| Twenty-sixth Day-Tuesday, 16th October, 1945
OPENING SPEECH FOR THE DEFENDANTS GRESE, LOTHE, LOHBAUER AND KLIPPEL
Major CRANFIELD - May it please the Court. Before I outline the defence of my accused, I want to make some observations on the circumstances from which the charges arise. Whatever our personal views may be on concentration camps, they were, under German law, prisons, and the persons therein were legally imprisoned in them. The decision of the German Government, which was binding on the accused, was that it was necessary for her security that these people should be detained. Every man is deemed to know the law; he cannot deny knowledge of it, but the law which he cannot deny is his own law, his domestic law, and the accused cannot be expected to have judged their own Government by some international legal standard. During the war the British Government detained many people, both British subjects and foreigners, under what is popularly known as Rule 18 (b), in violation of the principles of habeas corpus, without trial, and at the absolute discretion of the Government. The accused must be judged here as the warders and the wardresses in a properly constituted legal prison in which the witnesses for the Prosecution and others were imprisoned, and all political aspects of the matter must be ignored altogether.
My next point is that in the same way as this is a Court trying alleged crimes by the nationals of one state against the nationals of another and applying International Law, so to the matters in issue the Court must apply an international standard of conduct. That applies in particular to the allegations made here of cruelty and ill-treatment. For example, in England a man who organises a bull-fight will very soon find himself in conflict with the law, but to suggest that this is against the usages of humanity, or a crime against International Law, is in my submission obviously absurd. In England if warders in a prison carried truncheons or sticks with which they regularly controlled the prisoners, then it might well be said that the onus was on them to justify it. But in my submission that does not automatically follow in an international case, and it is for the Court to ascertain what is a reasonable standard in these matters.
During this war some of us have had an opportunity of observing the peoples of other countries and how they behaved, and it has been obvious to us that the standard in these matters which prevail in England do not prevail in certain other countries. The whole question of corporal punishment is as a rule not very much mentioned in England, but just before the war, through the appointment of a departmental committee and its report, and the preparation of the Criminal justice Bill, these matters were brought to the public notice and a number of books were published on the subject. My argument is that to throw up one's hands in disgust at corporal punishment in prison, even for women, is not the proper course for a judicial body to take. The Court must consider what was reasonable conduct of the people concerned in the circumstances. These things are not unknown, they have taken place in other countries, civilised countries, and they have taken place in recent times. In my submission the Court must consider the allegations of cruelty and ill-treatment in the light of what is standard throughout Europe on those points, and not judge them by the British standard.
Something has been said in this case by the Prosecution of the sanitary conditions in these camps, and again I say it is dangerous to apply the British standard. Brigadier Glyn Hughes has said there was no shame or privacy in Belsen. In my submission privacy would not be understood by a large number of the inmates of these camps. It must not be forgotten that even the Wehrmacht, the cream of the German nation, rarely dug latrines in the field. All these things must be judged not by the British standard, but by the general level in all countries.
It seems to me not improbable that it will be said on behalf of the Prosecution that whatever the accused were told to do by their Government, they should have known that that was a crime against humanity, and I answer that by saying that the accused can only judge what is a crime against humanity by their own environment and by what goes on around them, what their standards are and those of the neighbouring countries. What is alleged to have been done in these concentration camps was to the accused nothing else than common form in Europe.
The live witnesses for the Prosecution who have come here fall into three classes. First, there are the British officers who have told us of the conditions as they found them when they arrived at Belsen, and the conclusions and inferences which they drew from what they were told and saw. But that surely pales into insignificance when it is put beside the evidence of Le Druillenec and Dr. Fritz Leo, inmates of the camp. I put these two witnesses and Dr. Bendel into class 2, and I accept what they said. Le Druillenec and Leo were demonstrably honest, good witnesses, but they failed entirely to make any specific allegation against my accused or against any other accused, although they had equal provocation with everybody else, and, in the case of Dr. Leo, as much opportunity as the other Prosecution witnesses.
The third class of Prosecution witnesses was the procession of young women and the occasional Polish youth whom you have seen in the box. We all realise that they had been imprisoned for a long time, in a way in which we consider unjust, and under deplorable conditions, but this is a Court of justice, not a Court of sentiment. Can the same reliance be put on their evidence? In my submission the answer is No, and I shall ask the Court to treat it as exaggerated and unreliable. The Nazis have aroused racial passion all over the earth, and I do not think it is unnatural or surprising that those young Jewesses should be vindictive towards their former warders, or to seek to avenge themselves upon them.
It is part of my case that the documentary evidence which has been put before you by the Prosecution is wholly unreliable, and I shall seek to prove that by putting in the affidavits of the witnesses who came here in person, and inviting you to compare what they have said there with what they have said in the witness box. Several of the witnesses have failed in the witness box to identify the accused against whom they have made allegations in their affidavits. Some of the witnesses suggested that their mistakes were due to mistranslations, but at the same time we have the Prosecution's evidence that the interpreters employed were first-class; indeed one of them was described as good enough for the High Court. The Prosecution cannot have it both ways - either the affidavits and the documentary evidence are reliable, or the witnesses the Prosecution have brought here are lying.
