination of the Jews. The Reinhardt-Plan he did not even know by name. All that, the prosecution was unable to refute. I therefore request the court to quash proceedings against the defendant Fanslau as to Count I to III of the indictment, since the prosecution has failed to establish evidence charging the defendant Fanslau beyond the shadow of a reasonable doubt.
Main Part B.
In the event of this request not being granted I shall divide the defense for the defendant Fanslau into two main parts. They will consist, first, of the actual presenting of evidence, and second, of detailed legal arguments regarding Law No. 10 of the Control Council and the indictment.
I.
The material facts are as follows:
1.) Count I of the indictment charges the defendant Fanslau with the alleged participation in a conspiracy or a plan to Commit War Crimes and Crimes against Humanity. I have set forth that from the statements of the prosecution it is already evident that, the WVHA has not been organized in the execution of a common plan or purpose, but because tasks of various natures have been combined in the person of the defendant Pohl on orders of a higher authority. In addition -- without assuming a special burden of proof -- I shall submit evidence:
a) that the organization of the WVHA has been accomplished in consequence of the Fuehrer principle and not by the free choice of its later members,
b) that the merger of the former Administrative and Economic Main Office on the one hand and the Budget and Buildings Main Office on the other hand, as well as the Administrative Office in the Operational Main Office, into the WVHA was effected on 1 February 1942,
c) that the defendant Fanslau had already been appointed Chief of the Office A V in WVHA at this date,
d) that the Office of the Inspector of Concentration Camps was only incorporated as Amtsgruppe D on 1 April 1942 and that the defendant Fanslau had not participated in the previous discussions.
e) that the Amtsgruppe D was only subordinated to the defendant Pohl, without entering into closer relations with the Amtsgruppe A and that especially the separation as to territory and subject matters was retained -- in questions of personnel as well,
f) that the domains of all Amtsgruppen of the WVHA were completely independent of one another, and that especially the Amtsgruppe handled almost exclusively the requirements of the military administration and therefore served other purposes than the Amtsgruppen C, W and D.
By this evidence I hope to refute unequivocally any reasonable suspicion even if it were only prima facie, of a conspiracy or a common plan to commit War Crimes or Crimes against Humanity with regard to their existence, as well as concerning the participation of the defendant Fanslau especially.
2. Counts II and III of the indictment charge the defendant Fanslau with the committing of, or participation in War Crimes and Crimes against Humanity. The prosecution has established proof that, unfortunately, War Crimes and Crimes against Humanity have been committed. I shall prove -- without assuming a special burden of proof hereby -that the defendant Fanslau did not participate in those crimes even according to the stricter definitions concerning participation of Law No. 10 of the Control Council.
The indictment itself does not state, that the defendant Fanslau has been principal, accessory or instigator in the commission of these crimes. There would be no evidence for such an assumption. Therefore I only have to examine the definitions of participation in article II, paragraph 2 c to e of Law No. 10 of the Control Council.
a) According to Article II, paragraph 2 c, any person who took a consenting part in a crime, is liable to punishment. I believe that I may conclude from the judgement of the Tribunal in the case against Erhard Milch, that a participation according to this penal regulation is only to be assumed:
aa) if the defendant has knowledge of the intended crimes, bb) if he had this knowledge in time to undertake steps to prevent these crimes, and cc) if the defendant had the power to prevent these crimes.
I shall present evidence that the defendant Fanslau had no knowledge whatsoever of the crimes mentioned in the indictment, which have been proved by the prosecution, and that his official position and his official activity could not convey this knowledge to him,
b) According to Article II, paragraph 2 d, any person who was connected with plans or enterprises involving the commission of crimes as defined in article II, paragraph 1, is liable to punishment. The evaluation of this definition causes me some difficulty, because this far-reaching concept of "participation" is now know to me, neither in the German, nor in the National Penal Code or any other State. I also do not believe that this penal regulation applies to the mere existence of an objective connection without any reconsideration of the subjective knowledge. I only want to point out, as a matter of precaution, that membership in the WVHA does not establish a connection as defined in this penal regulation. The WVHA was no uniform authority, but owed, as was mentioned several times before, its existence to the fact, that, in the person of the defendant Pohl, the most diverse domaines were united, which were not connected with each other materially or became connected materially by their merger.
c) According to article II, paragraph 2 e, a person, who was a member of any organization of group connected with the commission of a crime as defined in article II, paragraph 1, is liable to punishment. That is to say, that he was a member of any organization or group connected with the commission of a crime. By submitting the pertinent statements in the judgment of the International Military Tribunal I shall prove, that, the prerequisite for the application of this penal regulation is is the existence of any organization or group for a common purpose, analogous to a conspiracy.
