Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume III, London, HMSO. 1948
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CASE No. 19
Trial of ERICH KILLINGER and four others
BRITISH MILITARY COURT, WUPPERTAL,
A. OUTLINE OF THE PROCEEDINGS
Erich Killinger, Heinz Junge, Otto Boehringer, Heinrich Eberhardt and Gustav Bauer-Schlightergroll, former officers of the Luftwaffe, were charged with committing a war crime in that they at or near Oberursel, Germany, between 1st November, 1941 and 15th April, 1945, when members of the staff of the Luftwaffe Interrogation Centre known as Dulag Luft, in violation of the laws and usages of war were together concerned as parties to the ill-treatment of British Prisoners of War. All pleaded not guilty.
The Prosecution claimed that the accused belonged to the German Air Force Interrogation Centre at Oberursel, near Frankfurt. This Centre was known to the German Air Force authorities as Auswertestelle West, but, more widely as Dulag Luft. The function of Dulag Luft was, shortly, to obtain information of an operational and vital nature from the captured crews of Allied machines. The allegation was that excessive heating of the prisoners cells took place at Dulag Luft between the dates laid in the charge for the deliberate purpose of obtaining from prisoners of war information of a kind which under the Geneva Convention they were not bound to give, and that the accused were concerned in that ill-treatment. The Prosecution also alleged a lack of and refusal of required medical attention and in some cases, blows. At first the Prosecutor also claimed that the methods used included prolonged solitary confinement and threats of delivery of the prisoner of war to the Gestapo and of shooting by the Gestapo, on the basis that the prisoner of war might, because he did not answer sufficiently fully, be a saboteur. After a consultation with one of the Defence Officers, however, the Prosecutor withdrew the last two allegations. Killinger, Junge and Eberhardt were found guilty and sentenced to imprisonment for five, five and three years respectively. The remaining two accused were found not guilty. The sentences were confirmed by higher military authority.
B. NOTES ON THE CASE
1. THE LEGAL BASIS OF THE CHARGE
The Prosecutor rested his case on the Geneva Prisoners of War Convention of 1929, and in particular Arts. 2 and 5. Art. 5 reads as follows :
Pointing out that the prisoners who passed through Dulag Luft appeared to have had no exercise while there, Counsel quoted Art. 13 of the Convention :
During his closing address, one of the Defence Counsel made three submissions regarding the scope of the Convention. The first was that under the Geneva Convention interrogation was not unlawful. The second was that to obtain information by a trick was not unlawful, under the same Convention. The third point was that to interrogate a wounded prisoner was not in itself unlawful unless it could be proved that that interrogation amounted to what could be described as physical or mental ill-treatment. The Court expressed its agreement with these three principles.
It will be noticed that the charge alleged that the accused were together concerned as parties to the ill-treatment of British Prisoners of War. In connection with this part of the charge-the Prosecutor quoted Paragraph 8 (ii) of the Royal Warrant :(2)
During the hearing of the closing addresses for the Defence, the Legal Member of the Court asked the Prosecutor what his attitude would be if the commandant of a prisoner-of-war camp, although completely ignorant of the ill usage of prisoners of war, was negligent in his supervision of his subordinates. Would the Prosecutor say that that made him a party to the ill-treatment, or would he say that in order to make a person a party he must be guilty of more than negligence, and must at least come within the category of an aider and abettor as that phrase is commonly known to English criminal law ? The Prosecutor submitted that a man might be concerned as a party either through intention, where malice-a designed plan- was present, or through neglect so acute that the established standards of English criminal law would apply. The standard of negligence would have to be of such a degree that it was considered criminal, gross, flagrant, or those other strong terms with which our English law books are familiar. He agreed with the Legal Member when the latter claimed that the only
standard of neglect in accordance with English criminal law which would make a man guilty of a crime of a major nature was the neglect necessary to prove manslaughter, in other words, a recklessness and a complete disregard of the situation. Later during the hearing of the closing of the case for the Defence, the Legal Member announced that the Court had come to a decision on the interpretation of the phrase " were concerned together as parties to the ill-treatment of British prisoners of war. " The Court had agreed that no amount of mere negligence, however gross, could bring a person within the category of a party as defined in the particulars of the charge ; that the word parties must of necessity mean that the person concerned must have had some knowledge of what was going on and must have deliberately refrained from stopping such practice ; and that the person, in order to be a party, must come within the category of a principal in the second degree or aider and abettor in the ill-treatment alleged. The words aider and abettor and principal in the second degree would have the same meanings as in the ordinary criminal law of England. One of the Defence Counsel claimed that there had been no suggestions by the Prosecution, and no evidence, that there was a plan, a method of treatment, and that it was the usual habit or custom of Dulag Luft, as a unit, to perpetrate this treatment. The Prosecutor, in his closing address, argued that each accused was concerned, in his respective capacity on the staff of Dulag Luft, as a party to the ill-treatment of prisoners of war, and concerned with sufficient proximity to make him criminally responsible on the ordinary standards of criminal responsibility in English law, either by being an accessory before the fact, or a principal in the second degree, or a principal in the first degree, or an accessory after the fact. The only difference between the ordinary tests of responsibility set out in English Criminal Law and the law to be applied in the present trial lay in Regulation 8 (ii) which Counsel regarded as a matter of evidence. It was submitted by the Prosecution that, on the balance of the evidence, Regulation 8 (ii) was in point and that the evidence regarding one accused might be treated as evidence against another.
