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Part I

Notes on the Case

The Court and the Legal Basis of the Trial
The Nature of the Offences
Criminal Organizations

Membership of the NSDAP
Concentration Camp as a Criminal Organization

Genocide

B. Notes on the Case

1. THE COURT AND THE LEGAL BASIS OF THE TRIAL

The Court was the Supreme National Tribunal for trial of War Criminals, the jurisdiction and powers of which have been defined in the Decrees of 22^nd January and 17^th October, 1946, and in. the Decree of 11^th April, 1947.(See The Annex Part II, Section 1, p. 52, of this volume.)  The case was tried in Warsaw. The substantive law applied was that laid down in the Decree of 31^st August, 1944, concerning the punishment qf Fascist-Hitlerite criminals guilty of murder and ill-treatment of the civilian population and of prisoners of war, and the punishment of traitors to the Polish Nation, as promulgated in the consolidated text of this Decree on 11^th December, 1946.(Ibid, Part I, pp. 82-91.)

2. THE NATURE OF THE OFFENCES

The acts committed by the accused were crimes in violation of Article 1 para. 1, and Articles 2 and 4 of the Decree mentioned above, the text of which is given in the Annex to this volume.(Ibid.) These acts were also in violation of the corresponding provisions of the Polish Civil Criminal Code of 1932 concerning murder, grievous bodily harm, torture and ill-treatment, infringement of personal liberty and appropriation of property (Articles 225, 235, . 236, 246, 259 and 278). The Prosecution submitted that the crimes committed against the Soviet prisoners of war were also in violation of the Geneva Convention relative to prisoners of war.

Apart from the provisions of the above Decree already indicated, the Tribunal based its Judgment on Article 5 para. 1 of the said Decree concerning superior orders and duress, the plea of which the Tribunal rejected, and on Article 7 concerning additional penalties. The Tribunal also applied the relevant provisions of the Criminal Code dealing with the basic principles of responsibility for criminal acts.

3. CRIMINAL ORGANIZATIONS

1. The Indictment which, it is presumed, was drafted before the Polish law on membership of criminal organizations had been enacted, charged the accused Hoess with the membership of the German National Socialist Worker’s Party (NSDAP) and of the SS, and described both these organizations as criminal, putting forward specified allegations against the NSDAP alone. The latter was described as an organization which was " planning,

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organizing and perpetrating crimes against peace, war crimes and crimes against humanity " as means leading to " the subjugation of other nations ". 

The logical and legal construction of the corresponding passage of the Sentence pronounced by the Tribunal is different. It is stated therein that Hoess was a member of both organizations, but the SS is mentioned first and it alone is explicitly defined as a criminal organization. The activities of both organizations are, however, closely interlinked in the Sentence, and the SS is considered a tool of the NSDAP used for committing war crimes-and crimes against humanity. Crimes against peace have thus been omitted in the Sentence but the NSDAP is considered as having had criminal aims of subjugating other nations, which are described as a crime in violation of Polish municipal law (Article 4 of the Decree of 31^st August, 1944, as amended by the Decree of 11^th December, 1946 ( See the Annex, Part I, Section 3, p. 86 of this volume.). 

Thus the Tribunal has shifted the main emphasis from the NSDAP and put the emphasis on the accused’s membership in the SS which alone was also mentioned in the closing speeches of the Prosecution. This was evidently done because the Tribunal could not consider the accused’s membership in the NSDAP as criminal in view of the fact that Article 4, para. 3 of the Decree of 1944 lays down the rule that membership of this organization is considered criminal only as regards the leading positions, and the accused did not hold such a position in the Nazi Party.