This rule does not apply to members who had no knowledge of the criminal purposes or acts of the organization or group. As already stated, this holds true in the case of the defendant Fanslau in his capacity as member of the WVHA.
3) Count IV of the indictment charges the defendant Fanslau with membership in the SS, an organization declared criminal by the International Military Tribunal. With reference hereto, I shall submit extracts from the judgment of the International Military Tribunal from which it will be evident that, members who had no knowledge of the criminal purposes or acts of an organization do not crime within the scope of this penal regulation, and that, punishment imposed, in any case, may not exceed the punishment proscribed by the De-Nazification Law of 5 March 1946. Furthermore, I shall submit evidence on the unobjectionable personal attitude of the defendant Franlau, which characterises him as an honorable soldier.
II As to the legal aspects I shall discuss the following:
1). Law No. 10 of the Central Council in general. Here an examination of the question seems worthwhile, whether this law was enacted by the Control Council in its capacity as the executive agency of the occupation forces, thus exercising German Judicial sovereignty, or whether it is the expression of an international legal principle.
a) In the first place I shall demonstrate, that the law is in direct contradiction to the principles of a constitutional state, insofar, as it declares punishable ex post facte, now criminal acts such as e.g. extermination, slavery, persecution for political, racial and religious reasons and the wider forms of participation. It violates that inalienable principle which prohibits punishment pursuant to a law, not in existence at the time of the commission of the act. To support this contention I shall submit, in extracts, the opinion of the International Tribunal in Hague of 4 December 1935 and a statement from the constitutions of 30 of the most important civilized states as well as the pertinent rules of the Weimar Constitution and the new German Constitutions in Bavaria, Wuerttemberg and Greater-Hesse.
b) In the second place, if the law is to be considered as an expression of an international principle, I shall contend that it violates the eternal principle of equality. In its preamble and in Article I, it is directed only against war criminals of the former Axis Powers and thus does not apply to the present and the future. The acknowledgment of on international principle would also require the enactment of similar laws in other states.
2) Furthermore I intend to deal with crimes against humanity and to examine.
a) whether a separate crimes is at all involved -- His Honor Judge Musmanno, in summing up his opinion on Erhard Milch examined this question, if I have correctly understood it, only in regard to deportation to slave labor (Pages 79/80 of the German transcript)--,
b) what is covered by this definition -- with regard hereto we will have to analyze the argumentations published thus far in scientific literature, particularly Aroneanus's theory of the "Criminal State"; the opinion of the District Court at Konstanz in the case of Tillessen, which goes even further; and
c) how far the principle of the Sovereignty of States, with regard to acts perpetrated by Germans against Germans, precludes the assumptions of a crime against humanity, and bars jurisdiction of a foreign court.
3) Furthermore, the definition of conspiracy should be more closely examined. I shall try to prove here that Law No. 10 of the Control Council does not provide punishment for a conspiracy to perpetrate War Crimes and Crimes against Humanity, as can be gathered -- as argumentum e contrario - from the manner in which Article II Paragraph 1 a is worded. An application of the 1 gal principle of the criminality of a conspiracy, commonly known in Anglo-American law, would, for reasons of "nullum crimen, nulla poena sine lege" hardly be admissible ex post facto to German nationals in Germany.
4) Finally, I intend to deal with another question, namely: the problem as to what laws should govern the interpretation of the provisions and the filling in of possible gaps, of the Law No. 10 the Control Council. I shall come to the conclusion that, in accordance with the international principle of the applicability of the lex loci in international penal law, this can only be done according to German law.
And now I reach the conclusion of my opening statement.
