|
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, Part IX Foreword Part I Part II Part III Part IV Part V Part VI Part VII Part VIII Part IX Part X Part XI Part XII
Captain Roberts opened his final address by examining the meaning of the term " concerted action " contained in Regulation 8 (ii) of the Royal Warrant. He pointed out that the word " concert " had been defined in Court as meaning " plan ", " contrive ", " pre-arrange ". It seemed to him quite clear from what the Prosecutor said, when replying to the Defence’s applications for separate trial, that the Prosecution were trying to maintain that common action was the same as concerted action. Counsel quoted two almost consecutive passages in which the Prosecutor had in fact used the p.89 term " common action ", then the term " concerted action " in the same connection. The words " concerted action" must imply two things, some prior planning with a view to a definite end, and full knowledge of the plan and of the end in view by those carrying it out. At Belsen it was clear from the scenes which have been so graphically described by Mr. Le Druillenec and by Brigadier Glyn-Hughes that there was chaos and disorder on a colossal scale, quite the reverse of concerted action. In Counsel’s submission, in order to prove that what occurred at Belsen was the result of concerted action, it would be necessary to show that, when each member of the staff arrived at Belsen, he was told : " Here in this camp we mean to kill many people as painfully as possible. To that end we have introduced typhus into the camp ; to that end, we have, with the co-operation of the Royal Air Force, ensured that prisoners receive little food and no water, to that end we are asking all the other camps in the district to pour as many prisoners as possible into this camp ; will you not become a partner with us in this joint enterprise?" By inference, the Prosecution, claimed Counsel, had said that the mere presence of the accused during the commission of a war crime in itself made them guilty of that crime. Archbold, dealing with principals in the second degree, on page 1429, read, however, as follows : " There must also be a participation in the act ; for even if a man is present whilst a felony is committed, if he takes no part in it and does not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavour to prevent the felony, or failed to apprehend the felon." (Footnote 1: Archbold : Pleading, Evidence and Practice in Criminal Cases, 31st Edition, p. 1429) In Counsel’s submission, this passage relating to felonies under English law must be adopted by the Court when trying war crimes. He asked the Court therefore to consider only the evidence specifically relating to each accused. Counsel pointed out that Dujeu’s deposition said that " although I never myself saw him beat anyone my friends have told me that he often beat them. " He did not say where or when or how he knew Schmitz, and although he mentioned his friends as saying they had often been beaten it seemed to Counsel strange that those friends never came forward themselves to give their own evidence. The draft deposition of Vaclav Jecny (Footnote 2: See p. 28) was no more than hearsay upon hearsay with the added confusion of interpretation. The document alleged that Schmitz was an S.S. man, whereas the evidence of C.S.M. Mallon, of Klippel and of others of the accused (Footnote: See pp. 43, 49 and 51) made it clear that he was never a member of the S.S. Further, from his own past criminal record and from the fact that he was a deserter from the German Army, it was obvious that he would never have been accepted by the S.S. or any other force. None of the Prosecution witnesses had recognised Schmitz in Court. His presence there depended solely upon an alleged photographic identification. Counsel pointed out that in two depositions made by Dr. Bimko, the victim alleged to have been shot by Francioh was a man. In Court, the witness said that the victim was a woman. Asked in cross-examination p.90 why she had changed the sex of the victim, she said that she had always said it was a woman. Counsel suggested that the whole episode was imaginary. In her evidence before the Court, Dr. Bimko admitted that she never knew the name of the accused and she also admitted that she never saw his photograph until after she had made her first statement. How then could she possibly know the name of the person to whom she was referring ? Furthermore, her first affidavit contained a simple statement that Francioh shot a man dead ; according to the second, he had been shot through the stomach ; finally in Court she said that the victim had been shot in the head as well as the stomach. She had had time to think over her story and Counsel suggested that it had occurred to her that perhaps the Court might think it peculiar that a man internee should be shot dead outside the cookhouse in the women’s compound and so the witness had turned the man into a woman in her story. Counsel pointed out that Szafran’s deposition and her evidence in Court (Footnote 1: See p. 13) were conflicting as regards