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Last-Modified: 1999/06/14

Session No. 114
2 Elul 5721 (14 August 1961)

Presiding Judge: I declare the one hundred and fourteenth
Session of the trial open.

Attorney General: May it please the Court, in pursuance of
the questions which arose at the end of the last session, I
have prepared a detailed list of precedents referring to our
law of conspiracy.  Strictly speaking, this is only a
somewhat more detailed compilation of legal material which
is already in your possession.  I have handed it to Counsel
for the Defence, after it was prepared in a language with
which he is familiar.  I should be grateful to the Court if
the Court would attach this list to the legal material we
have submitted.

Presiding Judge: Thank you.  Dr. Servatius, if you please.

Dr. Servatius:  Your Honour, the Presiding Judge, I have
completed the written summing-up, and the Attorney General
has received it for perusal - the last part, it is true,
only this morning, as technically it had not been possible
to complete it earlier.  If he thinks it necessary to reply
to this summing-up, I shall raise no objection, provided
that a short reply can be given thereafter, as agreed
previously.  Personally, I think that a reply on my part
will not be necessary.  Should legal questions arise, the
Court will have to decide them.

I respectfully submit to the Court this final summing-up
which does not yet include the enclosures; I shall file them
during the break.

Presiding Judge: Yes.  As to the reply or the possibility of
further comments, we shall deal with this point at the end
of the summing-up of Counsel for the Defence.  Could you
submit another two copies of these written submissions?

Dr. Servatius:  Yes, Your Honour, but I can do so only
during the break; the typing is not yet finished.

Presiding Judge: I mark the written submissions with my
initials.  Yes, Dr. Servatius, we shall now hear the oral
summing-up for the Defence.

Dr. Servatius:  Your Honour, the Presiding Judge, Members of
the Court.

Were the comments of the Attorney General on the intent and
the character of the Accused true, this would be a cause for
delight and satisfaction in some circles.  This portrayal
would become the foundation for a monument which the enemies
of the Jews throughout the world could put up for the
Accused.  But this foundation fortunately consists only of
grains of sand which have been assembled.

Delight ought to be experienced also by Hitler's erstwhile
followers: Now we know it! The Fuehrer had not given any
order to commit murder.  Like King John, they could say:

     It is the curse of kings to be attended by slaves: they
     took a caprice, a hint, for an order, and fully
     committed the bloody deed.* {*King John  Act IV, Scene
     II.  The latter part of this quotation is Dr.
     Servatius' free rendering of the original}

Justice Musmanno and the psychologist Gilbert have confirmed
it: The culprits were not Goering and the great paladins -
everybody pointed to Adolf Eichmann.  The "Jews' helper,"
Himmler, did not need to commit suicide, and Bormann could
emerge from his hideout.  Everything has become clear, the
great culprit has been found.  This would be the strange
result of this trial.

The Accused has to answer fifteen Counts of the indictment.
In the latter Counts of the indictment - Counts 13 to 15 -
the Accused is charged with having been a member of
organizations which have been declared criminal by the
judgment of the International Military Tribunal at Nuremberg
- SS, SD and Gestapo.  The decision of the International
Military Tribunal does not contain any penalty.  The
decision is the result of the exercise of legislative powers
vested in the tribunal.  The judgment declares the criminal
character of the organizations, as if it were a legislator.
However, this declaration is limited in space and in time,
and confined to certain specified offences.  The findings
are based merely upon the acts, for the commission of which
one of the main accused was convicted by the tribunal.
Therefore, their effect has been restricted to the scope of
application of the London Charter.  The effect of the
declaration was restricted to acts amounting to crimes
against peace, or to war crimes, or to crimes against
humanity connected therewith.

Presiding Judge: Dr. Servatius, you may, of course, sit down
during the translation, according to the practice in this

Dr. Servatius:  The Nazis and Nazi Collaborators
(Punishment) Law has adopted the idea of a criminal
organization as an independent term.  The Prosecution has,
therefore, had to prove in this trial that these
organizations were criminal organizations, and to what
extent they had been so.  This has not been done.  The
criminal nature of the organizations is denied.

