AFTERNOON SESSION (The hearing reconvened at 1400 hours, 15 May 1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The record will indicate that the defendant Frank is present in person at this session.
DR. FRITSCH (Counsel for the defendant Hans Baier): May it please the Tribunal, neither in the Indictment nor in the submission of evidence has the Prosecution accused the defendant Hans Baier of a clearly defined separate crime. It asserts participation as an accessory and in Article II, 2 of the Control Council Law No. 10 has established "planning" as a crime in itself in the obvious intention of implicating the defendant Baier as well under a punishable offense, inasmuch as it tries to construe the existence of a common plan or conspiracy among the defendants. It will be up to the final speech to prove that to consider "planning" and the other definitions of partnership listed in Control Council Law No. 10 as far as they do not concern participation, incitement or abetting under the provisions of the Penal Code of the German Reich a crime, contradicts the London Statute and the verdict of the International Military Tribunal and that they cannot be brought into accord with the generally accepted legal principle of "nullum crimen sine lege, nulla poene sine lege", because even under the German Law valid before 1933 they constituted a punishable offense only after the deed had been performed.
As, furthermore, it is not clearly stated in which of the generally asserted total offenses the defendant Baier is supposed to have participated, I shall set forth in detail and prove his activity during the years from 1933 to 1945.
1. The Common Planning or the Conspiracy.
What the Prosecution is actually trying to do is to use the fact that the defendant worked at the WVHA as a basis for the alleged connection between the conspirators. I shall prove that the defendant Baier was transferred to the WVHA in 1943 without any initiative on his part and that his only task in this office consisted in making revisions of a financial nature by examining reports of the German Economic Enterprises, the GMBH, submitted to him, as prescribed by commercial law.
Only in this connection may he be called one of the "executing assistants" of the defendant Oswald Pohl. It will be proven that there is absolutely no causal connection between the crimes which, according to the Prosecution, were committed in the concentration camps and the activity of the defendant Baier, and I shall further prove that as for the relationship between the defendants and their respective activities within the WVHA, a common plan or a conspiracy are entirely out of the question. It will be proven that even from an objective point of view it is incorrect to say that to find and apply means and ways for the financing of the SS, of the National Socialistic German Worker's Party belonged to the plan, the conspiracy under accusation and that, even if such plans should have existed without the knowledge of the defendant Baier, he had and could not have any knowledge of them.
I shall bring the necessary counter-evidence also for the other assertions of the Prosecution, namely, that it was part of the common plan to establish concentration camps, to maintain them, to manage them and to administrate them, and to elaborate and carry out plans for the purpose of serving several industries, plans and enterprises with manpower and output of concentration camp inmates, to supply human experimental subjects for criminal medical experiments, and to carry out the elimination of the Jews.
II. War Crimes and Crimes against Humanity As already stated, the defendant Baier is not charged with any specific separate criminal act.
Beyond that I shall prove in point of fact that Baier also was not involved as participant either in the organization of the concentration camps or in their administration. The fact that Baier did not even know, nor could know, of the crimes in the concentration camps enumerated by the Prosecution - such as maltreatment, killings, starvings, medical experiments - will also be proved.
Inasfar as the defendant Baier has been confronted with documents which cite his name and which are at the same time connected with the Reinhardt-Action and the "Osti", it will be shown that Baier had nothing to do with either the Reinhardt-Program or the "Osti", since these actions were already concluded when he started his duties; and that these documents were pertaining solely to an administrative activity which did not even require the knowledge of the actual contents of the Reinhardt-Program or of the task of the "Osti".
The Defense is furthermore in a position to prove that the defendant has done everything in his power to ease the hard lot of the prisoners, which he recognized in the curtailment of liberty, and that the preparation of a wages scheme for the prisoners, contrary to the opinion of the Prosecution, must serve for Baier's exoneration.
III. Membership of a Criminal Organization.
Baier does not deny his membership in the SS which the International Military Tribunal has declared a criminal organization. It will be proved, however, that Baier, who was at first a finance official and subsequently a Navy official, was drafted in 1937 from the Navy into the SS Special Duty Troops and that consequently his membership in the SS Special Duty Troops was not voluntary according to the legal basis.
I shall furthermore show in support of the negative evidence solely remaining to me that from Baier's character, which expressed itself also in his particularly good family life, one must draw the conclusion that he was opposed to violence against and any inhuman treatment of another person, and that he was always ready to help.
