TRIAL OF ULRICH GREIFELT AND OTHERS

UNITED STATES MILITARY TRIBUNAL, NURBMBERG,

10TH OCTOBER, 1947-10TH MARCH, 1948

Part VI

Part I  Part II  Part III Part IV  Part V  Part VI

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One of the most interesting trials in this field is the so-called “ Pohl Case,” which opened on 10th March and closed on 3rd November, 1947.(Footnote 1: Case 4, tried by United States Military Tribunal No. 2. See Vol. VII, pp. 49 and 63.) The Tribunal dealt with 18 defendants, all of whom but one were members of the S.S. They were top ranking officials in the “ S.S. Economic and Administrative Main Office,” known as “ W.V.H.A.” (Wirtschafts-und Verwaltungshauptampt), which was one of the twelve main departments of the S.S. and to which was added the main office of the Inspector of Concentration Camps. The principal accused, Pohl, was Chief of the W.V.H.A. and as such, the administrative head of the entire S.S. organisation. Himmler was his only superior. The other accused were heads of the various branches of the W.V.H.A.

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The S.S. Economic and Administrative Main Office was in charge of running concentration camps and a large number of industrial, manufacturing and service enterprises in Germany and occupied countries. It was responsible for all financial matters of the S.S., for the supply of food, clothing, housing, sanitation and medical care of inmates and S.S. personnel of concentration camps ; for the construction and maintenance of houses, buildings and structures of the S.S., the German police and of the concentration and prisoners of war camps ; and for the order, discipline and regulation of the lives of the concentration camps inmates. In addition it was charged with the supply of slave labour of the concentration camp inmates to public and private employers throughout Germany and the occupied countries, as well as to enterprises under its own management.

On account of such relationship with concentration camps and slave labour, all the accused were charged with taking part in the commission of “ atrocities and offences against persons and property, including plunder of public and private property, murder, extermination, enslavement, deportation, unlawful imprisonment, torture, persecutions on political, racial and religious grounds, ill-treatment of, and other inhumane and unlawful acts against thousands of persons, including German civilians, nationals of other countries, and prisoners of war.” The accused were thus tried as chief instruments of the criminal policy conducted by the heads of the Nazi Party and State against the millions who were ill-treated or perished in concentration camps or as slave labour.

In addition to the above offences, all the accused except one were charged under a separate count for the crime of membership in an organisation declared criminal by the International Military Tribunal, and were all indicted as falling within the categories covered by the Tribunals’ declaration. When summing up the various counts of the indictment, including that of membership, the United States Military Tribunal made a general ruling regarding the evidence and discarded entirely the principle of the presumption of guilt in the following terms :

“ Under the American concept of liberty, and under the Anglo-Saxon system of jurisprudence, every defendant in a criminal case is presumed to be innocent until the prosecution by credible and competent proof has shown his guilt to the exclusion of every reasonable doubt. This presumption of innocence follows him throughout the trial until such degree of proof has been adduced. Beyond a reasonable doubt, does not mean beyond a vain, imaginary or fanciful doubt, but means that the defendant’s guilt must be fully proved to a moral certainty, before he is condemned.”

It will be seen that the Tribunal applied this ruling to all individual cases of membership and lay the burden of proof concerning tests of personal guilt on the prosecution. This illustrates the fact previously mentioned that the International Military Tribunal did not decide the question of the burden of proof, and thus made possible the elaboration of a differing jurisprudence in this respect. The striking feature in this trial is that the above ruling was applied by an American court, notwithstanding the fact that rules issued by the American authorities for other courts are founded on the principle that a declaration of criminality reverses the onus of proof and frees the

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prosecution from submitting evidence in respect of the personal guilt of the members. (Footnote 1: See History of the United Nations War Crimes Commission and the Development of the Laws of War, pp. 322, and 331-332.) In view of the fact that no rules to this effect were issued with particular regard to the United States Military Tribunals at Nuremberg, and that the International Military Tribunal had left the field clear, the above ruling was within the powers of the United States Tribunal and the legal basis of its jurisprudence cannot be challenged.

The ruling was applied with particular clearness in respect of two defendants whom the Tribunal acquitted from all charges.

