Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume II, London, HMSO, 1947
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THE BELSEN TRIAL
BRITISH MILITARY COURT, LUNEBURG,
This accused, who was born at Lodz, stated that after periods at various prisons and camps he went with a transport to Belsen, arriving there on the 10th April, 1945. He claimed that the whole of his time at Belsen until the British arrived was spent in Block 19, that he was sick throughout the whole time and that he performed no duties but was attended by an internee doctor. The stories of Iwanow, Kalenikow, Karobkjenkow, Njkrasow, Sulima and Promsky (Footnote 2: See pp. 27, 28, 31, 32 and 34.) were, therefore, untrue. If he had no functions to perform in the camp he had no need to try to keep order and discipline and therefore, to beat anyone or get them out on roll-call. He could not influence the distribution of food.
This witness said that Ostrowski was ill in. Block 19 between arriving at Belsen and the liberation by the British. He had no function but the witness had seen him fetching water to the block because of the lack of a supply.
Burgraf stated that he was born in Poland and was arrested by the Germans in 1940, and was eventually sent to Drütte concentration camp. At this camp he became a foreman, at the end of May, 1944, and his duties were to see that the prisoners worked and that none got away. He left Drütte on the 7th April, and arrived at Belsen about 4 p.m. on the 9th April, 1945. Here he went first to Block 16 and the next day to Block 19. In Block 19 he was employed as an ordinary prisoner, but he was appointed privately by the Block Senior to assist him in the food distribution. He was given the job of stopping prisoners in the block from getting a second helping and of preventing people from other blocks from getting food in Block 19. He did beat people if. he had grounds, but he did not admit that he was a kapo at Drütte or a Stubendienst (Room Orderly) at Belsen.
Burgraf did not know a man called Grabonski and he did not know anything about any incident of the kind related by Marcinkowski. (Footnote 3: See p. 30.) Marcinkowski came to his block and asked for a second helping of soup ; he refused it and then he was told by the deponent that he was a bad Pole because he only looked after other nationalities and not Poles. Marcinkowski became aggressive and Burgraf had to hit him ; there followed a fight in which the deponent was beaten. All of Marcinkowskis and Kobriners (Footnote 4: See p. 29) allegations were untrue.
This witness said that he arrived at Belsen six or seven days before the British came. He was put into Block 19 and was joined a day later by Burgraf. The latter was first of all in the camp police and later an assisting Stubendienst as well. The accused was very keen on securing order, and therefore, had sometimes to beat prisoners, for instance when they tried to push forward for food. It was difficult to keep people in order at Belsen. They were hungry and even a beating with a stick would not keep them back.
A week before he gave evidence in Court he met the deponent Marcinkowski in Luneburg, and asked him why he was accusing Burgraf. The deponent replied that once, when unloading grenades, Burgraf had hit him in the face. Trzos then said : " For one blow you accuse a man ? " and the reply was : " Yes, because apart from that I saw Burgraf hit a man on the arm so that he died ". Marcinkowski did not say who the victim was.
The witness said that whenever he saw Ostrowski in hut 19 he saw him lying on a bed in the room where the other prisoners slept. He never saw the accused taking part in food distribution.
This accused, a Pole, said that he was sent as a prisoner to Bergen-Belsen, where he arrived on the 22nd or 25th March, 1945. He was put in Block No. 12, where the Block Senior was a French Jew. He stayed in this Block until the British came. One day the Camp Senior, who was not Zoddel, came up and said that he must assist the Stubendienst, especially with sweeping the floor. He also helped to serve the food. He was never Stubendienst or Block Senior.
In Hannover, after the liberation of the camp, he was stopped by the deponent Pinkus (Footnote 1: See p 32.) who said to him : " Do you remember me from the camp ? You refused to give me a second helping. I did not starve as a result of it, and now I am going to take my revenge." The accused was arrested on the same day, the 4th July, 1945, by the German police. He was taken to prison and there was forced at the pistol-point by two officers who sounded French to make a statement in the nature of a confession, which was quite untrue.