In passing judgment on Erhard Milch the Tribunal has stated, that it considered it to be one of the most important purposes of these trials to inculcate into the thinking of the German people an appreciation of, and respect for, the principles of law which have become the backbone of the democratic process (Page 2498 of the official transcript). The task, of passing judgment on nationals of a foreign State, without having had personal and direct knowledge of these sinister times and these extra ordinary conditions, the framework, in which the crime charged took place, is a very serious and responsible one indeed. I therefore consider it to be an especially serious task for the defense to help to uncover the objective truth to the best of their ability, and thus create the basis for a judgment in the immortal spirit of eternal law.
DR. SPITZ (Attorney for the Defendant Josef Vogt): If your Honors please, I don't know whether the court has the translation of my opening speech.
THE PRESIDENT: No, we have not.
DR. SPITZ: In that case, I shall make my opening speech later. Dr. von Stein for Eirenschmalz, Dr. Heim for Hohberg, Dr. Berlzer for Sommer, Dr. Rauschenbach for Hans Loerner. We have two of those. There are four.
DR. VON STEIN (Attorney for the Defendant Eirenschmalz): If your Honors please, by the proof in the case by the defense, in the indictment and by the evidence of the prosecution.
Franz Eirenschmalz was not charged with a further defined single crime. Neither is it sufficiently clear what all the offences were in which the defendant is said to have participated and with what kind of participation he is charged.
In the defense I shall therefore state in detail what the defendant was doing during the years 1933 to 1945 and furnish proof of the fact that all special tasks ordered by Kammler are in no way connected with the office C VI (Pruefungswesen) under the defendant, and insofar, no responsibility of the defendant exists.
I shall prove furthermore that no actual representation of Kammler by Eirenschmalz ever took place at any time and Eirenschmalz devoted himself unsparingly to the work in office C VI.
I shall state my opinion of the separate counts of the indictment as follows:
I. The provisions laid down in Control Council Law No. 10 regarding a common plan or conspiracy are not applicable in the present case. By way of precaution, I shall also produce evidence to show that in reality there is no reason to assume that a conspiracy was planned.
II. Participation in war crimes and crimes against humanity. I shall prove that all the kinds of participation enumerated in paragraph II, No. 2 of the Control Council Law No. 10 do not apply in the case of the defendant.
Some of the crimes enumerated in the indictment have no connection at all with the work done in office C VI. The planning and construction of prisoner-of-war camps, concentration camps, laboratories and blocks for medical experiments, gas chambers and crematoriums were not; as is proved by the documents, done by office C VI.
I shall prove furthermore through witnesses, that the defendant did not contribute effectively once in the criminal sense to the maintenance or extension of these buildings. The actual investigations made by Office C VI were not calculated at all even objectively to have any effect on the issue of the crimes before, during or after the deed. This also will be shown clearly by the proven facts. I shall furnish proof also that the defendant could not have known of any possible contribution to the crimes by his own activities, from any of the sources of information at his disposal.
As regards count IV of the indictment - membership of a criminal organization - I shall state the reasons which induced the defendant to join the SS. His career in the SS will show how he came to be appointed Standartenfuehrer and what importance this rank and his activities in the SS could really have for an alleged knowledge of the criminal aims. For the discharge of all the counts of the indictment, I shall refer to documents, witnesses and statements by the co-defendants and the defendant himself, whom I shall call as witnesses. Insofar as, according to the result of the evidence given up to now, charges have been made, apparently, against the defendant in affidavits, I shall crossexamine the persons in question, in order to refute their surmises and wrong conclusions, and to establish clear facts.
DR. BELZER (Attorney for the Defendant Karl Sommer): May it please the Tribunal, and when we come to the two defendants who had the misfortune to work in Department D, i.e. to Sommer and Pook, they will tell us, that they did everything in their power, to improve the conditions...."
With these words, the prosecution, in its opening statement thought to anticipate the defense of the defendant Sommer. I must, however, radically disillusion the prosecution with the assertion that such a defense is not possible in the case of the defendant Sommer because two basic suppositions are lacking, namely:
1. The defendant Sommer had no knowledge whatsoever of the conditions in the concentration camps which form the subject of the charge, and, 2. The defendant Sommer had not the power to change these conditions, even had he been aware of them; and the proving of these facts is the chief aim of the defense of the defendant Sommer.