the person or persons who, along with Francioh, were alleged to have committed the shooting mentioned, the number of the victims, the time of the shooting and the direction from which the offence was carried out. Furthermore, if this incident did take place was it not remarkable that no other witnesses had been produced to corroborate it ? Counsel also pointed out discrepancies between Stein’s affidavit and her evidence in Court. In Counsel’s submission all three of these witnesses, who had suffered so long under the harsh hand of their oppressors, could not be otherwise than violently prejudiced against any and all of the accused. In view also of the fact that the sworn evidence given by these witnesses in their depositions differed so materially from that given by them in Court as to amount to a complete contradiction, and that they had given no satisfactory explanation of this, it was necessary to reject their evidence completely. The affidavit of Irene Loffler (Footnote 2: See p. 30) was the only instance in the whole of the evidence against Francioh where the nationality of the victim was mentioned. Counsel pointed out that as Francioh came to Belsen between the 10th and 17th March, a fact which the Prosecution had not challenged, he could not have committed the offences alleged by Loffler and Sunschein.(Footnote 3: See pp. 17 and 30) Furthermore, Sunschein had made no allegation against Francioh in the deposition and her evidence in court was the first mention of an accusation. Maria Neuman (Footnote 4: See p. 31) was a nurse, but it was impossible to find what she was doing in the men’s compound, and why she was in the vicinity of the kitchen ; if she was a nurse it was unlikely that she was a member of the kitchen Kommando. Since her evidence took the form of an affidavit there was no opportunity of questioning her on these points. Kopper’s evidence (Footnote 5: See p. 37) could not be true, since, as Muller had pointed out, the distance between the cookhouse and Block No. 224 was much greater than Kopper had said, and an intervening belt of trees would have prevented the latter from seeing the alleged shooting. p.91 It was clear that the accused was in prison in Belsen for a period of eight to ten days, and exactly when was not material. Counsel explained why so many people had made accusations against Francioh. Like all cookhouse personnel, he was very well known. The cookhouse was the most important part of the lives of these prisoners, and if they went short of rations or did not get any food it was Francioh whom they blamed above anybody else. Was it not strange that of over 70 internees employed in his cookhouse, only one had given any evidence against Francioh ? Francioh had denied that that one was ever in his cook-house at all. Recalling his remarks on Loffler’s evidence, Counsel said that the Prosecution had failed to produce acceptable evidence that Francioh had ever ill-treated any Allied national. 6. Major Brown’s Closing Address on Behalf of Mathes, Calesson and Egersdorf Major Brown submitted that it was unreasonable to suggest that these three men, considering the short time they were at Belsen and their minor capacities and positions, could be found guilty of having acted in a concerted manner to bring about the prevailing conditions. In the case of Mathes and Egersdorf the only evidence produced had been in the form of affidavits, and in fact against Egersdorf there was only one paragraph in one affidavit. Neither of these two men was recognised by any witness brought before the court. The evidence of Pichen, Hempel, Egersdorf and others showed that Mathes did not work in cookhouse No. 2 ; there was sufficient evidence to show that at the times of the alledged incidents he was not in the prisoners’ part of the camp and was employed in the bathhouse. Raschiner (Footnote 1: See p. 32) must be mistaken in his evidence against Calesson. The accused arrived at Belsen on about the 9th or 10th April, according to Hoessler and Schmitz. He travelled by train and he was not in charge of the transport. Zamoski (Footnote 2: See p. 22) had stated in evidence that he was told that his friend was dead by a sister from the hospital, but Dr. Schmidt and Dr. Kurske both stated that there were no sisters employed in the hospital for internees in Belsen. Further, Calesson was not employed in an administrative capacity in a cookhouse. Charlotte Klein had said that Egersdorf never came to the bread store and that she could not remember any such incident as that described by the affidavit accusing Egersdorf. Further, Hungarians were not, in April, 1945, Allied nationals, and at that time a German could not commit a war crime against a Hungarian. 