In order to carry out my offered proofs and defendant Baier's exoneration from all counts of the accusation, I shall question in cross examination the defendant Oswald Pohl and some of the other defendants, call to the witness box witnesses named by me, and defendant Baier himself, and furthermore, I shall present documents as far as is required.
Court No. II, Case No. 4.
DR. BRACHT (For Dr. Froeschmann, counsel for the defendant Karl Mummenthey): May it please the Tribunal, Your Honors:
The prosecution accuses the defendant Karl MUMMENTHEY of
1) Taking part in a common conspiracy for the commission, of war crimes and crimes against humanity,
2) Committing war crimes and
3) Crimes against humanity, as well as
4) Remaining a member of the SS, and thus, of a criminal organization, after 1 September 1939, although he knew that the SS was used for the commission of war crimes and crimes against humanity.
In refutation of these accusations, the counsel for the defendant MUMMENTHEY will prove the following:
1) MUMMENTHEY has not taken part in any conspiracy. In the course of his professional career, he joined the DEST, and when he did so he did not have any idea of the close connection of this enterprise with the SS and the later WVHA. During his activity as manager and as Chief of the Office W I he kept strictly within the sphere of his duties. His tasks there were of a purely commercial and economic-legal nature. MUMMENTHEY had no connection whatsoever with another defendant or with another group of persons who aimed at the planning or preparation of war crimes or crimes against humanity. Inasfar as he did have something to do with one or the other of the defendants within the sphere of activity of the enterprise, these discussions served only to fulfill the economic purpose of the DEST, which he represented.
2) The prosecution has not specified the charges against MUMMENTHEY. Neither the submitted documents nor the evidence given by witnesses make these clear. I consider such a procedure as objectionable and request the indictment be rejected insofar as this is concerned.
a) The prosecution obviously wants to connect MUMMENTHEY with the use of POW's and foreign forced laborers in armament production Court No. II, Case No. 4.and thus derive the fact that he has committed a violation against the international regulations of the Hague Convention on Land warfare and the Geneva Convention.
b) In refutation of these charges, the counsel for the defendant will try to prove that MUMMENTHEY had no knowledge of the accidental circumstances connected with this.
Neither the setting up of concentration camps nor their maintenance were under his control, nor did he have any influence on the treatment of the prisoners and their use in the enterprises of the WVHA.
Therefore, MUMMENTHEY cannot be considered principal, nor participant, nor instigator nor even as accessory in such war crimes.
c) The defense will submit evidence, which will prove that the setting up of concentration camps and the transportation, treatment, feeding, clothing, accommodation and release of prisoners were matters outside his sphere of influence.
The defense will further prove that MUMMENTHEY overstepped his power and for purely humane reasons repeatedly tried to ease the hard fate of the prisoners and effect their release.
Finally it will prove that MUMMENTHEY exposed himself repeatedly to the danger of being called to account for aiding the prisoners.
3) The defense will show by witnesses and documents the competence and powers of MUMMENTHEY and prove that MUMMENTHEY did everything which could be reasonably expected of him in this respect. He tried to remedy whatever abuses he heard of. It was he who was responsible for numerous suggestions for improvements, which turned out to be most advantageous for the prisoners in the DEST workshops.
Due to the rigid organization of the WVHA with its strictly defined limits of power he did not have the chance to perceive the real conditions existing in the concentration camps and to do some Court No. II, Case No. 4.thing about them.
Even with regard to the enterprises which belonged to the DEST, he had only a limited power in so far as issuing orders was concerned and this was restricted to purely internal questions concerning the plant. Insofar as the employment of the prisoners and their treatment inside the plants is concerned, this also, was not within his sphere of influence.
4) All this proves that MUMMENTHEY did not participate in the crimes, as listed under 1-3 and that it was not possible for him to do so.
5) In 1934 as a law clerk MUMMENTHEY joined the legal preparatory service of the mounted SS, to which is not a criminal organization according to the judgment of the IMT. The fact that he was a member of the SS had nothing to do with his receiving a position in the DEST. On the contrary he got this job in the usual way through the appointments agency. This alone refutes the statement that he joined the SS and later on held a position in the WVHA with the intention of joining a conspiracy.
In 1940, as an SS man, he was called up into the Waffen-SS and he was granted leave and given permission to wear civilian clothes.
When later on the position of a so-called Fachfuehrer (Specialist Officer) was set up in the Waffen-SS, he was appointed Hauptsturmfuehrer and later on Sturmbannfuehrer.