The Prosecution has relied on the proposition that all the accused were concerned together in the offences charged, so that if they can prove one murder or one flogging all the accused must be convicted of it. Section 8 (2) of the Royal Warrant relates only to what can be adduced in evidence, and it expressly states that such evidence may be received as prima facie evidence on the responsibility of the individual. In other words, if it is rebutted, before the Court can accept that responsibility further evidence such as would be normally admissible must be produced. The Royal Warrant can, of course, only regularise procedure. It cannot alter the law under which these people must be charged and under which their guilt must be proved by the Prosecution.
The Prosecuting Officer, opening this theory of joint responsibility, said: "If I prove a man was at Belsen, then he is responsible for all that went on at Belsen." Suppose a man joined the staff of Belsen Camp on the night Of 14th - 15th April, was told to bed down and report in the morning. In the morning the British arrived and he was charged with the murder of 13000 people found in the camp. In my view, such a proposition is obviously wrong, but if the absolute rule put forward by the Prosecution is not accepted then what is to be the criterion? In my submission evidence must be produced to show that the accused planned together, or were so closely associated that the inference of joint enterprise can properly be made. Any other proposition would go against the fundamental principle of guilty intent and guilty mind. That applies to the Auschwitz charge. With regard to Belsen, it is my case that it is for the Court to decide whether the appalling conditions which were found there were the concerted act of anyone at all, much less the accused in the dock.
Three of my accused are alleged to have sent inmates to the gas chamber at Auschwitz. Dr. Klein said that the selections were made by doctors exclusively. Why should he tell an untruth with regard to that matter when it amounts to assuming responsibility himself? Other witnesses have confirmed that doctors were always present and have said that the parades were all formed up in the same way, what whatever purpose they were for. Grese will tell you that she did not know before a parade took place what it was for. She kept a strength book and after a selection parade she was told where they were going and she entered in her book the number and the destination. In a case where they went to Block 25, she was told to enter "Sonderbehandlung " - special treatment. She will tell you that she was told by the prisoners that this meant death, but she will also tell you that from her superiors she was told nothing. I am not suggesting that my accused at Auschwitz did not know there was a gas chamber. They did. I am not suggesting that they did not know people disappeared in circumstances which made it extremely probable that they had been killed. They knew that. What I do say is that before the parade took place, they did not know what it was for, and they had no part whatever in deciding who was to be selected or in selecting anybody themselves. It seems to me that as Grese was the equivalent of a non - commissioned officer in charge of the parade, the explanation of why the Prosecution witnesses have come here and said she made selections for the gas chamber is quite simple.
Secondly, Grese is charged with specific murders. There are three of them alleged and the accusations all appear in the affidavits. One witness, Szafran, made the allegation of the shooting of two girls in her re-examination. As this fact came out in re-examination, in my submission it shows that the Prosecutor obviously did not know what the witness was going to say in answer to a somewhat general question, and therefore in my view an allegation of that sort is of very little use. With regard to the other killings, you will hear from Grese in the box what she has to say. You will not see her accusers in the witness box, and it is for the Court to decide whether they can accept the evidence of this kind in a charge of murder.
Thirdly, there are allegations of ill-treatment by beatings and kickings and it is not my case that beatings did not take place at Auschwitz, or that Grese, Lohbauer and Lothe did not strike internees. They will all tell you that they did. The Prosecution witnesses both orally and in their affidavits gave accounts which in my submission are grossly exaggerated. They came here and spoke glibly of the beating to death of prisoners, of persons being removed to hospital in a senseless or dying condition, but when a witness was asked as to her own experiences you got nothing of this sort, and in many cases what was once called a beating resolved itself into a box on the ear, a cuff or two strokes with a light cane. Grese will tell you that at Auschwitz she carried a walking-stick and for a short time one of those whips which were made in the weaving factory in the camp, but that at Belsen she carried nothing at all. She will tell you how the internees behaved and that as one amongst seven Aufseherinnen she had a camp of between twenty and thirty thousand women to control, all of them Hungarian Jewesses. If their food was to be properly distributed and if any kind of order was to be maintained, some sort of force had to be used. She will tell you that she had a stick and she will not deny that when surrounded by a crowd she would lay about her with that stick. What she will deny is that she ever deliberately beat an internee individually with a stick, and that at no time did she carry a rubber truncheon.
In my submission what the evidence of the Prosecution witnesses reveals is a general standard of corporal punishment rather than deliberate and excessive cruelty. Grese will tell you that beatings in the proper sense of the word were not confined to the prisoners, and she will confirm the flogging of an S.S. woman as a punishment of which we have heard. Lothe and Lohbauer, who were prisoners employed in positions of some authority, will tell you of the punishments they received. The accused received or were liable to similar punishment, and the use of a reasonable amount of force and a reasonable weapon for punishment was justified; and I shall ask the Court only to convict of ill-treatment as charged if they are satisfied that the accused exceeded what was required, and that their brutality was wanton and excessive. |