7. Captain Fielden’s Closing Address on Behalf of Pichen, Otto and Stofel Captain Fielden began his remarks by submitting that the three accused whom he represented had not been shown to have displayed agreement with p.92 any plan to ill-treat prisoners at Belsen. They had not, therefore, taken part in " concerted action " and could only be judged according to their own individual acts. He went on to argue that, according to German law, Poland as a sovereign state had ceased to exist and that previous Polish nationals from that part of Poland annexed by Germany were, as a result, German nationals. With very few exceptions, about which his accused might or might not have known, the internees at Belsen came from countries annexed by Germany by conquest. These countries became German nationals. The accused were therefore not guilty, since it was a necessary ingredient of the mens rea, the guilty knowledge, to be proved in establishing the perpetration of a war crime, that the accused must have known, or could reasonably have been expected to know, that the nationality of the victim was that of an Ally. A German could not commit a war crime against another German. A war crime was essentially an act which the victor punished to safeguard the lives of his own nationals or of his allies. Punishment of war criminals was intended not to avenge the alleged crime but to act as a warning and a deterrent to others not to act in a similar way in the future. Counsel pointed out that Litwinska had inspected Pichen in the dock but did not recognise him as being the man concerned in the incident which she had described (Footnote 1: See p. 12) He had enquired whether either of the S.S. men had any physical deformity while her attention was still directed towards this incident. The Court had seen the result of the war wound in Pichen’s left hand, a very obvious disfigurement, yet the witness was unable to say whether or not any of the men whom she connected with the alleged incident had any physical deformity. The incident alleged in the affidavit of Halota (Footnote 2: See p. 27) was supposed to have taken place at the very time when Pichen was on the S.S. men’s parade. Litwinska, who worked continuously in No. 1 kitchen, never knew anything about this incident. There was no proof that the two men whom Pichen shot were dead ; four hours later two bodies were found outside No. 1 kitchen. There was nothing specific in the allegation of Halota to connect Pichen directly with these two bodies. Counsel’s comment on Wajsblum’s allegation (Footnote 3: See p. 35) was that three weeks before the arrival of the British, Pichen was not in No. 1 kitchen. From the 27th March until the 31st March he was in camp No. 2. Dealing with the allegations made against Otto, Counsel said that Dr. Bimko had corroborated the accused’s statement that he was never a Block Leader. Starotska and Kopper had both said that Block 213 was never empty. The former had testified that she would certainly have heard about the incident if a Block Senior of Block 201 had been beaten, because that functionary would have come to her and complained ; Dr. Bimko said that she had never heard of such an incident. Otto was in Auschwitz from October, 1940, until the January of 1945. Yet there was not a single allegation of ill-treatment against Otto in respect of Auschwitz. p.93 Of the evidence against Stofel, Counsel confined his attention to the affidavits of Grohmann and Poppner. The affidavit of Mocks was merely corroborative of that of Poppner. Counsel pointed out the discrepancies between the first two affidavits regarding the number of prisoners in the transport, the circumstances of the alleged shooting and the number shot. These three affidavits were not read over to the deponents before they were sworn. The only evidence as to their truthfulness which the Court had was a statement by the interpreter that the affidavit was a correct translation of the evidence previously given by the deponent. The documents must therefore be suspect. Major Smallwood had said that it was sometimes necessary to make alterations to draft affidavits before swearing. A very striking fact about the allegations made by the Prosecution as regards this march was that there was no mention of any shooting of prisoners at Gross Hehlen. Here the accused, together with other witnesses, confirmed that certain prisoners were shot. The Court had heard the evidence of Brammer, who later became the Burgomaster, who was present when the bodies of three men dressed in concentration camp clothes were disinterred. He and other witnesses from the village said that this was the only party of concentration camp prisoners to go through Gross Hehlen in April of 1945. The only occasion when it was definitely established that prisoners were killed was not mentioned by any of the Prosecution witnesses. Counsel submitted that the deponents knew of this shooting at Gross Hehlen, but because they knew that it was not done by S.S. guards commanded by Stofel they took the opportunity of accounting for the losses which occurred at Gross Hehlen by inventing stories of other shootings on the line of march. Stofel could not be held responsible for the safe keeping of the transport from the time it left the barn where the prisoners were about to be fed until the time he took command again later. Consequently the deaths of the shot prisoners could not be laid at his door. The evidence showed that the officer and the men of the Waffen S.S. unit who were in charge of the prisoners during that time were quite definitely responsible for them. Counsel reminded the Court that Stofel was never a party to any shooting and that there was not a single shooting specifically alleged against him. In fact, Grohmann stated in his affidavit that Stofel did not take part in the shooting. Moreover the accused should not have been included in the charge since he was never in the concentration camp proper before being captured by the Allies. To suggest that he was ever a member of the camp staff was equally erroneous. He had decided to march to Belsen only after a railway station en route had been bombed. 