MUMMENTHEY received no training in the Waffen-SS, he also did not take part in any Officers training course. He had nothing to do with being called up into the Waffen-SS. Consequently, he did not know at that time that the SS was used for criminal actions.
DR. RATZ (For Defendant Pook): May it please the Tribunal, we have not received the translation yet, and I would like to wait until such a time as the translation has arrived.
THE PRESIDENT: How many pages in your opening statement?
DR. RATZ: Thirteen pages, Your Honor.
THE PRESIDENT: Thirteen?
DR. RATZ: Thirteen pages, Your Honor. That is correct.
Court No. II, Case No. 4.
THE PRESIDENT: Have you inquired about the translation? Have they started to make it yet?
DR. RATZ: As far as I know, it has already been translated, and it is just now being mimeographed, so in that way I expect it to arrive here in a very short period of time.
THE PRESIDENT: Well, we will wait for it then. We will recess for a few minutes, and as soon as it is ready we will convene again.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. PAUL RATZ (for defendant Hermann Pook):
Mr. President:
1) Defendant Dr. Hermann POOK is a dentist by profession. He was employed as dentist by the Office D III of the WVHA (Economic and Administrative Main Office) and is charged in the indictment in his capacity as dentist. In view of the multitude of serious accusations and incriminating evidence compiled by the prosecution against the defendants, the indictment against defendant Hermann POOK appears to be a trifling matter. The indictment contains only one sentence which involves this defendant who is designated as "Chief Dental Surgeon of the WVHA": "Defendant Hermann POOK was entrusted with the dental care of concentration camp inmates" (page 6 of the German text) and in the opening statement of the prosecution too he is mentioned only in two sentences: "Defendant POOK was Chief Dental Surgeon in office D III, all Dental Surgeons of concentration camps were subordinate to him. One of their tasks was the removal of gold teeth from deceased prisoners". (Page 11 of the German text) and: "Defendant POOK was Chief of the dentists who were supervising the extractions of gold teeth of corpses in all concentration camps by authority of the WVHA". (Page 58 of the German text). Notwithstanding, I am far from adhering to an illusion with regard to the severity of the accusation against this defendant too. In clear and concise formulation the standpoint of the prosecuting authority is presumably the following: Defendant Hermann POOK is accused by reason of his responsible position in the field of dental surgery, to have contributed in a criminal manner to the "Institution for violence, wholesale crime and human vileness" as the Prosecution describes the system of concentration camps.
2) In order to clarify the responsibility according to criminal law of defendant Hermann POOK it is necessary in the first instance to define his official position. This will show the following: The subordination for a dental surgeon in the Waffen-SS as well as in the Army was threefold:
As far as the health service was concerned, he was subordinate to the Physician of the Unit;
in all matters relating to discipline he was subordinate to the Commander of the Unit; and professionally he was subordinate to the Leading Dental Surgeon of the superior Association.
He could, therefore, receive orders from three different offices and he was responsible to three different offices. If one of these offices gave an order to the dentist, this same office was of course responsible for the order given and not the other two offices.
The Leading Dental Surgeon of the superior association on his part was likewise responsible to three different offices. He had a separate superior on each field: medical, disciplinary and professional.
Dr. Hermann POOK was the Leading Dental Surgeon of office D III.
What does the position of Leading Dental Surgeon of the Waffen-SS entail?
The main office of the entire dental service of the Waffen-SS was Office XIV ("Dental Service") in the Office Group D of the Operational Main Office ("Medical Service of the Waffen-SS"). This office XIV was competent and responsible for the dental service throughout the SS, not only within the sphere of the Operational Main Office, but also for the action spheres of the other main offices of the SS, therefore also for the sphere of the WVHA. He had to attend to the installation and staffing of dental clinics as well as to the supply of the necessary materials and medical supplies, and besides he had to attend to the professional supervision of dentists and dentists' personnel.
Owing to the expansion of the dental service of the Waffen-SS during the war it became necessary to create the position of Leading Dental Surgeons. This was an Intermediate Instance which in the case of larger units, such as divisions supervised the dentists employed, in order to relieve the Central Instance, Office XIV.