The question of which leading positions in the NSDAP should be considered as criminal became for some time controversial in Polish legal literature and among the Polish judges. This was in consequence of a general wording of Article 4, para. 3 of the said Decree which says that membership of the NSDAP is considered criminal " as regards all leading positions "(Italics introduced.). Thus, for instance, the question arose whether or not the position of an’ Ortsgruppenkassenleiter (Chief Cashier of the NSDAP District Organization) should be considered criminal in the meaning of the above provision. However, the view finally prevailed that only such leading ranks and positions of the NSDAP should be considered as criminal as are enumerated in the Nuremberg Judgment, i.e., the Reichsleitung of the Party, the Gauleiters, the Kreisleiters, and the Ortsgruppenleiters, as well as the Amtsleiters who were heads of offices on the staffs of the Reichsleitung, Gauleitung and Kreisleitung.(See the Nuremberg Judgment, British Command Paper 6964, pp. 70-71)

This view has been authoritatively upheld by a ruling of the Polish Supreme Court of 28^th February, 1948. The Supreme Court gave the following reasons on which it based its decision, namely, that (a) the Polish legislation, by enacting the law concerning the membership of criminal organizations, wanted to bring Polish municipal law into line with the developments which have already taken place in international criminal law, in particular, in connection with the Judgment of the Nuremberg Tribunal which was pronounced prior to the Polish enactment in question ; and therefore, (b) while formulating the provision dealing with the criminality of membership in the NSDAP, the Polish legislator had in view only such positions in that 

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organization as have been recognized as leading by the International Military Tribunal.

It will be of some interest, it is thought, to devote some space in this report to another Polish case concerning the Auschwitz concentration camp, in which a number of lesser members of its personnel was tried by the same Tribunal, and to discuss the problem indicated in the above heading. 

When discussing the Polish law relating to the membership of criminal organizations, (See The Annex, Part I, Section 3, pp. 86-87, of this volume) it has been pointed out that from the law as laid down in Article 4, paras. 2 and 3 of the Decree of 1944 (the consolidated text of 11^th December, 1946), it is clear that Polish courts are not bound by the fact that certain groups or organizations have not been indicted and adjudicated by the Nuremberg Tribunal as criminal within the meaning of the London Charter. It has also been stated there that consequently in such cases the Polish court may declare such groups or organizations to be criminal within the Polish jurisdiction. Such, for instance, was the case in regard to members of the concentration camp staff at Auschwitz. 

In this second Auschwitz case, in which forty officials of that camp including Artur Liebehenschel, a successor of Hoess, were tried by the Supreme National Tribunal in Cracow separately and subsequently to the Hoess trial, the Tribunal declared the authorities, the administration and members of the garrison of the Auschwitz camp to be a criminal group, irrespective of whether or not the members of these administrative or military units were at the same time members of the SS or any other organization pronounced criminal by the Nuremberg Tribunal.

In its judgment of 22^nd December, 1947, the Supreme National Tribunal gave a number of reasons that served as the basis for its declaration. The most important of them can be summarized as follows :

(1) The Nuremberg Judgment does not limit the right of the Polish legislator to decide those acts which were not a subject of the findings of the Nuremberg Tribunal and can be considered as liable to punishment within the Polish jurisdiction, unless they have been explicitly declared as not criminal, as, for instance, the acts of the organization of the SA.

(2) The provisions of the Polish law now in force are not in contradiction to the Nuremberg Judgment. The interpretation of the Polish law cannot be contrary to the explicit text of this Judgment, but on the other hand there is no legal obstacle in the way of supplementing the legal principles established in this Judgment by further principles, if in substance they are not in contradiction with the former. ,

(3) There is no doubt that the organization of the German concentration camps is a criminal group in the meaning both of the Nuremberg Judgment and of Article 4 of the Decree of 1944, as these camps had been set up with the aim of unlawfully depriving of freedom and health, property and life of individuals and groups of people because of their race (Jews and Gipsies), nationality (Poles and Czechs), religion (Jews) or political convictions

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(socialists, communists and anti-Nazis). The organization of the German concentration camps thus aimed at committing crimes against humanity, which at the same time were crimes in violation of the penal law of all civilized nations, and also war crimes as regards the acts committed against the Soviet prisoners of war.

(4) By the description " organization of a concentration camp " should be understood the authorities, the administration and the personnel of a camp, with the exception of the inmates who under compulsion were performing various administrative functions. The latter can only be responsible for their personal deeds as they were not members of the criminal organization as it is understood by the Nuremberg Judgment, namely, they were not bound together by a common aim which was the commission of crimes against humanity. Those people had no ideological ties with the organization of the concentration camps, but had been simply used as tools for the perpetration of certain crimes. This does not protect them from punishment for their personal acts, but they cannot be declared guilty of membership of a criminal organization as of a separate offence.