In one case the accused, Rudolf Scheide, was Chief of a department of the W.V.H.A. as technical expert in the field of motor transport, and was in charge of all the transport service of the W.V.H.A. The prosecution contended that, in connection with his office and the large field of tasks carried out by him with the various branches of the W.V.H.A., the accused “ gained knowledge of how the concentration camps were operated, how the prisoners were treated, who they were, and what happened to them.” It also contended that he “ knew that the concentration camps were engaged in the slave labour programme, and that he furnished transportation in this programme with knowledge of its use.” And finally, that he “ knew of the mass extermination programme carried out by the concentration camps ” and provided the department concerned in this programme “ with transportation, spare parts, tyres, gasoline, and other necessary commodities for carrying out this programme.” The accused denied knowledge of all these crimes and the Tribunal came to the following conclusion :

“ After weighing all the evidence in the case, and bearing in mind the presumption of innocence of the defendant, and the burden of proof on the part of the prosecution, the Tribunal must agree with the contentions of the defendant. “(Footnote 2: Italics introduced.)

The Tribunal then found the accused not guilty on the following grounds :

“ The defendant admits membership in the S.S., an organisation declared criminal by the Judgment of the International Military Tribunal, but the prosecution has offered no evidence that the defendant had knowledge of the criminal activities of the S.S., or that he remained in the said organisation after September, 1939, with such knowledge or that he engaged in criminal activities while a member of such organisation. “(Footnote 2: Italics introduced.)

According to the ruling of the International Military Tribunal, it will be remembered that proof in respect of the last test (personal commission of crimes) would appear always to lie on the prosecution, whereas nothing stands in the way of subjecting the test of knowledge to a reversal of the burden of proof as advocated by the United States Chief Prosecutor and as followed up in a number of United States rules.

In the same case the accused, Leo Volk, was head of a legal department of the W.V.H.A. As with Scheide, the prosecution contended that he had knowledge of the criminal purposes and acts of the W.V.H.A. on account of his office and duties. The accused’s defence was that he had no such knowledge, but merely prepared notarial documents, carried on law suits and generally gave legal advice. The Tribunal was satisfied that the accused

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was a “ vital figure ” in his department and refuted the defence thesis that, in order to convict him, proof should be submitted that, if he knew of the criminal purposes or acts of his organisation, he must have had the power to prevent crimes from being committed. The Tribunal declared :

“ It is enough if the accused took a consenting part in the commission of a crime against humanity. If he was part of an organisation actively engaged in crimes against humanity, was aware of those crimes and yet voluntarily remained a part of the organisation, lending his own professional efforts to the continuance and furtherance of those crimes, he is responsible under the law.”

However, continued the Tribunal, the defence contends that the accused

“ was not aware of any crimes and it is this which the prosecution must establish before it can ask for a conviction,“ (Footnote 1: Italics in the last quotation introduced) meaning that the accused had knowledge of the crimes.

The Tribunal found that no such evidence had been submitted, and that the accused did not voluntarily join the organisation but was drafted from a private firm he personally did not want to leave for the W.V.H.A. It also established that, in the W.V.H.A. he had a special status in that he was employed under special contract. In view of these facts the Tribunal decided that the accused’s guilt for membership had not been established “ beyond reasonable doubt ” and while convicting him on other counts, it acquitted him from this particular charge.

Two more defendants were acquitted from the charge of membership. One of them was head of the Office of Audits in the W.V.H.A. from 1942 until the end of the war. Here again the Tribunal established lack of evidence on the part of the prosecution regarding the relevant tests and concluded in the following terms :

“ Perhaps in the case of a person who had power or authority to either ,start or stop a criminal act, knowledge of the fact coupled with silence could be interpreted as consent. But Vogt was not such a person. His office in W.V.H.A. carried no such authority, even by the most strained implication. He did not furnish men, money, materials or victims for the concentration camps. He had no part in determining what the inmates should eat or wear, or how hard they did work or how they were treated. The most that can be said is that he knew that there were concentration camps and that there were inmates. His work cannot be considered any more criminal than that of the bookkeeper who made up the reports which he audited, the typist who transcribed the audit report or the mail clerk who forwarded the audit to the Supreme Auditing Court.”