After the inspection of the concentration camps, was incorporated to the WVHA, as Office Group D, it became necessary to create also in Office D III (Medical Service of the Concentration Camps) the position of a Leading Dental Surgeon as Intermediate Instance for the supervision of the Camp Dentists and as professional adviser to the Superintending Physician and Chief of Office Dr. LOLLING. The defendant Hermann POOK held this position since the end of 1943, being professionally subordinate to Office XIV (Dental Service of the Waffen-SS) as every other Leading Dental Surgeon, and receiving therefrom his orders and instructions concerning the dental professional field. It is not merely to dispute words if, contrary to the statement of the prosecution, it is emphasized that defendant Hermann POOK was not Chief Dental Surgeon of the WVHA. There was no Chief Dental Surgeon in the whole of the Waffen-SS. A Chief Dental Surgeon, i.e. a dentist with independent authority to direct subordinated dentists was not necessary and would have been in contradiction to the idea of a centralized organization of the Dental Service of the Waffen-SS. Details will show that Hermann POOK as Leading Dentist of LOLLING had no real authority to act independently, especially that he could not give any independent orders to Camp Dentists, nor did he ever do so.
It would be foolish on my part if I would expect to be able to exculpate by this evidence alone defendant Hermann POOK for illtreatments or other atrocities which the Camp Dentists are alleged to have committed on prisoners, because, after all, it was POOK's duty as Leading Dental Surgeon to exercise adequate professional supervision over the dentists. However, there is a marked difference whether responsibility arises from the position of Chief, who acts independently and is generally responsible for his subordinates, or merely from the position of a supervising officer in the professional-technical field. Furthermore the accusation against Hermann POOK does obviously not stress particularly dental ill-treatment committed on living prisoners, but concerns the removal of gold teeth from corpses of prisoners. In this connection it is of the greatest importance to realize that POOK was merely Leading Dentist and as such only had to supervise the Camp Dentists in a professional - technical manner.
A double concept results therefrom: 1. He was not in a position to give orders for the removal of gold teeth from deceased prisoners (it is a fact that he actually never gave such an order); 2. The order issued to the camp dentists which reached them either through medical service or official channels, went actually beyond the professional sphere of influence of the defendant.
3) Defendant Hermann Pook does not know to this day what kind of orders have been given for the removal of gold teeth from deceased prisoners, especially not which office issued them and when. He himself never has given such an order, nor has he supervised the removal. What he does know and already knew during his activity in Office D III is, that by way of the Camp Administration such gold came from the camps and was passed on by administrative channels viz. not by Office D III. He learned about it through the monthly reports of the camp dentists which he forwarded to Office XIV (Dental Service). However, the quantities of gold mentioned therein were so small that it seems out of the question and never occurred to him that the gold did not come of such inmates only who died a natural death. In the further course of proceedings I will have to state that the removal of gold teeth of prisoners who died a natural death, does not constitute a criminal action at all. As early as in 1925 for instance there were lively debates in German dental publications with regard to the necessity and suitability of such a measure. Already then distinguished German dentists gave lively support to such a measure.
4) The evidence concerning the activity of the defendant in Office D III will show that Pook in fact was just an intermediate office of the dental administration and nothing else. The following were his principal official duties: to review the monthly work- and personnel reports, which the camp dentists submitted, and to pass them on to Office XIV; to direct to Office XIV the monthly requests for supplies and medicines, which were sent in by the Chiefs of the dental clinics, to examine the applications for artificial teeth for prisoners submitted by the camp dentists and finally to forward the so-called gold-books to office XIV for examination. This will give us an insight at the same time of the principles governing dental treatment of prisoners; in the monthly requests for material and medical supplies there, no difference whatsoever was made between prisoners and members of the SS.
Every dental clinic had to keep a separate gold-account on the gold for dental purposes received from office XIV for teeth repairs and used by the dentists, which was carefully examined by office XIV and later on by Pook himself. The result of this examination was recorded in the personal file of the dentists. An additional important task of Dr. Pook was the examination of bills of civilian dentists for the dental treatment of prisoners who worked in out-stations and who, having no dental clinic in their camp, could not be treated by a camp dentist.
What purport would have had all these activities of Dr. Pook if the point of view would have been, that for the dentist the inmate in the concentration camp is merely a subject for cruel tormenting and lucrative gold production?
5) Dr. Pook was Leading Dental Surgeon in the office D III with Dr. Lolling, the Head of the Medical Service for Concentration Camps. I do not think that it can be seriously asserted that Dr. Pook, who was a dental surgeon and not a doctor, had been Lolling's deputy and therefore, or for any other reason, was responsible in the eyes of criminal law, for this man's actions. I shall, however, state and prove that Dr. Pook was not Lolling's deputy but that Lolling was represented by a doctor, if unable to attend or act himself, furthermore that Dr. Pook stood neither in any official nor personal relations to Lolling, which exceeded the essential official contact in dental matters, and that in the summer of 1944 Pook applied for a transfer from office D III on account of his strained relations with Lolling.
