Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume II, London, HMSO, 1947
THE BELSEN TRIAL
BRITISH MILITARY COURT, LUNEBURG,
Captain Munro began by submitting that these three accused could have played no part at all in alleviating the conditions that existed at Belsen. They were respectively a prisoner of the Gestapo, forced to serve as a functionary, an Overseer in cookhouse No. 2 and a sort of second in command. They worked hard and were among the few people at Belsen who stayed in the camp all the time. They took the same chance of dying as any internee did.
His accused spent the whole of their days in No. 1 camp, surrounded by prisoners numbering four divisions of British infantry. Those people were hungry, and the ones who were not hungry were very sick. The beatings performed by the three accused were solely corrective beatings and not sadistic beatings. Every witness who had come before the Court had, suggested Counsel, grossly exaggerated the nature of those beatings.
Turning to the evidence against Roth, Counsel pointed out that, under cross-examination, Helene Klein had said that she did not sleep in Block 199, but with a friend in the clothing store. If she lived in another block she would not know who was the night guard. (Footnote 1: seep. 20) She said first that the beating took place in the block in the night because Friedman wanted to go to the lavatory ; then that it was three oclock in the morning when they assembled for Kommandos. She further stated that she did not see Friedman die at all, but that she was only told about it the next day. The evidence of Ehlert and Ilse Lothe on the time when they last saw Ida Friedman showed that the accused could not have killed her. (Footnote 2: See pp. 46 and 47-8).
Counsels comment on Rosenzweigs allegation against Roth (Footnote 3: See p. 33) was that obviously the latter, a farm girl and a prisoner for five years, in charge of a block of 800 people, had no idea of how to deal with them. Counsel felt sure that Roth had intentionally beaten people, but not with the savagery which the affidavit suggested. He submitted that in very difficult conditions Roth did all she could.
Charlotte Klein said that Hempel went to her for more bread, and when she could she gave Hempel more bread. Hempel was one of the people in Belsen who did positive things for the internees. She was in the position of one Overseer with 43 internee women and 18 men under her, cooking for 17,000 people every day for fourteen to sixteen hours a day. After reviewing the evidence against Hempel, Counsel reminded the Court that the accused had said, " I did beat people. I beat them because they were stealing", and that these people were stealing food which was precious to cookhouse No. 2, food which was invaluable for the feeding of the 17,000 people.
Counsel submitted that the allegation of Stempler that Hahnel had whipped girls in the bath-house in February, 1945, was disproved by the
evidence of Pichen, Volkenrath, Ilse Forster and Sauer, as regards both the time when the accused was in Belsen and her place of work there. (Footnote 1: See pp. 45, 53, 58 and 61. The accused Hahnel did not go into the witness box.)
Lieutenant Jedrzejowicz began by pointing out that all his clients were Poles. They were alleged to have committed crimes against Poles and other nationals, and in this respect, in his submission, no war crime had been committed.
Counsel expressed the opinion that the affidavits against Starotska often contained contradictory statements ; for instance Szparago Rozaljas said : " She killed and tortured 1,000 women ", and then later said : " She killed thousands of women ". Further, somebody who accused a person of killing 1,000 or more people should be able to name at least one specific instance and give a name, a date and description of how it happened. Mass murders were alleged against the accused in two affidavits, yet not by any of the 13 witnesses who had appeared in Court and recognised her ; these witnesses would surely have known had she been, guilty of such acts.
Rozalja, Synowska and Szafran had said that the accused carried out selections. The Court must realise that it was unlikely, if not impossible, for a Block Senior or a Camp Senior to make her own selections for the gas chamber. Obviously Starotska, as a Block Senior and later as a Camp Senior, was present during selections at Auschwitz No. 2. She had to be present ; she could not avoid these selections. The Court had heard Dr. Klein say : " The selecting was done exclusively by doctors ". Why had none of the Prosecution witnesses or deponents ever mentioned a specific selection made by Starotska as a Block Senior or as a Camp Senior, or by any Block Senior or Camp Senior of any nationality ? On the other hand, the witnesses for the defence, Wojciechowska, Janicka, Komsta and Nowogrodzka, had all said that because she took part in selections she was able to do a considerable amount of good for the prisoners. The second and third of these witnesses had been in the same block, Block 7, at the same time as Synowska was, and the accused was Block Senior of the block ; their evidence contradicted that of Synowska.