As a consequence the accused was acquitted on all counts. Leo Volk was acquitted for not belonging to any of the classes or categories of S.S. members included in the declaration of the International Military Tribunal.

In other instances the Tribunal applied extensively circumstantial evidence to admit proof of guilty knowledge as charged by the prosecution.

Defendant August Frank was Chief Supply Officer of the Waffen-S.S. and Death Head Units under the defendant Pohl, and became Pohl’s Chief

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Deputy of the W.V.H.A. In view of his position and the field of his competence and duties the Tribunal came to the following conclusions :

“ . . . . anyone who worked, as Frank did, for eight years in the higher councils of that agency cannot successfully claim that he was separated from its political activities and purposes.”

From that the Tribunal further concluded that he “ could not have been ignorant ” or that he “ must have known ” of the purposes as well as of a series of criminal acts described by the Tribunal. He was found guilty of “ participating and taking a consenting part ” in the “ slave labour programme . . . and in the looting of property of Jewish civilians for the eastern occupied territories.” In this connection he was also convicted for the crime of membership.

Another defendant, Erwin Tschentscher, was chief of a department of W.V.H.A. dealing with supplies of food for the Waffen-S.S. and the police in Germany. He contended in defence that his only link with concentration camps was to furnish food for the guards, and declined any knowledge of concentration camp crimes and slave labour practices. On the face of his position and duties, as well as of the evidence that he paid visits to several concentration camps, the Tribunal expressed its findings in the following terms :

“ The Tribunal concludes that the defendant Tschentscher was not a mere employee of the W.V.H.A., but held a responsible and authoritative position in this organisation. He was Chief of Amt-B-I, and in this position had large tasks in the procurement and allocation of food. Conceding that he was not directly responsible for furnishing food to the inmates of concentration camps, he was responsible for furnishing the food to those charged with guarding these unfortunate people. . . . . . 

“ The Tribunal is fully convinced that he knew of the desperate condition of the inmates, under what conditions they were forced to work, the insufficiency of their food and clothing, the malnutrition and exhaustion that ensued, and that thousands of deaths resulted from such treatment. His many visits to the various concentration camps gave him a full insight into these matters.

“ The Tribunal finds without hesitation that Tschentscher was thoroughly familiar with the slave labor program in the concentration camps, and took an important part in promoting and administering it.”

For these reasons the accused was found guilty both of actual participation in war crimes and crimes against humanity and of the crime of membership.

In all other cases the Tribunal had either clear evidence of the actual participation of the accused in specific criminal acts, such as in the case of Pohl himself, or else sufficient evidence to draw conclusions as to their guilty knowledge, and on this basis pronounced sentences of guilt for the crime of membership.

The trial of Friedrich Flick and five other defendants opened on 20th April and closed on 22nd December, 1947.(Footnote 1: Case 5, tried by United States Military Tribunal No. 4. See Vol. IX of these Reports, pp. I-59.) It was one of several trials

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commonly designated as “ industrial cases,” for the defendants were not officials of the Nazi State, but private citizens engaged as business men in German heavy industry. Flick owned a steel corporation controlling or affiliated with iron and coal mining companies. The other defendants were his assistants or associates. They were charged inter alia with taking part in, and being members of, groups or organisations connected : Count I : with “ enslavement and deportation to slave labour ” of concentration camp inmates and other civilians, as well as with the “ use of prisoners of war ” in work prohibited by international law (armament production, etc.), Count II : with “ plunder of public and private property, spoliation, and other offences against property ” in occupied territories ; Count III : with “ persecutions on racial, religious and political grounds ” ; Count IV : with “ murders, brutalities, cruelties, tortures, atrocities and other inhumane acts committed principally by the S.S.”