(5) Article 9 of the Nuremberg Charter states that the International Military Tribunal has the power to declare at the trial of any individual member of any group or organization (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization. Thus, Article 9 gave to the Tribunal the power to declare criminal any group or organization, the members of which committed any of the crimes enumerated in Article 6 of the Charter, i.e. crimes against peace, war crimes and crimes against humanity.

(6) The law laid down in Article 9, according to which an international Tribunal may at any time at its discretion increase the number of organizations considered as criminal, has its application in international jurisdiction. As far as the municipal jurisdiction is concerned, the municipal law has priority, and international law is to be applied only subsidiarily. International law is based not only on codifications like the Charter, but also on the judgments of courts like the Nuremberg Judgment.

(7) If therefore, the Charter and the Nuremberg Judgment are both a source of law, of which the former permits any organization to be declared a criminal one, and the latter does not prevent this, there is no legal obstacle for declaring, in accordance with Article 4, para. 2, of the Decree of 1944, as criminal the organization of the concentration camps.

(8) As the Polish legislation and judgments of Polish courts are, of course, not binding outside the Polish territory, the recognition by a Polish court of the Central Administration of the Concentration Camps as a criminal organization in general could raise objections. There is, however, no objection for declaring as criminal the organizations of the concentration camps in Poland, and foremost the organization of the concentration camp at Auschwitz.

In connection with the above declaration of the Supreme National Tribunal, and especially with its paragraphs (3) and (7), it should be pointed out that the Nuremberg Judgment did not include the organization of the . concentration camps as such among the organizations declared as criminal,

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primarily because the Nuremberg Indictment did not ask the Tribunal to make such a declaration in this respect (See the Nuremberg Judgment, Cmd. 6964, p. 67, para. 3.). Nevertheless, the Tribunal did make in its Judgment many references to the concentration camps which it described as a means for systematic commission of war crimes and crimes against humanity.(Ibid., Judgments against Kaltenbrunner, p. 93 ; against Funk, p. 103 ; and general parts of the Judgment, pp. 7 and 49.) Moreover, the Tribunal expressly stated that " in the administration of the occupied territories the concentration camps were used to destroy all opposition groups ".( Ibid, p. 50) With specific reference to one of the ill-famed concentration camps the Tribunal, quoting the report of the War Crimes Branch of the Judge Advocate’s Section of the 3^rd U.S. Army, established, for instance, that :

" Flossenburg concentration camp can be described as a factory dealing in death. Although this camp had in view the primary object of putting to work the mass slave labour, another of its primary objects was the elimination of human lives by the methods employed in handling the prisoners. Hunger and starvation rations, sadism, inadequate clothing, medical neglect, disease, beatings, hangings, freezing, forced suicides, shooting, etc., all played a major role in obtaining their object. Prisoners were murdered at random ; spite killings against Jews were common, injections of poison and shooting in the neck were everyday occurrences ; epidemics of typhus and spotted fever were permitted to run rampant as a means of eliminating prisoners ; life in this camp meant nothing. Killing became a common thing, so common that a quick death was welcomed by the unfortunate ones." (Ibid, p. 50.)

One more passage may be quoted from the Nuremberg Judgment. It reads :

" A certain number of the concentration camps were equipped with gas-chambers for the wholesale destruction of the inmates, and with furnaces for the burning of the bodies. Some of them were in fact used for the extermination of Jews as part of the " final solution " of the Jewish problem. Most of the non-Jewish inmates were used for labour, although the conditions under which they worked made labour and death almost synonymous terms. Those inmates who became ill and were unable to work were either destroyed in the gas-chambers or sent to special infirmaries, where they were given entirely inadequate medical treatment, worse food if possible than the working inmates, and left to die ".(Ibid, p. 50. Italics introduced.)

When dealing with the criminal aims of the SS, the Nuremberg Tribunal described in detail the activities of the RSHA (Reichssicherheit HauptAmpt) and the WVHA (Wirtschafts Verwaltungs HauptAmpt). The Tribunal then stated that already since 1934 the SS through the medium of the RSHA was responsible for the central administration of concentration camps, and from 1942, when this administration was taken over under the control of the WVHA, the concentration camps were used as a source of 

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slave labour, for the extermination of " anti-social elements ", experiments on human beings and extermination of Jews (See the Nuremberg Judgment, pp. 76-77.).