The organizations were misused by the political leadership.
The members of the organizations do not bear any collective
responsibility.  This was taken into account by the
International Military Tribunal itself.  It established as a
condition for punishment under Control Council Law No. 10-
which had already been enacted by the Occupying Powers
already to the verdict - that the criminal intent of the
individual member of the organizations be proved.  According
to the political circumstances prevailing at that time, this
could be done only in the form of a recommendation to the
Occupying Powers.  Actually, the courts have accepted this

Section 3 of the Nazis and Nazi Collaborators (Punishment)
Law does not require proof of criminal intent.  It provides
for punishment of membership in the aforesaid organizations
as such.  Making acts punishable with the deprivation of
liberty, without the necessity for proof of criminal intent,
is contrary to basic conceptions adopted by civilized
nations.  It is hardly consistent with ideologies based upon
the rule of law.

The Court is not empowered to supplement the law.  It cannot
add the requirement of proof of criminal intent.  It lacks
the power required to that effect under constitutional law.
It should not be permitted to prosecute a class of persons
without having to prove criminal intent, just because it
appears to the legislator to be suitable.  This is precisely
what Hitler, without any legal authority, had undertaken to
do in respect of the Jews.  Without troubling the legal
profession, he treated them as a criminal organization.

It must not be permitted to promote this principle now,
under the cloak of a legislative instrument, to the rank of
a rule of law.  No class or organization should be made
subject to collective punishment.  Guilt is a personal
attribute.  It is the one and only basis of responsibility.
In these proceedings, the Accused can be charged in his
capacity as an individual, and his criminal culpability can
be examined.  The Accused should not be convicted,
therefore, under Counts 13 to 15.

Counts 9 to 12 are distinguished by special features.  They
refer to acts which the Accused is alleged to have committed
abroad against foreigners.  This concerns Poles, Slovenes,
Gypsies and the children of Lidice.

The sovereign power of the State of Israel was established,
in respect of the offences enumerated in the Nazis and Nazi
Collaborators (Punishment) Law, only by that law.  It is in
the discretion of a state, as a matter of principle, to
extend the scope of its jurisdiction in criminal matters.
Normally, this is not done in order to catch small fry, but
to aim at political opponents.  This is a principle which
was adopted by National Socialist Germany in the form of the
new Article 4 of the German Criminal Code.  However, such an
extension of the scope of criminal jurisdiction must be
carried out within the limits of binding international law,
and according to international law at least one point of
reference has to exist between the state claiming criminal
jurisdiction and the offender.  In this respect, crimes
against the State of Israel or its citizens have to be ruled
out as a point of reference, for at the time of the
commission of the offence, the State of Israel did not yet
exist.  However, it can also be sufficient that the offender
has his abode within the territory of the state.  The
connecting link to the criminal jurisdiction will be, in
that case, the duty of allegiance which is owed by everybody
resident in the country.  But even this fleeting point of
reference does not exist in this case.  The offences
committed against foreigners - Counts 9 to 12 - have,
therefore, to be abandoned.

However, the charges proffered in that respect have to be
refuted, for they might be relevant as circumstantial
evidence in respect of other charges.

The Ninth Count refers to the deportation of half a million
Poles during the years 1940-1942.  However, the question at
issue here is not deportation - as a measure of punishment
or coercion - to concentration camps, but a mass-
resettlement connected with provision of work and
mobilization of labour.  Such a resettlement of the civilian
population has not been expressly prohibited by the Hague
Convention as regards the Laws and Customs of War on Land.
It can be necessary and permitted where special
circumstances require regulation.