He admitted that he did beat people. The prisoners at the time were like wild animals, and if food was not being distributed fairly they would have killed the functionaries. He never used a bar or a rubber truncheon. The allegations of Pinkus were untrue. The Russian who was mentioned was punished by two strokes for trying to eat part of a body ; he was later molested by two gipsies who thought the punishment insufficient. Pinkus had asked for two portions of soup and the accused told him that he was entitled to only one ; this was why he had made the allegations against Aurdzieg and " got the others to join him in doing so ". The accounts told by Bialkiewiez and Melamed (Footnote 2: See pp. 24 and 31) were untrue ; the accused said that he was too young and too small to kill people.
This witness said that he never saw Aurdzieg in Belsen getting money or jewels in exchange for food. The accused did beat prisoners who were fit and who tried to take food from others who were unfit, but only with his hand . He was sweeping the floor at the other end of the block when the Block Senior and others killed a Russian on the day the British arrived.
This witness, previously an Unterscharführer in charge of the food stores at Belsen, stated that, according to the records, meat and bread were being sent there even on 1lth April.
Grese never had a whip or a stick at Belsen. Cross-examined by Captain Roberts, the witness said that when standing at Block No. 224 one could not see what was happening in kitchen No. 3 because of trees in the way. The distance between the block and the kitchen was 250 to 300 metres. He knew Francioh as the cook in No. 3 kitchen, who up to the 29th March when the witness left Belsen had worked in the cookhouse for two or three days and had then had six days punishment which started on about the 22nd or 23rd March, 1945. Charlotte Klein did her work well. Muller had to reprimand her because she was too familiar with her bread Kommando and used to give them extra food.
1. Colonel Smiths Closing Address on Behalf of All the Accused (Footnote: Since Colonel Smiths remarks were made on behalf of all the accused no reference is subsequently made in these pages to points at which Counsel defending individual accused adopted, in toto and without further treatment, Colonel Smiths remarks on various questions discussed by him.)
From the outset of the trial the Defence felt the need of the services of an expert on International Law. For instance, they wished to attack the Charge Sheet, but they thought that they could not do so until they had had expert advice.
On the first day of the trial the Court decided that it was desirable to hear the evidence and that they would preserve the right of the Defence to object to the validity of the charge at some suitable time during the proceedings, when the Defence felt competent to deal with the argument in law.
On 27th September, 1945, one of the Defending Officers applied for Colonel H. A. Smith, then Professor of International Law at London University, to be made an additional Defending Officer.
The spokesman of the Defending Officers explained that if this application succeeded, Colonel Smith would become a Defending Officer. At a time to be arranged, he would exercise the right, which the Defence had reserved, and which had been granted, to object to the charges as disclosing no offence. He would also deal with certain other legal matters on behalf of all the accused.
Reference was made by the Judge Advocate to Regulation 6 of the Royal Warrant, according to which the accused was not entitled to object to the President, any member of the Court or the Judge Advocate, or to offer any special plea to the jurisdiction of the Court. He added, however, that he was not clear what the particular objection of the Defence was going to be. The spokesman of the Defence replied that Regulation 6 had been present in their minds, and that the original application was to reserve the right to object to the charge, on the grounds that it disclosed no offence. It was upon Rule of Procedure 32 that the argument would be based. (Footnote: Under Rule 32 of the Rules of Procedure, 1926, which, under Regulation 3 of the Royal Warrant, also applies in Military Courts for the trial of war criminals, the accused, when required to plead to any charge, may object to the charge on the grounds that it does not disclose an offence under the Army Act (in this case under the Royal Warrant) or is not in accordance with the Rules of Procedure)
The Judge Advocate quoted the marginal note to Rule 32 (Objection by Accused to charge) and added that to Rule of Procedure 34, providing for another type of objection, there was a marginal note Special Plea to the Jurisdiction. The wording of Regulation 6 of the Royal Warrant was the same as that in the marginal note to Rule of Procedure 34. There seemed then to be some force in the argument put forward by the Defence and adopted by the Prosecution, that the Defence could attack the charge, but could not attack the jurisdiction of the Court to try war crimes.