To complete the picture it will have to be proved what else Dr. Pook's work entailed. It will be seen that his activity in the office with Dr. Lolling only took up the lesser part of the day and that, for the rest as first dental surgeon of the Station Dental Post Oranienburg, he had to cope with a considerable dental practice every day, and that he devoted the rest of the day and the remainder of his strength to his own private practice in BerlinLichterfelde.
6) Over and above his responsibility for his own actions and for his department, the indictment attempts to hold the defendant responsible for collective actions perpetrated by other persons or with other persons. This is done on two assumptions: 1. because all defendants were essentially connected with Concentration Camps, whose existence and working in itself meant murders, atrocities, tortures, enslavement and other inhuman acts. (Indictment, page 45 of the German text), 2. because all defendants in agreement with each other intentionally and deliberately, for a common purpose, have committed war crimes and crimes against humanity, so that they are personally responsible for their own actions and for all actions perpetrated by persons in pursuance of the common purpose. (Indictment, Page 6 of the German text).
To 1) it will have to be stated that the establishment of Concentration Camps as such is to be attributed neither to the defendants nor to the National Socialist regime, furthermore, that one can not get away from the fact that the Concentration Camps of the Hitler regime had a legal foundation, moreover, that it would be going far from historical truth to maintain that these Concentration Camps from the very beginning, fundamentally and in general were conducted on criminal and bestial lines; furthermore it will have to be stated that not everything, caused by the growing hardships and necessities of war in the Concentration Camps, can be considered today as individual criminal guilt, and finally that the insane mass crimes, which then actually happened in the Concentration Camps, can not be summarily attributed to each defendant.
Insofar as the conditions in the Concentration Camps developed into crime, they were carefully and cunningly kept secret from everyone not directly concerned. It would mean underrating the intelligence of the system to believe, that at least in the WVHA everyone working there must have had an insight into all or part of what the accusation consists of today. Nothing would be more unjust than to assume without positive evidence a knowledge of the committed crimes in the case of each defendant, thus too of the defendant Hermann Pook, and to declare him guilty and to sentence him on the basis of such hypothetical knowledge.
The defendant Hermann Pook although he worked in office D III, knew as little and as much of the criminal conditions and actions in the Concentration Camps as every average German at the time. Perhaps that seems incredible, but it will be proved just as the further fact that the defendant Hermann Pook never took part in conferences of the Office Chiefs or in other conferences of the Office Group D III, furthermore, that from the men sitting in the prisoner's dock with him, he knew only two personally, and even these only slightly, others he knew only from seeing them occasionally. However, most of them he did not even know by name, so for this reason alone the assumption of a conspiracy must be dropped with regard to the defendant Hermann Pook, that very defendant who only towards the end of 1943 was transferred to the Office D III.
II.
In view of the enormous quantity and seriousness of the committed crimes the prosecution has the perhaps comprehensible desire to prove as simply as possible the responsibility of the accused men, by saying: The defendant who held a post in the central administration of the Concentration Camps know about this and that; at least his knowledge can be assumed or, at any rate he should have known about it, consequently he is to be held responsible and therefore, he is to be considered guilty of the committed crimes. The same tendency can be found in the Control Council Law No. 10, which not only, in a manner as general as possible, established summaries of facts in regard to criminal law, but which in various points also seems to think in terms of a kind of automatic responsibility in the eyes of criminal law. Here looms the serious danger that, by a too generous treatment of the question of guilt, the general principles of penal law, as they are envisaged in the penal codes of all cultured nations (page 13 of the indictment, German text) are violated. On account of this danger, I may be permitted now to make in short some legal expositions, which will indicate which fundamental lines are followed by me in my defense, also their legal aspect.
1) The Control Council Law No. 10, which bears the heading: Punishment of persons who are guilty of war crimes, crimes against the peace and crimes against humanity, constitutes a big synthesis of political power and of Law. It is an authoritative decision pronounced by the victors, whereby the facts for what is considered to be a crime against international law are established, furthermore, whereby the individual responsibility of statesmen, of officials and of soldiers is established and which finally establishes the competence of the allied tribunals.