8. Captain Corbally’s Closing Address on Behalf of Barsch, Schreirer, Dorr and Zoddel Captain Corbally submitted that the evidence of Litwinska, Pichen and Forster showed that Barsch was never in kitchen No, 1. The identification of Barsch was carried out by photograph ; there was no evidence that the deponents saw the man at all. That he was actually a medical orderly in No. 2 camp was shown by the testimony of Dr. Schmidt and Dr. Kurzke. (Footnote: See pp. 55 and 56. The accused himself did not appear in the witness box) p.94 Schreirer’s case was that he was never a member of the S.S. Kurowicki’s description of him as " knock-kneed " did not fit the accused. If Kopper’s statement that he was an Oberscharführer in the winter of 1942-1943 was true, the story of Kurowicki and Diamant that he was a Block Leader during that time, in charge of Block 22, became far less probable. There was no evidence and it was most unlikely that the duties of a Block Leader were performed by men of the rank of Oberscharführer. Was it conceivable that a boy of 19 with one year’s service could have attained the rank of Oberscharführer ? It was really significant that Kopper was the only person who identified Schreirer as having been at Belsen. She said that she saw him four times in all, but if she had seen him hundreds of others must also have seen him. Passing to the defence of Dorr, Counsel said that he would like to adopt on his behalf the points made by Captain Fielden in defence of Stofel, particularly concerning the contradictions in the affidavits produced by the Prosecution. Poppner described himself as having been imprisoned for seditious talk. Mocks was also a man who had been held for his association with some sort of illegal organisation. Grohmann was put into a concentration camp for refusing to go to work. These men obviously had prejudice against their jailers in the concentration camp in particular and against the S.S. organisation in general. Furthermore any truthful account of the journey would have mentioned the Gross Hehlen incident. It was during the first night of this journey that Dorr was really in charge. Both Poppner and Grohmann mention killings by a stable on the first night. Counsel claimed however that there were stables later in the journey, but there was certainly no stable at Osterode. He submitted that this vagueness concerning the route was quite inexcusable. The identity of Adolf Linz was unknown and it was impossible to say what reliance should be placed on his statement. He said that shootings were carried out in full view of the other prisoners whilst on the march. Poppner said that they took place in a wood. Counsel suggested that in this case Poppner was more to be relied upon, because it is most unlikely that shootings were carried out in full view of everybody. Passing to the evidence against Zoddel, Counsel said that Glinowieski had not mentioned a stick in his affidavit. On the other hand, in his evidence in Court, he introduced a stick of more than a metre long and as thick as his arm. That seemed to Counsel a stupid and ridiculous exaggeration. Lozowski’s account of the death of the man allegedly beaten by the accused was described by Counsel as hearsay upon hearsay. Counsel’s comment on Zuckermann’s evidence (Footnote: See p. 36) was that it must have been well known throughout the camp that Zoddel was Camp Senior of Lager 1 and not Lager 2. 9. Captain Neave’s Closing Address on Behalf of Schlomowicz, Ike Forster, Ida Forster and Klara Opitz Captain Neave adopted at the outset the remarks of Major Munro on concerted action and collective responsibility. p.95 In the affidavits of Judkovitz and Basch against Schlomowicz, the dates of the alleged beatings were given as March and April, but Counsel pointed out that the accused did not arrive in Belsen until late at night on the 8th April. None of the alleged victims of these supposed beatings were named, nor were their nationalities given ; the reason for that was that these victims were nothing more than figments of the deponents’ over-taxed mental capabilities, due to physical and mental suffering. The evidence for the Defence was continued in the straightforward evidence given by the accused Schlomowicz himself (Footnote 1: See p. 56) which was unshaken by cross-examination, and in the affidavit of Blicblau (Footnote 2: See p. 57) The accused was Block Senior in all for seven days and during five of these days was under British supervision. How could a