In the case under discussion, the resettlement was carried
out within the framework of an exchange of populations.  It
was connected with the unification and return for
resettlement of German ethnic groups.  Under the slogan
"Home to the Reich," millions of Germans living abroad were
moved to territories under German sovereignty, and other
ethnic groups were exchanged.  The practice of the states
has confirmed such resettlements as permissible, even where
the resettlement resulted in the forcible removal of the
inhabitants without making provision for alternative homes,
and the expellees were abandoned to their fate.  I refer to
the evacuation of Alsace-Lorraine after the First World War;
I refer to the expulsion of the Germans from Czechoslovakia
after the Second World War.  To my knowledge, even the State
of Israel has faced similar problems and has had to find
solutions.  The misery and suffering which were inflicted by
such measures to the politically weaker party were the same
in all these cases; one had to put up with them.

The Accused was not responsible either for the planning or
for the carrying out of resettlement.  Planning took place
at the highest level; the plans were carried out locally by
the commissions for resettlement.  Only after lack of
experience and unsuitable measures had produced disastrous
results regarding transportation, the Accused was called
upon.  He had to remove the difficulties which had arisen in
carrying out the transportations, and this he did.  As to
further details, I refer to the closing brief.

The Tenth Count refers to the resettlement of Slovenes in
1941.  What has just been stated in respect of the
resettlement of Poles applies to them, too.  The
resettlement was carried out upon Hitler's command; it was
ordered by Himmler in his capacity as Commissioner for the
Strengthening of German Folkdom.  The Accused had not been
entrusted with the selection of those to be resettled, nor
with their seizure or their treatment.  Manpower and
material resources required to that end were not available.
The Accused was ordered by Heydrich to take care of the
final implementation by way of transportation.  The acts of
resettlement were carried out in a purposeful, orderly
fashion.  As to the charge that, in carrying out these
resettlements, crimes against humanity were committed, the
Prosecution has not adduced any evidence.

In the Eleventh Count of the indictment, it is alleged that,
during the entire period of the War, the Accused seized,
deported and exterminated Gypsies.  However, it has not been
proved that the Accused had planned such measures, nor that
he had ordered them to be taken.  The arrest of the Gypsies
and their transfer to concentration camps was not carried
out by Department IV of the Head Office for Reich Security,
but by Department V of the Police (Criminal Investigations)
Office of the Reich.

The Twelfth Count: The children of Lidice.  We have to
examine the responsibility of the Accused for the fate of
these children.  The collection and the transport of the
children from Prague to Litzmannstadt was carried out by the
Prague branch of the Central Office for Race and
Resettlement, upon the order of the Commander of the
Security Police and the SD.  The highest level in the
Central Office for Race and Resettlement was Section III B 4
of the Head Office for Reich Security in Berlin, headed by
Standartenfuehrer Dr. Ehlich.  In this affair, the name of
the Accused is not mentioned at all.  It is considered to be
circumstantial evidence of his involvement that the head of
the Central Office for Migration in Litzmannstadt,
Obersturmbannfuehrer Krumey, called upon the Accused's
Section regarding further steps to be taken in respect of
the children.  He did not receive a reply from there, but
afterwards informed the competent Department III - to which
he had likewise applied ealier - that he had approached
Section IVB4 about this matter, on the assumption that
special treatment had been provided for the children.   What
was the meaning which could have been attributed in 1942 to
the term "special treatment," can remain an open question.
It should be emphasized that what was expected was not
"special treatment," but some special treatment.  The author
of the letter, the witness Krumey, declares he had had in
mind some special treatment, as the police had not been
prepared for the reception of children.
The same considerations apply to the return transport - to
the communication made by the Commander of the Security
Police and the SD in Prague on the evening of 12 June 1942,
which originated in an enquiry by telephone.  In this
communication it is stated:"No special care is required."
Here again particular stress ought to be placed on the word
"special."  It is reasonable to assume that special
assistance for the accommodation of the children had been
called for.  This request had then been turned down by the
telex-communication.  According to this, the children were
to be transported to the camp for Poles.  Actually, the
children had been taken care of; they were in the care of
the camp in Litzmannstadt for approximately three weeks.