Counsel asked why no other witnesses could corroborate the allegations of Szparago Rozalja; (Footnote 2: See p. 32) if the accused had committed offences on such a great scale ?
Synowskas allegation that the accused used to push girls against the electrified wire and kill them in this way was belied by the evidence of Sompolinski, Litwinska and the accused regarding the wiring of the camp. (Foonote 3: See pp. 12, 21 and 63)
Regarding the question whether the accused favoured Christian Poles, Counsel pointed out that the Jewish witnesses made far weaker allegations against her in Court than the Polish witnesses. The witnesses against her who appeared in Court never said that they were Polish Jews or Polish nationals of the Jewish religion ; they always said they were Jews from Poland. This
circumstance might have given the impression that the accused treated the Poles better than the Jews or other nationalities.
Turning to the case of Kopper, Counsel said that Guterman, Synger, Koppel and Furstenberg, while alleging beatings against her, never said specifically that the beatings took place while she was the Block Senior of Block 224. Counsel asked the Court to accept that these beatings took place in Block 205 only, and in this respect to believe the testimony of the accused. (Footnote 1: See p. 63)
Guterman in cross-examination had said that about 30 women were dying daily in the block. How then could Guterman know that Fischer died three weeks after the alleged incident (Footnote 2: See p. 19) as a result of kneeling ? She might well have died from typhus or from starvation or any disease. As to the allegations of Guterman and Synger (Footnote 3: See p. 19) regarding the girl who fainted on parade, there was a very material discrepancy in these two statements about the same incident, on the point of what happened to the girl after her fainting.
Koppels story, according to which Kopper beat her, and Furstenbergs seemed the same. (Footnote 4: See pp. 19 and 26) In that case the latter was alleging that the accused killed Koppel, who had, on the contrary, appeared as a witness in the trial. If Koppels account of the woman who died immediately after a beating by the accused were correct, why was it not mentioned by Synger, Guterman and Furstenberg, who all lived in the same block as Koppel ?
The defence of Kopper was that after a hard time at Ravensbruck and at Auschwitz, after a period of nearly four years, she arrived at Belsen and became a Block Senior, a position for which she was not suited. Once she was given a less responsible job, that of camp policewoman, she changed considerably. She was a very nervous person and would probably lose her temper when something went wrong, and would start hitting the girls with her belt or her hand without causing any serious injury.
The Prosecution alleged that Polanski had committed offences while an assistant Block Senior in Block 12, but Schlomowicz and Sompolinski had denied that he had held any such position. The Defence had shown that he was a good and kind man to his fellow prisoners both before he came to Belsen and after the liberation. Why should he have changed while in Belsen? There must be either a malicious invention on the part of the deponent or an error of identity.
Ostrowskis explanation that he was in bed in Block 19 the whole time between his arrival at Belsen and the British liberation, and that he had no function whatever and did not even help with the food distribution, was corroborated by Salomon and Burgraf. The various Prosecution witnesses disagreed among themselves as to the nature of the accuseds function in the camp. The statements of Promsky and Kalenikow (Footnote 5: See pp. 28 and 32) were of very little value to the Court, because they were not checked, sworn or signed by the deponents, and it was quite possible that the reconstruction of the rough notes taken by the sergeant and the interpreter might have been very inaccurate.
Counsel expressed the opinion that the allegation made against Burgraf by Marcinkowski (Footnote 1: See p. 30) was refuted by the evidence of the accused and Trzos (Footnote 2: See pp. 67 and 68) as to the formers position in the camp.
The alleged murder of 50 prisoners during food distribution just before the liberation of the camp must surely have been remembered by the inmates of Block 19 if it did in fact occur. Yet not a single allegation was made against the accused Burgraf by an inmate of his own Block 19. It was made by someone who was in Block 21, Marcinkowski. According to Trzos, the deponent had only mentioned the alleged killing after describing how he himself had been struck by the accused. In Counsels submission, if the Court were to accept that a witness was reliable, they must accept that when he related his evidence he would first relate the more serious matter. Further, it was improbable that a person would die as a result of having been hit on the arm, especially, as stated, that he would die at once.