Although in the majority of counts the defendants were described as members of organisations “ connected ” with criminal activities, only one accused, Steinbrinck, was member of an organisation declared criminal by the International Military Tribunal (the S.S.) ; he was consequently the only defendant specifically indicted for the crime of membership. In addition, under Count IV, both he and the chief defendant, Flick, were accused of offences closely connected with membership of the S.S. They were charged with having contributed, as members of a private group called the “ Keppler Circle ” or “ Friends of Himmler,” large sums to the financing of the S.S. “ with knowledge of its criminal activities,” and to have thereby been accomplices in war crimes and crimes against humanity perpetrated by the S.S. It is important to note that the charge was not, and could not be, that they were guilty of membership in the “ Keppler Circle,” for this circle was not included in the organisations declared criminal by the International Military Tribunal. Neither was “ knowledge ” of the S.S. criminal activities mentioned in this instance as a test for the crime of membership, but only as a basis for charging the two defendants as accomplices or accessories to the crimes committed by the S.S. This part of the indictment proved, however, to be relevant for deciding the case of Steinbrinck, as it contained facts furnishing evidence regarding his guilty knowledge as a member of the S.S.

As in the “ Pohl Case,” the United States Military Tribunal which tried Flick, Steinbrinck and others rejected the thesis of presumption of guilt and took the view that the burden of proof concerning the tests of criminality for membership lay on the prosecution. So, in the case of Steinbrinck it declared the following :

“ Relying upon the International Military Tribunal’s findings . . . the prosecution took the position that it devolved upon Steinbrinck to show that he remained a member without knowledge of such criminal activities. As we have stated in the beginning the burden was all the time upon the prosecution.”

The Tribunal decided the case on the basis of this rule. In assessing the tests relevant for determining Steinbrinck’s individual guilt, the Tribunal declared that there was no evidence showing that he was personally implicated in the commission of crimes perpetrated by the S.S.

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and that no contention had been made to the effect that he was drafted on a compulsory basis. It therefore determined that his personal guilt was to be established solely on the basis of the test of knowledge of the criminal nature of the S.S.

As mentioned above, the Tribunal’s findings on this test were made on the basis of the accused’s activities as member of the “ Keppler Circle.” This circle was composed of about 30-40 bankers, industrialists and S.S. leaders, including the S.S. Reichsfuehrer Himmler himself. Steinbrinck was a member from the beginning, which dated as far back as 1932. The circle was originally formed by Hitler’s economic adviser Keppler, who gave it his name, with a view to inducing industrialists and other top business men to support the Nazi programme and regime. The circle had regular informal meetings and its members made regular donations upon Himmler’s request, amounting to a total of 1 million Reichsmarks annually. Himmler’s explanation for such requests was that he needed funds for “ his cultural hobbies and for emergencies for which he had no appropriations.” Steinbrinck contributed very large sums of money every year. The Tribunal was satisfied that the meetings of the group did not have “ the sinister purposes ascribed to them by the prosecution,” and found “ nothing criminal or immoral in the defendant’s attendance at these meetings.” It was also satisfied that, in the beginning and particularly before the war, “ the criminal character of the S.S. was not generally known.” It came, however, to the conclusion that “ later ” it “ must have been known ” ; “ that during the war and particularly after the beginning of the Russian campaign ” there was not “ much cultural activity in Germany ” ; and that consequently members of the group could not “ reasonably believe ” Himmler was spending their money for other purposes than to maintain the S.S. The Tribunal found “ no doubt ” that “ some of this money ” went to the S.S., and declared “ immaterial whether it was spent on salaries or for lethal gas.” From this it concluded that Steinbrinck was guilty of the crime of membership. The Tribunal’s findings in this respect were, thus, entirely based on circumstantial evidence and were, from a practical point of view, founded on premises equivalent to that of a presumption of guilt.

The trial ended in the conviction of Flick, Steinbrinck and one more defendant, whereas the other three were acquitted. In passing sentence upon Flick and Steinbrinck the Tribunal admitted circumstances in mitigation of the punishments, and pronounced sentences not exceeding 7 years’ imprisonment.

In the trial of the leading personnel of “ I.G. Farben Industrie “(Footnote 1: see Vol. x, pp. 1-68.) the world-wide German chemical concern, three of the twenty-three accused were charged with the crime of membership.

The trial opened on 14th August, 1947, and closed on 29th July, 1948. The three accused involved on the count of membership were Christian Schneider, Heinrich Buetefisch, and Erich von der Heyde.