In the preamble to the opening statement of the prosecution the following appears:
"In this dock sit the most important surviving leaders of the SSMain Economic and Administrative Office (WVHA).
In order to show that the defendant Sommer was one of the most important leaders of the Main Economic and Administrative Office (WVHA) the indictment gives the former rank of the defendant as "Sturmbannfuehrer". Furthermore it is maintained in the indictment as well as in the opening statement of the prosecution that Sommer was deputy chief of Department D II of the Main Economic and Administrative Office, the WVHA.
To counter this, evidence will have to be submitted proving that the highest rank to which the defendant Sommer was promoted in the Waffen-SS was that of a Hauptsturmfuehrer and that at no time was Sommer deputy chief of Department D II.
Under count I of the indictment, all the defendants of this trial are charged with having participated knowingly and intentionally in a conspiracy to commit war crimes and crimes against humanity, as described in greater detail in the Control Council Law No. 10 Article II. A conspiracy of this nature does not, however, fulfill in itself, the conditions of a crime as laid down in the Statute on the International Military Tribunal or in the Control Council Law. A proven conspiracy could according to Article 6 of the Statute, only result in each conspirators being held responsible for all actions committed in the sense and spirit of the conspiracy.
But in order to hold a person responsible for all actions serving the purpose of the conspiracy, it would have to be proved that the person concerned intentionally and knowingly took part in the preparation or execution of the common plan to commit the crimes in quest as principal, accomplice, instigator, abettor. The prosecution draws the conclusion that the defendants participated in the conspiracy in question from the fact that they all of them belonged to the WVHA and ostensibly, held responsible positions in that organization.
For the defendant Sommer it will be proved that his participation in a conspiracy of the kind stated was completely impossible because of the circumstances in which and the date on which he joined the WVHA, his position, his duties and finally the nature of his official and personal relations with the defendants.
It will be proved that the defendant Sommer knew nothing of plans upon which the indictment is based, that he neither could know nor would have participated intentionally and knowingly in their execution.
In the indictment, counts II & III all defendants, the defendants, the defendant Sommer included, are charged with having committed intentionally and knowingly war crimes and crimes against humanity, as defined in the Control Council Law No. 10, in that they served as principals, accomplices, instigators, abettors that they had given their consent to and were connected with plans and undertakings concerned with the execuof the crimes mentioned.
As collaborator in Department D II, and especially as alleged deputy chief of this Department the defendant Karl Sommer is individually made answerable to the charge of being principal in, accomplice to, instigator of & abettor in the crimes which were committed in connection with the execution of the labour allocation of the concentration camp inmates, according to article II of the Control Counsel Law, as described in the indictment and in the opening statement of the prosecution.
The presentation of evidence for the defendant Sommer will accordingly be concerned mainly with these questions.
In order to underline the particular position held by the defendant Sommer within Department D II and the particular part played by him in the commission of the war crimes and crimes against humanity appearing in the indictment, insofar as they have allegedly been committed in connection with the labor allocation of the concentration camp inmates, the prosecution, in its opening statement, presents two ostensibly especially outstanding examples of the alleged criminal activities of the defendant. and I quote--Once it says (on page 58 of the German Translation): "The defendant Sommer knew about the repair of thousands of watches belonging to liquidated Jews in the work shops of the concentration camp Sachsenhausen." end of quote. This statement is correct insofar as the defendant Sommer knew that watches were being repaired at Sachsenhausen. However, the supposition, that Sommer also knew that these watches belonged to liquidated Jews is not correct. On page 76 of the German translation of the opening statement of the prosecution it is assorted in connection with the project S III.--And I quote. "The defendant Sommer went to Buchenwald himself to select inmates for this work." End of quote. Apart from the fact that it cannot be seen from the evidence presented so far by the prosecution how this statement could be justified, it will be refuted and proven to be wrong by my presentation of evidence.
By presentation of several affidavits given members of the Main Economic and Administrative Office the WVHA and other persons who came into official contact with the defendant Sommer, as well as by testimony of witnesses, it will be proven that Sommer could not possibly be considered deputy chief of the Department D II. To consider the activities of the defendant from the point of view whether or not, by fullfilling his official duties, he himself committed one or several of the crimes under indictment, intentionally and knowingly, or whether he participated in commission the described crimes by knowing that criminal results of his work were intended by others, the defendant Sommer will have to testify as witness in his own behalf, describing to the Court comprehensively and fully the general duties assigned to Amtsgruppe D by Department D II and his own field of work in particular.