The Court decided that it was prepared to hear Colonel Smith as a Defending Officer representing all the accused, provided that the Defending Officers first obtained the sanction of the Convening Officer to this request. An order adding Colonel Smith as an additional Defending Officer was made by the Competent Commander and the former delivered his address immediately after the close of the evidence for the defence.
Colonel Smith began his address by reminding the Court that it was concerned solely to determine whether the accused were guilty or not guilty of a war crime. Any decision that one or more of the accused were not guilty of a war crime under the Law of Nations did not prejudice any future proceedings in which they were charged upon the same or similar evidence in Courts administering other law. Every case which originated in Poland, at Auschwitz, could be tried by a Polish Court as an offence against Polish law. It could also be tried under German law under the control of the Military Government.
Furthermore, no acquittal could in any way limit the responsibility of the German Government. The German Government remained liable, under Article 3 of the Hague Convention No. IV, for all the acts done in its name, and the German Government was responsible for paying the fullest compensation to every non-German subject who had suffered in the concentration camps, or to the dependants of those who had perished.
Expounding his view that the Court administered only International Law, Counsel submitted that the Court was exactly similar to a Prize Court which sat in time of war to decide upon the legality or illegality of captures made by His Majestys ships. The Prize Court was constituted by the Kings Commission, it was a British Court, but did not administer a law laid down
by the King or by Parliament ; it administered the Law of Nations. The present Military Court was constituted by Royal Warrant which laid down the procedure to be followed by the Court, just as the Order in Council laid down the procedure to be followed by the Court of Prize. But neither Court took its law, as distinct from its procedure, from the King or from Parliament. Parliament could intervene, but Parliament did not. The principle involved was made clear in the case of " The Zamora " ( 2 A.C. 77), in which the question in issue was whether the Prize Court was bound by certain rules laid down by Order in Council, and the Privy Council said that the Prize Court could not be bound by an Order in Council so far as the law was concerned ; it could be bound like every other Court by Acts of Parliament, but there were none in issue. So too it was clear that the present Court must use its own judgment independently of the Manual of Military Law or of any other such authority.
The next point which Counsel emphasised was that, generalIy speaking, it was a fundamental principle of all criminal law in civilised countries that a man could not be punished for a crime which was not definitely a crime under the relevant law at the time when the act in question was committed.
No one would disagree with that outside Germany ; indeed, the first law of the Military Government had laid this down : " No charge shall be preferred, no sentence imposed or punishment inflicted for an act, unless such act is expressly made punishable by law in force at the time of its commission." (Footnote: The first sentence of paragraph 7 of Article IV of Military Government Law No. 1)
The argument that International Law was progressive and that, whatever it was according to the books, the Court should if desirable create a new precedent was most dangerous. By a law of 10th May, 1935, Hitler, very impatient with the irritating tendency of the German judges to decide cases according to law, laid it down that people were to be punished, although they committed no offence against the law, if what was called sound public opinion demanded their punishment. That German law meant the abrogation of the rule of law. The Court was in danger of following the same course. It was no function of the Court to ask itself whether the law was a good law or not, or whether it was adequate. Drawing a contrast with the forthcoming trial at Nuremberg, Counsel claimed that nobody pretended that that was to be a trial under the law existing in 1939. It was a special case governed by special international agreement of all the Powers concerned. The present Court, on the other hand, did not rest upon any international agreement ; it was constituted by purely British authority, and its duty was purely to administer the law as it found it at the time of the alleged offence.
Turning to his main argument, Colonel Smith said that he would deal, first with the question of what is and what is not a War Crime, and secondly, with the question of responsibility.