prisoner be responsible for the well-being of the internees in Block 12, at least 1,000 or 1,100 people ? Apparently the Camp Kommandant himself could not improve the conditions. Block Seniors, according to Captain Sington’s description, were not members of the camp staff; they were prisoners nominated and exploited by the camp staff. Counsel pointed out that Bialek’s evidence regarding Ilse Forster (Footnote 3: See p. 24) provided no date ; Counsel considered it a complete overstatement. His comment on Lippman’s affidavit (Footnote 4: See p. 29) was the same. Regarding Litwinska’s allegation in Court that Ilse Forster had murdered a young girl, Counsel pointed out that she never mentioned this offence in her affidavit ; she had, however, mentioned therein a murder by Ehlert, while in Court she made no allegation against the latter accused. His submission was that neither incident had the slightest foundation in fact whatsoever. The only evidence against Ida Forster was that of Ilona Stein, (Footnote 5: See p. 14) and Counsel considered this to be a fabrication. The accused could not have rushed out of the kitchen ; at the start of the trial she was an extremely ill woman suffering from a disease which could not have developed within the space of her incarceration. Counsel drew the attention of the Court to the fact that, in his second affidavit, Dr. Makar based his general accusation against Opitz on hearsay, whereas in his first he had based it on personal knowledge. (Footnote 6: See p. 30) Again no dates were mentioned. 10. Captain Phillips’s Closing Address on BehaIf of Charlotte Klein, Bothe, Walter and Haschke Captain Phillips reminded the Court that Colonel Smith had submitted that the " old text " of the Manual of Military Law provided a truer statement of the law on the matter of superior orders than did the amended text. In case the Court did not accept that claim, he would submit that even as amended the text in the Manual of Military Law afforded to the accused a defence. The last sentence ran as follows : " The question, however, is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts p.96 which both violate unchallenged rules of warfare and outrage the general sentiment of humanity ". The acts alleged certainly outraged the general sentiment of humanity, but the Prosecution had also to prove that they violated an unchallenged rule of warfare. Even if the Prosecution could prove that the offences alleged were war crimes, they could only be shown to be breaches of one of the less well-established rules of warfare, and a rule of warfare which it would be at least difficult to call an unchallenged rule of warfare. On the Prosecutor’s stating that the relevant rule of warfare was contained in paragraph 383 of chapter XIV of the ManuaI of Military Law, (Footnote: See p. 8) Counsel replied that this was an unchallenged rule under the Convention, but in his submission, it was very much challenged as a rule of warfare, disobedience to which might bring punishment as a war criminal on an individual breaking it. As Colonel Smith had shown, it was a rule the breach of which could only be dealt with as a matter of State as opposed to individual responsibility. It was not sufficient for the Prosecution to say that Belsen constituted a war crime, and that since these people were at Belsen they were war criminals. His four accused had not been shown personally to have had any contact with an Allied national. That fact threw the Prosecution back on to the second alternative open to it, that was to prove indirect responsibility, to satisfy the Court that these accused were at Belsen and that somehow they were responsible for the deaths and the suffering which undoubtedly took place there. The case against three of his accused, Charlotte Klein, Bothe and Walter, rested entirely on affidavit evidence. Turning to the way in which the affidavits before the Court were prepared, he claimed that from Major Smallwood’s evidence it appeared that accusations were invited from the whole number of internees at Belsen. It followed that each deponent would have considerable animus against the accused. Counsel pointed out also that the affidavits were prepared from statements taken by other people, mainly by police officers, and then turned into affidavit form by Major Smallwood, and that, " the accused were never present or really present when these accusations were being made ". Their identification rested solely upon the use of photographs. Since all the photographs, during Major Smallwood’s period, were of persons who had been officials in Belsen, there was no such opportunity of testing a witness’s accuracy as was offered in an identification parade, where there would be other soldiers, of the same rank and dressed in the same way as a suspected person, and it would be possible for witnesses to pick the wrong person. When Major Champion took charge, there was a certain amount of improvement so far as checking the credibility of deponents was concerned, but the same situation continued with regard to photographic identifications. Sergeant Dinsdale, one of the