Schneider, a chemist, held the post of member of the Board of Directors (Vorstand) and of the Central Committee of I.G. Farben. He also held

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other important posts, including that of head of Farben’s Central Personnel Department. He was a member of the Nazi Party and a supporting or “ sponsoring ” member of the S.S. He was charged with membership on account of this latter link with the S.S.

Buetefisch, a Doctor of Engineering (Physical-Chemical), was also a member of Farben’s Vorstand, and in addition to other posts, was chairman or member of control groups of many Farben concerns in the fields of chemicals, explosives, mining, synthetics, etc. He was a member of the Nazi Party and of the “ Keppler Circle,” referred to above. He was also a Lieutenant-Colonel of the S.S., and was charged with membership of the S.S.

Von der Heyde, a Doctor in Agriculture, served Farben’s Economic Policy Department, and Counter-Intelligence Branch. He was a member of the Nazi Party and of the Reitersturm (Riding Unit), S.S. The prosecution contended that the accused was an active member of the Allgemeine (General) S.S.

None of the above three accused was found guilty of the charge and they were consequently all acquitted on the count of membership.

In the instance of Schneider the Tribunal found that the accused was only a “ sponsoring ” member of the S.S. and that as such his only contact with the S.S. “ arose out of the payment of dues.” The Tribunal referred to the judgment delivered in the trial of Altstoetter and agreed with the latter’s finding that a sponsoring membership was not included in the declaration of the International Military Tribunal concerning the S.S.

In the instance of Buetefisch the Tribunal dealt with the accused’s position as a member of the Himmler Circle of Friends, and established that at about the same time the accused had become an honorary member of the S.S. The findings were in part similar to those of the trial of Flick. The Himmler Circle of Friends, said the Tribunal, “ played no part in formulating any of the policies of the Third Reich.” It was also found that no evidence had been produced to the effect that the accused “had knowledge of the criminal purposes or acts of the S.S. at the time he became or during the period he remained a member.” Finally the Tribunal established that the accused could not be regarded as a member of the S.S. within the terms of the International Military Tribunal’s declaration. After stressing that the defendant had only been an honorary member of the S.S. the Tribunal, however, did not find this to be sufficient and decisive in itself :

“ We do not attach any special significance to the fact that the defendant was classified as an honorary member, but we are of the opinion that the defendant’s status in the organisation must be determined by a consideration of his actual relationship to it and its relationship to him.”

It was on the basis of such “ actual relationship ” that the Tribunal made its decision. It established that the accused had “ consistently refused to procure a uniform in the face of positive demands that he do so ” ; and that in addition he made “ other significant reservations ” which he “ imposed and consistently maintained when and after he accepted honorary membership.”

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In the instance of von der Heyde the Tribunal’s findings included the following statement :

“ Taking into account that the only definitely established affiliation of the defendant was with the non-culpable Riding Unit of the S.S., and that the evidence tending to show that he subsequently became a member of the General S.S. arises wholly out of the innocuous incidents connected with his efforts to obtain a marriage license, we must conclude that the guilt of the defendant von der Heyde . . . has not been satisfactorily established.”

Several trials conducted by United States General Military Government Courts in Germany concern cases involving, in addition to the S.S., other Nazi organisations declared criminal by the International Military Tribunal. They are the Leadership Corps of the Nazi Party, and the Gestapo (State Secret Policy) and S.D. (Sicherheitsdienst-Security Police).

In the conclusion of the declaration concerning the Leadership Corps the International Military Tribunal stated the following :

“ The Leadership Corps was used for purposes which were criminal under the Charter and involved the Germanization of incorporated territory, the persecution of the Jews, the administration of the slave labour programme, and the mistreatment of prisoners of war: The defendants Bormann and Sauckel who were members of this organisation, were among those who used it for these purposes. The Gauleiters, the Kreisleiters, and the Ortsgruppenleiters participated, to one degree or another, in these criminal programmes. The Reichsleitung as the staff organisation of the Party is also responsible for these criminal programmes as well as the heads of the various staff organisations of the Gauleiters and Kreisleiters. The decision of the Tribunal on these staff organisations includes only the Amtsleiters who were heads of offices on the staffs of the Reichsleitung, Gauleitung and Kreisleitung. With respect to other staff officers and party organisations attached to the Leadership Corps other than the Amtsleiters referred to above, the Tribunal will follow the suggestion of the Prosecution in excluding them from the declaration.