The first problem was what is and what is not a War Crime ? In every crime one had to consider three elements : the Act, the Perpetrator, and the Victim. In each case the Prosecution had to prove the accused guilty in all three respects. In most cases the last two elements did not matter, but there
were some crimes which could be committed by some people only, and certain crimes could only be committed against certain people.
Pursuing his argument along these lines, Counsel asked first what acts constituted war crimes ? He directed the attention of the Court to Chapter XIV of the Manual of Military Law. That chapter was technically not an authority in the sense in which lawyers understood the word ; that is to say, as something which was legally binding. It was not meant for lawyers but for serving officers, as a practical working instruction. He thought, however, that for the most part it was perfectly sound in law. Paragraph 441 of Chapter XIV of the Manual which was substantially the same as the relevant provision in the American Basic Field Manual, Rules of Land Warfare, said: " The term War Crime is the technical expression for such an act of enemy soldiers and enemy civilians as may be visited by punishment on capture of the offenders. It is usual to employ this term, but it must be emphasised that it is used in the technical military and legal sense only, and not in the moral sense." Paragraph 442, which enumerated four classes of war crimes, in sub-paragraph 1, specified : " Violations of the recognised rules of warfare by members of the armed forces."
When one read " Violations of the recognised rules of warfare by members of the armed forces " and then read paragraph 443, which gave a long list of examples of violations, it could be seen that they had only one thing in common ; they all had something to do with war. They were all concerned with military operations, ending with treatment of the inhabitants of occupied territory. Counsel claimed that when the Prosecutor quoted Paragraph 442 (1) he had overlooked the words " by members of the armed forces ".
In its general arrangement, the Manual corresponded, broadly speaking, to the rules of warfare attached to the Hague Convention No. IV Relative to the Laws and Customs of War on Land. The greater part of this chapter was devoted to explaining what could and could not be done in actual operations. If the chapter were read as a whole, it could be seen in the right perspective. The only purpose in making a war crime punishable on the individual was to secure legitimate warfare ; without this terror hanging over individuals there was no certainty that mere international action on the intergovernmental level would secure legitimate warfare.
Colonel Backhouse had quoted paragraph 383 of the Manual, which said : " It is the duty of the occupant to see that the lives of the inhabitants are respected, that their domestic peace and honour are not disturbed, that their religious convictions are not interfered with. . . ." That passage was a paraphrase of Article 46 of the rules attached to the Fourth Hague Convention. He had failed to see that the words " It is the duty of the occupant " refer only to the enemy state. Throughout the Hague Convention the words : " The occupant " were always used in the sense of the enemy state. When it was a question of making a case against individuals these provisions concerning the duties of the occupant were entirely irrelevant. It was the duty of the occupying power to see that everything was done properly in occupied territory ; and if the occupying power failed in that duty it had; under Article 3 of the Convention, to make compensation.
It was easy to misunderstand these sections if one did not bear in mind.
that the primary purpose of the rules was to secure the responsibility of the enemy government, and that it was only in certain exceptional cases, which were carefully defined in the Manual, that responsibility rested upon the individual.
These paragraphs were all bound together by the common principle that all the acts cited were directly connected with the operations of war, and the purpose of the punishment of war crimes was to secure the legitimate conduct of the operations of war. In the present trial, however, Counsel submitted that the Court were dealing with incidents, which certainly occurred in time of war, but which had no logical connection with the war whatever. They were done in accordance with what was begun in peace as a peacetime policy and was intended to be carried on as a permanent and long-term aim until its purpose was achieved, the extermination of the unfortunate races involved. The only difference which the war made to this long-term policy was to increase the geographical area over which it could operate. In what way did it assist the security of the British forces to punish someone who had been guilty of misbehaviour in a German concentration camp ?
The American Manual was in this respect substantially the same as the British, and there seemed to be a substantial general agreement among the various military manuals as to what a war crime was. They all had this in common, that it must be a crime connected with the prosecution of the war in some way or another, either with hostilities which were still proceeding, or with resistance against occupation in a territory under Military Government. Counsel referred to the fact that the Court was, under Article 8 (iii) of the Royal Warrant, instructed to take judicial notice of the Laws and Usages of War. He suggested that what he had been trying to define was in fact what every soldier would regard as a war crime.