investigating sergeants, had said that it was quite possible for there to have been a mistake in the key on one of these photographs. If that did in fact happen it completely invalidated the whole of an affidavit, but unfortunately, no one knew which affidavit. Sergeant Higgs had said that he used to take photographs round and show them to p.97 prospective deponents, and as soon as a deponent said : " Yes, I recognise No. 3 on photograph No. 4 as having done something or other, but I do not know her name " the witness was told by the sergeant : " Oh, that is so and so ". The deponent was then able to pass on the names and key numbers to other intending deponents. Charlotte Klein’s task as distributor of bread was probably one of the most public in the whole camp. It was worthy of note that not a single Prosecution witness who had come into Court had been able to say a single word against her, and the Prosecution, so far as her own acts went, had to rely on a single paragraph in one affidavit. Grunwald, whose evidence was used against Bothe, was only 17 at the time he made the affidavit, (Footnote 1: See p. 26) and Counsel thought that that fact should be remembered when considering its worth. Charlotte Klein and Gertrude Reinhardt said that the accused Bothe never had a pistol, so far as they knew. The affidavit provided the only evidence that she ever possessed a pistol ; this document also contained a most improper statement, that victims of the accused " fell down, but I cannot say whether they were dead or wounded, but as they were very weak, thin and under-nourished I have no doubt that they died ". Counsel’s comment on Schiferman’s evidence (Footnote 2: See p . 33) was that the accused did work in the wood-yard near No. 4 kitchen, but not in February, 1945, the time of the alleged offence. The accused had denied both this evidence and that of Triszinska.(Footnote 3: See p.35) Hammermasch had made an allegation against Bothe in an affidavit, but had failed to recognise her in Court. Was it not likely that Schiferman and Triszinska also would have failed to recognise her, had they appeared in the witness box ? The question which arose on examining Siwidowa’s evidence against Frieda Walter (Footnote 4: Seep. 34) was as to the amount of force used. Counsel asked how Trieger could be correct in saying that this accused was supervisor of kitchen No. 2 at Belsen and that she used to beat women practically every day, when Walter was only in that kitchen on two days. Regarding Trizsinska’s allegation against Walter, (Footnote 5: Seep. 35) his submission was that it was entirely a question of degree, because the accused had already admitted that she did in fact hit people now and then when it was necessary in the course of her duties ; his submission was that the deponent had exaggerated out of all conscience. Frieda Walter was recognised by one witness, Zylberdukaten, who had nothing to say against her, yet she too worked in a very public place, in one of the cookhouses. Irene Haschke was the only one of his defendants who had been accused by a live witness. Counsel submitted that it was far from clear where the cistern mentioned in Rozenwayg’s evidence (Footnote 6: See p. 16) could have been situated. The accused Haschke never in fact worked in kitchen No. 1. . Examining Stein’s evidence, (Footnote 7: See p. 14) Counsel suggested that Haschke actually was not attempting to beat the people involved at all, and that she was merely trying to drive them away from the cookhouse when they were thronging p.98 round it in the hope of extra food. He regarded this explanation as a sufficient answer also to the evidence of Neiger and Triszinska. (Footnote 1: See pp. 31 and 35) Emphasising that his four accused arrived in Belsen late in February or at the beginning of March, at a time when conditions were completely chaotic, Counsel submitted that they took the only possible course if they occasionally slapped people or boxed their ears. For example, when Charlotte Klein was distributing the bread, it is quite obvious that her bread cart would have been besieged by hungry internees, and the only thing for her to do under those circumstances was to drive them away. To have acted according to the Regulations and to have reported the matter on every occasion would have been a complete waste of time. Before the Court convicted the four accused under Regulation 8 (ii) of the Royal Warrant it was invited to look at their position against the background of conditions at Belsen as described by Brigadier Glyn-Hughes, Dr. Wiesner and Dr. Lea. (Footnote 2: See pp. 9, 18 and 3) At the time when his accused arrived at Belsen, there was already typhus in the camp and there were already coming into the camp people who were dead, dying or half starved and requiring special feeding. He accepted all that Captain Roberts had said about concerted action. When interpreting the meaning of Regulation 8 (ii), it should be borne in mind that the Warrant did not and could not set out to alter the substantive law. It only set out to deal with procedural matters. Even Regulation 1 merely stated