The evidence, for instance, of Polanski had proved that Aurdzieg had never been a Block Senior of Block 12 ; therefore he never was, as Pinkus described him, an Overseer. With regard to the question of gold and valuables, Counsel stated that none of the witnesses had said that they saw any transaction performed in Block 12 by anybody. They never saw any gold during the time they were in Belsen. None of them had said that the accused Aurdzieg beat or ill-treated prisoners. The allegation that he together with the other functionaries of the block killed a Russian had been explained by the accused and by his witness, Andrzejewski. (Footnote 3: See pp. 68 and 69). The Block Senior Schlomowicz had also said that never, while he was in the block, was any beating which resulted in death committed by the accused Aurdzieg.
The accused Aurdzieg had been interrogated by a French officer, Captain Pipien, through his sergeant interpreter, Le Fort. The latter had stated, in an affidavit, " I hereby certify that the deponent himself and with his own hand signed this written confession." That Aurdzieg never denied, but he denied that he signed it freely and voluntarily. The confession of the accused bore a great resemblance to the statement of Pinkus, made previously.
Of the accused whom Counsel represented, those who were functionaries in Belsen were Kopper, Burgraf and Aurdzieg. All three arrived at the end of March or in the first days of April. Could they be responsible for the conditions which existed in the camp or in the block ? Could they control them and could they really help the prisoners to survive ?
Polanski and Ostrowski, though alleged to be functionaries at Belsen, denied it, and witnesses also denied that they were functionaries. As regards Starotskas taking the part of Camp Senior, the accused had explained, " If I wanted to help the prisoners I had to gain the confidence of the German authorities ; . . . that was the prime object of my holding the position."
While not wanting to examine at length the question of concerted action, Counsel concluded his address with two general statements. In the first place, he submitted that collective responsibility could not be so interpreted as to make subordinates responsible for the acts of their superiors. Secondly
he pointed out that it was accepted in all civilised countries that one was allowed to disobey a superior order if the carrying out of this order would entail the commission of a crime because, in all civilised countries, he expected to get protection. In a concentration camp there was no such protection, least of all for prisoners acting as functionaries.
Colonel Backhouse expressed the opinion that it would be improper to arrive at any finding in the absence of the accused Gura, who had been away from the Court for so long. He asked the Court to report to the Convening Officer that they were unable to arrive at a finding in his case because he was ill and away from Court, and that it was not practicable to adjourn the case. That would leave the Convening Officer free to take any course he might consider proper. (Footnote: See p. 146)
He suggested that the Court should make a special finding regarding four of the alleged victims names appearing on the Charge Sheet. Anna Kis and Sara Kohn were both mentioned in the affidavits of a certain Jenner, and as Jenner was not in the dock his affidavits were not put in. He continued : " They were general affidavits, and by that time we were trying to cut out as many of the affidavits as we could to save time, unless they raised something particular. " It was obvious from the evidence that Glinovjechy was at Auschwitz and not Belsen, and that his name had been put into the wrong charge by mistake. Maria Konatkevicz had not been mentioned because the relevant affidavit dealt with events after the period set out in the charges. The Court could not find the accused guilty in respect of the fate of those four victims because the evidence was not put before the Court for one reason or another.
Colonel Backhouse next made a general examination of the law involved in the case. He devoted himself largely to the task of answering the points raised by Colonel Smith.
He submitted that Allied nationals could only come into German hands, in an internment or concentration camp, in one of three ways. They could be prisoners of war, and the evidence showed that a number of the internees, particularly Russians, were prisoners of war ; or they could be Allied nationals who were living in Germany and were interned, or inhabitants of occupied countries overrun during the war by Germany.
If they were prisoners of war, it was quite sufficient to quote the following passage from Article 46 of the Geneva Convention of 1929, relative to the Treatment of Prisoners of War : " All forms of corporal punishment, confinement in premises not lighted by daylight and, in general, all forms of cruelty whatsoever, are prohibited."