By that, many of the customary conceptions about international law, are done away with and something new is created against which it would be entirely senseless to fight in the present trials. But at the same time, the victors submitted to the law, by granting legal proceedings to the persons accused of such crimes. Now this is done with a double aim: One wishes to treat those accused of crimes against the international rules of law, humanity and ethics, according to these very rules and not according to political power and political interest, but also: the war crimes trials and also this trial have a much bigger task to fulfill than to mete out legal retribution in the individual case; the verdict should be a convincing contribution to a revival of the feeling of legal responsibility and the legal conscience of all nations.
2) The carrying through of legal proceedings, however, would be entirely meaningless if on the one hand factual evidence were admitted for the defendants, but on the other hand they were deprived of the possibilities to make legal depositions based upon the so far customary conception of penal law. Obviously it is not the purpose of the Control Council Law No. 10 to create something new with respect to the examination of individual responsibility of each defendant in the eyes of criminal law, it does not aim at breaking with the principles of the past in this respect, but it aims at decisions about the guilt of each defendant based on the generally applied legal principles, existent already before the Control Council Law No. 10.
A criminal culpability according to these principles can only be affirmed if the circumstance of knowledge and the circumstance of will are existent; ignorance and error therefore exclude an intentional criminal culpability in the same way as does involuntary action.
The knowledge, moreover, must include the knowledge of the prohibited nature of the action, the perpetrator must also know that his action is against a rule, that it is illegal and prohibited. If the Reich Court in permanent administration of justice declared the error in the eyes of criminal law as irrelevant and, in the question of guilty or not guilty only considers the error outside criminal law, I with my point of view am in no way in contradiction thereto. In my opinion no defendant can use the excuse that he did not know the laws of the German Penal Code, as far as the knowledge of the articles of the German Penal Code is not concerned, but rather the consciousness of the violation of international law, proof of such consciousness can not be waived for the simple reason that no international law code is in existence which defines the summaries of facts of international crimes.
These considerations will undoubtedly apply to every defendant in this trial. In the case of the defendant Hermann Pook, for instance, the following questions must be decided in accordance with these considerations: Can he legally be punished solely on the basis of the facts that he was knowingly employed in the central administration of the concentration camps; or for the reason that he knew that the inmates of the concentration camps had to work, or because he knew, that the gold was removed from the dentures of deceased inmates?
3) The problem of the consciousness of illegality leads to the problem of illegality itself.
Here I represent the following point of view:
Illegal is not only what constitutes the facts of a case in the technical sense, as, say, the facts of a case of the German Penal Code.
The thesis is also rejected that only the state may determine what is right and wrong: what conforms with its purpose and its interests is right, and what is detrimental to the interests of the state is wrong. This view by the way, is no national socialist invention, but is as old as the philosophy of state and law itself. The German jurist Otto Gierke has said already decades ago concerning this subject: "The high name of the Law would in case of such an interpretation right is what the state proclaims to be right - only reserve the purpose of veiling the bare fact that among men there exists no other order than the might of the strong over the weaker." There exists an ethical world order which supersedes every national conception of right and wrong, there is a legal conscience of nations and an unwritten international law (common law of nations) to which every individual and every state is subordinate in peace and in war in their actions.
What is contrary to law in the individual case, that again is decided by the judge according to his estimate and his standards, according not only to the opinion of his time but also of his people; he decides accordingly what his people accept as worthy in their lives and what they recognize as such. One can be so bold as to state then: Right and wrong is, even if one acknowledges the existence of a divine idea of right, nevertheless in its last analysis a political question. This becomes particularly obvious in wartime, when the conceptions of right of the parties waging not diverge hopelessly, wherein not only the reason of state, but also especially the "necessite de la guerre" plays an important part. I do not believe that the defendant Hermann Pook will be seriously held responsible for the medical experiments in the concentration camps and the so-called slave labor, but I wish to point out that just on this point particularly with respect to these two spheres, the distinction between right and wrong is not at all unequivocal and clear, this applies even more so to the setting-up of concentration camps as such.
4) To this must be added that not every illegal act in itself is punishable under criminal law. Whoever violates a distinct law of nations, whether it arises from an international agreement or "out of custom established among civilized nations, out of the laws of humanity and the demands of the public conscience," is only then responsible in the eyes of criminal law if a genuine "jus strictum" (strictly defined law) is involved, in other words not a must-precept or a recommendation which the parties to the agreement have given each other for their national legislation. An infraction of the rules of equity is since time immemorial not criminally punishable, for the rules of equity exist rather in the soul of the people and in the perception of the judge.
The question of the jus strictum leads at the same time right back to the question of criminal responsibility.