In this way the Nuremberg Judgment established that the concentration camps were an important part of the machinery for the criminal activities of the SS as a whole, and of the WVHA in particular, which was one of the central offices of the SS declared by the Tribunal as a criminal organization. If, in addition, we take into account that the concentration camps were in fact the constituent executive units of the WHVA and were serving its criminal aims in general, and the realization of the plan of exterminating other nations in particular, it may well be said that the Supreme National Tribunal was on strong ground in declaring the concentration camp as a criminal group.

In making the above declaration the Supreme National Tribunal not only based itself on Article 9 of the Nuremberg Charter, but also applied per analogiam the statement of principle made in this connection by the Nuremberg Tribunal which stated that according to Article 9 " the Tribunal is vested with discretion as to whether it will declare any organization criminal. This discretion is a judicial one and does not permit arbitrary action, but should be exercized in accordance with well settled legal principles . . . If satisfied of the criminal guilt of any organization or group, this Tribunal should not hesitate to declare it to be criminal because the theory of " group criminality " is new . . . "(Ibid, pp. 66-67. Italics introduced).

The Supreme National Tribunal evidently considered that in regard to the concentration camps it is not sufficient, as did the Nuremberg Judgment; to have declared as criminal the three or four principal Nazi organizations, as in point of fact there were many Nazis employed in the administration of every single concentration camp, and responsible in a general sense for the mass criminality committed therein, sometimes in a higher degree than the actual perpetrators, and who were not members of any of the organizations declared as criminal by the Nuremberg Tribunal. Therefore, the Supreme National Tribunal declared the members of the authorities, of the administration and of the garrison of the German concentration camps in occupied Poland as criminal groups in the meaning of Article 4 of the Decree of 1944 (1946). It declared these members to be a criminal group and not organization, in view of the fact that the above Decree as well as the international enactments use both these descriptions, and the expression " group "  is in this case more appropriate from the technical point of view, and because of the etymological character of the word " organization ". 

It appears that a few words should finally be said as regards criminal knowledge on the part of the members of the concentration camps personnel. It should be recalled that the Nuremberg Tribunal declared criminal the membership of the four organizations (the Leadership Corps of the Nazi Party, the Gestapo, the SD and the SS) on the condition that the members " became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6

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of the Charter, or who were personally implicated as members of the organization in the commission of such crimes ".(See the Nuremberg Judgment, op cit., pp. 71, 75 and 79)

Although the Supreme National Tribunal did not mention in its declaration this particular question, it must be presumed that this Tribunal, having based the declaration on the analysis of the Nuremberg Charter and Judgment, took this requirement as self-evident and did not see the necessity of pointing it out. It would also seem self-explanatory that the first part of the Nuremberg Tribunal’s proviso is hardly of much importance in the case of concentration camps, as every member of their personnel must have known that these camps were being used for the commission of acts which any ordinary sensible person must have acknowledged as criminal.

4. GENOCIDE

As it is apparent from the outline of the proceedings the trial of Hoess was another case in which the crimes perpetrated in the Auschwitz camp come within the notion of the crime of genocide. We have already described briefly the concept of this notion in connection with the case of Amon Goeth (See Case No. 37, pp. 7-9, of this volume). As regards the present case it may be mentioned that the Prosecution, after describing the German policy aiming at the extermination of Jews, pointed out that the mass crimes committed in concentration camps were part of the Nazi scheme of exterminating whole nations. In this connection the Prosecution recalled among others that General von dem Bach of the German Police, who was a witness in the trial against Governor Fisher, sentenced previously by the Supreme National Tribunal, had testified that during a conference held by Himmler some time before, the outbreak of war, the latter explained a plan which aimed at the extermination of some thirty million of the Slav population.

The Supreme National Tribunal dealt in its Judgment only very generally with this type of the Nazi criminality. It stated that the Nazi Party had as one of its aims the biological and cultural extermination of subjugated nations, especially of the Jewish and Slav nations, in order to establish finally the German Lebensraum and the domination of the German race.. This programme and practice of extermination of entire groups of people and of nations on specific grounds, described as the crime of genocide, the Tribunal defined as an attempt on the most organic bases of the human relationship such as the right to live and the right to existence. One of the aspects and elements of the German system of extermination put into preliminary execution in the Auschwitz camp were the medical experiments described in some detail in the preceding part of this report.

