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.)
AFTERNOON SESSION (The hearing reconvened at 1355 hours, 14 May 1947.)
THE MARSHAL: All persons in court will find seats. The Tribunal is again in session.
MR. ROBBINS: May it please the Tribunal, this morning the Tribunal requested that I investigate and report on the question raised by Dr. Heim for the defendant Hohberg, namely, the whereabouts of the witness Graf Schwerin von Krosigk. Dr. Heim said he was released from Nuernberg just before he was about to sign an affidavit for him. I have found that von Krosigk was brought to Nuernberg at the request of counsel for Karl Brandt, was brought here through the Defense Information Center, and was released from Nuernberg at the request of the counsel for Dr. Karl Brandt by the Defense Information Center. The prosecution has nothing whatever to do with his being brought to Nuernberg or his release. As far as I know, the prosecution did not even know that he was here, and I would point out to the defense counsel that this is an organization under the Tribunal and not under the prosecution, namely, the Defense Information Center.
The second matter is the matter of Dr. Paul Reuther. The defense counsel for the defendant Pook stated this morning that he had been interrogated by the prosecution without permission from him. I have determined that Reuther was brought here to Nuernberg at the request of the prosecution and at a later date the defendant requested him and requested permission to interrogate Reuther. I take it under those circumstances it is not necessary for us to clear through the defense counsel before we interrogate such a witness. In this case he was brought here first by the prosecution before he was requested by the defense counsel.
THE PRESIDENT: Well, it is a rather fine point. Was he used as a witness by the prosecution?
MR. ROBBINS: No, he was not.
THE PRESIDENT: Well, what is his status, is he a prosecution witness or a defense witness?
MR. ROBBINS: I take it he is a prosecution witness.
THE PRESIDENT: He wasn't used as such and he was ordered as a defense witness. I think as soon as he was approved as a witness for the defense and the defense interrogated him that thereafter he should have been interrogated only upon notice to the defense counsel. I get your point, that he was brought here by the prosecution, but nevertheless he was a defense witness. I think it would be better in any future cases where a witness has been approved as a defense witness that the defense attorney be notified of any proposed interrogatory.
Where is the witness von Krosigk now?
MR. ROBBINS: I am told that he is in Dachau. Mr. Waltena of the Defense Information Center, I believe, has all of the information as to his present whereabouts.
THE PRESIDENT: Well, the affidavit could be sent to him at Dachau to be executed there and returned to the defense counsel.
Dr. Heim, are you ready to proceed?
DR. HEIM (Counsel for the defendant Hohberg): Your Honors. An examination of the indictment against the defendant Dr. Hohberg shows that the indictment is not substantiated, as the legal basis and the basic facts are partly missing.
I propose therefore to declare the indictment against the defendant Dr. Hohberg as inadequate.
1) on legal grounds with regard to count I of the indictment, a conspiracy for the perpetration of war crimes and crimes against humanity.
2) On factual grounds with regard to counts II and III of the indictment, war crimes and crimes against humanity.
In order to justify my proposal I make the following statement: Count I. of the indictment charges the defendant Dr. Hohberg with participation in a common plan or a joint execution for the perpetration of war crimes against humanity, without any legal grounds for this being contained in the indictment. Nor does the Control Council Law No. 10, which forms the basis for the trial provide a legal support for the crime claimed by the prosecution.
This law does not contain any regulation, which qualifies a conspiracy for the perpetration of war crimes or crimes against humanity as punishable as a particular independent kind of crime. According to this regulation such a conspiracy is only punishable when its aim is the perpetration of a crime against peace. No charge of such a crime has been made however.
Article II 1a shows that the law only recognizes a crime against the peace. It states:
"Participation in a common plan or a joint conspiracy for the purpose of carrying out one of the above mentioned crimes".
These above mentioned crimes are only crimes against the peace contained in paragraph 1a.
No corresponding regulation with regard to a conspiracy for the perpetration of war crimes and crimes against humanity can be found in the law.
The International Military Tribunal, in its verdict, definitely rejected the indictment which went beyond this, with the following words (End of paragraph 6 of the verdict):"Not only conspiracy for the purpose of waging aggressive wars but also the conspiracy for the perpetration of war crimes and crimes against humanity come under count I of the indictment.
However, apart from the conspiracy of waging aggressive wars, the statute does not qualify and conspiracy as a particular crime."
Article 6 of the statute provides:
"Leaders, organisers, instigators and abettors participating in, conceiving or carrying out a common plan or combined conspiracy for the perpetration of of the above mentioned crimes, are responsible for actions which have been committed by any person in the perpetration of such a plan".
In the opinion of the Tribunal, these words do not add a particular new crime to those crimes already mentioned. These words are meant to establish the responsibility of such persons who take part in a common plan. The Tribunal will therefore disregard the accusations contained in count I of the indictment, that the defendants participated in a conspiracy to commit war crimes and crimes against humanity, and will only take into consideration the common plan of preparing and carrying out aggressive wars".
This legal interpretation is confirmed in the same way under figure 8 of the verdict of the International Military Tribunal.