what body of law was to be applied in such trials, namely, the Laws and Usages of War ; it did not set out anywhere either to add to or to alter the content of the Laws and Usages of War. Regulation 8 (ii) was purely a procedural Regulation, because the question whether or not the accused could be found responsible for the conditions at Belsen was entirely and fundamentally a question of common sense. It was impossible to hold a man responsible for any state of affairs unless he had an opportunity to control that state of affairs. Nobody could say that his accused had, or could have had, the slightest control over conditions at Belsen. Counsel reminded the Court of the passage in the Manual of Military Law, which stated that in every trial, " the utmost care must be taken to confine the punishment to the actual offender ". (Footnote 3: Paragraph 449 [Trial of war criminals. Punishments] of Chapter XIV [Laws and Usages of War on Land] of the Manual.) 11. Captain Boyd’s Closing Address on Behalf of F&t, Sauer and Lisiewitz Dealing with Berg’s evidence against Fiest, (Footnote 4: See p. 24) Captain Boyd claimed that several witnesses had said that working parties in fact were not taken from women’s compound No. 2, where the accused worked. For instance, Volkenrath had said that she could not remember any working parties being taken from women’s compound No. 2. In any case, what this affidavit quite clearly meant was that as the party was marched down by Fiest, when it got to the gate somebody else " came out ". If it meant that Fiest did the kicking then the words " came out " were quite meaningless. Even if two meanings were possible on this affidavit, then the Court must accept that most beneficial to the defence. p.99 To people standing without watches, roll-calls such as those referred to by Neiger would seem very long ; but Counsel reminded the Court that during the time roll-calls were going on the S.S. themselves had to be on parade. Furthermore, the roll-calls were quite clearly carried out on orders and, if necessary, he would rely upon the defence of superior orders. Lobauer alone accused Fiest of beating. She however had withdrawn in the witness box much of what she had said in her affidavit, thus proving herself a thoroughly unreliable witness. An Overseer called Ault worked in kitchen No. 3 and was very like Sauer. (Footnote 1: See pp. 46, 58 and 60) Since the accusation was based on photographic identification, Counsel thought it quite clear that the incident related should in fact have been told of Overseer Ault and not of Sauer, who never worked in either kitchen No. 1 or No. 3. Characterising Sunschein as a very honest witness, Counsel said that he regarded Lasker’s evidence (Footnote 2: See p. 22) as " embroidered "; the former would not have said that Sauer beat people only with her hand if in fact Sauer had used a whip. The Court should accept Sauer’s story that she beat people only with her hand and only for stealing. In view of Dr. Klein’s evidence regarding Hilde Lisiewitz’s health, (Footnote 3: See p. 41) Counsel thought that the latter would not be in a fit state to carry out the feats alleged in the affidavit of Dora Almaleh. (Footnote 4: See p. 23.) The deposition of Siwidowa (Footnote 5: See p. 34) did not say which cookhouse Lisiewitz was said to have supervised. Lisiewitz was for some days in cookhouse No. 1, in the peeling department, but at one time or another every Overseer in Belsen must have been in the cookhouse. Ehlert, while critical of many other accused, had spoken favourably of Lisiewitz. On the question of the general conditions at Belsen, Counsel adopted what had been said by Captain Phillips. (Footnote 6: See pp. 96 and 98) The Prosecution had to prove either some positive act creating these conditions or some deliberate neglect to do something which could have been done and which would have improved conditions. It was not simply a question of carelessness or inefficiency. Lisiewitz was only in the position of an N.C.O. in charge of fatigue parties. She could have had no power at all to improve conditions, which must have existed when she arrived there at about the beginning of March. Fiest and Sauer had no real power, as their duties were only those of policewomen ; the real person responsible for the compound was the Camp Leader, a man called Klipp. Against all three there was evidence of their hitting prisoners. In Counsel’s submission it was clear that that was done for a purpose, generally because of stealing, and sometimes as Fiest stated because she lost her temper, which was very understandable. It was equally clear that it was entirely unpremeditated. It was impossible to report to the higher authorities all breaches of camp rules ; conditions were chaotic, and these people had p.100 to do something to keep what order they could. The alleged striking of prisoners was necessary to keep order and was not done because the accused had made a plan with anybody else to ill-treat all the prisoners. Foreword Part I Part II Part III Part IV Part V Part VI Part VII Part VIII Part IX Part X Part XI Part XII |