When a member of the Court pointed out that in modern total warfare between nations everybody was involved, Colonel Smith replied that the point which he had been explaining was a completely different matter from the distinction between combatant and non-combatant. He agreed that the circumstances of modern war made it much more difficult to draw the old distinction between combatant and non-combatant. It was, however, irrelevant whether the perpetrators were combatant or non-combatant. The important point was that whatever was done in these camps had nothing to do with the operations of the war, because it began long before the war and would have continued long after it. Probably the tasks on which the unfortunate people were employed had something to do with the war effort because all work was connected with the war effort, but the accused were not being tried in connection with tasks performed, but with ill-treatment in the camps, which was entirely another matter.
Colonel Smith dealt next with the positions of the perpetrator and the victim. Concerning the perpetrator, he drew the attention of the Court again to paragraph 442 of Chapter XIV of the British Manual (which was substantially identical with the provision contained in the American Manual) of which the first sub-paragraph was : " Violations of the recognised rules of warfare by members of the armed forces ". Civilians could commit war.
crimes such as espionage, war treason, and marauding, and a civilian could be guilty of the murder of a prisoner of war, but that was all. If he committed any of these acts he would be committing an act of hostility and an illegitimate act of hostility, for which he could be punished under the second sub-paragraph (Footnote: Which specifies that war crimes include, " Illegitimate hostilities in arms committed by individuals who are not members of the armed forces."), but none of the acts charged in the charge sheet before the Court, except possibly one, came under that head.
In one of the few instances charged where the victims were prisoners of war, a British subject who had been captured as a prisoner of war was transferred to the concentration camp. This was a clear international wrong, but the wrong consisted in ceasing to treat him as a prisoner of war, in taking him out of the camp where he was protected by the Geneva Convention, and putting him in a concentration camp where he was exposed to the same treatment as any other inmate. The responsibility rested with those who sent him to Auschwitz or Belsen, but the responsibility of the people at Auschwitz and Belsen was the same in regard to that man as to any other inmate. Counsel did not know whether they even knew he was a prisoner of war. In any case they had no option but to treat him as anyone else. That was why he emphasised the importance of drawing a clear distinction between the responsibility of the German state and the responsibility of the individual in each particular case.
The victims must be Allied nationals. It was no part of the business of the Court to punish crimes committed by one German against another, or to punish Germans for crimes committed against their allies. There were references to Hungarian and Italian victims who were certainly not Allied nationals, even though some of them had changed sides. The words " Allied Nationals " had a definite meaning and related only to those who were nationals of the countries known as the " United Nations ".
Among the victims, Poles were, he thought, in the large majority together with some Czechoslovakians and possibly Austrians. Paragraph 443 of the Manual included among war crimes the ill-treatment of the inhabitants of occupied territory. The British Government regarded Poland and the greater part of Czechoslovakia as territory occupied by the Germans in the sense of the Hague Convention. Yet what were the accused to do ? Should they obey the law of their own country or act upon International Law ?
Counsel submitted that wherever there was a conflict between International Law and the law of a particular country it was the duty of the citizen of that country to obey his national law. For that there was overwhelming legal authority from which he selected two cases. The first was that of Mortensen v Peters heard in 1906 in the Scottish High Court of Justiciary (8 Sessions Cases, 93 : 43 Scottish Law Reports 872). The British Parliament had passed an Act prohibiting certain forms of fishing in the whole of the Moray Firth in Scotland, including a considerable area beyond the recognised limits of territorial waters. A Norwegian fished outside territorial waters, but within the area covered by the Statute. He was convicted in a Scottish Court and the High Court of Justiciary on appeal unanimously held that they were not concerned as to whether the Statute violated Inter
national Law or not. The Law of the land, expressed in an Act of Parliament, was binding on the court and they had to uphold the conviction. Counsel commented that if Parliament inadvertently overstepped the limits of International Law that was a matter not for the individual citizen or judge, or policeman, but for discussion between the governments concerned.
