Archive/File: people/e/eichmann.adolf/transcripts/Written-Defence-Summaries-05 Last-Modified: 1999/06/15 FOURTH COUNT OF THE INDICTMENT Prevention of Births I. Argument for the Prosecution: Crimes against the Jewish People 1. Planning of measures for sterilization by the Accused (a and b) Means of Proof: 1. T/185 - Document 74 2. T/187 - Document 842 3. T/100 - Document 446 4. T/188 - Document 876 5. T/1379 - Document 409 6. T/1377 - Document 326 7. T/189 - Document 1206 8. T/190 - Document 106 9. T/191 - Document 829 10. T/192 - Document 878 2. Theresienstadt (c 1) Means of Proof: 11. T/864 - Document 1369 3. Kovno (c 2) Means of Proof: 12. Testimony of witness Dr. Peretz 4. Sterilization Conference Berlin (c 3) Means of Proof: 13. T/190 - Document 106 II. Argument for the Defence As to 1. (IV a and b) The Accused participated in the Wannsee Conference; however, he did not take part in the discussions but only took care of the technical aspects (taking the minutes). Means of Proof: 1. Testimony of the Accused on 26 June 1961 (Session 79) The Accused dealt neither with the planning nor with the execution of measures for sterilization. Means of Proof: 2. Testimony of the Accused of 26 June 1961 (Session 79) As to 2. (IV c 1) The testimony of Rahm of 25 March 1947 is contradicted by the testimony of Seidl of 4 June 1946. Means of Proof: 3. T/842 - Document 109 (Seidl's testimony) The Accused could not have given such an order, because he was not competent to do so. Theresienstadt was subordinate to the BdS Prague. Means of Proof: 4. T/863 - Document 1200 As to 3. (IV c 2) Participation or responsibility of the Accused has not been proved. As to 4. (IV c 3) It has already been explained that the Accused did not take part in the planning at the Wannsee Conference. There the question of treatment of persons of mixed blood was dealt with by the highest official echelons. Means of Proof: 5. T/185 - Document 74 The results of the conference between the State Secretaries were discussed further by the competent experts at another meeting on 6 March 1942. Result: The status of persons of mixed blood was to be like that of the Jews. In return for their being allowed to remain in the Reich, they were to be sterilized voluntarily. Means of Proof: 6. T/100 - Document 446 7. T/1381 - Document 597 The results of previous planning were not changed or developed further at the conference in which the Accused participated. The result of the conference was not the order for implementation of the measures planned. Means of Proof: 8. T/190 - Document 106 III. Submission for the Defence As to 1. and 4 (IV a, b, c 3) The Accused did not plan or order any measure for preventing births, nor did he take part in the implementation of such measures. The planning took place before the conference on 27 October 1942. The minutes are not conclusive as to whether the Accused participated actively. As to 2. (IV c 1) The testimony of Rahm has only minor evidentiary value. As a former Commander of Theresienstadt, the witness had reasons for shifting responsibility on to others. As to 3. (IV c 2) If, in addition to the directions by the Jewish Council of Elders, there was also an order by the German police or SS authorities, that cannot be imputed to the Accused who did not give or transmit that order. An excess by a subordinate SS or police unit provides no basis for responsibility of the Accused. FIFTH COUNT OF THE INDICTMENT I. Argyment for the Prosecution Crimes against humanity, murder, extermination, enslavement, starvation and deportation of the Jewish civil population in Germany and in other Axis countries and in territories occupied by them, and also in countries which were in practice subject to their authority during the period 1939- 1945. II. Argument for the Defence Count V of the indictment relates to the same facts as Counts I-III. For pleading on the facts, see Counts I-III. As to the legal arguments, cf. the oral pleading. SIXTH COUNT OF THE INDICTMENT I. Argument for the Prosecution Crimes against Humanity. In acting according to the facts alleged under Counts I-V, the Accused persecuted Jews on national, racial, religious and political grounds. II. Argument for the Defence For pleading on the facts, see Counts I-V. As to the legal arguments, cf. the oral pleading. SEVENTH COUNT OF THE INDICTMENT Property Offences I. Argument