“ The Tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Leadership Corps holding the positions enumerated in the preceding paragraph who became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organisation in the commission of such crimes. The basis of this finding is the participation of the organisation in war crimes and crimes against humanity connected with the war ; the group declared criminal cannot include, therefore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1st September, 1939.”

The conclusion of the declaration made in respect of the Gestapo and S.D. read as follows :

“ The Gestapo and S.D. were used for purposes which were criminal under the Charter involving the persecution and extermination of the

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Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labour programme and the mistreatment and murder of prisoners of war. The defendant Kaltenbrunner, who was a member of this organisation, was among those who used it for these purposes. In dealing with the Gestapo the Tribunal includes all executive and administrative officials of Amt IV of the RSHA or concerned with Gestapo administration in other departments of the RSHA and all local Gestapo officials serving both inside and outside of Germany, including the members of the Frontier Police, but not including the members of the Border and Customs Protection or the Secret Field Police, except such members as have been specified above. At the suggestion of the Prosecution the Tribunal does not include persons employed by the Gestapo for purely clerical, stenographic, janitorial or similar unofficial routine tasks. In dealing with the S.D. the Tribunal includes Amts III, Vl and VII of, the RSHA and all other members of the S.D. including all local representatives and agents, honorary or otherwise, whether they were technically members of the S.S. or not.(Footnote 1: The RSHA or Reichssicherheitshauptamt was the top co-ordinating body of the Gestapo. The “ Amts ” referred to were its various departments.)

“ The tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Gestapo and S.D. holding the positions enumerated in the preceding paragraph who became or remained members of the organisation with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organisation in the commission of such crimes. The basis for this finding is the participation of the organisation in war crimes and crimes against humanity connected with the war ; this group declared criminal cannot include, therefore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1st September 1939.”

In the following three trials accused persons were convicted for membership of one or more of the above organisations. All trials were held by the United States General Military Government Court at Dachau.

In the trial of Hans Seibold and two others, held on 5th-7th March, 1947, the defendants were implicated in the killing of a member of the United States Army who, as was stated in the judgment, “ was a surrendered and unarmed prisoner of war in the custody of the then German Reich.” Two of the accused were members of the Leadership Corps of the Nazi Party, one being a Kreisleiter and the other an Ortsgruppenleiter. The third was a member of the Allgemeine S.S. Their position and ranks were within the classes of members liable to punishment under the declarations of the International Military Tribunal.

They were found guilty of a war crime and of the crime of membership in organisations declared criminal by the International Military Tribunal. One was sentenced to death and the other two to life imprisonment each.

In a similar trial held on 13th February, 1947, the accused, Erwin Schienkiewitz, was tried for killing two unknown members of the United States Army under circumstances identical with those of the previous case.

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The accused was a member of the S.S., and was convicted to death for a war crime and the crime of membership in the S.S.

Finally, in a trial held from 10th January to 21st March, 1947, there were 23 accused with one Jurgen Stroop at their head. They were implicated in the ill-treatment, including death, beatings, and torture, of “ members of armed forces then at war with the then German Reich, who were surrendered and unarmed prisoners of war in the custody of the then Germany Reich.” Some were members of the S.S., and some others of the Leadership Corps, or of the Gestapo and the SD. Thirteen were found guilty of both war crimes and the crime of membership, and were sentenced to punishments ranging from the death penalty to various terms of imprisonment.

3. RELEVANCE OF SOME DEFENCE PLEAS

(i) The Plea concerning ” Annexed Territories ”

One of the pleas of the defence was to the effect that the accused bore no penal responsibility for acts committed in territories which were annexed and incorporated in the German Reich. Such was, for instance, the case with Polish territories outside the Government General, as well as with Alsace and Lorraine and parts of Yugoslav Slovenia (Southern Carinthia).

