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| Defense Request for
International Law Expert |
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| that it does
not disclose any offence under the Army Act” — or under the
Regulations in this case — “and is not in accordance with the
Regulations.” It is a matter for the Court. It seems to me that the fair
way of dealing with this matter is for the Court to take the evidence and to
agree that the right of the Defence to make the objection should be preserved,
but that they should be allowed to do it at the close of the case for the
Prosecution. |
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| (The Court
confer.) |
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The JUDGE
ADVOCATE — The Court are of the opinion that it is desirable to go on and
hear the evidence now. They will preserve your right to object to the validity
of this charge, or the other charge, or both, at some suitable time when you
feel competent to deal with the argument in law. Can we clear the other matter
up by leaving you to discuss it with the Prosecutor? If there are any
difficulties and you think the President should be asked to intervene, you can
make an application to the Court later.
Captain PHILLIPS — I wish
to make an application on the subject of separate trials under Rule of
Procedure 32 that the defendants are incorrectly joined in both charges, and,
secondly, that the two charges are incorrectly joined at the one trial. I would
like to divide what I have to say into two separate parts, and deal, first of
all, with the joinder in this case of the two charges, charges one and two,
which deal respectively with what happened at Belsen and what happened at
Auschwitz. In our submission the joinder of these two charges is bad and
unaffected by Regulation 8 (2) made under the Royal Warrant which says, "in any
such case they may be charged and tried jointly in respect of any such war
crime and no application by any of them to be tried separately shall be allowed
by the Court." The submission of the Defence here is that this is not an
application to be tried separately, but is an application that the two charges,
one and two, Belsen and Auschwitz, should be heard separately, preferably by
separate Courts.
In our submission — and I am dealing at the
moment with the people who are concerned only in the first charge — there
are really two types of people in this case, those charged on the first charge
and those charged on both charges. From the point of view of those who feature
only in the first charge, the Belsen charge, it would appear wrong that they
should be tried on that charge at the same time as the other people who are
being tried on both charges. The man who is charged with having been at Belsen
only will, during, the course of the trial, hear evidence given of what
happened at Auschwitz, which can in no possible way, be evidence against him;
in other words, he is going to be prejudiced straight away. Suppose you had
charged A with obtaining money by false pretences, |
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