The Yamashita Trial,(1) conducted by a United States Military Commission, contains, inter alia, some interesting material on the liability of a Commander for War Crimes committed by his subordinates. On the question of liability for mere inaction, reference should be made to the Essen Lynching Case.(2) There a German guard was sentenced to imprisonment for five years for failing to intervene while Allied prisoners of war, under his care, were lynched. The question of joint responsibility received some attention in that case, but much more in the Belsen Trial.(3) There it was generally agreed that before Regulation 8 (ii) could operate against an accused, it must have been proved that he knowingly took part in a common plan to commit a war crime. An analogy was drawn between the words concerted action, contained in the Regulation and the legal concept of conspiracy. In the Dulag Luft Case, while the Prosecution argued that Regulation 8 (ii) was relevant, the Court in its ruling was careful to explain the charge wholly in terms of the law relating to parties to a crime (mentioning specifically principals in the second degree, that is to say, aiders
and abettors) without referring to Regulation 8 (ii). It therefore remains possible to assume that a prior conspiracy to commit a war crime must be proved before Regulation 8 (ii) can become effective, and that it is not enough to show that certain accused acted as aiders and abettors.
2. DE MINIMIS NON CURAT LEX
After referring to an exaggerated newspaper account of the offences alleged in the trial one of the Defence Counsel made the following comment :
3. THE SCOPE OF REGULATION 8 (i) OF THE ROYAL WARRANT
Regulation 8 (i) of the Royal Warrant begins with the following words :
Six rules are then set out in clauses (a) to (f) as examples of this general statement, and Regulation 8 (i) ends with the words :
After presenting the oral evidence against the accused, the Prosecutor expressed his intention to put in certain affidavits, relying on clause (a) of Regulation 8 (i), which reads as follows :
The Prosecutor reminded the Court that he was limiting his allegations to those concerning over-heating, refusal or delay of medical attention and, in some cases, blows. Some of the details in the affidavits (concerning solitary confinement, threats and low diet) fell outside the scope of these allegations but it was not always easy to dissect the documents and read only what was relevant.(1)
Among the documentary evidence for the defence appeared part of a B.B.C. War Report which had been referred to in an affidavit. Both were authenticated by a Commissioner for Oaths.
Clauses (b) and (e) of Regulation 8 (i) were invoked by the Prosecutor in tendering as evidence a dated form of affidavit completed by a named Lieutenant in the United States forces who described himself as C. E., Post Engineer, and a dated minute from the United States Deputy Theatre Judge Advocate in London. These clauses run as follows :
4. THE RELATIVE VALUE OF AFFIDAVIT EVIDENCE
Before the tendering of the affidavit evidence for the Prosecution, the Defence applied for one deponent to be produced in person. The Defence had been given to understand that the British Officer in question would be available for questioning. The Court decided, after hearing argument, that the deponent could not be produced without undue delay (in the wording of Regulation 8 (i) (a)), and the President of the Court added the significant statement that we realise that this affidavit business does not carry the weight of the man himself here, as evidence, and when it is read we will hear what objections you have got to anything that the affidavit says, and we will give that, as a Court, due weight. The Presidents words may fairly be taken as a reference to the fact that if evidence is given by means of an affidavit the person providing the evidence is not present in Court to be examined, cross-examined and re-examined.
5. STATEMENTS MAY BE PUT IN WITHOUT PROOF OF VOLUNTARY NATURE
During the discussion of the same application the Legal Member asked Counsel for the Defence whether, if an affidavit had been taken by duress (supposing that allegation were made), it would nevertheless be admissible. Counsel agreed that the Defence would be barred from objecting in law to its admission on the ground that the statement was not a voluntary one. The Legal Member then advised the Court that when and if any of the accused were to give evidence in explanation of the giving of their statements, it was relevant and very important that they should tell the Court what their version of the taking of those statements was, and the Court would then decide as to how it affected the veracity of those statements. (It was later revealed that the objection of the Defence was that the statement was pieced together as a result of a series of interrogations which lasted over several days, and that the substance of the statement was obtained by question and answer.)