A civilian who was interned was entitled to precisely the same treatment as a prisoner of war. That was not a new doctrine ; there existed a ruling
of the Judge Advocate General in January, 1918, on the subject, and far from being an arbitrary ruling made with a view to oppressing the Germans, it was a ruling which operated against the British Government in respect of Germans interned in England, making it clear that they had precisely the same rights and were to be treated in precisely the same way as prisoners of war. This ruling was based upon the case of Exparte Liebmann ( 1916 K.B., page 268) where it was laid down that : " An enemy alien subject resident in the United Kingdom who is in the opinion of the executive government a person hostile to the welfare of that country and on that account interned may properly be described as a prisoner of war, although not a combatant or a spy." The Judge Advocate Generals comment on the case was that although the annex to the Hague Convention did not expressly deal with or provide for such persons, as their position did not appear to have been contemplated in 1907, they were, nevertheless, entitled to be treated as prisoners of war.
The inhabitants of occupied territories were protected by Article 46 of the Hague Convention which stated : " Family honour and rights, individual life, and private property, as well as religious convictions and worship, must be respected." The Manual of Military Law, in chapter XIV, paragraph 383, stated : " It is the duty of the occupant to see that the lives of inhabitants are respected, that their domestic peace and honour are not disturbed, that their religious convictions are not interfered with, and generally that duress, unlawful and criminal attacks on their persons, and felonious actions as regards their property, are just as punishable as in times of peace."
The Prosecutor denied making any mistake when quoting paragraph 442 of the Manual. (Footnote: See pp. 8 and 72) He left out the words " members of the armed forces ", because they were quite immaterial. No one surely could suggest that if a member of the armed forces were put in charge of prisoners and ill-treated them he was guilty of a war crime, and that if, because of the man-power situation, a civilian was put in charge of them instead, and ill-treated them, he was not guilty of a war crime. The whole difficulty arose from the fact that when the Hague Convention was written a military body like the S.S. was not thought of, and it was taken for granted that only a member of the armed forces would guard prisoners of war and would, further, be in a position to ill-treat the inhabitants of occupied countries. The point was, however, completely academic, because Kramer had said : " We were members of the Wehrmacht ; as soon as war broke out we became members of the Wehrmacht and I am a member of the armed forces of Germany ". The S.S. in the dock were on their own evidence members of the armed forces of Germany.
He agreed that a crime would not be a war crime if it was not connected with war. Where he and Colonel Smith were in complete disagreement was on the question of what was meant by " connected with war ". The latter Counsel had argued on the basis that the object of the ill-treatment must be connected with the war effort, whereas, he had argued, this ill-treatment of Jews was going on before the war and would have continued afterwards. The Prosecutor pointed out, however, that what was being complained of in the present trial was ill-treatment of Allied nationals during time of war.
Such ill-treatment was not happening before the war and that would not have gone on after the war. Allied nationals were entitled to protection by their Government. The Court was not, of course, concerned with what Germans did to Germans during the war, but it was concerned with the protection of Allied subjects from German ill-treatment during the war. The mere fact that those people came into the hands of the Germans and were interned or imprisoned by them, and that their countries were occupied by the Germans as a result of operations of war, was quite sufficient to turn that ill-treatment into a war crime ; it was precisely the type of war crime that was provided against by the Convention. On any other interpretation the Conventions and Regulations themselves would become nonsense. When a prisoner of war was ill-treated by one of his guards that, of course, did not help the war effort, yet if that person was an Allied subject who had come into his guards hands by operations of war, then if the latter ill-treated him it was a war crime of precisely the type against which the Convention provided.
In any case, was it not quite obvious that the actual internment in Auschwitz or Belsen was done with a view to further a war effort ? There were two reasons for interning those people who were so treated. One was the deliberate destruction of the Jewish race. The avowed object of that was to strengthen the home front and to prevent what happened in the previous war. The destruction of Poland was another reason, and that again was an avowed war aim. The gathering into Germany of persons from every country that Germany overran was done with the deliberate intention of weakening that particular country in its effort to resist Germany.