The facts of the second case, Fong Yare Ting v. United States (93,149 United States Reports 698) heard by the Supreme Court, were that Congress passed legislation restricting Chinese immigration in direct violation of a Treaty with China. The decision was that the provisions of an Act of Congress passed in the exercise of its constitutional authority must, if clear and explicit, be upheld by the Courts, even in contravention of the stipulations in an earlier Treaty.
The attitude of the German Courts was exactly the same. The principle that where there was a conflict between International Law and municipal law the citizen was bound to obey his municipal law did not diminish the responsibility of the State towards the offended State for its failure to make its internal law correspond with its international obligations.
Naturally Great Britain did not recognise the annexation of Poland or of the greater part of Czechoslovakia, but by German law, which Kramer and all the other defendants had to consider, part of the western half of Poland was German territory ; it was formally annexed to Germany. The annexation of the western part and the establishment of the so-called " General Government " in the eastern part of German-occupied Poland were both equally permanent ; the Polish State, from the German point of view, had ceased to exist, and German law with minor variations was equally applied to both. Every German in those territories, including Auschwitz which was in the annexed part, was bound by German law. It was no longer temporarily under military occupation in the sense of the Hague Convention. German law was applied by German authority, and the Polish State and Polish nation had ceased to exist.
It might be that the annexation was premature. A precise parallel had occurred during the South African War. In May, 1900, about eight months after the beginning of war, the British Government prematurely published a proclamation annexing permanently the Transvaal and the Orange Free State. Would any officer of the Court, if he had been an officer serving in South Africa at that time, have ventured to say to his superior : " I am afraid the Government has been premature in annexing these countries, and I am afraid I cannot obey your orders " ? They would, suggested Counsel, have had to obey the articles of the proclamation and leave it to the higher authorities to settle the question in the normal way on the international level.
So far as all the accused were concerned, Auschwitz was Germany, and the people in it were German subjects. They were not German citizens because the citizenship in Germany belonged to a privileged class by virtue of the Nuremberg law of 1935, which restricted German citizenship to pure Germans, but they were subject to the full force of German law, and owed allegiance to Germany. This analysis applied also to Czechoslovakia. The dismemberment of Czechoslovakia was piecemeal but the substance of the matter was the same, and from the point of view of any German that country,
except the parts ceded to Hungary or Russia, was German territory either by direct annexation or by a Protectorate ; between which there was only a technical difference.
It might be argued by the Prosecution that by the books or by the authorities the alleged acts were not war crimes, but that it was necessary to bring the law up to date. International Law was not static ; it was continually developing. It had to adapt itself to meet new situations as they arose. Therefore, the Prosecution might say, something which was not a war crime according to the books and according to the precedents of history was about to be a war crime from the time the Court gave its decision.
Counsel admitted that International Law was not static, but submitted that its development always took the form of the application of accepted principles to new situations and never of a reversal of these principles. For instance, at the beginning of the war Britain had made a proclamation which treated almost everything as contraband. Certain neutrals objected and pointed out, quite rightly, that Britain had never gone so far before. The answer which his Majestys Government put forward was also perfectly sound. The principle of contraband, however, argued Counsel, was that the belligerent was entitled to stop and capture any cargoes which were going to help its enemy in carrying on the war, and the technical and physical requirements of modern armed forces had brought practically every article of commerce within the principles of contraband.
Did the same principle apply to the present case ? Could it be said that some circumstance had arisen which compelled the Court to treat as a war crime something which had nothing whatever to do with the war ? The Court was not faced with a new problem. The facts, unfortunately, were not new except in their intensity and atrocity and if it were said that modern International Law ought to punish maladministration in concentration camps in a country conquered, the Court was faced with the fundamental principle that it must not make its law after the event.