Even if it could be assumed that the medical experiments carried out I at, Auschwitz concentration camp were not expected to serve any definite political aims, their criminal character is beyond any doubt. They violated all rules which must be observed when medical experiments are performed on human beings (Compare pages 48-53, of this volume). Special circumstances in which they were performed

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constitute in addition elements which allow them to be classified as violations of the laws and customs of war and of laws of humanity. 

Experiments were always carried out under compulsion and in many cases physical violence was used. They were often performed by unqualified doctors, and in appalling conditions. They did not serve any scientific purpose. They were performed with unnecessary suffering and injury and without proper protection against the risks of disability or death. The subjects experienced extreme pain and torture, and permanent injury or death followed in many cases. The doctors and the personnel performing experiments did not show any care or give any assistance to persons frequently seriously ill in consequence of the experiments.

Thus all these experiments violated general principles of criminal law as derived from the criminal laws of all civilized nations.

But paramount importance should be attached to the political aspect of the crime. The general scheme of the wholesale experiments points out clearly to the real aim. They were obviously devised at finding the most appropriate means with which to lower or destroy the reproductive power of the Jews, Poles, Czechs and other non-German nations which were considered by the Nazi as standing in the way of the fulfilment of German plans of world domination. Thus, they were preparatory to the carrying out of the crime of genocide.

These conclusions seem justified not only by the experiments themselves. They were corroborated by the statements of the accused Hoess himself. He confirmed the existence of plans of wholesale destruction of the Slav nations, and of Poles and Czechs in particular. It is also known that Himmler entrusted Professor Clauberg with experiments which were nothing else but the application in reverse of his successes in the domain of the treatment of sterility. Clauberg himself recognized that his experiments could contribute very little to the progress of science.

The defendant Hoess declared that the experiments of wholesale castration and sterilization were carried out in accordance with Himmler’s plans and orders. These aimed at the biological destruction of the Slav nations in such a way that outside appearance of a natural extinction would have been preserved.

The X-ray experiments, particularly in cases when small or minimal dosage of rays was applied, and the setting up of a special mixed camp for about 3,500 men and women in this connection seem to be particularly characteristic. Thus a special breeding place for individuals carrying supposedly hereditary " lethal " genes, which it was hoped could be artificially cultivated among the subjugated nations, seems to have been created. This contention seems, according to Professor Kowalski who gave expert evidence in this trial, to be justified by experiments on animals.

It was known from them, said this witness, that X-rays applied in a certain dosage to germinative cells caused hereditary injuries to the latter. Progeny born from such cells either could not survive or would carry congenital anomalies. Also X-ray treatment of female genital organs and in particular of the uterus caused injuries, owing to which pregnancy ended in about 42 per cent of cases in miscarriage or premature delivery..

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Thus it seems probable that the X-ray experiments aimed at checking on the results obtained on animals and at providing necessary statistical data. These experiments could have determined the X-ray dosage necessary for injuring human hereditary genes. They also aimed at creating conditions in which the injured genes could be multiplied and degenerated progeny observed, so that in the end those observations could have been used for political purposes.

Still more typical were Clauberg’s sterilization experiments. They all aimed at causing sterility of non-German women. In the opinion of Professor Kowalski, they were of great importance because all other well-known methods of sterilization are difficult, require much time, complicated technique and skilled doctors, and because they could be easily noticed by the persons concerned. The aim of the German doctors of sterilizing in a wholesale manner non-German women could have been achieved by the discovery of a drug which would easily and surely obliterate the relatively narrow lumen of the tubes, without injuring the mucous membrane of the uterus. Thus periods would continue, internal female genital organs would remain healthy and damage inflicted to the reproductive power of women concerned would remain unobserved. The wholesale application of such a drug, the discovery of which cannot be ruled out, would have paved a way to a demographic policy aiming at a total extinction of nations. 

Thus in view of the political directives, issued by the Supreme German authorities, and the character of the experiments performed in Auschwitz on their orders, it seems obvious that they constituted the preparatory stage of one of the forms of the crime of genocide, which was intended to be perpetrated by scientific means.