The statements of the defendant Sommer, supported and confirmed by the affidavits and witness statements of others, will make the Court realize that Department D II, according to the duties assigned to it, could not and did not have any interest in the inhumane treatment, the criminal exploitation of the workers or even the annihilation of the concentration camp inmates. It will be proved that the orders and directives issued by Department D II to the concentration camps, at least as far as they were known to the defendant Sommer, were aimed exclusively at the preservation of the working power of the prisoners. Furthermore, the Court will be able to realize that the defendant Sommer was only an unimportant figure in the machine of the Main Economic and Administrative Office or Amtsgruppe D, with no authority to issue directives or to make decisions, a "typical receptionist", as he is called in one affidavit, who, from his window, metaphorically speaking, could not possibly observe:
1. whether the employment of the prisoners in the concentration camps as such or the working conditions, as far as he knew them at all, violated international law or any other law;
2. whether one or another directive referring to the allocation of labor in concentration camps which he received from his official superior and which he worked upon in an administrative capacity could possibly result in the commission of atrocities on prisoners, or whether these directives could possibly be misinterpreted to such an aid.
Finally, it will be proven to the Court that the defendant Sommer either did not learn at all of measures taken by other organizations, as for instance of the annihilation of entire categories of prisoners, or that he only learned of the measure as such without the criminal accompanying circumstances, such as for instance the carrying out of medical experiments on concentration camp inmates. From the evidence submitted the legal consequence can only be that, from the fact and the nature of collaboration of the defendant Sommer within Department D II of the Main Economic and Administrative Office (WVHA), there is no evidence of participation of any kind in war crimes or crimes against humanity, or finally of participation in a conspiracy for the commission of such crimes.
The defense counsel for the defendant Sommer will tackle with particular vigor the task of proving wrong in their entirety the statements of the witness Bilski referring to the murder in the concentration camp Auschwitz, imputed to the defendant Sommer. The cross-examination of the witness Bilski, conducted by me in the session of 14 April, has already proven that the witness did not hesitate to make untrue statements under oath and in cold blood, if telling the truth could mean the disqualification of his testimony. This fact alone demands that particular caution be exercised in the evaluation of the testimony of the witness Bilski. Only a witness who consciously and intentionally lies is worried about the value of his statement as a witness. But in addition I consider myself lucky to be favored by special circumstances which permit me to present the conclusive evidence that the culprit of the murder of a Jewish prisoner, as allegedly observed and described in all particulars here before the Court by the witness Bilski, was not the defendant Karl Sommer, and that this is at least a case of mistaken identity if not something much more serious, namely, cold-blooded perjury on the part of the witness Bilski.
To Count IV of the indictment, "Membership of criminal organizations", it will be clarified by the testimony of the defendant Sommer as witness in his own behalf and also by statements of co-defendants that:
1. the defendant Sommer was a member of the SS between the year 1936 and 1 September 1939;
2. the defendant Sommer was drafted after 1 September 1939 into the Waffen-SS, without any action on his part. In other words, he was assigned to the ranks of the SS in such a way that he had no other choice.
The defendant Karl Sommer therefore claims for himself that he is not to be considered to be among the group of persons within the SS who, according to the verdict of the International Military Tribunal, have been declared criminal since he himself did not commit any crimes on account of which this group of persons was declared to be criminal.
THE PRESIDENT: The next.
DR. HEIM: Dr. Heim for the defendant Dr. Hans Hohberg.
THE PRESIDENT: Would you prefer to start your opening statement at the afternoon session rather than be interrupted by the noon recess?
DR. HEIM: If it please the Tribunal, my opening statement will take about twenty-five minutes and, therefore, I would prefer if I may make my opening speech after the recess.
THE PRESIDENT: Very well, we will resume at quarter to two, one forty-five.
THE MARSHAL: The Tribunal will be in recess until 1345 hours.
(A recess was taken until 1345 hours.)