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| Request for Charges
to be Heard Separately |
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that there has
been concerted action. Now these accused never were at Auschwitz. How then can
they be said to have formed part of a unit or group, or to have taken part in
any concerted action when, in fact, they were never there? But that is rather
by the way, because the final paragraph to that rule reads, “and they
maybe 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.” This is not an application for them to be tried separately —
I will make that application later. This is an application that the two charges
should be heard separately.
I now wish to make the same application on
behalf of those who feature in both charges. Of course, it will be sufficient,
if you find on either ground, because that will have the same effect of
separating the two charges, but I think it proper to indicate the grounds on
which those charged on both charges make the same application. They rely on
Rule of Procedure 108 which reads, “The statement of offence may be made
briefly in any language sufficient to describe or disclose a violation of the
Laws and Usages of War” — this is as amended by the Regulations
— “No formal charge sheet shall be necessary, but the convening
officer may nevertheless direct a separate trial on two or more charges
preferred against an accused; or the accused, before pleading, may apply to be
tried separately on any one or more of such charges on the ground that he will
be embarrassed in his defence if not so tried separately, and the Court shall
accede to his application unless they think it to be unreasonable.” That
is the ground on which those concerned in both charges now apply for the
charges to be dealt with separately. I shall indicate briefly the reasons why
they are going to be embarrassed in this case. Of the bulk of the evidence
contained in the abstract which has been provided, at least 50 per cent, if not
more, relates to Auschwitz. Therefore a man who is standing his trial on
allegations concerning what he did at Belsen is surely to be prejudiced when
the greater volume of the evidence heard by the Court is going to be about what
he is alleged to have done, and principally what others are alleged to have
done, in Auschwitz. However fair-minded the Court my be it is an effort which
it is almost impossible for them to make, to keep in two water-tight
compartments these two bodies of evidence and to prevent themselves from being
prejudiced on one charge by the evidence on another.
Finally, they will
be embarrassed in their defence because the conditions at the two camps were
vastly different., At Auschwitz there is alleged to have been one of these gas
chambers which operated on a very considerable scale. There is no such
allegation in respect of Belsen. I do not know what the Prosecution's case will
be, but if they are going |
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