The argument was used by several defence counsel, and the following quotation from the plea of Meyer-Hetling’s counsel may be cited as a striking illustration :

“. . . the Polish State was completely subjugated and dissolved following the events of 1st September, 1939. The war between Germany and Poland, which started on 1st September, 1939, led to the complete military collapse of Poland within a few weeks, as I have already explained. The Polish Army was dispersed. Its greater part was captured by German troops. . . . The Polish Government resigned. A new government was only gradually formed abroad. On 17th September, 1939, Soviet forces marched into Poland, occupied the parts of Poland not yet in German hands and took the remainder of the Polish army still there prisoner. Thus the entire Polish territory was occupied and its army completely annihilated. The material prerequisites for a declaration of annexation had thus been created. . . . According to recognised practice in international law, the material prerequisites for subjugation or conquest of a state do not include the dissolution of the government and the abdication of the sovereign, after all the territorial and sovereign influence has been eliminated. If the government and sovereign flee to other countries, their activity abroad in connection with the admissibility of the annexation is of no importance under international law, even if they should still be recognised diplomatically by individual states. . . . International law, true to its tendency to make established facts legally valid, sees in the actual cessation of state power during the war the authority to eliminate the legal status of a state as well. On the other hand, the possibility of restoring the extinct state power by future events such as the victory of an ally is not taken into consideration at all.

“ It must be deduced therefrom that the 5th partition of Poland-the events of September, 1939, may be seen in that light-was an annexation in accordance with international law.”

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As the prosecution stressed, “ the burden of this argument was that since these territories were absorbed by the Reich, the laws and customs of war no longer applied and hence no war crimes could have been committed.”

This plea was rejected by the Tribunal on the ground that a unilateral decision taken by a State to incorporate parts of foreign territories does not in itself give title for recognition of the annexation by other States. The Tribunal’s finding in the matter was couched in the following terms :

“ It has been urged and argued at length that certain territories, such as the incorporated Eastern territories of Poland and parts of Luxembourg, Alsace and Lorraine, were incorporated into the Reich and thereby became a part of Germany during the war. Hence it is urged, the laws and customs of war are inapplicable to these territories.

“ Any purported annexation of territories of a foreign nation, occurring during the time of war and while opposing armies were still in the field, we held to be invalid and ineffective. Such territory never became a part of the Reich but merely remained under German military control by virtue of belligerent occupancy. Moreover, if it could be said that the attempted incorporation of territories into the Reich had a legal basis, it would avail the defendants nothing, for actions similar to those occurring in the areas attempted to be annexed also occurred in areas which Germany never professed to have incorporated into the Reich.”

The above finding was in fact a confirmation of the stand taken previously by the International Military Tribunal in the case of the Nazi major war criminals, in a passage already quoted in an earlier Volume in this series.(Footnote 1:See Vol. II, p. 151.)

The same view was taken by another U.S. Military Tribunal at Nuremberg, in the case against Josef Altstoetter and 15 others.(Footnote 2: See Vol. VI. pp. 32, 52, 62 and 91-3.)

From these pronouncements it clearly appears that the status of a territory under enemy occupation remains unaltered and maintains its true nature of occupied land whatever the occupying Power does with the aim of giving different legal status. From this it follows that, given the circumstances of belligerent occupation, an occupying Power cannot claim the right to impose its domestic laws and thereby make legal acts which are otherwise forbidden by international law.

(ii) The Plea of Superior Orders.

In this case, as in many others, the Tribunal confirmed the rule that to commit acts, which are criminal, upon superior orders is not in itself a basis for exculpating the perpetrator, but may be taken, at the court’s discretion, as a mitigating circumstance.

In applying this rule in the case of the defendants, most of whom had pleaded not guilty on the grounds of orders issued by their superiors, the Tribunal implemented Art. II 4 (b) of Law No. 10, which reads :

“ The fact that any person acted pursuant to the order of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”

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The finding of the Tribunal with regard to the relevance of the above rule in the case of the accused was couched in the following terms :

“ Another defense urged is that, in performing certain functions, the defendants were acting under superior orders. By Control Council Law No. 10, it is expressly provided that superior orders shall not free a defendant from responsibility for crime but this fact may be considered in mitigation of punishment. We have, in passing judgment on all the defendants, given due consideration to this defence as it might affect the punishment of the individual defendants. It is our view in this respect, that justice demands a fair consideration of the fact that each and all defendants occupied a subordinate position, being answerable to Himmler, and several of the defendants were even subordinate to other defendants at bar.”

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