Turning to the question of individual and state responsibility, Counsel asked whether the accused could be individually punished for the various things they were accused of doing. In International Law the general principle was that the State and not the individual was responsible. For an example, when a British ship made a capture which was subsequently proved to be illegal and was condemned as such by the Prize Court, the result was not that the captain of the vessel was punished. Instead, the Government must pay compensation for the ship and its cargo. The general principle involved was well established and for obvious reasons. To it there were a few exceptions, of which one was that of the pirate. International Law had always permitted a pirate to be punished by anybody who caught him because he was an enemy of the human race. There were other exceptions created by a large number of treaties which dealt with such things as the opium trade and white slave traffic. Another exception was that of the war criminal, the reason being that in the absence of a right to punish a war criminal on the spot it would be impossible to carry on operations of war in security. No such reason applied to the case now before the Court. It was dealing with these cases only after the war was ended, and nothing that had happened in.
concentration camps had affected British operations in the slightest degree while the war was still in progress.
Counsel next suggested that, in so far as the accused obeyed orders, all these orders were legal. There had been in Germany a most extraordinary situation in which there was not and could not normally be any conflict between a legal executive order and one illegal in the sense that a law did not permit it. In the very first stages of Hitlers regime the Reichstag abandoned all its powers and Hitler became the Executive and Legislator in one. Not only did Hitler himself combine all these powers but he also delegated them to certain persons who were directly responsible to him. The orders of each of these had the force of law within his limits, and among their number was Himmler. By various stages Himmler became head of the police, including the Gestapo and S.S., and in 1943 he became Minister of the Interior. Under the German legal framework he could issue an order which as such had the force of law. That was reinforced by a law of 10th February, 1936, which put the Gestapo and, in fact, all police activities beyond the reach of the law in so far as they were of a political nature. The substance of it was that no action undertaken by the Gestapo or by any police, in so far as it had a political character, was subject to. any control of the courts ; and, Counsel commented, the word " police " had a wide meaning in German. Neither could any police action be questioned by anybody except at the peril of his life. Counsel could not produce a law legalising the gas chambers at Auschwitz, but submitted that all that was needed was an order from Himmler saying : " Have a gas chamber ". That order was a law which every German had to obey in so far as it concerned him. In the case of the average German it was impossible to have the kind of conflict which might arise in England, where a man might question the order of his superior officer and say : " You cannot give me that order under the Army Act."
Kramer had stressed the fact that all decisions on matters of policy, including those regarding the gas chamber for instance, came from above, that he was a mere administrator who carried on the routine work of the camp, and that it was outside his power to decide, for example, who was to be put into the camp or taken out of the camp, for death or for any other purpose. Kramers evidence on this point was not, Counsel believed, contradicted anywhere.
At Auschwitz, Kramer was merely the head of one section of this vast camp. Colonel Smith submitted that from the evidence it seemed that the Kommandant of the camp held a very humble rank indeed, and, a fortiori, that all the people under him were nothing more than the humblest kind of administrators.
Turning to the defence of superior orders, Counsel pointed out that the original text of paragraph 443 of the Manual of Military Law stated : " It is important, however, to note that members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by their government, or by their commander, are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to the other means of obtaining redress which are dealt with in this chapter." In April, 1944, the provision was altered, so as not
to destroy, but greatly to weaken, the defence. Counsel submitted that the original text was right and the amendment wrong, and repeated that the Court was its own judge of law and was not bound to take it from the War Office, the Privy Council, or any other authority. The original text was in accordance with the ordinary experience of the necessities of military discipline and was, moreover, in precise agreement with the American Manual. In paragraph 347 of the American Manual it was said that " Individuals of the armed forces will not be punished for these offences in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may- be punished by the belligerent into whose hands they may fall". It would surely be most unfortunate if the Court were to condemn people, in cases where the defence of superior orders was pleaded, by virtue of an amendment to the British Manual. The text was at variance with the American and other official manuals, as a result of a change introduced in April, 1944, whereas the dates in the Charge Sheet began in October, 1942.