In the trial of Eberhard Schöngrath and six others(1) the Legal Member advised the Court that it was empowered to receive a written statement,
even though no caution had been administered, provided the Court was satisfied that the statement was made voluntarily. In the, Belsen Trial the accused Aurdzieg pleaded that a confession by him which was placed before the Court was not made voluntarily. The Prosecutor, however, countered this argument by pointing out that below the accuseds signature appeared an account and description by Aurdzieg of the persons who were working with him.(1) Speaking of the affidavits of Irma Grese, the Prosecutor submitted that the provisions regarding the cautioning of accused had no application in Military Courts. It was not necessary for the Prosecution to satisfy the Court that Greses were voluntary statements. The Royal Warrant was drawn up with the deliberate intention of avoiding legal arguments as to whether evidence was admissible or not. They were drawn widely to admit any evidence whatsoever and to leave the Court to attach what weight they thought fit to it when they had heard it. By authentic was signified genuine. The Judge Advocate said that the affidavits were not, in his view, analogous in any way to the statements or documents which came under Rule of Procedure 4 in the case of a Field General Court Martial.(2)
The result seems to be that the Defence cannot prevent a statement from being put in as evidence by denying its voluntary nature, but is free to attack the weight to be placed on it. In practice, therefore, the Court will always ascertain whether or not a statement is made voluntarily in order to assess its evidential value. This conclusion seems to be supported also by a ruling of the Court in the trial of Hans Renoth and Three Others.(3)
6. SIGNIFICANCE OF AFFIDAVIT EVIDENCE IN RELATION TO RULES OF PROCEDURE 40 (C) AND 41 (A)
The British Royal Warrant provides in Regulation 3 that, except in so far as therein otherwise provided, the Rules of Procedure applicable in a Field General Court Martial of the British Army shall be applied so far as applicable to the Military Courts for the trial of war criminals. These rules are contained in the British Army Act and the Rules of Procedure made under the Act by an Order in Council, the latter being a piece of delegated legislation enacted by the Executive in 1926 (S.R. & 0. 989/1926).
Counsel for Eberhardt indicated that the only evidence which the accused intended to call, apart from going into the witness box himself, was evidence by affidavit. Whereupon the Legal Member advised the Court that evidence given by affidavit was evidence apart from the accused himself. It would therefore cause Counsel to lose the last word in the case from the point of view of addressing the Court. It was also evidence which entitled him, if he wished to open his case before he called his evidence.
In delivering this advice, the Legal Member was making tacit reference to Rules of Procedure 40 (C) and 41 (A) which run as follows :
These provisions, intended primarily for District Courts Martial, are made applicable, so far as practicable to Field General Courts Martial (and so to Military Courts) by Rule 116, which states :
7. POSSIBILITY OF A SECOND RE-EXAMINATION OF WITNESSES
During the hearing of the evidence for the accused, the Defence stated that, while they fully understood that, in accordance with Rule of Procedure 85 (A), the Court or any Member might address a question to a witness, the questions put to the witnesses for the defence by the Court had been, in their submission, in the nature of a lengthy cross-examination. In view of this the Defending Officers asked that they might be granted a right of re-examination at the conclusion of such questioning, The Legal Member advised the Court that there was not right by either Rule of Procedure or by the Royal Warrant for Defending Officers to re-examine their witnesses after the Court or any Member of the Court has asked any questions. There was an inherent right in any Member of a Court to ask any questions he thought fit, It was, however, always at the discretion of a Court to give the Defending Officer an opportunity of asking questions about any new matter which had not already been brought up either by the Prosecution or the Defence and which had been introduced as a result of the questions of any Member of the Court. The President of the Court ruled that, should
any Member of the Court submit a witness to a thorough re-examination, the Defence would be given a chance to re-examine.
Rule of Procedure 85 (A), to which reference was made provides that :
This provision also falls within the scope of Rule 116, quoted above.
8. RIGHT OF COUNSEL TO CALL HIMSELF AS WITNESS
Before calling evidence on behalf of Bauer, his Counsel applied for permission to appear himself in the witness box, if necessary, to give evidence on the way in which he came into possession of certain documents which he wished to enter. The Legal Member suggested that the Counsel should call his other evidence first and that if there was then any matter which was not, plain from that evidence, Counsel would have a perfect right to call himself as a witness and to give evidence on oath concerning the circumstances in which certain matters came into his knowledge, if such a matter was relevant to the defence. Counsel subsequently went into the box to describe how he had collected certain documents from the accuseds wife at his home.
9. WITNESS ALLOWED WRITTEN MEMORY AIDS
A witness for the Prosecution was allowed by the Court, in describing a building, to refer to notes made during his visit to the building.(1)
On the other hand in the Belsen Trial, the defence witness Gertrud Neumann was found to have in her possession, while in the witness box, a typewritten copy of a statement which she had previously made to Counsel defending one of the accused. The Prosecutor protested that : What we want to hear is the witnesss recollection and not something from a type-written statement. The Court ruled that witnesses should give their spontaneous recollection and should not refresh their memories from any document. Similarly, in the trial of Major Karl Bauer and six others,(2) Counsel for Bauer applied to the Court for permission for that accused, in giving evidence to use certain notes of evidence and statements which he wishes to make. Raür had assured Counsel that he had made the notes during the course of the trial. The Judge Advocate, however, said that it was unusual for a witness to have notes in the witness box, and advised. the Court that he should not be provided with notes unless some specific point arises.
10. THE QUESTION OF TRANSLATIONS OF EVIDENCE
Presumably since they were ex-members of an interrogation centre the accused all had a knowledge of English. The Court, after receiving a
reassurance on the point from the Defence, permitted the non-translation of the oral evidence from English into German, while at the same time stating that a translation would be provided should any accused ask for it.(1)
Stuart.Stein@uwe.ac.uk Last Updated 09/09/01 16:38:31