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Trials of War Criminals Before Nuernberg

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Trials of War Criminals Before Nuernberg VIII. JUDGMENT A. Opinion and Judgment of the United States Military Tribunal II UNITED STATES MILITARY TRIBUNALS SITTING IN THE PALACE OF JUSTICE, NUERNBERG, GERMANY AT A SESSION OF MILITARY TRIBUNAL II HELD NOVEMBER 3, 1947 The United States of America -vs- Oswald Pohl, August Frank, Georg Loerner, Heinz Karl Fanslau, OPINION AND Hans Loerner, Josef Vogt, Erwin JUDGMENT Tschentscher, Rudolf Scheide, Max Kiefer, Franz Eirenschmalz, Karl Case No.4 Sommer, Hermann Pook, Hans Baier, Hans Hohberg, Leo Volk, Karl Mummenthey, Hans Bober­ min, and Horst Klein, Defendants. United States Military Tribunal II was established on the 14th day of December 1946 by General Order No. 85 of the United States Military Governor for Germany. It was the se'cond of several Military Tribunals constituted in the United States Zone of Occupation pursuant to Military Government Ordinance No.7, for the trial of offenses defined as crimes by Law No. 10 of the Control Council for Germany. Under the order which established the Tribunals and designated the undersigned as members thereof, Military Tribunal II was ordered to convene at the Palace of Justice, Nuernberg, Germany, and to hear and determine such cases as might be filed by the Chief of Counsel for War Crimes. Telford Taylor, Brigadier General, U. S. Army, Chief of Counsel for War Crimes, on 13 January 1947, filed an indictment a:ainst the defendants herein named, in the Office of the Secretary Gen­ eral of Military Tribunals. A copy of said indictment in the German language was served on ea'ch defendant on 13 January 1947, except for the defendant Georg Loerner, who was served on 14 January 1947. More than thirty days after said indictment was served on each defendant, 958 PURL: https://www.legal-tools.org/doc/84ae05/ Military Tribunal II arraigned the defendants in the Palace of Justice, Nuernberg, Germany, on 10 March 1947. Upon arraign­ ment, each defendant entered a plea of "not guilty" to all the charges preferred against him. Prior to the arraignment, each defendant was assigned German counsel of his own selection and each defendant was represented by his counsel during the arraign­ ment. On 8 April 1947, the prosecution began its presentation of evi­ dence, At the conclusion of the prosecution's 'case in chief the defendants began the presentation of their evidence. The sub­ mission of evidence and the arguments of counsel were concluded on 20 September 1947. The personal statements of all of the de­ fendants were heard on 22 September 1947. During the trial of the case, the Tribunal sat for 101 sessions, (on 101 different dates, including date of arraignment; also, in­ cluding one-half day joint session with all Tribunals in bank). During the trial the prosecution offered 21 witnesses, the Tri­ bunalitself called one witness, and the defendants offered 45 wit­ nesses, including the 18 defendants themselves, a total of 67 wit­ nesses. In addition, the prosecution put in evidence as exhibits, a total of 742 dO'cuments; the defendants put in evidence as ex­ hibits a total of 614 documents, making a grand total of 1356 documents received in evidence. The entire record of the case consists of more than 9,000 pages. Copies of all exhibits offered in evidence by the prosecution in its case in chief were furnished in the German language to the defendants before the same were offered in evidence. During the entire proceedings each defendant was present in Court, except when a defendant was absent for a short time upon his own motion, owing to illness, or other reasons. Counsel for the defendants made numerous applications to the Tribunal for the purpose of procuring the personal attendan'ce of .persons who had made affidavits on behalf of the prosecution. If at all possible, the Tribunal granted such applications and procured the personal attendance of such persons in order that they could be interrogated or cross-examined by defense counsel. The trial was conducted generally along the lines usually fol­ lowed by the trial courts of the various States of the United States, except as to the rules of evidence. In compliance with the provisions of Arti'cle VII of Ordinance No.7, great latitude in presenting evidence was allowed prosecution and defense counsel, even to the extent at times of receiving in evidence certain matters of but scant probative value. The trial was conducted in English and German with an ade­ 959 PURL: https://www.legal-tools.org/doc/84ae05/ quate sound system for conveying either language to all partici­ pants and listeners. All proceedings on the trial were reduced to writing in English and German, and an electrical recording of all proceedings was also made. The Tribunal was most diligent in its efforts to allow each de­ 'fendant to present his defense 'completely, in accordance with the spirit and intent of Military Government Ordinance No.7. Coun­ sel for each defendant was permitted to cross-examine witnesses of the prosecution and other defense witnesses and to offer in evidence all matters deemed of probative value. THE JURISDICTION OF THE TRIBUNAL The jurisdiction of Military Tribunal II is determined by Law No. 10 of the Control Council for Germany. The pertinent parts of this Law with which we are concerned provide as follows: ARTICLE II "1. Each of the following acts is recognized as a crime: " (b) War Crimes. Atrocities or offenses against persons or property constituting violation of the laws or customs of war, including but not limited to, murder, ill treatment or deporta­ tion to slave labor or for any other purpose, of civilian popula­ tion from o'ccupied territory, murder or ill treatment of pris­ oners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns br villages, or devastation not justified by military necessity. "(c) Crimes Against Humanity. Atrocities and offenses, in­ cluding but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in vio­ lation of the domestic laws of the country where perpetrated. "(d) Membership in categories of a criminal group or or­ ganization declared criminal by the International Military Tri­ bunal. "2. Any person without regard to nationality or capacity in which he acted, is deemed to have committed a crime as defined in * * * this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its com­ mission or (e) was a member of any organization or group connected with the commission of any such crime * * *." The indictment in this case 'contains four counts and is filed pursuant to these provisions. 960 PURL: https://www.legal-tools.org/doc/84ae05/ COUNT ONE-THE COMMON DESIGN OR CONSPIRACY The first count of the indictment charges that the defendants, between January 1933 and April 1945, acting pursuant to a com­ mon design, unlawfully, wilfully, and knowingly did conspire and agree together, and with each other, and with divers other per­ sons, to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, Article II. During the trial each of the defendants challenged this count of the indi'ctment, and moved that the same be quashed and stricken from the indictment. The defendants alleged in their motions that under the basic law the Tribunal did not have jurisdiction to try the charge of conspiracy as a separate sub­ stantive offense. The motion to quash was argued by counsel for the prosecution and defense and thereafter the Tribunal granted the motion. In order that this judgment may be complete, the ruling of the Tribunal is incorporated in this judgment: "It is the ruling of this Tribunal that neither the charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war 'Crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense. "Count one of the indictment, in addition to the separate charge of conspiracy, also alleges unlawful participation in the formulation and execution of plans to commit war crimes. and crimes against humanity which actually involved the commis­ sion of such crimes. We, therefore, cannot properly strike the whole of count one from the indictment, but, insofar as count one charges the commission of the alleged crimes of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge. "This ruling must not be construed as limiting the force or effect of Article II, paragraph 2 of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10." Inasmuch as the offenses charged in the unstricken part of . count one are repeated in substance in counts two and three, the pntire first count may for -purposes of this judgment be disre­ 961 PURL: https://www.legal-tools.org/doc/84ae05/ garded without detracting from the contents of the indictment as a whole. COUNTS TWO AND THREE-WAR CRIMES AND CRIMES AGAINST HUMANITY The second and third counts of the indictment charge the com­ mission of war crimes and crimes against humanity.
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