Colonel Smith had suggested that the crime involved was the moving of the prisoner of war from the prisoner-of-war camp into the concentration camp and that anything which happened to him thereafter was thereby excused. The Prosecutor found it difficult to accept the suggestion that if a man were ill-treated in a prisoner-of-war camp that was a war crime, but if the ill-treatment took place outside in the street or in a concentration camp it was not.
Colonel Smiths next point was that the only purpose of the punishment of war crimes was to secure legitimate means of warfare. No extension of the application of a principle was involved in the charges, however, since the offences were, as Counsel had shown, provided against under existing International Law.
Colonel Smith had claimed that the State and not the individual was responsible in International Law, but he admitted that a war crime was one of the exception to that rule. Colonel Backhouse stated that under the Versailles Treaty, which was still in force, it was laid down that : " The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the law and customs of war ". The Leipzig trials also recognised that if an individual broke one of the laws and customs of war he could properly be tried and in fact he was in some cases convicted by the Germans for breaches of international agreements.
Colonel Smiths argument on the question of whether the victims were Allied nationals applied, of course, to Poles and certain Czechs only. It had.
no application, even if accepted, to persons of Russian, French, Dutch, Belgian, Greek, and other nationalities ; the Germans made no pretence of annexing their countries. Again, before it was possible to annex a country the war must be ended. Whilst the war was still going on the citizens of the country occupied were entitled to protection under the Convention. The gassing of a Hungarian transport started at about the same time as D-Day. Surely Germany did not think the war was already over on D-Day, in 1944 ? If it were sufficient for a belligerent to say merely " We have annexed this country ", then the Convention could never apply at all. In actual fact the Germans never did such an absurd thing. The only part of Poland which the Germans ever declared annexed was a small piece of Silesia which was taken from them in the previous war by the Poles, and which they said was German. That was the only part they did intend to incorporate into the Reich ; the rest of Poland was merely occupied territory. Even if the accused did not know that the victims were Allied nationals, he would still not agree with Colonel Smiths argument. By analogy, if a man assaulted a policeman he could not afterwards say that he did not know the victim was a policeman.
The Prosecutor pointed out that a charge did not become bad if it did not contain the names of the victims. In the Peleus Trial (Footnote 1: No. 1 of Vol. I of this series) and in the Llandovery Castle Case, (Footnote 2: Annual Digest of Public International Law Cases, 1923-1924, Case No. 235 ; Cmd. (1921) 1422, p. 45) for instance, the victims had not been specifically mentioned in the charges against the accused involved. The charge was required by the Regulations to fall within the Field General Court Martial procedure, and the Field General Court Martial rules stated the charge could be drawn in any ordinary language. (Footnote 3: Rule of Procedure 108 : ". . . No formal charge-sheet shall be necessary . . ,") It was quite obvious that the accused were not prejudiced in the present case.
Various Defending Officers had set up the plea of superior orders but, with the exception of the gas chamber, the accused had all said that ill-treatment of prisoners was forbidden and said : " We did it against orders ". So far as the gas chamber was concerned the accused said they were acting on superior orders ; but in order to succeed, Counsel submitted, the accused must satisfy the Court that they did not know that what they were doing was wrong. Not one of them had dared to go into the witness box and say that. Could the Court believe that the persons involved did not know that what they were doing was wrong and contrary to every law and custom of war ?
It had been suggested that their acts were legal under German law. Colonel Smith had put the proposition to the Court that a Decree gave absolute power to the competent authority, so that any order that Himmler gave automatically became law. An examination of the Decree showed that it did nothing of the kind. What the Decree in fact did was simply to say that cases against certain privileged bodies would be tried not in the ordinary Courts but in the Courts of those privileged bodies. It gave the S.S., amongst other people, immunity from trial in an ordinary Court for matters which they considered to be matters of politics. Therefore, if the crime against German Law which they committed was one which Himmler himself was condoning, in all probability they would be absolved from
responsibility. That was the most that could be said. Could these acts be said to be done under cover of authority when they were kept secret even in Germany, and when any records that were kept were covered by the words " Special Treatment " ? In his submission, there was no pretence of legality about this procedure. Everyone in the camps knew that the daily murders were wrong.