"As already mentioned, the statute does not qualify every conspiracy as a particular crime but, only those connected with crimes against the peace and conspiracy as under article 6 (a)".
In this way the International Military Tribunal has made an unequivocal decision on the unclear composition of the statute. A similar regulation which may lead to doubt is no longer contained in the Control Council Law No. 10. The text of the law is clear and unmistakable. Under the main types of crimes mentioned in article II paragraph 1 crimes against peace, crimes against humanity, war crimes and crimes of membership of a criminal organization, the participation in a common plan on conspiracy is considered as a further independent crime only in connection with a crime against the peace under 1a. As already shown by the clear and systematic structure of the law, only certain forms of participation are collected in Article II, paragraph 2, which, however, exceed the conception of participation known hitherto.
The fact that no independent crime of conspiracy can be derived from the regulation in Article II paragraph 2d, which considers as punishable "The connection with the planning and the execution" of the crime contained in paragraph 1 is shown by the following remarks: "If the legislation had this intention, it would certainly have used the same wording as was used in paragraph 1 a, it would have used the far more clear and unmistakable terms "Common Design and Conspiracy" in this connection also. Moreover, we can see no sufficient reason for substituting the already established conception of conspiracy by another conception of the same substance and meaning. Besides, there is no basis for the assumption that the law, systematically and carefully prepared as it is, would fail in its logic by throwing in among the forms of "Participation" a now and especially important "Criminal Act" as such.
It is therefore to be concluded that Count I - Conspiracy to Commit War Crimes and Crimes against Humanity - has no legal basis in Control Council Law No. 10. The indictment must therefore be regarded as inadequate in this respect, without a re-examination in factual respect becoming necessary.
The second group of Counts of the indictment against the defendant Hohberg is inadequate for factual reasons.
These are Counts II and III of the indictment. Therein Dr. Hohberg is charged with having wilfully and knowingly committed War Crimes and Crimes against Humanity by being a principal in, an accomplice to, an instigator of and an abettor in, plans and interprises the object of which were War Crimes and Crimes against Humanity; also to have consented to, and having been connected with, such plans and enterprises.
In his opening statement the prosecutor declared that it was the meaning and purpose of this trial to call to account for the crimes as charged in the indictment, all those men who held leading positions within the SS or the SS-WVHA and who thereby organized and kept running the machinery by which the perpetration of said crimes only became possible. The prosecution has facilitated its task by simply proclaiming the opinion that every person who held a leading position in the SS or WVHA, is prima facie responsible for the crimes as charged in the indictment or at least must have been connected with them in a responsible position.
In accordance with this opinion, the prosecution has tried to ascribe to Dr. Hohberg all sorts of positions within the WVHA; it has called him an "executive assistant", a "member of Staff W" and last not least "Staff Office Chief W" an appointment which for the defendant Hohberg who has never been a member of the Party or the SS comes rather as a surprise, especially at the present time.
In spite of the abundance of documents offered by the prosecution, it still owes us the proof for its allegation that Hohberg has been active in a leading position within the WVHA, that as "Staff Office Chief W" he had "direct supervision over the directors of the German Economic Enterprises Ltd. (DWB)", that "all dealings - with the highest Party offices, Ministry departments and central authorities" were done through Dr. Hohberg. This must be mentioned, for the prosecution concludes from the alleged leading position of the defendant Dr. Hohberg in the WVHA, that this activity, too, was a contributory factor to the criminal effect, since the aims and policy of the organization are said to have had as its object War Crimes and Crimes against Humanity.
Even if we were to accept the allegation of the prosecution, -namely that Dr. Hohberg held a leading position within the WVHA, - the evidence offered in documents and statements of witnesses still would be far from proving that the defendant Hohberg can be held criminally responsible on account of this position of his.
For nobody will seriously deny that in the WVHA, and even in a leading position, there must have been activities other than those subject to criminal law even if one accepts the premise that the policy and the aims of this organization were criminal. An assumption of the contrary would lead to the conclusion that in the end every person who worked in the organization, - i.e. even the minor employee, even the typist of the chief and finally even the doorman, - were also to be held criminally responsible. Such a conclusion, however will not find a support in the law on which this trial is based, as it would mean a breach of the principle of individual guilt which governs all existing legal systems. Such a conclusion furthermore, would be bound to lead to mass convictions as its consequence. The Tribunal which wishes to pass a judgment based on justice, law and law codes, will therefore not be able to acquiesce in an argumentation based on purely formal and superficial characteristics, but is bound to demand that the argumentation should follow the principle that guilt under penal law is individual guilt and that each individual act is criminally answerable for itself.
The prosecution in its opening statement, although it has enumerated in detail the crimes for which Hohberg is indicted, has failed to show in the course of its argumentation which of the submitted documents it considers as proof of the criminal acts themselves.
It therefore appears useful to mention briefly the legal problems involved, with reference to the evidence offered by the prosecution:
1) Has the defendant Hohberg participated in the War Crimes alleged by the prosecution?
2) Were they committed in accordance with his directive or by his order?
3) If having knowledge of the alleged crimes, did he have the power or the possibility to prevent them or to stop them?