for the Prosecution Crimes against Humanity VII a. Property offences in general VII b. Specific cases 1. Austria Means of Proof: 1. T/154 - Document 783 2. T/150 - Document 1171 3. T/149 - Document 1176 4. T/137 - Document 69 5. T/114 - Document 76 6. T/151 - Document 91 7. T/729 - Document 1265 8. T/139 - Document 784 9. Testimony of Lindenstrauss 25 April 1961 (Session 15) 10. T/144 - Document 1130 11. T/147 - Document 1133 12. T/148 - Document 1135 13. T/795 - Document 1136 14. T/205 - Document 1087 15. T/797 - Document 1138 16. T/798 - Document 1139 17. T/799 - Document 1140 18. T/800 - Document 1141 19. T/801 - Document 1142 20. T/802 - Document 1143 21. T/804 - Document 1145 22. T/812 - Document 1148 23. T/813 - Document 1149 24. T/719 - Document 739 25. T/817 - Document 1152 26. T/818 - Document 1153 27. T/823 - Document 1158 28. T/824 - Document 1159 29. T/825 - Document 1160 2. Bohemia and Moravia (VII b 2) Means of Proof: 1. Testimony of Meretz, 27 April 1961 (Session 19) 2. Testimony of Burger, 27 April 1961 (Session 19) 3. Testimony of Zimet, 27 April 1961 (Session 19) 4. T/162 - Document 1326 5. T/163 - Document 1332 6. T/294 - Document 1193 7. T/834 - Document 732 8. T/828a - Document 1334 9. T/838 - Document 1237 10. T/833 - Document 1236 3. Germany (Property) 1. T/115 - Document 505 2. Testimony of Henschel, 11 May 1961 (Session 37) 3. Testimony of Lindenstrauss, 25 April 1961 (Session 15) 4. T/665 - Document 1 5. T/650 - Document 1293 6. T/676 - Document 728 7. T/712 - Document 140 8. T/664 - Document 1281 9. T/713 - Document 1275 10. T/721 - Document 1286 11. T/722 - Document 737 12. T/737 - Document 1279 4. Special Account "W" 13. T/724 - Document 1283 14. T/723 - Document 738 15. T/734 - Document 119 16. T/753 - Document 1284 17. T/724 - Document 1283 5. Poland (Property) Means of Proof: 1. T/165 - Document 775 2. T/164 - Document 983 3. T/169 - Document 1397 4. T/167 - Document 1396 5. T/170 - Document 1398 6. T/171 - Document 1399 7. T/166 - Document 468 8. T/211 - Document 1401 9. T/206 - Document 779 6. "Aktion Reinhardt" Means of Proof: 10. T/1389 - Document 1250 11. T/1385 - Document 117 12. T/1384 - Document 1106 7. The Territorial Principle Means of Proof: 1. T/744 - Document 147 2. T/193 - Document 908 3. T/194 - Document 508 4. T/1024 - Document 850 5. T/1031 - Document 989 6. T/1031 - Document 991 7. T/1031 - Document 990 8. T/195 - Document 509 8. Emigration against ransom as an example for several other cases: 9. T/535 - Document 223 II. As to 1-3: In the area of the Reich, former Austria and the Protectorate of Bohemia and Moravia, the seizure of property and its realization were regulated by law. Means of Proof: 1. T/65 2. T/65 3. T/67 4. T/67 5. T/68 6. T/68 7. T/71 8. T/71 9. T/75 10. T/77 11. T/79 12. T/80 13. T/81 14. T/750 - Document 1292 15. T/637 16. T/722 - Document 737 17. T/641 The Prosecution has not produced any proof that would lead to the conclusion that the Accused took part in drafting or promulgating these laws. Insofar as the Prosecution produced documents relating to the so-called Crystal Night, it is submitted that that operation was not directed towards the illegal acquisition of property. Besides, the Accused, who was at that time active in Vienna, learned about the operation only after it had already commenced. Means of Proof: 18. N/34 - Document 108 19. T/154 - Document 783 As to 4. Special Account "W" The Accused's Section was not entitled to dispose of the funds in "Special Account "W". Emigrating Jews, whose property was forfeited to the Reich in accordance with Regulation 11 of the Reich Citizens Law (before the promulgation of that decree, property was forfeited under individual orders), were to be required to pay part of their liquid assets to the Reich Association of Jews in Germany, in order to enable it to finance the equipping of the transports. Means of Proof: 20. T/723 - Document 738 21. T/724 - Document 1283 22. T/750 - Document 1292 As to 5. Insofar as the Accused is being charged with having been involved in the spoliation of Jewish property in the occupied areas, it is pleaded in reply that the competent authorities were the offices of the Reich Commissar, in the Generalgouvernement its government, and in the Eastern districts the Trusteeship Office East. Means of Proof: 23. T/206 - Document 779 24. T/1417 - Document 1175 25. T/1385 - Document 187 As. to 6. "Aktion Reinhardt" The Accused did not have any influence or competence within the context of the so-called "Aktion Reinhardt." There is no mention of his name or designation of his Section in the documents produced by the Prosecution. It was Globocnik who was specially charged with this operation by Himmler to whom he also reported. Means of Proof: 26. T/1384 - Document 1106 27. T/1388 - Document 117 28 T/1389 - Document 1250 29. T/1417 - Document 1175 As to 7. Territorial principle Insofar as the Accused is being charged with involvement in the spoliation of Jewish property in countries other than the above-mentioned occupied areas or Axis countries, it is pleaded in reply that, in accordance with a departmental conference in the Foreign Ministry, the property of Jews there was forfeited to their home countries. In the West, Jewish property was also seized by the so-called Special Operations Staff Rosenberg (Einsatzstab Rosenberg). Means of Proof: 30. T/744 - Document 147 31. T/193 - Document 908 32. T/194 - Document 508 33. T/195 - Document 509 34. T/508 - Document 310 As to 8. Emigration against ransom Insofar as the Prosecution charges the Accused with allowing some Jews to emigrate against payment of a considerable amount in foreign exchange, it is pleaded in response that it was Reichsfuehrer-SS Himmler who was solely competent to decide on these individual cases. Means of Proof: 35. N/104 - Testimony of Dr. van Taalingen-Dols 36. N/105 - Book: The Battle for a Human Life III. A crime against humanity, according to the definition in Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 is: murder, extermination, enslavement, starvation, deportation and other inhumane acts committed against any civilian population, as well as prosecution on national, racial, religious or political grounds. The spoliation of Jewish property could only fall within this provision, if it could be considered an "other inhumane act," or as a part of persecution on national racial, religious or political grounds. Already from the enumeration of inhumane acts in the first part of this provision, there results a limitation of the concept "crime against humanity" to acts against the life, bodily integrity and liberty of the person. The provision makes acts punishable which are directed against "humanity," but not against property. If, therefore, the object of an act is the spoliation of property, the act itself cannot be turned into a crime against humanity because it was accompanied by inhumane situations. Section 1(a)(2) has been modeled on Article 6 of the Charter for the International Military Tribunal at Nuremberg and Article II(c) of Control Council Law No. 10 of 20 December 1945. In particular, its content conforms completely with Article II(c) of Control Council Law No. 10. By the provision of Section 1(a)(2) the same factual situations were aimed at as by Article II(c) of the Control Council Law. Therefore, the decisions of the Military Tribunal of the United States which based its judgment on Control Council Law No. 10 should be used in interpreting this provision, insofar as they dealt with crimes against humanity. (There follow quotations from judgments in the Subsequent Trials, as cited in Heinze-Schilling: Judicial Decisions of the Nuremberg Military Tribunals, edited by the Institute for International Law at Goettingen University (in German), 1952, at p. 206, No. 959; p. 207, No. 961; p. 204, No. 947; p. 207, No. 962; p. 207, No. 963; and pp. 205 and 206.) On interpreting the concept "persecution" in the light of these decisions, and having regard to the examples set out in Section 1(a)(2), one arrives at the conclusion that persecution on national, racial, religious or political grounds can be considered as a crime against humanity only when the act of prosecution in its totality is directed against the life, the bodily integrity or the liberty of a person or a group of persons. The fact that in the course of an operation of persecution which is directed against property inhumane acts are also committed does not turn the whole operation into a crime against humanity (see above, Heinze-Schilling, p. 204, No. 947). Therefore, under Count VII of the indictment there is no factual situation which can be described as a crime against humanity.
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