Colonel Smith had queried the provision in the Manual regarding superior orders and had tried to set up that the original text is the right one. That amendment in the Manual was made, however, to bring it in line with almost every writer on the subject, including Professor Lauterpacht and Professor Brierly. It was in fact made in consultation with the American Judge Advocate General, and it was in line with American law as set forth in America, as opposed to the American Manual, which had not yet been amended.(Footnote: That is to say, the United States text was still unamended at the time of the British Amendment, April, 1944. Paragraph 347 of the United States Basic Field Manual FM. 27-l0 (Rules of Lund Warfare) used to provide that individuals of the Armed Forces would not be punished for war crimes if they were committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they were committed by their troops, might be punished by the belligerent into whose hands they fell. By Change No. 1 to the Rules of Land Warfare, dated 15th November, 1944, the sentences quoted above from paragraph 347 have been omitted and the following provisions have been added to paragraph 345 :
On the question of collective responsibility which was raised by Captain Phillips, the Prosecutor claimed that all the accused were parties to a general conspiracy (alternative expressions were " concerted action", " joint action", or " unit ") to ill-treat the persons who were under their care. Of course, he did not suggest, for instance, that the girl Hahnel was in the dock because she once hit a girl in a bath with a whip. If the Prosecutions case was right she was there because she was one of a body of people who were habitually ill-treating the persons under their care, and the fact that she hit somebody in a bathroom was merely brought in to show that she was taking an active part, however small, in the conspiracy.
It would undoubtedly be open to the Court to convict her in respect of specific actions even if they do not feel that she was a party to a more general ill-treatment. The extent of the punishment she should suffer would be an entirely different matter. If they thought she was guilty of an isolated incident of ill-treatment, or was merely a party to a very limited ill-treatment, naturally they would not want to visit any great wrath upon her ; whereas if, on the other hand, they thought she was a party to the extent of wholeheartedly joining in the conspiracy then the Court would probably take a different view.
A number of accused had been asked whether they had ever planned with others to commit ill-treatment. Proof of a conspiracy was nearly always, however, a matter of inference, to be deduced from the criminal actions of the parties to the deed, and a conspiracy might very well arise between
persons who had never seen each other and had never corresponded together. " It is not necessary for the persons to have concocted the scheme the subject of the charge nor that they should have originated it. If a conspiracy is formed and a person joins in afterwards he is equally guilty as the original conspirators," it was stated in the case of Rex v. Murphy ; (Footnote: 8 C and P.,p.311) and it had also been held that these principles applied even though the indictment did not specifically allege a conspiracy, if the acts amounted to a conspiracy. What was suggested was that, finding themselves in the S.S., and finding a conspiracy to ill-treat the persons who were interned, some of the minor figures in the dock joined in, assisted in, and were parties to that conspiracy.
been suggested by the Defence that it was not permissible to convict
unless the person concerned was " in control of the
situation". That was a very facile argument because it was quite
easy to say that if one of the accused had not marched victims on the
road to the gas chamber somebody else would have marched them. If all
the girls had refused to march them on the parade they would never
have been taken to the gas chamber. It was by that collective
disclaimer of responsibility that the crime was committed. In a
similar way, the actions of any one man in a mob lynching might be
said to have no effect on the lynching, but if the whole mob did not
do the lynching the victim would not die. On the question of the gas
chamber selections, Klein had said : " My only part in the matter
was to say this man is fit, this man is unfit, so I am not
responsible." An S.S. man had said :
Regarding the question of the Polish prisoners in the dock, Counsel said that on the face of it, it might be a little absurd to suggest that it is a war crime for Poles to beat other Poles in concentration camps, but surely, if these people, whether to save themselves from being beaten or from whatever motive, accepted positions of responsibility in the camp under the S.S. and beat and ill-treated prisoners, acting on behalf of the S.S., they had identified themselves with the Germans, and were as guilty as the S.S. themselves. The same applied to Schlomowicz, who is not a Pole but an Austrian. The following paragraphs of an article by Professor Brierly summed up the position on the question of what was a war crime :