What happened to the children eventually has not been
elucidated.  The journalistic description put forward by the
Prosecution, is contradicted by the testimony of the witness
Freiberg, who at the end of the War still saw thirty
children being taken care of at a place called Pushka.  This
is the same place which is named by the journalist as one of
the places of abode of the children.  Moreover, it is
unlikely that it had been intended to kill the children.
Had it been intended to kill them, this could have been
carried out at once in Lidice.  In this matter, an
intervention of the Accused has not been proved at all.  As
to details, I refer to the closing brief.

Presiding Judge: Dr. Servatius, I do not understand what is
the difference between "special treatment" and "some special
treatment."  Perhaps you could explain that?

Dr. Servatius:  Semantically, there is a considerable
difference.  If I use the term "special treatment," I mean
the well-known special treatment which does not require any
particular explanation.  If I use the term "some special
treatment," I refer to the choice between several possible
special treatments, or treatments in a special manner.

The Eighth Count of the indictment: This Count refers to the
charge of war crimes.  A condition for the existence of a
war crime, is that a state of war exists between the states
involved.  Charges of murder, including the deportations, in
the course of events which occurred between countries which
were not at war with each other, have therefore to be ruled
out as charges of war crimes.  Therefore, the events in
Germany and Austria, in France during the armistice, in
Czechoslovakia, in Hungary and in Italy under Mussolini's
rule, have likewise to be excluded.  As to remaining war
crimes committed during the hostilities between belligerent
states, their prosecution is within the exclusive domain of
the injured states.  This appears from the provisions of the
London Agreement, dated 8 August 1945.  According to article
6 of the Agreement, the trial of war crimes shall be
reserved to state tribunals and the tribunals of occupying
powers.  Where no punishment has been imposed, provisions
should eventually be made in the peace treaties between the
belligerents.  This is in accordance with the prevailing
custom when peace is restored.  An interference by third
parties with the punishing power of the belligerents, is not
approved under the rules of international law.  Ex post
facto and by way of legal fiction, you cannot transform the
aforesaid events into war crimes which can be prosecuted by
the State of Israel.  The charge in the Eighth Count of the
indictment must therefore be rejected on legal grounds.

The Seventh Count of the indictment concerns the so-called
plunder of property.  This is classified here as an
accusation of a crime against humanity by way of enumeration
of examples.  These are murder, extermination, enslavement
and deportation.  Control Council Law No. 10 completes this
enumeration by the examples of imprisonment, torture and
rape.  All these acts are directed against bodily integrity.
Taking away of property is not included in that.  On the
other hand, injury to property can amount to a war crime,
where it takes the shape of plunder of public and private
property.  It is noteworthy that both World Wars have shown
that the sequestration of enemy property was a popular
measure with all the states concerned.  Afterwards, it
became most difficult to part from what had been obtained.
Apparently, it was not an act against humanity when
internees became destitute.

In these proceedings, the Accused is not charged with
personally having taken away chattels, or to have enriched
himself personally.  Theft, if committed by the state, is
carried out by way of legislation.  This is the fate of
enemy property all over the world.  These provisions enacted
by the state are available here in this trial.  I shall
quote them in my closing brief.  Only one of the Nuremberg
verdicts classifies injury to property also as a crime
against humanity, but even there only after some hesitation.
Moreover, the decision is open to criticism; for it
construes inadmissibly the facts constituting the offence by
way of extension - namely the facts constituting the offence
of an act of violence, the violence which in itself makes
the offence a crime against humanity.  Accordingly, the
Accused was not the central figure for the seizure of Jewish
property.  Together with many other agencies, he was
entrusted with carrying out the legal provisions.  The Head
Office of the Property Administration was attached to the
department of the Director of the Economic-Adminstrative
Head Office.

Presiding Judge: You refer to this Nuremberg judgment in
your written submissions, don't you?

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