4) If so, did he omit to act and did he therefore become particeps criminis and accomplice?
Court No. II, Case No. 4.
It cannot and shall not be denied that cruelties and atrocities, experiments with humans and executions took place in the concentration camps; that a number of people were exterminated by the so-called Euthanasia; that Jews were dragged from the occupied territories and gassed in the concentration camps.
(1) With reference to the prosecution does not maintain (and there is also no proof of it) that the defendant himself took any active part in the perpetration of these crimes. The prosecution in the course of its evidence has both failed to show which documents it considers as proof of the participation of Dr. HOHBERG in those crimes, and failed to state which forms of participation in pursuance of Article II, Section 2, of the Control Council Law, it considers applicable. The self-denial of the prosecution in this respect is not just a coincidence, but it shows the opinion of the prosecution that the submitted documents regarding the defendant HOHBERG, and his activity in a leading position of the WVHA, - as proved by these documents in the opinion of the prosecution, - suppositions of the penalty clause of Article II, paragraph 2 d, of the Control Council Law. In the opinion of the prosecution, the connection with the plans for the crimes and their actual perpetration is established hereby. With this assumption, however, the prosecution transgresses by far the limits, even of the provisions of section 2, much as they extend the domain of the conception of participation. If used literally, the general term "to be connected with" gives an almost unlimited scope for the subsumption of the actual facts. In this respect, however, there must be certain limits unless one wants to carry the law ad absurdum. Just like any other form of participation, it is limited by the principle of the individual guilt and instrumentality; i.e. an action or activity can be considered as participation in a criminal effect only if, from an objective viewpoint, it is causal for this result and if subjectively and by his own determination the perpetration intended to bring about or help to cause this criminal effect by his action. The Court No. II, Case No. 4.prosecution has completely disregarded these two further requisites for participation, and consequently has furnished no pertinent evidence.
The prosecution has also produced no evidence to show that the defendant HOHBERG, be approving of the crimes with which he is charged, actually participated in them (Article II Count 2 c of Control Council Law No. 10) for a general consent does not always constitute an approval within the meaning of the law, but can only be considered as participation in a crime if such approval supports and furthers the chief perpetrators in their criminal intent. None of the documents submitted has proved that this is the case with the defendant HOHBERG. Even if one imputes that from a certain date onwards HOHBERG knew about the individual crimes, no conclusion can be drawn from this that he approved of them, and even less that he intended to help perpetrate them. The fact, as asserted by the prosecution, of his high-ranking position in the WVHA and the resultants activity constitute quite inappropriate proof of approval and intent to help perpetrate the crimes, because HOHBERG - a fact undisputed by the prosecution - was not only neither a member of the SS nor of the party, but he also successfully refused to acquire this membership.
(2) With reference to the prosecution was also unable to prove that the defendant was the author of these crimes, or that they were committed under his special direction or on his orders.
(3) With reference to the prosecution, moreover, could not prove that HOHBERG had any knowledge of the dreadful crimes. But even if he had known about all these crimes, he would have had neither the power nor the possibility to prevent or to check them. Dr. HOHBERG was neither a member of the party nor of the SS and he had no power of authority or command over members of the WVHA.
(4) With reference to, in view of this statement it is obvious that the defendant was never particeps criminis and participant in the crimes listed in counts II and III of the indictment.
For these reasons the charges in counts II and III cannot be Court No. II, Case No. 4.regarded as logically founded in the case of the defendant Dr. Hohberg.
If after the presentation of charges the Tribunal is not absolutely morally convinced of his guilt, then the protection of legal presumption of his innocence is of necessity guaranteed for the defendant. Even if the presentation of evidence by the prosecution results in an equal intimation of guilt and innocence, these results are to be interpreted in the sense of the innocence of the defendant. If the guilt of the defendant Dr. Hohberg has not effectively been proven conclusive, he cannot be sentenced, and the charges should be dismissed as inconclusive.
In accordance with my above statements, the aim of the defendant Dr. Hohberg's defense is now clearly defined. After all the prosecution documents with regard to the defendant Dr. Hohberg have proved inconclusive; it is then my task to deal with each document which the Prosecution considers evidence against the defendant Hohberg. By calling the defendant as witness in his own defense, with the help of witnesses and documents, I will prove, that
1) Dr. Hohberg did not occupy a leading position within the WVHA, but was employed as an economic inspector on the basis of a work contract and not a service contract,
2) his activities were not the cause of the criminal result,
3) the activities perpetrated and those arising from the documents in no way transgressed against an existing criminal regulation,
4) the defendant participated neither as a perpetrator nor as an accomplice in the crimes alleged and actually committed,
5) Dr. Hohberg also did not participate by consent in any crimes.
DR. RAUSCHENBACH (Attorney for the Defendants August Frank and Hans Loerner):
Mr. President, Your Honors, the indictment charges the defend Court No. II, Case No. 4.ant August FRANK with having participated in a mutual agreement or conspiracy for the commission of war crimes and crimes against humanity, according to Control Council Law No. 10, and with having committed such crimes himself.